Miller v Capgemini Australia Pty Ltd
[2025] NSWPICMP 582
•7 August 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Miller v Capgemini Australia Pty Ltd [2025] NSWPICMP 582 |
| APPELLANT: | Amanda Miller |
| RESPONDENT: | Capgemini Australia Pty Limited |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Doug Andrews |
| DATE OF DECISION: | 7 August 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal by claimant from 20% whole person impairment (WPI) assessment for psychological injury; whether social and recreational category assessment of class 3 should have been increased to class 4; whether travel category assessment of class 1 should have been increased to class 2; whether concentration, persistence and pace category assessment of class 3 should have been increased to class 4; whether one-tenth deduction justified; Held – social and recreational category should have been assessed at class 2 but no appeal made from the employer; category of travel confirmed at class 1 on the facts; category of concentration, persistence and pace confirmed at class 3 on the facts; conflicting Supreme Court decisions noted regarding application of Chapter 11.10 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines), Marks v Secretary, Department of Communities and Justice (No 2), Matheson v Baptistcare NSW & ACT (and MP decision of Camden Council v Harle) referred to; Chapter 11.10 of the Guidelines applied; MAC revoked regarding section 323. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 10 March 2025 Amanda Miller, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Suneel Chamoli, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
10 February 2025.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). WPI is reference to whole person impairment. Baseline WPI is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.
RELEVANT FACTUAL BACKGROUND
On 6 January 2025 this matter was referred to the Medical Assessor for an assessment of psychiatric/psychological disorders that occurred on a deemed date of injury
28 March 2023.Ms Miller was a Consultant Director of the respondent company from January 2023 until March 2023.
Ms Miller lodged a complaint of bullying and harassment by another contractor who had demanded that Ms Miller be made redundant.
Ms Miller was made redundant from 28 March 2023.
She alleged she had been targeted and bullied by the other contractor.
The Medical Assessor recorded that Ms Miller's mental health worsened soon after she started her job and she experienced severe anxiety, leading to vomiting and escalation of drinking.
The Medical Assessor assessed 22% as the baseline impairment from which he deducted one-tenth pursuant to s 323 of the 1998 Act leaving a combined table value of 20%.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although the Panel found there to be error, the evidence before the Medical Assessor was sufficient to enable the error to be corrected.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered below by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The MAC
As to Ms Miller's previous history of mental health the Medical Assessor said:[1]
“Details of any previous or subsequent accidents, injuries or condition: Ms Miller admits to having sought psychological therapy and treatment with antidepressants in the past on at least 3 occasions. She believes in 2016-17, she attended psychological therapy and she was treated with Escitalopram while dealing with conflict in relationship with her sister. In year 2018 she was again treated with a short course of Escitalopram for stress from workplace situation. She could not recall the third occasion where she was prescribed Escitalopram however reports undergoing counselling when separating from her husband in 1999 after a 10-year relationship with him.”
[1] Appeal papers page 27.
The Medical Assessor recorded a number of restrictions in Ms Miller's social activities in the form of points. Relevantly they were:[2]
[2] Appeal papers page 28-29.
· “Ms Miller spends most of her time in the bedroom in her apartment. When her anxiety worsens (spirals) she could be bedbound for up to 5 days…
……
· She forces herself to garden on an average day. Living in an apartment, she has a small garden consisting of standing up trays and pots.
· She takes her dog for a walk infrequently. However, when in a spiral, she is not able to take dog for a walk for days.
· She finds it difficult to converse with people. She is worried of getting upset during conversations with others and hence avoids.
· She went skiing with her family last year, however she withdrew from social interactions and spent more of the time in her room.
· She joined the church as a way of finding new people to connect with however she has not been there since her mental health spiralled last year.
· She has only two long-standing friends, she has been friends with them since her daughter was 5 years old. She speaks to them very infrequently.
…
· She went to the annual lotto club dinner in 2023, however did not enjoy it. She could not go last year as she was in hospital.
· She believes her mental health has not impeded her ability to drive. She finds car is a safe place. She is not able to drive due to taking medicinal cannabis. Prior to using medicinal cannabis, she was able to drive up to Coffs Harbour or Gold Coast to meet with her family.
· Ms Miller reported she used to read a lot previously, but not anymore. She has started to read some books, however, could not finish them. She spends most of her time in her bed watching television or videos on YouTube.
..
· Her concentration is poor, her bills are piling up she has notices for late fees however she could not look at them until there is a threat to disconnect services.
· She enjoys reading news but tries not to read negative news that could trigger her.
· She would like to do some voluntary work, but she does not feel she will be a reliable worker as she has no capacity for work. She feels there has been a reputational damage and she will not be able to secure a job in future.”
The findings on examination physical examination were as follows relevantly:
“I interviewed her over videoconference on Microsoft teams. Ms Miller attended the interview from her apartment. She was visible on the screen from chest to her face. She appeared fully alert, attentive and participated well in the interview. She wore neat black T-shirt with adequate attention to self-care. She was teary frequently during the interview, often apologising and rubbing her tears off. Ms Miller described a persistently sad mood with episodic worsening of anxiety. She appeared sad and tired. Her psychomotor activity was average. Her thinking was logical, and goal directed.
There was no perceptual abnormality. Her energy levels are very poor. She is able to walk her dog only once in a few days. She reported feeling hopeless with no confidence to engage even in volunteer work. She reports her relationships have fallen apart and she has hit the rock bottom.
She admitted to suicidal ideas lately, they are passive thoughts that she called in her own words as “per-suicidal”. She does not have any intent to act on these thoughts. There are no signs of mania, psychosis or OCD. She has good insight into her mental health and capacity for making health care decisions is intact.”
The Medical Assessor diagnosed a major depressive disorder with anxious distress.
In considering the facts from [9] the Medical Assessor noted relevantly:[3]
[3] Appeal papers page 31.
“She started drinking in teenage years around the age of 15 to 16 years. She gave up drinking for a few years however resumed drinking in her 20s, on social occasions. Around the age of 25 years she was introduced to red wine by her father. She was drinking socially and on special occasions.
In year 1999 she separated from her husband and attended counselling. Ms Miller reported they were together for 10 years. She did not have any children with him. She reports the separation was amicable.
Around the age of 28 years, she left for England and spent significant time there over a period of 10 years. She described herself as a big drinker while living and working in England. She was working in business telecommunications as customer delivery manager.
She left England after a failed relationship, to give birth to her daughter in Australia. Ms Miller decided to raise her daughter on her own. She arrived here in 2003, 5 weeks before the expected date of delivery. Ms Miller reported her daughter’s father did not want to be part of their life. went back to England for few years and thereafter returned to Australia permanently. She drank heavily on Fridays and Saturdays, however not on weekdays or in daytime due to responsibility for her young daughter Emily.
She underwent some counselling when having issues with her sister in 2016-2017. She was treated briefly with antidepressant, Escitalopram. She disliked taking medicines and said she did not need them.
In 2018, she was again prescribed Escitalopram when she had workplace stress with another employer. Ms Miller reported it was general workplace bullying, not directed to her specifically. She states it was a toxic workplace. Ms Miller reported the entire team had problems with the director of the company. Ms Miller reported another worker at that workplace had a nervous breakdown. It was under the stress of the workplace that she was prescribed Escitalopram. She discontinued it after a few weeks as she felt better after resigning from that workplace.
…
Ms Miller reports she gave up drinking in January 2024, however had a relapse of drinking again in August 2024, for which she described the circumstances as follows. In March 2024, Ms Miller started taking medicinal cannabis, though only the CBD oil to begin with. In September 2024 this was changed to medicinal cannabis with THC. She has been taking 1 ml of the medicinal cannabis per day. Ms Miller reports she has been prescribed cannabis gummies as well. She felt better on medicinal cannabis and her alcohol intake when down. She ran out of prescriptions, which lead to her relapse to drinking.
A week after the 2nd admission to St Vincents Hospital Ms Miller was admitted to private psychiatric facility, the Banyans, for 4 weeks. Her parents paid for this hospitalisation. She was discharged from Banyans a week before Christmas in 2024. Thus, at the time of assessment, she has been out of Banyans for around 4 to 5 weeks. At Banyans, she was commenced on Naltrexone (dose unknown) and Baclofen 25 mg 3 times a day to maintain abstinence from alcohol. Ms Miller reports she has been abstinent of alcohol since discharge from St Vincents Hospital.”
In considering other medical opinions and evidence before her, the Medical Assessor noted that Dr Malik and Dr Lim reached the same diagnosis.
She noted the difference in her assessment was that of Dr Lim which was 44% WPI, noting that Dr Lim gave higher class ratings in social and recreational activities, travel, and concentration persistence and pace.
She also noted that he did not make a deduction for pre-existing impairment whereas she had made a 2% reduction (being 10% of the baseline impairment).
The Medical Assessor said:
“….This is due to multiple episodes of depression previously for which Ms Miller was prescribed Escitalopram on three occasions. She also reports to have participated in psychological therapy due to long-standing discord with her sister and when separating from her husband. While she reports the trial of Escitalopram was less than one month each time, she did benefit from treatment with Escitalopram on each occasion. ….”
With regard to the s 323 deduction at [11], the Medical Assessor stated that Ms Miller suffered from a pre-existing condition of “Past heavy use of alcohol and multiple brief previous episodes of depression”. She explained the deduction further by saying:
“When assessing WPI, I have taken note of multiple previous episodes of depression for which Ms Miller benefitted from antidepressants and also received counselling.
She has also reported heavy alcohol use prior to the injury. She is vulnerable to
depression and relapse to heavy drinking due to pre-existing injury”
SUBMISSIONS
APPELLANT
Ms Miller challenged the assessments made by the Medical Assessor in the psychiatric impairment rating scale (PIRS) in the following categories:
· Social and recreational activities;
· Travel, and
· Concentration persistence and pace.
Ms Miller also challenged the deduction made pursuant to s 323 of the 1998 Act.
She referred us to the well-accepted authorities regarding demonstrable error. With regard to each impugned PIRS category, she made the following submissions.
Social and recreational activities
We were referred to the reasons given by the Medical Assessor in the body of her report and the Table 11.8 PIRS Rating Form. We were also referred to the descriptors at Table 11.2 of the Guides for a class 4 rating.
Ms Miller directed our attention to a number of factual issues based on her statement of
20 November 2024.We also referred to a brief comment by her expert, Dr Terence Lim in his report of
12 April 2024.It was submitted that these matters entitled Ms Miller to a class 4 rather than the class 3 rating that had been ascribed by the Medical Assessor.
Travel
Ms Miller submitted that the class 1 rating for this category was erroneous and that the descriptors for a class 2 rating as described in Table 11.4 were more appropriate.
We were referred to selected quotes from Ms Miller's statement, the expert report of
Dr Terence Lim, consultant psychiatrist, some notes from Valerie Rendle, psychologist, and the report of the respondent’s expert, Dr Nabil Malik, psychiatrist, dated 16 September 2024.
Concentration persistence and pace
Ms Miller used the same approach in challenging the class 3 rating given by the Medical Assessor.
We referred to the descriptors for a class 4 rating and again Ms Miller referred to her statement of 20 November 2024, Dr Terrence Lim's report of 12 April 2024 and a statement from Ms Miller’s mother, Carolyn Miller dated 11 November 2024.
Section 323
Ms Miller challenged the one-tenth deduction by again relying on her statement of
20 November 2024 and the report of Dr Lim dated 12 April 2024.Dr Malik's report of 16 September 2024 was also relied on.
RESPONDENT
The respondent referred to the many authorities that govern the application of the PIRS in psychological injury cases. These are often cited in these cases and we will refer to the relevant cases below.
Social and recreational activities
The respondent referred to the class 3 descriptors for this category at Table 11.2 which were compared with the findings in the PIRS Table 11.8 rating scale.
The observations by the Medical Assessor were consistent with this rating, it was submitted. The respondent noted that Ms Miller did not cavil with the observations that she was a daily gardener, or walked her dog infrequently, or maintained infrequent long-standing work friendships with at least two non-family members, as well as a long-term relationship.
The respondent noted further that there was no challenge to the finding that Ms Miller went skiing in 2024, and attended a lotto club dinner.
The respondent also noted in Ms Rendall's clinical notes that Ms Miller had attended markets on 15 October 2024. The respondent noted the observations by Drs Lim and Malik that Ms Miller had travelled interstate on multiple occasions to Tasmania and Queensland.
The respondent submitted that “It should not be overlooked” that there was consensus in the assessments of the Medical Assessor and Dr Malik.
One of the descriptors in the class 4 rating, which was argued for by Ms Miller, was “never leaves place of residence”. This was not demonstrated, it was submitted, by Ms Miller.
It was not apparent, it was submitted, how the conclusions by the Medical Assessor had contravened the various principles set out in the authorities it referred to.
Travel
The respondent noted that the Medical Assessor had found that there was no impairment in Ms Miller's driving ability and therefore she was properly rated as a class 1 in this category. We were referred to Table 11.3 of the Guides and the descriptors therein set out.
The respondent submitted that the Panel should not limit what it accepts to the appellant's evidence. The respondent noted that the Medical Assessor had recorded a statement from Ms Miller that was consistent with a class 1 rating during the consultation.
The respondent repeated its submission that it was not apparent how Ms Miller's submissions established that there had been a contravention of the authorities on which it relied.
Concentration persistence and pace
The respondent again set out the reasons given in the Table 11.8 PIRS rating form in allocating a class 3 rating for this category.
The findings by the Medical Assessor were compared with the descriptors contained for a class 3 rating in Table 11.5 of the Guides.
It was submitted that Ms Miller's submissions were based on allegations made within the factual material and which overlooked the findings by the Medical Assessor on consultation.
We were referred to comments made in the body of the MAC by the Medical Assessor with regard to this category.
Again, the respondent noted that there was consensus between the Medical Assessor and Dr Malik as to the appropriate rating being a class 3.
The respondent again submitted that it was not apparent how the findings by the Medical Assessor contravened any of the principles propounded by the authority on which the respondent referred.
Section 323
The respondent submitted that the Medical Assessor had reached his conclusions reliably by reference to his clinical examination and the available evidence that was before her.
There was, it was submitted, a fair climate to justify the 10% deduction that the Medical Assessor made.
A nil assessment, it was submitted, would have been at odds with the available evidence, which the respondent referred to. The Medical Assessor noted the pre-injury history regarding heavy alcohol use, episodic depression and Ms Miller's vulnerability to depression and heavy drinking.
The respondent noted that Ms Miller alleged her mental health had settled, but that assertion was not consistent with the clinical examination carried out by the Medical Assessor.
We were referred to the history of Ms Miller's psychological symptoms that predated her employment.
We were again urged not to overlook the consensus between the Medical Assessor and
Dr Malik in making the one-tenth deduction.The respondent cited Southwell v Qantas Airways[4] in a submission that s 323 required a Medical Assessor to conclude that a part or proportion of the impairment was due to the pre-existing condition and not the workplace injury and part was due to the workplace injury and not the pre-existing condition. If the only finding was that no level of impairment existed but for both elements, there could be no deduction, as we understood the submission.
[4] [2024] NSWSC 497.
The respondent submitted that there was no error in the Medical Assessor's findings regarding s 323, as the pre-existing injury made Ms Miller vulnerable to the injury that she had suffered. It was not in dispute, it was argued, that part of her impairment was due to the subject workplace injury and the Medical Assessor's reasoning supported that there was a calculable contribution due to pre-existing mental health conditions.
DISCUSSION
The psychiatric impairment rating scale
The PIRS is established as the rating system for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[5] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[5] Guides 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[6]
[6] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides p 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[7] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[8]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[7] [2017] NSWSC 887 (Ferguson).
[8] [2015] NSWSC 633 (Jenkins).
In Glenn William Parker v Select Civil Pty Ltd,[9] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[9] [2018] NSWSC 140 (Parker).
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated; or
(d) if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[10] Basten AJ noted at [88-89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[10] [2022] NSWSC 929.
In Masters v Healthshare NSW[11] Griffiths AJ considered Campbell J’s dicta in Ferguson, saying at [35]:
“…. [T]he proposition that the Appeal Panel was required to determine whether Dr Smith’s assessment was “glaringly improbable” is inconsistent with the observations of Adamson J (as her Honour then was) in Chalkias v New South Wales [2018] NSWSC 1561 at [29], in which her Honour discussed Ferguson (with which I respectfully agree):
‘I reject the submission that the Panel’s review is confined to cases where the Medical Assessment, or some aspect of it, is “glaringly improbable”. The submission finds no support in the wording of the WIM Act, which requires only that an error be “demonstrable” or that there be “incorrect criteria”. These expressions, which have been the subject of judicial consideration (see above), are to be understood in accordance with their plain meaning. It appears from Ferguson v New South Wales at [24] (Campbell J) that the Medical Panel in its reasons used the expression “glaringly improbable”. It would be a misreading of Campbell J’s reasons to conclude that his Honour intended to suggest that the expression formed any part of the test for error in the context of ss 327 or 328’.”
[11] [2025] NSWSC 821 (Masters).
The tension between these descriptors, which we apprehend the authors of the Guides foresaw, in the many different possible scenarios within the six categories of the PIRS and the classifications thereof, is the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples, giving a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allowing a wider discretion to be applied than if the descriptors were intended to be strict criteria.
Social and recreational activities
The first issue raised by Ms Miller concerned class rating assessed for the social and recreational activities category.
The Medical Assessor allocated a class 3 rating, which Ms Miller contended ought to have been a class 4 rating. The descriptors for this category relevantly are as follows:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2 Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3 Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4 Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.”
In her Table 11.8 PIRS Rating Form the Medical Assessor gave the following reasons for her class 3 rating:
“Rarely goes out to events
Does not enjoy social or family gatherings
Has stopped going to church
Does some gardening and takes dog for infrequent walks”
As we noted above, the descriptors are examples, rather than strict criteria, but, to quote Ferguson, above, ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected.’ Thus, to qualify for a class 4 rating, it would be usually expected that there would be evidence that confirms a claimant never left his/her place of residence and would remove him/herself from the company of strangers who visited the place of residence.
Ms Miller relied on selected portions of her statement of 20 November 2024, which were reproduced in her submissions. She variously stated that she was “bedridden most days”, was “not able to socialise and became isolated”, she had conflict with her 21 year old daughter who watched her “stay in bed for days on end”, that she missed an appointment in August 2024 with her psychologist because she “struggled to get out of bed that day”, and other quotes of a general nature related to her “sedentary lifestyle” including assertions that she “often remain in bed for most of the day” when she did not take a dog for a walk, that she was unable to attend her annual Lotto club dinner, that she went to her father’s 80th birthday but took refuge in her room at the function when somebody asked how she was.
Whilst the self-reporting of a claimant of her restrictions can be useful in statement form, the Medical Assessor is required to form his/her own opinion. The following High Court dicta is often cited:[12]
“The function of a Medical Panel[13] is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions”
[12] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [47].
[13] These comments also apply to the functions of Medical Assessors: Sydney Local Health District v Chan [2015] NSW SC 1968 at [13].
Forming that opinion includes an evaluation of the claimant him/herself, which involves, as we have noted above, a judgement as to the significance or otherwise of the matters raised during the face-to-face consultation. The Medical Assessor, as noted above, listed a comprehensive overview of Ms Miller’s complaints that reflected to some extent the comments Ms Miller relies on from her statement, but which also contains other relevant information.
As to the contents of Ms Miller’s statement, we note:
· at [65] that she also did go to the shops, (albeit “rarely”);
· at [77] that she had been to some family events (which she “forced myself to attend”);
· at [80] that she had “tried going to the local church”;
· at [81] that she had “one close friend who lives in Byron Bay that I try and stay in touch with”;
· at [86] that she had “almost completely stopped looking at” LinkedIn;
· at [93] that she anticipated in an annual family event, but “found it hard to participate” and “felt and still feel no joy anymore”, and
· at [91] that she left her house to go to the doctors, chemist, or take her dog for a short walk, (albeit “rarely”).
The significance of the activities described in the descriptors concerns not the subjective interpretation of why or how often the particular activities were performed, but rather whether they were performed at all. The Medical Assessor noted that Ms Miller advised she spent most of her time in her apartment, and was sometimes bedbound for up to five days, but the Medical Assessor also noted that Ms Miller attended her garden on an average day (albeit that she forced herself to do so), that she took her dog for a walk infrequently (albeit sometimes she was not able to walk her dog for days). Ms Miller’s attendance at the 80th birthday celebration for her father was noted (although she cannot talk about herself on such occasions), she went skiing with her family last year (although she withdrew from social interactions and spent more of the time in her room), she joined the church (although she is not been there since her mental health spiral last year), she has two long standing friends who she speaks to “very infrequently”, she went to the annual Lotto club dinner in 2023 (but could not go in 2024 as she was in hospital). Further, as indicated, the Medical Assessor took a history that Ms Miller was able to drive to Coffs Harbour, or the Gold Coast to meet with her family.
One of the descriptors for a class 3 rating is that the claimant “rarely goes out to social activities that are age, sex and culturally appropriate”. It is clear that since her injury
Ms Miller has gone to social activities which include her skiing, her churchgoing, family celebrations such as her father’s 80th birthday, her walking the dog, and her attendance at the Lotto club dinner.We note that the Medical Assessor accepted that there were periods when Ms Miller was unable to get out of bed, and whilst her attendance at some of these events may have been difficult for her, the relevant fact is that she went out to them. We would also observe that Ms Miller’s ability to attend to her garden is also an activity that is consistent with an appropriate activity.[14]
[14] See Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781 at [66] per Stern JA, sitting in the Common Law Division.
We note Ms Miller’s reliance on the class 4 rating applied by her expert, Dr Lim, in his report of 12 April 2024. The Medical Assessor was aware of Dr Lim’s opinion, and she mentioned it at [10c] of her MAC. We concur that she was justified in rejecting it. Dr Lim simply said, variously:
“She does not socialise at all and does not engage in any recreational activities. She leaves the house to walk her dog and goes to the same shops to pick up essentials.”[15]
“Does not socialise or attend any recreational activities.”[16]
[15] Appeal papers page 63.
[16] Appeal papers page 70.
Further, we note that Dr Lim recorded that during the week before Ms Miller saw him on
12 April 2024, Ms Miller had travelled to Hobart with a friend for a brief holiday, and that she had flown at Christmas to Byron Bay to stay with a friend for “a couple of weeks”.[17][17] Appeal papers page 63.
Moreover, we note that Dr Malik recorded on 16 September 2024 that she drove to Queensland with her mother “last Monday” which the calendar shows was one week prior to the consultation with Dr Malik.[18]
[18] Appeal papers page 154
We accordingly reject this challenge and confirm the class 3 finding. Indeed, the activities in which the applicant has demonstrated her ability to partake are perhaps more indicative of a mild, class 2 impairment, but the employer did not appeal this issue.
Travel
Ms Miller submitted that a class 2 rating should have been given for this category, and that the class 1 rating had been made erroneously.
The relevant descriptors are contained in Table 11.3 of the Guides:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2 Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
The Medical Assessor found in the Table 11.8 PIRS Rating Form that Ms Miller had “no impairment in driving ability.”
Ms Miller relied again on selected quotes from different sources to demonstrate that the Medical Assessor had erred. We were referred to Ms Miller’s statement that she was only able to drive short distances “if at all”, and that she rarely left the house. A comment by
Dr Lim that Ms Miller could drive to unfamiliar places such as a beach, but could not get out of the car, was referred to. Clinical notes from Valerie Rendle were referred to, but they appeared to be more concerned with Ms Miller’s alcohol consumption and there appeared to be no relevance to the category. Similarly Dr Malik’s report of 16 September 2024 was referred to but again in relation to her lack of activity. Ms Miller also referred to a further comment from Dr Malik, which stated:[19]“Ms Miller tells me that while she can drive, she tries to avoid doing so due to the effects of her medication, which can have consequences for her ability to drive safely.”
[19] Appeal papers page 154.
The Medical Assessor noted, as indicated above:
“She believes her mental health has not impeded her ability to drive. She finds car is a safe place. She is not able to drive due to taking medicinal cannabis. Prior to using medicinal cannabis, she was able to drive up to Coffs Harbour or Gold Coast to meet with her family.”
We would observe that a class 1 category is concerned with whether there is no deficit or a minor deficit attributable to the normal variation of the general public. It does not appear that Ms Miller has any greater deficit. The fact that Ms Miller’s ability to drive is subject to legal restraints on account of her medication is no different to the normal variation in the general public that is prevented from driving when intoxicated, or when under the influence of drugs. The relevant consideration is whether one of the behavioural consequences of Ms Miller’s psychiatric disorder is that she is unable to drive, not whether as a consequence of her medication she is unable to drive. In any case, the relevant consideration is whether the claimant is impaired in her ability to travel. Driving oneself is but one mode of transportation. A person may be unable to drive for any of several reasons without any impairment in their ability to travel.
Accordingly, we reject this challenge and confirm the class 1 assessment.
Concentration, persistence and pace
Ms Miller submitted that a class 4 rating should have been given, and that the Medical Assessor had accordingly erred by assessing a class 3 rating.
Table 11.5 of the Guides provides relevantly:
“Class 3 Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
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.”
In her Table 11.8 PIRS Rating Form, the Medical Assessor said:
“Unable to read more than newspaper articles. Difficulty attending to household bills”.
Ms Miller adopted the same approach to this category as she had to the previous two. She referred to her statement that her mother had travelled from the Gold Coast often to “care for me.” She also relied on her assertion that concentration problems “brain fog” had significantly affected her daily functioning. She said she was unable to articulate simple words, place names and everyday items, that she could no longer multitask and could only do one thing at a time. The statement also averred that she was not interested in engaging in social media or reading and that she struggled to concentrate for extended periods of time.
We were also referred to Ms Miller’s mother’s statement that her daughter was suffering from what appeared to be pronounced short term memory loss and that she was unable to focus. We were also referred to Dr Lim’s report of 12 April 2024 in which he found that
Ms Miller’s concentration was “very poor and she had difficulties maintaining this in conversation.”As was common to all the appellant’s submissions, Ms Miller made no attempt to delineate why this reliance on the evidence was relevant to the class allocated by the Medical Assessor, beyond stating that the evidence supported the class rating being advanced. We agree with the respondent’s submissions that Ms Miller has overlooked the findings by the Medical Assessor that she is able to garden daily, pay bills (albeit with difficulty) that she enjoyed reading news and newspaper articles, could partly read books and was able to drive.
These findings by the Medical Assessor are set out above and include, contrary to
Ms Miller’s assertion in her statement, a finding that Ms Miller spent most of the time in bed watching television or videos on YouTube. The Medical Assessor also recorded that
Ms Miller enjoyed reading news, but not negative news. As we stated at the outset of these reasons the function of a Medical Assessor is to evaluate the evidence before her and form her own opinion based on her experience and expertise. In so far as there are inconsistencies between what Ms Miller alleged in her self-reporting statement and the findings by the Medical Assessor, the clinical evaluation must be preferred.The descriptors for a class 4 rating require that, amongst other things, “concentration deficits obvious even during brief conversation.” We note the findings by the Medical Assessor at [5] of the MAC, reproduced above, that Ms Miller during examination was “fully alert, attentive and participated well in the interview.… Her thinking was logical, and goal directed. There was no perceptual abnormality….”
For these reasons, we accordingly reject the appellant’s submissions as to this issue.
Section 323
Section 323 of the 1998 Act provides relevantly:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence…”
It is well accepted that there are three steps to be considered in the application of this section. In Cole v Wenaline Pty Ltd[20] Schmidt J held:
“What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the [subject] injury was. Secondly, whether a proportion of that impairment was due to the [previous injury, pre-existing condition or abnormality]. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”
[20] [2010] NSWSC 78 at [38].
Thus, firstly, the level of impairment, the ‘baseline’ impairment, caused by the subject injury should be assessed. In the present case it was 22%, and in view of our reasons above, is confirmed as being correct.
The second step is to enquire whether a proportion of that impairment was due to, in this case, Ms Miller’s pre-existing condition. In order to do so, it is necessary to identify the condition in the light of the evidence. It is this step that appears to be the subject of this aspect of Ms Miller’s appeal. We were not referred to any authority, but in keeping with the rest of Ms Miller’s submissions, were simply directed to some evidence with the submission that the 1/10th deduction was “at odds with the available evidence.”
Ms Miller’s statement of 20 November 2024 was again referred to. She stated that “the above did not cause me any significant impairment or prevented me from working, socialising, spending time with family and friends, or engaging in my day to day life.”
“The above” was a reference to her description of her prior mental health, which included some three sessions with a psychologist at the time of her divorce some 20 years before, some further sessions with a psychologist in about 2017 related to “some anxiety related to organisational stressors while working…” Ms Miller stated further that in 2021 she had further treatment from a psychologist for anxiety from the COVID-19 lockdown and a breakdown in her relationship with her sister. She had some 10 sessions with a psychologist and was on medication for two to three weeks, she said.
Ms Miller’s submission also relied on Dr Lim’s report of 12 April 2024, who gave some more precise detail as to the events alleged by Ms Miller. He noted she had presented in 2018 to her GP “for treatment of ‘anxiety and low mood due to workplace bullying’ according to the medical notes.” Dr Lim noted a prescription of escitalopram for a few weeks and an improvement “after she resigned.” He noted further that there was no functional impairment and she was able to return to work “a couple of months later.” Dr Lim also noted that
Ms Miller saw the same psychologist when she sought further treatment in 2021. He noted “she did not have any ongoing symptoms after this and functioned normally.”Dr Lim did not make any deduction pursuant to s 323. His report contained the following question-and-answer:[21]
“In the event our client suffered a psychological condition prior to her workplace injury, had that condition resolved at the time of this injury? Please provide your clinical reasoning in your response.
The pre-existing condition which I would diagnose as an adjustment disorder had resolved at the time of the current injury. The reason for this is that she had no significant psychosocial or vocational functional impairment and she did not require ongoing treatment for this condition.”
[21] Appeal papers page 67.
Ms Miller also relied on the report from Dr Malik dated 16 September 2024, who confirmed a past history consistent with the above, noting both that she experienced anxiety and depressive symptoms whilst working for Property NSW and the Department of Finance in 2017, and that after a few months with the symptoms, her mental health settled. In his earlier report of 6 February 2024, Dr Malik said:[22]
“Ms Miller had a history of anxiety and depressive symptoms in 2017, in addition she has a history of childhood trauma, indicating a pre-existing psychiatric condition. However, the current injury appears directly related to workplace events, suggesting an aggravation of a pre-existing condition.”
[22] Appeal papers page 169.
Dr Malik indicated that he had applied a 1/10 deduction “for her past history.”
As noted above, the Medical Assessor said:
“When assessing WPI, I have taken note of multiple previous episodes of depression for which Ms Miller benefitted from antidepressants and also received counselling. She has also reported heavy alcohol use prior to the injury. She is vulnerable to depression and relapse to heavy drinking due to pre-existing injury”
We note further that the Medical Assessor identified Ms Miller’s pre-existing condition at [11] of the MAC as “past heavy use of alcohol and multiple brief previous episodes of depression.”
Chapter 11.10 of the Guides states:
“11.10 To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
To accurately compile Ms Miller’s pre-injury level of functioning, a PIRS rating scale constructed as at the date of her employment, January 2023, would probably yield a finding that she had no pre-existing impairment. The PIRS Rating Scale would present as follows:
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
1
Able to present appropriately at work, presumably.
Social and recreational activities
1
No evidence that these restricted
Travel
1
No impairment in ability to travel.
Social functioning
2
Emotional trauma in family [23]
2 siblings adopted out of family, reunion with one sister fell apart a few years ago[24]
Concentration, persistence and pace
1
Employed
Employability
1
Employed
[23] Dr Malik Appeal papers page 168.
[24] GP notes Appeal papers page 181.
Score Median Class
1
1
1
1
1
1
= 1
Aggregate Score Impairment Total %
1
+1
+1
+1
+1
+2
7
0%
There are conflicting decisions as to whether Chapter 11.10 is inconsistent with s 323,[25] but Chapter 11.10 provides in this case an effective tool for this calculation, which we accordingly apply. We note that Ms Miller’s pre-existing condition may have been a contributing factor to her baseline impairment – particularly as she had a similar experience in her prior employment with Property NSW and the Department of Finance, which would have in our view justified the deduction made by the Medical Assessor. However, in view of the conflicting decisions we prefer the above methodology.
[25] See Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616, and Matheson v Baptistcare NSW & ACT[2025] NSWSC 213: see also Camden Council v Harle [2022] NSWPICMP 339.
For these reasons, the Appeal Panel has determined that the MAC issued on
10 February 2025 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: | W29172/24 |
Applicant: | Amanda Miller |
Respondent: | Capgemini Australia Pty Limited |
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 Suneel Chamoli and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table – whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric | 28.3.23 | Chapter 11 | NA | 22 | Nil | 22 |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
0
13
0