Leahey v Breona Residential Services Inc

DETERMINATION OF APPEAL PANEL
CITATION:	Leahey v Breona Residential Services Inc [2025] NSWPICMP 396
APPELLANT:	Lynanne Leahey
RESPONDENT:	Breona Residential Services Inc
APPEAL PANEL
MEMBER:	Parnel McAdam
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	5 June 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); medical appeal; worker employed as a support worker; MAC certified worker as not having reached maximum medical improvement (MMI); further MAC assessed impairment; challenge to assessment made under the psychiatric impairment rating scales (PIRS); social and recreational activities, travel, and employability challenged; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 18 March 2025, Lynanne Leahey (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC), initially on 10 July 2024, and then subsequently on 21 February 2025.
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.
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 (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.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines)

RELEVANT FACTUAL BACKGROUND

Ms Leahey was employed by Breona Residential Services Inc (the respondent) as a support worker from about 2012 to 2022. She described not being liked by others, including her managers. She was bullied because she advocated for her clients. There were some managerial interactions following complaints, and ultimately she went off work, suffering a psychological injury. This was deemed to have occurred on 12 April 2022.
Ms Leahey made a claim for lump sum compensation which was disputed by the respondent on the basis of the degree of permanent impairment. An Application was lodged in the Commission on the basis of the medical dispute between the parties, being the degree of permanent impairment of the worker.
Ms Leahey was initially seen by the Medical Assessor on 1 July 2024. Following that examination, a MAC was issued on 10 July 2024, which found that Ms Leahey had not reached maximum medical improvement as she had not had any treatment for an alcohol use disorder, which had been diagnosed by the Medical Assessor. A Certificate of Determination was issued on 13 August 2024 reflecting that finding.
Ms Leahey obtained some further evidence, including a report from Michelle Stewart, clinical psychologist, concerning her apparent alcohol use disorder. That was filed in the Commission with an application that the proceedings be restored, consistent with the Certificate of Determination issued on 13 August 2024.
Ms Leahey was further examined by the Medical Assessor on 14 February 2025, with a MAC being issued on 21 February 2025. That MAC provided an assessment of whole person impairment in accordance with the Guidelines, as the Medical Assessor was satisfied that Ms Leahey’s drinking behaviour was at an acceptable level and no further treatment was needed.
Ms Leahey appeals against the assessment of permanent impairment contained in the MAC of 21 February 2025. Parts of the earlier MAC, setting out the history and background to injury, are relevant to that further assessment. The Medical Assessor apparently told Ms Leahey, during the assessment, about the information she had previously obtained during the earlier assessment from July 2024.

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 worker to undergo a further medical examination because neither party had requested that occur and there was sufficient information contained in the MAC to make a determination.

EVIDENCE

Documentary 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.

Medical Assessment Certificate

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

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor has erred in assessing the worker under four of the six Psychiatric Impairment Rating Scales (PIRS), although it is noted that in substance the submissions address only three of those categories. On each occasion the appellant submits that the PIRS should have been assessed higher.
The respondent’s submissions in response address each of the PIRS challenged by the appellant.
The Appeal Panel will deal with the specifics of the submissions provided by the parties under findings and reasons, below.

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. The appeal concerns the application of the PIRS according to the Guidelines, and accordingly the Appeal Panel’s consideration of the matter is limited to those issues (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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. 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.

The PIRS

As the injury subject of this medical assessment is a psychiatric one, the PIRS, the assessment criteria under the Guidelines for psychiatric injury, becomes relevant. Assessments of impairment are undertaken “in accordance with” the Guidelines, per s 322(1) of the 1998 Act.
The PIRS provide for six scales, “each of which evaluates an area of functional impairment” (cl 11.11 of the Guidelines). The appellant has challenged the Medical Assessor’s assessment in three (or four) of the PIRS. The scales give examples of activities that are to be taken into account when assessing the class of functional impairment. The class descriptors range from no or minor deficit, through to totally impaired. This is explained by Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887:
“Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired by his injury, and the classes between are in an ascending order of impairment.”
Each area of functional impairment provides a series of examples, that are “examples only” (cl 11.12). In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633, Garling J considered the construction of the PIRS in the context of the examples given. He provided some commentary on the construction of the Guidelines:
“The submission of the plaintiff that, in assigning a class of impairment to each scale, the AMS is restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum, cannot be accepted.” (at [57])
The criteria in the Guidelines are not prescriptive. They must be read as a guide capable of being surmounted by other relevant facts (Rogers v Health Services Union NSW [2025] NSWSC 291 at [45]).
The Appeal Panel will now turn to each functional area challenged by the appellant in turn.

Social and recreational activities

The Medical Assessor assessed class two under this PIRS. The appellant submits that the history recorded is not consistent with that recorded by Dr Rastogi and Dr Saboor and is more drastic than that recorded by those doctors. The appellant refers to the history recorded in the MAC of 10 July 2024, and submits that the history is entirely consistent with class 3. The appellant submits that the history contained in the PIRS rating for is not in accordance with anything contained in either MAC.
In reply, the respondent submits that the restrictions in the MAC of 10 July 2024 represent the worker’s restrictions at that time. The Medical Assessor noted the worker had improved.
The Medical Assessor provides the following reasons for her assessment of class 2 impairment in this PIRS:
“She earlier enjoyed watching sports, playing soccer. She said that she stopped playing soccer about 40 years back. She also enjoyed going out socializing with friends, catching up for breakfast and attending barbecues. She said that she continues to meet up with her cousin and said “whenever we meet, we have a good time together”. She reported that she has a friend whom she calls up every morning and since she lives about one and a half hour from her, they only meet up about once a month. She also visits her other friend and cousin who lives in Sydney and visited her in Christmas. She said that “my friends who know me and what was done to me have been good to me”. She has lost few friendships. She however has been able to continue watching sports including footy and soccer on TV as before.”
The submissions in this case allege that the appropriate assessment is class 3. The Guidelines provide the following relevant criteria under Table 11.2:
“Class 2 Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3 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.”
The appellant refers to the previous MAC issued, as well as the medicolegal opinions that were before the Medical Assessor when she assessed Ms Leahey. The appellant has gone as far as to set out the PIRS tables from each of the assessors who has assessed Ms Leahey as part of the claim.
Dealing with the latter issue first (being the other medicolegal opinions), there are a number of points to note. The first is that the other medicolegal opinions provided constitute relevant evidence, but the assessment of impairment is a matter for the Medical Assessor on the day of examination. This was made clear by Campbell J in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 (Kaur), applying Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 to the specific statutory scheme. At [26] he opined:
“Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise.”
The second is that the other assessments (of Drs Rastogi and Saboor) significantly predate the MAC, the most recent of which was approximately one year before the MAC under appeal. Impairment is a matter that is capable of change and it is not surprising that a different level of functioning is recorded in a PIRS at different points of time.
The third is that the reasons in the MAC are more comprehensive and more properly deal with the criteria as set out in the Guidelines. Further, the Medical Assessor specifically considers those other opinions and explains why she has reached a different conclusion:
“I respectfully disagree with the calculation in the area of social and recreational activity. I have noted that she continues to engage in recreational activity like watching soccer, socializing with friends. She has been able to socialize with her cousin and visit her in Sydney. She has been able to go out without a support person and is actively involved when with her cousin. I do not believe that she has moderate impairment in this area.”
With respect to the submission that the Medical Assessor’s conclusion is inconsistent with the history recorded in the MAC(s), it should first be noted that the MACs are to be read together, but that does not mean worker’s presentation as recorded in the earlier MAC, especially in respect of present symptoms, could not have changed between the further assessment conducted in February 2025.
The Medical Assessor takes a history that the appellant has improved since the previous assessment:
“Regarding her overall mental health, she mentioned that she takes one day at a time, her mood has slightly improved, and she is “not so much on edge”. She reflected that her psychology sessions have been helping her with anxiety and depression. She works on her coping skills, including breathing exercises and meditation, and has started listening to relaxing music.”
Under mental status examination, the Medical Assessor recorded that “she has however noticed some improvements since her last assessment”. In the earlier MAC, the Medical Assessor records:
“She has been socially reclusive to the extent that she has not attended even funerals of close family members. She has thoughts of helplessness, hopelessness and worthlessness about herself. She continues to have pervasive low mood and marked anhedonia about activities. She said she is ‘in a happy place when she does not have to talk about insurance.’ Her sleep is poor, ‘but if she has to talk about the claim, then her sleep worsens’.”
The Medical Assessor was clearly of the opinion that the appellant had improved between assessments. This supports the conclusion whereby the Medical Assessor has assessed a lower class of impairment in this PIRS than the other Medical Assessors. The Medical Assessor has taken a history of social interaction with friends and family, on a greater basis than the history she previously took in July 2024.
It is also noted that Ms Leahey is an avid bird watcher, spending three to four hours per day undertaking this activity. This is recreational activity that the appellant engages in daily. There is no requirement that activities be undertaken outside of the home to be considered – it is the social and recreational character of the activities that must be considered (per Stern JA in Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781 at [69]):
“Considerations of purpose point in the same direction. Given that the purpose of the Social and Recreational PIRS is as a tool for trained psychiatrists to assess the functional impact of an injury on a worker’s social and recreational activities, there is no sound reason why a distinction should be drawn between activities within or outside of the home. It is the social and recreational character of the activities that is relevant.
The Medical Assessor has identified social and recreational activities the appellant engages in. She has recorded a history of functioning that is different to previous assessments, but those assessments have been given appropriate consideration. The Medical Assessor has explained why she found a lower class of impairment in this category specifically compared with those assessments, and has noted that the appellant had improved since the last assessment.
For the above reasons, the Appeal Panel are not satisfied that the Medical Assessor erred in assessing class 2 impairment in this PIRS. This ground of appeal is not made out. The correct assessment is class 2.

Travel

The Medical Assessor assessed class 1 in this PIRS, providing the following reasons in Table 11.8 in the MAC:
“She leaves her home to visit her cousin and drive there which is a four-hour drive. She also drives to buy her groceries and medical appointments and attend her GP which is a 45 minutes’ drive as well. She denied having any other accidents or near misses. She has been able to travel even without support person. I believe that she has no deficits in the area of travel.”
The appellant refers to the descriptions in classes 2 and 3 of Table 11.3, representing the criteria for the PIRS of travel. The appellant submits that the history recorded by the Medical Assessor is inconsistent with that of Drs Rastogi and Saboor, and with her own history. A rating of class 1 ignores the Medical Assessor’s own history that the appellant travels only once per month to buy her groceries.
In reply, the respondent submits that the worker resides on her friend’s property, a 45 minute drive from Orange, and she drives by herself without a support person to buy groceries and visit her GP.
The criteria for assessment of travel appear in Table 3. Relevant, that table provides:
Class 1    No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2    Mild impairment: Can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3    Moderate impairment: Cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
The Appeal Panel have dealt with the general nature of the appellant’s submissions under social and recreational activities, above. The submissions here are similar, and really show a disagreement with the outcome and a difference of opinion between the independent medical experts who assessed Ms Leahey, and the Medical Assessor. This is not an error, per Kaur.
The Medical Assessor explains why he disagrees with the opinion of Dr Saboor, in particular:
“Travel: I have noted that Dr Saboor mentioned class 2 as she could not drive because of her shoulder. However, the impairment arising from physical injuries should not be assessed under PIRS and she does not have any significant impairment currently. I therefore believe that she has no deficit in the area of travel.”

Dr Saboor’s report was provided on 19 April 2024, predating the present MAC by almost one year. The Medical Assessor has taken a history different to that recorded by Dr Saboor, but that is not, of itself, an error. The Medical Assessor records a history as to Ms Leahey’s grocery shopping: “She goes out grocery shopping once a month and attends her medical appointments regularly.” Ms Leahey’s general practitioner and psychologist are based in Orange, which is approximately 50 minutes drive from her home. She has driven to Sydney to visit her cousin. All of this is undertaken without a support person.
Taking a different history to that recorded in other medical opinions, when that history concerns present functioning, is not, of itself, an error. Ms Leahey was more restricted at earlier points in time. Her driving restriction, apparent before Dr Saboor, was due to physical issues. As discussed above, the Medical Assessor expressed an opinion that Ms Leahey had improved since the last assessment. This is consistent with the history taken in the MAC.
The appellant has not demonstrated an error on behalf of the Medical Assessor. The Medical Assessor has not “ignored her own history” of travel only once a month to buy groceries – this history is recorded and considered by the Medical Assessor. This history was also considered with other relevant factors, including the appellant’s regular attendance on her treating team including her general practitioner and psychologist, as well as her travel to visit her cousin.
An assessment of class 1 in this PIRS is the correct assessment.

Social and recreational activities

It is noted that at [16] of the appellant’s submissions, she suggests that the Medical Assessor erred in assessing social functioning as a class 2 instead of class 3. As the respondent points out, no submissions are provided in support of this ground. In the absence of submissions in support, it cannot be said that there is an error. To the extent that the appellant intended to challenge this ground of appeal, she has not provided any submissions that could be considered by the Appeal Panel (or addressed in response by the respondent).

Employability

The Medical Assessor assessed class 3 in this PIRS, providing the following reasons:
“Ms Leahey has moderate impairment and cannot work at all in the same position as she feels that she is now “exhausted of taking care of people.” She however can work less than 20 hours per week in a different position which requires less skill and in a qualitatively different work environment. I believe that she would be able to work less than 20 hours per week even with her current mental health symptoms. This is also supported by the certificate of capacity that she was last issued wherein she could work 4 hours 3 days a week.”
The appellant submits that the conclusion recorded by the Medical Assessor is difficult to reconcile with the history recorded of the activities undertaken by Ms Leahey. The appellant further submits that the Medical Assessor erred in relying on a certificate of capacity that predates the assessment by 10 months, and has failed to conduct her own assessment of the appellant’s employability.
In reply, the respondent submits that the Medical Assessor has not relied on the certificate of capacity in exclusion of her own clinical observations, and the conclusion reached needs to be considered in the context of other parts of the MAC, including the worker’s reduced alcohol intake and improved mood.
The relevant criteria for employability are provided in Table 11.6:
Class 3 Moderate impairment: Cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4 Severe impairment: Cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
The Appeal Panel agree with the respondent’s submissions.
The conclusion reached by the Medical Assessor must be read in full. There is reference to a certificate of capacity. It is accepted that this certificate predates the assessment by a period. It does, however, provide some relevant background material and should be considered in that context. Moreover the Medical Assessor has taken a full history of the appellant’s daily functioning, activities she undertakes, and recorded that history in the MAC and in the PIRS table.
The Medical Assessor provides reasons why she concluded Ms Leahey would be capable of working in a different role. She accepted that the appellant could not work in the same position, as she is tired of taking care of people. It is clear that the Medical Assessor has considered the criteria. She refers to elements of that criteria in her reasons, including the appellant being able to work less than 20 hours per week, in a different environment, that requires less skill. These criteria are specifically articulated in the Guidelines. The Appeal Panel are satisfied that the Medical Assessor has considered the totality of the appellant’s symptoms, to the contrary of the appellant’s submissions.
Accordingly, the Appeal Panel are not satisfied this ground of appeal is made out, and the correct assessment is class 3 as assessment by the Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 February 2025 should be confirmed.

[2025] NSWPICMP 396

5 June 2025