Moyes v CASPA Services Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Moyes v CASPA Services Ltd [2024] NSWPICMP 524
APPELLANT:	Joshua Moyes
RESPONDENT:	CASPA Services Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	30 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant challenged the ratings of the Medical Assessor (MA) for permanent impairment in all psychiatric impairment rating scale (PIRS) categories except concentration, persistence and pace; challenge on the basis that the MA’s reasons did not reflect the evidence or correspond with the severity of impairment described by the examples in the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 for the respective rating; Held – the Medical Appeal Panel agreed; appellant re-examined; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 March 2024 Joshua Moyes, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 February 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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 for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The appellant worked as a therapeutic care worker for CASPA Services Ltd, the respondent, for a brief period at the start of 2018 and then again, following a brief period during which he studied, from June 2018. He ceased his employment in May 2019.
Due to several matters that occurred during his employment with the respondent, the appellant suffered a psychological injury.
The appellant claimed compensation from the respondent under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from his injury. He relied on a report dated 15 September 2023 that consultant psychiatrist, Dr Abdal Khan had prepared for his solicitor. Dr Khan advised in his report that the appellant had post-traumatic stress disorder, persistent depressive disorder and delusional disorder (persecutory type) and that the appellant’s employment with the respondent was the main contributing factor to these disorders. Dr Khan also advised that the appellant had an alcohol use disorder and substance/medication-induced psychotic disorder. Dr Khan advised that he assessed the degree of the appellant’s permanent impairment from his injury was 22% whole person impairment (WPI). Dr Khan made that assessment by reference to the Psychiatric Impairment Rating Scale (PIRS), the criteria for which the Appeal Panel observes is detailed at paragraphs 11.11 and 11.12 and Tables 11.1-11.6 of the Guidelines. Dr Khan’s ratings of the appellant’s impairment in the several scale categories were 2 for self-care and personal hygiene, 3 for social and recreational activities, 2 for travel, 3 for social functioning, 3 for concentration, persistence and pace, and 5 for employability.
On 21 November 2023 the respondent’s insurer issued a notice under s 78 of the 1998 Act in response to the appellant’s claim in which it advised the appellant it denied liability to pay compensation to him for permanent impairment from his injury. It advised him that its reason for disputing his claim was that it did not believe the permanent impairment from his psychological injury exceeded the threshold of at least 15% imposed by s 65A(3) of the 1987 Act for him to be entitled to compensation for permanent impairment under s 66 of the 1987 Act.
On 1 December 2023 the appellant’s solicitor, on behalf of the appellant, lodged with the Personal Injury Commission (Commission) an application to resolve a dispute seeking determination by the Commission of the appellant’s claim for compensation for permanent impairment of his injury. In its reply to that application, the respondent indicated that it had issued a Notice for Production on the appellant seeking that he produce various documents, to which the appellant objected. The respondent sought that the matter be referred to a member of the Commission to determine the appellant’s objection. That occurred, in that the matter was referred to Member Ms Karen Garner, who on 25 January 2024 set aside the Notice for Production the respondent had served on the appellant and further directed the matter be remitted to the President of the Commission for referral to a Medical Assessor. That referral occurred, and that matter accordingly found its way to the Medical Assessor, who examined the appellant on 5 February 2024 so as to assess that medical dispute between the parties regarding the degree of the appellant’s permanent impairment from his injury.

MEDICAL ASSESSMENT CERTIFICATE

The Medical Assessor provided the following summary at part 7 of the MAC:
“● summary of injuries and diagnoses:
He has presented with:
Ø Substance use disorder, which has variably included alcohol, opioids, stimulants which preceded the subject injury, and was potentially aggravated after the injury,
though due to the minimisation of his use, it is difficult to ascertain if he ever went into remission.
Ø ADHD which preceded the subject injury, commenced in childhood, and was treated for a while.
Ø Major depressive disorder, which preceded the subject injury, and was previously
treated with moclobemide for a while, and has recurred to some degree as a
consequence of the subject injury, with the persistent symptoms being difficult to
ascertain due to a degree of exaggeration of symptoms.
Ø While I appreciate he has a degree of post-traumatic stress symptoms, I am not
entirely convinced that he has been exposed to what would amount to a Criterion A,
and reviewing the accounts of his experiences at work, strikes me more as a moral
injury of how the young people were treated, or grievance with how he was treated by his managers, which appear to be the main instigation for these symptoms.
Ø His psychotic symptoms are difficult to diagnose, as they could be a consequence of ongoing substance use with a persistent drug-induced psychosis, or Schizophrenia (which I would be more inclined towards, due to the persisting nature, with periods of exacerbation under stress or substance use, and inclusive of bizarre hallucinations such as the wind talking to him and possible overall decline in his level of function), or a delusional disorder, as Dr Khan as postulated.
· consistency of presentation
There were significant inconsistencies with his presentation against the medical records available. These include:
Ø His history of substance use, whereby there were records of past intravenous drug use in 2013 that he denied, and a reference by Dr Graham George of amphetamine and opioid use leading to one admission, which the claimant has acknowledged the opioid use, though not any other substance use. He has acknowledged his problematic alcohol use, with onset in his 20s, and recurrence after the subject accident.
Ø He had a significant pre-existing psychiatric history of emotional disturbances, including depression and anxiety at least from 2011, requiring treatment with aurorix and consideration of a referral to a psychiatrist at the time. The claimant on the other hand minimised the severity of his depressive symptoms.
Ø His psychiatric symptomatology include post-traumatic symptoms, anxiety, depression and paranoia with hallucinatory experiences. The validity of these symptoms has been called into question by performance and symptom validity tests, though I do think he has a degree of genuine psychological, with a degree of exaggeration.
Ø The causation of his symptoms are fairly complex, partly due to the substance use and degree of minimisation (and which can be seen as a recurrence of a pre-existing disorder), how much can be attributed to the dexamfetamine treatment (which may be seen as a complication of treatment from a non-work-related disorder), and underlying personality factors (which was referenced by his treating psychiatrist).
Ø His level of psychiatric functioning is difficult to be ascertain with great clarity, as he has presented in today’s interview with a significant level of impairment, whereas there is evidence he was functional enough to attempt to return to work with an alternate employer (FACS), did a writing course with Curtin, had briefly worked at Cairns, had gone travelling including to the Gold Coast, and attended social events where he has been a victim of assault, as well as participated as a comedian, actor in a short film, attended a story-telling group.”
In the PIRS rating form within the MAC the Medical Assessor confirmed his diagnoses of the appellant’s injury as major depressive disorder, ADHD, substance use disorder and schizophrenia.
The Medical Assessor assessed the appellant’s impairment by reference to the PIRS, in regards to which he rated the appellant’s impairment in self-care and personal hygiene as Class 2, in social and recreational activities as Class 1, in travel as Class 1, in social functioning as Class 2, in concentration, persistence and pace as Class 3, and in employability as Class 3.
The appellant in his appeal against the medical assessment has challenged the Medical Assessor’s ratings of his impairment in all PIRS categories other than concentration, persistence and pace.
The Medical Assessor provided the following reasons in the PIRS rating form to explain his rating of the appellant in self-care and personal hygiene were as follows:
“He said he showers once or twice a fortnight, if he goes outside, and he said he puts on dirty clothes from the ground, and he does his laundry once every three months. He orders Uber Eats every day. He goes to the supermarket once a fortnight. He said he is
supported by Uniting Community, who provide him with a mentorship, and Living Positive Victoria, who provide a peer support worker who assists him to get groceries. He presented as a casually dressed, with a wool blanket over his shoulders and reasonably groomed. He had an average build and appeared to be his stated age. The social media investigation portrays a well-groomed man over several instances in time.
Dr Khan thought he had mild impairment, which I would agree with, as he has been able to shower regularly, and order Uber eats regularly, and shop. He has some community support, which may be related to moral support with the mentoring, and a degree of community support with the peer worker, but overall I do not think he is so impaired that he is reliant on regular community support.”
The reasons the Medical Assessor provided in the PIRS rating form to explain his rating of the appellant’s impairment in social and recreational activities were:
“He said he has two sisters and two brothers, and one brother deceased when he was 18 years old, and his father died when he was 21 years old. He has lost contact with his mother last year, and he has also lost contact with his siblings too, as he told them not to contact him, as he felt they did not understand him when he had a suicide attempt.
He had a lot of childhood friends, which fell apart in 2019, due to a couple of hospital admissions and when he was living with friends and he was paranoid about them and they did not seem to understand his distress, and did not respect him, and gossiping about his mental state. He said he has no friends he remains in contact with now. He said he has tried to re-connect with friends, which falls apart after a few weeks. He said he has not had a partner since 2019, when he was in a platonic relationship with another person since 2007. He said he had asked them to be a support person for an IME, and he felt they did not understand the severity of his stress, and the insurer was trying to organise their flights to the airport, and they did not want to ring the insurer.
He said he has tried to engage with a personal trainer, but he has not engaged with them since 2022. He said he has not attended any social events, and I raised a reference that he had travelled to the Gold Coast in 2022 and had attended a theatre show, and he said he had travelled there to get away from having to finish his assessments, and he said he met an escort while he was there, and he had been on diazepam, and he had stolen a bike and returned to the hotel room, and rang a friend to help him with flights which didn’t work out. He said he did not attend a theatre show at the Gold Coast. He said in Melbourne, he was arrested within a day and he felt unsafe. I asked if he went to night clubs, and he said he has not attended night clubs, and when I raised that there were references of him having altercations outside these venues, he said in 2019 he went to Los Angeles and he had capacity to work at the time, and on the desk top investigation he said they had said he went in 2021 from the desktop investigation which was not true. I raised that there was a reference of him being assaulted outside a gay venue on 4 January 2022, and he said he had reconnected with a friend and he had decided to go out to celebrate New Year.
There were several social media references in 2021 to 2022 of the claimant being involved in a comedy club, and being involved in a short film called Nanites which
was created in a couple of days in 2021, and depicted in a Moth in Melbourne Storytelling group, where he was tagged in the post at the time, and of a trip to the Gold Coast in 2022 and at the Sydney Pride March in 2023. He had been tagged by multiple friends as late as 2023, engaged in various social events, including at a storytelling group in 2022, Sydney Pride in 2023, Gold Coast in 2022, Surfer’s Paradise in 2022, Byron Bay Festival in 2020, Comedy club in 2022, Midsumma Pride March in 2021. There were also multiple criminal and civil court matters relating to him from 2014 to 2023. The outcome of the investigation report was that “the Claimant had conducted numerous social and work-related activities after the alleged injury, all of which appeared to contradict his alleged limitations and lack of capacity. As such, if further evidence is required, we highly recommend covert surveillance be undertaken against the claimant from a scheduled medical appointment”. The claimant alleged that a lot of the posts were re-posts from the time prior to the subject injury, though this is not consistent with some of these posts being timestamped and only possible to be held after the subject injury.
Given the extensive evidence from medical records from his GP and social media investigation, I am of the opinion he has been regularly attending venues of social events, both locally such as to comedy clubs, story-telling groups and gay venues, as well as further afield as the Gold Coast. While his obfuscation makes it difficult to determine to what degree this has been impaired by his injury, I would say it would be at a minor impairment at most.”
The Medical Assessor provided the following reasons in the PIRS rating form for his rating of the appellant’s impairment in travel:
“He said he drives locally, alone, and he struggles to travel longer than that alone. He has not left the house since before the New Year.
He had been able to travel to the Gold Coast and to Sydney.
I am not convinced his impairment is more than a minor impairment.”
The Medical Assessor provided the following reasons in the PIRS rating form to explain his rating of the appellant’s impairment in social functioning:
“He said he has two sisters and two brothers, and one brother deceased when he was 18 years old, and his father died when he was 21 years old. He has lost contact with his mother last year, and he has also lost contact with his siblings too, as he told them not to contact him, as he felt they did not understand him when he had a suicide attempt.
He had a lot of childhood friends, which fell apart in 2019, due to a couple of hospital admissions and when he was living with friends and he was paranoid about them and they did not seem to understand his distress, and did not respect him, and gossiping about his mental state. He said he has no friends he remains in contact with now. He said he has tried to re-connect with friends, which falls apart after a few weeks.
He said he has not had a partner since 2019, when he was in a platonic relationship with another person since 2007.
While there is no contradictory evidence as to what his current relationship with his family or partner are, there are no other corroborative evidence as to the veracity
of his claims.
There were several social media references in 2021 to 2022 of the claimant being involved in a comedy club, and being involved in a short film called Nanites which
was created in a couple of days in 2021, and depicted in a Moth in Melbourne Storytelling group, where he was tagged in the post at the time, and of a trip to the
Gold Coast in 2022 and at the Sydney Pride March in 2023. He had been tagged by multiple friends as late as 2023, engaged in various social events, including at
a storytelling group in 2022, Sydney Pride in 2023, Gold Coast trip in 2021, Surfer’s Paradise in 2022, Byron Bay Festival in 2020, Comedy club in 2022,
Midsumma Pride March in 2021.
There is evidence that he has maintained friendships over the recent few years. He may have alienated his family, his partner and other friends; though the cause
of this is unclear, with other factors including his substance use being a potential reason.
Taking these factors into account, I think it is reasonable to compromise with a finding of mild impairment.”
The Medical Assessor provided the following reasons in the PIRS rating form to explain his rating of the appellant’s impairment in employability:
“He said in 2022, he had attempted to enrol in a performance study course through Collarts, and he said he had attended only one class over six months, and struggled in the second semester. He had studied Creative Writing at Curtin in 2019 to 2021, and he said it was all online, and he said it created suicide attempts for him, and he dropped out a lot of units. He said he completed about 10 units of study.
He said he had secured two jobs, and one of them discriminated against him with NSW FACS and in 2020 he had driven to Cairns at DOCS, and he was hearing voices, and he had an episode in public at the start of COVID and had a panic attack. His image was displayed on Facebook and he felt humiliated in public.
He had worked there for 2 weeks, and he was having panic attacks in the morning and hearing voices at his desk. He said he has not undertaken any other work, though he had tried to volunteer at anonymous meeting, but he has not been able to do so.
The social media investigation revealed that the claimant had been involved as a stand-up comedian at comedy club, and was an actor in a short film called Nanites, which was created in a couple of days in 2021. This is inconsistent with not being able to work at all, and inconsistent with not being able to work in front of a group of people, which takes a lot of social skills and emotional management.
Taking these contradictory findings into account, I think that he has demonstrated that while he is not able to undertake his pre-injury role, he has the capacity to work in casual roles, so he has moderate impairment at most.”

The Medical Assessor noted that the median of his class scores for his ratings of the appellant’s impairment in the several PIRS categories is 2 and that the aggregate of his scores is 12, which converts to 6% WPI.
The Medical Assessor identified that the appellant had pre-existing conditions in the form of major depressive disorder, ADHD and substance use disorder. The Medical Assessor considered that a proportion of the appellant’s WPI was due to these pre-existing conditions and made a deduction of 10% under s 323(1) on account of that when assessing the degree of the appellant’s permanent impairment from his injury. The Appeal Panel notes that no issue has been raised in the appeal against the medical assessment regarding the Medical Assessor’s finding that the appellant had these pre-existing conditions or regarding the Medical Assessor making a deduction under s 323(1) of the 1998 Act.
The Medical Assessor also added 1% WPI for “a treatment effect” and it is apparent to the Appeal Panel that the Medical Assessor did so pursuant to paragraph 1.32 of the Guidelines.
After making a deduction of 10% under s 323(1) of the 1998 Act and adding 1% WPI under paragraph 1.32 of the Guidelines, the Medical Assessor assessed, and certified, that the degree of the appellant’s permanent impairment from his injury was 6% WPI.
The Medical Assessor also certified that the appellant’s impairment is permanent and that the degree of his permanent impairment is fully ascertainable. No issue is raised with respect to these matters in the appeal against the medical assessment.

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 the appellant should undergo a further medical examination. This is because the Appeal Panel found that the MAC contained demonstrable errors. The Appeal Panel’s reasons for this finding are explained below. Because the Appeal Panel found errors, it consequently needed to correct the errors. The Appeal Panel considered that to obtain the necessary clinical data to be able to do this it needed to re-examine the appellant.
The Appeal Panel appointed Medical Assessor Graham Blom, one of its members, to conduct that examination. He did so on 7 June 2024 and has provided his report on his examination to the Appeal Panel, which is set out below.

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.

SUBMISSION, 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.

Self-care and personal hygiene

Submissions

The appellant’s submissions regarding the Medical Assessor’s assessment of his impairment in this PIRS category were, in summary, that the evidence before the Medical Assessor revealed that he cannot adequately support himself. The appellant referred to parts of a statement he signed on 30 November 2023 to support his contention that he cannot care for himself adequately. The appellant also referred to some of the content of a letter that
Ms Diane McLaren signed, and submitted this provided objective corroboration of his evidence. The Appeal Panel observes that Ms McLaren is a community support worker providing services to the appellant.
The appellant submitted that the Medical Assessor erred by not referring to the evidence contained in his statement and Ms McLaren’s letter.
The appellant noted that the Medical Assessor recorded in the MAC that he has community support which the Medical Assessor said “may be related to moral support with mentoring, and a degree of community support from a peer worker, but overall, I do not think he is so impaired that he is reliant on regular community support”. The appellant submitted the Medical Assessor saying this this reflected the Medical Assessor downplaying the evidence regarding the support he is provided and amounted to speculation on the part of the Medical Assessor.
The appellant submitted that the Medical Assessor wrongly relied on how he had been depicted on a “handful of occasions” in social media extracts that were in evidence, rather than having regard to all of evidence relating to his daily living habits and circumstances.
The appellant noted that the last piece of social media was in March 2023, which he observed was almost a year before the Medical Assessor examined him. The appellant submitted, to the effect, that the Medical Assessor relying on social media was inconsistent with the Medical Assessor being required to assess his impairment as it was at the time of assessment.
The appellant submitted that he satisfies the criteria for a rating of Class 3 in self-care and personal hygiene and insofar as the MAC records the Medical Assessor’s of a Class 2 rating, the MAC contains a demonstrable error. Further the appellant submitted that the Medical Assessor based his assessment on incorrect criteria.
In response, and in summary, the respondent submitted that the appellant’s subjective assessment of his self-care and personal hygiene, as contained in his statement, cannot be relied on as the sole basis by which the Medical Assessor was to make his assessment of the appellant’s impairment. The respondent also noted that the appellant’s statement was dated more than two months prior to the medical assessment.
The respondent also submitted that Ms McLaren’s evidence could not be relied on as her qualifications and expertise were unknown. The respondent submitted that, because Ms McLaren’s letter was undated, it was unknown when she made her observations of the appellant’s capacity and consequently it could not be known whether there has been any improvement in the appellant’s conditions since she signed her statement.
The respondent submitted that it was appropriate for the Medical Assessor to rely on how the appellant was depicted in social media because the appellant had failed to disclose his recreational activities to various clinicians who had examined him.
The respondent submitted that the appellant had not established that the MAC contained a demonstrable error with respect to the Medical Assessor’s assessment of his impairment in self-care and personal hygiene and the appellant had also not established that the Medical Assessor based his assessment on incorrect criteria.

Consideration

The Appeal Panel observes that the examples provided in Table 11.1 of the Guidelines for a Class 2 impairment in self-care and personal hygiene are “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”.
The Appeal Panel agrees with the appellant’s submission to the effect that the Medical Assessor did not have proper regard to all of the relevant parts of the evidence that was before him when rating the appellant’s impairment in self-care and personal hygiene. The Appeal Panel agrees with the appellant that, based on the evidence before the Medical Assessor, the Medical Assessor was wrong to conclude that the support the appellant is being provided by Uniting Community and Living Positive relates to moral support rather than support to ensure the needs of the appellant with respect to his care and personal hygiene are met.
The Appeal Panel notes that the appellant said in his statement was that the external support he is provided is to assist him with self-care and domestic duties. That evidence is corroborated by the content that an accredited mental health care social worker, namely Tori Pearce, provided in an application the appellant made to the National Disability Insurance Scheme (NDIS) for funding for assistance (NDIS application). Ms Pearce in the NDIS application, which she signed on 21 August 2023, stated that she had been treating the appellant since 27 January 2023 with respect to his diagnosis of major depressive disorder with anxious mood and PTSD. She also expressed her opinion that the appellant likely experiences a paranoid personality disorder.
Ms Pearce also expressed her view in the NDIS application that the appellant is unable to care for himself fully when he is experiencing a high level of symptoms and that he neglects to attend to his hygiene or grooming tasks and other health needs. Ms Pearce said that this may persist for several days or more and that the appellant requires additional support with his activities of self-care.
The Appeal Panel also notes that in a letter dated 13 September 2023 that the appellant’s clinical psychologist, Ben Fletcher, wrote addressed “to whom it may concern”, and which bore the title “support for NDIS application”, Mr Fletcher said that the appellant had attended on him for psychological support between November 2021 and September 2022 and that throughout that period the appellant’s presentation remained consistent with a PTSD diagnosis. Mr Fletcher indicated that he had read “the report” of Ms Pearce, which the Appeal Panel infers is that part of the NDIS application that Ms Pearce had completed and signed. Mr Fletcher said that Ms Pearce’s report “provides a detailed and current account of the debilitating impact of [the appellant’s] mental health issues”. Mr Fletcher said that the appellant’s presentation over the time he treated him was “consistent with that report”.
Given that evidence, in the Appeal Panel’s view the Medical Assessor was wrong to conclude that the external support that has been provided to the appellant is for moral support. The Appeal Panel considers that the right conclusion is that the appellant requires professional assistance to ensure his needs with respect to his self-care and personal hygiene can be met. Consequently, the Appeal Panel considers that the appellant’s impairment in his self-care and personal hygiene is more severe than that described by the examples provided in Table 11.1 for a Class 2 impairment, and consequently the Appeal Panel finds that the Medical Assessor made an error by rating the appellant’s impairment in self-care and personal hygiene as Class 2.

Social and recreational activities

Submissions

The appellant submitted, in substance, that the Medical Assessor’s assessment of his impairment in this PIRS category was based on social media, which the appellant contended revealed he had attended five events between March 2021 and March 2023, and that these events were months apart. The appellant submitted that what was revealed in the social media was an exception to what was revealed by the overall body of evidence, which the Appellant submitted established he rarely leaves his home.
The appellant referred again to his statement of 30 November 2023 wherein he said that he has completely withdrawn from social and recreational activities, whereas previously he enjoyed outings and exercising, and spending time with family and friends.
The appellant submitted that the Medical Assessor failed to refer to the evidence of Ms McLaren wherein she recorded the appellant’s isolation.
The appellant submitted that the Medical Assessor by rating his impairment as Class 1, rather than Class 3, made an error such that the MAC contains a demonstrable error. The appellant submitted that the Medical Assessor’s assessment of his impairment in social and recreational activities was based on incorrect criteria.
In reply the respondent submitted that the appellant’s statement “was quite clearly prepared to address the desktop investigations and circumstances where he had failed to inform any medical practitioner of the activities disclosed by their reports”. The Appeal Panel notes that the evidence relating to social media was contained in a report dated 22 June 2020 prepared by Procare C & A Investigations for the respondent’s insurer, and which is titled Desktop Investigation Report, and in a report dated 28 March 2023 prepared by A B Investigations for the respondent’s solicitors and which is titled Confidential Background/Social Media Search Report.
The respondent noted that the events at which social media indicated the appellant attended occurred between 2020 and 2022, which was when the COVID-19 pandemic occurred, and the respondent submitted that the appellant would have been restricted in his social and recreational activities at these times due to the pandemic. The respondent submitted that “it is therefore disingenuous to suggest that his activities were limited solely to the effects of his psychological injury in such circumstances”.
The respondent repeated the submissions it made regarding the assessment of the appellant’s impairment in self-care and personal hygiene insofar as they related to
Ms McLaren’s evidence.
The respondent submitted that the appellant is seeking to cavil with matters regarding the Medical Assessor’s clinical judgment regarding his assessment of the appellant’s impairment in social and recreational activities.

Consideration

The examples provided in Table 11.2 of the Guidelines for a Class 1 impairment in social and recreational activities are “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”.
The Appeal Panel is again of the opinion that the Medical Assessor did not have proper regard to all of the evidence that was before him when rating the appellant’s impairment in social and recreational activities. The appellant in his statement of 30 November 2023 said that he previously enjoyed outings and exercising and spending time with family and friends. He said that he no longer engages in social activities and prefers to remain at home by himself. He said that he has said no to attending a lot of gatherings.
His evidence is again corroborated by what Ms Pearce said in the NDIS application, in that in answer to one of the templated questions she noted that the appellant “withdraws moderately” from social contact.
The information from social media that is detailed in the reports of both Procare and AB Investigation indicate that the appellant attended limited events over a two-year period. That on its face indicates that the appellant in the past had some capacity for social and recreational activities, but when considered in light of the appellant’s evidence that he rarely leaves his house, it does not indicate that the appellant has no deficit or a minor deficit attributable to the normal variation of the general population with respect to his social and recreational activities. Contrary to what the Medical Assessor said in his reasoning for rating the appellant’s impairment in social and recreational activities as Class 1, the Appeal Panel can find no reference within the medical records from the appellant’s GP to support a rating of the appellant’s impairment in social and recreational activities as Class 1.
The Appeal Panel considers, consequently, the Medical Assessor erred by rating the appellant’s impairment as Class 1. In the Appeal Panel’s view the appellant’s capacity in this category does not correlate with an impairment described by the examples provided for a Class 1 rating. The appellant’s impairment is more severe than that.
Consequently, the Appeal Panel concludes that the Medical Assessor has erred by rating the appellant’s impairment in social and recreational activities as Class 1 and as a consequence of that error the MAC also contains a demonstrable error.

Travel

Submissions

The appellant submitted that the Medical Assessor’s reasoning for rating his impairment in travel as Class 1 is inconsistent with a Class 1 rating. The appellant noted that the descriptor for a Class 1 rating is “can travel to new environments without supervision”. The appellant highlighted that the Medical Assessor’s reasoning included that he drives locally alone but struggles to travel alone longer than that.
The appellant highlighted that the descriptor for a Class 2 impairment is “can travel without a support person, but only in a familiar area such as local shops, visiting a neighbour”. The appellant submitted that the fact that he can only travel locally alone and struggles to travel longer than that when not alone indicates he has a Class 2 impairment.
The appellant submitted that the fact that in the past he has travelled to the Gold Coast and to Sydney is not to be considered as travelling to an unfamiliar area because he is familiar with these areas from prior employment when he worked with Jetstar and Virgin as a flight attendant.
The appellant submitted that the Medical Assessor erred by rating his impairment in travel as Class 1 and based his assessment on incorrect criteria.
The respondent submitted that the appellant is seeking to cavil with matters of clinical judgment with respect to the Medical Assessor’s rating of his impairment in travel. The respondent submitted that the appellant did not establish the MAC contained a demonstrable error with respect to the Medical Assessor’s rating of the appellant’s impairment in travel nor did the appellant establish the Medical Assessor applied incorrect criteria.

Consideration

The Appeal Panel agrees with the appellant’s submissions. The fact that the appellant struggles to travel outside his local area when not alone does not correlate with an impairment described by the examples provided for a Class 1 impairment, that is he can travel to new environments without supervision. The fact that the appellant has difficulty travelling outside of his local area when alone better aligns with a severity of impairment described by the examples for a Class 2 rating. Consequently, the Medical Assessor erred by rating the appellant’s impairment in travel as Class 1. That error is such that the MAC contains a demonstrable error.

Social functioning

Submissions

The appellant submitted that the Medical Assessor’s rating of his impairment in social functioning as Class 2 was contrary to the evidence and consequently an error. The appellant submitted that the Medical Assessor’s reasoning in the PIRS rating form for rating his impairment as Class 2 indicated a severity of impairment much greater than Class 2.
The appellant referred to what he said in his statement of 30 November 2023 regarding his loss of friendships. The appellant submitted that the Medical Assessor’s reference in his reasoning to the outings he has attended was not relevant to his capacity in social functioning. The appellant submitted that the Medical Assessor was wrong to consider factors outside of social functioning and erred by “compromising” these factors with relevant factors when determining his impairment in social functioning.
The appellant submitted that there was a clear temporal relationship between his loss of relationship and his compensable injury.
The respondent submitted that it is clear that the Medical Assessor when rating the appellant’s impairment in social functioning had regard to the relevant clinical history including both matters that were disclosed in the investigation reports and the appellant’s loss of relationships. The respondent submitted that the Medical Assessor was entitled to use his clinical judgment, having regard to the relevant history, to rate the appellant’s impairment as he did in social functioning.
The respondent submitted that the appellant’s outings, insofar as they involved the appellant maintaining relationships with others, was a relevant factor for the Medical Assessor to consider when rating his impairment in social functioning.

Consideration

The Appeal Panel agrees with the respondent that the Medical Assessor did not make an error by having regard to the outings that the social media indicated the appellant had attended and this is because the Medical Assessor’s focus when doing this was on the appellant’s maintaining relationships with friends at those outings. This is apparent to the Appeal Panel because the Medical Assessor noted that the appellant “had been tagged by multiple friends” relating to these events. An activity in which a worker engages may involve many different types of conduct. What a Medical Assessor is required to do is to characterise the various elements of conduct that may be involved in a particular activity as falling within one or other of the PIRS categories. If a Medical Assessor correctly does that then the Medical Assessor will not have made an error of the type identified in Ballas v Department of Education (State of NSW)[1]at [94].
[1] [2020] NSWCA 86.
In the Appeal Panel’s view, and as just indicated, the purpose of the Medical Assessor’s consideration of the appellant’s social outings depicted in the social media when rating the appellants impairment in social functioning, was to consider the appellant’s ability to maintain relationships with friends. That did not involve the Medical Assessor incorrectly characterising conduct of the appellant within the domain of social functioning. That, of itself, is therefore not an error.
However, the Appeal Panel considers that the Medical Assessor did not do sufficient to establish whether others “tagging” the appellant’s photos in social media involved his maintaining friendships with these people. It is not evident from the MAC that the Medical Assessor made that enquiry of the appellant during his examination of him, and it seems to the Appeal Panel the likelihood is he did not because otherwise the Medical Assessor would have said so in the MAC.
The Medical Assessor noted within the MAC that the appellant had lost childhood friends subsequent to his injury “due to hospital admissions” and because he was “paranoid about them” and they “did not respect him”, and were “gossiping about his mental state”. The Medical Assessor noted that the appellant reported that he has no friends with whom he currently remains in contact. The Medical Assessor noted that the appellant has not had a partner since 2019.
The Medical Assessor indicated that there was no contradictory evidence. Consequently, there was no reason for the Medical Assessor not to accept that history.
The descriptors provided in Table 11.4 of the Guidelines for a mild impairment are:
“Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
In the Appeal Panel’s view, noting the evidence, including the history the Medical Assessor obtained, indicates that the appellant currently has lost most of his friendships and is estranged from his family, the Appeal Panel considers the Medical Assessor was wrong to correlate the appellant’s current capacity in social functioning with the descriptors provided for a Class 2 rating. His estrangement from his family and his loss of friendships indicates a more severe impairment.
That error of the Medical Assessor amounts also to a demonstrable error.

Employability

Submissions

The appellant submitted that the Medical Assessor’s rating of his impairment in employability as Class 3 is inconsistent with the evidence including the assessment of Dr Khan and also that of Professor Khalid, whom the Appeal Panel notes is a consultant psychiatrist who advised the appellant’s solicitors in a report dated 23 June 2022 that he had rated the appellant’s impairment in employability as total. The appellant also highlighted that
Dr George considered he was totally incapacitated for employment. The Appeal Panel notes that Dr George is a consultant psychiatrist whom the respondent’s lawyers engaged to provide forensic reports.
The appellant noted that the Medical Assessor’s reasoning for rating his impairment as Class 3 included that he had been involved at a comedy club as a stand-up comedian and had been involved in a short film that took two days to create in 2021. The appellant submitted the evidence did not indicate whether he actually performed at the comedy club and, if he did, for how long he performed. The appellant submitted that his involvement in a short film did not indicate whether he could perform or perform well.
The appellant submitted that his voluntary involvement at a comedy club and his participation in a short film is to be distinguished from employment in which he would have specific responsibilities and be subject to the authority of strangers. The appellant submitted that the evidence indicated he could not get ready for work, find a way to work and discharge work tasks.
The appellant submitted that the Medical Assessor made an error by rating his impairment as Class 3.
The respondent submitted that Professor Khalid did not have regard to the evidence within the desktop investigation reports and as a consequence his assessment can be given little to no weight. The respondent also referred to the opinion Dr George expressed in his report of 23 June 2023 which was that he did “not believe that one could state that [the appellant] is not incapable of employment”. The respondent also referred to the report of Dr McMahon, a clinical psychologist, who in a report of 6 June 2023 said he was unable to make a determination regarding the appellant’s capacity in employment due to obfuscation by the appellant and the appellant’s feigning behaviour.
The respondent submitted that the Medical Assessor’s rating of the appellant’s impairment in employability is consistent with the evidence of Dr George and Dr McMahon.
The respondent submitted that it could be presumed the Medical Assessor asked relevant questions that were germane to the enquiry regarding the appellant’s employability. The respondent submitted that the appellant was seeking to cavil with matters relating to the clinical judgment by the Medical Assessor regarding his assessment of the appellant’s capacity in employability.

Consideration

The Appeal Panel notes that the descriptors provided in Table 11.6 for a Class 3 rating in employability are:
“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 (e.g. less stressful).”
The matters by reference to which the Medical Assessor rated the appellant’s impairment in employability are those that he articulated in the PIRS rating form. The respondent submitted that it can be presumed that the Medical Assessor would have asked all relevant questions relating to his being able to assess correctly the appellant’s impairment in employability. Whatever questions the Medical Assessor asked of the appellant is to be inferred from the MAC, especially the reasons the Medical Assessor provided in the PIRS rating form for his rating. In other words, what the Medical Assessor considered relevant with respect to assessing the appellant’s impairment in employability, and what questions he likely asked of the appellant, is discerned by his reasoning as articulated in the PIRS rating form.
The Appeal Panel considers that what the Medical Assessor articulated does not correlate with an impairment described by the descriptors for a Class 3 impairment in Table 11.6, and it is likely that the Medical Assessor did not interrogate the appellant sufficiently to ascertain the appellant’s capacity in employability.
The Appeal Panel agrees with the appellant that the appellant’s involvement with a comedy club in 2021 and his brief involvement with a short film in 2021 provides little insight into what the appellant’s capacity in employability is currently. The Appeal Panel notes that the Medical Assessor recorded that subsequent to the appellant’s involvement in a comedy club and his participation in a short film, he attempted to enrol in a performance study course but struggled with the second semester of that course. The Appeal Panel further notes that the Medical Assessor also recorded that the appellant attempted a creative writing course between 2019 and 2021, which the appellant was unable to complete and which precipitated suicide attempts.
The Appeal Panel notes that the Medical Assessor recorded that in 2020 the appellant had attempted to work for NSW FACS and also DOCS in Cairns, but lasted only two weeks in those positions.
In the body of the MAC the Medical Assessor also indicated the appellant had not undertaken any other work but “had tried to volunteer at an anonymous meeting but he has not been able to do so”.
The Appeal Panel observes that in the most recent Certificate of Capacity that the appellant’s general practitioner completed, which was for the period 22 July 2023 to 18 August 2023, she certified that the appellant had no capacity for employment. Further, the content of the NDIS application that Ms Pearce completed on 21 August 2023 also indicates that the appellant then had no capacity for employment.
The Appeal Panel considers that the evidence indicates that the appellant’s impairment in employability was more severe than that described by the descriptors for a Class 3 impairment in Table 11.6. Consequently, the Appeal Panel finds that the Medical Assessor again made an error with respect to his rating of the appellant’s impairment in employability such that the MAC contains another demonstrable error.

Re-examination

As the MAC contains demonstrable errors the Appeal Panel must correct those errors. As noted earlier, the Appeal Panel considered it required further clinical data to do that and consequently assigned Medical Assessor Blom to re-examine the appellant so as to obtain that clinical data. Medical Assessor Blom provided the Panel with the following report on his examination:
“PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W9090/23
Appellant:	Joshua Moyes
Respondent:	CASPA Services
Date of MAC:	18 April 2024

Examination Conducted By:	Dr Graham Blom
Date of Examination:	7 June 2024

1.The workers medical history, where it differs from previous records
The history provided by Medical Assessor Shen was relatively brief, so given the complexity of the case I attempted to clarify certain points.
Mr Moyes began working with CASPA in 2018. He only worked briefly before leaving for a couple of months but then began working full-time from about June 2018. During his time at CASPA he was confronted with what he considered inadequate client care which at times, he thought bordered on negligence. He also felt that his supervisors’ response to his complaints was completely inadequate. He felt that he was targeted and picked upon because of this. As well he had to deal with extremely difficult young clients and was confronted with multiple suicide attempts including at one point having to cut down a young girl who had attempted to hang herself. In November 2018 one client that he had cared for committed suicide which caused him marked distress. He also complained of working excessively long hours. He said that he had two brief hospital admissions towards the end of 2018 and/or at the beginning of 2019 - these admissions were a result of Mr Moyes attempting to harm himself. At this point, he had already begun to experience significant anxiety and depressive symptomatology. From his description, it would appear that he was admitted under the Mental Health Act but only remained in hospital briefly as he said that he absconded. He said that he hadn’t previously mentioned this because he was frightened about what would be the consequences of his having absconded.
He returned to work briefly in 2019 and was confronted with another suicide attempt by a client in March 2019. Subsequently Mr Moyes ceased work in May 2019.
At this point he was living in Brunswick Heads, New South Wales. He began seeing a psychologist, Mr Pedro Campio, from 2019 through to 2020 and at some point, said that he attempted to return to work at CASPA but this again failed. He also consulted a psychiatrist during this period and was treated with antidepressants, primarily moclobemide, as well as dexamphetamine for ADHD.
He then moved briefly Queensland – he said that he drove to Cairns but that during the trip he had multiple panic attacks. He obtained a job working with DOCS in Queensland but only was able to maintain this work for two weeks. He then flew to Melbourne, leaving his car in a friend’s backyard. He said that at this point he was feeling anxious and overwhelmed and he moved to Melbourne because his grandparents lived there. He said that this was around June 2020. He has remained in Melbourne since that time. He has been living in rental accommodation by himself for most of that time and continues to do so. Since moving to Melbourne his overall symptomatology has deteriorated with substantial anxiety, nightmares, re-experiencing phenomena, social withdrawal and deteriorating psychotic symptomatology. He had periods of heavy alcohol abuse, drinking up to 15 standard drinks at a sitting on multiple days a week as well as using amphetamines as treatment for his purported ADHD. At this time, following an admission to hospital the possibility was raised that this combination at least led to the development of psychotic symptomatology. He was admitted to the Alfred Hospital, Melbourne semi-naked and in a very disordered and clearly psychotic state in June 2021.
In early 2022 he was involved in an altercation in a situation where he’d been drinking very heavily. He gave a rather confused story about him attempting to catch a cab but became frightened and hid in a laneway. Subsequently he said he was robbed and stabbed in the buttocks and admitted overnight to hospital. He was readmitted a week or two later as the wound became infected. According to Mr Moyes his assailants were subsequently apprehended by the police, charged and jailed and he had to give evidence in their case.
He had a further admission to the Alfred Hospital he said in about September 2022 in the context of heavy alcohol use and further significant psychotic symptoms, resulting in another suicide attempt. He said that he was discharged after only an overnight admission. At this point he said that he had been fearful that cameras had been set up and were watching him and the people were taking photos of him on the street. He was fearful that this was part of a larger conspiracy against him, although his description of the details was confused and vague. A couple of months after his discharge from the Alfred he was admitted, by his psychiatrist at the time, to the Victoria Clinic, a private hospital, where he remained for about two weeks. From about late 2021 and onwards he consulted a psychologist, Mr Ben Fletcher and psychiatrist, Dr Matili Das. During this period, he was primarily treated with quetiapine in what appears to have been moderately high doses as well as continuing moclobemide, at doses up to 450 mg/day. He also was using diazepam, and has continued to do so, currently at a dose of 5 – 10 mg/day although he increases this at times of increased anxiety.
Since his last admission in 2022 to the Victoria clinic he said he has not made any further suicide attempts nor has he had any further admissions to hospital. He continues to live alone in his apartment although has had ongoing conflict with his neighbours who have made noise complaints against him. This appears to be because he tends to sing quite loudly as well as listen to TV and music late at night with volume reasonably high. When I asked him why he did this, he said that it was to control ongoing auditory hallucinations (‘voices’). Mr Moyes said that he had had auditory hallucinations since at least 2021, quite possibly earlier. His hallucinations are of 2 types - firstly command hallucinations, that is voices which tell him to do or do not do certain things. The other tends to be commentary type hallucinations usually of a derogatory nature telling him he is stupid or that he is doing something badly. He continues to be fearful about being watched, filmed, or recorded. This also appears to have been present at least intermittently for several years. His admission to the Alfred clinic under the Mental Health Act appears to have been associated with delusions of this nature.
Over the last several years Mr Moyes has made several attempts to form or sustain relationships, but these have all inevitably failed. He has made contact with old friends but eventually had arguments with them because he feels that they do not understand him or are being critical of him. He has attempted to attend a gym and had two personal trainers but had to cease with both of them because he felt that they were being critical of him. During 2019 through 2020 he attempted to undertake a course in creative writing. He did sustain this sufficiently to obtain about 6 units, although this took a considerable amount of time. When I asked him exactly what a unit involved it, it involved him only doing the assessment which was 3 short stories varying in length between 700 and 1500 words. This took him about 12 weeks/unit to achieve. He said that he did not do any other course work. He also said that he attempted a ‘comedy course’ in 2020 but was forced to cease this because he felt the people were talking about him and committing what he called ‘micro aggressions’. During this time, he had been assisted by a “support worker” Ms Deborah McLaren, who saw him via video link over several years, however when Mr Moyes began receiving support from Positive Living, his association with Ms McLaren had to finish. Unfortunately, this left Mr Moyes feeling that she had abandoned him and had treated him badly by leaving as soon as she had the opportunity.
Over the last couple of years has formed various brief ’friendships’ over the Internet through homosexual dating sites but these have all ended usually because he feels persecuted and attacked. He repetitively spoke of how people do not understand him or are openly persecutory of him. He often has suicidal thoughts because he feels alone and misunderstood. In 2023 he attempted a day program at Dalmont suites, I gather a private facility in Melbourne but ceased due to conflict with the staff. He joined an AA group in 2022 and has continued to maintain sobriety now for over 12 months. However he no longer attends meetings because they are too far for him to drive to and he felt abandoned, angry and misunderstood by the members of the Branch because they would not drive him to the meetings.
Over the past 12 to 18 months, Mr Moyes symptoms have overall deteriorated. He has become increasingly withdrawn and isolated within his apartment which according to the review of Mr Jarrah Brown and supported by the evidence that Mr Moyes provided, has become increasingly squalid and uncared for. Along with Mr Moyes withdrawal, he has become increasingly psychotic. Early in the interview with myself he commented that the review seemed to be a waste of time as we (the WCC) already knew what was happening to him. When I questioned him about this, he said that he knew that the commission had cameras and recording devices in his apartment. He seemed to have some insight into the bizarre nature of this claim and then dismissed it as ‘just a thought’ but given his responses throughout the interview I believe that this in fact was a delusion that to varying degrees he held onto. Certainly, he continues to feel the people often record him, follow him and in some way that he is unclear about have formed a significant conspiracy of which he is the object. He hears voices regularly he said as described above. He described his mood as despairing and hopeless although did not present this way (see mental state examination). He continues to experience significant anxiety, although this seems to be increasingly focused on delusional material. Nevertheless, he said that he constantly thinks about what happened to him at work and continues to experience nightmares and intrusive thoughts associated with anxiety on a reasonably regular basis.

Additional history since the original Medical Assessment Certificate was performed.
There does not appear to have been any significant change of deterioration in Mr Moyes symptomatology, or level of impairment from my assessment over the 4 months since the previous MAC.
There has, however, been some changes in his overall circumstances. Mr Moyes has been assessed for and accepted on to the NDIS within the last month. It is planned that he will get support in tidying and cleaning his house as well as assistance in engaging in social activity, or at least getting him outside of the house as well as ensuring that his diet is improved. He is also being supported by Living Positive that have been providing 3 meals/week for him for the last several months.
I do not believe that Mr Moyes was being deceptive or dishonest during this interview. The interview was conducted via teleconference and his support worker, Mr Emile Canita, was present through most of the interview but at a different location. Whilst he was not active in the interview, he did not dispute any of the above history.
2.Current Treatment
Currently Mr Moyes consults a psychologist, Mr Brad Rooney, once every 2 weeks. Mr Rooney appears to be using CBT techniques but also substantial supportive therapy. He no longer consults a psychiatrist, on a regular basis. His current medications are:
diazepam 5 – 10 mg/day
Moclobemide 300 mg twice daily
melatonin 2 mg/night.
He has also recently started Cannabidiol (CBD) oil to assist sleep and reduce anxiety. He takes 4 drops twice-daily, and 10 drops at night. He is no longer taking any antipsychotic agent as he ceased his quetiapine over 12 months ago.
He also has support from Living Positive which provides him with meals on 3 days/per week as well as social and emotional support.
He has recently been accepted onto the NDIS. I believe that he will continue to be supported through Living Positive but will receive more services including house-cleaning and a worker to assist in his socialising.
3.Current symptoms.
Mr Moyes continues to experience a range of symptoms consistent with PTSD, although at this presentation I believe that his psychotic symptoms were more prominent and concerning.
He describes daily anxiety which has a panic quality, characterised by gastrointestinal symptoms, racing heart, tension and ruminations. These ruminations tend to be about both his perceived ill-treatment at his workplace as well as episodes of perceived ill-treatment that have occurred since. He continues to have trouble with sleep and wakes at least 4 to 5 times/night. His sleep is sometimes disturbed by nightmares from which he often wakes in an anxious state. The nightmares are no longer well-formed, and he described them as vague and chaotic. He still gets triggered into anxiety by things that remind him of CASPA, for example stories on television. He is markedly avoidant and withdrawn and said that he rarely leaves his house, although this appears to be more related to the psychotic symptoms that I will describe rather than his concern about triggering experiences.
Mr Moyes continues to experience significant auditory hallucinations. It was quite evident that he was aware that these were unusual, and he tended to try to explain them with statements such as ‘they’re just my thoughts’, but when given space to talk about these experiences, it was clear that he acts on and feels quite overwhelmed by them, at times. He said that he sings regularly and loudly as an attempt to distract himself and turned the TV up to high volume in order to drown them out. As mentioned, this has caused difficulties with his neighbours. The hallucinations tend to be of 2 types – command types, telling him to do or not do things, for example he said that he has been trying to write a legal document which has taken him several months because he feels, repetitively blocked by auditory hallucinations telling him he is stupid and should not continue it. Secondly, he experiences derogatorily hallucinations commenting on his actions, that repetitively tell him that he is stupid or worthless.
As well as the hallucinations he also experiences delusions. He was very reluctant to talk about these and I only became aware of their presence when he commented that I probably already knew everything about him because of the camera and recording equipment in his house. As I was able to get him to gradually expand upon this, he said that he regularly feels that people are watching him and recording him and he suggested that this was as a result of some kind conspiracy by a larger organisation although he was very vague about this. He clearly had some insight into the unusual nature of these beliefs. When I asked him directly whether things, such as TV, refer to him he said that he often felt the TV shows that he had actually written were being played on the television and that they had been stolen from him. From what I can understand, he has never written a TV show although has written short stories. He also believes that there had been articles planted on the Internet to turn people against him.
Mr Moyes complained of feeling depressed and sad. He repetitively complained that people did not understand him, and no one ‘listened’ to him. He described feelings of abandonment, associated with the loss of most relationships that he has had. Most recently his relationship with Deborah McLaren, a support worker who had worked with him over the Internet had ended and he felt that she had not really cared about him and had left him as soon as someone else was available. He complained of daytime fatigue, lack of motivation and a general loss of interest in activities. He had no apparent capacity for pleasure or joy.
Currently Mr Moyes does not drink alcohol and has not done so for about 12-18 months. He no longer takes dexamphetamine and does not use any illicit drugs, he said.
4.ADLs – Matters under Review.
On presentation, Mr Moyes did not appear to be well cared for. As mentioned below (see MSE) his hair and clothes were unkempt and uncared for he said that he only bathed once/week and this because of encouragement from his support workers. He does not cook and tends to live on UberEATS primarily burgers, bagels and coffee. He said that this can be expensive so at other times he will order frozen pies and other easily prepared food from Coles. He now gets a reasonable meal 3 days/week from Positive Living.
He said that he has difficulty cleaning his house and this was confirmed by the review of Mr Jarrah Brown, occupational therapist. He provided both description and pictures of Mr Moyes living area which was cluttered, chaotic and poorly cleaned. I asked him how often he cleaned his bathroom, which in the photos appeared quite unclean, and Mr Moyes said that he only was able to manage this once/year.
He has been accepted onto the NDIS who will provide both social support, assist him with his diet and also help with the cleaning and management of his house.
Mr Moyes said that he has no direct social contract now except with his support workers. He said that he never leaves the house except to do shopping and to go to appointments. He denied any recreational or social activities. He had attempted to attend a gym and had a personal trainer for a couple of months, but this ended because of conflict with the personal trainer whom he felt did not understand him. He attempted to work with another personal trainer this ended within one week. He subsequently bought home gym gear which now occupies most of his lounge room, but he says that he no longer has the energy or drive to actually use it. He has contact with various men over Internet sites where individuals go to share sexual experiences. One of these encounters recently led to him inflicting self-harm on his genitals as a result of encouragement by the other man and so since then he has been less willing to engage in this activity. It was this matter that he has been trying to write a legal document about.
He is able to drive to local appointments but does not drive out of the local area anymore as he has had several motor vehicle accidents and received multiple infringement notices. Because of his poor driving record and his impaired mental state he said that he has been forced to have a 3 monthly review of his driving capacity by his doctor. This he said was enforced by Vic Roads.
Every relationship that Mr Moyes has had appears to have been disrupted over the last 2 years. He said that his relationship with his 2 sisters and brother has now ended. He said that one of his sisters married in 2018 and he didn’t attend the wedding because he felt too stressed. Since then, he said that that sister had ignored him and told him that ‘you don’t exist to me’ subsequently he said he had blocked his relationship with her. He said that his other sister and brother had alcohol problems and he did not like to have contact with them. As a result, it would appear that he has had no contact with any of his family for at least 18 months, possibly longer.
He used to have a friend, Louis, who with whom he had been a friend since childhood. This relationship broke up in 2019 because he felt that Louis no longer supported him and did not understand him. He has had various other relationships with men although these seem to have invariably broken up after only a couple of months. When I asked specifically about his trip to the Gold Coast he said that the individual that he had met there had been an “escort” that he had become friends with and who had been supportive of him for a while but this relationship also had eventually ended.
Mr Moyes has not worked at all for several years. He attempted courses in 2021 and 2022 but has not undertaken any courses since. Currently his life is chaotic and disorganised and he has a chronic psychotic disorder. In the current circumstances I do not believe that he is suitable for any form of employment.
5.Findings on clinical examination
Mr Moyes was seen via teleconference, his support worker Mr Emile Canita, was available for support in a different location on the same call. Mr Moyes was alone in his own unit. Whilst I did not ask him to show me the whole unit what I could see was somewhat dingy and uncared for. The interview was difficult and took considerable time because of the overinclusive nature of his answers and his tendency to repetitively focus on experiences of slights, attacks and feeling that people did not understand him. At the beginning of the interview, he was somewhat withdrawn and distrustful but this settled as he felt more comfortable with me. He generally attempted to engage in the interview and appeared to want, approval and understanding from me and this at times led to a somewhat needy or dependent quality in his responses. He did not appear particularly anxious, nor particularly depressed, although there was a sense of despairing hopelessness about him.
He tended to answer positively to questions, which I felt was an attempt to meet what he perceived as my needs or wishes or was an attempt to” placate” me. As a result, far as possible, I avoided asking direct questions but rather attempted to get him to elaborate on statements. This resulted in an interview that lasted 110 minutes. At times Mr Moyes became somewhat distressed and apparently suspicious. At these times we had a break, and this gave him a chance to calm and I think reinforced the feeling that I was attempting to understand him
Mr Moyes himself, appeared very dishevelled. Hie is balding but now has allowed his hair to grow so that he has long straggly wisps of hair on the top of his head and unkempt, uncared for hair on the sides. He had a long, ungroomed beard and moustache. His clothes, that I was able to see, appeared well worn. He had a somewhat grimy blanket around his shoulders.
His affect was somewhat blunted with limited range. It did not appear often to reflect the level of despair or anxiety that he expressed. While he engaged with the interview he did not often appear emotionally very present.
He described both auditory hallucinations and paranoid delusions. While he did not have Formal Thought Disorder, he certainly had a degree of disorganised thinking which tended to be overinclusive and at times verged on tangential.
His mood tended to be flat rather than depressed, but I was not convinced that it did not reflect the psychotic process that he was experiencing rather than a true depressive disorder.
His cognitions were intact, or at least consistent with the rest of his presentation.
6.Diagnosis.
Using the DSM 5 classificatory system Mr Moyes meets the criteria for the following diagnoses:
I.Schizophrenia – continuous.
II.PTSD – chronic.
I have made the diagnosis of schizophrenia because of the presence of both delusions and hallucinations which have persisted now for many months, if not years. Clinicians since 2021 have commented in various ways on Mr Moyes psychotic symptoms although have tended to focus on either his depressive symptoms or PTSD as the primary disorder. At this interview unquestionably the psychotic symptoms and associated negative symptoms were by far the most prominent of his disorders and therefore I think this is now the primary diagnosis.
Mr Moyes also demonstrated multiple negative symptoms of schizophrenia characterised by substantial diminution in functioning in work, personal relationships in self-care. It is apparent that over the last 18 months Mr Moyes has become more withdrawn, isolated and avoidant. I do not believe this currently is related primarily to his PTSD symptoms but rather to the gradual deterioration in psychotic symptomatology. I suspect that this is exacerbated by a feedback mechanism whereby the more isolated he becomes more he focuses on psychotic symptomatology.
The diagnosis of PTSD is still present because of the ongoing presence of re-experiencing phenomena related to the trauma that he experienced in his work associated avoidance and withdrawal and triggering anxiety. The exposure to attempted suicides as well as the actual suicide at one of his clients is sufficient to meet criteria A of the PTSD diagnosis.
Discussion of diagnosis in relation to previous assessments.
While Mr Moyes previously has never been diagnosed with schizophrenia I note that virtually every consultation have commented on his psychotic symptomatology. For example, Prof Khan in his report of June 2022, makes a diagnosis of Maj Depressive Disorder with psychotic features. He describes several episodes of what he describes as panic or “dissociation”. In retrospect I suspect these were a result of delusional experiences. In his report of September 2023, he diagnosed a delusional disorder and substance induced psychotic disorder and commented about Dr George’s report, where a diagnosis of Paranoid Personality disorder was made, that Mr Moyes had ‘clear psychotic symptoms’.
As mentioned, above his admissions to hospital were invariably associated with some psychotic symptomatology.
Generally, previous psychiatrists have tended to focus on substance use as causative of the psychotic symptoms or have been only able to elicit hallucinatory phenomena. Putting together the long history of what is apparently both hallucinations and delusions and the clear negative phenomena that are now present, I believe the diagnosis becomes much more clearly that of Schizophrenia.
Results of any additional investigations since the original Medical Assessment Certificate
There were no additional investigations.
Signed: Dr Graham Blom”

The Appeal Panel considers that Medical Assessor Blom has examined the appellant with respect to all matters necessary to enable the Appeal Panel to correct the errors in the MAC and considers his examination and his report on his examination to be thorough. The Appeal Panel accordingly adopts his report, including his updated history, which in turn includes an update on the appellant’s activities of daily living, and including Medical Assessor Blom’s findings from his clinical examination of the appellant.
In addition to what Medical Assessor Blom reported to the Appeal Panel in his written report above, Medical Assessor Blom also reported orally to the Appeal Panel that he considered that the appellant did not feign or in any way exaggerate the symptoms the appellant reported to him.

Assessment

The Appeal Panel rates the appellant’s impairment in self-care and personal hygiene as Class 3. This is because the appellant cannot live independently without the support provided through the NDIS. His need for this support arises because of his psychiatric illness.
The Appeal Panel rates the appellant’s impairment in social and recreational activities as Class 3. This is because the appellant now rarely goes to social outings. The Appeal Panel considers however that, with support, the appellant may be able to continue to attend at gymnasiums for social and recreational activity.
The Appeal Panel rates the appellant’s impairment in travel as Class 2. This is because the appellant can drive himself to local appointments but does not drive outside of his local area anymore because of several motor accidents and multiple infringements of the traffic laws, the occurrence of which his injury was likely to have contributed.
The Appeal Panel rates the appellant’s impairment in social functioning as Class 4. This is because all the appellant’s previous relationships both with his family and friends have ended. The appellant would as a consequence of his current illness be unable to care for dependants. This correlates best with the severity of impairment described by the descriptors for a Class 4 impairment.
The Appeal Panel rates the appellant’s impairment in employability as Class 5. As a consequence of the appellant’s psychiatric illness his life is chaotic and disordered. His psychiatric illness is such that he would be unable to engage in any type of employment.
The Appeal Panel notes that neither party challenged the Medical Assessor’s conclusion that a proportion of the appellant’s permanent impairment is due to a pre-existing condition and the Medical Assessor’s assumption, in accordance with s 323(2), that that proportion is 10%. Given that the Appeal Panel shall make a deduction under s 323(1) of the 1998 Act of 10%.
The Appeal Panel notes that neither party challenged the Medical Assessor’s rating of the appellant’s impairment in concentration, persistence and pace. As that was not an aspect of the medical assessment that was challenged the Appeal Panel must accept that.[2]
[2] Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]-[35]; Pombinho v Coca Cola EuropePacific Partners API Pty Ltd [2023] NSWSC 1536 at [53], [65]-[70]
The Appeal Panel also notes that neither party challenged the Medical Assessor’s finding that the psychiatric illnesses comprising the appellant’s injury, and from which the appellant’s permanent impairment arises, included schizophrenia and consequently the Appeal Panel must also accept that.
The Appeal Panel considers that the dominant feature of the appellant’s current presentation relates to his schizophrenia. This is not currently being treated.
The Appeal Panel notes that the Medical Assessor added, pursuant to paragraph 1.32 of the Guidelines, 1% WPI. This paragraph reads as follows:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”

The Medical Assessor did not explain why he added 1% WPI pursuant to paragraph 1.32, but it is implicit that he considered that the appellant had received effective long term treatment for his injury and that this had resulted in substantial elimination of the appellant’s permanent impairment and that the appellant would likely revert to the original degree of impairment if his treatment was withdrawn.
Given that the Appeal Panel’s assessment of the appellant’s permanent impairment is far higher than the assessment the Medical Assessor made, the Appeal Panel must consider whether paragraph 1.32 of the Guidelines can be engaged. This is because the Appeal Panel is making a fresh assessment of the appellant’s permanent impairment from his injury and paragraph 1.32 requires a comparison between that assessed impairment and the appellant’s post injury but pre-treatment impairment.[3] In other words, it was not an aspect of the medical assessment that the Medical Assessor undertook that either party could challenge.
[3] Zoric v Secretary, Department of Education & ORS [2024] NSWSC 131 at [63]; Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) [2020] NSWSC 781 at [52].
The Appeal Panel considers that paragraph 1.32 cannot be engaged in this case. That is firstly because there has not been effective long-term treatment of the appellant’s schizophrenia. Secondly, his permanent impairment has not improved between his post-injury and his current states.
The Appeal Panel observes that the median of its Class scores of the appellant’s impairments in the several PIRS categories and the Medical Assessor’s score of his impairment in concentration, persistence and pace is 3 and that the aggregate score is 20 which in accordance with Table 11.7 of the Guidelines correlates with 26% WPI. When 10% is deducted from that in accordance with s 323(1) of the Act, 23% WPI is obtained. The Appeal Panel assesses that is the degree of the appellant’s permanent impairment from his injury.
For these reasons, the Appeal Panel has determined that the MAC issued on
7 February 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W9090/23
Applicant:	Joshua Moyes
Respondent:	CASPA Services Ltd

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 Yu-Tang Shen and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system

Date of Injury

Chapter,

page and paragraph number in WorkCover Guides

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

% WPI

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

Psychiatric and psychological disorder

13/10/2023

Chapter 11

26%

23%

Total % WPI (the Combined Table values of all sub-totals)

23% WPI

[2024] NSWPICMP 524

30 July 2024