Lord v State of New South Wales (Northern Sydney Local Health District)
[2025] NSWPICMP 30
•13 January 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lord v State of New South Wales (Northern Sydney Local Health District) [2025] NSWPICMP 30 |
| APPELLANT: | Kirsten Jane Lord |
| RESPONDENT: | State of New South Wales (Northern Sydney Local Health District) |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 13 January 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal against 7% assessment for psychiatric injury; whether Medical Assessor (MA) miscalculated entitlement; whether assessment of no deficit in social and recreational activities erroneous; whether no deficit rating for travel erroneous; whether class 2 rating for concentration persistence and pace and class 4 rating for employability erroneous; Held – MA miscalculated entitlement; MA also failed to consider relevant facts in context for social and recreational category and for travel; rating increased to 2 in each case; no error in classification for concentration persistence and pace or employability; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 September 2024, the appellant, Kirsten Jane Lord lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ankur Gupta, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
2 September 2024.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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 1 August 2024 this matter was referred to the Medical Assessor for an assessment of WPI caused by psychiatric/psychological disorders which occurred on a deemed date of
27 May 2002.Ms Lord was engaged by the respondent as a Drug And Alcohol Counsellor. Whilst working for the employer, she was bullied and harassed by her Acting Team Manager since 2019. The Acting Team Manager caused an investigation against Ms Lord to occur.
Ms Lord had met a client in a park which caused the Acting Team Leader to accuse her of dating the client, and Ms Lord had been stood down from her position on 21 October 2021. She was placed on administrative duties. She was then transferred to another hospital but was still required to check in with the Acting Team manager daily. Ms Lord ceased work in May 2022 as a result. The investigation took a year to complete and eventually found in October 2022 that the accusations were baseless.
The Medical Assessor assessed 7% but we note that he made an error in so calculating and that on his own calculation should have certified 13% WPI, which we will discuss in due course.
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.
The appellant did not seek to be re-examined, and although we have established that the Medical Assessor fell into error, the evidence was adequate to correct the MAC without the necessity for a further examination.
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 which have been considered by the Appeal Panel.
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. 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 MAC
The Medical Assessor, in describing Ms Lord’s current symptoms, said:[1]
“Ms Lord says that her mood is always low but can occasionally improve whenever she goes for a walk or meets a friend for coffee or a meal. She says that she feels anxious all the time, which is worse than her low mood. … She describes flashbacks all the time of going to Macquarie Hospital and
also experiences nightmares. She avoids going near Macquarie Hospital as it triggers her and worsens her pain. She also avoids going near Royal North Shore Hospital. She has been advised to get a scan as a follow-up for her breast cancer but has been avoiding it. She experiences panic attacks a couple of times per day. She has trouble getting to sleep, but that
has been better with the medication. She wakes up at around 1 AM because of nightmares and takes another Agomelatine before returning to sleep one hour later….”
[1] Appeal papers page 46.
In regard to Ms Lord’s social activities, the Medical Assessor recorded:[2]
“….She gets anxious while driving but has accumulated 20 points for going through red lights and holding her mobile phone. She says that she has been through red lights twice and has been caught with he mobile phone in her hand twice. That has not happened for several months, but she avoids driving as she is on a two-point good behaviour bond. She has not accumulated any points since. She says that she feels anxious about taking public transport. She managed her trip to Noosa well. That involved taking flights and travelling by Uber.
Ms Lord was in a long-term relationship but split up last year because she had lost interest in sex and was irritable with him. She has lost contact with some friends but still has some. She has a good relationship with her brother and her father. Two months ago, she travelled to Noosa to spend five days with her father, which she enjoyed.
She meets her friends for coffee or meals every fortnight. She can go to the shops for grocery shopping but usually eats takeaways. She says that her ex is still supportive and he comes around to help with household chores. She says that she struggles to look after the house because she feels “depressed” and is not motivated to do things. She says that she spends time watching things on television. She likes to watch crime series on SBS and Netflix. [She] can watch TV “all day”. She says she can usually follow the plot in the series but has had to rewatch as she “vagues out”. She says that she finds it hard to remember what she is doing and makes mistakes while cooking. She manages her finances independently, but her father has been supporting her financially. She has missed her psychology appointments because of forgetting. She does not forget to take her medication. She has managed to keep up her registration as a psychologist. She has attended some lectures this year but was unable to attend a Schema Course as she felt scared. Ms Lord says that she has completely lost her confidence to work and does not think that she can work in any capacity, anywhere.”
[2] Appeal papers page 47.
As to consistency of presentation, the Medical Assessor said:[3]
“Her presentation was consistent, but I noted that she reported not showering or brushing her teeth much where, whereas Associate Prof Gordon Davies noted that Ms Lord was showering daily.”
[3] Appeal papers page 48.
The Medical Assessor commented on the evidence that was referred to him at the templated [10c] of his MAC. He noted the medico-legal opinions by Associate Professor Gordon Davies, who reported for the employer, and Dr Assad Saboor, who was retained by Ms Lord. Associate Professor Davies diagnosed an adjustment disorder on 23 August 2022 and
31 January 2023, but by 24 April 2024 thought that Ms Lord was suffering from a moderate depression because of the duration of her symptoms. Associate Professor Davies rated
Ms Lord’s WPI at 9%.The Medical Assessor noted a report by Dr Saboor dated 13 December 2023 which diagnosed a chronic major depressive illness with anxious distress. The Medical Assessor noted Dr Saboor’s assessment of 22% WPI.
He also noted:[4]
[4] Appeal papers from page 49.
“….
• According to her consultation notes dated 03 July 23, Dr George opined that Ms Lord had no capacity to work.
• Treating psychologist Mr Anthony J. Piqnataro provided a report dated 03 August 22. He advised that Ms Lord was suffering from symptoms of depression and anxiety related to work stressors. In his report dated 07 October 22, Mr Piqnataro stated that Ms Lord had attended seven sessions in total, her mood had settled, and she was considering returning to work.
• Mr Piqnataro advised further improvement in her mood in his report dated 05 December 22.
• Mr Piqnataro advised in his report dated 17 March 23 that Ms Lord was not as well engaged socially as she used to be.
• In his report dated 20 May 23, Mr Piqnataro advised that Ms Lord was fearful of considering returning to work in any form of employment.
• Complete record of Bondi Junction Medical Centre dated 03 October 23 was provided. The following pertinent information is documented:
….
· She was last seen at this practice on 12 August 22, when it was noted that she had recovered enough to return to work on suitable duties at McCoy Hospital and had been referred to a psychiatrist as well. It was noted that she was reluctant to do suitable duties.”
o She was last seen at this practice on 12 August 22, when it was noted that she had recovered enough to return to work on suitable duties at McCoy Hospital and had been referred to a psychiatrist as well. It was noted that she was reluctant to do suitable duties."
The reasons given by the Medical Assessor in the psychiatric impairment rating scale (PIRS) rating form will be considered in our discussion, below.[5]
SUBMISSIONS
[5] The PIRS rating form is from Appeal papers page 53.
Ms Lord, whilst noting the mathematical error made by the Medical Assessor, submitted that he had fallen into error in the assessment of four of the six categories in the PIRS by which the WPI of psychologically injured persons is assessed. We note the referral to authorities relevant to the headings of “incorrect criteria” and “demonstrable error,” which are uncontroversial.
Social and recreational activities
The appellant referred to the findings by the Medical Assessor and contrasted them with the findings of her own medico-legal expert, Dr Assad Saboor. Ms Lord submitted that the Medical Assessor in giving a Class 1 rating had failed to take into account that the activities he recorded of her watching television all day, which she submitted were not the actions of a person with no impairment in this category. Ms Lord referred to her statement of
1 September 2022, which outlined her recreational and social activities prior to her injury, the contrast with which had been noted by Dr Saboor, who had given a Class 3 rating.We were also referred to the diagnosis given by Ms Lord’s treating psychiatrist, Ms Anita George, which was that, amongst other things, Ms Lord had partly resolving social anxiety and agoraphobia.
Ms Lord submitted that the Medical Assessor had failed to take into account that she did not engage in recreational activities and that her social activities were limited to close friendships. The Medical Assessor had taken into account “irrelevant considerations” including that she managed her own shopping. She was socially withdrawn from her family and friends, her long-term relationship had split up and she relied on takeaway food and spent most of the day watching crime series on SBS and Netflix.
Ms Lord said she did sometimes go out and see her close friends for coffee or meals in order to get out of the house.
It was submitted that the most appropriate impairment for social and recreational activities was a Class 3 accordingly.
Travel
Ms Lord conceded that the descriptors contained in the relevant table, table 11.3, were examples only and not exclusive criteria, as we understood the submission. Ms Lord nonetheless submitted that a Medical Assessor retained a degree of discretion and was entitled to exercise clinical judgment in conducting the assessment. Ms Lord conceded that she could travel without a support person, but only in a familiar area, and she did not travel in the same capacity as she did before her injury. The fact that she avoided attending the hospital for a breast cancer screening, it was submitted, was evidence that Ms Lord had a travelling panic that was greater than the Class 1 that the Medical Assessor had rated.
We were referred to Dr Saboor’s opinion, which assigned a Class 2 rating. It was submitted that the Medical Assessor's emphasis that Ms Lloyd had taken flights and went to visit her father in Noosa was an example of the application of incorrect criteria.
The Medical Assessor had failed to take into account that Ms Lord had previously travelled to see her father, which was a familiar place, and she was able to catch an Uber as opposed to catching public transport, travelling on which made her feel anxious.
The Medical Assessor had, it was submitted, failed to obtain further relevant information and evidence about that history which has resulted in an “overstatement of the appellant’s functional ability in her capacity to travel.” Ms Lord submitted that she should have been rated Class 2.
Concentration persistence and pace
The Medical Assessor had, it was claimed, failed to take an adequate history from Ms Lord regarding her ability to keep her registration as a psychologist. The Medical Assessor had made “certain assumptions” about the degree of difficulty or involvement of the task when no such evidence was before him.
We were referred to Chapter 14.1 of AMA 5, which it was alleged required the Medical Assessor to obtain further relevant information. This submission may shortly be dealt with, as the introduction to Chapter 11 of the Guides states “AMA 5 chapter 14 is excluded and replaced by this chapter.” We accordingly put this submission to one side.
We were again referred to the opinion of Dr Saboor, who assessed a Class 3 rating in this category.
It was clear, it was submitted, that Ms Lord's rating in this category should have been beyond that of a mild impairment. Ms Lord's impaired ability to “undertake these tasks” was evident in the general history taken by the Medical Assessor. Again, Ms Lord referred to the emphasis by the Medical Assessor that she had managed to keep her registration requirements when no proper history had been taken with the registration requirements.
In the light of the history taken by the Medical Assessor that Ms Lord had to re-watch TV as she found it hard to remember things, that missed her psychologist appointments and made mistakes when cooking, a Class 3 rating was more appropriate.
Employability
Ms Lord submitted that the Medical Assessor failed to take a history of her employment history and followed therefore that he failed to take into account relevant considerations in assessing this category.
Ms Lord cited Ballas v Department of Education (State of NSW)[6] but failed to indicate what passages she was referring to. Ms Lord said she had not worked since she ceased work on 27 May 2022 and that a Class 4 rating was inconsistent with her history.
[6] [2020] 102 NSWLR 738: [2020] NSWCA 86.
The Medical Assessor had “not even identified” the nature of the work that he thought she could perform, she said. The description of a “home-based role” was said to be inadequate as it was claimed that the Medical Assessor “must” identify a “real role,” which he had failed to do. Ms Lord was still under treatment and should have been given a Class 5 rating, she said.
Mathematical error
Ms Lord submitted that in determining the median class score pursuant to Chapter 11.4 the Medical Assessor had erred by identifying a Class 2 as the median class, whereas he should have assessed a Class 3. This would have resulted in a 13% WPI finding and not the 7% that was certified.
The respondent
The respondent surveyed the history and reproduced the PIRS compiled by the Medical Assessor.
The respondent noted the submission that the median score had been incorrectly assessed but made no further comment. Again, we were referred to various uncontroversial cases regarding demonstrable error, which there is no need to rehearse.
Social and recreational activities
The respondent noted the descriptors for Classes 1 and 2 in this category and referred us to Chapter 1.6 of the Guides, which requires a Medical Assessor to assess a claimant as they present on the day of the assessment.
The respondent noted Ms Lord’s statement that she no longer enjoyed activities that she had normally found enjoyable and rewarding. However, the respondent submitted that the statement was dated 1 September 2022. Her further statement of 4 July 2024 that she was suffering from agoraphobia, was amongst a list of ongoing injuries and disabilities.
Dr Saboor's report, being dated 13 December 2023, “significantly predate[d]” the MAC by about a year, the respondent said. The allegation that the Medical Assessor failed to consider that Ms Lord’s social activities were limited to close friendships was not further particularised, the respondent said, and it observed that the Medical Assessor did record that Ms Lord had lost contact with some friends, but still had some and that indeed she went to coffee or meals every fortnight with them. The submission that the Medical Assessor did not account for her social activities was simply “wordplay” for the purposes of cavilling with matters of clinical judgment, it was submitted.
Further, it was submitted that a Medical Assessor was not obliged to mention all the evidence in the MAC. We were referred to Tattersall v Registrar of the Workers Compensation Commission of NSW & Anor[7] and Wentworth Community Housing Ltd v Brennan.[8] The appellant’s submission was no more than a matter of opinion about which reasonable minds might differ.
[7]Erroneously cited as “ [2017] SNWSC 453 at [15]” but in fact the citation is [2007] NSWSC 453.
[8] [2019] “NSWC” [presumably NSWSC]152 at [70]-[76].
Travel
The respondent referred to the relevant class descriptors in this category in support of the Class 2 rating given. It submitted that the allegation that Ms Lord could not attend the hospital for breast cancer screening was no more than “wordplay.” She clearly stated that she avoided Breast Cancer Screen because she had to go back to Royal North Shore Hospital and not as a result of the travel that was required to get there, the respondent argued.
As to the submissions regarding Ms Lord's visit to Noosa to see her father and that the Medical Assessor’s failure to obtain further information resulted in an overstatement of her functional ability, the respondent replied that such a submission was speculative and at odds with the dicta of a Medical Appeal Panel in Kitanovska v Coles Group Limited.[9]
[9] [2016] NSWWCCMA 90 at [43].
It was submitted that in any event, Noosa could not be regarded as a “familiar area”, in the context of the wording of the descriptors.
Again, the appellant’s argument was said to be no more than a difference of opinion.
Concentration, persistence and pace
The respondent referred to reasons given by the Medical Assessor and referred to the relevant class descriptors for this category in Class 1 and Class 3.
In answer to the reliance by the appellant on Dr Saboor’s history, the respondent observed again that the medical assessment took place about a year later. The history the Medical Assessor took was up to date relating to Ms Lord's attending lectures, in addition to other factors such as her ability to manage her finances independently, watch crime TV series, keep her registration as a psychologist and focus for the entire duration of the medical assessment.
In those circumstances a Class 2 rating was open to the Medical Assessor, it was submitted, and he had given a clear and reasoned explanation for his assessment.
Employability
The respondent referred us to the two descriptors for Class 4 and Class 5 in this category. The respondent submitted that Ms Lord had neglected to identify the basis on which the Medical Assessor had allegedly failed to take a proper history of Ms Lord’s employment history, in view of the history he had actually recorded.
We were referred to Tattersall and Brennan with regard to the obligations of a Medical Assessor to mention every piece of evidence before him.
We note that a further report from Associate Professor Davies dated 30 September 2024 was produced “in compliance with model litigant obligations.” We were not advised what these obligations were, but Associate Professor Davies’ report post-dated the issue of the MAC and accordingly were subject to the provisions of s 328(3) of the 1998 Act:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
No application was made with regard to the admission of this evidence, and we accordingly decline to admit it.
DISCUSSION
The Psychiatric Impairment Rating Scale
The PIRS is established as the rating system for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. 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.
Chapter 11.12[10] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[10] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[11]
[11] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[12] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[13]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[12] [2017] NSWSC 887.
[13] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[14] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[14] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated; or
(d) if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[15] Basten AJ noted at [88-89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[15] [2022] NSWSC 929.
The tension between these descriptors, which we apprehend the authors of the Guides foresaw, in the many different possible scenarios within the six categories of the PIRS and the classifications thereof, is the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples, giving a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allowing a wider discretion to be applied than if the descriptors were intended to be strict criteria.
Nonetheless, there are some aspects of this MAC in which the classification given by the Medical Assessor cannot be explained within the scope of this discretion. It can be seen than an appellant has to satisfy the test that the alleged error is more than a mere difference of opinion on a subject about which reasonable minds may differ. The respondent in this case has described that test as being “wordplay,” but in some respects we are unable to agree.
Social and recreational activities
The relevant descriptors in this category are provided by Table 11.2 of the Guides:
Class 1: No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these".
Class 2: Mild impairment: occasionally goes out 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 Medical Assessor gave the following reasons for ascribing a Class 1 rating in his Table 8 PIRS Form:[16]
“As described in the main body of the report, there is a minor deficit attributable to the normal variation in the general population. She socialises less but meets her friends for coffee and meals and gets takeaway food.
She also manages her own shopping. She likes to watch crime series on SBS and Netflix.”
[16] Appeal papers page 53.
The main body of the report does not, with respect, reflect the Medical Assessor’s reasoning. The Medical Assessor identified that Ms Lord’s mood was “always low” but would occasionally improve if she went for a walk or met her friends as he described. Nonetheless he noted that Ms Lord felt anxious “all the time.” He noted further Ms Lord’s history that she experienced panic attacks “a couple of times a day” and that she had trouble sleeping, for which she had to take medication. Her activities were limited to watching television “all day,” which he put in quotation marks to indicate, we assume, that those were her words.
We note the submissions of the respondent that Ms Lord’s reliance on what she had said previously in her statement and in the history taken by Dr Saboor was out of date, but, as also observed by the respondent, the Medical Assessor was bound to assess a claimant as he/she presented on the day of assessment, as required by Chapter 1.6 of the Guides. Leaving aside the qualification also provided in Chapter 1.6 that a Medical Assessor was additionally required to take into account the relevant medical history and all available health information, the above symptoms and history were in fact those that he recorded as a result of her presentation on the day of assessment, 21 August 2024.
There was no indication from the Medical Assessor that he did not accept the history he was given. Whilst he noted when considering Ms Lord’s consistency of presentation that there was an apparent inconsistency between what he had been told about her showering and what had been recorded by Associate Professor Davies, he made no other comment that would suggest that Ms Lord’s description of her symptoms or impairment was not credible or exaggerated. The report from Associate Professor Davies which mentioned this alleged inconsistency was dated 24 April 2024[17] and, with respect, did not record that Ms Lord showered “daily,” as the Medical Assessor asserted. Associate Professor Davies said in the body of his report:
“Ms Lord said that she showers a couple of times per week…”[18]
[17] Appeal papers page 747.
[18] At page 751.
In his supplementary report dated 26 April 2024, Associate Professor Davies said:
“Ms Lord said that she showers and changes several times per week.”[19]
[19] At page 764.
We are not satisfied that the description of Ms Lord’s social and recreational activities is commensurate with a class I rating. The Medical Assessor did not explain why Ms Lord’s activity of “occasionally” walking with her friends or meeting them for coffee or a meal, which had the effect of improving her low mood, accorded with normal activities or activities with a minor variation in the general population. The evidence did not disclose that Ms Lord was a person whose previous social and recreational activities had not been impaired . Rather, the evidence shows that she ceased her normal recreational activities. Dr Saboor recorded on 13 December 2023 that:
“[Ms Lord ] said she had stopped any recreational activities the last month. She has not been going to any recreational activities. She did not go to the gym. She stopped going to the gym.”[20]
[20] At page 123.
In her statement of 1 September 2022 Ms Lord described her social activities follows:[21]
“I normally do Pilates, running, yoga, dance fitness classes or running about three times a week. In my spare time, I meet up with friends, talk with them on the phone; watch TV;: nature walks and do painting. Recently I had done these less frequently.”
[21] At page 66.
The activities described by the Medical Assessor demonstrate that this change in Ms Lord’s social and recreational activities has persisted. Watching television all day and meeting some friends every fortnight contrasts significantly with her pre-injury behaviour. In context, this cannot be described, without some explanation, as demonstrating no deficit in this category, or a minor deficit attributable to the normal variation in the general population. The Medical Assessor made no attempt to explain why he had reached that conclusion, and we are satisfied he has made accordingly a demonstrable error.
We note the appellant’s submission that a Class 3 rating should be substituted, but there is no suggestion that Ms Lord needs to be prompted by her family or close friends to go out, neither is there any suggestion that she cannot go out without a support person. The assessor’s description of occasional social and recreational activities without prompting clearly matches the description of a mild impairment. A Class 2 rating is appropriate to her situation.
Travel
Table 11.3 of the Guides provides relevantly:
“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 Medical Assessor gave a Class 1 rating in his Rating Form. He said:
“As described in the main body of the report, there is a minor deficit attributable to the normal variation in the general population. She gets overwhelmed while driving her car. However, she can travel to new places and generally travel far. She managed a trip to Noosa by taking flights and travelling by Uber.”
The concessions made by Ms Lord were a proper acknowledgement that, as noted above, the Medical Assessor enjoys a discretion in his assessment by virtue of Chapter 11.12, which provides that the descriptors are intended to be non-binding examples as to which a Medical Assessor can apply his clinical experience and expertise in selecting that class he deems to be most appropriate.
Nonetheless, again such classification must acknowledge the context in which the functional impairment is considered. The Medical Assessor failed to appreciate the significance of
Ms Lord’s becoming overwhelmed whilst driving her car. The assessor specifically noted that she avoided going near the Royal North Shore Hospital for the purposes of obtaining a breast scan, Royal North Shore Hospital was the workplace, along with Macquarie Hospital, in which she suffered her psychiatric injury. The Medical Assessor did not record Ms Lord’s past history that she had undergone bilateral mastectomy as well as chemotherapy and radiation in 2011. The Medical Assessor acknowledged that Ms Lord had been advised to get a scan as a follow-up, but failed to put that into context. It is difficult to conceptualise as a normal variant a situation where a person is not able to travel in a given area for investigations for a potentially life threatening condition because she is “triggered” by going near her workplace.Whilst the respondent argued that Ms Lord’s ability to travel to Noosa was consistent with a Class 1 rating, it is relevant however to note that her father resided there, and that she was familiar with the area. We note that Associate Professor Davies in his report of 24 April 2024 recorded that she was planning to see her father that Easter as he had sent her a plane ticket. It is also relevant that Ms Lord was able to travel by Uber, but in circumstances where she became anxious when travelling on public transport and so avoids that mode of transport. Such behaviour again needs to be seen in context. On balance, whilst Ms Lord’s ability to travel by herself whilst flying to Noosa must be balanced with these other factual considerations, which again demonstrates that the descriptors are not to be applied as strict criteria, but constitute a general guide to the level of the behavioural consequences of
Ms Lord’s psychiatric disorder.Accordingly, the reasons given by the Medical Assessor were not adequate to explain the Class 1 rating in this category. We acknowledged the force of the determination by the Medical Panel in Kitanovska, relied on by the respondent:
“Assessments are not recorded and an AMS is under no obligation to repeat verbatim the conversation held during the course of the assessment. An AMS is required to use his clinical judgment and experience in the assessment process, utilising all the materials referred to him and is presumed to have asked relevant questions, and recorded those responses that were germane to his enquiry. There is a presumption of regularity that accompanies the actions of an administrative decision maker, of whom the AMS is one.”
This however is not a case where an allegation has been made that the Medical Assessor failed to accurately record conversation. Rather, it relates to the failure by the Medical Assessor to acknowledge the effect of extraneous factors on Mr Lord’s behaviour. We are satisfied that the matters we have discussed demonstrated more than a mere difference of opinion about which reasonable minds might differ.
Concentration, persistence and pace
Table 11.5 of the Guides gives the following classification, relevantly:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.
Class 2 Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3 Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The Medical Assessor rated a Class 2 assessment, saying in the Rating Form:
“As described in the main body of the report, there is mild impairment. She was able to focus for the entire duration of the assessment and has managed to keep up with registration requirements. However, she
describes a general loss of concentration and has been making mistakes while cooking.”
Ms Lord claimed that the Medical Assessor’s reliance on her keeping up her registration requirements as a psychologist was unsupported by evidence, and should accordingly be discounted. We referred to Vegan at the outset of these reasons and note that there is no need for a Medical Assessor to give an extensive or detailed explanation of the criteria applied by medical professionals in reaching a professional judgement. The Panel, by virtue of the presence of two psychiatrists, has sufficient knowledge of the processes required for continued registration by professional boards and/or AHPRA (which include psychologists) and is satisfied that Ms Lord’s registration could not be renewed were she unable to read more than newspaper articles or otherwise qualified by virtue of the Class 3 descriptors.
The assessor described no impairment observed in concentration and persisting with the assessment. We find no error in the Class 2 rating given for this category.
Employability
Table 11.6 of the Guides gives the relevant descriptors:
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.
Class 5: Totally impaired: Cannot work at all.
In his Table 11.8 Rating Form, the Medical Assessor gave a Class 4 rating. He said:
“As described in the main body of the report, there is severe impairment. She can work for a few hours per week in a home-based role.”
The submission that the Medical Assessor failed to take a history of the appellant’s employment history must be rejected. The following appeared in the MAC:
“Work history including previous work history if relevant:
She attended school in Manila Primary School and then Armidale Secondary School. She was good academically and was a dux student for several years in high school. She completed a bachelor's degree in pharmacology and biochemistry. She started a diploma in education but did not complete it. She earned a counselling diploma at the age of 36. She worked as a drug and alcohol counsellor at Hornsby Hospital in 2007/08. She says that she was “bullied out” of that job but never sought compensation. She says that she joined Royal North Shore Hospital in 2010. She was working full-time as a drug and alcohol counsellor. She used to assess people with drug and alcohol problems and created management plans.”
It follows that the Medical Assessor was aware of Ms Lord’s employment background and the impact her psychiatric disorder has had on her ability to find work. We do not however agree that Ms Lord is totally impaired, as she asserted. Were that so, there would be no point in her maintaining her registration as a psychologist. The qualification for a Class 4 rating is not onerous, restricted as it is to an ability to work for only one or two days at a time, and for less than 20 hours per fortnight. There is no requirement for a Medical Assessor to identify the nature of the work a claimant could do, and the submission that a Medical Assessor “must form the view that there is a real role that [Ms Lord] can do” conflates the concept of entitlement to weekly compensation as provided by Division 2 of the 1987 Act with that of the category of employability, which is governed by the classes of descriptors in Table 11.6.
Re-examination
Thus we are satisfied that the MAC must be revoked. We did not require a re-examination notwithstanding the errors we have identified. This is because the evidence is not in dispute, but rather the interpretation of it and its applicability to the ratings given by the Medical Assessor has been the basis of the dispute.
For these reasons, the Appeal Panel has determined that the MAC issued on
2 September 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
Table 11.8: PIRS Rating Form
| Name | Kirsten Lord | Claim reference number (if known) | W23538/24 |
| DOB | Age at time of injury | 52 years | |
| Date of Injury | 27 May 2022 | Occupation at time of injury | Drug and Alcohol counsellor |
| Date of Assessment | 21 August 24 | Marital Status before injury | De facto relationship |
| Psychiatric diagnoses | PTSD |
| Psychiatric treatment | Mirtazapine 45mg and Agomelatine 50mg. Psychotherapy |
| Is impairment permanent? | Yes |
| PIRS Category | Class | Reason for Decision |
| Self Care and personal hygiene | 3 | As described in the main body of the report, there is moderate impairment. Her self-care has been reduced, and she has lost 10 kg in body weight. She is not motivated to engage in household chores either. She manages independent living with some help from her ex-partner. |
| Social and recreational activities | 2 | As described in the main body of the report, there is a minor deficit attributable to the normal variation in the general population. She socialises less but meets her friends for coffee and meals and gets takeaway food. She also manages her own shopping. She likes to watch crime series on SBS and Netflix. |
| Travel | 2 | As described in the main body of the report, there is a minor deficit attributable to the normal variation in the general population. She gets overwhelmed while driving her car. However, she can travel to new places and generally travel far. She managed a trip to Noosa by taking flights and travelling by Uber. |
| Social functioning | 3 | As described in the main body of the report, there is moderate impairment. She split up with her long-term partner and has not found any new relationship since. |
| Concentration, persistence and pace | 2 | As described in the main body of the report, there is mild impairment. She was able to focus for the entire duration of the assessment and has managed to keep up with registration requirements. However, she describes a general loss of concentration and has been making mistakes while cooking. |
| Employability | 4 | As described in the main body of the report, there is severe impairment. She can work for a few hours per week in a home-based role. |
| Score | Median Class | |||||
| 2 | 2 | 2 | 3 | 3 | 4 | = 3 |
| Aggregate Score Impairment | Total | % | ||||
| 2+ | 2+ | 2+ | 3+ | 3+ 4 | 16 | = 17% |
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W23538/24 |
Applicant: | Kirsten Jane Lord |
Respondent: | State of New South Wales (Northern Sydney Local Health District) |
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 Ankur Gupta 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 | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric and psychological disorders | 27 May 2022 - deemed | Chapter 11 | N/A | 17 | Nil | 17 |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
0
7
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