Pearce v Secretary, Department of Communities and Justice

DETERMINATION OF APPEAL PANEL
CITATION:	Pearce v Secretary, Department of Communities and Justice [2023] NSWPICMP 455
APPELLANT:	Amanda Pearce
RESPONDENT:	Secretary, Department of Communities and Justice
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	14 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against 10% assessment for psychological injury; whether additional evidence should be admitted; whether Medical Assessor (MA) reasoning unsupportable and factually incorrect; additional evidence admitted, observations regarding Luck v Workers Compensation Nominal Insurers & Ors and contrast between sections 327(4)(b) and 328(3); fresh statement accepted; MA failure to engage with relevant evidence; shorthand reference to Member’s decision factually incorrect and infected reasons generally; MA history contradicted by appellant; MA referred to incorrect Guides in Table 2 Certificate; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 13 March 2023 Amanda Pearce, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 February 2023.
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):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 10 January 2023 a Certificate of Determination was issued after a defended hearing in which Member Anthony Scarcella gave a detailed Statement of Reasons.
On 13 January 2023 an amended referral was made by the delegate of the President to the Medical Assessor seeking an assessment of WPI caused by psychiatric/psychological disorder which occurred on 23 July 2020.
The referral included the Certificate of Determination and Statement of Reasons issued by Member Scarcella on 10 January 2023.
Ms Pearce was employed as a community corrections officer with the Corrective Services Department of NSW.
On 23 July 2020 Ms Pearce witnessed a young Aboriginal girl with significant trauma.
Ms Pearce had a well-documented background of severe trauma including rape as a teenager and had been in a relationship marked by domestic violence for the past 11 years. She had been seeing a psychologist and psychiatrist since about 2015.[1]
After the incident on 23 July 2020 Ms Pearce felt she was poorly managed by the workplace and her colleagues did not provide adequate support and bullied her.
The experience triggered recurring nightmares which involved the young Aboriginal girl the subject of the trauma hanging herself, with staff and ridiculing her.
The Medical Assessor assessed a WPI of 10%.

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.
Ms Pearce requested a re-examination by a Medical Assessor from the Panel and sought leave to rely on additional relevant information. The additional information was admitted, and a re-examination was not required, as explained below.

Fresh evidence

The appellant seeks to admit the following evidence:
(a) a further statement of Ms Pearce dated 13 March 2023, and
(b) Power on Pilates email dated Tuesday 2 February 2021.
Ms Pearce’s statement was a 2 page document consisting of 21 paragraphs.
Ms Pearce referred to the statement by the Medical Assessor that “she exercised regularly, daily. She walks and also does yoga and pilates”. She said that in answer to a question about what she did for exercise that “I try exercising every day to keep my body and mind active. Me and my grandson walk up and down the street”.
She said she did not do yoga or attend pilates and had not done so for two years.
She said that before her injury she used to attend pilates at least once a week at a studio called Power on Pilates.
She stated that after her injury she found it too overbearing and overwhelming to be around so many people. She attached to her statement an email from Power on Pilates that stated that her last attendance had been Tuesday 2 February 2021.
Ms Pearce stated additionally that she had very limited social life and she expanded on that statement with examples.
She agreed with the Medical Assessor that when she went to the grocery shop, she went at off peak times to do so. She said that she applied that approach generally when she left home.
Ms Pearce also referred to the Medical Assessor’s statement that she had visited her son on a number of occasions which she had found enjoyable. She said her son used to live at Collarenebri. She said that since her injury she only visited him once and the drive took her eight hours. Her son had since moved to Moruya and she said “he picked me up in his moving van on his way to Moruya. [Her son] drove. I did not drive.”
She said otherwise she did not visit him, but he would visit her.
Ms Pearce then addressed the Medical Assessor’s comments about her reduced friendship network.
Ms Pearce said that she did not interact or socialise with friends. She said the last time she saw a friend was her former flatmate with whom she lived between October 2021 and
August 2022. Ms Pearce said that she did not socialise or go out with her friend outside of the home as she lived in the top of the house and her friend lived in the bottom part of the house.
She said that the extent of her current face to face interactions were with her own children and their partners, her husband and her grandchildren at home.

Submissions as to fresh evidence

Although at paragraph 18 of her submissions Ms Pearce indicated that she was seeking leave to rely on her fresh statement, no submissions were made in support of that application.
Rather Ms Pearce made further submissions on the assumption that the statement was admissible.
This omission was noted by the respondent which submitted that the statement of
13 March 2023 should not be admitted as it “was not available before the medical assessment.” The statement, the respondent submitted, was self-serving and not new evidence that was unavailable prior to the assessment. Moreover, it was submitted that the respondent had no ability to meet or test the evidence.
The respondent did not refer to any authority or statute on which these submissions were based.
The respondent then made the somewhat unusual submission that the Medical Assessor should be asked to address the alleged inaccuracy by way of reconsideration.
We presume that this submission was addressed to the President’s delegate, as the Medical Appeal Panel itself has no power to remit the matter pursuant to s 329 of the 1998 Act.

Discussion

It can be seen that the respondent, in submitting that the matter should be referred for reconsideration, conceded that part of Ms Pearce’s statement of 13 March 2023 contained material that required some explanation from the Medical Assessor.
The issue of the admissibility of a statement by a claimant concerning the factual accuracy of what was recorded by the Medical Assessor has been considered in a number of cases. The latest was Luck v Workers Compensation Nominal Insurers & Ors.[2] In that case Weinstein J found that the Appeal Panel had properly rejected the claimant’s statement regarding the conduct of the assessment with the Medical Assessor, but quashed the decision of the Appeal Panel in any event because it had used parts of the statement which it had already rejected in dismissing the appeal.
[2] [2023] NSWSC 842.
In Lukacevic v Coates Hire Operations Pty Limited[3] the majority, Hodgson JA and Handley AJA found that the statement by the claimant criticising the conduct of the Medical Assessor was inadmissible. Giles JA dissented, holding that the contents of the statement contained the grounds of the appellant’s appeal, and the Appeal Panel wrongfully exercised a discretion in rejecting the appellant’s statement, as it was unreasonable to do so in that context. The principle enunciated in Associated Provincial Picture Houses Ltd v Wedensbury Corporation[4] where the exercise of discretion is so unreasonable that no reasonable person would have exercised it, was applicable.
[3] [2011] NSWCA 112 (6 May 2011).
[4] [1947] EWCA Civ 1; 1948 1KB 223.
In Lukacevic Hodgson JA, Handley AJA agreeing stated at [78]:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
We note that Lukacevic was referred to in Luck, but in a different context.
We note further in Luck that counsel relied on dicta from Petrovic v BC Serv No 14 Pty Limited and Ors.[5]
[5] [2007] NSWSC 1156.
In Petrovic Hoeben J was dealing with the powers of the gatekeeper under s 327(3) of the 1998 Act, whereas in Lukacevic the Court of Appeal was concerned with the provisions of
s 328(3). Although in Luck it was held that interpretation by Hoeben J of the s 327(3)(b) applied to a determination by a Medical Panel, the wording of s 328(3) is different and we have some reservations as to whether by the stricter definition by Hoeben J of the words “additional relevant information” in s 327(2) (which are not repeated in s 328(3)) are applicable. It does not seem, with respect, that this distinction was the subject of any submissions before Weinstein J.
We would observe in passing that the Form 10 Application might perhaps cause some confusion as it repeats the relevant ground of appeal set out in s 327(4)(b), namely:
“(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against)”
Section 328(3) of the 1998 Act provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
As will be seen in our Findings and Reasons, below, the matters about which Ms Pearce complained in her statement of 13 March 2023 concerned evidence that was before the Medical Assessor, and accordingly had recently been obtained. The errors she alleged that the Medical Assessor had made in reporting their conversation of course occurred during the medical assessment itself and were self-evidently evidence that had not been available before then.
As will also be seen, we are satisfied that Ms Pearce’s statement, and the email that accompanied it, has substantial prima facie probative value. It is detailed, plausible and has independent support. Accordingly both documents are admitted as fresh evidence.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions which have been considered by the Appeal Panel.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

The MAC

The Medical Assessor took the following history regarding Ms Pearce’s social activities: [6]
“Social activities/ADL: She exercises regularly, daily. She walks and also does yoga and pilates. She has had recent surgery on umbilical hernia which has limited her physical activity however this is recovering “on track”. She enjoys spending time with her children and grandchildren. She enjoys binging the TV series Gray’s Anatomy. She has reduced capacity for reading. She is able to attend to basic ADLs. She washes her own clothes. She avoids going to the shops as much as possible. When she goes she choses off peak times and is “in and out” with “no eye contact”. She has reduced her friendship network. She has visited her son on a number of occasions which she found enjoyable. She has her own car and is able to drive when necessary.”
[6] Appeal papers page 37.
At [10c] the templated question invites:
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs”
In answer, the Medical Assessor said:
“Dr Kuljic 12/10/21. Diagnosed PTSD and Bipolar Disorder. WPI 19-2 for pre-existing= 17%. I disagree with the bipolar diagnosis – the pre-existing symptomatology is better captured by the diagnosis complex PTSD. She functioned well pre incident so there is no subtraction for pre-existing (sic). Otherwise PIRS assessment is the same apart from social and recreational activities. I note that on my interview she was more motivated for exercise. I do not place weight on the report of Dr Teoh for reasons per the Certificate of Determination.”

SUBMISSIONS

Appellant

The appellant referred us to the relevant guidelines of Chapter 11 and the uncontroversial definition of demonstrable error.
Ms Pearce referred to her fresh statement and submitted that the Medical Assessor had fallen into error in his assessment of the category within the psychiatric impairment rating scale (PIRS) for “social and recreational activities”.
To summarise the appellant’s submissions, the classification value assessed as 2 was based on the failure by the Medical Assessor to properly consider the evidence before him, or to record accurately what he had been told by Ms Pearce during the assessment process. These matters will be addressed below, and there is no utility in repeating them here.
Ms Pearce submitted that, properly considered, the evidence that was before the Medical Assessor should have resulted in a classification value of 3.

Respondent

The respondent submitted that Ms Pearce had not indicated as a ground of appeal that she would be relying on the availability of “additional relevant evidence”, which we take to be a reference to the grounds specified by s 327(4)(b) of the 1998 Act.
This submission may be dealt with shortly and immediately. The appellant in the Form 10 “Appeal Against a Decision of Medical Assessor” indicated at page 4 that she was indeed relying on that ground. We assume the respondent was referring to the failure by Ms Pearce to tick the relevant box in the paragraph immediately preceding that indication. The point is accordingly extremely technical and is rejected.
The respondent then made submissions regarding the admissibility of the additional evidence, which we have dealt with above.
The respondent submitted that if the appellant’s statement of 13 March 2023 was introduced, its contents did not challenge the finding by the Medical Assessor that Ms Pearce was exercising and spending quality time with her family.
The respondent disagreed with the submission that the Medical Assessor placed significance on the fact that she was exercising and attending yoga and pilates.
We were referred to the Medical Assessor’s history that Ms Pearce had recently had restrictions on her physical activities by virtue of surgery on her umbilical hernia but was recovering. This did not support Ms Pearce’s contention of incorrect or incomplete history had been taken the respondent submitted.
The respondent submitted that no demonstrable error had been found that was an error on the face of the record, the error being identified by subsequent evidence in the form of the contents of the statement of 13 March 2023.
It was submitted that the Medical Assessor “was quite conscious” of the basis on which he distinguished Dr Kuljic’s opinion and set out his reasons clearly for doing so. Ms Pearce reported that she was more motivated for exercise presumably reporting to the Medical Assessor.
However the respondent conceded that the Medical Assessor made a demonstrable error in failing to consider Dr Teoh’s report.

Discussion

In Sydney Local Health District v Chan[7] Adams J found that a Medical Assessor (“AMS” as they were then called”) was bound, following the High Court authority of Wingfoot Australia Partners Pty Ltd v Kocak[8] to set out in a Statement of Reasons the actual path of reasoning by which he arrived at his opinion.
[7] [2015] NSWSC 1968 at [13].
[8] [2013] HCA 43; 252 CLR 480.
We have already referred to Vegan at the outset of these reasons which, as indicated, require that the extent of the reasons required to be given by an appeal panel (and by analogy with Chan a Medical Assessor) can vary from case to case depending on whether one conclusion or more than one conclusion is open. In this case the appellant has confined the issue as to the adequacy of the reasons given by the Medical Assessor for his assessment of a class 2 evaluation of the behavioural consequences caused by Ms Pearce’s disorder to her social and recreational activities in the PIRS.

The psychiatric impairment rating scale

The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[9] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[9] Guides 55.
The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[10]
[10] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides p 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[11] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[12]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[11] [2017] NSWSC 887 (Ferguson).
[12] [2015] NSWSC 633 (Jenkins).
In Glenn William Parker v Select Civil Pty Ltd,[13] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[13] [2018] NSWSC 140 (Parker).
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
a.     if the categorisation was glaringly improbable;
b.     if it could be demonstrated that the AMS was unaware of significant factual matters;
c.     if a clear misunderstanding could be demonstrated; or
d.     if an unsupportable reasoning process could be made out.
The Medical Assessor’s reasons in his MAC were, with respect, so concise as to make it difficult to discern many of the reasons for his assessment of the six PIRS categories. The issue raised by Ms Pearce has however been restricted to the assessment for the category of social and recreational activities.
For the following reasons we are satisfied that the classification by the Medical Assessor in this category as being of a mild nature only, and thus warranting a value of 2, cannot stand.
Firstly, the evidence before the Medical Assessor contained factual assertions regarding the behavioural consequences of Ms Pearce’s disorder in this particular category. Whilst he referred to the opinion of Dr Kuljic, he did not refer to other relevant medical evidence that was before him, and his consideration of Dr Kuljic’s opinion was cursory and uninformative, being limited to a comment that “on my interview she was more motivated for exercise”.
The notes from Ms Pearce’s GP, Dr Kelly, confirmed that Ms Pearce had stopped doing pilates, was lacking confidence, had very high anxiety levels, panic attacks, insomnia, nightmares and that she was avoiding shopping and supermarkets, which she previously enjoyed.[14] These symptoms were noted from October 2020, and the last entry dated
[14] Appeal papers from page 260.
22 July 2021 recorded that she was “not exercising”.
Ms Pearce’s psychologist, Mr De Mortel from Brighter Horizon Psychology, reported to
[15] Appeal papers page 203.
Dr Kelly on 2 February 2021 that Ms Pearce was experiencing low mood, increased frustration, social isolation, anhedonia, sleep and appetite disturbance and other symptoms that were indicative that her psychological condition was producing significant behavioural consequences.[15]
The medicolegal report of Dr Kuljic was dated 22 October 2021.[16] In assessing the behavioural consequences of Ms Pearce’s disorder on her social and recreational activities, Dr Kuljic noted her statement that she had no motivation for exercise. She had not run for the last four months nor attended yoga over the previous six months. She had no motivation to social activities, and did not go out on her own.
[16] Appeal papers page 74 and page 77.
The medico legal psychiatrist retained by the respondent itself, Dr Ben Teoh also reported consistent complaints of acute anxiety attacks, avoidant behaviour and a loss of interest in her usual activities in his report of 2 May 2022.[17] On mental state examination, Dr Teoh found that Ms Pearce had “poor concentration and avoidant behaviour. She reported insomnia. She has been lacking motivation and interest in her usual activities.” Dr Teoh noted that she had been socially withdrawn.
[17] Appeal papers page 280.
Both Dr Kuljic and Dr Teoh agreed that the appropriate degree that Ms Pearce’s disorder had affected her functional behaviour regarding the category of social functioning in the PIRS was moderate, and gave a classification of 3.
As to Dr Kuljic’s history that Ms Pearce was not doing any exercise and had no motivation to social activities, the respondent relied on the comment by the Medical Assessor that in his interview Ms Pearce was more motivated for exercise. The respondent observed that the Medical Assessor had taken a history of recent umbilical hernia surgical treatment and that her recovery was “on track.” We assume therefore that the respondent’s “observation” was designed to submit that the face-to-face interview at the time of the assessment with the Medical Assessor revealed that Ms Pearce’s situation had changed from that which Dr Kuljic described at an earlier time. We note that such an interpretation would also explain why the Medical Assessor’s evaluation differed from those outlined above, as they were at an earlier point in time.
Indeed, at face value the history taken by the Medical Assessor when describing
Ms Pearce’s social activities/ADL that she exercised daily, and that she walked and did yoga and pilates, clearly indicated a significant improvement in her functional behaviour apropos her social and recreational activities. The Medical Assessor’s next sentence would seem to link a limitation in that physical activity to the hernia surgery, but that the recovery of her ability to perform the physical activities he had just described was progressing well.
On one view therefore the Medical Assessor had no obligation to give further reasons for his conclusion that Ms Pearce was suffering from a mild impairment of her social and recreational activities. The inference would accordingly be available that the Medical Assessor had considered the above evidence but had no further need to explain why he found such an improvement.
We do not find such an argument to be persuasive in this case. Dr Kuljic’s report was dated 22 October 2022, and the examination by the Medical Assessor occurred on
9 February 2023, some four months later. Whilst such an improvement is possible, the medical evidence to which we have referred covering the period from the date of injury on
23 July 2020 rather indicated that Ms Pearce’s impairment in her social and recreational activities was long-standing and unlikely to change.
Further, the Medical Assessor’s statement at [10c] that he did not place weight on Dr Teoh’s report “for reasons per the Certificate of Determination” is of some concern. The comment would suggest that the Medical Assessor was unaware of the issue that Member Scarcella was considering. The Member was not dealing with Dr Teoh’s opinion as to the level of
Ms Pearce’s impairment, which the Member did not discuss, but rather whether Dr Teoh’s opinion contributed to the issue that he had to determine, namely whether Ms Pearce had suffered a personal or a disease injury pursuant to s 4(a) or (b) of the 1987 Act.
Dr Teoh’s opinion as to the impairment suffered by Ms Pearce was a relevant matter and the Medical Assessor erred in dismissing it in such an inappropriate and shorthand manner. The fact that both Dr Teoh and Dr Kuljic considered that the appropriate level of impairment for Ms Pearce’s functioning in her social and recreational activities was the same, a moderate class 3 level, was a matter that the Medical Assessor ought to have at least considered. His reasons for not placing any weight on Dr Teoh’s report make it likely that he did not. This error may have infected his approach to other relevant areas he was required to consider, such as a proper appreciation of the medical evidence before him.
The fresh statement from Ms Pearce did not allay our concerns in this regard.
Ms Pearce’s 13 March 2023 statement, as indicated, firstly discussed comments attributed to her by the Medical Assessor regarding what she did for exercise. Ms Pearce made an earlier statement dated 1 September 2022, which was before the Medical Assessor.[18] In it, she said at [82s]:
“Prior to my injury, I enjoyed running and going to yoga. I have no motivation to exercise at all. I have stopped running and going to yoga, because I can’t do groups or crowds and questions.”
[18] Appeal papers page 92.
It can be seen that this evidence contradicts the statement by the Medical Assessor that
Ms Pearce “… also does yoga and Pilates…”
Ms Pearce related in her statement of 13 March 2023 that she tried to exercise every day by walking up and down her street. However as to the statement by the Medical Assessor that she was doing yoga and pilates, she stated plainly that the Medical Assessor was incorrect, and moreover supplied independent documentary corroboration, in the form of the email from “Power On Pilates” of 8 March 2023. This document established that Ms Pearce had not attended that Pilates studio since 2 February 2021, which afforded Ms Pearce some support for her allegation.
The statement also confirmed that Ms Pearce’s exercise impairment had not significantly altered since she made her original statement on 1 September 2022, which was consistent with the opinions of both Dr Teoh on 2 May 2022 and Dr Kuljic on 22 October 2022.
We can only assume that the Medical Assessor misheard or did not otherwise comprehend what Ms Pearce said to him at the assessment. In any event a clear misunderstanding has been demonstrated, as we accept the account given by Ms Pearce, for the reasons given above when considering whether to admit her additional evidence.
The Medical Assessor’s reasons within the PIRS table for his assessment of Ms Pearce’s social and recreational activities were that Ms Pearce was “able to exercise and spend quality time with family” is thus not reflected in the evidence that was before him, nor in the fresh evidence giving in Ms Pearce’s statement dated 13 March 2023.
It would also appear, as indicated in our comments regarding the Medical Assessor’s reasons regarding the report of Dr Teoh, that the Medical Assessor’s reasoning process was unsupportable.
The above is sufficient to establish a demonstrable error, and we note in passing that the respondent quite properly conceded that the Medical Assessor had erred in failing to consider the report of Dr Teoh.
We also accept that the Medical Assessor made a factual error in recording that Ms Pearce had visited her son on a number of occasions. Ms Pearce said that she had visited her son Callum on only one occasion since her injury when Callum resided in Collarenebri, but that since he had moved to Moruya he visited her, although it would seem that she travelled to Moruya on the occasion that he moved.
Accordingly, the MAC will be revoked. We did not consider a re-examination to be necessary, as Ms Pearce has already provided the necessary evidence in her fresh statement, which confirmed the unanimous view of the medicolegal experts on both sides of the record that a class 3, moderate impairment, is the appropriate evaluation of the behavioural consequences of Ms Pearce’s disorder relating to her social and recreational activities.
We note further that the Medical Assessor in his Table 2 Certificate identified the wrong Chapter of the Guides as being applicable. The applicable Guides are Chapter 11, not Chapter 5. Moreover Chapter 11 excludes the AMA5 Guides. We are at a loss to understand why the Medical Assessor indicated that Chapter 5 of AMA5 was applicable. Chapter 5 of AMA5 concerns the respiratory system.
For these reasons, the Appeal Panel has determined that the MAC issued on
13 February 2023 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:	W5945/22
Applicant:	Amanda Pearce
Respondent:	Secretary, Department of Communities and Justice

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 Gerald Chew 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)

Psychological

23 July 2020

Chapter 11

n/a

20%

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

20%

PERSONAL INJURY COMMISSION

Table 11.8: PIRS Rating Form

Name	AMANDA PEARCE	Claim reference number (if known)
DOB	Age at time of injury
Date of Injury	23/7/20	Occupation at time of injury	COMMUNITY CORRECTIONS OFFICER
Date of Assessment	9/2/23	Marital Status before injury	MARRIED

Psychiatric diagnoses	1.PTSD		2.
3.		4.
Psychiatric treatment	Medication, psychiatrist, psychologist
Is impairment permanent?	Yes	No (circle one)	Yes

PIRS Category	Class	Reason for Decision
Self Care and personal hygiene	2	She is able to attend to ADLs but struggles at times.
		Social and recreational activities	3	She is not able to exercise. She reported significant anxiety symptoms and avoidant behaviour. She has been socially withdrawn and lacks motivation.
				Travel	2	She is able to travel independently when needed but avoids this
						Social functioning	2	There have been some loss of friendships
Concentration, persistence and pace	3							She has concentration difficulties. She is unable to read. She can watch television.
		Employability	5					She is currently unable to work

Score			Median Class
2	2	2	3	3	5	3
Aggregate Score Impairment			Total	%

19%+1%
treatment effect
= 20%

[2023] NSWPICMP 455

14 September 2023