Keelan v Pearl Beach Real Estate Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Keelan v Pearl Beach Real Estate Pty Ltd [2024] NSWPICMP 135
APPELLANT:	Raelene Teresa Keelan
RESPONDENT:	Pearl Beach Real Estate Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Ash Takyar
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	13 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) considered appellant’s statement; whether MA had regard to irrelevant consideration when rating appellant’s impairment in psychiatric impairment rating scale (PIRS) for concentration, persistence and pace; whether MA took into account all relevant matters when rating appellant’s impairment in PIRS for concentration, persistence and pace; Appeal Panel held MA had regard to all relevant evidence and took into account all relevant matters and did not consider any irrelevant matters; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 29 November 2023 Raelene Teresa Keelan, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Professor Nicholas Glozier, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 November 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment on 5 February 2018 as a hospitality manager with Pearl Beach Real Estate Pty Ltd, the respondent. She suffered a psychological injury due to incidents that occurred in her employment. She claimed compensation from the respondent for permanent impairment resulting from her injury. In support of her claim, she relied on report of psychiatrist Dr Martin Allan dated 13 March 2020 who assessed she had 15% whole person impairment (WPI) from her injury.
The respondent’s insurer, whilst admitting the appellant had suffered a psychological injury, disputed the appellant was entitled to compensation for permanent impairment from her injury. It relied on a report of psychiatrist Dr Ashwinder Anand dated 24 June 2020 who assessed the appellant had 9% WPI from her injury. Section 65A(3) of the Workers Compensation Act of 1987 (the 1987 Act) stipulates, in substance, that the degree of permanent impairment of a worker must be at least 15% in order that the worker can receive compensation for permanent impairment from psychological injury.
The appellant commenced proceedings on 30 July 2020 in the Personal Injury Commission (Commission) seeking determination of her claim for compensation for permanent impairment. The matter was referred to the Medical Assessor who examined the appellant on the 16 September 2020 and issued a Medical Assessment Certificate on the 28 September 2020 in which he certified he assessed the appellant had 7% WPI from her injury.
On 6 October 2020, prior to the Commission making any determination on the appellant’s claim for compensation for permanent impairment, the appellant discontinued the proceedings in the Commission.
The procedural history of this matter thereafter is somewhat complex. For present purposes it is suffice to note that the appellant was re-examined by Dr Allan on 24 August 2022 who advised the appellant’s solicitors in a report of the same date that there had been a worsening of the appellant’s symptoms since he last examined her and that her condition had deteriorated since the Medical Assessor’s assessment recorded in the Medical Assessment Certificate dated 28 September 2020. On 26 May 2023 Principal Member John Harris, with the consent of the parties, granted liberty to the appellant to revoke her discontinuance of the proceedings she had previously instituted in the Commission and ordered, again with the consent of the parties, that those proceedings in the Commission be restored.
The matter then found its way again to the Medical Assessor by means of an amended referral that was issued on 9 October 2023, which was in the following terms:
“1. MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 1998 Act)
      the degree of permanent impairment of the worker as a result of an injury (s319(c))
      whether any proportion of permanent impairment is due to any previous injury or preexisting condition or abnormality, and the extent of that proportion (s319(d))
      whether impairment is permanent (s319(f))
      whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury:   22 March 2019
Body part/s referred:   Psychiatric/psychological disorder
Method of assessment:              Whole person impairment
Issues Determined by Arbitrator:            refer Direction dated 28 August 2020 by Arbitrator Catherine McDonald
2.      BRIEF
The brief provided to the Approved Medical Specialist includes:
1. the Application to Resolve a dispute and attached documents
2. the Reply to Resolve a dispute and attached documents
3. the Application to Appeal the medical assessment and attachments
4. the Notice of Opposition to Appeal and attachments
5. the Application to Admit Late Documents and attached documents filed by the respondent dated (on or about) 27 April 2023 and 24 May 2023)
6. the Application to Admit Late Documents and attached documents filed by the applicant attaching the report of Dr Allen dated 11 May 2023
A copy of the Direction issued by the Arbitrator is attached.
A copy of the Amended COD issued by the Member dated 6 October 2023 is attached.
3.      ARRANGEMENTS
The parties request the Registrar to choose the AMS (s321(1)):
Dr Nicholas Glozier – video assessment - TEAMS platform”
The Appeal Panel notes that the application to appeal the Medical Assessment and the notice of opposition to that appeal listed in the brief of documents that was forwarded to the Medical Assessor by that referral are dated, respectively, 28 February 2023 and 4 May 2023. Necessarily, and just to state the obvious for the purpose of clarity, that application to appeal and that notice of opposition are the appellant’s current appeal against the MAC dated 1 November 2023, or the respondent’s opposition to the current appeal.
The Medical Assessor examined the appellant again on 25 October 2023 and, as already said, issued the MAC on 1 November 2023. He certified in that he assessed the appellant had 9% WPI from her injury.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel came to the that the appellant had not established the ground for appeal on which it relied, and consequently there was no basis for the Appeal Panel to examine the appellant.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

EVIDENCE

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

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor incorrectly rated her impairment for the Psychiatric Impairment Rating Scale (PIRS) for concentration, persistence and pace (CPP) and ought to have rated her impairment as class 3 in this PIRS.
The appellant referred to paragraphs 68 to 70 of a statement she signed dated 1 December 2022. The Appeal Panel observes that statement was one of the documents attached to her application to appeal against the decision of the Medical Assessor dated 28 February 2023. The appellant submitted, in substance, that the content of those paragraphs was relevant evidence for rating of her impairment in the PIRS for CPP. The appellant noted that the Medical Assessor made no reference in the MAC to her statement of 1 December 2022. The appellant submitted that “the irresistible inference is that he did not read the statement”. The appellant submitted that the Medical Assessor “certainly…did not heed its contents”.
The appellant submitted that her statement is a crucial document and had the Medical Assessor considered her evidence within it he may have come to a different conclusion. The appellant submitted that the Medical Assessor’s failure to take into account her statement is a demonstrable error.
The appellant submitted that as a matter of procedural fairness to her, the Medical Assessor ought to have discussed paragraphs 68 to 70 of her statement, which she contended relates to CPP.
The appellant referred to the reasons the Medical Assessor provided in the PIRS rating form within the MAC. These reasons of the Medical Assessor included that the appellant engages in computer games each day and watches cognitively demanding television shows. The appellant also referred to the history the Medical Assessor obtained at examination in which he noted that the appellant watches television programs such as “Bold and the Beautiful” and “The Chaser”, and in which the Medical Assessor noted that the appellant prefers television shows that challenge her such as quiz shows and news.
The appellant submitted that “the assumption” the Medical Assessor made that “Bold and the Beautiful” is a cognitive demanding television show is wrong. The appellant also submitted that watching television is a passive activity, and that television is known as an idiot box, and the Medical Assessor was wrong to consider that watching television is a cognitively demanding activity. The appellant submitted that her evidence at paragraph 69 of her statement in which she said that she tries to watch television but cannot follow what is going on. The appellant contended this evidence meant the Medical Assessor was “simply wrong” to conclude that her watching television is a “cognitively demanding activity”.
The appellant noted that watching television is not mentioned in the PIRS for CPP.
The appellant noted that Dr Anand obtained a history that she was an avid reader but now tends to lose concentration. The appellant again referred to paragraph 69 of her statement in which she said that she does not read much anymore and gets easily distracted. The appellant submitted that reading is an active cognitive activity and requires concentration. The appellant noted that Dr Allan obtained a history that she cannot read to any extent. The appellant submitted that in the MAC was silent on the topic of reading. The appellant submitted that the Medical Assessor ignored the fact that she used to be an avid reader. The appellant submitted that the omission of the activity of reading is a “glaring omission” and the fact that the Medical Assessor did not deal with it amounts to a demonstrable error. The appellant noted that one of the descriptors for a class 3 rating is being unable to read more than newspaper article.
The appellant submitted that the Medical Assessor’s reliance on her playing games as part of his reasoning for his rating for her impairment in CPP “is misplaced”. The appellant noted that history Dr Anand obtained was that she plays these games on a mobile phone. The appellant submitted that “it is notorious that these mobile phone games can be addictive and played compulsively”. The appellant submitted that there was no evidence that there was real cognitive value in these games. The appellant also submitted that the Medical Assessor “double counted with computers/mobile phone games activity”. The appellant noted that the Medical Assessor referred to her playing computer games when rating her impairment in the PIRS for social and recreational activities, which the appellant submitted is inconsistent with the authority of Ballas v Department of Education (State of New South Wales).[2]
[2] [2020] NSWCA86 at [93]-[95] (Ballas).
In reply, the respondent submitted that the Medical Assessor obtained a detailed updated history from the appellant including the appellant’s present symptomology and her activities of daily living. The respondent noted that the Medical Assessor recorded that the appellant:
(a)    kept regular appointments with her spinal therapist, hairdresser and therapist;
(b)    spent a couple of hours playing a house design game that involves decorating homes using in-game money and awards and that has a multilayer aspect to it in which participants are required to vote on who wins and that the appellant has occasionally won, which the respondent submitted is evidence of the appellant having a degree of focus and concentration on task;
(c)    accommodated regular visitors including family members of her partner which the respondent submitted is evidence that the appellant has a significant degree of organisation;
(d)    preferred television shows in which she can be involved and challenges her.
The respondent submitted that the appellant’s contention that watching television is a passive activity and the Medical Assessor was wrong to consider it a cognitively demanding activity, ignored the subject matter of the programs she watches and the time over she watches the programs. The respondent submitted that the appellant’s contention is inconsistent with her evidence to the Medical Assessor that she seeks out programs that she finds cognitively engaging.
The respondent noted that the Medical Assessor’s findings from his mental state examination of the appellant indicated that the appellant had good focus and concentration and that she persisted with the pace of the examination and displayed no overt cognitive difficulties. The respondent also noted that the Medical Assessor observed that when the audio visual platform used to conduct the assessment “glitched” the appellant checked to make sure nothing had been missed, which the respondent submitted indicates an ability of the appellant to maintain a high degree of concentration and that her ability to do so must have improved since signing her statement on 1 December 2022.
The respondent submitted that the fact that the Medical Assessor did not make explicit reference to the appellant’s statement does not upset the integrity of the Medical Assessor’s findings made during the examination. The respondent referred to paragraphs 1.6 and 11.6 of the Guidelines. The respondent submitted that the appellant’s submissions identified no relevant area in the history the Medical Assessor obtained that “infects his reasoning” or exposes error in his ratings in the PIRS.
The respondent submitted that it is apparent that the Medical Assessor had regard to all relevant facts relating to the appellant’s functioning and that the Medical Assessor’s path of reasoning for concluding the appellant rated class 2 in the PIRS for CPP is evident from the MAC.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

Relevant parts of the MAC

The Medical Assessor set out in the MAC the following history regarding the circumstances that led to the appellant suffering injury and her subsequent treatment for her injury:
“Ms Keelan’s history she gave today was markedly different to that in her statement. She explained this by stating that she had never signed the statement and that it was ‘all over the shop and not tidied up’ particularly regarding the dates and the issues at work. As a result, it took some time to clarify what had happened. The understanding I was left with was that she had been working for this organisation since early 2018. In November 2018 she said that the sales manager, Mr Shaw, yelled at her and she made a complaint about him to the owner. She reported that following that incident in November 2018, things were not good between the two of them and there was a great deal of tension in the office. She said today that she thought she could deal with this tension as she was told he would be retiring in early 2019.
There was then a second incident (which is called the first in her statement) where she said she was yelled at again by Mr Shaw over an issue to do with cleaning a property. Ms Keelan said that after this ‘rant’, the accounts manager, Libby, closed down her computer and left the office. She then came back and got Rae, saying she would not leave her on her own in the office. Ms Keelan returned to work the following day but said that from that time over the next month, the atmosphere became even worse. She said the sales manager ostracised her, and she felt belittled and disrespected. Although she was told that the owner had dealt with, and spoken to, Mr Shaw, she was not reassured by this. She became fearful of attending the office if MrShaw was there, anxious, nauseous, and could not believe that someone could behave like this. This impacted her outside of work where she found work constantly on her mind. She became edgy, withdrawn, cranky and with reduced sleep. The owners then talked about potentially making her redundant. She also was informed about this by one of the cleaners who she thought wanted her job. She was encouraged to discuss these problems with a legal representative which she did and in March 2019, stopped working, returned to her previous clinical psychologist and commenced some medication.
She said she was quite unwell and dysfunctional for some months, having periods where she would only shower and dress when her partner was returning home, and would drink alcohol more excessively, up to a bottle of wine a day.
Things were compounded by the terminal illness of her mother. Ms Keelan and her sister had legal powers and Ms Keelan said that it was she who made the decision to stop her mother’s treatment in May 2019. At the same time she was saying she was quite dysfunctional, she also said that she then had to organise the funeral, deal with the lawyers and the post-death administration. She said today that she still has not grieved for her mother and was on autopilot for much of that time. Of note, the only time she actually became tearful during the assessment was discussing her mother’s death when her affect changed markedly. The clinical notes from her treating psychologist do not indicate that this caused any significant decline in her symptoms.
They do however support Ms Keelan’s report that the ability to stay on the Central Coast and/or look for another job was severely compromised. They make several comments on issues about her reputation, people talking about her, stating that she went for new interviews and how difficult this might be in that small environment. She said she was made redundant in August that year. This was followed according to the notes by ‘very relaxing break up in Queensland’ and ongoing interactions with her lawyers. Ms Keelan did not mention this in the assessment but the notes record she worked in a friend’s business in real estate from September 2019-November 2019.
The reported reasons why she left are ‘further issues with her boss and friend over the boss telling her claim manager she was fearful that Rae would try and steal the business from her’. Her psychologist’s notes around that time indicate ‘there was good continuing balanced life between social and recreational etc’ and in December 2019 that she was relatively well, although there were ongoing incidents with her previous employer. She and her partner moved to Queensland to get away from the situation on the Central Coast after 6½ years of living in St Hubert’s Island. They then went through what she called to be a ‘traumatic’ process of buying a new house and then driving up during the border closures (‘the policeman didn’t know what he was doing’) with their dog to Queensland. She has made a few friends through some old neighbours who now live there, although integration was difficult due to the COVID restrictions and fears.
She took an antidepressant for approximately two months. She said it had no positive effects, left her feeling ‘stupid’ all day and she stopped using it. She continued regular treatment with her psychologist Paul Corcoran.
In late 2021/early 2022 her mental health began to decline. She reported that this was related to a number of issues. She said she was frustrated that her general practitioner was ‘not looking after me and my best interests,’ was frustrated with the workers' compensation processes, and not au fait with those of the New South Wales.
This was then compounded by legal matters with her strata management. She said that there was a defamation issue that she was drawn into, and accused of providing information. She said this caused lots of problems and led her to become distressed and ‘a mess.’ She felt she was unable to deal with this in the way that she would have dealt with it normally because she was such a mess. Ultimately she sought legal advice who told her that her involvement was somewhat random, that these lawyers had a poor reputation and to do nothing about it. In November 2021 she would appear to have been re-prescribed Duloxetine 30mg for ‘mild depression – multifactorial.’
This made her nauseous so she was prescribed low-dose Mirtazapine and the GP notes indicate that there were ongoing legal issues. Around this time her late insomnia appeared to develop.
The dermatologist she sees suggested she try a new general practitioner, Dr Williamson, who she first consulted in April 2022. She was then referred to a local trauma counsellor. Her GP noted that ‘she had living situation stress. Sickness not related to initial injury’ and that Ms Keelan was having ‘legal issues.’ She then commenced trauma-specific counselling with Kathlen whom she has been seeing since approximately May 2022 under a mental health care plan. She said that they briefly tried EMDR but she was unable to tolerate this and so has regular hypnotherapy. She says she feels better when she leaves for a few days but then her mental state can return. She otherwise ‘vents’ about whatever situation is stressing her at that time.
The treating notes from her long-term psychologist, Dr Corcoran, confirms the ongoing legal and compensation issues over 2021, a variable mental health state without complete resolution of her symptoms. He noted financial problems and then the development of the legal issues in the strata. There are then handwritten notes from her new psychologist from 2022 confirming the treatment approach and difficulty with this and her anxiety over IMEs.
The legal matter has resolved, reducing some of the stress and distress, but has left her feeling warier and less trustful of people around her, and also fearful that her reputation has been ‘sullied.’”

The Appeal Panel observes that the first six paragraphs of that history, that is to the paragraph ending with sentence “she has continued regular treatment with her psychologist Paul Corcoran”, replicated exactly the history the Medical Assessor set out in the Medical Assessment Certificate he issued on 28 September 2020. The final four paragraphs of the history that the Medical Assessor set out in the MAC contain his update of the history he obtained when he examined the appellant on 16 September 2020 for the purposes of the Medical Assessment Certificate he issued on the 28 September 2020.
The Medical Assessor recorded in the MAC the following symptoms that the appellant reported to him she currently suffers from her injury:
“She reports her most dominant symptom is that sleep disturbance. She will get into bed around 9:30pm-9:45pm, sometimes tired but generally quite awake still. She often can get to sleep within 30 minutes but if she takes longer, she will get up and walk around, lay on the lounge and go back when she is sleepy an hour or two later. However she almost always wakes around 2:30-3am, has no idea why, and is wide awake. She does not describe any significant nightmares, hyperarousal, panics but then lays there thinking and ruminating. She gets up soon afterwards, by 4am at the latest. She tries not to nap during the day. She describes a general reduction in her mood and enjoyment but not a pervasive misery. She has difficulties with motivating herself, energy and a sense of wanting to avoid people. She said that they would ask her how she is and she ‘tries to put on a face.’ The intense anxiety/edginess has diminished a little since its worst although she still is edgy, tight and easily triggered with reduced noise and stress tolerance. These can lead to episodes of arousal that can last a whole day although do not have the classic features of a panic attack. As such, she has some reduced motivation and interest and more overt early morning insomnia than when I reviewed her last although the other features appear somewhat similar.”
The Medical Assessor set out under the subheading “Social Activities/ADL” the impact that the appellant’s injury has on her social activity and activities of daily living. Relevant to the Medical Assessor’s rating of her impairment in the PIRS for CPP he noted that the appellant:
(a)    is able to keep regular appointments made for treatment of physical injuries she has;
(b)    spends a couple of hours a day playing a house design game that involves multiple players in which the players decide who wins based on their respective decoration and which the appellant has occasionally won; watches a regular set of television programs starting with the Bold and Beautiful and then The Chaser;
(c)    watched news shows and quiz shows because they engage her cognitively, and,
(d)    has not undertaken courses and has no idea where she is going what she is going to for the future.
The Medical Assessor recorded in the MAC under the heading findings on mental state examination that the appellant showed good focus and concentration with the assessment and persisted with the pace of the assessment and displayed no overt cognitive difficulties. The Medical Assessor noted that occasionally the audio-visual platform used to conduct the assessment “glitched” and when that occurred the appellant checked to ensure nothing had been missed.
The Medical Assessor did not refer explicitly in the MAC to the appellant’s statement of 1 December 2022.
The Medical Assessor noted that there had been a deterioration of the appellant’s condition in early 2022 which the Medical Assessor said was caused by external events and which he said had been more pronounced because of her primary psychiatric injury and consequently represented “part of the chain of causation to her current level of impairment”.
The Medical Assessor said that he based his assessment of the appellant’s permanent impairment on the history he obtained when conducting his assessment of the appellant on 25 October 2023, her objective presentation at the time of examination (by which the Appeal Panel understands the Medical Assessor is referring to his findings from his mental state examination of the appellant), and the documentation that had been provided to him.
The Medical Assessor detailed in the PIRS rating form within the MAC that he rated the appellant’s impairment in the PIRS for CPP as class 2 and explained his reasons for doing so in these terms, “Ms Keelan undertakes some hours of engaging computer game each day, prefers to watch cognitively demanding television shows and shows no objective cognitive difficulties or problems with persistence and pace of the assessment today”.
The Medical Assessor noted that his rating of the appellant in the PIRS for CPP differed from the rating Dr Allan advised in his report of 28 August 2022 that he had made, which was class 3. When doing this the Medical Assessor repeated the reasons he articulated in the PIRS rating form for rating the appellant’s impairment as class 2.
The Medical Assessor also observed that his rating of the appellant’s impairment in the PIRS for CPP differed from the rating Dr Anand advised in his report of 24 April 2023, which was class 3. He said that “I disagree with Dr Allan, and note that she did not display any cognitive difficulties in the assessment”.

Consideration

The Appeal Panel does not accept the appellant’s submission that the Medical Assessor overlooked her statement of 1 December 2022 and, consequently, thereby denied her procedural fairness by not having regard to the content of paragraphs 68 to 70 of her statement.
The Medical Assessor said in the MAC that he had regard to the documentation that the Commission had forwarded to him. He listed in the MAC the documents that had been forwarded to him and this included “the application to appeal the Medical Assessment and attachments”. That was an obvious reference to the appellant’s appeal dated 28 February 2023. Her statement of 1 December 2022 was attached to that.
The Medical Assessor also provided in the MAC his update of the appellant’s history from that which he obtained when he previously examined her and which he had set out in the Medical Assessment Certificate he issued on 28 September 2020. The process of obtaining a history involves a Medical Assessor reviewing all relevant medical data and information relating to the worker that is contained within the documentation available to the Medical Assessor. The process also involves the Medical Assessor questioning the worker so as to elicit directly from the worker information that the Medical Assessor considers will be relevant to the assessment he or she must undertake. That questioning of the worker is done in the context of the Medical Assessor having reviewed and considered all relevant medical data relating to the worker within the documentation available to the Medical Assessor. The history the Medical Assessor obtains is done for the purpose of eliciting all relevant clinical data necessarily to enable the Medical Assessor to rate the appellant’s impairment in the several PIRS. This process of obtaining a history is consistent with the requirements of paragraphs 1.6 and 11.6 of the Guidelines.
A Medical Assessor in detailing the relevant history of a worker is not required to specify each individual item of the evidence on which the Medical Assessor has relied to compose the relevant history.
The assessment a Medical Assessor makes of a workers’ permanent impairment is an administrative task. Consequently there is a presumption of regularity that the Medical Assessor has attended to all matters necessary to undertake the task of assessing a workers’ permanent impairment.[3]
[3] Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36]; Jones v The Registrar WCC [2010] NSWCA 481 at [50].
Noting that the Medical Assessor stated in the MAC that one of the matters on which he based his assessment was the documentation provided, which included the appellant’s statement of 1 December 2022, and which also included the assessments that Dr Allan and Dr Anand advised in their respective reports of 24 August 2022 and 24 April 2023, which were attached respectively to the appellant’s appeal dated 28 February 2023 and the respondent’s opposition to that dated 4 May 2023, and noting that the Medical Assessor in the MAC updated the history from that which he obtained when he previously examined the appellant, the Appeal Panel infers that the Medical Assessor did have regard to the appellant’s statement of 1 December 2022. At the least, the appellant has not rebutted the presumption of regularity that applied to the Medical Assessor’s assessment, which presumption includes that he did have regard to her statement and specifically paragraphs 68 to 70.
The Appeal Panel does not agree with the appellant’s submission that the Medical Assessor “double counted” the appellant playing a computer game by having regard to that activity when rating both her impairment in the PIRS for social and recreational activities and her impairment in CPP. The activity of the appellant in playing a computer game with multiple players involves more than one type of conduct on the part of the appellant. It involves conduct by the appellant whereby the appellant engages with others to enjoy an activity, which in the Appeal Panel’s view is correctly characterised as a “social and recreational activity” and it also involves conduct by the appellant of concentrating so as to be able to play the game. In the Appeal Panel’s view, the Medical Assessor was correct to have regard to the appellant participating in this activity when rating her impairment in the PIRS for social and recreational activities, insofar as he had regard to the appellant’s conduct of engaging with others to enjoy this game, and he was also correct to have regard to the appellant participating in this activity when rating her impairment in CPP, insofar as it involved her conduct of concentration. He did not make the error that was identified in Ballas at [94].
But if the Appeal Panel is wrong on this issue, and the Medical Assessor ought to have considered the appellant’s engagement in this activity only when rating the appellant’s impairment in social and recreational activities, the corollary of which is that the Medical Assessor would have had regard to an irrelevant consideration when rating the appellant’s impairment in CPP, and consequently would have erred, that error (which is a hypothetical error in the Appeal Panel’s view, given what the Appeal Panel said in the preceding paragraph) would have made no difference to the outcome. This is because ignoring the appellant’s engagement in that activity when rating the seriousness of her impairment in the PIRS for CPP her impairment is still correctly rated as class 2. This is because the appellant is able to keep regular appointments for her treatment for her physical injuries, which involves organisation and hence concentration; she watches television programs, such as quiz shows and news program and serials; and at the time the Medical Assessor examined the appellant he found she was able to focus and concentrate with the assessment and persisted with the pace of the assessment and showed no overt cognitive difficulties and indeed was vigilant to ensure when the AVL program “glitched” the Medical Assessor did not miss anything. This in the Appeal Panel’s view indicates she has a mild impairment in CPP, which is what the Medical Assessor assessed.
The Appeal Panel does not accept the appellant’s submission that watching television is a passive activity. Depending on the show being watched, it requires following the plot of serial show, or comprehending the quiz in a quiz show, or comprehending the events being reported in news shows. Whilst the appellant said in her statement that she was not able to follow what is going on television months later, when the Medical Assessor examined her, she provided a different history in that she told the Medical Assessor she watches these shows because they engage her cognitively.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 November 2023 should be confirmed.

[2024] NSWPICMP 135

13 March 2024