Narooma Sporting & Services Club v Tague
[2025] NSWPICMP 149
•7 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Narooma Sporting & Services Club v Tague [2025] NSWPICMP 149 |
| APPELLANT: | Narooma Sporting & Services Club |
| RESPONDENT: | Sone Tague |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Ash Takyar |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 7 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Assessment under the psychiatric impairment rating scale (PIRS) of travel, and concentration, persistence and pace; worker was able to travel to new areas as part of her employment; worker had memory difficulties and relied on notes and prompting to participate in assessment; Held – worker had no or minor restriction in travel; worker had moderate restriction in concentration, persistence and pace; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 December 2024 the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 November 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
The respondent worker (Ms Tague) was employed at the Dalmeny Bowling Club as a junior manager. At the end of her shift on 15 June 2021, as she was closing up, a violent robbery occurred at the club. She hid in a back room during the robbery, and later discovered that one of the offenders had a shotgun.
As a result of this incident Ms Tague suffered a psychological injury. She brought a claim for lump sum compensation for 19% whole person impairment that was disputed by the insurer only on the basis of the degree of permanent impairment. Accordingly, Ms Tague was referred to a Medical Assessor who assessed 15% whole person impairment.
The appellant appeals against that assessment on the basis that the MAC contains a demonstrable error in the assessment of impairment under the Psychiatric Impairment Rating Scales (PIRS) and that the Medical Assessor applied incorrect criteria in his assessment.
The appellant challenges the Medical Assessor’s assessment in two of the PIRS, being travel and concentration, persistence and pace.
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 there was sufficient information contained in the MAC and material referred for assessment to determine the appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor has taken a history that the respondent worker has virtually no restriction in travel, consistent with class 1 under the PIRS. The appellant refers to the respondent worker’s role as a camera operator, which routinely requires her to travel to new environments for the purpose of setting up speed cameras. The appellant submit that the Medical Assessor did not have proper regard to his examination findings, resulting in him incorrectly categorising the respondent worker in class 2 for travel.
In respect of the PIRS of concentration, persistence and pace, the appellant submits that the Medical Assessor failed to consider that the respondent worker regularly works 9-12 hour shifts, where she drives and sets up speed cameras, which would involve a considerable amount of concentration. The Medical Assessor failed to address the demands of her work-related activities, resulting in him incorrectly placing the worker in class 3 for this PIRS, which should have been an assessment of class 2.
In reply, the respondent submits that the appellant’s submissions put significant weight on her comment that she has to travel widely as part of her new job, but fails to acknowledge that the respondent can perform her duties as there are lots of cameras around her car, and she locks herself in the car. The respondent also refers to her avoidance of clubs, cinemas and restaurants and her tendency to be on guard. In all the circumstances the respondent submits that it was open for the Medical Assessor to assess class 2 for travel.
In respect of concentration, persistence and pace, the respondent submits that the examples given in the Guidelines of activities are examples only. The respondent notes that the history recorded is that the camera is largely self-operating. The history recorded throughout the MAC includes references to struggles with memory requiring her to write things down and keep notes, being evidence of concentration and memory issues. The assessment of class 3 in this PIRS is correct and should not be disturbed.
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. The issue in dispute in this case is limited to two of the PIRS assessed by the Medical Assessor, as outlined above. The Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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.
As the submissions on appeal are addressed to the PIRS, it is appropriate to consider how those scales are to be applied by Medical Assessors. Permanent impairment is assessed in accordance with the Guidelines (s 322(1) of the 1998 Act). Psychiatric disorders are assessed under Chapter 11, using the PIRS. Clause 11.11 of the Guidelines sets out the six scales, which are described in the following terms: “Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment”.
Each area of functional impairment is assessed under a scale “using class descriptors”. Those descriptors provide examples of activities, but “are examples only”. Account should be taken of “the person’s cultural background” and consideration must be given to activities “that are usual for the person’s age, sex and cultural norms”.
In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633, Garling J considered the construction of the PIRS in the context of the examples given. He provided some commentary on the construction of the Guidelines:
“The submission of the plaintiff that, in assigning a class of impairment to each scale, the AMS is restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum, cannot be accepted.” (at [57])
He goes on to describe the examples as “generic and general in their description” (at [62]).
The appellant challenges the Medical Assessor’s assessment in two of the PIRS.
Travel
The Medical Assessor assessed class 2 in this PIRS. The appellant submits that the Medical Assessor erred and should have assessed class 1.
The criteria for this PIRS are contained in Table 11.3. The two classes in consideration relevantly provide:
| 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 provides the following reasons for his assessment in the PIRS table on page 10 of the MAC: “Ms Tague has anxiety and can drive everywhere, but avoids being in clubs or dangerous places.”
The Medical Assessor takes a relevant history throughout the MAC of Ms Tague’s capacity for travel, in particular driving for her job. He records:
“She started working as a speed camera operator 12 months ago. She can drive for an hour to the required location and then set up the camera. She cannot fall asleep during the shift because they monitor her behaviour remotely. Once the shift is finished, she would pack up everything and go home. A shift can be 9 to 12 hours a day and altogether, 76 hours in a fortnight.”
He also goes on to recorder her social activities/ADL:
“On the days off work, she takes walks and goes to the shops….
She said she walks with her head down to avoid eye contact with people, and if she sees arguments between people, she steers away…
She said she drives a lot for work but has no confidence on the road.”
The Medical Assessor also considered Ms Tague’s functional capacity in the context of her restricted travel when commenting on other medical opinions. He records, commenting on the opinion of Dr Kumar:
“Some history appeared to be wrongly recorded. For example, he said Ms Tague couldn't drive beyond a few kilometres in the local area but she tells me that for her work since November 2023, she drives for about an hour sometimes.”
He also comments on the opinion of A/Prof Davies:
“In terms of travel, he rated 1 and she said she travelled widely as part of her new job. I noted that despite being able to go everywhere for work, she has been avoiding clubs of any kind and dangerous places due to anxiety and PTSD, therefore rated 2.”
The appellant submits that the history recorded, of an ability to travel to new and unfamiliar environments without supervision is consistent with class 1 impairment. In response, the respondent refers to the appellant’s statement which sets out that the car she drives for work contains lots of cameras and she is able to lock herself in the car. The respondent submits that this remote monitoring cannot be interpreted of having no restriction. The respondent also refers to her avoidance of clubs, cinemas and restaurants and her avoidance of people when she leaves her home.
The Appeal Panel would first note that it is not appropriate to resolve what is in issue in a dispute scale by a finding that the conclusion the assessor reached was “open” (Tasevski v Westpac Banking Corporation [2024] NSWSC 401 (Tasevski) at [35]). The Appeal Panel’s role is described in Taskevski at [36]:
“It must rather consider and determine whether the assessor applied the incorrect criteria in arriving at his or her conclusion. Or whether there was a demonstrable error in the conclusion reached about that class assignment.”
The Guidelines in this case concern and injured worker’s ability to travel “without supervision” or “without a support person”. Supervision or support is a component relevant for consideration.
Class 1 provides for no or a minor deficit, attributable to a normal variation. These words are used at the start of every PIRS as part of the descriptor for class 1. The relevant part for travel provides the following criterion: “Can travel to new environments without supervision”.
The history taken by the Medical Assessor clearly sets out an ability to travel to new environments. Ms Tague works full time in a different role which requires her to “drive lots for work” to a “required location” (that is, not within her local area and not necessarily in a familiar area such as local shops).
The respondent submits that the monitoring and use of cameras within her vehicle is the reason she is able to travel for her employment. To the extent that this is a submission suggesting that she requires “supervision” to travel to new areas, the Appeal Panel does not accept that submission. The use of the word “supervision” in the PIRS for travel suggests with a support person; all other references in the table include references to person or persons. The Appeal Panel are not satisfied that the presence of cameras “around the car”, per the respondent’s statement, constitutes “supervision” within the PIRS.
The respondent also refers to her restriction in travel with respect to her avoidance of clubs, cinemas and restaurants, as well as her avoidance of eye contact with others and being on guard at night. The Appeal Panel are satisfied that this is a minor deficit attributable to the normal variation in the population. It is entirely consistent that different individuals have a different risk tolerance for areas they perceive as dangerous.
The criteria for class 2 impairment in this PIRS are, although only examples, quite explicit. They require a restriction on travel to “a familiar area such as local shops, visiting a neighbour”. Within the context of what was said in Jenkins, the activities might vary from person to person (for example, one person might travel only to the local shops, another might travel to see a neighbour a few streets over without a support person). The critical part of the descriptor for class 2 requires the travel to be within a “familiar area”. There is no overlap between an ability to travel to new environments and an ability to travel only to familiar areas.
The history taken by the Medical Assessor and the history contained in the material before him shows that the respondent is able to travel to new areas without assistance. This is not a question of whether it was open for the Medical Assessor to assess class 2 impairment. In doing so, he has applied the incorrect criteria. He has also made a demonstrable error in failing to consider the history he took in the MAC. The correct assessment for this PIRS is class 1.
Concentration, persistence and pace
The Medical Assessor assessed the respondent as class 3 in this PIRS. The appellant submits that he should have assessed class 2.
The criteria for concentration, persistence and pace in the Guidelines relevantly provides:
| Class 2 | Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache. |
| Class 3 | Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting. |
In the PIRS table on page 10 of the MAC, the Medical Assessor provides the following reasons for his assessment of class 3 impairment:
“Ms Tague described having poor concentration. She used to read books but relinquished it as she could not focus and does not engage in intellectually demanding tasks now.”
The Medical Assessor also takes the following history, throughout the MAC, of issues relevant to this PIRS:
“She consulted a neurologist due to increased migraine since the robbery. She has not had a psychiatric admission.
She has a Webster pack as she cannot remember her medications….
Ms Tague said her memory is poor. She cannot focus well and loses things and loses her train of thought in conversations.”
In specific consideration of Ms Tague’s current employment, he states:
“She started working as a speed camera operator 12 months ago. She can drive for an hour to the required location and then set up the camera. She cannot fall asleep during the shift because they monitor her behaviour remotely. Once the shift is finished, she would pack up everything and go home. A shift can be 9 to 12 hours a day and altogether, 76 hours in a fortnight.”
The Medical Assessor comments on the other medical opinions, and particularly the assessment of Dr Davies, who assessed class 2 in this PIRS:
“In terms of concentration, persistence and pace, he rated 2 and said she has problems with memory but can concentrate when necessary, relying on a list. I noted that since the injury, she stopped reading books, she doesn't perform intellectually demanding tasks. She sets up the speed camera and it is largely self-operating, therefore rated 3.”
The appellant submits that the Medical Assessor failed to consider that the respondent works 9-12 shifts, where she is driving and setting up speed cameras, which would involve a considerable amount of concentration. Focussing on intellectually demanding tasks for up to 30 minutes is comparable to working a full shift.
The Appeal Panel do not accept the submission that the Medical Assessor failed to consider Ms Tague’s work responsibilities. He outlines that history as set out above. He specifically comments on how it factored into his assessment of impairment when discussing the report of Dr Davies.
Consistent with Ballas v Department of Education (State of NSW) [2020] NSWCA 86 at [94], the Medical Assessor was entitled to consider the conduct of Ms Tague in her employment as part of the PIRS of concentration, persistence and pace. That is differentiated from that fact that Ms Tague is employed, and the nature of that employment, as relevant for the assessment of the PIRS of employability. It is a relevant consideration to assess an individual’s functional impairment in this area. It is within the scope of the criteria set out in the Guidelines.
Functioning must be considered with regard to the totality of evidence. In the present circumstances, the Medical Assessor weighed Ms Tague’s ability to function in her role, setting up a speed camera that is largely self-operating, with her other restrictions in respect of concentration. Those considerations are set out in the examples given in the Guidelines, going to an ability to focus on intellectually demanding tasks, follow complex instructions, or complete other functionally demanding tasks. Per Jenkins, the examples given in the Guidelines of an individual’s ability to complete tasks are examples only.
In the present case, the Medical Assessor took a history of difficulty with memory, including a requirement to make lists and use a Webster pack for her medications. The respondent no longer reads and doesn’t perform intellectually demanding tasks. Contrary to the appellant’s submission, the Medical Assessor did note relevant restrictions during the examination: “She spoke spontaneously and was talkative, but had a disorganized narrative. She was preservative at times and read from her notes.” A disorganised narrative and the use of notes are evident of difficulties with concentration, persistence and pace.
There is available evidence within the supporting material to support the Medical Assessor’s conclusion. Ms Tague’s statement refers to being forgetful and needing to keep notes. She reports telling her doctor it feels like she has Alzheimer’s since the robbery. Dr Lowden, in a report dated 5 May 2023, refers to the respondent attending a neurologist “due to her concerns about her memory and her headaches”.
Considering the above, the Appeal Panel are not satisfied that the assessment in this PIRS was made on the basis of incorrect criteria or the MAC contains a demonstrable error. The assessment of class 3 in this PIRS was correct.
Conclusion
For these reasons, the Appeal Panel has determined that the MAC issued on 18 November 2024 should be revoked, and a new MAC should be issued. There has been a change to one of the PIRS and the new degree of permanent impairment is to be calculated. The classes in ascending order are 1, 2, 2, 3, 3, 3. This is a median of class 3 and an aggregate of 14, for a total of 13% whole person impairment.
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: | W25796/24 |
Applicant: | Sone Tague |
Respondent: | Narooma Sporting & Services Club |
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 Michael Hong 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) |
| Psychological | 15 June 2021 | Ch 11, pages 55-60 | 13% | Nil | 13% | |
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
0
5
0