Noble v Sitecore Australia Pty Ltd
[2025] NSWPICMP 48
•24 January 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Noble v Sitecore Australia Pty Ltd [2025] NSWPICMP 48 |
| APPELLANT: | Craig Noble |
| RESPONDENT: | Sitecore Australia Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 24 January 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Psychiatric injury; appeal in respect of two of the psychiatric impairment rating scale (PIRS) categories (social functioning and concentration, persistence and pace); whether assessment by Medical Assessor was consistent with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021; Appeal Panel formed the view that the MA had failed to provide adequate reasons for rating Class 2 in the category of concentration, persistence and pace; Held – no error in assessment of social functioning; incorrect criteria and error in assessment of concentration, persistence and pace; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 October 2024 Craig Noble (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
25 September 2024.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant suffered a psychological injury in the course of his employment with Sitecore Australia Pty Ltd (the respondent) deemed to have occurred on 23 February 2023.
The appellant commenced proceedings in the Personal Injury Commission (Commission) claiming 18% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a psychiatric and psychological disorder injury deemed to have occurred on 23 February 2023.
The matter was referred to the Medical Assessor for assessment of WPI of a psychiatric and psychological disorder injury deemed to have occurred on 23 February 2023.
The Medical Assessor examined the appellant on 23 August 2024. The Medical Assessor assessed 8% WPI as a result of the injury deemed to have occurred on 23 February 2023.
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 unnecessary for the appellant to undergo a further medical examination because there was sufficient evidence on which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant incorrectly referred to Dr Hong as the Medical Assessor on one part of the submissions. Dr Hong is the Panel member and has no conflict of interest in this matter.
The appellant’s submissions include the following:
(a) Grounds 1: Incorrect criteria. The Medical Assessor assessed class 2 for social functioning. Dr Hong [sic], on page 11, recorded that the appellant “ceased contact with some of her [sic] friends” which meets the descriptor of “previously established relationships severely strained.”
(b) A friendship is a relationship adopting the ordinary meaning. Therefore, social functioning should be a class 3 based on the Medical Assessor’s own reporting.
(c) The appellant’s statement dated 4 July 2024 (paragraphs 56-62) supports the necessary findings of strained relationships. The statement of Yvonne Meng dated 8 July 2024 details the extent of the strain on their relationship.
(d) The Medical Assessor reports that the appellant’s friends “have all gone away” and he and his wife “discussed divorce many times”.
(e) The cessation of contact with friends is the highest form of strain that a relationship could be put under or to reflect the status of a relationship. This also reflects separation from previously established relationships.
(f) In terms of the marital relationship, the appellant and Ms Meng stated that the relationship was so severely strained that they are on the brink of divorce and discussing divorce. This is the highest level of severity of strain penultimate only to actual divorce. The Guidelines do not require divorce to satisfy a class 3 rating.
(g) The appellant’s wife was self-harming and was “punching on her face” due to the distress of the situation. The Medical Assessor reported this self-harming which amounts to domestic violence. Violence is standardly defined as behaviour involving physical force intended to hurt, damage or kill. There is no stipulation that the victim and perpetrator cannot be identical.
(h) As such, with the existence of domestic violence, severe strained friends and marital relationships, with periods of separation, the appellant meets every criterion found in the descriptor of the Psychiatric Impairment Rating Scale (PIRS) for class 3 or 4.
(i) By assessing social functioning in the way that he has, the Medical Assessor failed to take into account relevant considerations and took into account an irrelevant consideration. It is arguable that class 4 was suitable (Pre-existing relationships ended (e.g. lost partner, close friends)), but most definitely class 3 is met.
(j) Concentration, persistence and pace – the Medical Assessor assessed class 2. The Medical Assessor incorrectly applies the criteria.
(k) Class 2 and class 3 are primarily differentiated in the PIRS with reference to the ability to focus on intellectually demanding task for a period up to 30 minutes. Although the descriptors are examples, the specific reference to intellectually demanding activities between the classes must be dealt with in consideration of the PIRS application.
(l) To apply class 2, the descriptor refers to consideration of the following: a. Can undertake a basic retraining course, or a standard course at a slower pace. b. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
(m) The Medical Assessor addresses the class 2 descriptor outlined above but reaches an erroneous conclusion. The Medical Assessor confirms that the appellant has reduced concentration and provides specific examples of his inability to undertake task of even mild complexity i.e. fix a gate or read emails. His concentration is so poor that he had to take two breaks during the assessment.
(n) The Medical Assessor appears to rely on the fact that the appellant “is able to look after his young daughter by himself and he is able to drive and do many basic chores on his own” in his rating of class 2. Being able to meet the minimum standard required to look after his daughter on a part time basis, drive and do some basic chores, does not permit a class 2 rating. The former are not “intellectually demanding” tasks as required by the class descriptor, they are intellectually menial and certainly not intellectually demanding.
(o) Paragraphs 13 to 20 of the appellant’s statement detail his poor concentration, persistence and pace: Ms Meng’s statement corroborates the appellant’s evidence.
(p) The appellant details how he struggles to care for his daughter, his reliance on his mother-in-law and wife in regard to the care of their daughter, how it is part time and limited and out of necessity, the rudimental nature of his care. He explains that even with domestic chores such as cooking, his methods are most rudimental, and he continues to struggle with that. With respect to the shopping, he attends with his wife, and if he was to attend by himself, he has to rely on a list prepared by his wife and is unable to attend to this autonomously. He keeps the shopping trips short as he forgets things. The above certainly appeals to a class 3 rating.
(q) By assessing concentration, persistence and pace in the way that he has, the Medical Assessor has failed to take into account relevant considerations and has taken into account an irrelevant consideration. It is submitted that a class 3 impairment is most appropriate.
(r) Ground 2 – demonstrable error. The Medical Assessor is bound to set out in a statement of reasons the actual path of reasoning by which he arrived at his opinion (Wingfoot Australia Pty Ltd v Kocak, [2013] HCA 43). It is in this respect that a demonstrable error has also been shown. This is considered in the above submissions when referencing a lack of reasoning by the Medical Assessor.
(s) The Appeal Panel should revoke the MAC and issue a new MAC with a finding a WPI score of 18%.
The respondent ‘s submissions include the following:
(a) In relation to the “Social Functioning” Category, at page 10 of the MAC, the Medical Assessor recorded that there “has been no period of separation or domestic violence in his relationship”. Having regard to the wording of the class 3 descriptors, “severe strain” is satisfied by demonstrating periods of separation or domestic violence.
(b) The history recorded by the Medical Assessor does not support the allocation of a class 3 in this category. There was no evidence before the Medical Assessor to confirm “severe strain” noting the absence of periods of separation or domestic violence occurring in the context of the appellant’s relationship.
(c) In relation to friendship, the class descriptors already take into account the “loss of friendships” and that the “moderate impairment” descriptors as set out in class 3 are clearly in the context of an intimate relationship.
(d) The Medical Assessor specifically records at page 10 of the MAC that there has been no separation or domestic violence in the appellant’s relationship. This is consistent with the histories recorded by both Dr Bisht and Dr Argyle.
(e) The respondent does not accept that the wife’s reported self-inflicted harm constitutes domestic violence. The harm was self-inflicted and did not occur within the relationship. The Medical Assessor is the only doctor to record this reference to the appellant's wife self-inflicting harm. The appellant’s wife provided statement evidence which did not refer to the alleged self-inflicted harm.
(f) The reporting of the appellant does not suggest “strain” in his friendships but alternatively, reports a loss of “some friendships”. The history recorded on page 9 of the MAC (in the Travel category) recorded the appellant had travelled to Newcastle to see a friend together with his wife. Dr Argyle recorded the appellant had lost many friendships, however, was still in contact with one or two friends via WhatsApp. Dr Bisht recorded the appellant was still in touch with his long term friends from High School over WhatsApp.
(g) The evidence available to the Medical Assessor supported the allocation of a class 2 - mild impairment rather than a class 3 – moderate impairment in relation to the social functioning category. The histories acknowledged there was a loss of some friendships.
(h) In relation to the concentration, persistence and pace category, the appellant asserted that his concentration was so poor and that this was evidenced by the requirement to take two breaks during the Medical Assessor’s assessment.
(i) The Medical Assessor recorded on page 3 and 4 of the MAC that the appellant did require breaks. On page 3, the Medical Assessor recorded the breaks were taken in the context of the appellant not being able to continue talking about his current situation (presumably due to being emotional). On page 4, the Medical Assessor noted the appellant needed breaks as he was getting anxious. The Medical Assessor does not record that the need for the breaks related to the appellant’s inability to sustain concentration.
(j) The Medical Assessor recorded on page 9 of the MAC that the appellant takes his wife to work which is approximately a 40 to 50 minutes drive. This history supports the appellant does retain the ability to maintain his concentration for significant periods of time. Dr Bisht had also reported the appellant was able to sustain concentration throughout the course of his interview.
(k) The Medical Assessor recorded at page 9 of the MAC that the appellant was able to care for his daughter, two days a week on his own. Like Dr Bisht, the Medical Assessor had formed the view that as the appellant was able to perform tasks such as providing care for his daughter, was able to drive and perform basic chores, that this justified the allocation of a class 2 – mild impairment.
(l) The allocation of a class 2 was open to the Medical Assessor on the basis of the appellant’s reported functioning in the various domains/ categories considered in terms of the overall PIRS assessment.
(m) Having regard to the above, there was no error by the Medical Assessor in terms of the allocation of a class 2 in both the social functioning and concentration, persistence and pace categories.
(n) Demonstrable Error - In Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007] NSWSC22, the Court said: “A demonstrable error would essentially be an error for which there is no information or material to support the finding made – rather than a difference of opinion.”
(o) A Medical Assessor is not required to give expansive reasons for the ultimate conclusion but is required to disclose the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law (Wingfoot v Australia Partners Pty Ltd v Kocak [2013] HCA 43). As confirmed in Campbelltown City Council v Vegan [NSWCA 284], reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgment.
(p) The MAC does disclose a sufficient path of reasoning for the Medical Assessor’s ultimate allocations under the PIRS categories. The history, as recorded in the MAC itself and also pages 9 and 10 of the MAC, discloses a detailed history and reported level of functioning in the various categories, as recorded at the time of the Medical Assessor’s clinical examination, as well as a sufficient path of reasoning for the Medical Assessor’s allocations in the various classes.
(q) No error has been demonstrated by the appellant and the MAC should be confirmed.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Grounds 1 Incorrect criteria – (a) social functioning
The appellant submits that with the existence of domestic violence, severe strained friends and marital relationships, with periods of separation, the appellant meets every criterion found in the descriptor of the PIRS for class 3 or 4. The appellant argued that by assessing social functioning in the way that he has, the Medical Assessor has failed to take into account relevant considerations and has taken into account an irrelevant consideration.
The examples under Table 11.4 for “Social functioning” in the Guidelines are:
“Table 11.4: Psychiatric impairment rating scale – social functioning:
Class 2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3 Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
In the MAC under “Current symptoms”, the Medical Assessor wrote:
“Mr Noble stated that he lives with his wife, they have been married for
five years and have been together for 10 years and has a daughter who is 22 months old. He also has a 25-year-old son who lives separately. Mr Noble stated ‘I try to look after things. My wife works extraordinarily hard and has to do things at home as well. I am not looking after myself. If my daughter was not around, I would not be here.’
…
He is seeing a work colleague. He has started to drink a lot and drinking on a daily basis around three to four drinks in a day. …
His sleep has been poor as well. He feels fatigued all the time. His sleep
is a lot more, but still, he feels tired. He finds hard to get sleep at night and when he sleeps it is a broken sleep and keeps waking up. He described his daughter as his rock.”
In the MAC under “Social activities/ADL”, the Medical Assessor wrote:
“Mr Noble stated that his wife will wake him up in the morning and he looks after his daughter in the morning. He will make a breakfast and will drive his wife to North Sydney. He spends time in his garden and may go to the local park with his daughter. He will sleep in the daytime when his daughter takes a nap. He will do weekly shopping with his wife. He sometimes he will take his daughter to the shops to do some shopping as well. He will make daughter's dinner and will have dinner with the daughter. His wife will come back from work and then they put the daughter together to bed and goes to bed as well. He would drop his daughter on the day she goes to the childcare and drops his wife to work.”
The Medical Assessor made a diagnosis of a major depressive disorder.
The Medical Assessor assessed the appellant as Class 2 for social functioning. In the PIRS Rating Form, the Medical Assessor wrote:
“Social functioning – Class 2
Mr Noble stated relationship has been affected because of the injury. His wife was self-harming and was punching on her face due to the distress of the situation. His wife has also mentioned divorce few times and they often have argument and tensions. He stated his libido is gone and he is missing on intimacy. He said all his friends have gone as well and he may have sporadic text messages with the friends. There has been no period of separation or domestic violence in his relationship.”
In a statement dated 4 July 2024, the appellant wrote:
“56. Prior to my work injury, I considered myself to be social person. For example, I would enjoy playing soccer with friends, running and jogging. I would also go out to events with my friends.
57. However, following my work injury, I have become very socially isolated and have in fact, given up on soccer, running and jogging. Although my friends would sometimes encourage me to come out, I find excuses to decline.
58. Due to my social isolation, I used to have a large social group of about 30-40 people. However, now I have lost the majority of my friends There are only about 2 or 3 that have continued to reach out to me. However, in the last 6 months I’ve only caught up with friends on two occasions after my wife strongly encouraged me to do so.
59. Although my wife has catered to my condition and needs, I am afraid that I have
burdened her too much and that I may ultimately lose my relationship.
60. Our relationship has become strained as I continue to be very dependent on her.
61. There has been a lack of intimacy for some time and the idea of divorce has been
mentioned many times.
62. What does not help is the fact that I am uncertain about the future and more specifically future employment.”
The Appeal Panel noted that at paragraph 33, the appellant referred to visiting his son once per week.
In a statement dated 8 July 2024, Ms Yvonne Meng, the appellant’s wife, described a lack of intimacy and that there had been occasions when they had spoken about divorce. She described their relationship as having been “immensely strained.”
In a report dated 15 November 2023, Dr Nicholas Argyle, consultant psychiatrist, assessed class 3 for social functions providing the following reasons:
“He has lost many friends over the last three years, only one or two still in contact, mainly on WhatsApp. Relationship with his wife is strained as he is very dependent on her and there has been no intimacy for some time. Divorce has been mentioned but there are no plans.”
In a report dated 6 May 2024, Dr Yajuvendra Bisht, noted that the appellant’s relationship with his family is affected by his psychiatric condition, “as he has still not been engaging in conversations as much as he used to”. Dr Bisht noted that the appellant used to be a very social person and he had developed several different groups of friends. Dr Bisht assessed the appellant as class 2 in the category of social functioning providing the following reasons:
“Although the client’s relationship with the family is affected by the psychiatric `condition as the client has not been engaging in conversations as much, but there haven’t been any periods of separation though. Hence, a class 2 rating is more appropriate.”
The Appeal Panel accepts that the appellant has lost friends, however, he has not lost all his friends and is still in contact with some friends. The appellant also stated that he visits his son once a week so he obviously had maintained his relationship with his son.
The Appeal Panel is not persuaded that, in the context of the Guidelines, there has been domestic violence in the appellant’s relationship with his wife. The Appeal Panel accepts that the appellant’s wife “punching on the face” amounts to self harm, but this arises from her distress, or possibly mental health problems. Domestic violence is defined by the United Nations as “physical, sexual, emotional, economic or psychological actions or threats of actions that influence another person” i.e. the violence is perpetrated by the abuser. There is no reference to this in the statements of the appellant and his wife or in the medical reports to any such action perpetrated by the appellant, or for that matter to her self-harm. The appellant’s statement describes a very supportive relationship with his wife, Yvonne and her mother with numerous examples.
On balance, the Appeal Panel was satisfied that there had been no separation or domestic violence in the marital relationship. The appellant has managed to maintain his primary relationships with his wife, son and daughter, as well some friendships.
The appellant submitted that the impairment is more appropriately rated as a class 3 under Table 11.4. On balance, the Appeal Panel is satisfied that the descriptors provided in Table 11.4 by the Medical Assessor are class 2 descriptors. Therefore, the Appeal Panel is satisfied that the reasoning process for assessing the appellant as class 2 in this category was able to be made out. The Appeal Panel agrees that the appellant should be rated as class 2 for social functioning.
The Appeal Panel is satisfied that the assessment made for social functioning was not made on the basis of incorrect criteria.
The Appeal Panel is satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS category of social functioning.
Ground 1 – Incorrect criteria (b) concentration, persistence and pace
The appellant submits that the Medical Assessor incorrectly applies the criteria and assessed concentration, persistence and pace in such way that he failed to take into account relevant considerations and took into account an irrelevant consideration. The appellant submits that a class 3 impairment is most appropriate.
The relevant descriptors in this category are at Table 11.5 of the Guides:
“Class 2
Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3
Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
In Table 11-8 the Medical Assessor assessed class 2 for concentration, persistence and pace. He provided the following reasons:
“Class 2
Mr Noble struggles with focus and concentration. He had to fix a gate at home which with he struggled, and his wife had to tell him step by step to follow through.
He struggles to process the emails he gets from the lawyers. He stated his mental capacity has gone. Mr Noble was able to sustain his focus and concentration
during his assessment though he took two breaks. Mr Noble is able to look after his young daughter by himself and he is able to drive and do many basic chores on his
own. Mr Noble would qualify for mild impairment in his concentration, persistence and pace.”
The Medical Assessor in the MAC noted under “present symptoms”:
“Mr Noble took breaks during the assessment as he was not able to continue talking about his current situation. He took two breaks during the assessment. Mr Noble stated that he gets tired quickly.
…
His sleep has been poor as well. He feels fatigued all the time. His sleep is a lot more, but still, he feels tired. He finds hard to get sleep at night and when he sleeps it is a broken sleep and keeps waking up.”
Under “Social activities/ADL” the Medical Assessor noted:
“Mr Noble stated that his wife will wake him up in the morning and he looks after his daughter in the morning. He will make a breakfast and will drive his wife to North Sydney. He spends time in his garden and may go to the local park with his daughter. He will sleep in the daytime when his daughter takes a nap. He will do weekly shopping with his wife. He sometimes he will take his daughter to the shops to do some shopping as well. He will make daughter's dinner and will have dinner with the daughter. His wife will come back from work and then they put the daughter together to bed and goes to bed as well. He would drop his daughter on the day she goes to the childcare and drops his wife to work. He uses a whiteboard at home to help him remind of things. His mind wanders and he cannot keep track of tasks to be done to which are told by his wife. He spends his time playing Candy Crush on his phone.”
Under “Findings on mental state examination”, the Medical Assessor noted that the appellant:
“In terms of mental state, Mr Noble was seen along with his wife. He needed a few breaks during the assessment as he was getting anxious. He had overgrown beard and his hair was done. He was groomed and dressed casually. He had a spontaneous speech with normal rate, ton and volume. He maintained good eye to eye contact and rapport. Subjectively described his mood as low and anxious and I found him to be distressed. He was crying at times during the assessment. He described his sleep and appetite as disturbed and has lost weight.
He described low levels of energy and motivation. He described low self-confidence and low levels of self-esteem. He denied having any active, passive suicidal thoughts, intents or plans and there were no thoughts of harming others. He did not describe any grandiosity, racing thoughts or increased energy levels. There was no evidence of formal thought disorder, no delusional pattern of thinking and no perceptual abnormalities. He described his attention and concentration as poor. He was oriented, had an intact judgment and had reasonable insight into his issues.
In a statement dated 4 July 2024, the appellant wrote:
“11. However, given I continue to be certified unfit to work and unable to return to work, my wife has instead decided to return to work.
12. In fact, she was offered a promotion at Microsoft and more specifically, to a director level role which she has taken.
13. In light of the above, I have focused on trying to be the carer for our daughter. I do this by dropping her off to childcare, taking her to swimming class and preparing her meals on the days my wife and my mother-in-law aren’t there.
14. However, due to my psychological symptoms, I still struggle with the responsibilities and duties of caring for our daughter. As a result, I have had to rely on my wife and my mother-in-law for assistance. I receive a lot of assistance from my wife when caring for our daughter as I cannot manage being the full-time carer of our daughter. I also receive a lot of assistance from my mother-in-law. My daughter will regularly sleep over at my mother-in-law’s and return on Saturday. My wife also takes the bulk share of our daughter on weekends. During the week, we put our daughter in daycare, two days a week. Essentially, I look after my daughter only about 2 days a week from 8:30 to 5pm after which my wife will usually come home from work to take over. Despite this, I still struggle.
15. Although the meals that I prepare for our daughter are simple and only require the use of a steamer, there have been times where I have struggled.
16. However, having to care for our daughter has forced me to somewhat establish a daily routine.
17. However, my daily routine has been exclusive to caring for our daughter, organising cooking, maintaining the garden and undertaking simple shopping.
18. Once a week, my wife and I do the major shopping. However, for any additional
items, I have to rely on lists that my wife prepares otherwise, I will forget items. Even with the list, I often miss items and have to go back to buy more.
19. I also only do short shopping trips as I have noticed that my concentration cannot handle long trips, causing me to be more forgetful.
20. This is because, due to my work injury, I continue to struggle psychologically and often feel fatigued”.
In a statement dated 8 July 2024, Ms Meng, wrote:
“6.c It’s been exhausting to not receive the support I used to get from Craig as he
cannot do simple tasks due to his lack of concentration. I now have to support
him on those tasks which can take days or weeks before he can accomplish
those tasks. Even though its completed, it not without him getting angry or
frustrated. In addition, I’ve had to overextend to make alternative arrangements and to ensure that our daughter is ok under his care.
…
8. When I am at work, Craig takes care of our daughter with my assistance.
9. I have had to create and optimise a routine for Craig to ensure our daughter is being taken care of.
10. Despite this and despite not working, he struggles to care for our daughter.
11. For example, he would often forget to put a nappy on our daughter or be late when taking our daughter to swimming classes.
12. Luckily my mother also assists in caring for my daughter.
13. For example, our daughter will regularly sleep over at my mother’s place on Fridays and return on Saturdays.
14. We also rely on day care services two days per week to ensure our daughter is taken care of.
15. In addition to the above, Craig struggles with basic things such as concentrating and memory.
16. As a result, I have had to take over reading and actioning his emails.
…
18. Craig finds it difficult to follow and remember simple instructions. Every day, I have to go over the daily schedule. Despite, us having a shared calendar, he is unable follow it proactively. Also, he continues to forget Michaela’s activities and classes despite me implementing this routine since the last year. Instead, I have to help with him a workback plan, breaking down an outcome e.g. getting Michaela to daycare at 8:30am or swimming on Fridays at 9:45am, into smaller tasks with times associated with them so that he can arrive promptly. I ask him to set alarms for these to ensure he doesn’t lose track of time. Despite this, he still occasionally is late.
…
24. Also, there have been occasions when I would ask Craig to do a specific task like pay the bills however, he would wander off and do something else because he would lose concentration.
25. There have also been occasions when Craig has attempted and failed to complete basic chores and I would find myself having to complete his unfinished jobs, so our house has a basic standard of living”.
In a report dated 15 November 2023, Dr Argyle, assessed class 3 for concentration, persistence and pace providing the following reasons:
“He can only read for 5 minutes and distracts himself with very simple games on his phone. He is able to organise cooking and simple shopping. He has struggled to do relatively simple DIY tasks.”
In a report dated 6 May 2024, Dr Bisht, noted that the appellant found it hard to do detail-oriented tasks for long periods and symptoms included difficulty sustaining concentration for prolonged periods. Dr Bisht assessed the appellant as class 2 in the category of concentration, persistence and pace providing the following reason:
“The client is able to regularly do housework including cooking. He is able to regularly look after his one and a half year-old child, without any supervision. He is also able to do the shopping regularly. He was able to sustain concentration throughout the course of the interview with me. It is very unlikely that he would be able to do all of the above, especially look after a very young child on his own, if he has level three impairment in concentration.”
In a report dated 20 June 2023, Dr Bisht noted that symptoms included difficulty sustaining concentration. Dr Bisht noted that he was recommended a book by his psychologist but he was not able to read more than 5-10 minutes at a time. On mental state examination,
Dr Bisht noted that the appellant “Cognitively, he is able to provide reasonably detailed answers to my questions without prompting, although there was some circumstantiality.”The Appeal Panel notes that the Medical Assessor provides an objective account of the appellant being unable to continue with the interview on two occasions. The Appeal Panel considers that taking a break in such an interview because of fatigue is objective evidence of his impairment in persistence. The Appeal Panel noted in addition there was evidence in the MAC that he couldn’t fix the garden gate himself, he struggles with emails and uses a whiteboard to keep track of tasks. Dr Argyle noted that the appellant could only read for five minutes. The appellant’s wife stated that she creates a routine for the appellant to follow but he often struggled to look after their daughter. She stated that she has to read and action the appellant’s emails, goes over the daily run down, get him to set alarms of his phone.
The Medical Assessor justified class 2 on basis the appellant could sustain his focus and concentration in the examination, although conversely the Medical Assessor initially stated that the appellant struggled with focus and concentration. The Medical Assessor appears to have also justified class 2 on the basis that the appellant looks after his daughter, drives and does household chores. However, these activities are not necessarily related to assessment of concentration, persistence and pace and the Medical Assessor does not adequately explain why the conduct of those activities related to an assessment of concentration, persistence and pace. The Appeal Panel considers that caring for his daughter is relevant to categories of social functioning and self care. The Medical Assessor did not identify any part of that activity as being related to a rating for concentration, persistence and pace.
In relation to the reference to the appellant being able to drive, the Medical Assessor merely noted that the appellant was able to drive. This is an activity that is rated under the category of travel. Without further explanation, there was no reason for driving to be regarded as an activity to be taken into account in assessing concentration, persistence and pace.
In relation to the reference to the appellant being able to do basic chores, such activities are taken into account in the category for self care and not the category of concentration, persistence and pace.
The Appeal Panel was not satisfied that the evidence supports a finding that the appellant was able to sustain focus and concentration. He had to take breaks in the examination. The rating of class 2 was inconsistent with the findings in the body of the MAC. The appellant is highly anxious, got distressed, could not keep track of tasks and needed a whiteboard to remind him of what he had to do.
The Appeal Panel was not satisfied that the descriptors provided in Table 11.8 for concentration, persistence and pace by the Medical Assessor accurately reflected the appellant’s functioning in this category. The failure to complete the interview with the Medical Assessor without breaks is a class 3 descriptor as is the inability to answer emails, fix the garden gate and read for about five minutes. The Appeal Panel was satisfied that the evidence established that the applicant was unable or found it difficult to follow complex instructions.
Therefore, the Appeal Panel is not satisfied that the reasoning process for assessing the appellant as class 2 in this category was able to be made out particularly after taking into account the appellant’s evidence. The Appeal Panel assesses the appellant as class 3 for concentration, persistence and pace.
The Appeal Panel is satisfied that there was a demonstrable error in the MAC in relation to the ratings in the PIRS scale of concentration, persistence and pace and the assessment in this class was made on the basis of incorrect criteria.
As noted above, the Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS categories of social functioning. The Appeal Panel found that a demonstrable error in respect of the assessment in the category of concentration, persistence and pace.
The Appeal Panel finds that the PIRS scales score 1,2, 2, 3, 3, 4, median 2.5 which is rounded up to 3, aggregate 15 so that the final WPI = 15%. The Appeal Panel notes that the Medical Assessor adjusted by 1% WPI to account for treatment effects, leading to a final 16% WPI. This was unchallenged on appeal and the Appeal Panel leave the adjustment undisturbed.
For these reasons, the Appeal Panel has determined that the MAC issued on 25 September 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W23570/24 |
Applicant: | Craig Noble |
Respondent: | Sitecore Australia Pty Limited |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Himanshu Singh and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Psycholo-gical injury | 23 February 2023 (deemed) | Chapter 11 11.1 – 11.3 11.4 -11.6 | 16% | 0 | 16% | |
| Total % WPI (the Combined Table values of all sub-totals) | 16% | |||||
0
2
0