Riddle & Co Pty Ltd atf Highfield Family Trust t/as Eden Motel v Howarth
[2025] NSWPICMP 466
•30 June 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Riddle & Co Pty Ltd atf Highfield Family Trust t/as Eden Motel v Howarth [2025] NSWPICMP 466 |
| APPELLANT: | Riddle & Co Pty Ltd atf Highfield Family Trust t/as Eden Motel |
| RESPONDENT: | Howarth |
| APPEAL PANEL | |
| MEMBER: | Cameron Burge |
| MEDICAL ASSESSOR: | Dr Douglas Andrews |
| MEDICAL ASSESSOR: | Dr Nicholas Glozier |
| DATE OF DECISION: | 30 June 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC) application and rating of psychiatric impairment rating scale (PIRS) categories; whether the MAC contained incorrect criteria or contained a demonstrable error; the respondent worker suffered an accepted psychological injury which was referred for medical assessment; she was assessed as suffering a 15% whole person impairment (WPI); the employer appealed from the Medical Assessor’s (MA) findings in relation to three of the six PIRS categories, namely social functioning, concentration, persistence and pace, and employability; Held – the Appeal Panel determined the MAC contained an obvious error in that the MA’s classification of the respondent worker’s social functioning and employability were plainly contrary to the evidence before him including but not limited to the statement evidence of the respondent herself; MAC revoked; new certificate issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 March 2025, Riddle & Co Pty Limited atf Highfield Family Trust t/as Eden Motel (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Suneel Chamoli, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 March 2025.
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, 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 respondent suffered a psychological injury in the course of her employment with the appellant, with a deemed date of injury of 20 August 2020. On 30 October 2024, the respondent lodged an Application to Resolve a Dispute relevantly claiming permanent impairment compensation.
On 28 November 2024, Consent Orders were filed by the parties remitting the matter to the President for referral for medical assessment. On 5 February 2025, the respondent was examined by Medical Assessor Suneel Chamoli, who issued a MAC on 4 March 2025 assessing the respondent as suffering 17% whole person impairment (WPI), with a 1/10th deduction for a pre-existing condition, leading to a final assessed WPI of 15%.
In assessing the respondent, the Medical Assessor diagnosed a major depressive disorder. In completing the psychiatric impairment rating scale (PIRS) form, the Medical Assessor made the following findings in relation to the relevant categories:
· Self care and personal hygiene Class 2
· Social and recreational activities Class 2
· Travel Class 1
· Social functioning Class 3
· Concentration, persistence and pace Class 3
· Employability Class 5
In its appeal lodged on 27 March 2025, the appellant submitted the Medical Assessor applied incorrect criteria in relation to three of the PIRS categories, namely social functioning; concentration, persistence and pace and employability. The balance of the assessments made by the Medical Assessor are not the subject of challenge on appeal.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the matters the subject of the appeal are capable of determination based on the material already in evidence and without a further examination of the respondent.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
Neither party sought to adduce fresh evidence on the appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
The Medical Assessor took a history from the respondent which accurately recorded her past psychological history. It included non-work-related matters which caused post-traumatic stress disorder, addiction issues and depression. The Medical Assessor summarised the pre-injury history as follows:
“Ms Howarth has admitted to history of childhood sexual abuse. She suffered from Depression and addictions from her late teenage years. MS Howarth suffered from Post Natal depression in 1195, after the birth of her first child, who was born three months pre-mature. For this she received treatment in inpatient and community settings. She was in rehabilitation for amphetamine addiction from 2002 to 2004. She was victim in an armed robbery in 2006, while working as a manager in a Domino’s store at Forster, NSW. She was diagnosed with Post-traumatic stress disorder. She received treatment from a private psychiatrist and later admitted to Sir Charles Gardiner Hospital and Greylands psychiatric unit. She continued Quetiapine and Venlafaxine, she was functioning well. She reports to have made good recovery but continues to have ‘minor depression’ in keeping with (her) circumstances).”
At [9] of the MAC, the Medical Assessor set out the following further history:
“Ms Howarth is a 50 years and 11-month-old single female living in Merimbula for last 6 years. She has 3 daughters 26, 17 and 14 years old. Her son is 30 year old. Ms Hobart [sic] is currently single and she is unemployed. She has a fairy floss business, currently not in operation. Ms Howarth reports she walked away from her own family decades ago. She has two sisters however they are not in touch. Both her parents are deceased. Her father passed away in 2010 and her mother passed away in 2023.
Ms Howarth’s husband passed away suddenly of a heart attack after his 40th birthday. She had her son and older daughter with him. Thereafter she was in an abusive relationship that ended in 2015. She had her two younger daughters with this man. Only recently, her younger daughters have moved out of home to live with her 26-year-old daughter Emily. Her 30-year-old son also moved back from Western Australia, with his 2 children and pregnant wife to live with Ms Howarth. Ms Howarth reports her son got involved in methamphetamine addiction in Western Australia. He was in court for some offences there, before moving to live with her. He was verbally abusive towards Ms Howarth who called police for assistance. It was on the day of our assessment that he got removed from Ms Howarth’s department of housing unit. He has also moved to live with Emily. Even before her son moving in, Ms Howarth reported deteriorating relationship with her 17-year old daughter, who has been moving in and out to live with her father and with Emily at times. Ms Howarth reported her daughter said the y could not deal with Ms Howarth’s mental health, however Ms Howarth is unsure if her own mental health is to blame. Ms Howarth reported her children have been treating her badly.
Ms Howarth suffered anxiety and depression and addiction to drugs and alcohol from around the age of 15 years old. In 1994, she was admitted to the Bloomfield Hospital in Orange. The discharge summary from the hospital states a diagnosis of impulsive personality disorder and depression. It also notes history of obsessive tendencies. There is mention of large gambling debts, childhood sexual assault, and Fiona working 60 hours per week. At this time she was treated with clomipramine 75 mg in evenings. Ms Howarth reports after a drug rehabilitation in 2004, she has been clean of amphetamine addiction and has not been drinking alcohol either. Since discharge from the Greylands hospital in Perth, she was taking Quetiapine 300 mg and Venlafaxine XR 150 mg. She reports her mental health was relatively stable after 2012. She reports to have made good recovery but continued to have ‘minor depression’ in keeping with her circumstances.’ She has always wanted to work and found odd jobs when she did not have stable employment. She has worked for most of her adult life until she stopped work after the subject injury. Ms Howarth reports the dose of medicines was stable for a very long time. She was sleeping well; her energy levels were good and she was very productive. Her mental health improved, and the dose of Quetiapine was cut down to 100 mg while continuing Venlafaxine XR 150 mg.
In 2015 she left her violent partner. Ms Howarth reported she reacted to his verbal abuse, which made him take an AVO against Ms Howarth. Ms Howarth had to go through family courts, and she was under stress, however she reported she could still function and got through that stressful period without any significant worsening in her mood. Ms Howarth reports she survived well out of the situation; she admitted to periods where her mood was depressed however it was in keeping with circumstances. The notes from Bega Valley medical practice to verify that Ms Hobart was off antidepressants venlafaxine for almost a year until its very commencement in 2019 for likely some worsening of mood from transition to menopause.
Ms Howarth reported in 2024 she was feeling the best in her life. This was the result of regular therapy with her trusted psychologist. However, due to the report from psychologist that Ms Howarth had achieved remission, the funding for ongoing treatment was withdrawn. Since then, her mental health has declined. Ms Howarth reports she has not seen her psychologist since December 2023. Ms Howarth reports she was undergoing EMDR, which she felt was an amazing treatment. Ms Howarth reports she had around 15 to 20 EMDR sessions. It resurfaced her childhood trauma of sexual abuse by her father and another member of the family. However, since the therapy terminated, she has not been able to process the confronting memories of childhood sexual abuse. Since the funding ended, she has not been able to get any professional help as her only financial support is disability pension and very minimal income from her fairy floss business. She reports to have made at the most $ 3000 in a year from the fairy floss business. Some weeks she has not made any fairy floss.
She was prescribed medicinal cannabis by her local GP. She took it for around 2 years until November 2024. Despite she found medicinal cannabis was effective for her psoriatic arthritis pain, Ms Howarth ceased medicinal cannabis as she was not able to drive while taking medicinal cannabis with THC. Driving was more important to her.
Ms Howarth reports she has seen 2 psychiatrists over the years. One of the psychiatrists is Dr Melissa Barrett and the other psychiatrist was Dr John Robert. She has seen them once or twice only. The last appointment with psychiatrist, most likely
Dr John Robert was early in 2024. However, she has continued to take Quetiapine 100 mg and Venlafaxine XR 150 mg daily.Ms Howarth reports she has not seen a GP in almost a year, who did her last prescriptions. Her original treating GP has moved on to working in the emergency department of the local hospital. There has been a shortage of GPs in the area. A week prior to our assessment, she went to the Safe Haven to seek help for her mental health. They helped her in securing an appointment to see a GP on 18 February 2025.
Drug and alcohol use: She has 2 cups of coffee a day. Ms Howarth reports she has been a smoker for most of her life. She made some attempts to quit smoking earlier. She was able to cut it down to 2 cigarettes per day. However, her smoking has increased to 5 cigarettes per day. She suffers from COPD. Her mother died of COPD and her sister is on palliative care because of COPD.”
The Medical Assessor took the respondent worker’s history into account, finding the extent of any deduction for pre-existing condition was difficult or costly to determine, so assessed the deductible proportion as one tenth.
As noted, the challenge to the Medical Assessor’s findings relates to three of the PIRS categories. The relevant findings were:
·Social functioning – category 3. “Moderate impairment. Relationship with children is strained. Enjoys time with grandchildren but access limited by her own children.”
·Concentration, persistence and pace – category 3. “Moderate impairment. Unable to read for more than 5 minutes.”
·Employability – category 5. “Totally impaired. Cannot work at all.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor’s categorisation of the respondent’s social functioning and of concentration, persistence and pace demonstrated insufficient clinical judgment having regard to all the evidence before him. It also submitted the categorisation of the respondent’s employability was glaringly improbable together with demonstrating insufficient clinical judgment. The respondent submitted the Medical Assessor’s findings showed demonstrable error having regard to the principles set out by Campbell J in Ferguson v State of NSW [2017] NSWSC 857 (Ferguson).
In reply, the respondent submits that the appellant’s submissions amount to nothing more than a difference of opinion as to the class of impairment into which the appellant falls, and as such the requirements set out in Ferguson are not met. The respondent submitted the MAC demonstrated the Medical Assessor had considered the evidence before them and provided adequate reasons for the PIRS assessments made. As such, the respondent submits the appeal points raised amount to no more than a difference of opinion, which is not enough to enliven the revocation of the MAC: see Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker).
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.
Given the appeal relates to three of the PIRS categories, it is appropriate to deal with each of them in turn.
Social functioning
In the Appeal Panel’s view, the assessment of class 3 for social functioning contains a demonstrable error in that the evidence discloses the respondent’s relationships with her children, though strained, were still functional rather than severely strained with evidence of separation or domestic violence, as required by class 3.
The respondent’s own evidence discloses she still sees her grandchildren despite tensions with her children. Likewise, in her statement, the respondent noted that she often relies on her daughters to act as a support person to enable her to leave the house, indicative of a quality of relationship that is not “severely strained” to the degree required by class 3.
Later in her evidence, when referring to events at which she attends in a business capacity to sell fairy floss, the respondent specifically noted she will contact the organiser to book a place, or if she is not up to making that call, will get one of her children to do it, whereupon the respondent will begin making fairy floss over the course of a week, doing “what I can with the help of the kids.” The respondent also notes her business operates at a loss as she has to pay her daughters to work with her, “I always have one of my daughters work with me for the day”. Although the panel acknowledge this reflects aspects of her “employability” the specific conduct we refer to is that of the quality of social functioning and relationships with family members that support her business activities.
The respondent’s own evidence establishes she maintains supportive relationships with her children. There is no suggestion in her evidence that the respondent has periods of separation from her children brought about by her injury. For example, the respondent’s son was removed from her apartment because he was violent towards her, rather than the separation being brought about by the consequences of the respondent’s condition.
Notwithstanding the obvious and real difficulties in the respondent’s relationships with some of her children at times, the evidence demonstrates the respondent maintains real connections in her relationships, including receiving assistance from her children in the running of her business and when she leaves the home. In the Appeal Panel’s view, the evidence clearly demonstrates the respondent’s social functioning falls within class 2 rather than class 3.
Concentration, persistence and pace
Table 11.5 of the relevant Guidelines sets out the class descriptors relevant to this category of impairment. In making his finding of class 3, the Medical Assessor relied on the respondent being unable to maintain focus on reading for more than five minutes.
Although the appellant noted the evidence disclosed the respondent had demonstrated an ability to drive to Perth, which inherently requires a substantial degree of concentration, the Medical Assessor noted those trips were taken approximately two years before the assessment. As the respondent noted in her submissions, assessing permanent impairment involves a clinical assessment of the applicant as they present on the day of assessment. Although the respondent’s history is plainly important, it is not determinative of her class of impairment.
On balance, the Appeal Panel is of the view the Medical Assessor’s finding of class 3 impairment under this category is appropriate.
Employability
The Medical Assessor’s finding of class 5 is unsupported by the evidence and contains a demonstrable error. The Medical Assessor asserted the respondent was totally impaired and could not work at all.
That finding is contrary to the evidence, including the respondent’s own evidence in her statement and as recorded by the Medical Assessor at their appointment.
In the MAC, the Medical Assessor recorded the respondent recounting that since the termination of her therapy in 2024, her condition had worsened as she could not afford to fund it herself “as her only financial support is disability pension and very minimal income from her fairy floss business. She reports to have made at the most $3,000 in a year from the fairy floss business. Some weeks she has not made any fairy floss.”
That history provided by the respondent to the Medical Assessor of running a small business is patently incompatible with a finding of total impairment under this category, the descriptor of which is that the worker ‘cannot work at all’. Rather, the respondent’s history as provided to the Medical Assessor, along with her statement and the material contained within the appellant’s factual investigations, discloses the respondent is plainly working on a limited basis in her fairy floss business.
It is not suggested the respondent has a significant or full-time capacity for employment. It is apparent on the balance of the evidence that she has a severe impairment as a result of her injury, suggestive of her being unable to work for more than one or two days at a time, less than 20 hours per fortnight. The overwhelming balance of the evidence is suggestive of the respondent having some capacity for employment, however limited. As such, the Medical Assessor’s finding of class 5 impairment is unsustainable and plainly erroneous. Rather, a class 4 impairment is warranted.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 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: | W28097/24 |
Applicant: | Fiona Corrine Howarth |
Respondent: | Riddle & Co Pty Limited ATF Highfield Family Trust |
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 Suneel Chamoli 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. Psychiatric | 20/08/2020 | Ch 11 | Ch 14 | 7% | 1/10th | 6% |
| Total % WPI (the Combined Table values of all sub-totals) | 6% | |||||
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
| Name | Ms Fiona Howarth | Claim reference number (if known) | |
| DOB | [redacted for privacy] | Age at time of injury | 45 years and 11 months |
| Date of Injury | 20 August 2020 | Occupation at time of injury | Cleaner |
| Date of Assessment | 25 June 2025 | Marital Status before injury | Single |
| Psychiatric diagnoses | 1. Major Depressive Disorder | 2. | |||||||||
| 3. | 4. | ||||||||||
| Psychiatric treatment | Antidepressants, Psychological therapy | ||||||||||
| Is impairment permanent? | Yes | ||||||||||
| PIRS Category | Class | Reason for Decision | |||||||||
| Self Care and personal hygiene | 2 | Mild impairment. Able to live independently. Looks after self adequately, although may look unkempt occasionally. Can cook food but sometimes relies on frozen food. | |||||||||
| Social and recreational activities | 2 | Occasionally goes out to social events like the book launch, taking children to sporting activities though does not become actively involved. | |||||||||
| Travel | 1 | No impairment. | |||||||||
| Social functioning | 2 | Mild impairment. Existing relationships with children are strained with loss of some friendships. Enjoys time with grandchildren but access limited by her own children. | |||||||||
| Concentration, persistence and pace | 3 | Moderate impairment. Unable to read for more than 5 mins | |||||||||
| Employability | 4 | Severe impairment. Cannot work more than one or two days at a time, but able to run, and promote her own small business on a not infrequent basis | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 1 | 2 | 3 | 4 | =2.3 = 2 % | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| 2+2 | +1 | +2 | +3 | +4 | 14 | 7% | |||||
0
3
0