Marsters v YP Space MNC Incorporated
[2025] NSWPICMP 186
•20 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Marsters v YP Space MNC Incorporated [2025] NSWPICMP 186 |
| APPELLANT: | Ramona Marsters |
| RESPONDENT: | YP Space MNC Incorporated |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 20 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Assessment of primary psychiatric injury; appellant worker alleged assessment on basis of incorrect criteria and demonstrable error in assessment of all six of the psychiatric impairment rating scales (PIRS); Held – Appeal Panel found error made out in five of the six PIRS; worker re-examined; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 December 2024 Ramona Marsters (the appellant) 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
22 November 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 27 September 2024 in which she claimed 26% whole person impairment (WPI) in respect of a psychiatric and psychological disorder as a result of an injury in her employment with YP Space MNC Incorporated (the respondent).
The matter was referred to the Medical Assessor, Dr Gupta, for assessment of WPI of a psychological/psychiatric disorder with the date of injury being 30 October 2020.
The Medical Assessor examined the appellant on 13 November 2024 and assessed 6% WPI for the psychological injury on 30 October 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 she 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 there was an error in the MAC and it was necessary for the worker to undergo a further medical examination because there was insufficient 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.
Further medical examination
Dr Graham Blom of the Appeal Panel conducted an examination of the worker on
14 March 2025 and reported to the Appeal Panel.
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 erred in his assessments under the following categories of the psychiatric impairment rating scale (PIRS) (a) self-care and personal
hygiene ;(b) social and recreational activities; (c) trave;l (d) social functioning; (e) concentration, persistence and pace, and (f) employability. The Medical Assessor’s assessment involved a demonstrable error and was made on the basis of incorrect criteria.(b) Self-care and personal hygiene - the Medical Assessor assessed class 2 for self-care and personal hygiene.
(c) The following evidence supports an assessment of class 3: hospital notes dated 29 April 2022, appellant’s statement (ARD, page 2, paragraph 21), Dr Gertler’s report dated 27 June 2023, Dr Malek’s report dated 18 December 2023, and the MAC, page 4.
(d) The appellant submits the Medical Assessor’s assessment of class 2 is a material demonstrable error which is evident on the face of the MAC.
(e) Social and recreational activities - the Medical Assessor assessed class 2 for social and recreational activities.
(f) The following evidence supports an assessment of class 3: Allan Anderson’s report dated 14 December 2021, hospital “General Notes” dated
15 March 2022 and 29 April 2022, Dr Tadrous’s notes dated 26 October 2022, Allied Health Recovery Request No. 4 dated 11 November 2022, Dr Malik’s report dated 2 December 2022, and Dr Gertler’s report.(g) Social functioning - the Medical Assessor assessed class 2 for social functioning.
(h) The following evidence supports an assessment of class 4: hospital notes dated 29 April 2022, the Personality Assessment Inventory dated 1 July 2022, discharge referral notes dated 21 November 2022, the appellant’s statement,
Dr Gertler’s report, hospital notes dated 14 November 2023, and Dr Malek’s report dated 18 December 2023.(i) The Medical Assessor’s assessment of class 2 is a material demonstrable error which is evident on the face of the MAC.
(j) Travel - the Medical Assessor assessed class 2 for travel.
(k) Dr Gertler’s report dated 27 June 2023 supports an assessment of class 3 as he noted she “Can only leave home if accompanied and even then, is anxious when doing so.”
(l) Concentration, persistence and pace - the Medical Assessor assessed class 2 for concentration, persistence and pace.
(m) The following evidence supports an assessment of class 3: Dr Pea’s report dated 19 May 2021, Dr Teoh’s report dated 31 March 2022, hospital notes dated
29 April 2022, the Personality Assessment Inventory dated 1 July 2022, appellant’s statement, Dr Gertler’s report and Dr Malek’s report dated
18 December 2023.(n) Employability - the Medical Assessor assessed class 3 for employability.
(o) There is no evidence that the appellant can work even in a limited capacity. The following evidence supports an assessment of class 5: appellant’s statement,
Dr Gertler’s report, Dr Teoh’s report dated 31 March 2022, Dr Malek’s report dated 2 December 2022, Dr Malek’s report dated 18 December 2023, Dr Malek’s report dated 28 May 2024 and the certificates of capacity from 1 February 2021 certify her unfit except for a short period in August/September 2022.(p) This application be referred to a Medical Appeal Panel (MAP) for her to be re-examined and correctly assessed for impairment as a result of her psychological injury. In the alternative, the appeal could be considered on the basis of the written application and notice of opposition.
The respondent’s submissions included the following:
(a) In Ferguson v New South Wales [2017] NSWSC 887, the Supreme Court of NSW gave an indication and guideline as to what considerations are necessary for a section 327(2)(d) appeal: (a) Intervention justified if categorisation was glaringly improbable, and/or (b) If it could be demonstrated that the MA was unaware of the significant factual matters, and/or (c) If a clear misunderstanding could be demonstrated, and/or (d) If an unsupportable reasoning process could be made out. Moreover, the error, in a statutory sense, needs to be more than a difference of opinion.
(b) The appellant essentially submits that the Medical Assessor erred in not basing his assessment on how the worker presented ‘on the day’. The appellant relied heavily on the report of Dr Gertler, the hospital notes dated 29 April 2022, the appellant’s statement, report of Dr Malek dated 18 December 2023 and the report of Dr Gertler assessing the worker as class 3.
(c) The findings during examination as follows: (a) The Medical Assessor stated the worker manages her nausea by eating frequent tiny meals; (b) Her brother cooks for her and feeds her; (c) The worker stated she gained a lot of weight in her first year of treatment and decided to limit her food in the last three months; (d) She takes medication regularly; and (e) She struggles with brushing her teeth, however, has been getting her teeth professionally cleaned.
(d) The Medical Assessor has recorded the appellant’s presentation on page 4 and provided reasoning for his assessment on page 11 of the MAC. He has explained the actual path or reasoning in sufficient detail, as required. No demonstrable error in this respect has been identified nor made out.
(e) Social and recreational activities - “Social and recreational activities” are directed to the kind of activities that involve interactions with other people, whilst the issue of ability to maintain relationships is relevant to the Class of “social functioning” not “social and recreational activities”. In assessing the functional impairment associated with social and recreational activities, the Medical Assessor recorded the appellant engaging in a variety of social and recreational activities including: attending the beach with family, attending restaurants with her family, liking to spend time with friends who visit her, being active on Tinder (social media app for meeting people), going out driving at night time once a month, sometimes goes on walks on her own, having her brother teach her how to surf and liking to read short stories.
(f) The Medical Assessor provided a detailed history of the appellant’s current social and recreational activities at page 4 of the MAC, which supports a class 2 impairment assessment. The Medical Assessor also provided reasoning on page 11 for social and recreational activities and reviewed the evidence relied on in the ARD and had taken it into account when making his assessment.
(g) It was open to the Medical Assessor to make his findings based on the detailed history recorded ‘on the day’ and supporting evidence. The Medical Assessor has recorded an extensive history from the appellant and provided detailed reasoning for his assessment. He has explained the actual path or reasoning in sufficient detail, as required. Therefore, no demonstrable error in this respect has been identified nor made out.
(h) Social functioning - a Class 2 impairment is the most appropriate assessment having regard to the examples. Regard must be had to paragraph 1.6 of the Guidelines which confirms that “assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available medical information…”. The Medical Assessor did this.
(i) The appellant reported engaging in a variety of social functioning to the Medical Assessor, namely, speaks to people on Tinder, lives with her brother and gets on very well with him; the relationship with her parents is very good, she made one friend recently, she chats with her friend and she drops in occasionally, she goes with her brother, sister and her parents for outings and her brother is teaching her to surf.
(j) The Medical Assessor opined the breakdown of her long term relationship was related to promiscuous behaviour that she engaged in while suffering a manic episode, which is unrelated to the accepted injury. The appellant described her relationship with her family as very good and confirmed she is active on Tinder, which is a social media site designed for online dating and to meet and chat with new people.
(k) The Medical Assessor has recorded an extensive history from the appellant and provided detailed reasoning for his assessment. He has explained the actual path or reasoning in sufficient detail, as required. No demonstrable error in this respect has been identified nor made out.
(l) Travel - the appellant reported engaging in a variety of travel to the Medical Assessor, including being able to drive in her local area, being able to go out on her own, although not often, being able to go out for walks and can use public transport if accompanied.
(m) In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633, Garling J at [73]: “…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.”
(n) there is no support in the appellant’s submissions that the Medical Assessor made his determination of a Class 2 assessment based on incorrect criteria. The respondent submits it was open to the Medical Assessor to make his findings based on the detailed history recorded ‘on the day’ and supporting evidence.
(o) Concentration, persistence and pace – the appellant told the Medical Assessor that her brother is teaching her how to surf, she likes to read short stories and the Medical Assessor considered she could focus for the entire duration of the assessment and there was no evidence of loss of cognition.
(p) The Medical Assessor need not supply detailed reasoning, as long as the reasons are sufficient so as to justify the assessment undertaken. That is what the Medical Assessor did.
(q) Employability - it is not apparent how the Medical Assessor has fallen into error. The fact that the appellant maintains that she is totally incapacitated as a result of a psychological injury, is not to be determinative of her fitness for work (Southern Metropolitan Cemetries Trust [2015] NSWWCCPD 56).
(r) The assessment offered by the Medical Assessor is ultimately offered under appropriate clinical judgment for which the Medical Assessor has provided an adequate explanation.
(s) The appellant has not successfully established that the MAC discloses:
(i) if the categorisation was glaringly improbable;
(ii) if it could be demonstrated that the Medical Assessor was unaware of significant factual matters;
(iii) if a clear misunderstanding could be demonstrated;
(iv) if an unsupportable reasoning process could be made out;
(v) how the Medical Assessor has expressed more than a difference of opinion in expressing his clinical judgment; or
(vi) how his application of clinical judgment to PIRS does not conform or is inconsistent with the PIRS, allowing for examples supplied at Table 11.2 and Table 11.4 being general indicators in any event.
(t) The MAC ought to 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
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 the evidence supports an assessment of class 3 for self-care and personal hygiene.
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
As described in the main body of the report, there is mild impairment. She needs to be prompted to eat and struggles to maintain her hygiene. However, she gets her teeth professionally cleaned and takes her medications regularly, which demonstrates that she is engaged in self-care activities.”Under “Social activities/ADL” the Medical Assessor wrote:
“She says that she is trying to manage her nausea by eating frequent tiny meals. She says that her brother cooks for her and feeds her. She takes her medications regularly. She says that she needs prompting to shower. She says that she usually showers twice per week. She says she has a ‘constant battle’ to wash her face and brush her teeth. She has been getting her teeth professionally cleaned; the last one was two months ago.”
In her statement dated 27 September 2024, the appellant stated: “I struggle to get out of bed each day and often forget to shower or change my clothes.”
Dr Robert Gertler, consultant psychiatrist, in a report dated 27 June 2023, assessed a class 3 for self care and personal hygiene providing the following reasons:
“Neglects self-care, requiring encouragement to dress and shower. Will spend extended periods in bed. Could not live independently, requiring meals to be provided for her.”
Dr Gertler noted that the appellant described an erratic sleep pattern with occasional nightmares, and she required medication to assist with sleep. He wrote: “Her appetite has improved. She had lost some 20 kilograms in weight and has now regained much of this”.
Dr Gertler noted that the appellant “now spends much of her time at home. She finds it difficult to get out of bed before noon and when she does, needs prompting to do so, as well as to dress and shower”.Dr Gertler reported that the appellant had pets but is unable to care for them. He noted that she required meals to be provided by her sister and ex-partner. Dr Gertler noted that the appellant presented as casually dressed but somewhat dishevelled. Dr Gertler’s stated that the appellant had difficulty even coping with the activities of daily living and attending to her self-care and personal hygiene.
In a report dated 18 December 2023, Dr Malik assessed a class 2 for self care and personal hygiene providing the following reasons:
“Some self-neglect, not showering regularly and or brushing teeth, sister does the
cooking and house chores, she tells me she has not lived independently since her
injury.”
Dr Malek noted:
“Ms Marsters tells me her routine is that some weeks she struggles to get out of bed so she sleeps till midday, described it as broken sleep and ‘full of nightmares’, when she wakes up she is tired, ‘does nothing’, sits in her lounge or in her bed, fights with herself to get up and do something, times when she doesn’t sleep at all and this is when she is up at 4am, and then crashes and wakes up around 11ish, rarely goes to local shops and only when she has her sister with her.”
In the Kempsey Community Mental Health notes dated 30 June 2022, registered nurse Gunasehar recorded: “Ramona has brought her sister to live in and help”.
The appellant submits that the evidence supports an assessment of class 3 for self-care and personal hygiene.
The Appeal Panel considers that a key difference between a Class 2 and a Class 3 impairment is the ability to live independently without support. In our view, the evidence including Medical Assessor’s report that the appellant’s brother cooks for her and feeds her and she is prompted to shower, and battles to wash her face and brush her teeth does not suggest that the appellant can live independently.
The Appeal Panel considered that the Medical Assessor did not adequately address the evidence and the needs of the appellant. The Appeal Panel is satisfied that the reasoning process for assessing the appellant as Class 2 for self care and personal hygiene is not sufficiently clear and is unable to be made out.
The Appeal Panel is satisfied that there is a demonstrable error in the MAC in relation to the ratings in the PIRS category of self care and personal hygiene.
Social and recreational activities
The appellant submits that the evidence supports an assessment of class 3 for social and recreational activities.
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.”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
As described in the main body of the report, there is mild impairment. She goes to the beach and to restaurants with her family when she is feeling well. She can go out on her own but that is not often. She likes spending time with her friend who visits her. She struggles to meet new people but is active on Tinder.”Under “Social Activities/ADL” the Medical Assessor wrote:
“She says she has “bouts” of being able to go out of the house. She says that she goes to the beach when it is not busy. She does not go out on her own. She can go to a restaurant but “very rarely and only when it is not busy and she is feeling safe…She goes with her brother, sister and parents for outings.”
The appellant in her statement dated 27 September 2024, stated that she avoided going out of the house.
Dr Robert Gertler, consultant psychiatrist, in a report dated 27 June 2023 assessed a Class 3 for social and recreational activities providing the following reasons:
“Has lost all interest in previous social and recreational activities.”
Dr Gertler stated:
“She otherwise has no contact with previous friends and no involvement in recreational activities such as soccer.” He expressed the opinion that the appellant was suffering from a major depressive disorder, characterised by marked social withdrawal, a lack of motivation and interest in pursuing previous social and recreational activities. He noted that the appellant’s activities of daily living were seriously impacted by her need to “isolate, to avoid contact with others, and to require significant support from her sister and ex-partner with whom she lives.”
In a report dated 2 December 2022, Dr Malik noted the appellant told him that she had ongoing anxiety and struggled to go out in public.
In a report dated 18 December 2023, Dr Malik assessed a Class 3 for social and recreational activities providing the following reasons:
“Much reduced, withdrawn from friendship groups, she tells me she is not actively participating in any social and or recreational activities”.
In a report dated 14 December 2021, Mr Allan Anderson, treating psychologist, diagnosed the applicant with “major depressive disorder and panic disorder with agoraphobia”.
The Kempsey District Hospital notes include various entries concerning the appellant not leaving her house. On 15 March 2022, Dr Egan noted “onset of severe anxiety, panic attacks. Reports hasn’t left the house for weeks”. On 29 April 2022 Dr Pea noted “.... also worsening social anxiety – not wanting to leave house, withdrawn.”
Dr Gerges Tadrous, the appellant’s general practitioner, in his notes dated 26 October 2022, stated “don’t want to leave house…”
The Allied Health Recovery Request No. 4 from Mr Anderson dated 11 November 2022 stated: “The depression she is suffering from is still very much in evidence, she finds it very hard to leave the house and socialise and she does have panic attacks”.
The Appeal Panel noted that both Dr Malik and Dr Gertler assessed a Class 3 for social and recreational activities.
The appellant submits that the evidence supports an assessment of class 3 for social and recreational activities.
The Appeal Panel notes that appellant told the Medical Assessor that she does not go out on her own which indicates a moderate impairment in this class. The Appeal Panel accept that the appellant told the Medical Assessor that she could go for a walk on her own, but the Appeal Panel is satisfied that she does require a support person when she goes to social events.
The Appeal Panel considers that the history and descriptors in the MAC are inconsistent with a Class 2 rating in this category. The Appeal Panel noted that there was an inconsistency in the MAC in that the Medical Assessor was told by the appellant that she did not go out on her own but then in his reasons in Table 11.8 wrote “She can go out on her own but that is not often.” In these circumstances, the Appeal Panel is satisfied that the reasoning process was not sufficiently clear and there was a demonstrable error in relation to the ratings in the PIRS category of social and recreational activities.
Travel
The appellant submits that the evidence supports an assessment of Class 3 for travel.
The examples under Table 11. 3 for “Travel” in the Guidelines are:
“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.”Clause 11.11 of the Guidelines classified travel as an activity of daily living.
The Medical Assessor assessed the appellant as class 2 for travel. In the PIRS Rating Form, the Medical Assessor wrote:
“Travel - Class 2
As described in the main body of the report, there is mild impairment. She only drives in her local area. She can go out on walks and can use public transport if accompanied.”Under “Social Activities/ADL” the Medical Assessor wrote:
“She then stated that she does not make any trips on her own. She drives but “rarely’ and goes out driving around her block in the night. This happens once a month. She sometimes goes out on walks on her own as well...She says that there are times when she is fine with getting on public transport. She goes with her brother, sister and her parents for outings.”
Dr Robert Gertler, consultant psychiatrist, in a report dated 27 June 2023 assessed a Class 3 for travel. He provided the following reasons: “Can only leave home if accompanied and even then is anxious when doing so.”
In a report dated 18 December 2023, Dr Malik assessed a Class 2 for travel. He provided the following reasons:
“Able to drive although she tells me she drives rarely, went to Sydney to live with parents while sister was away, this was around end of August 2023 and was there for about 3 weeks, she tells me she struggled with that trip. Rarely leaves home without a support person and that is also only to local places.”
The appellant submitted that evidence supports an assessment of Class 3 for travel.
The Appeal Panel noted that Dr Gertler assessed a class 3 for travel while Dr Malik assessed class 2 for travel.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel agreed with the Medical Assessor with an assessment of class 2 for travel. The appellant can occasionally leave her home by herself for a walk and can drive in her local area. The fact that the appellant did not like to leave home and was anxious did not detract from the fact that she was capable of going out on her own and did so in her local area.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS category of travel and the assessment in this class was not made on the basis of incorrect criteria.
Social functioning
The appellant submitted that the evidence supports an assessment of Class 4 for social functioning.
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.
Class 4: severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parents).”The Medical Assessor assessed class 2 in relation to social functioning noting:
“As described in the main body of the report, there is mild impairment. Her long-term relationship ended after the injury, but that was related to promiscuous behaviour that she engaged in while suffering a manic episode, which is unrelated to the accepted injury. She has made a new friend and remains close to her family.”
Under “History relating to the injury” the Medical Assessor noted:
“She says that in the first year of treatment, she was put on an antidepressant and she ‘switched into a manic episode’. This lasted three months and she described that she developed an obsession with sex. She used to go out and find anyone to have sex with despite being in a relationship. She then overdosed on the sleeping tablets. She says that she was diagnosed with bipolar illness and her medication was altered, which helped her ‘come down’.”
Under “Social activities/ADL” the Medical Assessor wrote:
“Ms Marsters is single at present and does not have any children. She was in a relationship at the time of the injury. She had been with her partner for eight years when she was injured. She says that her mental and physical health deteriorated after the injury and her relationship ‘failed’. However, she later described a period of hypersexuality when she was having heterosexual sex despite being in a same-sex relationship owing to a manic episode, which led to the breakdown. She has not been able to start another relationship since. She says that she does not go out and does not like to meet people. She speaks to people on Tinder but says she manages that as she is ‘hiding behind an PI’. She says that she does not meet people physically.
She lives with her brother and gets on ‘very well’ with him. She says that her relationship with her parents is ‘very good’. She says that she has made one friend recently. She chats to her friend and says that she drops in occasionally.”In her statement dated 27 September 2024, the appellant stated:
“I avoid going out of the house and don’t see any of my friends anymore. I feel as though if I see someone I might say the wrong thing and can’t cope with people looking at me.”
Dr Robert Gertler, consultant psychiatrist, in a report dated 27 June 2023 assessed a class 4 for social functioning providing the following reasons:
“Relationship of 11 years has ended because of Ms Marster’s emotional state. Has lost contact with friends.”
Dr Gertler wrote: “She has lost her self-confidence, is socially quite withdrawn, and ‘can’t stand people looking at me’. She has issues with trust so that, in any interaction, she fears she is going to ‘say the wrong thing’”.
Dr Gertler noted that the appellant had been in a relationship for approximately 11 years, but that ended two months ago because of difficulties arising from the appellant’s emotional state. He noted that although her ex-partner still lives in the same residence, the relationship had ended. Dr Gertler reported: “Ms Marsters’ activities of daily living are seriously impacted by her need to isolate, to avoid contact with others, and to require significant support from her sister and ex-partner with whom she lives.”
In a report dated 18 December 2023, Dr Malik assessed a Class 3 for social functioning providing the following reasons:
“Strain in existing relationships, taking a break from partner, doesn’t speak that often, were drifting apart so decided to take a break, relationship with sister is okay but strained with parents, doesn’t talk that often.”
Dr Malek’s report noted that the appellant told him that had started having suicidal ideations and was admitted to mental health a few weeks ago. He noted that she had attempted and was in Kempsey mental health unit for about a week. He wrote: “…she tells me she took overdose of olanzapine and sertraline, she tells me she was planning it for few months, that day she had a fight with her partner and was so low that she took the overdose.”
The appellant referred to the notes from Kempsey District Hospital. The notes dated
29 April 2022 recorded: “outbursts occurring mainly around those close to her (here with partner, Joanie) has thrown tools at her”.In the Kempsey Community Mental Health notes dated 30 June 2022, registered nurse Gunasehar recorded: “Ramona said that she does not get on well with her family as they do not understand her mental health issues.”
In the Kempsey Community Mental Health notes dated 30 June 2022, Dr Chongo Charles Mambwe recorded:
“She was trialled on Escitalopram and Mirtazepine and says with increasing suicidality. Says when she was switched from Mirtazepine to Sodium Valproate she went into mania as she could not sleep, became hyperactive, had excessive energy and became sexually disinhibited with very high libido.”
The Appeal Panel noted that Dr Gertler assessed class 4 for social functioning while Dr Malik assessed class 3 for social functioning.
The Medical Assessor assessed class 2 for social functioning noting that the appellant’s long-term relationship ended after the injury, but “that was related to promiscuous behaviour that she engaged in while suffering a manic episode, which is unrelated to the accepted injury”. He reported that she made a new friend and remained close to her family.
The Medical Assessor took a history of the appellant being put on a new antidepressant and then she “switched into a manic episode”. This episode lasted three months and she developed an obsession with sex, causing the relationship with her partner to break down. The Appeal Panel noted the Medical Assessor failed to take into account that a known side effect of such a change in antidepressant medication is manic episodes and therefore this promiscuous behaviour may be causally connected to treatment provided for the work injury. The Appeal Panel finds that the reasoning process was not sufficiently clear in the assessment of social functioning.
The Appeal Panel is satisfied that there is a demonstrable error in the MAC in relation to the ratings in the PIRS category of social functioning.
Concentration, persistence and pace
The appellant submitted that the evidence supports an assessment of class 3 for concentration, persistence and pace.
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.”The Medical Assessor assessed the appellant as Class 2 for concentration, persistence and pace. In the PIRS rating form, the Medical Assessor wrote:
“Concentration, persistence and pace - Class 2.
As described in the main body of the report, there is mild impairment. She describes reduced concentration and memory. She considers herself a dangerous driver owing to a lack of focus. However, she could focus for the entire duration of the assessment and
there was no evidence of loss of cognition.”Under “Social Activities /ADL” the Medical Assessor wrote:
“She says she likes to read short stories but struggles with concentration. She says her brother is teaching her to surf, which she enjoys. She says that her memory is normal fifty percent of the time, but she misplaces things and forgets what she might have done the previous night.”
In his statement dated 27 September 2024, the appellant stated: “I used to love reading, but now I can’t concentration, and don’t read as I can’t remember if I do.”
Dr Robert Gertler, consultant psychiatrist, in a report dated 27 June 2023 assessed a class 2, assessed a class 3 for concentration, persistence and pace providing the following reasons:
“Subjective difficulties with concentration and memory. Is no longer an avid reader.”
In a report dated 18 December 2023, Dr Malik assessed a class 3 for concentration, persistence and pace providing the following reasons:
“Poor concentration and memory, she tells me she finds it hard to focus, times when
people talking to her and she doesn’t comprehend, I am so stuck in my head,
struggles to read a book or watch television, cannot focus for than few minutes at one time.”In a report dated 22 July 2022, Dr Stephanie Rowland, wrote: “Her main concern is her lack of energy and concentration during the day…”
The Appeal Panel noted that the Medical Assessor failed to include a proper report of his mental state examination in the MAC. There is insufficient detail provided in relation to this scale.
The Appeal Panel considered that all of the evidence apart from the ability to focus in the interview indicated a class 3 rating for concentration, persistence and pace.
Dr Gertler assessed class 2 for concentration, persistence and pace, while Dr Malik assessed class 3.
Dr Teoh, treating psychiatrist, in a report dated 31 March 2022 took the following history: “She has been irritable, impulsive and struggling with her concentration.”
In the Personality Assessment Inventory dated 1 July 2022, Dr Leslie Morey stated:
“Her thought processes are likely to be marked by confusion, distractibility and difficulty concentrating, and she may experience her thoughts as being somehow blocked and disrupted.”
The appellant submits that the evidence supports an assessment of class 3 for concentration, persistence and pace.
The Medical Assessor noted that the appellant described reduced concentration and memory and considered herself a dangerous driver owing to a lack of focus. The Medical Assessor then stated that the appellant could focus for the entire duration of the assessment and there was no evidence of loss of cognition.
As noted above the Medical Assessor failed to include in the MAC any findings on his mental state examination. Such findings should be included in the MAC and in the absence of such findings, there is no satisfactory evidence to support the Medical Assessor’s opinion that there was no loss of cognition. 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.
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.
Employability
The appellant submitted that the evidence supports an assessment of class 5 for employability.
The examples under Table 11.6 for “Employability” in the Guidelines are:
“Class 2: Mild impairment. Able to work full-time but in a different environment from that of the pre- injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (e.g. no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3: Moderate Impairment; cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).”The Medical Assessor assessed the appellant as class 3 for employability. In the PIRS rating form, the Medical Assessor wrote:
“Employability - Class 3.
Based on her history and reported symptoms, she can work up to twenty hours per week in a less stressful environment. There is moderate impairment in this domain.”Under “Social activities/ADL” the Medical Assessor wrote:
“She says that she has tried to work during her injury but has been unable to sustain it. She tried volunteering for three weeks last year but could not manage that.”
In his statement dated 27 September 2024 the appellant wrote: “I continue to be certified totally unfit for any work”.
Dr Teoh’s report dated 31 March 2022 stated, “She last worked in October 2021, she tried to go back to suitable duties with a rehabilitation program, but she could not cope”.
Dr Gertler, in his report dated 27 June 2023 assessed a class 5 for employability providing the following reasons:
“Unfit for any employment at all because of marked social withdrawal, lack of motivation and interest in pursuing previous activities, difficulties with concentration and memory, and neglect of self-care.”
Dr Gertler noted that the appellant had been unable to return to any form of employment.
Dr Gertler expressed the opinion that the appellant was totally unfit for her pre-injury work noting that she was not only quite isolated but had lost confidence and trust in her previous work colleagues. He wrote: “Ms Marsters is currently unfit for any employment, whether pre-injury or the open labour market, because of her emotional state”.Dr Malik, in his report dated 2 December 2022 noted that the appellant resigned from work in April 2021 due to ongoing work stressors. He noted that she attempted to return to work in October 2021 as a support worker but could not continue for more than four weeks due to her psychological symptoms. Dr Malik believed that the appellant would not be able to work in any capacity in the near future because she had ongoing significant psychological symptoms causing distress and impairment in all the important aspects of her life including vocational functioning.
In a report dated 18 December 2023, Dr Malik assessed a class 5 for Employability providing the following reasons: “Nil capacity”.
Dr Malek in his report dated 18 December 2023 noted: “Ms Marsters is currently not working in any capacity.”
The certificates of capacity from 1 February 2021 certified the appellant as unfit for work except for a short period in August/September 2022.
The Appeal Panel considered that there was no real evidence to support an assessment of class 3 for employability. The appellant had attempted a return to work in October 2021 but she could not cope. The appellant then tried to do some volunteer work for three weeks in 2023 but could not manage that work. Apart from a short period in August and September 2022, the appellant’s general practitioners certified her as having no work capacity.
The Medical Assessor provided no adequate explanation for his view that the appellant could work up to 20 hours a week in a less stressful role. An assessment of class 3 for employability is inconsistent with the evidence and the reasoning process is not sufficiently clear.
The Appeal Panel considers that the Medical Assessor fell into error when assessing
the appellant as class 3 in the category of employability.The Appeal Panel was satisfied that the assessments of class 2 for self care and personal hygiene, class 2 for social and recreational activities, class 2 for social functioning, class 2 for concentration, persistence and pace and class 3 for employability could not be supported by the evidence.
However, much of the evidence in this matter is contained in reports and notes written in 2022. The Appeal Panel considered that a re-examination of the appellant was necessary as there was insufficient evidence upon which to make an assessment in the categories where the Appeal Panel found error.
As noted above Dr Graham Blom of the Appeal Panel examined the appellant on
14 March 2025. Dr Blom provided the following report:The workers medical history, where it differs from previous records
Ms Marsters began working at YP Space as a youth worker in 2016. She worked in both administrative and youth worker support roles, roughly half of full-time equivalent for each. She had no difficulties in her position until about October 2020 when there was a change in the management of the organisation which led to her having different supervisors. The nature of her injury has been outlined in the original Medical Assessment Certificate (MAC) however in summary she experienced bullying, harassment and a chain of supervision that was not appropriate or workable for her. As a result in late October, because of increasing symptoms of anxiety she ceased working in her administrative role but continued in her role as a youth worker, working between 2 – 3 days/week,. However, despite the change in her work duties, she experienced ongoing panic attacks and anxiety. She became depressed with markedly low mood, tearfulness which she struggled to control, loss of confidence and feelings of worthlessness and hopelessness. She could not understand why she was being bullied and tended to blame herself. She felt increasingly anxious when she was around people, in part triggered by inappropriate behaviour by her co-workers but overall she felt increasingly threatened and distressed. She consulted her general practitioner in February 2021 and was initiated on a low-dose antidepressant, although she could not recall which one.
Despite the changes in work and the initiation into an antidepressant, her symptoms continued to deteriorate and in March 2021 she ceased work. She continued to consult her general practitioner regularly and I gather several different antidepressants were trialled although Ms Marsters was unable to recall names or doses. She was also referred to a psychologist, Mr Allan Anderson whom she began consulting on a regular weekly basis. It would appear that Mr Anderson engaged primarily in supportive therapy with some CBT components aimed especially at anxiety management. Nevertheless throughout 2021 her symptoms continued to deteriorate. As well as the symptoms described above, she said she began to have increasingly frequent nightmares, occurring every night as well as repetitive flashbacks of the bullying behaviour. She said there were multiple triggers to these flashbacks including the smell of particular flowers that had grown at work, loud noises, proximity of others and at times even her anxiety. She became increasingly withdrawn and as she described it almost terrified of leaving her home. As her depression worsened, her motivation and energy decreased and she began to experience suicidal ideation. On one occasion her partner took her to the Emergency Department of Kempsey Hospital where she was assessed but not admitted. She did have some follow-up by the Community Mental Health team although this was only for a brief period.
Around January 2022, as her symptoms deteriorated, her general practitioner appears to have switched her medications to the sedative antidepressant mirtazapine. The documentation was somewhat sparse around this, and I could not determine the dose or exact timing and Ms Marsters memory of events around this time were extremely scattered. A month or so after the switch of medication, however, she began to experience what seem to have been fairly clear-cut manic symptoms. She described a prolonged period, about three weeks where she had very limited sleep and only limited need for sleep. She said that she felt “wired” and was constantly active and agitated. She also described becoming “sexually obsessed” which eventually led to her seeking a variety of heterosexual partners online and engaging in repetitive sexual encounters with men she met online. This was remarkably out of character for her, both the behaviour but also the fact that she had always identified as lesbian and at the time was engaged in a long-term lesbian relationship. She was so overwhelmed by this experience that she took a large quantity of Phenergan, she said not to kill himself but to try to calm herself. She presented at Kempsey Hospital Emergency Department and was briefly referred to a psychiatrist, she said, Dr Mumbwa whom she consulted on about two occasions. I should note there is no mention of this in the documentation that I could find. It would appear that Dr Mumbwa initiated her on valproate, a mood stabiliser, raising the dose to 200 mg/morning and 400 mg/evening. As Dr Mumbwa was not able to continue to manage her she was subsequently referred to Dr Ben Teoh, a psychiatrist in Sydney whom she consulted via video link. Dr Teoh ceased the valproate and switched her to the antipsychotic medication olanzapine. Her initial dose was 5 mg/night but this was gradually increased to a final dose of 12.5 mg/night. She was also initiated on sertraline although only at a low dose, 50 mg/day. She was briefly trialled on a higher dose of 100 mg/day but became increasingly agitated and anxious, so that she could not tolerate it. During 2022 she continued to consult her psychologist on a regular weekly basis, but only consulted Dr Teoh infrequently. She had no further admissions in 2022 but during this time said that her mood was extremely flat, and she felt deeply amotivated. She felt drowsy and lacked energy and experienced a sense of “disconnection from reality”. She complained that she couldn’t feel anything and often spent time just staring into space and “just surviving emotionally”. Some time during this year the relationship with her partner ended although she continued to live in the same premises, essentially as Ms Marsters carer. Ms Marsters was somewhat vague about the ending of the relationship but I gather her overall psychiatric state as well as the episode of mania significantly contributed. Eventually towards the latter part of 2022 her partner moved away and subsequently Ms Marsters sister moved into the house, essentially as her carer.
In early 2023, she decided to move from their residence and rented a new place with her sister. She said her sister was actively involved in her treatment and on the advice of her psychologist began encouraging her, very actively to leave the house, by going to a local beach, a distance of about 15 to 20 minutes from her house, about once every fortnight. She said at the beach they always chose a place away from everyone else and that she often sat on the sand crying but nevertheless persisted. She occasionally went into the water. She also went on short walks into the surrounding bushland with her sister although said these never lasted more than about half an hour and were relatively infrequent. Despite these interventions she said that she remained chronically depressed continued to have nightmares, anxiety, flashbacks and marked withdrawal. She felt increasingly guilty about her dependence on her sister and in November 2023 took another overdose. From her description this was a serious overdose in that she took all of her antidepressants as well as a box of olanzapine with alcohol. She was admitted to ED and subsequently transferred to the mental health unit where she remained for about one week. I should mention that during the period that she had been on olanzapine her weight had markedly increased, she said from about 65 kg prior to initiation to a maximum weight of 120 kg. In the MHU her olanzapine was ceased, and she was switched to quetiapine at a moderate dose. She was discharged in late 2023.
In February 2024, her sister held a party at their house. Ms Marsters said that she remained in her room although she had been drinking alcohol. She has little memory of the evening and claims that her sister said that her drink was “spiked”, but in any case the next morning she awoke to find herself in bed with a man. She said she had no memory of how this occurred although she believed that she had consented to a sexual encounter. She denied manic symptoms at the time. I was unable to clarify further this incident as she became withdrawn, tearful and irritable and clearly felt either judged or attacked despite my best efforts to be empathic. In any case she was briefly admitted overnight to the hospital and no further action was taken. She expressed considerable anger at the man involved, however.
In 2024 her contact with Dr Teoh ceased and she was managed only by her general practitioner and her psychologist. In mid-2024 her sister moved to Melbourne with her boyfriend and subsequently Ms Marsters younger brother who is about four or five years younger than Ms Marsters moved in, again, essentially as her carer. Her younger brother had suffered a major back injury, she said a fracture of the spine while playing football and was unable to work so was at home with her most of the time, acting as her carer. He continued the program of trying to get her out of the house by going to the beach with her. Ms Marsters said that despite her ongoing symptomatology that she felt that she overall was somewhat better through 2024 to the present. She has reached out to her parents who had been very critical of her illness previously. When I asked her why, she attributed this to cultural values (Ms/Marsters is of Samoan /Cook Island background) and she said that until recently they “hadn’t really believed in depression” and had told her that she should “just suck it up and move on”. She said that she has been able to improve the relationship although it remains strained. She also reached out to some friends via Messenger app and had some contact through this app, although has not met them in person. Overall, her mood has remained depressed, and she continues to experience considerable anxiety and reexperiencing phenomena such as nightmares and flashbacks. She continues to have panic attacks but at a much-reduced frequency. She also described, on questioning two further brief episodes of what appeared to have been hypomanic episodes. She said that these both involved several days of markedly reduced sleep associated with a substantial increase in her libido, racing thoughts and a significant increase in her level of activity. She was very aware of this change and on both occasions contacted her general practitioner who increased her antipsychotic medication, quetiapine. She said that the increase was relatively small, about 25 mg but felt that this reduced her symptomatology and commented that she has been very sensitive to medication.
At the end of 2024 Mr Anderson, her psychologist retired and was replaced by another psychologist Ms Glenda May who she continued to see every three weeks.
Current Treatment.
She consults her psychologist, now Ms Glenda May, every three weeks. From her description Ms May is assisting Ms Marsters using techniques to help her to stabilise her emotions and control her impulses. She also encourages and supports Ms Marsters in attempts to leave her home with which her brother assists.
She no longer consults a psychiatrist but regularly consults her general practitioner on a monthly basis as well as when she needs to see him in an emergency. She has seen multiple general practitioners all from the same practice. Her current medication is: sertraline 50 mg/morning and quetiapine, 12.5 mg/morning and 75 mg/night although as mentioned this is increased when needed such as during hypomanic episodes.
Current Symptoms.
Ms Marsters continues to have a range of anxiety. She is frequently agitated and experiences regular psychic anxiety although this tends to fluctuate somewhat, in that she said that she often experiences constant anxiety for days on end but then will have periods again usually lasting several days where she is, while not free of anxiety, able to feel in control and that it is manageable. She is unaware of what causes the changes in her mental state. She said that she has nightmares most nights and frequently wakes at night in a panicky state. She is more able to leave the house now, going to the beach with her brother on a weekly basis. She said that they spend between two and four hours there, but she remains markedly withdrawn and anxious, has no contact with others and while she will go into the water now she nevertheless finds the experience difficulty and taxing. She is also able to sometimes go to the shops with her brother’s support. When she leaves the house not only is she anxious, but she also experiences fear of being attacked and generally feels threatened. She later said that she experienced this often in interviews with psychiatrists or other people whom she did not know. She continues to have flashbacks of the bullying experiences although the frequency of these vary depending on her overall level of anxiety and depression. She continues to have panic attacks, but their frequency has significantly decreased, she said to a rate now of approximately 2 – 3/week as opposed to 2 – 3/day, previously. She remains easily startled and is constantly on guard at possible threat. She is withdrawn and anxious and avoids groups of people.
Her mood now is not persistently depressed but tends to fluctuate somewhat although overall she constantly feels at best flat and disconnected. She describes periods of blanking out and I believe I witnessed one episode of this during this interview when discussing the incident of February 2024, I suspect she is experiencing some degree of disassociation phenomena. Overall, she continues to struggle with motivation and low energy. She is constantly fatigued and struggles with concentration and focus. She struggles to persist at activities and sometimes does not complete activities due to, fatigue and focus. Sometimes when particularly fatigued she describes a sense of brain fog – “like my brain doesn’t work”. She has not attempted to harm herself for many months. She continues to have occasional suicidal ideation, but this now is less intrusive and she feels more in control of it. Nevertheless, she experiences periodic hopelessness, guilt and feelings of worthlessness.
Ms Marsters said that she only drinks alcohol rarely now, and she denies use of any illicit drugs. She said that previously she had tried cannabis on several occasions but felt the experience was unpleasant and has not used cannabis for at least a year. She has not used other illicit drugs. She does not smoke now but does vape on a regular basis.
Additional history since the original Medical Assessment Certificate was performed
There has been no substantial changes in Ms Marsters situation since the original MAC. She said that her symptoms and overall functioning had also not changed significantly, if at all.
There has been no change in her treatment nor is there any plan to change in her treatment at this time.
Findings on clinical examination
Ms Marsters was seen via video link, using the Teams app. She had no difficulty managing the application and the quality of the streaming was sufficient to undertake a satisfactory examination. I could see Ms Marsters from the shoulders up. Her hair was uncombed and somewhat messy. She was dressed in a dark T-shirt.
She was distressed throughout the interview, repetitively tearful and obviously anxious. At times she became so distressed that I felt a brief break was warranted.
Her overall affect was flat and she presented as both anxious and depressed. She was triggered into irritability on our couple of occasions but was amenable to discussion of this, after a while and described the fear of being attacked. She did not display any evidence of mania or hypomania at this interview.
She was not overtly psychotic, although there was a vague persecutory theme evident in her thinking running through the interview. She could easily be triggered into a feeling of being attacked and threatened and it required considerable effort to overcome this. She denied any form of hallucinations or delusions. I specifically enquired, given her presentation about thought insertion and broadcasting and delusions of reference but she denied these. There were no frankly paranoid thoughts or delusions.
The interview was lengthy, lasting just short of two hours. We had several breaks each of a few minutes to assist Ms Marsters. Part of the reason the interview was extended was because of difficulty in gaining history because of Ms Marsters struggle with memory, focus and persistence. There were significant gaps in her memory regarding treatment, symptomatology and her overall functioning. I did not believe this reflected an attempt to prevaricate or dissemble but reflected her disturbed mental state.
Diagnosis.
I believe that Ms Marsters meets the criteria for the following disorders, using the DSM 5 classificatory system:
o Bipolar Affective Disorder – type I.
This diagnosis is made because of the presence of one clear manic episode marked by reduced need for sleep, distractibility, increased activity with agitation, and engagement in damaging impulsive behaviour which was out of character. This was associated with an elevated and irritable mood and increased activity. She has also experienced what appears to have been two further episodes of hypomania which were terminated by her swiftly seeking treatment and having her antipsychotic/mood stabilising drug increased. I should mention that her first episode of mania most likely was triggered by the change in antidepressant medication, although this is I admit, speculation, but she has also had two further hypomanic episodes requiring treatment so I believe that the diagnosis of bipolar affective disorder is appropriate. She has also had multiple prolonged episodes of Major Depressive Disorder extending through much of 2021 and 2022. Currently she continues to meet the diagnosis for a depressive phase of bipolar disorder.
oMixed anxiety disorder – this is not a DSM 5 diagnosis, but I use it to attempt to encapsulate the various strands of her anxiety which consists of both panic disorder with agoraphobia as well as generalised anxiety disorder however these two diagnoses did not quite capture the nature of her anxiety which clearly has a substantial traumatic element to it. She has all of the features of PTSD but clearly the triggering incidences do not meet the A criteria for PTSD in that she was not threatened with death or severe injury and did not witness horrifying traumatic events.
PIRS.
o Self-care and Personal Hygiene. Ms Marsters would be unable to live independently. She only showers about every four days and then only when reminded to by her brother. Her brother does all of the cooking and prepares the meals. He also does most of the cleaning, of the house. He also is actively engaged in assisting Ms Marsters in her attempts to be less withdrawn.
o Social and Recreational Activities. The only recreational activity that Ms Marsters engages in is her trip to the beach with her brother every week or so. However it is difficult to be clear how much of this is a recreational activity and how much of it is therapeutic activity. It is clear that she had is accompanied on every occasion by her brother and that her psychologist had strongly encouraged this activity. It is also not clear to me that she experiences a great deal of pleasure or enjoyment in this activity although there is clearly some recreational element to it. Otherwise, she has no friends and very limited social interactions which consists of what appears to have been very occasional contact with friends via Messenger app. She said her brother has taken her to coffee shop also on one occasion in the last several months.
o Social Functioning. While Ms Marsters separated from her partner several years ago, since that time she has re-established a relationship with her parents, albeit one that remains strained and has also begun to contact friends via Messenger app. Her relationship with her sister remains strong, despite her moving to Melbourne for other reasons, and she has a good relationship with her brother.
o Concentration, Persistence and Pace. Ms Marsters said that she has the television on constantly but mainly as background noise as she struggles to focus on it for more than a few minutes. She only very occasionally uses social media, except for Messenger, in part because of fear of being triggered but also because she struggles to focus. She said that she is unable to read more than a paragraph or two. During the interview her pace was erratic, and she struggled to persist. We had several breaks albeit throughout a lengthy interview. Her memory was markedly disturbed -she struggled to recall not only chronological events, but past treatments and the overall course of her illness.
o Employability. She continues to have substantial symptoms of anxiety and depression with marked avoidance and withdrawal. She requires assistance to manage her basic personal care and has impaired concentration, focus and persistence. Currently she is unable to work at all and I do not believe be able to in the foreseeable future.
Results of any additional investigations since the original Medical Assessment Certificate
There were no additional investigations.
The Appeal Panel adopts the report and findings of Medical Assessor Blom.
The Appeal Panel assesses the appellant as class 3 for self care and personal hygiene, class 3 for social and recreational activities, class 2 for social functioning, class 3 for 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 rating of class 2 in the PIRS categories of travel.
The Appeal Panel finds that the PIRS scales score 3 3 2 2 3 5, ascending order 2 2 3 3 3 5, median 3, aggregate 18 so that the WPI = 22%. The Appeal Panel makes a deduction pursuant to s 323 of the 1998 Act of one tenth for the pre-existing condition, which results in a total of 20% WPI. This deduction was made by the Medical Assessor and was not appealed.
For these reasons, the Appeal Panel has determined that the MAC issued on
22 November 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: | W26838/24 |
Applicant: | Ramona Marsters |
Respondent: | YP Space MNC Incorporated |
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) |
| 1.Psychological and Psychiatric Disorder | Chapter 11 11.1-11.3 11.4 -11.6 | 22% | One tenth = 2% | 20% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||
0
4
0