Restaurant Normandy Pty Ltd v Jones
[2025] NSWPICMP 552
•29 July 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Restaurant Normandy Pty Ltd v Jones [2025] NSWPICMP 552 |
| APPELLANT: | Restaurant Normandy Pty Ltd |
| RESPONDENT: | Claire Jones |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | John Lam Po Tang |
| DATE OF DECISION: | 29 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC) in respect of psychological injury; psychiatric impairment rating scale (PIRS) tables for self-care and personal hygiene, and concentration, persistence and pace; no demonstrable error on the face of the MAC with respect to self-care and personal hygiene; Pitsonis v Registrar of the Workers Compensation Commission; assessment in class 3 for concentration, persistence and pace inconsistent with ability to undertake masters degree; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 April 2025 Restaurant Normandy Pty Ltd (Normandy) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor John Baker, who issued a Medical Assessment Certificate (MAC) on 12 March 2025.
Normandy 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor made a demonstrable error in his assessment of self care and personal hygiene under the Psychiatric Impairment Rating Scale (PIRS). We conducted a review of the original medical assessment, limited to the grounds 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
Ms Jones was employed by Normandy as a senior waiter on a casual basis at Restaurant Hubert. She suffered a psychological injury as a result of being sexually assaulted in a bathroom of the restaurant on 7 January 2023. After the injury Ms Jones attempted to continue working. She said that when her condition deteriorated and she sought assistance from Normandy’s human resources staff, she was moved to another of the company’s restaurants and given reduced hours. She said that she was performance managed for her “negativity and stress”. She sought medical treatment in July 2023 and ceased work in about February 2024.
Ms Jones claimed permanent impairment compensation on the basis of a report from Dr Nagesh dated 23 July 2024 in which he assessed 15% whole person impairment (WPI). She was examined by Dr Olatunji on behalf of Normandy who considered that her condition had not reached maximum medical improvement.
The Medical Assessor assessed Ms Jones on 12 March 2025. He diagnosed major depressive disorder and post-traumatic stress disorder together with stimulant (cocaine) use disorder in sustained remission. Using the PIRS, the Medical Assessor assessed Ms Jones in class 2 for travel, social functioning and employability and class 3 for self care and personal hygiene, social and recreational activities and concentration, persistence and pace, resulting in 15% WPI. He added 1% for the effect of treatment, assessing a total of 16% WPI.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Ms Jones to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Normandy submitted that the Medical Assessor erred in his assessments of self care and personal hygiene and concentration, persistence and pace.
With respect to self care and personal hygiene, Normandy said that monitoring by others for abstinence from drugs and alcohol is not relevant to assessment under Table 11.1. It said that the difference between a mild impairment in class 2 and a moderate impairment in class 3 was the ability to live independently. Normandy noted that Dr Nagesh assessed Ms Jones in class 2. The Medical Assessor observed that Ms Jones is capable of working full time hours and has stopped socialising during the week. While acknowledging that those factors are primarily relevant to other tables of the PIRS, Normandy said that they were not consistent with a person who cannot live independently without support.
Turning to concentration, persistence and pace, Normandy said that Ms Jones’ functioning was in line with assessment in class 2. The Medical Assessor recorded that Ms Jones has been able to complete a Masters degree though she required support and extensions. Normandy said that a Masters degree was not a “standard course” and that Ms Jones’ ability to complete the course while working full time hours was not consistent with moderate impairment of concentration, persistence and pace.
In reply, and in submissions prepared by Ms Compton of counsel, Ms Jones submitted that the descriptors in the Guidelines are non-binding examples and allow a wider discretion than if they were strict criteria. She said that there were no errors in the assessment. With respect to concentration, persistence and pace, Ms Jones submitted that the Medical Assessor’s assessment was consistent with that of Dr Nagesh and Dr Olantunji. Unfortunately there are a number of typographical errors in the submissions which makes them hard to follow.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [2021] NSWCA 304 at [26].
The MAC
When describing Ms Jones’ background, the Medical Assessor noted that Ms Jones was studying her Master of Arts in languages, focussed on French, before the injury. While she had used recreational drugs on occasion before the injury, she was able to work and continue her studies at the same rate as her peers. During the course of her employment, Ms Jones’ cocaine use increased, in the context of a traumatic relationship with her senior manager before the injury.
When describing her history, the Medical Assessor said:
“The claimant reported that she had worked in the hospitality industry for many years whilst at the University of New South Wales (UNSW). The claimant studied languages since she was at Illawarra Grammar School. Her languages were French and Spanish. … The claimant had been successful in completing her Bachelor of Arts (Languages) and was studying her Master of Arts in languages focused on French prior to the primary psychological injury.”
Describing Ms Jones’ treatment, the Medical Assessor said:
“The claimant reported that she had continued to attend her general practitioner who had increased her antidepressant medication, Amitriptyline from 50 to 150mg at bedtime. She reported that she was compliant with this pharmacotherapy, and she described her depressed mood being less severe. She stated she had continued difficulties concentrating and her capacity to perform her course work was much lower and slower than prior to the onset of this psychological injury.”
The Medical Assessor said:
“The claimant’s primary psychological injury included symptoms consistent with posttraumatic stress disorder, major depressive disorder and cocaine use disorder. She said she suffered from poor sleep, loss of weight, depressed mood, and intrusive memories of the trauma she experienced whilst working for this employer. The claimant described seeking psychological treatment for her substance use disorder. She reported that she had stopped all cocaine use less than 12 months ago. She reported she had stopped alcohol consumption with her not drinking alcohol for many days and not ever to excess.”
The Medical Assessor set out Ms Jones’ symptoms referrable to each of the diagnoses he made.
Setting out Ms Jones’ social activities and activities of daily living, the Medical Assessor said, relevant to the impugned tables:
“The claimant lived in her partner’s home. She said her appetite was reduced and she was iron deficient due to her not eating nutritious or healthy foods. She said she had an iron supplement as an infusion provided by her general practitioner. She said she was reliant on others to buy her groceries and cook meals. She was not independent in her self-care and personal hygiene. She reported that she was monitored regarding maintaining her absences from use of alcohol and cocaine. This was part of an evidence based controlled environment approach to maintaining her self-care by having access to a support person such as her partner or her sister. The claimant could not live independently alone and she required frequent prompting to maintain her minimum safe level of nutrition and level of personal hygiene and self-care.
…
The claimant was distressed, and avoidant throughout her assessment. She said she had been granted special grounds to support her completion of the master’s degree claimant said she took three times longer than her peers to complete her degree since the onset of the injury. She said she only had capacity to concentrate for short periods and that she found typing long documents difficult. She used the support of her sister to help with typing. Her progress was slow. She would often not progress her single module for weeks at a time and would require extended time to complete necessary requirements.”
Relevant to employability, the Medical Assessor said:
“The claimant was unable to return to her prior employment. She was able to work fulltime in a different environment at a lesser skill which was less stressful. The claimant reported that she had found work as a waiter which was of lower status than when she was a senior waiter. She said she worked casual and fulltime hours at the time of this assessment.”
The Medical Assessor observed:
“The claimant presented as an irritable, agitated and dishevelled woman. She had unwashed and roughly cut hair and was wearing unwashed clothes.”
The Medical Assessor said:
“In my opinion the claimant has a moderate whole person impairment as assessed using the psychiatric impairment rating scale. From careful consideration of the forwarded documents as well as the findings of the assessment, I note that 1% WPI adjustment in the claimant’s whole person impairment for treatment. effect is reasonable and not at odds with the evidence. This 1% WPI adjustment recognises the claimant using a controlled environment to achieve sustained remission from her cocaine use disorder.
In my opinion the claimant had a moderate impairment assessed at 15% whole person impairment.
The claimant did not have a pre-existing psychiatric or psychological condition. There was no adjustment for pre-existing condition.”
Providing his reasons for assessing Ms Jones in class 3 for self care and personal hygiene and concentration, persistence and pace, the Medical Assessor set out the material elicited during the interview and set out at [26] above.
Self care and personal hygiene
A demonstrable error is an error which is apparent from an examination of the MAC.[3] While Normandy did submit that the Medical Assessor applied incorrect criteria, that submission is not developed. The Medical Assessor assessed Ms Jones by reference to the correct criteria, being the PIRS.
[3] Pitsonis v Registrar of the Workers Compensation Commission [2008] NCWCA at [49].
Normandy said that the difference between class 2 and class 3 of the self care and personal hygiene table was the ability to live independently. The extent of the error identified by Normandy is that the observation that Ms Jones’ capacity to work full time hours and has stopped socialising during the week are not consistent with someone who cannot live independently.
The focus of Table 11.1 is the ability to live independently and maintain a satisfactory standard of hygiene and nutrition. The history that the Medical Assessor took is that Ms Jones requires significant assistance with nutrition in particular and also with hygiene. Due to the recent remission of a cocaine use disorder, monitoring by and assistance from others with respect to drug and alcohol use is a component of maintaining reasonable self care.
There may be a tension between the Medical Assessor’s observations and the need for Ms Jones to present well enough to work consistently in the hospitality industry and the fact that much of the conduct of working as a waitress replicates domestic chores which are part of self-care. However, the Medical Assessor reasoned from the history he obtained and his observation of Ms Jones’ appearance to the assessment he made and there is no error on the face of the MAC.
An Appeal Panel is only permitted to re-examine a worker if it has determined that the Medical Assessor has made a demonstrable error or applied incorrect criteria. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[4] Davies J said:
“…if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment.”[5]
[4] [2013] NSWSC 1792.
[5] At [33].
An Appeal Panel cannot re-examine to determine if there is an error or to determine if a different result would be obtained on a different day.
There is no demonstrable error in the Medical Assessor’s assessment of self care and personal hygiene in class 3.
Concentration, persistence and pace
The first two classes of Table 11.5 of the Guidelines include reference to further education. Class 1 applies where there is no deficit or a “minor deficit attributable to the normal variation in the general population.” The relevant example[6] is that a worker is “able to pass a TAFE or university course within a normal time frame.” Assessment in class 2 – a mild impairment – is relevant when a worker
“can undertake a basic retraining course, or 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.”
[6] Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 at [65].
Class 3 applies where a worker is moderately impaired and cannot read more than newspaper articles or follow complex written instructions.
Though she consulted Access EAP following the injury, Ms Jones did not seek medical treatment until 5 July 2023. On 13 July 2023 Dr Holmes wrote a letter “to whom it may concern” and said:
“Regarding Claire Jones, aged 27yrs 11mths, she has had to unfortunately pause her university studies for the time being due to various health problems that we are managing over the coming months. I'd appreciate you facilitating Claire's pause in her studies for the time being and she will make contact when she is better to recommence them.”
The notes from Access EAP on 29 August 2023 record that Ms Jones “deferred uni”.
On 12 October 2023 Dr Holmes recorded that he had completed a form for “special consideration application for University.”
In his report dated 23 July 2024 Dr Nagesh assessed Ms Jones in class 3 and said:
“My rationale is your client's attention concentration due to her PTSD symptoms is quite poor. She cannot concentrate for more than 10 minutes at a time. She struggles to read books, newspaper articles, and magazines. Although she is undertaking a standard course, she cannot focus on intellectually demanding tasks for more than 10 minutes. She gets tired due to her headaches. Hence, I have assessed her as class 3, moderate impairment. Also, she is able to complete only one course per trimester.”
While Dr Nagesh did note at the beginning of his history that Ms Jones was studying a Masters degree, he referred to it later in the report as “some part time studies” and a “standard course.” His report does not convey that he was aware this was not just a ‘standard course’ but a higher degree.
When Ms Jones saw Dr Olatunji on 3 May 2024 she was
“struggling with her study currently. She tried going back to university studies twice last year but gets affected with her chronic headaches. Her anxiety also affects her concentration and attention. She struggles to multitask like before.”
Dr Olatunji noted that the course Ms Jones was undertaking was a Masters in translation and that she planned to be a French-English translator.
Ms Jones’ statement dated 15 January 2025 is very short and does not contain any information about her studies.
The MAC is unclear as to whether Ms Jones has completed her degree, though it is appears she resumed studying after deferring it. Normandy’s submissions assume that she has completed the course. Whether Ms Jones has completed the course or not, the history is that she is able to persevere with an advanced degree, albeit at a reduced pace. The capacity to undertake a higher degree, even with assistance, is inconsistent with an ability to read more than newspaper articles or to follow complex instructions. A Masters degree is not, as Dr Nagesh described it, a standard course, but one able to be pursued by people with the cognitive capacity for more than a Bachelor’s degree
This, in and of itself, is sufficient reason to say that a moderate impairment in concentration, persistence and pace is incompatible with the evidence before the Medical Assessor and his own assessment, given the lack of observation he elicited of conduct appropriate for assessment in Class 3.
However in addition we note that while concentration, persistence and pace and employability are the subject of separate assessment under the PIRS, the ability to concentrate, to persist at tasks and to perform them at a reasonable pace are examples of conduct relevant to the ability to work. By 16 April 2024, Dr Holmes noted that Ms Jones was considering going back to work and planned to look for a new employer. The Medical Assessor recorded that Ms Jones was able to work full time in a lesser role, now being a waiter rather than a senior waiter. The relevance of that statement for the assessment of concentration, persistence and pace is that it is unlikely that Ms Jones could maintain full time work as a waiter if she suffered such a moderate impairment in her ability to concentrate.
The appropriate assessment for concentration, persistence and pace is in class 2.
Reassessment
When the scores under the PIRS are arranged in ascending order as required by paragraph 11.14 of the Guidelines they are 2, 2, 2, 2, 3 and 3. The total is 14 and the median class is 2. Under table 11.7, that converts to 7% WPI.
There was no appeal with respect to the Medical Assessor’s allowance of 1% for the effect of treatment. Ms Jones’s total WPI is 8%.
For these reasons, we have determined that the MAC issued on 12 March 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W623/25 |
Applicant: | Claire Jones |
Respondent: | Restaurant Normandy Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor John Baker 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 % WPI (after any deductions in column 6) |
| Psychological injury | 7.1.2023 | Chapter 11 | N/A | 8 | 0 | 8% |
| Total % WPI (the Combined Table values of all sub-totals) | 8% | |||||
0
4
0