Jones v H E & M E Morris Pty Ltd Harvey Morris Motor Cycles

[2023] NSWPICMP 553

DETERMINATION OF APPEAL PANEL
CITATION:	Jones v H E & M E Morris Pty Ltd - Harvey Morris Motor Cycles & Ors [2023] NSWPICMP 553
APPELLANT:	Jadelle Anthea Jones
RESPONDENT:	H E & M E Morris Pty Limited - Harvey Morris Motor Cycles
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	3 November 2023
CATCHWORDS:	WORKERS COMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in his assessments in four of the psychiatric impairment rating scale categories; the Panel found no errors in three but error in social and recreational activities; in addition, error by the MA in adding 2% for the effects of treatment when no evidence to support this; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 18 July 2023 Jadelle Anthea Jones (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Wayne Mason, a Medical Assessor, (MA) who issued a Medical Assessment Certificate (MAC) on 22 June 2023.

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):

   ·         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 ground(s) 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 Procedural Direction PIC7.

2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, no specific reasons were provided as to why this was necessary. In any event, we consider that we have sufficient evidence before us to enable us to determine this appeal for reasons that will become apparent in due course.

EVIDENCE

Documentary evidence

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

SUBMISSIONS

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

2. In summary, the appellant submits that the Medical Assessor erred with respect to four of the categories in PIRS, namely Self-care and personal and hygiene; Social and recreational activities, concentration, persistence and pace, (cpp) and travel.

3. In reply, the respondent submits that no errors were made by the Medical Assessor in his assessment of the categories the subject of this appeal.

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 appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological injury on 6 October 2022.

4. The Medical Assessor set out the history he obtained as follows:

   “Ms Jones said she commenced work with Harvey Morris Motorcycles in June 2016 doing spare parts and sales. She described it as a good job in which she was happy until May 2018 when mechanic Brandon Morris, the son of the owners, started to become a problem. She had gone away today for a holiday with her partner and said Brandon was phoning her every day about a work issue. When she returned to work she said his attitude had changed. When she walked in he gave her a list of customers to call. She had called some but not all because she was too busy. 1 hour later he asked if she had called them and when she told him he said ‘Fuck you Jae, it’s not that hard’ and then walked off. She was reduced to tears. She said from that point on he continued to be abusive and regularly swore at her, although there could be weeks at a time when he was not abusive.

   Throughout 2018 and 2019 she said there were multiple times per day when he was swearing at her and then at other times he would act as if everything was fine. She said he blamed her for things that were out of her control, such as the time customers attended and when spare parts that she had ordered were delivered from suppliers. She was away again with her partner in May 2019 and his behaviour became worse on her return to work. She said he would either abuse her or totally ignore her. She noticed that she became reluctant to get out of bed and to go to work. She said she would experience nausea in the morning to the point of almost throwing up. She said she had to call in sick on more than one occasion, especially if he had been abusive on the previous day. She said some days he would begin to swear at her the moment she walked in the door.

   She said the situation deteriorated throughout 2020. She acknowledged that time was hard because of Covid so she said she was making excuses for him. She said they continued to work through the pandemic because they were classified as essential workers. She said it was stressful because the business did slow down. She said his swearing and abuse was so bad that in August 2020 she was ready to quit. She spoke to Margot Morris and asked if she could take a week off which was granted. She went away by herself to Port Macquarie and stayed in a cabin by the river; she spent her time fishing and jet skiing. When she returned to work she noticed the office door had been replaced and when she asked why she was told ‘you do not want to know’. She assumed the door had been damaged by Brandon in a fit of rage. In response to my direct question she said Brandon had never physically harmed or threatened her.

   On her return to work he said Brandon was not talking to her. She said on one occasion he stood in front of her and spoke to his mother Margot and told her to get Jae to order a part. When Margot said he could ask her himself he replied ‘why the fuck should I talk to her; she will only fuck it up anyway’. Ms Jones said there were multiple episodes like this. She described an episode when she was away from work for 3 days with a sore throat while awaiting the results of a PCR test. A customer had decided to come in early to collect a buggy and spare parts that had been ordered had not arrived. When she returned to work she said he really got stuck into her and blamed her for the entire thing when she had nothing to do with it.

   On another occasion she said she arrived at work to find Brandon in a fit of rage because he wanted parts for a motorcycle they had sold. Margot had printed off a list of parts and left it on her desk to be ordered. She had not seen the list of parts. A work mate later told her Brandon had actually removed it from her desk. She described this as a particularly nasty episode of gaslighting.

   Ms Jones said a jet ski had been sold in December 2020 and she had informed Brandon a few days ahead when it was due for delivery to the customer. She reminded him again the day before it was due to be collected. He denied he had been told although his mother Margot confirmed her version. On 18 December the customer came in early at 7:40 AM and not the organised time of 10 AM. She said Brandon swore at her and belittled her in front of the customer, leaving her in tears. She had offered to help him prepare the jet ski but he would not let her. She said she could not stop crying, left work about 9:30 AM and drove to her partner workplace. He drove her back to the business and went inside to collect some of her belongings. She said she was unable to stop crying for the entire day.

   After that she said she would cry whenever she thought about what happened at work. If she was doing nothing, thoughts of the abuse would intrude into her mind. She said she would cry whenever she thought about it. She was worried about her future. She was waking up in sweaty state at night after dreaming about being abused by Brandon in the workplace. She had difficulty getting to sleep and difficulty getting back to sleep after she was woken. She was ruminating throughout the day on what had happened at work. She was depressed and tearful. She also described significant anxiety in which she felt nauseous to the point of almost vomiting. She said she was extremely tense and angry at Brandon and his parents. Ms Jones said she had become quite good friends with Mr and Mrs Morris and they had been guests at her 40th birthday.

   After she left work on 18 December Ms Jones said she was speaking to Margot a fair bit and she advised her to take December off and consider coming back in the new year. She was unable to do this so went away to the coast and stayed with her nephew. She realised at that point that her condition was due to abuse in the workplace and she went to the general practitioner on 19 January 2021. She was referred to psychologist James Reilly at Centacare but was not prescribed medication. She said the GP raised the possibility of worker's compensation which was something she did not want to do but eventually realised was necessary.

   She described the treatment with Mr James Reilly as very helpful. He provided her with CBT and encouraged her to redirect her thoughts when she was anxious or angry. He also taught her anxiety management techniques. She was not entirely certain but thinks his diagnosis was an acute stress disorder. She said early on she did not want to go anywhere and could not leave the property on her own. She said after about 6 months she was able to go into town on her own. She said the problem was that Harvey and Margot Morris were prominent business people in Tamworth and she would always have to talk to people who knew them. She found this particularly distressing.

   Ms Jones returned to work with a company called Double R in June or July 2021. She said in December 2021 her condition deteriorated after a blow up with a work mate. She realised it was the anniversary of her initial work injury 1 year earlier. As a consequence the manager moved her to a different location at the end of January 2022 where she had less customer contact.

   She remained there until August 2022 and then left to commence her own barbecue sales business. She runs this from a shop in Calala, an outer Tamworth suburb. The shop is open from 9 AM to 4:30 PM on Wednesday, Thursday and Friday, and on Saturday from 9 AM until 1:30 PM. She said she also puts in 5 or 6 hours on days when she is not at the shop. In addition she attends Sunday markets in Tamworth and Currabubula. She said currently the business is scraping by…”

5. No current treatment was noted. Present symptoms were described as follows:

   “Ms Jones said she still struggles with going to Tamworth on her own because it is not possible to avoid people who know Harvey and Margot Morris. She said she is still not able to go away for a break by herself, which was something she enjoyed regularly before the work injury. She said she did try to have a break by herself on the coast but spent the entire time in her room. When asked about current mood she said she is unhappy and does not look forward to things. She said it was like the colour had gone out of her life although she was able to enjoy some activities. She also described anxiety, especially in social situations. She said sometimes people say things and she will take it the wrong way. She begins to second guess what people mean and is a bit more sensitive and suspicious. She said she finds it difficult to trust people anymore and avoids social situations. She said her sleep is still patchy and on occasion she is still woken by a traumatic dream about being in the workplace. She said her relationship with her partner is intact but she does rely on him a lot and she has been a little bit emotionally withdrawn.”

6. The Medical Assessor then turned to consider the impact of Ms Jones’ injury on her social activities and her activities of daily living (ADL’s) and said:

   “Miss Jones said she works from Wednesday to Saturday and occasionally on Sundays. During the rest of the week she attends to the housework and other business related activities such as bookkeeping.

   Self-care and personal hygiene: Ms Jones said she is usually pretty good with this. She showers daily and make sure she wears clean clothing to work. She does not attend a beauty parlour for treatments. She shares the housework and cooking with her partner Steve. She is unimpaired.

   Social and recreational activities: Ms Jones said she does not do very much at all. She rarely sees friends and does not attend clubs, pubs or entertainment venues. She said before the work injury she would have friends over for barbecues but they no longer do this because of her social anxiety. She said she feels uncomfortable and tends to misinterpret things people say. She is mildly impaired.

   Travel: Ms Jones is able to drive. She said in the past she could drive to Port Macquarie alone but could not do that now and needs her partner to be with her. She said the furthest she could drive in her own is to Tamworth or to Quirindi. She does not believe she could travel on a bus, train or plane on her own because of anxiety. She would need her partner with her. She is mildly impaired.

   Social functioning: Ms Jones said she and her partner had recently celebrated their 20th anniversary and she believes their relationship is strong, even though she is slightly emotionally less available. She continues to care for her parents who live on the property and are becoming increasingly disabled. She gets along well with members of her extended family. Her friendship group has diminished because of anxiety. She is mildly impaired.

   Concentration, persistence and pace: Ms Jones said this is not as good as it was and she struggles to complete the book work for her business. She finds it difficult to focus on the task at hand. She requires a list when she goes shopping. She finds it difficult to focus on a television programme. She is able to do her own business banking. She usually persists with tasks but occasionally lets things go. She is mildly impaired.

   Employability: Ms Jones was able to work full-time for Double R for slightly more than a year from July 2021. However she was unable to cope with exposure to customers and was moved to a different position. Since August 2022 she has been running her own business on 3.5 days/week for a total of 27 hours/week with some extra bookkeeping work at home. She is mildly impaired.”

7. Findings on examination were reported as follows:

   “Ms Jones was an appropriate and cooperative interviewee. She provided information willingly and without prompting. She was mildly depressed in appearance and was frequently tearful throughout the interview as she described the abuse she was subjected to in the workplace and the symptoms that have persisted since then. She continues to be anxious, particularly in public and with large groups of people. She continues to experience traumatic dreams although less frequently and continues to be woken through the night by them.

   No overt disturbances to concentration or focus were noted throughout the interview. Ms Jones was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.”

8. The MA then summarised the injuries and diagnoses as follows:

   “Ms Jones was harassed, abused, denigrated and sworn at on a continuing basis at work from May 2018 until December 2020 by Mr Brandon Morris. At the time she stopped working she was suffering from severe anxiety and depressive symptoms. Because she was not subject to physical injuries or threats she does not satisfy DSM-5 criterion A for post-traumatic stress disorder or acute stress disorder. Nonetheless her ongoing symptoms were similar to post-traumatic stress disorder.

   While she was depressed, I do not believe she met DSM-5 criteria for major depressive disorder. The fact that she has made a reasonable although incomplete recovery without antidepressant medication supports that conclusion. Nevertheless, mild depressive symptoms continue. In addition she developed significant anxiety symptoms and these also continue to some extent, particularly in relation to socialising.

   I have diagnosed an adjustment disorder with mixed anxiety and depressed mood. There was marked distress caused by the work stressor which resulted in significant impairment in social and occupational functioning. There is ongoing low mood, tearfulness and some feelings of hopelessness together with nervousness, worry, jitteriness and some separation anxiety in relation to her partner…”

9. The Medical Assessor assessed 7% WPI. He explained his reasons as follows: “I have assessed whole person impairment at 5% and made a 2% treatment effect allowance.”

10. He then turned to consider the other medical opinions and said:

    “Psychiatrist Dr Russell Davies provided an IME report dated 16 August 2022… He noted a deterioration in her mood when she was employed with Harvey Morris Motorcycles. He described episodes of tearfulness and the presence of suicidal thoughts. She was easily triggered by boisterous loud males. Sleep was fragmented. Treatment consisted of CBT from a psychologist…Dr Davies diagnosed major depressive disorder with agitated distress. He noted there were some trauma-related symptoms. He assessed whole person impairment at 15% (232332) and made a 2% treatment effect allowance taking the total to 17%. As noted above, I do not believe Ms Jones meets DSM-5 criteria for major depressive disorder. I also disagree with Dr Davies regarding whole person impairment. It is possible these differences are due to the fact that he assessed her 10 months ago.

    Psychiatrist Dr Nabil Malik provided an IME report dated 9 January 2023. He provided a history and diagnosed both adjustment disorder with mixed anxiety and depressed mood and alcohol use disorder. He did not believe she had reached maximum medical improvement due to the ongoing alcohol use disorder. Despite this he assessed whole person impairment at 5% (122221). There was no allowance for treatment effect. I agree with the diagnosis of adjustment disorder with mixed anxiety and depressed mood. I do not agree with the diagnosis of alcohol use disorder. I agree with whole person impairment at 5% although I have assigned class 2 to employability. In addition I believe there has been reasonable response to treatment and I have made a 2% treatment effect allowance.”

1. The MA set out details of various treatment reports and clinical records he had. Relevantly he noted:

   “Recovery partners indicated Ms Jones had returned to full-time employment on 21 June 2021 and had been managing well. The case was closed…

   Patient health summary of the Windmill Practice Tamworth is dated 11 November 2022…There were no attendances for psychological conditions after 18 January 2022.”

2. Dealing firstly with the category of Self-care and personal hygiene, the MA assessed a Class 1 and said:

   “Ms Jones said she is usually pretty good with this. She showers daily and make sure she wears clean clothing to work. She does not attend a beauty parlour for treatments. She shares the housework and cooking with her partner Steve. She is unimpaired.”

3. The appellant submits as follows:

   “The signed statement from the Applicant dated 1 March 2022 notes that she will wear dirty clothes and must be prompted to wear clean clothes by her partner. Further, the statement notes that the Applicant will dress to a much lower standard and will now rarely cook meals and requires her partner to do most of this.

   The Applicant would be classified as a Class 2 mildly impaired as she is unable to maintain self-care and personal hygiene as what she previously would have.”

4. The MA saw the appellant in June 2023, well over 12 months after her statement. By July 2021 the MA noted that Ms Jones was working full-time and did so for about a year. She presumably presented in a reasonable fashion consistent with her job requirements.

5. In any event, she told the MA that “she is usually pretty good with this. She showers daily and make sure she wears clean clothing to work.”

6. The descriptor for a Class 1 reads: “No deficit or minor deficit attributable to the normal variation in the general population.”

7. For a Class 2 it reads: “Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on takeaway food.”

8. Chapter 1.6 of the Guidelines provides: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment…” (our emphasis)

9. Moreover, it is not open to the appellant to complain about facts recorded by the MA, which are presumed to have been correct. Alleged errors in the history taken by the MA are not a proper basis for an appeal and do not found an incorrect criteria or demonstrable error. (Lukasevic v Coates Hire Operations PtyLimited [2011] NSWCA 112; Petrovic v BC Serv No 14 Pty Limited and Ors [2007] NSWSC.)

10. Based on what the appellant told the MA, a Class 1 rating is entirely appropriate. His assessment was open to him on all of the evidence.

11. For these reasons, we cannot see any error by the MA in this category.

12. It is perhaps timely at this point to set out the task of an Appeal Panel as stated in Ferguson v Stateof New South Wales [2017] NSWSC 887 where Campbell J said:

    “[23] By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS: ‘... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’ (our emphasis).

    [24]   The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.

    [25]   The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’…

    [37]   The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’…”

13. We repeat the comments made earlier as regards Chapter 1.6 of the Guidelines which provides: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment…” (our emphasis).

14. Turning now to the category of social and recreational activities, the MA assessed a Class 2 and said:

    “Ms Jones said she does not do very much at all. She rarely sees friends and does not attend clubs, pubs or entertainment venues. She said before the work injury she would have friends over for barbecues but they no longer do this because of her social anxiety. She said she feels uncomfortable and tends to misinterpret things people say. She is mildly impaired.”

15. The descriptor for a Class 2 reads:

    “Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).”

16. For a Class 3 it reads:

    “Moderate impairment: Rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”

17. The appellant submits as follows:

    (a)    the appellant told the MA that she “still struggles with going to Tamworth on her own because it is not possible to avoid people who know Harvey and Margot Morris.”

    (b)    The MA goes on to state “She said she is still not able to go away for a break by herself, which is something she enjoyed regularly before the work injury.”

    (c)    The MA notes that “When asked about current mood she said she is unhappy and does not look forward to things.” The MA goes on further to note that the appellant “also described anxiety, especially in social situations.” Page 5 of the MAC lists the social activities that the appellant is no longer able to participate in. The MA notes that the appellant “rarely sees friends and does not attend clubs, pubs or entertainment venues. She said before the work injury she would have friends over for barbeques, but they no longer do this because of her social anxiety.”

    (d)    The appellant would be in Class 3 Moderate as she will rarely attend social events and cannot do so without a support person.

18. In this instance, we agree with the appellant.

19. The findings made by the MA almost exactly replicate the descriptors for a Class 3 rating, including the “rare” frequency with which she has any social activities and no description of her attending any social activities outside of her home.

20. The appellant, on the information she gave to the MA, demonstrates that she is clearly moderately impaired in this category.

21. The respondent submits that the MAC is to be read as whole to see if the result reached has been adequately explained. It is not to be read “with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v WuShan Liang [1996] HCA 6; 185 CLR 259, 272.

22. That is true, however our task is to examine all of the evidence to see if the MA did in fact err with respect to his assessments in the various PIRS categories.

23. We do not accept the respondent’s submission that “the assessment of impairment was properly explained, or in the alternative could be properly inferred.”

24. Although we accept that the descriptors in the various categories are just that, and are examples of the kinds of functioning a claimant might exhibit, in this case however, as we said, the evidence is entirely consistent with a Class 3 rating.

25. Turning now to the category of Concentration, persistence and pace, the MA assessed a Class 2 rating and said:

    “Ms Jones said this is not as good as it was and she struggles to complete the book work for her business. She finds it difficult to focus on the task at hand. She requires a list when she goes shopping. She finds it difficult to focus on a television programme. She is able to do her own business banking. She usually persists with tasks but occasionally lets things go. She is mildly impaired.”

26. The appellant submits as follows:

    “The statement of the Applicant dated 1 March 2022 notes that she has difficulty in learning new skills and will now take a longer time to understand tasks.

    The Applicant notes that she must now write things down and is unable to remember a lot of skills that she once previously had.

    In relation to concentration, persistence and pace, the Applicant would be classed in Class 3 Moderate due to the above.”

27. The descriptor for a Class 2 reads: “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”.

28. For a Class 3 it reads: “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.”

29. We reiterate our previous comments as regards Chapter 1.6 of the Guidelines which provides: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment…” (our emphasis).

30. Again, as stated earlier, the task of an appeal panel is to determine error, noting that:

    “…intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out.”

31. As expressed by Member Rimmer in Wright v Ngroo Education Incorporated [2022] NSWPICMP 106:

    “Concentration, persistence and pace is a category where the assessor can apply clinical judgment and considerable weight must be given to the assessor’s observations in the clinical examination. The assessor, during the clinical examination, is able to observe the worker’s ability to concentrate, assess persistence with the cognitive demands of the assessment, and observe the pace at which the worker can engage.”

32. In this case, in our view, the evidence clearly supports a Class 2 rating.

33. We accept, as did the MA that there is some impairment, but note that in running her own business, the appellant is required to do a degree of bookkeeping and similar tasks, requiring an understanding of complex information. The fact that she “usually persists with tasks but occasionally lets things go” is not indicative of significant impairment because she undertakes those tasks. It is consistent in our view with a mild impairment.

34. For these reasons, we see no error in the assessment made by the MA.

35. Finally, turning to the category of Travel, the MA assessed a Class 2 and said:

    “Ms Jones is able to drive. She said in the past she could drive to Port Macquarie alone but could not do that now and needs her partner to be with her. She said the furthest she could drive in her own is to Tamworth or to Quirindi. She does not believe she could travel on a bus, train or plane on her own because of anxiety. She would need her partner with her. She is mildly impaired.”

36. The appellant submits that on the history taken by the MA, she is no longer able to travel away from her own residence without a support person due to her excess anxiety, which reflects a Class 3 impairment.

37. The descriptor for a Class 2 reads: “Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour”. For a Class 3 it reads: “Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment”.

38. The history obtained by the MA in our view is entirely consistent with a Class 2. The appellant can certainly drive in familiar areas. The MA’s findings on examination noted that “she continues to be anxious, particularly in public and with large groups of people.” (our emphasis). He did not record “excessive anxiety” that prevents travel, just a degree of anxiety in certain situations.

39. He also noted “No overt disturbances to concentration or focus” were demonstrated such that Ms Jones, although mildly impaired in the category of cpp, did not exhibit excessive cognitive impairment.

40. Part of the reason she avoided going to Tamworth was because “she could not avoid people who knew her employers.”

41. As the respondent correctly points out:

    “While there is no requirement on MA Mason to follow the opinions of any of the doctors qualified for the parties, the respondent submits the lack of any assessment higher than a class 2 impairment to date in regard to the category of travel by a qualified assessor of permanent impairment undermines the appellant’s assertion of a class 3 impairment.”

42. Again, for the reasons stated, we cannot see that the MA erred in his assessment in this category.

43. Finally, in Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 (Drosd) Garling J noted the following as regards error in a MAC. He said:

    “The provisions of the 1998 Act require that the Appeal Panel determine whether or not there has been a demonstrable error on one of the grounds specified in s 327(3) of the 1998 Act.

    Section 328 of the 1998 Act provides that, after undertaking its review, the Appeal Panel ‘ … may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned.’

    Having found error in the MAC issued by the AMS, the Appeal Panel revoked the MAC and determined for itself that the plaintiff’s whole person impairment relating to the left lower extremity was 10%. It did so in a shorthand way. That shorthand way was to adopt the assessment of the AMS because no party had challenged it. This shorthand way, whilst arguably permissible, did not relieve the Appeal Panel from its statutory obligation to conduct its assessment according to law.

    In particular, the Appeal Panel was required to have regard to the provisions of s 322(1) of the 1998 Act in reviewing the AMS’ medical assessment. Those provisions require an assessment of the degree of permanent impairment of an injured worker ‘… to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose’.

    That law required the Appeal Panel to apply the Guides… which as I have already explained adopt Table 17-33 of AMA-5… that Table does not permit an assessment of 10% whole person impairment of the left lower extremity. The fact that there was no appeal against that specific assessment by the AMS is beside the point. Once the Appeal Panel determined to set aside the MAC, it was required to undertake a fresh assessment of the plaintiff’s whole person impairment in accordance with the Guides.

    The only conclusion open to this Court is that the assessment by the Appeal Panel of the whole person impairment of the plaintiff’s left lower extremity of the plaintiff did not accord with law, and constituted a jurisdictional error.”

44. In summary, we are required to make a determination according to law, regardless of whether a particular subject was not appealed or identified by any party as an error.

45. In this case, the MA added a 2% treatment effect allowance.

46. That is an error of the kind identified in Drosd, given the evidence before him.

47. He specifically recorded: “Present treatment: There is no current or proposed treatment apart from GP consultation.”

48. The patient health summary of the Windmill Practice Tamworth noted that: “There were no attendances for psychological conditions after 18 January 2022.”

49. In referring to the report of Dr Nabil Malik, the MA said: “I agree with whole person impairment at 5%... In addition I believe there has been reasonable response to treatment and I have made a 2% treatment effect allowance.”

50. Chapter 1.32 of the Guidelines states:

    “Where the effective long -term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%,2% or 3%...”

51. The MA’s addition was not only against the weight of evidence before him but was contrary to law. There was no evidence before him as regards any substantial or total elimination of impairment, or of any current treatment that, if withdrawn, would lead to a reversion to the original degree of impairment.

52. Thus we are required to revoke the MA’s treatment allowance because it is an error.

53. This then means that the aggregate score is as follows: 1, 3, 2, 2, 2, 2 = 12. Median 2-6% WPI.

54. For these reasons, the Appeal Panel has determined that the MAC issued on 22 June 2023 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:	W2229/23
Applicant:	Jadelle Anthea Jones
Respondent:	H E & M E Morris Pty Limited - Harvey Morris Motor Cycles

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 Wayne Mason 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)
1.Psychiatric disorder	6/10/2022	Chapter 11, pp 54-60	Chapter 14, pp 361-365	6%	Nil	6%
Total % WPI (the Combined Table values of all sub-totals)					6%

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.