Ledger v Secretary, Department of Communities and Justice

DETERMINATION OF APPEAL PANEL
CITATION:	Ledger v Secretary, Department of Communities and Justice [2023] NSWPICMP 636
APPELLANT:	April Ledger
RESPONDENT:	Secretary, Department of Communities and Justice
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	4 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Role of the worker’s statement; Bojko v ICM Property Service and Pitsonas v Registrar of the Workers Compensation Commission referred to; assessment under the psychiatric impairment rating scale; Ferguson v State of NSW and Parker v Select Civil Pty Ltd; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 September 2023 April Ledger lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 September 2023.
Ms Ledger 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 was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds 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, 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).

RELEVANT FACTUAL BACKGROUND

Ms Ledger was employed by the Secretary, Department of Communities and Justice (the Secretary) as a corrections officer. As a result of traumatic events experience in the workplace and bullying and harassment by management and her colleagues, Ms Ledger suffered a psychological injury, which is deemed to have occurred on 6 November 2019. She was medically retired on 15 December 2020.
The Medical Assessor assessed 24% whole person impairment (WPI) under the Psychiatric Impairment Rating Scale (PIRS), assessing Ms Ledger in class 4 for self care and personal hygiene and social and recreational activities. He assessed her in class 2 for travel, social functioning and concentration, persistence and pace and in class 5 for employability. The Medical Assessor deducted one-tenth of the assessment under s 323 of the 1998 Act to reflect the contribution of a pre-existing condition to the impairment.

PRELIMINARY REVIEW

We 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, we determined that it was not necessary for Ms Ledger to undergo a further medical examination because the assessment made by the Medical Assessor was open to him in the exercise of his clinical judgement. In the absence of error, there is no power to re-examine.
The Secretary sought leave to rely on a Notice of Opposition filed outside the time allowed by the rules. We were not informed of any submissions that Ms Ledger sought to make opposing those submissions. We consider that there is nothing raised in the Secretary’s submissions that causes prejudice to Ms Ledger and we are satisfied that they should be admitted.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC 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 we have considered them.
In summary, Ms Ledger submitted that the Medical Assessor had failed to take account of the evidence set out in her statement dated 24 July 2023 which explored each of the PIRS categories in depth. She referred to Owen v Motor Accidents Authority (NSW)[1] to support the contention that the Medical Assessor must consider her statement.
[1] [2012] NSWSC 650.
Ms Ledger submitted that the Medical Assessor’s “classifications” for travel, social functioning and concentration, persistence and pace were incorrect and not consistent with Ms Ledger’s statement. With respect to each of those tables, she said that the “totality of the evidence” suggested a severe impairment and assessment in class 4 and that the Medical Assessor had failed to apply the history correctly.
Ms Ledger also said that any assessment in class 2 was inconsistent with the Medical Assessor’s diagnosis of a severe mental illness.
The Secretary sought leave to rely on submissions filed late, noting that the deadline was missed due to a public holiday. We were not provided with any submissions opposing the grant of leave and we consider it is in the interests of justice that the Secretary have leave to rely on them.
In reply, the Secretary noted that the Guidelines require that the Medical Assessor assess a worker as they present on the day of the assessment[2] and that evaluation of impairment will need to take account of variations in the level of functioning over time.[3]
[2] Guidelines paragraph 1.6
[3] Guidelines paragraph 11.1.
With respect to each of the impugned categories, the Secretary said that when the MAC is read as a whole, the assessment was made after a consideration of the circumstances of Ms Ledger’s level of functioning and how it had fluctuated over time. Referring to Ferguson v State of New South Wales[4] (Ferguson) and Parker v Select Civil Pty Ltd (Parker)[5] the Secretary submitted that a difference of opinion between Ms Ledger and the Medical Assessor does not amount to a demonstrable error and that the assessment was available to the Medical Assessor. It noted that the Medical Assessor can rely on his own judgment in the assessment of concentration, persistence and pace.
[4] [2017] NSWSC 887.
[5] [2018] NSWSC 140.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[6] the Court of Appeal held that an 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.
[6] [2006] NSWCA 284.

The MAC

The Medical Assessor set out the history of Ms Ledger’s injury, her treatment and symptoms. He said:
“Ms Ledger has had several admissions to hospital, often because of high suicidality, and on one occasion involuntarily under the Mental Health Act. Her most recent admission was for eight weeks at the Matilda Private Hospital in Penrith, her second admission in 2023; she was discharged five weeks ago.
She has at least five admissions to St John of God Hospital, plus admissions to South Coast Private Hospital, the Ramsay Hospital at Wentworthville and Palladium Private in Southern Queensland. She has recently had difficulties, finding a private hospital, willing to accept her for admission, because of their perception of high risk. She has had five suicide attempts by drug overdose, three of which have been in 2023.
…
She sees her general practitioner and psychiatrist monthly, although this may be increased weekly or second weekly if needed. She says her psychologist twice, weekly, and her counsellor, phones for daily for support, and as a welfare check.”
Describing her current symptoms, the Medical Assessor said:
“Ms Ledger described feeling overwhelmed and struggling to cope. She said, ‘I fall apart easily.’ She has ‘meltdowns over anything’, during which she cries, becomes frustrated, and is prone to overmedicating herself.
Her mood is pervasively low with relative anhedonia, although she takes some pleasure in painting.
Her anxiety is ‘debilitating,’ and she prefers not to leave her home. She is bothered by intrusive thoughts relating to traumatic circumstances at work and guilt about her behaviour and the impact of her illness on her children.
She has subjective challenges with concentration, attention and memory.
She has continuing thoughts of suicide.
Her sleep quality is poor; she often stays up well past midnight but falls asleep quickly with medication. She regularly has nightmares but cannot recall the content easily. She is usually up by 9 a.m.
She has become a compulsive shopper, purchasing unnecessary items and spending more than $40,000. She now has financial distress….”
With respect to Ms Ledger’s previous condition the Medical Assessor said:
“Relying on Ms Ledger’s statement that she had PTSD from childhood and had antidepressant medication and psychotherapy in her 20s, I consider that she had a preexisting mental health condition contributing to the severity of her condition and impairment now. It is impossible to determine the exact contribution level, and I assess it at one-tenth, consistent with her adequate function as a young woman.”
There is no appeal with respect to the deduction and it is the same percentage deducted by Dr Canaris, qualified for Ms Ledger.
The Medical Assessor set out the history he obtained with respect to Ms Ledger’s social activities and activities of daily living:
“Ms Ledger lives … with three of her four children: her 27-year-old daughter, 24-year-old son, and 17-year-old daughter. Her 15-year-old son has gone to live with his father because Ms Ledger could not adequately care for him. There had been a plan for the 17-year-old daughter to move out, but the father did not have room for her.
...
Ms Ledger does no housework or gardening. She has been provided with a cleaner, preprepared meals and a gardener.
She showers or changes clothes less than once a week.
She takes no exercise.
She has recommenced smoking, having previously successfully quit.
Ms Ledger has no social and recreational activities. She has a long-term friend, Brett, who visits most days. He is a corrections officer, and they had briefly had a relationship when Ms Ledger was still working. He calls in to check on her and offer support, but she sometimes pushes him away. She doesn’t go to cafés, restaurants or social events.
She lost her driver’s licence last year after she had been unwell for three days with abnormal behaviour and blackouts, likely due to delirium. Although she has regained her licence, Brett or her daughter usually drives her to places. For example, Brett usually takes her when she goes to see her psychologist or psychiatrist. However, if he is not available, she can drive herself short distances to familiar places. She was hospitalised at a private hospital in southern Queensland. Brett drove her to the airport and put her on the aeroplane. She was to be met by a hospital worker at the other end. When she arrived, there was a short period during which she couldn’t find the hospital worker, and she ‘freaked out.’
She has a close and caring relationship with Brett. They are not in an intimate relationship but are friends, and he acts in many respects as her carer.
Her relationships with her children are very strained…
She has given up social media such as Facebook, Twitter and Instagram…
She has little contact with her parents. She is estranged from her three siblings…
Ms. Ledger has lost other friends because of her social disengagement.
She has given up previously enjoyed activities such as reading, playing the piano and playing guitar. She enjoys painting and can spend several hours a day on her artwork. She also spends time on the Internet, Pinterest and YouTube for painting-related activities.”
The Medical Assessor set out his findings on his mental state examination:
“I assessed Ms Ledger for 110 minutes by video link; the connection quality was adequate to do a comprehensive assessment.
...
Her mood was low, and she was anxious. Her affect was restricted, consistent with her mood and congruent with the interview content. She appeared apprehensive at times and lost her composure occasionally during the interview, crying softly.
There is no evidence of any disorder of thought-form or perception.
...
During the interview, she appeared distracted and struggled with dates and event sequences.
On the basis of his examination, the Medical Assessor diagnosed post-traumatic stress disorder, persistent depressive disorder with an ongoing major depressive episode and anxious distress and anorexia nervosa (restricting type). He said:
“I found Ms Ledger open and forthcoming about her history. The narrative she gave today is consistent with the documents provided by the PIC, except regarding her pre-existing condition; she was at pains to emphasise that she had no pre-existing condition, but her statement contradicts this contention.”
The Medical Assessor commented on Ms Ledger’s statement when he considered the other reports in the file at length. He compared his PIRS assessment with those of Dr Canaris, qualified by Ms Ledger’s solicitors, and Dr Nagesh, qualified for the Secretary. Where the Medical Assessor’s assessment differed he explained why, adding material obtained during the consultation. With respect to travel he said:
“Ms Ledger told me that she can travel by herself to medical appointments, although she prefers to be taken by her friend or daughter and is anxious. She also recently managed to travel to Queensland by air with support available at both ends of the journey.”
Relevantly to social functioning, he said:
“Ms Ledger’s family relationships are strained. Her younger son has gone to live with his father, and her younger daughter had suggested that she would also like to leave. Her adult children have chosen to live with her. She has maintained a close and caring relationship with Brett for a long time. Although she is separated from her husband, she indicated that they have a good relationship, saying, ‘We are still friends.’ She said that her marriage breakdown occurred because of her husband’s personal problems, and her estrangement from her birth family relates to significant family dysfunction. One sister is an alcoholic, the other has been diagnosed with bipolar disorder, and she described her brother as having an antisocial personality, and he had been diagnosed with schizophrenia while in jail. She has always had a limited circle of friends; she said, ‘I prefer to have just one best friend.’”
With respect to concentration, persistence and pace the Medical Assessor said:
“That Ms Ledger required a CAT scan after failed ECT is irrelevant to this category. Ms Ledger has stopped reading but spends hours every day on her painting hobby, including watching instructional videos on Pinterest and YouTube. During the ‘three days’ alluded to, Ms Ledger was acutely unwell and described a period of transient disorientation that may have been a delirium. It has settled. When she was at her lowest weight, she may have had starvation-associated cognitive impairment, but she is now at a weight where this will not occur. Ms Ledger engaged well during my interview, which lasted 110 minutes, with only minor lapses in memory.”

Consideration of Ms Ledger’s statement

The Medical Assessor was required to assess Ms Ledger as she presented on the day of the examination,[7] taking his own history[8] and making his own observations about the way she presented at the examination. Ms Ledger’s statement is one of the documents he must consider and the material at paragraph 10 c of the MAC shows that the Medical Assessor was careful to consider and comment on aspects of Ms Ledger’s statement with the other medical evidence in the file.
[7] Guidelines paragraph 1.6
[8] Guidelines paragraph 1.47.
The Medical Assessor is an administrative decision maker and his reasons are to be considered in that light. The presumption of regularity applies to presume that the Medical Assessor has appropriately considered the material necessary to issue a MAC. In Bojko v ICM Property Service Pty Ltd [9] Handley AJA (with whom the other members of the Court agreed) said that the worker had failed to establish his grounds of appeal because:
“Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’"
[9] At [36].
The alleged failure to take account of the matters described in Ms Ledger’s statement is not, in any event, a demonstrable error because a demonstrable error is evident on the face of the MAC. In Pitsonas v Registrar of the Workers Compensation Commission and Anor Mason P said:[10]
“I am therefore driven to conclude that s327(3)(d) uses ‘contained’ in the more intense meaning of having as a constituent part, comprising or including (Macquarie Dictionary). Thus understood, the paragraph requires the would-be appellant to demonstrate to the Registrar that there is an arguable case of error appearing on the face of the Certificate. It may be an error of fact or law, but it must be more than one that depends upon evidence that is not within s327(3) (a) or (b) being adduced in the appeal. This conclusion accords with that reached by Hoeben J in Merza v Registrar of the Workers Compensation Commission[2006] NSWSC 939 at [39] (‘an error which is readily apparent from an examination of the medical assessment certificate and the document referred the matter to the AMS for assessment’.)” (Emphasis in original.)
[10] At [49].
Mason P said:[11]
“Those [matters complained about] dependent on the applicant showing that the doctor failed to record or to record correctly things she had told him face a double difficulty. They are not demonstrable on the face of the Certificate. And they seek, in effect to cavil at matters of clinical judgment in that matters unrecorded are likely to be matters on which the specialist placed no weight. The same can be said about factual matters recorded in one part of the Certificate that did not translate into the decision favourable to the applicant now contended for.”
[11] At [59].
Ms Ledger’s submissions referred to Owen v Motor Accidents Authority (NSW)[12] (Owen) to argue that the Medical Assessor was bound to consider her statement when considering each of the PIRS classes. Owen has little relevance to this appeal because it concerned the failure of a review panel constituted under the Motor Accidents Compensation Act 1999 to consider a claimant’s statement as well as contemporaneous medical evidence before determining that a particular injury was not caused by a motor accident. The task of the review panel under the legislation and the Motor Accidents Guidelines is different to that of the Medical Assessor. The decision in Owen does not support the argument that the Medical Assessor was required to have regard to Ms Ledger’s statement when making an assessment under the PIRS.
[12] [2012] NSWSC 650.

It is clear from the face of the MAC that the Medical Assessor considered Ms Ledger’s statement in making his assessment, among other material and he contrasted the material in the statement with the history he obtained on examination. He noted the inconsistency between some aspects of Ms Ledger’s report of her condition to those in the contemporaneous notes. He specifically reflected upon the complexity and fluctuating nature of her condition, as well as the context of when she was assessed, leading to different assessor’s opinions

PIRS Tables

Ms Ledger has sought to appeal against the Medical Assessor’s assessment under each of the PIRS tables where he made a lower assessment than Dr Canaris, qualified on her behalf. In respect of each of travel, social functioning and concentration, persistence and pace, Ms Ledger contrasted the Medical Assessor’s assessment with the material in her statement and said that the assessment was contrary to the totality of the evidence.
Dr Canaris examined Ms Ledger in February 2023 while she was hospitalised in an eating disorders unit. She told him that she was “now the worst I’ve ever been.” Dr Canaris said that Ms Ledger spoke in a pressured manner and that her account was at times disorganised and difficult to follow. Dr Canaris relied substantially for his history on a statement prepared in about August 2022, which may be the undated statement in the Application to Resolve a Dispute. His report of her presentation on that day is markedly different to day of the examination by the Medical Assessor, quite possibly reflecting that she was hospitalised at the time.
While it was appropriate for the Medical Assessor to comment on other opinions in the file, he was required to make his own assessment on the day that he examined Ms Ledger. The submission that his assessment was contrary to the totality of the evidence misunderstands his task. Campbell J explained what was required of the Medical Assessor in State of New South Wales (NSW Department of Education) v Kaur[13] where he said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
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. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[13] [2016] NSWSC 346 at [25]-[26].
The Medical Assessor explained at length where he differed from the other medical evidence. The MAC reflects an understanding that Ms Ledger’s presentation was different to that observed by other practitioners and that there was a need to consider why it was.
Campbell J described the role of an appeal panel in Ferguson v State of New South Wales[14] (Ferguson):
“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.”
[14] [2017] NSWSC 887 at [24]-[25].
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Ltd (Parker) and said:[15]
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
[15] [2018] NSWSC 140 at [70]-[71].
With respect to travel, the Medical Assessor gave reasons for assessing Ms Ledger in class 2:
“She is usually driven by her friend or daughter when she leaves her home to attend appointments. However, she will drive herself to the meeting if they cannot accompany her. She recently travelled alone to southern Queensland to be admitted to hospital. Her friend drove her to the airport and accompanied her until she boarded the plane. A hospital worker met her at the other end, and Ms Ledger became distressed when she arrived because she did not immediately connect with the hospital worker.”
Ms Ledger is reluctant to leave home and anxious when away from home though she is able to drive if necessary. Though she suffered some distress, she was able to travel alone to Queensland. Based on the history he obtained, the assessment in class 2 was open to the Medical Assessor.
The Medical Assessor summarised his reasons for assessing Ms Ledger in class 2 for social functioning:
“Ms Ledger’s marriage failed sometime around 2013, but she said the marriage breakdown was related to her husband’s problems. She has a reasonable relationship with her ex-husband. She had a brief intimate relationship with Brett, but this is now a friendship. She is estranged from her parents and siblings, although this is due to dysfunctional birth-family dynamics. She lives with three of her four children, and their relationship is strained. Her 15-year-old son has left home to live with his father; her 17-year-old daughter wanted to do the same thing, but the father could not accommodate her. Other than Brett, Ms Ledger has no remaining friends.”
The Medical Assessor distinguished the impacts on Ms Ledger’s social functioning which arise from pre-existing family problems with those arising from the injury. The history Ms Ledger gave the Medical Assessor was that she has always had a limited circle of friends, in contrast to other statements in the file. It was appropriate for him to make his assessment on the information Ms Ledger provided on the day of the examination. His assessment is not glaringly improbable.
Many of the PIRS tables are assessed on the history that a worker provides but a Medical Assessor can form his or her own view about concentration, persistence and pace. The interview provided the Medical Assessor with the opportunity to observe Ms Ledger’s ability to concentrate and to persist in maintaining concentration and to assess the pace at which she responded to his questions.
The Medical Assessor summarised his reasons for assessing Ms Ledger in class 2:
“Ms Ledger has subjective challenges with concentration and memory. She no longer reads or watches television, having lost interest. However, she spends many hours every day painting and has set up a studio in her house. She watches instructional videos on Pinterest and YouTube related to her hobby. She had minor problems recalling events during my interview but engaged well for 110 minutes.”
The examination was long and the Medical Assessor observed that Ms Ledger was able to engage well. He identified the possibility of a previous starvation-associated cognitive impairment and noted that Ms Ledger had gained weight. The examination by Dr Canaris was undertaken at a time when she was hospitalised in an eating disorders unit which provides some explanation of the difference in Ms Ledger’s presentation at the examinations.
The Medical Assessor considered Ms Ledger’s hobby of painting was relevant to the assessment of concentration, persistence and pace. Dr Canaris was apparently unaware of it, probably because of the circumstances of her examination and it was not mentioned in her statement. In December 2022 Dr Nagesh noted that Ms Ledger “does some painting to switch her brain off, will paint all day” though did not refer to her ability to do so in his PIRS assessment.
Ms Ledger’s reported ability to paint for many hours each day and to watch instructional videos together with the fact that she has set up a studio to facilitate her hobby supports the Medical Assessor’s assessment in class 2.
Even if other examiners may have scored Ms Ledger differently under the PIRS, the assessments made by the Medical Assessor were open to him, based on his observations, in the exercise of his clinical judgement.
For these reasons, we have determined that the MAC issued on 6 September 2023 should be confirmed.

[2023] NSWPICMP 636

4 December 2023