Jones v CSCPC Pty Ltd

[2024] NSWPICMP 688

DETERMINATION OF APPEAL PANEL
CITATION:	Jones v CSCPC Pty Ltd [2024] NSWPICMP 688
APPELLANT:	Gregory Jones
RESPONDENT:	CSCPC Pty Ltd
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	2 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Psychological Injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under four of the psychiatric impairment rating scale (PIRS) categories of travel, social functioning concentration, persistence and pace and employability; Medical Appeal Panel found error in respect of the category of concentration, persistence and pace; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. Mr Gregory Jones (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 May 2024.

2. 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):

   ·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);

   ·        the assessment was made on the basis of incorrect criteria, and

   ·        the MAC contains a demonstrable error.

3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.

4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

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

2. The appellant did not seek that he undergo a re-examination by a Medical Assessor who was also a member of the Appeal Panel. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although the Appeal Panel found error, there was sufficient material before the Appeal Panel for it to make a determination.

EVIDENCE

Fresh evidence

1. 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.

2. The appellant seeks to admit the following evidence:

   (a)    additional statement of the appellant.

3. The appellant submits that the evidence is relevant. The appellant submits that the evidence was not available and could not reasonably have been obtained because it concerns the manner of the conduct of the assessment itself.

4. The respondent objects to the admission of the additional evidence.

5. The Appeal Panel determines that the evidence should not be received on the appeal because matters pertaining to history are to be given in the statements of evidence filed with application that commences the proceedings. The Medical Assessor is entitled to apply her own clinical expertise in the conduct of the assessment and there is a presumption of regularity in the conduct of the assessment.

Documentary evidence

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

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

FINDINGS AND REASONS

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

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

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

   ·        Date of injury: 21 September 2023

   ·        Body parts/systems referred: Psychiatric/psychological disorder

   ·        Method of assessment: Whole Person Impairment”

4. The Medical Assessor issued a MAC certifying as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psychological Injury	21/09/2023	Chapter 11 Guidelines 11.1-11.3 11.4-11.6	Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6	15	1/10	14
Total % WPI (the Combined Table values of all sub-totals)					14%

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

“Table 11.8: PIRS Rating Form

Name	Gregory Jones	Claim reference number (if known)	W2462/24
DOB	Xxxx	Age at time of injury	54 years old
Date of Injury	21 September 2023	Occupation at time of injury	Director
Date of Assessment	1 May 2024	Marital Status before injury	Married

Psychiatric diagnoses	1. Persistent Depressive Disorder with Major Depressive Disorder
Psychiatric treatment		Yes
Is impairment permanent?	Yes

PIRS Category			Class		Reason for Decision
Self-care and personal hygiene			3		Mr Jones reported that he showers once or twice a week.  He does not shave regularly and brushes his teeth 2-3 times a week.  He changes into clean clothes “once or twice a week”.  He is able to mow the lawn occasionally but often procrastinates and takes a long time to do that.  He also does “a bit of vacuuming occasionally”.  He cooks meals once a week and is able to cook spaghetti and curry.
Social and recreational activities			3		Mr Jones reported that he used to like “working on cars and building electronic stuff”.  He reported that now he tries it but he does not enjoy doing it anymore.  He now takes his dog out for a walk once a week instead of every day.  He reported that he had “friends interstate” and had work colleagues whom he considered friends.  He said that he ended up “arguing with them and has lost contact with them and has lost contact with them”.  He said that he occasionally now texts his friends who are interstate.
Travel			1		Mr Jones is able to drive on his own.  He has been able to drive locally.  He has also driven to Queensland twice to see his mother and sister.  He also drove to Victoria to buy windows.
Social functioning			2		Mr Jones reported that his relationship with his wife is “not good” and does not communicate well.  He said that he does not want to burden her with the troubles.  However, she has been quite supportive and has been looking after a lot of things at home.  He added that she gets frustrated at times and Mr Jones does not do a lot of household chores.
Concentration, persistence and pace			2		Mr Jones reported that his attention and concentration are not good.  He said that he is unable to watch movies as he gets distracted.  He is only able to watch “shorter shows”.  He is unable to read and study like before.  He has been able to advertise articles online and sell his stuff.
Employability			4		Based on the significant symptoms that Mr Jones currently experiences, I believe that he can only work less than 20 hours per fortnight with reduced pace and with different employers.
Score										Median Class
1	2	2		3		3	4		=3
Aggregate Score Impairment								Total			%
+1	+3	+5		+8		+11	15			15

Deduction for pre-existing impairment = 1/10 = 1.5.

Final WPI = 15 - 1.5 = 13.5 = 14%.”

1. The worker appealed.

2. In summary, the appellant submitted that the Medical Assessor made assessments on the basis of incorrect criteria and/or made demonstrable errors in the assessments she made under four of the PIRS categories, namely social and recreational activities, social functioning and concentration, persistence and pace, such that she erred as follows:

   (a)    in assessing a class 1 for travel when she should have assessed a class 2;

   (b)    in assessing a class 2 for social functioning when she should have assessed a class 3;

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

   (d)    in assessing a class 4 for employability when she should have assessed a class 5.

3. In summary, the respondent employer CSCPC Pty Ltd (the respondent) submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.

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

5. The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self- report can be properly evaluated in the context of other evidence before the Medical Assessor.

6. The Medical Assessor took a history as follows:

   “Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: Mr Jones reported that he owned and founded his company CSCPC Pty Ltd and started working as a blind/curtain fitter.  He said that in 2015, he contracted out to a multinational company and his role involved making custom-made plans, shutters, awnings and curtains and installing them in customers’ homes.

   Mr Jones reported that he started having issues with the contracted company, including not taking feedback of the customers, not paying Mr Jones for the work that he had already completed, not ensuring a proper communication is made with him and making incorrect measurements for which Mr Jones was later blamed.  There were other issues as well which were impacting Mr Jones’ ability to be able to work with them. 
   Mr Jones reported that they said that they had received a feedback from the customer that he was ‘rude, aggressive, weird and strange’.  He said that he was given this feedback and information by another area manager of the company who was contracted to work with the other company.

   Mr Jones reported that he started noticing changes in his mental health soon after.  He started getting physical manifestations like feeling ‘shaky and sweaty’.  He added that he was not able to think clearly and was not able to make proper decisions.  He felt on the edge and waited for something bad to happen.  He remembers feeling anxious to the point that he had ‘panic attacks’.  He also started struggling with his attention and his concentration.

   He reported that his jobs were often cancelled without informing him and he had to chase the contracted company to receive the payments.  He also noticed that there were multiple occasions where the products went missing when he was working and he was allocated a two-man job.

   He reported that because of the above, his anxiety gradually increased to the extent that during pre-Christmas 2018 time when he was working with a client, he remembers having significant panic attacks and he thought that he was having a ‘heart attack’.

   He attended the meeting with the contracted company on 1 June 2019 wherein he received feedback relating to his performance and was told that his behaviour was quite rude, weird and aggressive.  This is when Mr Jones lodged a Workers’ Compensation claim.  He said that he did try to work a couple of months later in 2019 as well and completed the job but was called to rectify an error.  He, however, was not able to go back to work.

   He said that he has tried to do a number of things since then.  He said that he delivered steel and other metal interstate that he sold.  He bought some windows and went to Melbourne and picked them up.  He had travelled to Melbourne from Central Coast to buy the windows and to later sell them.  He said that he still experienced high level of anxiety and stress, and hence stopped doing that job as well.

   Mr Jones reported that he started seeing Ms Kelly Gay, Psychologist, and saw her every couple of weeks.  He also saw Dr Sujatha Kalava, Consultant Psychiatrist.  She recommended trialling antidepressants and they tried multiple antidepressants.
   Mr Jones’ mental health gradually worsened when he was later admitted to Brisbane Waters Private at Central Coast in 2021 for RTMS.

   He was admitted to the hospital for 21 days and had about 10-30 sessions but was not able to remember the exact number of sessions that he received.  Mr Jones reported that despite being treated with TMS, he was still experiencing symptoms and hence, it was stopped.

   Personal History: Mr Jones was born in Adelaide and his mother currently resides in Queensland.  His dad in his 80s resides in Sydney.  He said his parents separated when he was two years old.  He grew up with his three elder sisters and a younger half-sister and half-brother.  He said that he lived with his mother and stepfather once his parents separated.  He recalled his stepfather as a strict disciplinarian.

   He attended primary schools in Tasmania and South Australia and changed multiple schools in South Australia due to bullying.  He attended high school in Hobart until Year 10.  He later completed a Diploma in Carbon Management in 2013 and Certificate IV in Small Business.

   Mr Jones reported that he worked as a mechanic for around six months after dropping out from Year 10.  He then started working for a security company from late 1980s until 1994.  He also worked with his father at a hydroponic farm from 1994 to 1999.  He later worked in distributing meat products around Sydney from 2000 to 2005.  He then moved to Victoria and started his installing window fittings business.

   Mr Jones said that he was married once and the marriage lasted for three years. He has been in his current relationship for the last 25 years.

   He currently lives in Woy Woy with his wife and his 19-year-old son.  His daughter who is 21 years old lives in the granny flat.

   Forensic History: Mr Jones denied having any criminal convictions.

   Family History: He denied having any family history of mental health illnesses.

   Drug and Alcohol History: Mr Jones imbibes alcohol 2-3 standard drinks each time and 2-3 times a week.  He said that his alcohol use has ‘remained the same pretty much’ and only ‘sometimes he will have more than the usual’.  He ceased cigarette smoking when he was young.  He has not tried cannabis in a long time.

   ·    Present Treatment: Mr Jones continues to see Dr Kalava and sees her on a monthly basis.  He is currently on Clonazepam 0.5 mg two tablets a day, Quetiapine 25 mg half to one tablet a day and Metoprolol half tablet bd.  He was also prescribed Duloxetine, but he is not taking it anymore.  He has not seen a Psychologist in the last few months.

   ·    Present Symptoms : Mr Jones said that overall his mental health is ‘worse’.  He reported that he is struggling ‘financially, physically and psychologically’.  He said he ‘sleeps most of the time’ and is not motivated to do things.  He takes ‘days to complete even simple tasks like lawn mowing’.  He added that the medications ‘knock him off’ and he sleeps for 7-8 hours when he takes his medication.

   He added that his appetite is ‘very good’ and he has gained about 5-10 kg in the last two to three years.  He said that his ‘anxiety comes and goes’ and is triggered even when he has to do ‘simple tasks’ like household chores.  He gave examples like repairing the car and fixing things.  He said that when trying to fix things, he ‘is sometimes able to complete it eventually but takes a long time to get there’.

   Mr Jones further added that he zones out pretty often and does not remember the conversations he has. He thinks that his life is not worth living and that it is ‘pointless to go on living like this.’

   Mr Jones reported impairment in various domains of his functioning including self care and personal hygiene, social and recreational activities, relationships, attention and concentration and being able to remain employed as before.

   ·    Details of any previous or subsequent accident, injuries, or condition: Mr Jones reported that he was diagnosed with depression in 2005.  He said the company he contracted to ‘wanted to reduce the payment’.  He saw a Psychologist for about 10 sessions and was also prescribed antidepressants, which he took for a year. 
   Mr Jones reported that after a year, his depression improved and he stopped taking the medication.

   I then asked him specifically about other episodes as mentioned in the documents received, and he said that he had another episode in 2014.  He said that this was in the context of starting his business, and he remembers making poor financial decisions at that time and hence was quite stressed. He said that he was not prescribed any antidepressants at that time. He denied any history of self-harm or suicide attempts.

   ·    General Health: Mr Jones reported that he has been told that he has regurgitation and a large right ventricle, which is being further investigated.  He denied any other medical comorbidities.

   ·    Social activities/ADL:

   Mr Jones reported that he showers once or twice a week.  He does not shave regularly and brushes his teeth 2-3 times a week.  He changes into clean clothes ‘once or twice a week’.  He is able to mow the lawn occasionally but often procrastinates and takes a long time to do that.  He also does ‘a bit of vacuuming occasionally’.  He cooks meals once a week and is able to cook spaghetti and curry.

   Mr Jones reported that he used to like ‘working on cars and building electronic stuff’.  He reported that now he tries it but he does not enjoy doing it anymore.  He now takes his dog out for a walk once a week instead of every day.  He reported that he had ‘friends interstate’ and had work colleagues whom he considered friends.  He said that he ended up ‘arguing with them and has lost contact with them and has lost contact with them’.  He said that he occasionally now texts his friends who are interstate.Mr Jones is able to drive on his own.  He has been able to drive locally.  He has also driven to Queensland twice to see his mother and sister.  He also drove to Victoria to buy windows.

   Mr Jones reported that his relationship with his wife is ‘not good’ and does not communicate well.  He said that he does not want to burden her with the troubles.  However, she has been quite supportive and has been looking after a lot of things at home.  He added that she gets frustrated at times and Mr Jones does not do a lot of household chores.

   Mr Jones reported that his attention and concentration are not good.  He said that he is unable to watch movies as he gets distracted.  He is only able to watch ‘shorter shows’.  He is unable to read and study like before.  He has been able to advertise articles online and sell his stuff.

   Mr Jones reported that his usual day involves getting up at 1:00 pm.  He then has his food and then lies down again.  He watches YouTube videos on mechanical engineering.  He said that he likes watching the videos but becomes stressed if it showcases any stressful situation.”

1. The Medical Assessor conducted a mental state examination and recorded as follows:

   “I reviewed Mr Jones via video.  He engaged well during the assessment and was cooperative.  He presented as a middle-aged Caucasian male of the stated age and was of average build.  He was bespectacled and had a stubble and his hair was not well combed.  There was no evidence of any psychomotor agitation or retardation.  No abnormal motor movements like tics or mannerisms were noted.

   He remained slightly anxious throughout the interview.  He, however, gave a clear account of his symptoms and difficulties.  He reported that his mood was sad and his affect was restricted.  His speech was soft and low in tone and monotonous at times.  His thoughts were logical and goal-directed.  He currently reports ongoing ruminations about what happened at work and how his future is going to look like.

   There was no evidence of any manic, psychotic or any perceptual abnormalities.  He had reasonable insight into his illness and the need for treatment.  His judgement was reasonable.”

2. The Medical Assessor had regard to the Procare investigation which was in evidence as follows:

   “I have noted Procare investigation dated 17 July 2020 which concluded:

   The Claimant is confirmed to reside at the stated address in Point Clare NSW 2250 with his Spouse, Melissa Jones. Business searches showed the Claimant and his Spouse are directors, secretaries and shareholders of CSCPC Pty Limited. Searches could not determine the Claimant’s current business activity associated with his company. The Claimant has been highly active online particularly since late 2019, visited the beach with his dog on multiple occasions, and advertised a passenger van and quad bike for sale which is further detailed in our Social Media subsection of our report. We could not find any posted activity relating to his interest in stocks or share trading.”

3. The Medical Assessor summarised the injury and her diagnosis as follows (emphasis in original):

   “summary of injuries and diagnoses:

   Mr Jones is a 55-year-old male who lives in Woy Woy with his wife and 19-year-old son.  He was the director of his company CSCPC Pty Ltd and worked as a director.  Mr Jones alleged being bullied and harassed by another contractor which impacted his mental health significantly.

   At the time of the assessment, he reported struggling with symptoms of depressed mood, reduced interest in enjoyment and activities, sleep disturbances, feeling of hopelessness, helplessness and worthlessness, impaired attention and concentration, anxious ruminations and fluctuations in energy and motivation. 

   His symptoms are consistent with the diagnosis of Persistent Depressive Disorder with Major Depressive Disorder.  The diagnosis is based on the DSM-5 criteria which I have highlighted in bold.

   DSM-5 – MDD

   Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.
   Note: Do not include symptoms that are clearly attributable to another medical condition.

   ·     Depressed most of the day, nearly every day as indicated by subjective report (e.g., feels sad, empty, hopeless) or observation made by others (e.g., appears tearful)

   ·      Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by subjective account or observation)

   ·      Significant weight loss when not dieting or weight gain (e.g., change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day

   ·      Insomnia or hypersomnia nearly every day

   ·      Psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down)

   ·      Fatigue or loss of energy nearly every day

   ·     Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick).

   ·      Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others)

   ·      Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide

   -The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

   - The episode is not attributable to the physiological effects of a substance or to another medical condition.
   Note: The above criteria represent a major depressive episode.

   - The occurrence of the major depressive episode is not better explained by Schizoaffective Disorder, Schizophrenia, Schizophreniform Disorder, Delusional Disorder, or other specified and unspecified schizophrenia spectrum and other psychotic disorders.

   - There has never been a manic episode or a hypomanic episode.
   Note: This exclusion does not apply if all of the manic-like or hypomanic-like episodes are substance- induced or are attributable to the physiological effects of another medical condition

   DSM-5 – PDD

   - Depressed mood for most of the day, for more days than not, as indicated by subjective account or observation by others, for at least 2 years.

   - Presence while depressed of two or more of the following: 

   ·    Poor appetite or overeating

   ·    Insomnia or hypersomnia

   ·    Low energy or fatigue

   ·    Low self-esteem

   ·    Poor concentration or difficulty making decisions

   ·    Feelings of hopelessness

   - During the 2 year period of the disturbance, the person has never been without symptoms from the above two criteria for more than 2 months at a time.

   - Criteria for MDD may be continuously present for 2 years, in which case patients should be given comorbid diagnoses of Persistent Depressive Disorder and MDD.

   - There has never been a manic episode, a mixed episode, or a hypomanic episode and the criteria for cyclothymia have never been met.

   - The symptoms are not better explained by a psychotic disorder.

   - The disturbance is not due to the direct physiological effects of a substance (e.g., a drug of abuse or a medication) or a general medical condition.

   - The symptoms cause clinically significant distress or impairment in important areas of functioning.

   He has since received both psychological and psychiatric treatment, including hospital admission in mid-2021 for 21 days and received RTMS sessions.  I believe that he has received optimal management for his current symptoms and has reached maximum medical improvement.

   ·    consistency of presentation

   His presentation was consistent with the history given during clinical interview, documentation received and mental status examination.”

4. The Medical Assessor evaluated impairment in accordance with the PIRS as set out above. There are complaints on appeal about her ratings in four of the PIRS categories, namely travel, social functioning, concentration, persistence dm pace and employability. The Medical Assessor made a one-tenth deduction under s 323 to take account of any pre-existing injury, condition or abnormality. There is no complaint on appeal about the one-tenth deduction.

5. The Medical Assessor provided brief comment on the other evidence before her and explained why her opinion differed from other medical opinion as follows (emphasis in original):

   “I have noted IME by Dr Glenn L Smith, Consultant Forensic Psychiatrist, dated 7 September 2023.  I have noted that Dr Smith concluded that his presentation was consistent with Persistent Depressive Disorder with current episode of Major Depressive Disorder.  I agree with Smith’s conclusion and findings.

   I have also noted that Dr Glenn calculated the WPI as 24% and made deductions for the pre-existing illness and the final WPI was 22%.  Kindly note how my calculation differs in the following PIRS categories:

   1.   Travel

   I have noted that Dr Smith has mentioned, like myself, that Mr Jones has travelled with his family to Victoria and Queensland to see his mother on a couple of occasions.  He has been able to drive without any difficulties.  This therefore warrants no impairment or variation of the normal population.

   2.   Social functioning

   I have noted that Dr Smith has marked social functioning as moderate impairment, and as mentioned:

   ‘Mr Jones reported strain in the relationship with his wife and they slept in separate rooms for a couple of years.  He said that but for financial issues, he believed that they would have separated.  He reported there are occasional arguments, but there are no episodes of physical violence’.

   I have noted that his relationship with his wife is strained, however, there have been no periods of ‘separation or domestic violence or severely strained relationship’.  I have noted that there have been tensions and arguments.  I have also noted that in fact
   Mr Jones’ wife has been quite supportive with his activities of daily living and has been supporting him in other areas as well.  I therefore believe that this warrants mild rather than moderate impairment.

   3.   Concentration, attention and pace

   I have noted that Dr Smith has mentioned:

   ‘Mr Jones described marked difficulties with thinking and concentration and he only reads brief articles online.  He performed poorly on simple tests of concentration and there was evidence of psychomotor slowing.’

   I have noted that during his assessment, Dr Smith noted:

   ‘Registration and short-term memory were intact.  He performed poorly on simple tests of concentration.’

   I am, however, still determining which tests were performed during this assessment.  During my assessment, however, Mr Jones was able to answer the question asked without any difficulty and he said there was no latency of speech or paucity of thought evident during the assessment.

   I, therefore, believe that Mr Jones has mild rather than moderate impairment in his concentration persistence and pace.  I have noted that he was able to advertise online for the products and has been able to sell them, is able to keep a record of that and financially manage all of that.

   4.Employability

   I have noted that Dr Smith has mentioned that Mr Jones does not have any capacity currently and hence has marked that as 5.  I, however, believe that Mr Jones has capacity to work at least 20 hours per fortnight with reduced pace.

   ·    I have noted various letters by Dr Sujata Kalava, Consultant Psychiatrist, mentioning the diagnosis of Generalised Anxiety Disorder and Major Depressive Disorder.  I have noted that Mr Jones was trialled on multiple medications, including Moclobemide 150 mg bd, Abilify 2.5 mg, Vortioxetine 10 mg, Topiramate 25 mg bd and Quetiapine 12.5 mg.  I have noted that most of these medications were stopped because of being ineffective and having side effects.  I have also noted that Dr Kalava also trialled Bupropion 150 mg bd and Nortriptyline 25 mg to the maximum of 75 mg per day.

   ·    I have also noted letter by Dr Kalava dated 10 August 2021 mentioning:

   ‘Mr Jones’ prognosis overall appears to be guarded at this stage. He has not had a significant response in his symptom improvement so far, despite various treatment trials. A return to work appears to be a difficult goal at this point. It is highly unlikely he will ever return to pre-injury duties but it might be useful to think about a return to work plan where he can return to some sort of work that does not involve a high amount of client contact.

   I would attribute the same kind of prognosis to the overall resolution of the injury or discharge from treatment, given on the poor treatment response Gregory has had so far. However, I am quite hopeful about TMS being a treatment that can be useful and well tolerated, and hopefully it can change Gregory’s presentation significantly.’

   ·    I have noted independent consultant stage 2 summary letter by Thomas O’Neill dated 6 March 2020 mentioning:

   ‘Ongoing psychological treatment at this stage in time is not considered reasonably necessary, as the primary intervention required is a change of work environment which the worker is exploring with the assistance of a rehabilitation provider (training to become a truck driver).  He is not motivated to return to the blind fitter role.  He has also received psychoeducation on management of anxiety and his physiological symptoms.  When he does resume working, he may benefit from a couple of sessions to review his coping.

   Significant non-work-related factors have been identified pertaining to a sense of defectiveness and family of origin, as well as current relationship issues.  if Mr Jones wishes to pursue treatment for these matters, it would be more appropriate to do so under a Medicare Mental Health Treatment Plan.  If further physiological treatment beyond this point is recommended related to this workers’ compensation claim, I would suggest another stage 2 treatment review.’

   ·    I have noted IME by Dr Yajuvendra Bisht dated 18 August 2023.  I have noted that Dr Bisht concluded that his presentation was consistent with Major Depressive Disorder.  Dr Bisht also calculated the WPI.  Kindly note that my calculation differs in the areas of self-care and employability.

   ·    I have noted vocational assessment report dated 28 November 2019 mentioning:

   ‘IPAR to submit a Return to Work-Different Employer Plan.

   IPAR to liaise with all the stakeholders to monitor Mr Jones’ return to work progress.

   IPAR to facilitate a medical case conference with Mr Jones and Dr Malak (NTD) to obtain recommendations for treatment, obtain further endorsements for job options and obtain upgrades in capacity for employment as soon as medically appropriate.

   IPAR to facilitate Positivum Health Coaching to address Mr Jones’ General Health, Employer Perceptions and Self-Confidence.

   IPAR to facilitate job-seeking appointments to assist Mr Jones locate sustainable employment and develop the skills to independently job-seek.’

   ·    I have noted IME by Kelly Gay, Psychologist, mentioning:

   ‘Firstly, Gregory is adamant he cannot and will not perform work duties with a customer-face focus.  He experiences severe physiological symptoms when he exposes himself to performance judgement.  The most distressing symptom reported by Gregory is profuse sweating.  He had described how he pushed through these experiences at work, however it now seems that he is unable to face similar situations again in spite of CBT and mindfulness strategies used during our sessions.”

6. The appellant complains on appeal about the Medical Assessor’s ratings in four of the PIRS categories, namely travel, social functioning, concentration, persistence and pace and employability.  The respondent submitted that there was no error or application of incorrect criteria in any of these four categories and the ratings given by the Medical Assessor should be confirmed by the Appeal Panel. The Appeal Panel will deal with each of the four categories in turn.

7. In respect of Travel, Table 11.3 of the Guides provides as follows:

   Table 11.3: Psychiatric impairment rating scale – travel

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2	Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3	Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
Class 4	Severe impairment: finds it extremely uncomfortable to leave own residence even with trusted person.
Class 5	Totally impaired: may require two or more persons to supervise when travelling.

1. The Medical Assessor assessed class 1 (no or minor deficit attributable to normal variation in the population) with the following reasoning:

   “Mr Jones is able to drive on his own.  He has been able to drive locally.  He has also driven to Queensland twice to see his mother and sister.  He also drove to Victoria to buy windows.”

2. The appellant submitted that a class 2 or mild impairment should have been assessed.

3. The Medical Assessor was cognisant that the independent medical examiner (IME) Dr Smith who was qualified to provide an opinion on behalf of the appellant had found a mild impairment (class 2) for travel but clearly explained why her opinion differed. The Medical Assessor is required to make an independent assessment using his own clinical judgment. This is exactly what the Medical Assessor has done here. She explained as follows:

   “I have noted that Dr Smith has mentioned, like myself, that Mr Jones has travelled with his family to Victoria and Queensland to see his mother on a couple of occasions.  He has been able to drive without any difficulties.  This therefore warrants no impairment or variation of the normal population.”

4. The evidence, including the most recent treating clinician’s evidence, indicates extensive interstate driving. The fact of driving with a family member does not mean that this is a “support person”, and is commonplace in the general population who have spouses and children when driving to see other family members.  The Medical Assessor having taken an adequate history from the appellant, has not relied on self report alone, has had regard to the other expert opinion and explained why her opinion differed. The Appeal Panel consider that the Medical Assessor has made an assessment on the day of examination that correctly accords with the criteria for a class 1 rating in the guidelines, and the Appeal Panel can discern no error.

5. In respect of social functioning, Table 11.4 of the Guides provides as follows:

   Table 11.4: Psychiatric impairment rating scale – social functioning

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
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.
Class 4	Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5	Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.

1. The Medical Assessor assessed Class 2 with the following reasoning:

   “Mr Jones reported that his relationship with his wife is “not good” and does not communicate well.  He said that he does not want to burden her with the troubles.  However, she has been quite supportive and has been looking after a lot of things at home.  He added that she gets frustrated at times and Mr Jones does not do a lot of household chores.”

2. The appellant submitted that the Medical Assessor should have assessed a moderate impairment at Class 3.  The IME who was qualified to provide an opinion on behalf of the appellant Dr Smith assessed a moderate impairment at Class 3. The Medical Assessor was clearly cognisant of this opinion and carefully explained why her opinion differed in accordance with the criteria in the guidelines as follows:

   “I have noted that Dr Smith has marked social functioning as moderate impairment, and as mentioned:

   ‘Mr Jones reported strain in the relationship with his wife and they slept in separate rooms for a couple of years.  He said that but for financial issues, he believed that they would have separated.  He reported there are occasional arguments, but there are no episodes of physical violence.’

   I have noted that his relationship with his wife is strained, however, there have been no periods of ‘separation or domestic violence or severely strained relationship’.  I have noted that there have been tensions and arguments.  I have also noted that in fact
   Mr Jones’ wife has been quite supportive with his activities of daily living and has been supporting him in other areas as well.  I therefore believe that this warrants mild rather than moderate impairment.”

1. The Medical Assessor has to reach her own independent assessment. Social functioning is concerned with the quality of relationships. There has been no violence or history of separation in significant relationships.  The rating of a mild impairment is consistent with this history and the Appeal Panel can discern no error.

2. In respect of concentration, persistence and pace, Table 11.5 of the Guides provides as follows:

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

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

1. The Medical Assessor rated a class 2 with the following reasoning (emphasis in original):

   “Mr Jones reported that his attention and concentration are not good.  He said that he is unable to watch movies as he gets distracted.  He is only able to watch ‘shorter shows’.  He is unable to read and study like before.  He has been able to advertise articles online and sell his stuff.”

2. The appellant submitted that a moderate impairment or class 3 should have been assessed.

3. The Medical Assessor was cognisant that Dr Smith had assessed a moderate impairment and explained why her opinion differed as follows:

   “I have noted that Dr Smith has mentioned:

   ‘Mr Jones described marked difficulties with thinking and concentration and he only reads brief articles online.  He performed poorly on simple tests of concentration and there was evidence of psychomotor slowing.’

   I have noted that during his assessment, Dr Smith noted:

   ‘Registration and short-term memory were intact.  He performed poorly on simple tests of concentration.’

   I am, however, still determining which tests were performed during this assessment.  During my assessment, however, Mr Jones was able to answer the question asked without any difficulty and he said there was no latency of speech or paucity of thought evident during the assessment.

   I, therefore, believe that Mr Jones has mild rather than moderate impairment in his concentration persistence and pace.  I have noted that he was able to advertise online for the products and has been able to sell them, is able to keep a record of that and financially manage all of that.”

4. The Appeal Panel considers that the Medical Assessor has erred in the assessment of class 2 for concentration, persistence and pace and the application of correct criteria means that a class 3 or moderate impairment is the appropriate rating because the clear history is that that the appellant’s concentration, persistence and pace is impaired as follows (emphasis in original):

   “He said he ‘sleeps most of the time’ and is not motivated to do things.  He takes ‘days to complete even simple tasks like lawn mowing’.  He added that the medications ‘knock him off’ and he sleeps for 7-8 hours when he takes his medication.

   He said that his ‘anxiety comes and goes’ and is triggered even when he has to do ‘simple tasks’ like household chores.  He gave examples like repairing the car and fixing things.  He said that when trying to fix things, he ‘is sometimes able to complete it eventually but takes a long time to get there’.

   Mr Jones further added that he zones out pretty often and does not remember the conversations he has.”

5. The Medical Assessor considered that the appellant’s ability to advertise on ebay and sell products has been a decisive factor in rating a mild impairment for concentration, persistence and pace however the ability to advertise on ebay is not an activity that requires such a degree of concentration that the other reported difficulties are mitigated such as zoning out on conversations, taking days to complete simple tasks. The appellant’s statement of
   10 February 2024 records his inability to continue with a course at TAFE the last time he attempted this due to concentration problems.

6. The correct application of criteria means that a class 3 is appropriate for concentration, persistence and pace as the appellant’s reported difficulties, which are consistent with the other evidence which was before the Medical Assessor, are in clear correlation with the criteria for class 3 as follows:

   “Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”

7. In respect of Employability, Table 11.6 of the Guides provides as follows:

Class 1

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.

Class 2

Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).

Class 3

Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).

Class 4

Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.

Class 5

Totally impaired: Cannot work at all.

Table 11.6: Psychiatric impairment rating scale – employability

1. The Medical Assessor rated class 4 or severe impairment with the following explanation:

   “Based on the significant symptoms that Mr Jones currently experiences, I believe that he can only work less than 20 hours per fortnight with reduced pace and with different employers.”

2. The appellant submitted a class 5 should have been assessed.

3. The Medical Assessor was cognisant that Dr Smith had assessed a class 5 stating as follows:

   “I have noted that Dr Smith has mentioned that Mr Jones does not have any capacity currently and hence has marked that as 5.  I, however, believe that Mr Jones has capacity to work at least 20 hours per fortnight with reduced pace.”

4. The Medical Assessor was required to exercise her clinical judgment in rating employability. The Medical Assessor has done that here clearly finding in view of the appellant’s ability to operate in an online environment selling products on ebay that he is not totally impaired for any work at all given the organisation, payment and monitoring of such adverts, and the packaging and delivery of the sales reflects vocational function. The Appeal Panel can discern no error in the assessment of class 4 when the MAC is read as a whole as the Medical Assessor’s findings were open to her on the basis of her findings on the day of assessment, using her clinical judgment and they accord with the criteria for that class and it is the best fit.

5. The assessment by the Medical Assessor was open to her and is in accordance with correct criteria. The Appeal Panel can discern no error in the class 4 rating for employability.

6. The Appeal panel has found error in one category of PIRS namely concentration, persistence and pace. This means that the scores become as follows, noting that there was no complaint on appeal about the one-tenth deduction applied by the medical assessor under s 323:

“Score								Median Class
1	2	3	3	3	4		3
Aggregate Score Impairment						Total			%
+1	+3	+6	+9	+12	16			17

Deduction for pre-existing illness = 1/10

Final WPI = 17- 1.7 = 15.3 = 15% (after rounding)”

1. For these reasons, the Appeal Panel has determined that the MAC issued on
   20 May 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:	W2462/24
Applicant:	Gregory Jones
Respondent:	CSCPC Pty Ltd

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

The Appeal Pane revokes the Medical Assessment Certificate of Medical Assessor Surabhi Verma and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psychological Injury	21/09/2023	Chapter 11 Guidelines 11.1-11.3 11.4-11.6	Guidelines 11.11,11.12 Table :11.1,11.2,11.3,11. 5,11.5,11.6	17	1/10	15
Total % WPI (the Combined Table values of all sub-totals)					15

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