Marinos v Macquarie University

DETERMINATION OF APPEAL PANEL
CITATION:	Marinos v Macquarie University [2024] NSWPICMP 222
APPELLANT:	Danny Marinos
RESPONDENT:	Macquarie University
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	15 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for primary psychiatric injury; worker appealed assessments in the psychiatric impairment rating scale categories of self-care and personal hygiene, social functioning, social and recreational activities, employability and concentration, persistence and pace; Medical Assessor erred in assessment of social and recreational activities, employability and concentration, persistence and pace; no error in assessment of self-care and personal hygiene and social functioning; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 12 February 2024 Danny Marinos (the applicant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 January 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 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, 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

The applicant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 20 July 2023 in which he claimed 22% whole person impairment (WPI) in respect of psychiatric and psychological disorders.
In consent orders dated 21 September 2023, Member Wright remitted the matter to the President for referral to a Medical Assessor for assessment of psychological/psychiatric disorder deemed to have occurred on 25 May 2020.
The matter was referred to the Medical Assessor, Dr Himanshu Singh, on 19 January 2024 for assessment of WPI of a psychological/psychiatric disorder with the date of injury being 25 May 2020 (deemed).
The Medical Assessor examined Mr O’Sullivan on 22 November 2023 and assessed 7% WPI for the psychological injury on 25 May 2020.

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 requested that, if necessary, he be re-examined by a Medical Assessor who is a member of the Appeal Panel.
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 there was sufficient evidence on which 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.
The appellant’s submissions include the following:
(a)    the Medical Assessor incorrectly applied the Psychiatric Impairment Rating Scale (PIRS) in a manner that was not open to him, as the assessment diverges from the criteria provided.
(b)    Self care and personal hygiene – in relation to the Medical Assessor’s assessment of the applicant’s ‘Self Care and Personal Hygiene’, the applicant should have been placed into Class 3 based on the history provided to the Medical Assessor and the evidence included in the pleadings provided to the Medical Assessor (medical report of Dr Glen Smith dated 5 November 2022, medical report of Dr Brian Potter dated 25 January 2022, medical report of Dr Brian Potter dated 20 April 2023 and the Applicant’s supplementary statement).
(c)    In the MAC, the Medical Assessor states at page 3, he “finds hard to make his bed and wash his clothes and needs help from mother” and at page 9:
“Mr Marinos showers once or twice a week, it takes him longer to shower as he is thinking about something, looks after self adequately, asks mother to wash his clothes, sometime makes his bed, he may go shopping with his mother, doesn’t cook and needs help from his mother.”
(d)    No reasoning is provided by the Medical Assessor about how he came to a Class 2 impairment. It does not align with the history provided in the Application, Reply or the history provided by the Medical Assessor himself.
(e)    The key difference between a Class 2 and a Class 3 impairment is the ability to live independently without support. The appellant’s day-to-day functioning is clearly dependent on his mother who lives with him on a full-time basis, providing all domestic assistance. The appellant does not shower regularly, clean, cook or wash his own clothes without the assistance of his mother.
(f)    It was not open to the Medical Assessor to make a finding that Class 2 was appropriate, as it is clear Mr Marinos has not been living independently. A Class 3 assessment would be the appropriate assessment of his function.
(g)    Social functioning – the assessment of the Medical Assessor is not appropriate and this should be assessed as a Class 3 impairment.
(h)    The evidence in MAC and remaining evidence is supportive of a Class 3 assessment, with the following references in the material (the applicant’s supplementary statement and the report of Dr Glen Smith dated 5 November 2022).
(i)    Given the above matters, Class 3 is a more appropriate assessment of the Applicant’s psychological functioning.
(j)    Social and recreational activities – the Medical Assessor’s assessment does not align with the evidence provided to him by the applicant or that contained within his MAC (the medical report of Dr Glen Smith dated 17 July 2023),
(k)    Class 3 would be more appropriate, as the applicant had made it clear that he will rarely attend social events, outside of important family events that his family members attend with him.
(l)    Concentration, persistence and pace – the Medical Assessor placed the applicant in Class 2 in relation to this PIRS category. The Medical Assessor makes many references to the significant deficit in concentration throughout his MAC. It is important to note the applicant’s pre-injury level of function was quite high, considering his ability to work and study with no issue.
(m)     Dr Glen Smith indicates that he undertook testing on the applicant’s memory and concentration which revealed a deficit (report dated 15 November 2021). The applicant’s failure in this testing should be sufficient to objectively confirm more than a mild impairment in this area. Dr Potter confirms this position in his report of 25 January 2022.
(n)    with reference to the PIRS scale, a Class 2 mild impairment indicates that the applicant should be able to focus on intellectually demanding tasks for 30 minutes or complete a basic course. There is no evidence to indicate that this would be the case. The applicant cannot read or watch television for more than 10 to 15 minutes, and in particular, he watches the nature channel, a program with no particular plot line in order to relax. This would be considered an intellectually demanding task.
(o)    A Class 2 impairment is not reflective of the applicant’s condition, and in fact, we would submit that Class 3 or even Class 4 would be more appropriate, given the above matters.
(p)    Employability – the Medical Assessor assessed the applicant as having some limited capacity to work. This assessment is inaccurate. It is noted that the applicant has not returned to any employment from his date of injury to date.
(q)    It has been made clear above that the applicant cannot manage his self-care, social relationships, memory, or concentration. This is confirmed by the Medical Assessor, throughout his MAC.
(r)    There is no evidence from any treating or medico-legal assessor that suggests that the applicant has any capacity for employment. Treating doctors who have been seeing the applicant since the injury have not found any capacity to work. Additionally, the medico-legal assessors who have examined the applicant have failed to find a capacity for employment. The Medical Assessor, in his MAC, has been the only doctor to assess the applicant and find any capacity for employment. The Medical Assessor erred in his opinion.
(s)    On this basis, the applicant submits that the grounds of appeal are made out.
Macquarie University’s (the respondent) submissions included the following:
(a)    the appellant’s submissions fail to establish a demonstrable error, because the submissions refer to ‘difference in opinion’ rather than addressing absence of information to support the findings made by the Medical Assessor.
(b)    The evidence supports the Medical Assessor performed an examination and assessment of the appellant using his clinical skills and judgement, recorded his findings on examination and correctly applied the relevant guidelines to assess permanent impairment. The Medical Assessor, as required, provided adequate reasons for his decision in support of the assessment of permanent impairment. Thus, the MAC should not be disturbed.
(c)    The Medical Assessor is not required to follow or adopt the opinions of any of the doctors qualified for the parties. He is not required to refer to each, and every, piece of evidence filed by the parties and provide reasons as to why he did not agree with it.
(d)    In respect of self-care and personal hygiene – the appellant has not given a history of previously living independently and having to move back into the family home with his mother as a result of the injury. There is a difference between the appellant living with his mother, and him living with her with her “acting as a full time carer”. There is no evidence that his mother is “acting as a full time carer” for him due to a psychiatric incapacity. The Medical Assessor noted the appellant was able to shower and look after himself adequately.
(e)    The examples given of the activities falling under the various PIRS categories are precisely that, examples only. It is not necessary for the assessor to satisfied of every nuance of categorisation in a class, in order to assess a worker in a particular class. There was no “glaringly improbable categorisation” made nor was the Medical Assessor unaware of “significant factual matters” for there to be a demonstrable error in him assessing the appellant under Class 2 and not Class 3.
(f)    The Application discloses no “error” which can be demonstrated on the face of the MAC. There is no evidence the appellant cannot live independently and needs prompting to shower and wear clean clothes.
(g)    The Medical Assessor was obliged to arrive at his assessment and ultimate conclusion based on the examination carried out on the day. The Medical Assessor was not obliged to accept or follow the assessment of Dr Smith or any other practitioner. He was required to arrive at his own conclusion based on his clinical judgment and balancing the medical evidence and factual evidence before him.
(h)    The reports from Dr Glen Smith dated 5 November 2022 and Dr Potter dated 25 January 2022 and 20 April 2023 were assessments more than 12 months prior to the Medical Assessor’s examination. The history recorded by the Medical Assessor may well be different from that taken by that of the other doctors who have assessed the appellant due to the passage of time.
(i)    The Medical Assessor did not apply the incorrect criteria in failing to assess the appellant under Class 3 for self-care and personal hygiene and the MAC does not contain a demonstrable error.
(j)    In respect of social functioning, the Medical Assessor assessed the appellant as a Class 2 for social functioning and gave the reasons. The reasoning provided by the Medical Assessor for assessing the applicant fits within Class 2. He describes a good relationship with his mother and friends, and there is no evidence of serve strain in his relationships.
(k)    The Medical Assessor did not apply the incorrect criteria in failing to assess the appellant under Class 3 for social functioning and the MAC does not contain a demonstrable error.
(l)    In respect of social and recreational activities the Medical Assessor assessed the appellant as a Class 2 for social and recreational activities and gave reasons. The Medical Assessor reported the appellant tried to catch up with friends on his own and would attend family events. There is no mention of him needing a support person.
(m)     The Medical Assessor did not apply the incorrect criteria in failing to assess the appellant under Class 3 for social and recreational activities and the MAC does not contain a demonstrable error.
(n)    In respect of concentration, persistence and pace, the Medical Assessor assessed the appellant as a Class 3 and gave reasons. In so far as the appellant did not finish his biochemistry study, there is no evidence this related to the subject injury. It appears that this occurred before he began working with the insured.
(o)    The report of 15 November 2021 from Dr Smith is based on an assessment that was made two years prior to the Medical Assessor’s assessment and his presentation at this time has little bearing on the Medical Assessor’s assessment.
(p)    A Class 4 assessment is inappropriate in the circumstances. There is no evidence the appellant was unable to live alone and had obvious concentration deficits. Similarly, a Class 3 assessment is not the best fit as there is no evidence the appellant was unable to read more than a newspaper article and couldn’t follow instructions. The Medical Assessor noted he was able to read a newspaper and pushed himself to read a chapter of the book. Even at a reduced pace, this would be consistent with a Class 3 assessment.
(q)    In all the circumstances the Medical Assessor did not apply the incorrect criteria in assessing the appellant under Class 2 for concentration, persistence and pace and the MAC does not contain a demonstrable error.
(r)    In respect of employability, the Medical Assessor assessed the appellant as a Class 4 for employability and gave reasons. There is no evidence from a treating doctor or medico-legal assessor that the appellant has a capacity for work. The respondent submits this is not the test for the MA. The appeal submissions disclose no “error” which can be demonstrated on the face of the MAC.
(s) The Medical Assessor did not apply the incorrect criteria when assessing the appellant’s degree of permanent impairment and no ground of appeal is made out pursuant to s 327(3)(c) of the 1998 Act. The MAC does not contain a demonstrable error and no grounds of appeal is made out pursuant to s 327(3)(d) of the 1998 Act.
(t)    The MAC should be confirmed.

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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 the form of the words used in s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

Discussion

PIRS categories

The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
In Ferguson v State of New South Wales & Ors [2017] NSWSC 887, Campbell J stated (at [33]):
“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’.”
Campbell J in dealing with whether there was error in the application of the categories and classes of the PIRS identified the following as relevant:
(a)     was the categorisation glaringly improbable;
(b)     was the Approved Medical Specialist (AMS) unaware of significant factual matters;
(c)     was there a clear misunderstanding by the AMS, and
(d)     was the AMS’s reason process unable to be made out?
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“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…
70.    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.
71.    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…”

In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 (Jenkins) Garling J ultimately observed that the classes in the PIRS were merely examples of activities that indicate an assessable level of disability and significantly that the boundaries between the classes are not “bright line boundaries” (at [62]-[65]). 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.”
In Ballas v Department of Education (State of NSW) [2019] NSWSC 234 8 March 2019 Wright J observed:
“69. ...the PIRS categories are as described in the Guidelines and are to be applied as required by the Guidelines. Because of their generality and the generic nature of the words used and examples given, however, application of the categories in accordance with the Guidelines involves the AMS using his or her professional expertise and judgment in the light of the clinical examination and any relevant history.”
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Self care and personal hygiene

The appellant submitted that he should have been placed into Class 3 based on the history provided to the Medical Assessor and the evidence included in the pleadings provided to the Medical Assessor.
The examples under Table 11.1 for “Self care and personal hygiene” in the Guidelines are:
“Class 2 Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3 Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes.
Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition”.
The Medical Assessor assessed the appellant as Class 2 for self care and personal hygiene. In the PIRS Rating Form, the Medical Assessor wrote:
“Self care and personal hygiene- Class 2
Mr Marinos showers once or twice a week, it takes him longer to shower as he is thinking about something, looks after self adequately, asks mother to wash his clothes, sometime makes his bed, he may go shopping with his mother, doesn’t cook and needs help from his mother.”
Under “History relating to the injury” the medical assessor noted that the appellant had been living with his mother even before the injury.
Under “Present Symptoms” The Medical Assessor noted:
“…has lost 8-9 kilos,
and may eat one or two meals in a day. He finds hard to make his bed and wash his clothes and needs help from mother”.
In a statement dated 26 September 2022, the applicant stated that he continued to suffer from reduced hygiene and relied on his mother to prepare his meals and perform cleaning tasks on his behalf.
Dr Glen Smith, consultant psychiatrist, in his report dated 5 November 2021, assessed a Class 3 providing the following reasons:
“Mr Marinos stated that he showers only twice per week and he noted this as a marked change, ‘I used to shower twice a day’. He has not shaved for several months. His mother prepares meals and performs most of the cleaning duties”.
Dr Brian Potter, consultant psychiatrist, in a report dated 25 March 2022 under current functioning wrote:
“When asked about the domestic duties, including shopping, cooking, cleaning, and washing, he stated ‘my mother does most of it’. Elaborating with a comment ‘I find it difficult to do’ his mother does the cooking. To further inquiry about ‘the difficulty’ he also has difficulty with other domestic duties to which he included “take a shower like big mountain to climb...
When asked about his ability to take care of himself and attend to his own hygiene, following on from the comment “sharing”, he added ‘even brush my teeth’, ‘if I go out, I try to clean myself. If I stay home, not often’...
He described his appetite as ‘low’. He now weighs 75kg and before, after confused information, adding he now weighs 84 or 85kg. And although he has one or two meals a day; he misses meals”.
Dr Potter stated “His history, at the age of 49, is a failing struggle with life, work, and relationships, a reflection in which he now lives with his mother who takes care of the domestic duties.”
The report of Dr Brian Potter dated 20 April 2023 under “Current functioning” stated:
“With the domestic duties, including shopping, cooking, cleaning, and washing, his mother takes care of all. He confirmed that his mother has always taken care of the domestic duties…
When asked about taking care of himself and his own personal hygiene he stated having difficulty about which he gave no understanding other than to state it was a hard task. He showers infrequently and when he doesn’t make his bed his mother helps…
He described not having a big appetite eating one meal a day or maybe two. He stated having lost weight currently weighing 75kg when previously he weighed 82 or 85kg. There was no clarification of a timeframe”.
The appellant argued that there was no reasoning provided by the Medical Assessor about how he came to a Class 2 impairment.
The Medical Assessor expressly stated in the MAC at Part 10 c. that his assessment of WPI which is based on the PIRS ratings is “for the reasons mentioned below in the Table”, that is in Table 11.8: PIRS Rating Form. The Appeal Panel does not accept that there was no reasoning process provided by the Medical Assessor about how he came to a Class 2 impairment for self care and personal hygiene.
The appellant submitted that Class 2 does not align with the history provided in the Application, Reply or the history provided by the Medical Assessor himself.
The appellant submitted that a key difference between a Class 2 and a Class 3 impairment is the ability to live independently without support and the appellant’s day-to-day functioning is clearly dependent on his mother who lives with him on a full-time basis, providing all domestic assistance. The appellant argued that he does not shower regularly, clean, cook or wash his own clothes without the assistance of his mother. The appellant submitted that it was not open to the Medical Assessor to make a finding that Class 2 was appropriate, as it is clear that the appellant has not been living independently and a Class 3 assessment would be the appropriate assessment of his function.
The Appeal Panel notes that the appellant had lived with his mother before the work injury and he told Dr Potter that his mother had always taken care of domestic duties. The Medical Assessor noted that the appellant looks after himself adequately, asks his mother to wash his clothes, sometime makes his bed and he may go shopping with his mother. It is significant that the appellant’s mother had, prior to the injury taken care of domestic duties. On balance, the Appeal Panel does not accept that the evidence supported a greater impairment of self care and personal hygiene.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considers that it was open to the Medical Assessor on the evidence to assess Class 2 for self care and personal hygiene considering the evidence available and the history taken during the assessment by the Medical Assessor.
The Appeal Panel is satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS category of self care and personal hygiene and the assessment in this class is not made on the basis of correct criteria. The categorisation of Class 2 for self care and personal hygiene was not glaringly improbable; the Medical Assessor was not unaware of significant factual matters, there was no clear misunderstanding by the Medical Assessor and his reasoning process was sufficiently clear.

Social functioning

The appellant submitted that the assessment of Class 2 in respect of social functioning is not appropriate and this should be assessed as a Class 3 impairment
The examples under Table 11.4 for “Social functioning” in the Guidelines are:
“Class 2: Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3: Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The Medical Assessor assessed Class 2 in relation to social functioning noting:
“Mr Marinos had girlfriends and few short relationships but never married. He is unable to date now, no interest to date or be in a relationship, good relationship with his mother and she understands him, has good relationship with his friends though finds it difficult to catch up with them.”
Under “Present Symptoms” The Medical Assessor noted: “He has lost interest to date and is not dating anymore.”
In his statement dated 26 September 2022, the appellant stated that he continued to suffer from continuing disabilities including: “Avoidance of friends. I have lost friends due to avoiding them and not making an effort.”
Dr Glen Smith, in his report dated 5 November 2021, assessed a Class 2 for social functioning providing the following reasons:
“Mr Marinos stated the relationship with his mother is reasonable and he noted that ‘she doesn’t get angry with me’. He has lost contact with friends.”
The Medical Assessor’s assessment of Class 2 impairment for social functioning is consistent with assessment of Dr Smith. The Medical Assessor noted that the appellant had no interest dating or being in a relationship but had a good relationship with his mother and also a good relationship with his friends though finds he found it difficult to catch up with them. The Medical Assessor noted that the appellant still attended very important family events and being around his family made him feel comfortable. Dr Smith noted that the appellant had lost contact with friends but still spoke to friends once or twice a month.
On balance, the Appeal Panel does not accept that then evidence supported a greater impairment in social functioning. Although the appellant argued that Class 3 is a more appropriate assessment of the Applicant’s psychological functioning, the Appeal Panel considers that it was open to the Medical Assessor on the evidence to assess Class 2 for social functioning considering the evidence available and the history taken during the assessment by the Medical Assessor. The Medical Assessor provided clear and adequate reasons for assessment of Class 2 for social functioning.
The Appeal Panel is satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS category of social functioning and the assessment in this class is not made on the basis of correct criteria.

Social and recreational activities

The appellant submitted that the Medical Assessor’s assessment of Class 2 does not align with the evidence provided to him by the appellant or that contained within his MAC.
The examples under Table 11.2 for “Social and recreational activities” in the Guidelines are:
“Class 2: Mild impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved (e.g. 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.”
Under “Social activities/ADL” in the MAC, the Medical Assessor wrote: “Mr Marinos used to play tennis and go to the gym 4-5 times a week but not able to do now. He may try to do some home exercise but isn’t motivated anymore and unable to push self to do it.” The only recreational activities identified are that “He spends most of the time in the back yard, and may go and grab a coffee” and there are no social activities identified.
The Medical Assessor assessed the appellant as Class 2 for social and recreational activities. In the PIRS Rating Form, the Medical Assessor wrote:
“Social and recreational activities - Class 2
Mr Marinos doesn’t socialize, has lost contact with lot of friends, finds it difficult to catch up but tries to go out on his own and catch up with a friend on coffee and go for walk. He gets invited by family and friend but may not attend it, pushes self to attend very important family events, being around with family makes him comfortable.”
In a statement dated 26 September 2022, the applicant stated that he continued to suffer from “Avoidance of friends. I have lost friends due to avoiding them and not making an effort.”
Dr Glen Smith, in his report dated 5 November 2021, assessed a Class 3 providing the following reasons:
“Mr Marinos described marked restriction in social and recreational activities and he stated that he avoids his friends due to anxiety. He stated that he speaks to his friends around one to two times per month. He avoids leaving the house because he experiences anxiety in public. He stated that around two days ago he went out to obtain groceries and then he returned immediately. He stated that he tries to ‘force myself’ to go to the park or to go alone for a coffee around once per week. He denied having any hobbies. He stated that he previously enjoyed playing tennis but he no longer engages in that activity. He is not a member of any clubs or associations”.
In his report dated 17 July 2023, Dr Smith noted:
“He previously enjoyed going to the gym and playing tennis but withdrew from those activities due to his anxiety and depressive symptoms and associated reduced interest and enjoyment of activities…”
Dr Potter, in his report dated 25 March 2022, at page 4, noted “He has no activities. He used to play tennis and go to German. He stopped doing these “more than 18 months”. Dr Potter wrote:
“He does have contact with a friend over coffee giving the frequency of ‘once or twice since December’. Although difficult to follow he appeared to describe an atmosphere with his friend of not feeling pressured, not needing to be focused or be involved in conversation. He added spontaneously ‘just want to be home’.
He stated having no interests or hobbies. Although with no clarification he referred to what he was interested in or that he is currently involved in, describing ‘tennis. Gym. Read book. And socially a little bit’.
When asked about his relationship with family he replied ‘yeah’. He referred to his mother with whom he has lived for 10 years or more. He includes in family, cousins.
He described ‘no problems. Fine. Treat me good’.
His relationship with his friends is ‘generally good. Feel good people’. With further enquiry about his contact with friends, reflecting the previous history provided, he added ‘didn’t’, ‘recently’, ‘some contact me. Never remember contact’”.
The appellant submitted that Class 3 would be more appropriate, as the applicant had made it clear that he will rarely attend social events, outside of important family events that his family members attend with him.
The Appeal Panel reviewed the evidence. The appellant had stopped going to the gym and playing tennis. The Medical Assessor noted that the appellant doesn’t socialize and has lost contact with a lot of friends. The Medical Assessor noted that the appellant finds it difficult to catch up with friends but tries to go out on his own and catch up with a friend for coffee. The Assessor does not identify if he actually does as opposed to “try” and do this, The Medical Assessor noted that the appellant may not accept invitations from friends and family unless it is a very important family event. The Appeal Panel considers that the descriptors provided in Table 11.8 by the Medical Assessor were Class 3 descriptors. Therefore, the Appeal Panel considers that the reasoning process for assessing the appellant as class 2 in this category was unable to be made out and improbable. The Appeal Panel considers that the appellant should be rated as Class 3 for social and recreational activities.
The Appeal Panel considers that the Medical Assessor fell into error when assessing
the appellant as class 2 in the category of social and recreational activities and the assessment in this class was made on the basis of incorrect criteria.

Concentration, persistence and pace

The appellant submitted that a Class 2 impairment is not reflective of the appellant’s condition, and that Class 3 or even Class 4 would be more appropriate,
The examples under Table 11.5 for “Concentration, persistence and pace” in the Guidelines are:
“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 (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
Class 4: Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.”
Under “Present symptoms” the Medical Assessor wrote:
“He can’t focus and concentrate, unable to read and unable to watch TV for long periods of time.”
Under “Personal History” in the MAC, the Medical Assessor noted:
“Mr Marinos finished high school, in university he didn’t finish biochemistry, finished management and business, and was studying when he was working in Macquarie. Since the injury he finds it difficult to get back to study.”
Under “Findings on mental state examination”, the Medical Assessor noted: “He struggles to focus and reports poor levels of concentration”.
The Medical Assessor assessed class 2 in relation to concentration, persistence and pace noting:
“Mr Marinos used to read books but can’t read a chapter and difficult to concentrate, can only read few pages and then stop, tries to read at least one chapter and then his mind wanders and finds it tiring as well. He may watch TV, mainly nature channels and it helps him to relax for 10-15 mins”.
In his statement dated 26 September 2022, the appellant stated that he continued to suffer from: “Difficulties with decision making, thinking, and organising my thoughts and affairs”.
Dr Smith, in his report dated 5 November 2021, assessed a Class 3 providing the following reasons:
“Mr Marinos described marked difficulties with decision making, focus and concentration and he needs to write lists to remind himself of what he plans to do. He does not read due to poor concentration. He performed poorly on simple tests of memory and concentration”.
Dr Potter, in his report dated 25 March 2022, noted: “He added to the usual response to the inquiry stating ‘stay in the backyard. A bit of music. Try to read a book. Struggle. Don’t remember much’”.
Dr Potter wrote:
“He stated having difficulty with his memory and concentration. He detailed ‘difficulty remembering what I used to remember’. He gave difficult to follow information referring to an App.
When asked about his occasional reference to reading he stated ‘do. Did look, two to three days. Changed to new day or forget’. Although unclear, and not clarified, he appeared to be referring to the app.
When asked about his ability to follow the storyline and recall a story when watching TV or engaged with the internet he referred to music detailing ‘classic and the 80s’.
Although unclear he appears to use music to help meditate, to help relax.
When again specifically asking about television he described ‘sometimes’ ‘can’t sleep so late at night’. He watches documentaries”.

The appellant submitted that it is important to note the appellant’s pre-injury level of function was quite high, considering his ability to work and study with no issue and the testing by Dr Smith of the appellant’s memory and concentration revealed a deficit sufficient to objectively confirm more than a mild impairment in this area.
The appellant submitted that a Class 2 mild impairment indicates that the appellant should be able to focus on intellectually demanding tasks for 30 minutes or complete a basic course but there is no evidence to indicate that this would be the case. The appellant noted that he cannot read or watch television for more than 10 to 15 minutes, and watches the nature channel, a program with no particular plot line in order to relax which would not be considered an intellectually demanding task.
The Appeal Panel reviewed the evidence. The Medical Assessor noted in the descriptors in Table 11.8 that the appellant had used to read books but can’t read a chapter, finds it difficult to concentrate, so only reads a few pages and then stops, but tries to read at least one chapter but then his mind wanders and he finds it tiring as well. The Medical Assessor noted that the appellant may watch TV, mainly nature channels and this helps him to relax for
10-15 mins. Under “Findings on mental state examination”, the Medical Assessor noted: “He struggles to focus and reports poor levels of concentration”.
Based on the description of the worker consistently recorded by the Medical Assessor, the Appeal Panel concludes that the appellant was not able to focus on intellectually demanding tasks for more than 15 minutes, or read a chapter, and struggled to focus. The Appeal Panel considers that the descriptors provided in Table 11.8 by the Medical Assessor were, in the main, Class 3 descriptors. Therefore, the Appeal Panel considers that the reasoning process for assessing the appellant as class 2 in this category is unable to be made out and the descriptors and mental state examination support a rating of Class 3 for concentration, persistence and pace.
The Appeal Panel considers that the Medical Assessor fell into error when assessing
the appellant as class 2 in the category of concentration, persistence and pace and the assessment in this class was made on the basis of correct criteria.

Employability

The appellant submitted that the Medical Assessor was the only doctor to assess the appellant who found any capacity for employment and he erred in his opinion.
The examples under Table 11.6 for “Employability” in the Guidelines are:
“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.”
The Medical Assessor assessed the appellant as Class 4 for employability. In the PIRS Rating Form, the Medical Assessor wrote:
“Employability - Class 4.
Mr Marinos has fear of working and having a manager again. His heart races when he thinks of work, has not done RTW program, it’s hard to think about it, and is anxious to be around people. He can’t work more than 1-2 days at a time and less than 20 hours per fortnight.”
Dr Glen Smith, in his report dated 5 November 2021, assessed a Class 5 providing the following reasons:
“Mr Marinos stated that he has not worked in any capacity since around May 2020 and he has not engaged in any retraining or study. He presented as unfit for employment due to her(sic) anxiety and depressive symptoms with associated marked anxiety, agoraphobia and cognitive impairments”.
The appellant noted that the Medical Assessor assessed the appellant as having some limited capacity to work and submitted that this assessment is inaccurate. The appellant noted that he has not returned to any employment from his date of injury to date.
The appellant argued that it was clear that he could not manage his self-care, social relationships, memory, or concentration and this is confirmed by the Medical Assessor, throughout his MAC, especially at page 2, which states “Mr Marinos hasn’t worked since May - June 2020, he hasn’t worked elsewhere and hasn’t indulged in studies as well.”
The appellant noted that there is no evidence from any treating or medico-legal assessor that suggests that he has any capacity for employment. The appellant noted that treating doctors, who have been seeing the appellant since the injury, have not found any capacity to work and Dr Smith failed to find a capacity for employment.
The Appeal Panel reviewed the evidence. The Medical Assessor noted in the descriptors in Table 11.8 that the appellant has a fear of working and having a manager again. The Medical Assessor noted that “his heart races when he thinks of work” and he was anxious to be around people again. The appellant has not done a Return to Work (RTW) program and said it was “hard to think about it”.
The Appeal Panel considered that in a situation where the appellant had a fear of work and his heart races when he thought of work, he had no real capacity for work. Further, the appellant has not engaged in any vocational activities at all since his injury and performs only minimal chores around his home. No other medical practitioner has considered over the last couple of years that the appellant has any capacity for work. Taking these factors into account, the Appeal Panel concluded that the appellant is totally impaired in scale of employability.
Therefore, the Appeal Panel considers that the reasoning process for assessing the appellant as Class 4 in this category was unable to be made out. There was no evidence either in the evidence or the mental state assessment to support the Medical Assessor’s conclusion that the appellant had some capacity for employment, but that “He can’t work more than 1-2 days at a time and less than 20 hours per fortnight”. The descriptors and mental state examination supported a rating of Class 5 for employability.
The Appeal Panel considers that the Medical Assessor fell into error when assessing
the appellant as Class 4 in the category of employability and the assessment in this class was made on the basis of correct criteria.
The Appeal Panel was satisfied that the assessments of Class 2 for social and recreational activities, Class 2 for concentration, persistence and pace and Class 4 for employability could not be supported by the evidence. The Appeal Panel assesses the appellant as Class 3 for social and recreational activities, Class 3 concentration, persistence and pace and Class 5 for employability.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS categories of self care and personal hygiene and social functioning.
The Appeal Panel finds that the PIRS scales score 2 3 2 2 3 5, ascending order 2 2 2 3 3 5, median 2, aggregate 17 so that the final WPI = 19%.
For these reasons, the Appeal Panel has determined that the MAC issued on
16 January 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W5257/23
Applicant:	Danny Marinos
Respondent:	Macquarie University

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 Himanshu Singh 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 WorkCover Guides	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)
1.Psychological Injury	25/05/2020 (deemed)	Chapter 11 11.1-11.3, 11.4-11.6	19%	Nil	19%
Total % WPI (the Combined Table values of all sub-totals)					19%

[2024] NSWPICMP 222

15 April 2024