Lazarus v Connor Clothing Pty Ltd
[2025] NSWPICMP 357
•22 May 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lazarus v Connor Clothing Pty Ltd [2025] NSWPICMP 357 |
| APPELLANT: | Michelle Lazarus |
| RESPONDENT: | Connor Clothing Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 22 May 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); on remitter from Supreme Court; deduction for pre-existing psychiatric condition; whether Appeal Panel should adopt Medical Assessor assessment of pre-existing whole person impairment (WPI) or make its own assessment; Held – Appeal Panel should make its own assessment of pre-existing WPI; MAC revoked; new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 February 2024, Medical Assessor Verma assessed the appellant, Ms Lazarus, as having a 12% whole person impairment (WPI) (psychological) as a result of injury on
9 June 2023 (deemed date). In doing so, the Medical Assessor diagnosed post-traumatic stress disorder and assessed 19% WPI, from which she deducted 7% WPI for a pre-existing psychiatric condition, to arrive at 12% WPI.The appellant, Ms Lazarus, appealed from that assessment.
On appeal, on 2 August 2024, this Appeal Panel set aside the assessment of 19% WPI, and substituted its own assessment of 11%. In doing so, it assessed a class 3 impairment in respect of Social functioning, and a total WPI of 22%. From that, it deducted one half for a pre-existing major depressive disorder, arriving at 11% WPI.
Ms Lazarus sought judicial review in the Supreme Court.
By consent of the parties, on 13 November 2024 the Supreme Court quashed the decision of the Appeal Panel and remitted Ms Lazarus’ application to appeal from Medical Assessor Verma’s assessment to this Appeal Panel for determination according to law.
The Supreme Court noted the parties’ agreement:
(a) that the ultimate assessment of the Appeal Panel did not reflect its assessment of a class 3 impairment in respect of Social functioning, and
(b) that in making a deduction for a pre-existing condition, the Appeal Panel did not apply the method prescribed by the Guidelines at [11.10], and erred by not identifying a clear basis for that.
In an effort to confine the issues for determination on remitter, the Appeal Panel suggested an appropriate course to the parties, and directed them to file and serve submissions in response. They did so. The parties’ written submissions have been taken into account.
The parties agree that, on remitter, the Appeal Panel should:
(a) set aside the Medical Assessment Certificate of Medical Assessor Verma dated 22 February 2024;
(b) assess a class 3 impairment in respect of Social functioning, and
(c) assess 24% WPI (before making any deduction for a pre-existing condition) on the basis of a class 3 impairment in respect of Social functioning, as follows:
Score (Current ) Median Class
2 3 3 3 3 5 =3
Aggregate Score Impairment Total %
+2 +5 +8 +11 +14 19 =24
WPI = 24%
In accordance with their agreement, we have done so.
The Appeal Panel also suggested to the parties that it should assess an appropriate deduction for pre-existing condition or conditions in accordance with the Guidelines at [11.10], by assessing a percentage pre-existing WPI (if it can be calculated), and subtracting it from 24%.
The appellant, Ms Lazarus, disagreed. In summary, she submitted that the Panel had already assessed a pre-existing WPI of 7% in the decision which had been set aside by the Supreme Court, and that it should deduct that amount from the total current WPI of 24% to arrive at 17% WPI.
In particular, she submitted:
(a) the Panel should “assess an appropriate deduction for pre-existing condition or conditions in accordance with the Guidelines at [11.10], by assessing a percentage pre-existing WPI (if it can be calculated), and subtracting it from 24%, noting that on pages 16 to 18 of the Statement of Reasons dated 2 August 2024 the Appeal Panel has assessed the PIRS Categories for Pre-existing Impairment namely Self-care and personal hygiene 3 Social and recreational activities 2 Travel 1 Social functioning 2 Concentration persistence and pace 2 and Employability 3, and such assessments when calculated in accordance with the Guideline are (1 +2 + 2 + 2 + 3 + 3 = 13), median class 2 = 7% WPI” – at [2] of her submissions;
(b) ‘the Appeal Panel has already undertaken the substance of the pre-existing impairment calculations as required by Clause 11.10 of the Guideline, on pages 16 to 18 of the Statement of Reasons dated 2 August 2024 when the Appeal Panel assessed class ratings for each of the PIRS Categories for Pre-existing Impairment, and the assessment conducted by the Appeal Panel must now be used to [sic] in calculating the percentage pre-existing condition’ – at [6] of her written submissions, and
(c) the submission in (a) above ‘does no more than ensure the Appeal Panel is reminded/notified of its previous work in assessing the pre-existing impairment class rating calculations, and then quantifies those class ratings into a pre-existing WPI percentage of 7% in accordance with the Guideline’.
The respondent agrees with the Appeal Panel’s suggestion, noting that the appellant’s submission is inconsistent with:
(a) the parties’ agreement before the Supreme Court that the decision of
2 August 2024 be quashed, and with the Court’s orders to the same effect;(b) the parties’ agreement before the Supreme Court that the Appeal Panel erred by not giving reasons for not applying the method in the Guidelines at [11.10], and
(c) the Court’s order that the appeal be remitted for determination according to law – that is, by applying the method at [11.10] of the Guidelines.
The parties agree that the deduction should be assessed by applying the method required by [11.10] – that is, by subtracting pre-injury WPI from current WPI.
The sole issue remaining is whether the Panel should:
(a) make its own assessment of pre-injury WPI now, or
(b) adopt the assessment of 7% pre-injury WPI which results from the impairment level for each rating scale appearing in the PIRS Table attached to the Appeal Panel’s reasons of 2 August 2024.
We consider that the former course is appropriate, because:
(a) on 2 August 2024 the Appeal Panel did not make its own assessment of pre-injury WPI, but rather reproduced in its PIRS table Medical Assessor Verma’s assessments of pre-injury impairment in respect of each of the rating scales, because no error was alleged in respect of them, and the Appeal Panel did not rely on them in making its assessment of WPI, and
(b) even if it had made its own assessment of pre-injury WPI, or for any other reason was bound by the inclusion of Medical Assessor Verma’s pre-injury PIRS figures in its Table, the whole of the Panel’s decision of 2 August 2024 - including its PIRS Table and Medical Assessment Certificate - has been set aside by agreement of the parties, and is of no effect.
The appellant has already been examined for the purposes of appeal by Medical Assessor Blom, whose initial report appears at [30] of the reasons dated 2 August 2024. For the purpose of assessing pre-injury WPI, it was unnecessary for the Panel to examine her further.
Medical Assessor Blom has provided the following supplementary report, containing his assessment of pre-injury WPI,
“Self-Care and Personal Hygiene - Class 3
At the time of the injury, Ms Lazarus was receiving significant support from the NDIS. She required assistance with cleaning the house and all meal preparation. She also required prompting to shower and manage her personal hygiene. This is moderate impairment.
Social and Recreational activities – Class 3
Ms Lazarus said that she had ‘cut myself off from the rest of the world’ and she stated in the medical panel examination of 11 June 24 that she had become disconnected from all of her friends and had “no social life” as a result of the prolonged court case with which she had been involved. Her only ‘social ‘activity, which was only partially social as it was also aimed at physical activation and symptom reduction, had been a recent involvement in swimming supported by the NDIS. She had difficulty with this, however as she was concerned about the nature of her swimming instructor’s feelings towards her. She was not involved in any social or recreational activities without support, usually from the NDIS. She was anxious and withdrawn generally. This is moderate impairment.
Travel - Class 1
Prior to her injury sustained while working at Connor Clothing there was no evidence of any impairment, beyond normal variation, in her capacity to travel.
Social Functioning - Class 2
She had stated in the medical assessment that prior to her injury, as a result of the legal process she had lost trust in people. She no longer had contact with her sister and had very limited contact with her mother. She had lost most of her friends. The relationship with her husband, while still intact at the time, was strained as was the relationship between herself and her child. This is mild impairment.
Concentration, Persistence and Pace - Class 2
Prior to beginning employment, she said that she had suffered from difficulties with concentration, focus and persistence for a long time as a result of the court case. She lacked motivation and energy and her pace was slower. She said that she was able to watch TV, usually light entertainment, for about 30 minutes. She said that prior to the court case she had been an avid reader but had not read a book for many years because of difficulty with focus and memory. This is mild impairment.
Employability - Class 3
When she returned to work, she was initially only working for a maximum of 3 hours, 2 days per week. While her capacity increased modestly over the period of her employment she never worked more than 20 hours/fortnight. According to the Factual Report she worked a total of 22 shifts in the 10 week period after she started work. These shifts were usually about three hours long. This is moderate impairment.
Placed in ascending order her Class outcomes are – 1, 2, 2, 3, 3, 3.
The median class is 3 and the aggregate score is 14.
This leads to a total Pre-Existing Whole Person Impairment of 13%.’
My assessments above agree with those of MA Verma except for Social and recreational activities. She assessed a class 2 impairment, but I have assessed class 3. Dr Verma in making her assessment of Class 2, mild impairment does not lay out a clear path of reasoning as to how she arrived at this class rating, although she does mention that Ms Lazarus ‘used to enjoy going to the beach and NDIS workers supported her going to the beach frequently’. There is no other evidence supporting this (either in the documentation or Dr Verma’s report) - and in any case even in this situation Ms Lazarus clearly required significant support to go to the beach and there is no evidence of any social activity while there. Ms Lazarus stated that she had become disconnected from her friends as a result of the court case and “had no social life”. This was further confirmed by the contemporaneous notes of Ms Robyn Thoms, psychologist, who noted in a letter of 10 May 2021 that ‘… she has been unable to maintain any social connection outside of her family.’ With respect it appears that
Dr Verma has placed undue weight on a specific NDIS supported activity, which while recreational, did not involve social activity. Class 3 is therefore more appropriate.”Having regard to the evidence before us, to the reasons given by Medical Assessor Blom, and to his specialist expertise, the Panel adopts his pre-injury assessment of each of the rating scales, and therefore his assessment of pre-injury impairment as 13% WPI. These assessments, as well as the diagnoses made by Medical Assessor Blom in his initial report, are reflected in the attached PIRS rating form.
By agreement of the parties, and for the reasons set forth at [24] to [39] of its reasons dated 2 August 2024 (to the extent not found by the Supreme Court to have been in error), the Appeal Panel:
(a) sets aside the MAC of Medical Assessor Verma;
(b) assesses a class 3 impairment in respect of Social functioning;
(c) assesses a class 5 impairment in respect of Employability;
(d) assesses an overall current impairment of 24% WPI, and
(e) finds that the appellant suffered from a pre-existing major depressive disorder, which contributes to current impairment.
Applying the method required by the Guidelines at [11.10], the Panel deducts pre-injury WPI of 13% from current impairment of 24% WPI, yielding a final impairment of 11% WPI.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W8444/23 |
Applicant: | Michelle Lazarus |
Respondent: | Connor Clothing Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor 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 AMA 5 Guides | % WPI | Permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological | 9 June 2023 (deemed date) | 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 | 24% | 13% | 11% |
| Total % WPI (the Combined Table values of all sub-totals) | 11 % | |||||
R J Perrignon
Member
Graham Blom
Medical Assessor
Michael Hong
Medical Assessor
22 May 2025
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
| Name | Michelle Lazarus | Claim reference number (if known) | W8444/23 |
| DOB | Age at time of injury | 42 | |
| Date of Injury | 09/06/2023 | Occupation at time of injury | Casual Salesperson |
| Date of Assessment | 12/02/2024 | Marital Status before injury | Married |
| Psychiatric diagnoses | 1. Anxiety Disorder Not otherwise specified 2. Persistent Depressive disorder with persistent Major Depressive disorder |
| Psychiatric treatment | Yes |
| Is impairment permanent? | Yes |
| PIRS Category | Class | Reason for Decision | Class for Pre-existing Impairment | |||||||||
| Self-Care and personal hygiene | 3 | Ms Lazarus reported that she showers when her husband encourages her. She changes into clean clothes and wears the same clothes as long as she can as she does not have the energy to change. Ms Lazarus reported that she does not do the cooking as she has NDIS workers for cleaning, vacuuming and doing the meal prep, and she had them even before the incidents at her workplace. | 3 | |||||||||
| Social and recreational activities | 3 | Ms Lazarus reported that she used to enjoy going to the beach and NDIS workers supported her going to the beach frequently. She reported that she used to go to church and attended a farewell for the priest in the last four weeks. She has stopped going to the beach with the NDIS workers and she will only go infrequently now. She tries to go shopping once per week but most weeks, she struggles to do so. She also added that she tries to attend the Pilates and yoga sessions but often misses several weeks in a row as her mood is particularly depressed. | 3 | |||||||||
| Travel | 2 | Ms Lazarus reported that she is able to drive on her own, but her husband needs to be on the phone when she drives. She is able to go to the local shops but has to be accompanied by her husband or someone from the church. She further added that she prefers to be at home and rarely goes out. | 1 | |||||||||
| Social functioning | 3 | Ms Lazarus reported that she “never had friends as an adult.” She does not get along with her sisters even before the incidents at the workplace and even before she started working at Connor. She said that the court case took a toll on her relationship with her sisters. Her mother lives with her sister and hence, she does not see her mother as frequently. She added that her relationship with her husband is strained and although they live together, they have separated. There have been no periods of domestic violence or community services looking after the children. Overall, her relationships with her sisters and her mother were already strained when she started working with Connor. | 2 | |||||||||
| Concentration, persistence and pace | 3 | Ms Lazarus reported that she is unable to read books as her mind is so “overworked” and she does not have the capacity to concentrate on anything. She is unable to listen to her children and gets anxious when they are talking to her. She is unable to organise herself and procrastinates tasks a lot. Ms Lazarus also reported that she has difficulty even in watching TV and gets distracted even while doing that and is unable to concentrate. | 2 | |||||||||
| Employability | 5 | Ms Lazarus does not seem to have any capacity to engage in any form of employment because of struggles with her current symptomatology and difficulties in cognitive functioning, and impairment in various PIRS categories. | 3 | |||||||||
| Score (Current ) | Median Class | |||||||||||
| 2 | 3 | 3 | 3 | 3 | 5 | =3 | ||||||
| Aggregate Score Impairment | Total | % | ||||||||||
| +2 | +5 | +8 | +11 | +14 | 19 | 24 | ||||||
Final Impairment = 24-13 = 11%
Final WPI = 11%
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