St Andrews Education Centre Pty Ltd v Osmanovic - [2022] NSWPICMP 240

DETERMINATION OF APPEAL PANEL
CITATION:	St Andrews Education Centre Pty Ltd v Osmanovic [2022] NSWPICMP 240
APPELLANT:	St Andrews Education Centre Pty Ltd
RESPONDENT:	Emina Osmanovic
APPEAL PANEL:	Member Brett Batchelor Dr Douglas Andrews Dr Julian Parmegiani
DATE OF DECISION:	31 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Appeal by employer against an assessment of whole person impairment as a result of psychological injury resulting from sexual assault by respondent worker’s employer; examination of medical and lay evidence including social media posts of respondent submitted to be inconsistent with the classification by the Medical Assessor of certain Psychiatric Impairment Rating Scale (PIRS) categories; the appellant also submitted that there should have been a section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) deduction in respect of psychological injury as a result of a previous motor vehicle accident; Held- by the Appeal Panel that there were demonstrable errors in respect the classification of certain PIRS categories, and that there should have been a section 323 of the 1998 Act deduction; Medical Assessment Certificate (MAC) revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 February 2022 St Andrews Education Centre Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 January 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Emina Osmanovic (the respondent/Ms Osmanovic) was indecently assaulted on two occasions on 7 August and again on 7 September 2017 whilst in the employ of the appellant. Her assailant was her boss, who was a friend of her mother and father. The matter was reported to the police and the assailant was subsequently convicted of the assaults.
Ms Osmanovic subsequently resigned from her position with the appellant, and apart from an attempted return to work with a rehabilitation program in 2017, has not worked since.
Prior to the assaults, Ms Osmanovic had been involved in a motor vehicle accident on 13 May 2017 when the vehicle she was driving was struck by another vehicle. She was treated by her general practitioner, Dr Tomasevic, for injuries sustained in this accident from 15 May 2017.
Ms Osmanovic reported that she had tried to recover from the work-related injury on 7 September 2017. She consulted Dr Tomasevic on 11 September 2017, who referred her to a psychologist, Zoran Protulipac. Ms Osmanovic saw him fortnightly. She started seeing Dr Kuljic, psychiatrist, in June 2018. Ms Osmanovic was prescribed a variety of anti-depressant medication but ceased taking this in November 2019, preferring to continue natural psychological treatment. This was notwithstanding the advice of Dr Kuljic of the benefits of higher doses of anti-depressant medication.
The respondent met a man in April 2019 to whom she became engaged. Ms Osmanovic reported to the Medical Assessor that her fiancé ended this relationship because of her inability to demonstrate intimacy or affection. In June 2021 Ms Osmanovic took an overdose of paracetamol and was treated at Liverpool Hospital to minimise the damage of this high dosage.
Ms Osmanovic reported to the Medical Assessor continuation of her depressed mood, with poor sleep and energy. She reported to the Medical Assessor continuation of treatment by her local medical practitioner, clinical psychologist and psychiatrist, and that she remained in treatment at the time of assessment.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
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 although the appellant requests that the respondent be re-examined by a Medical Assessor who is a member of the Appeal Panel, the Panel considers that there is sufficient information in the Appeal Papers on which base its decision.

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

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. In summary they are as follows.

Appellant

The appellant submits that:
(a) the Medical Assessor has failed to properly identify the evidence and consider and apply s 323 of the 1998 Act in respect of the deduction to be applied, relating to the respondent’s pre-existing psychological distress suffered prior to the subject work incident;
(b) the Medical Assessor took an incorrect history regarding ongoing treatment, and
(c) the Medical Assessor failed to appropriately consider the entirety of the evidence before him when assessing the psychological impairment rating scale (PIRS) categories.
On this basis, the appellant submits that the assessment of the Medical Assessor was made on the basis of incorrect criteria, and that the MAC contains a demonstrable error.
The appellant notes that the Medical Assessor made no deduction pursuant to s 323 of the 1998 Act, notwithstanding the psychological effects as a result of injury she sustained in a motor vehicle accident in May 2017. Injuries identified in the compulsory third party (CTP) medical certificate dated 15 August 2017 are “headaches and pain in neck entire back, left and right shoulders, left and right upper limbs, left hip, insomnia, difficulty concentrating, anxiety depression”[1] (emphasis in submissions).
[1] Appeal Papers p 507.
The appellant submits that the Medical Assessor noted that the respondent suffered anxiety after the motor vehicle accident, which she said was not life threatening, and therefore did not meet the criteria for post-traumatic stress syndrome. Dr Baker explained that this was why the respondent’s independent medical examiner, Dr Ben Teoh, did not support a pre-existing psychological injury. Dr Baker also noted that the respondent was able to return to her primary substantive role after the motor vehicle accident and she had not lost any employability prior to the workplace assault, and for that reason did not meet the criteria for post-traumatic stress syndrome.
The appellant refers to extracts from the clinical notes of Dr Tomasevic containing descriptions of psychological sequelae following the motor vehicle accident. The appellant also refers to other medical records from treating and qualified medical practitioners prepared following the motor vehicle accident.
The appellant submits that based on this objective evidence, the Medical Assessor failed to consider the evidence which supports a finding of significant psychological symptoms relating to the motor vehicle accident. A deduction pursuant to s 323 of the 1998 Act is therefore warranted.
In respect of the submission that the Medical Assessor took an incorrect history in respect of ongoing treatment, the appellant points to entries in the clinical notes of the treating general practitioner, the treating psychologist and treating psychiatrist showing the lack of prescriptions for medication after about November or December 2019.
The appellant also notes from the report of Dr Teoh, qualified on her behalf,[2] dated 11 September 2020 that Ms Osmanovic had stopped psychological treatment and stopped seeing her psychiatrist. This is confirmed by the list of payments attached to the Reply.[3]
[2] Appeal Papers p 112.
[3] Appeal Papers p 685.
The appellant makes submissions in respect of the PIRS categories selected by the Medical Assessor in respect of self-care and personal hygiene, social and recreational activities, and social functioning, relevant parts of which will be referred to hereunder.

Respondent

In reply, the respondent submits that the appellant is unable to satisfy that there was any demonstrable error pursuant to s 327(3)(d) of the 1998 Act in respect of the failure of the Medical Assessor to make a deduction from the assessment of whole person impairment (WPI) for any proportion of the impairment that is due to any previous injury or any pre-existing condition or abnormality. The respondent relies upon what was said by Hoeben J in Merza v Registrar of the Workers Compensation Commission[4] and the Court of Appeal in Ballas v State Rail Authority of New South Wales[5] in respect of what is a demonstrable error.
[4] [2006] NSWSC 939 (Merza).
[5] (2020) 102 NSWLR 783; [2020] NSWCA 86 (Ballas).
In terms of what the Court of Appeal said in Ballas, the respondent submits that the appellant is unable to demonstrate that “there is no information or material” (emphasis in submissions) to support the findings made by the Medical Assessor.
The respondent submits that the dispute for which the appellant contends is one that goes to the merits of the assessment[6]. Therefore the respondent submits that the appellant is unable to demonstrate any error of fact or law (see Pitsonis at [49].) In respect of the records of Dr Tomasevic to which the respondent submits that the Medical Assessor had regard, the respondent notes that the doctor duplicated the entries therein throughout his clinical records, and that similar entries appear both before and after the date of the work injury, 7 September 2017. The respondent notes that caution should be exercised in respect of the weight or significance attached to entries in clinical notes, relying on what was said in Mason v Demasi[7].
[6] See Pitsonis v Registrar of the Workers Compensation Commission & Anor (2008) 73 NSWLR; [2008] NSWCA 88 (Pitsonis) at [36]-[37].
[7] [2009] NSWCA 227 at [2].
The respondent notes that the Medical Assessor does refer to the general practitioner’s reference to trauma related symptoms caused by the motor vehicle accident, and the conclusion of the Medical Assessor that Ms Osmanovic did not meet Category A criteria for post-traumatic stress syndrome. The respondent submits that there was sufficient material available to enable the Medical Assessor to reach this conclusion and upon which to base his opinion.
The respondent submits that it was a matter of clinical judgement as to the weight he placed on any evidence before him. It does not equate to a demonstrable error where there is sufficient evidence before him on which to reach his conclusion. This submission also encompasses the voluminous information provided by other treatment providers who the applicant consulted in addition to Dr Tomasevic.
The respondent submits that to the extent that it is not specifically stated by the Medical Assessor, it would be safely inferred that he was of the opinion that any psychiatric or psychological sequelae (in the absence of any diagnosis of any confirmed condition) experienced by her was overtaken by the effects of the traumatic workplace incident experienced by her on 7 September 2017.
The respondent submits that, even if it accepted that the Medical Assessor was in error in recording the continuation or otherwise of treatment, that could not be said to be material in the context of the determination, particularly in relation to the determination of PIRS categories.
The respondent submits that the Medical Assessor is not required to record every matter set out in every document provided for the purposes if assessment, and that such failure is not necessarily evidence of failure to consider relevant material. The fact the Medical Assessor did not refer to a document does not mean that he did not consider it. There is no requiring that every report, statement or document or part of a document therein, be referred to in the MAC[8].
[8] See Harrison J in Prasad v Workers Compensation Commission [2010] NSWSC 418.
In respect of the selection of PIRS categories by the Medical Assessor, the respondent relies on what was said in Ferguson v State of New South Wales & Anor[9]. The respondent submits that none of the circumstances set out therein, namely:
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the MA was unaware of significant factual matters;

(c) if a clear misunderstanding could be demonstrated; or
(d) if an unsupportable reasoning process could be demonstrated,

could be made out by the appellant.
[9] [2017] NSWSC 887 at [24] (Ferguson).

The respondent submits that the appellant, in taking issue with the classification by the Medical Assessor of placing her in Class 3 for self-care and personal hygiene, and social and recreational activities, has not nominated any alternative class into which she should be placed.
The respondent notes that the appellant appears to be placing significance on her social media profile and the failure of the Medical Assessor to consider this. The respondent submits that she addressed this in her statement dated 9 August 2021, and that relevant parts of that statement were extracted at p 12 of the MAC. Further the QuantumCorp report dated 22 September 2020, which largely concerns her social media profile, was specifically referred at p 16 of the MAC. The respondent submits that the Medical Assessor has considered relevant material concerning the significance of the social media profile and formed his own opinion concerning its significance. He has determined the PIRS categories based on his assessment of her, the evidence before him and using his clinical judgement and experience. There is no demonstrable error with respect to the determination of the PIRS categories.
The respondent submits that the appeal should be dismissed.

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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC, (see Siddik v Workcover Authority of NSW[10]and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales[11]).
[10] [2008] NSWCA 116.
[11] [2013] NSWSC 1792.
In Campbelltown City Council v Vegan[12] 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.
[12] [2006] NSWCA 284.

Deduction pursuant to s 323 of the 1998 Act

The respondent sustained physical and psychological injuries as a result of the motor vehicle accident in which she was involved on 13 May 2017 (noted by the appellant to be 12 May 2017). The Medical Assessor, in his Reasons for Assessment at [9] in the MAC[13] says the respondent had not suffered from a Diagnostic and Statistical Manual of Mental Disorders (DSM)5 diagnosed condition prior to the work injury in September 2017. He does note that Ms Osmanovic reported symptoms in relation to the motor vehicle accident, and there were some periods of time off work due to treatment of her physical condition and assistance provided to her mother. The Medical Assessor notes that the respondent only attended a counsellor on about five occasions in relation to the motor vehicle accident.
[13] Appeal Papers p 29.
Earlier in the MAC at [6] under Summary, the Medical Assessor noted Ms Osmanovic’s general practitioner documented her as suffering from trauma related symptoms caused by the motor accident in May 2017. He said:
“She reported that the anxiety she experienced due to the motor accident was not life threatening. For this reason she did not meet Category A criteria for PTSD. She suffered physical injuries. She was able to return to her primary substantive role with this employer after the motor accident and she had not lost any employability prior to the indecent sexual assault. For this reason she was assessed by Dr Teoh in his report dated 11 September 2020 as not suffering from a pre-existing primary psychological injury.”
Dr Teoh examined and reported on the respondent on 11 September 2020.[14] He refers to the motor vehicle accident in May 2017 and says that Ms Osmanovic was not treated for a psychological injury, noting that she saw a counsellor for five sessions.
[14] Appeal Papers p 112.
The appellant refers to the description of the effects of the motor vehicle accident by Dr Tomasevic which appears in a number of entries in his clinical notes attached to the Reply.[15] The respondent first saw Dr Tomasevic on 15 May 2017 after the recorded date of accident on 13 May 2017, when he noted:
“POST MVA 13/5/17 PATIENT SUFFERING FROM HEADACHES AND PAIN IN NECK, ENTIRE BACK, LEFT AND RIGHT SHOULDERS, LEFT AND RIGHT UPPER LIMBS LEFT HIP, LOWER ABDO ,”[16]
[15] Clinical notes commence at Appeal Papers p 374.
[16] Appeal Papers p 383.
The first reference to anxiety or depression appears in the clinical note of 15 August 2017 in the following terms:
“POST MVA 13/5/17 PATIENT SUFFERING FROM HEADACHES AND PAIN IN NECK, ENTIRE BACK, LEFT AND RIGHT SHOULDERS, LEFT AND RIGHT UPPER LIMBS, LEFT HIP, INSOMNIA, DIFF CONCENTRATING, DYSPHORIC, WITHDRAWN, ANXIETY AND DEPRESSION, FLASHBACKS TO EVENTS OF MVA 13/5/17
...
PRIOR TO 13/5/17 MVA PATIENT DENIES ANY SIGNIFICANT ANXIETY, DEPRESSION OR OTHER MENTAL HEALTH CONDITION”[17]
[17] Appeal Papers p 389.
The clinical note of the consultation with Dr Tomasevic dated 11 September 2017[18] contains a detailed note of the occasion when Ms Osmanovic was subject to sexual assault by her employer on 7 September 2017, and that she had been subject to this behaviour on two occasions. The clinical note dated 8 November 2017 refers to the respondent suffering from insomnia, difficulty concentrating, being dysphoric, withdrawn suffering from anxiety and depression, and having flashbacks to events of the motor vehicle accident on 13 May 2017. Similar entries appear in the consultation notes dated 10 November 2017, 27 November 2017, 18 December 2017, in the clinical notes throughout 2018, and up to 13 January 2021 as noted by the respondent in submissions.
[18] Appeal Papers p 390.

The respondent submits that it is the same entry appearing throughout the notes, and that the weight or significance that can be attributed to clinical notes should be treated with caution. That is correct, but it should be noted that Dr Tomasevic’s notes are all typed, detailed and clearly understood. One wonders why the same comment was repeated so often if it was not the case.
Dr Tomasevic referred the respondent to Prana Consulting Pty Ltd on 26 October 2017.[19] The referral by Dr Tomasevic was “...for psychological assessment of ‘anxiety, pain and flashbacks’ following MVA as well as ‘flashbacks to inappropriate behaviour of her employer’.”
[19] Appeal Papers p 136.
Dr Tomasevic referred the respondent to Dr Kuljic, psychiatrist, on 25 June 2018 with a presenting problem of:[20]
“post MVA 13 May 2017 patient suffering from headaches and pain in neck, entire back, left and right shoulders, left and right upper limbs, left hip, insomnia, diff concentrating, dysphoria, withdrawn, anxiety and depression, flashbacks of event of MVA 13 May 2017”
[20] Appeal Papers p 144.
Dr Kuljic’s report to Dr Tomasevic on 21 September 2018 contained the following history:
“Miss Osmanovic reported ‘it is hard to describe my mind’, and reported her mental health issues started only last year after two dramatic experiences. The first one was a car accident, which happened on May 13, 2017 and the other one was a sexual assault at work on September 7, 2017.”[21]
[21] Appeal Papers p 139.
In the “Impact of Events Scale” document in respect of the motor vehicle accident completed by the respondent, she answered two questions that she was ‘moderately distressed’, nine reporting that she was distressed ‘quite a bit’, and eleven noting that she was ‘extremely distressed’.[22]
[22] Appeal Papers p 155.
The Appeal Panel is of the view that having regard to the evidence summarised above, the motor vehicle accident on 13 May 2017 had a significant effect on the respondent’s psychological condition, which contributes to the degree of WPI from which the respondent now suffers. The Medical Assessor justifies not making any deduction for a previous injury or condition on the basis that the motor vehicle accident in which Ms Osmanovic was involved was not life threatening and that for this reason she did not meet Category A criteria for post-traumatic stress syndrome. That is not to the point. A person does not have to be diagnosed with post-traumatic stress syndrome for there to be a psychological injury or condition as a result of a traumatic event such as that in which the respondent was involved. She was clearly traumatised by that accident as recognised by Dr Tomasevic and Ms Osmanovic herself.
The respondent was examined by Dr Dixon, orthopaedic specialist, on 23 May 2019 in respect of injuries suffered in the motor vehicle accident of 13 May 2017. His report dated 23 May 2019 is in evidence[23], which contains a diagnosis of post-traumatic stress syndrome. requiring counselling, anti-depressants and night sedation. Acknowledging that Dr Dixon is expressing an opinion on a condition outside his speciality, the diagnosis does however confirm Dr Tomasevic’s findings recorded in his clinical notes that the respondent continued to suffer significant psychological sequelae as a result of the motor vehicle accident after the sexual assault of 7 September 2017. Dr Dixon did have the clinical notes of Dr Tomasevic when preparing his report, and noted that the respondent had a psychiatric disturbance as a result of a sexual assault for which she had commenced a workers compensation claim, and which also impacted on her ability to attend the workplace.
[23] Appeal Papers p 693.
In terms of what was found by Hoeben J in Merza, the Appeal Panel finds that there is an error which is readily apparent from an examination of the MAC.
In terms of what the Court of Appeal said in Ballas in respect of demonstrable error, the Appeal Panel finds that there is significant information and material on which to base a finding that there should be a deduction from the assessment of WPI for a pre-existing injury or condition. The Panel does not agree with the reasons of the Medical Assessor for not making such a deduction, and finds that this constitutes a demonstrable error.
Having regard to the available medical evidence, it is difficult to determine the extent of any such deduction, and therefore the Panel finds that there should be a deduction of 10% of the impairment pursuant to s 323 of the 1998 Act.

Incorrect history of ongoing treatment

The Appeal Panel finds that the Medical Assessor is in error when he notes in the MAC that Ms Osmanovic remained in treatment at the time of his assessment.[24] The clinical notes of Dr Tomasevic confirm what the respondent says at [36] in her statement dated 9 August 2021 that in November 2019 she decided to cease medication and continue natural psychological treatment “...as preferred treatment to my mental state.”. This was notwithstanding Dr Kuljic’s advice as to the benefits of higher doses of anti-depressant medication.[25] This is also confirmed by the last report of Dr Kuljic in evidence dated 25 November 2019, in which the doctor notes that Ms Osmanovic was advised to make contact/booking if she changes her mind as to using the medication.[26]
[24] Appeal Papers p 25.
[25] Appeal Papers p 102.
[26] Appeal Papers p 151.
The respondent submits that such an error could not be said to be material in the context of the determination, particularly in relation to the determination of PIRS categories. The Appeal Panel does not agree with this submission. When the cessation of medication recommended by the treating psychiatrist is considered along with other matters in respect of the determination by the Medical Assessor as to the correct PIRS categories referred to hereunder, the Panel considers that this is a relevant consideration.

PIRS categories

In her statement dated 9 August 2021[27] the respondent from [38] refers to her activities of daily living, from [50] to relationships, and at [51], [61] and [64] addresses the surveillance reporting of her shown in the Quantumcorp investigations dated 22 September 2020, 30 March 2021 and 14 September 2021 attached to the Reply.[28]
[27] Appeal Papers p 97.
[28] Appeal Papers pp 277, 302 and 323.
Ms Osmanovic says in respect of the insurer’s investigation of her relationship with Chris Turacelli that what people see on social media is not the reality of her life or her relationship. She says that social media does not capture her pain, and that pictures and video do not capture her pain. She feels broken inside and no photo, video or Facebook will validate her feelings or her experiences. The respondent says that:
“At the moment, Chris and I have broken up. We haven’t spoken a work [sic, word] to one another. In past times, we have broken up over a dozen times, and we have gotten back together. This is the reality of our relationship. It is on and off constantly and it is not stable.”
The respondent then goes on to give details of the relationship from when they met in about April 2019.
At [61] Ms Osmanovic refers to “old photos” on social media, and at [62] expresses upset and disturbance that the insurer has invaded her privacy. She says that the material served does not contradict anything that she has said regarding the incident, her injuries or personal circumstances. She says that the photos she regularly posts on Facebook are usually of her before the incident, that she has nothing to hide and is genuine and honest about her mental state.
At [64] the respondent refers to Facebook posts showing that she has been tagged in presenting (at) several clubs and bars. She says that she definitely has not been part of the “clubbing scene” after the incident, and that people who have tagged her have tagged several other individuals. She refers to “promoters” as persons who are paid to promote certain clubs and bars, and that being “tagged in those posts” doesn’t mean that she is part of the clubbing scene, and to make this suggestion is just irrational.
The respondent notes that the relevant parts of her statement were extracted at p 12 of the MAC, and that the Quantumcorp report dated 22 September 2020, which largely concerns the respondent’s social media profile, was specifically referred to at p 16 of the MAC. That is correct, although the Medical Assessor does not appear to refer to the Quantumcorp investigation dated 14 September 2021. The respondent submits that the Medical Assessor has considered the relevant material concerning her social media profile and has formed his own opinion concerning its significance, and has determined PIRS categories based on his assessment of her, the evidence before him and using his clinical judgement and experience.
The appellant submits that the Medical Assessor in reaching his conclusion in respect of the PIRS categories failed to reference the following inconsistencies:
(a)    the history taken by Dr Leonard Lee recorded in his report dated 29 March 2021 of Ms Osmanovic breaking up with her partner shortly after the incident in September 2017 and stating that that she had been unable to have a boyfriend since then[29];
(b)    the history recorded by Dr Teoh in his report dated 11 September 2020 that the respondent’s relationship had broken up three and a half years ago and that she did not want to be near a man. Dr Teoh makes no reference in his report to the applicant meeting Mr Chris Turacelli and becoming engaged to him in April 2019;
(c)    the updated online profile in the Quantumcorp report dated 14 September 2021 containing evidence of Mr Turacelli posting photos of the respondent and him on Facebook on 23 August 2021, which is after when the Medical Assessor records that the relationship had ceased, and
(d)    the failure of the respondent to record in her statement dated 9 August 2021 that her relationship with Mr Turacelli ceased in June 2021.
[29] Appeal Papers p 369.
The appellant also notes that in response to the respondent’s claim that a number of the photographs on social media were old, that Ms Osmanovic did not meet her fiancé Mr Turacelli until 2019, after the work injury, and that the majority of the photos on her social media include him.
The Appeal Panel accepts these submissions of the appellant in respect of the contents of the reports of Dr Lee and Dr Teoh.
The Quantumcorp report dated 22 September 2020 contains a number of photos of the applicant and her partner in social situations, at a venue, in a car and the outdoors. The respondent appears happy, and well presented. That report also appears to show other persons “tagging” the respondent promoting events at venues which appear to be festivals, events or boat parties, although the import of these entries in the report or their significance not completely clear to the Panel.
The Quantumcorp report dated 30 March 2021 contains photos of the respondent in and around motor vehicles, hugging two other persons, one female and one male, getting into a silver coloured motor vehicle and apparently driving it.
More relevantly, the Quantumcorp report dated 14 September 2021 shows the respondent in a number of photos posted on social media by Chris Turacelli, covering the period from 17 June 2019 to 23 August 2021, on her own and in close company with Mr Turacelli. Ms Osmanovic appears happy, well dressed and well groomed. There are also photos of Ms Osmanovic and Mr Turacelli together, superimposed on photos of motor vehicles. Ms Osmanovic appears in one photo on her own holding a bunch of balloons with her name on it. That photo headed “f) 7 Weeks Ago – Facebook Story Video” would appear to be seven weeks prior to the date of the report.
The Appeal Panel notes that this evidence is inconsistent with:
(a)    the respondent’s history recorded by Dr Lee in his report dated 21 March 2021 that she broke up with her boyfriend very shortly after the incident in September 2017 and has been unable to have a boyfriend since then;
(b)    the respondent’s history recorded by Dr Lee that she can only go out for a limited time with her mother but always wants to keep going home as she dislikes men looking at her, which brings her back to that day and makes her feel “anxious, disgusting and dirty”;
(c)    the respondent’s history recorded by Dr Lee that she has no one to socialize with and cannot leave the house unaccompanied;
(d)    the respondent’s history recorded by Dr Teoh in his report dated 11 September 2020 that she has been socially isolated and rarely leaves the house without her mother and family members;
(e)    the respondent’s history recorded by Dr Teoh that her relationship broke up three and a half years ago and that she did not want to be near a man;
(f)    the history recorded by the Medical Assessor that her fiancé ceased the relationship as she was unable to demonstrate intimacy or affection;
(g)    the fact that the respondent does not mention in her statement dated 9 August 2021 that her relationship with Mr Turacelli failed in about June 2021, whereas this is recorded by the Medical Assessor in the MAC when assessing social functioning, and
(h)    the history recorded in the clinical notes of Dr Tomasevic that the respondent requires assistance from her mother due to the effects of the motor vehicle accident on 13 May 2017.
The Appeal Panel considers that the Medical Assessor did not take into account this objective evidence summarised above when considering the PIRS categories of self-care and personal hygiene, social and recreational activities, and social functioning. This is a demonstrable error.
The Appeal Panel considers that the respondent should be placed in the following classes in respect of these three categories, the class descriptors from the Guidelines for which are noted hereunder:
(a)    Self care and personal hygiene: Class 1 “No deficit, or minor deficit attributable to the normal variation in the general population.”;
(b)    Social and recreational activities: Class 2: “Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).”, and
(c)    Social functioning: Class 2: “Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
In terms of what was held in Ferguson, the Appeal Panel finds that:
(a) the categorisation by the Medical Assessor in respect of these categories, having regard to the evidence summarised above, was glaringly improbable, and
(b) the Medical Assessor was unaware of, or has failed to take into account of, significant factual matters.
The appellant does not take issue with the classification of the respondent in respect of travel, concentration, persistence and pace, and employability.
The PIRS classes as found by the Appeal Panel therefore are:
(a)    self care and personal hygiene – class 1;
(b)    social and recreational activities – class 2;
(c)    travel – class 2;
(d)    social functioning – class 2;
(e)    concentration, persistence and pace – class 3, and
(f)    employability – class 5.
The median class score determined in accordance with [11.14] of the Guidelines is 2 and aggregate score impairment is 15. Using the conversion Table 11.7 of the Guidelines, 8% WPI is the result. Pursuant to s 323 of the 1998 Act a deduction of 10% must be made from this impairment assessment, giving a final figure of 7% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 January 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Applicant:	Emina Osmanovic
Respondent:	St Andrews Education Centre Pty Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr John J 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/s % WPI (after any deductions in column 6)
Psychological	7 September 2017	Chapter 11, pages 60-68	8%	1/10th	7%
Total % WPI (the Combined Table values of all sub-totals)					7%

Brett Batchelor
Member
Douglas Andrews

Medical Assessor

Julian Parmegiani

Medical Assessor

31 May 2022