Stancovici v DMT Trans Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Stancovici v DMT Trans Pty Ltd [2025] NSWPICMP 99
APPELLANT:	Ilia Stancovici
RESPONDENT:	DMT Trans Pty Ltd
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Professor Nicholas Glozier
DATE OF DECISION:	18 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Psychiatric injury; appeal in respect of four of the psychiatric impairment rating scale (PIRS) categories (self-care and personal hygiene, social functioning, concentration, persistence and pace, and employability); error in the assessment of concentration, persistence and pace as the reasoning process for assessing the appellant as class 2 in this category was unable to be made out and the descriptors supported a rating of class 3; error in the assessment of employability as the reasoning process was not able to be made out and the descriptors supported a rating of class 3 for employability; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 November 2024 Illia Stancovici (the applicant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Wayne Mason, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 November 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 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).

RELEVANT FACTUAL BACKGROUND

The applicant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 20 September 2024 in which he claimed 20% whole person impairment (WPI) in respect of psychiatric and psychological disorders.
The matter was referred to the Medical Assessor Wayne Mason, for assessment of WPI of a psychological/psychiatric disorder with the date of injury being 29 October 2020.
The Medical Assessor examined the appellant on 5 November 2024 and assessed 7% WPI for the psychological injury on 29 October 2020.

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.
The appellant requested that he be re-examined by a Medical Assessor who is a member of the Appeal Panel.
The respondent submitted that the appellant has not provided evidence that the asserted errors contained in the MAC cannot be reviewed on the papers and submits that the appellant has not provided any evidence to suggest that the Medical Assessor did not take a proper and correct history that would require re-examination. The respondent submits that a re-examination is unwarranted.
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 there was sufficient evidence on which to make a determination.

EVIDENCE

Documentary evidence

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

Medical Assessment Certificate

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

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    The Medical Assessor has fallen into error when assessing the Psychiatric Impairment Rating Scale (PIRS) in light of the findings on examination and available evidence in the categories of self care and personal hygiene, social functioning, concentration, persistence and pace and employability.
(b)    Self care and personal hygiene – the Medical Assessor incorrectly applied the Guidelines and Table 11.110 by failing to take into account the appellant’s evidence and specifically the available evidence relating to the appellant’s failure to shower and shave regularly, failure to change into clean clothes, failure to take pride in one’s appearance, failure to eat properly.
(c)    The Medical Assessor is tasked with comparing the descriptors with his findings on examination and history. The Medical Assessor is required to determine which class those findings and history best fit.
(d)    The Medical Assessor has fallen into error by incorrectly allocating a class 2 rating in circumstances where the Medical Assessor’s findings on examination and history obtained does not support a class 2 PIRS. Together with the available evidence it is clear that the appellant is incapable of living independently and heavily relies on support and prompting from his wife in respect of activities relating to self care and personal hygiene. Without regular support the appellant would not meet the minimum level of hygiene.
(e)    A class 2 impairment does not adequately reflect the appellant’s impairment and is unsupported by the available evidence. A class 3 PIRS best describes the appellant’s impairment. The appellant submits the inconsistency reflected in the MAC represents a demonstrable error.
(f)    Social functioning – while it is open to the Medical Assessor to reach the conclusions as set out in the MAC, there is an obligation by the Medical Assessor to articulate reasons for the same. The obligation to give reasons depends on the circumstances of the case and they need not be extensive or provide a detailed explanation of the criteria applied by medical professionals in reaching a professional judgement. Nevertheless, they must be adequate to explain the Medical Assessor’s path of reasoning in selecting a particular PIRS class in light of the evidence.
(g)    The class 2 rating does not properly reflect the impairment caused to the appellant’s ability to function within this category. For these reasons a class 3 rating is more appropriate on the history taken by the Medical Assessor, and the available evidence and to reflect the impact which the appellant’s psychiatric disorder has caused to his ability to form social relationships.
(h)    When taking into consideration the above stated evidence the Medical Assessor fails to provide an adequate path of reasoning which justifies a class 2 PIRS finding and incorrectly applies the relevant Guidelines and therefore falls into error.
(i)    Concentration, persistence and pace – the Medical Assessor has fallen into error in allocating a class 2 PIRS category in light of the findings on examination, the history provided and the available evidence.
(j)    A class 2 rating does not adequately reflect the impairment resulting from a traumatic incident and perceived by the appellant as life threatening. It is submitted that a class 3 PIRS rating is more appropriate.
(k)    Employability – the Medical Assessor falls into error in that he has not taken into account the above stated available evidence and in doing so has incorrectly applied Table 11.5 of the Guidelines. The Medical Assessor assessed the appellant’s employability as class 2 PIRS for the following reasons:
“Mr. Stancovici is working 3 days/week from 5AM until 1PM for a total of 24 hours/week delivering vegetables for another company. This is a less demanding role than his previous position. He is mildly impaired.”
(l)    On the evidence, should the appellant worker lose his current employment he would have no employability whatsoever given that he is unable to adapt to a change of the daily route travelled due to the injury. A class 2 PIRS does not adequately take into account the appellant’s impairment for the reasons provided above. The appropriate PIRS category based on the examination and findings of the Medical Assessor is a class 3.
DM Trans Pty Ltd (the respondent) submissions included the following:
(a) There is no submission from the appellant that the Medical Assessor used the incorrect method of assessment or failed to accurately apply the Guidelines by undertaking his assessment in accordance with the PIRS, which he did. An assessment based on incorrect criteria will not be found on possible inaccuracies within an assessment that complies with the Guidelines, but rather requires an application of an incorrect method of assessment to warrant a ground of appeal in accordance with s 327(3)(c). The appellant has failed to establish a ground of appeal pursuant to s 327(3)(c) of the 1998 Act.
(b)    The examples provided in the Guidelines for each PIRS category are only intended to provide the Medical Assessor guidance or assistance. They are not strictly prescriptive and the Medical Assessor must use clinical judgment to consider what impairment is applied, rather than simply being restricted to only the examples of activities listed in the tables.
(c)    Self care and personal hygiene – the Medical Assessor confirmed that the appellant was “neatly dressed and well presented” on examination and “changes into clean clothing when he goes to work”. The appellant in his statement reported that his “appetite fluctuates from eating almost nothing but sweets, to overeating”.
(d)    A class 3 impairment notes criteria includes “does not prepare own meals, frequently misses meals”. There is no suggestion from the appellant in his statement that he does not prepare his own meals, or that he skips meals; merely, it suggests that he eats poorly.
(e)    The appellant’s criticisms of the Medical Assessor’s assessment of a class 2 impairment heavily rely on a narrow reading of a class 2 and 3 criteria, and in particular, placing significant importance of some of the appellant’s statement over other evidence provided and the Medical Assessor’s findings on clinical examination, contrary to the approach in Jenkins v Ambulance Service of New South Wales (2015) NSWSC 633.
(f)    Social functioning – the Medical Assessor specifically stated: “he said they (the appellant and the appellant’s wife) argue but are not in danger of separation”. The Medical Assessor noted that the appellant reported “he maintains a good relationship with his children”. As a result, the Medical Assessor applied a mild impairment.
(g)    The appellant alleges that despite the appellant’s report to the Medical Assessor on examination that he was not in danger of separating from his wife, that there was a “substantial breakdown in the husband and wife relationship” and that he had “essentially disengaged from all relationships”. The appellant’s submissions seem to suggest that the evidence in support of the statement alleging that the appellant had “essentially disengaged from all relationships” was pulled from the report of Dr Kuljic at page 29 of the ARD but a review of Dr Kuljic’s report shows no such direct statement. Dr Kuljic noted that that the appellant’s report he was “irritable and argumentative” had taken a “toll even on his family and partner/marital relationship”.
(h)    The Medical Assessor took a history which specifically noted that there was no suggestion of any separation between the appellant and his wife, but that relationship had been somewhat strained and was reluctant to socialise with friends.
(i)    Concentration, persistence and pace - the appellant alleges that he suffers from nightmares which have had a “significant impact” on his ability to concentrate, referring to the Medical Assessor’s comments “current symptoms consist of nightmares arising from the motor accident every 3 or 4 weeks”. This comment suggests that the appellant reported that his nightmares were a periodic, but not constant phenomenon that would lend weight to a conclusion proffered by the appellant that same had had a “significant” impact on his ability to concentrate.
(j)    The appellant has not provided any actual analysis which would explain the assertion that the Medical Assessor did not accurately assess a class 2 impairment for concentration, persistence and pace. The Medical Assessor noted that the appellant was visibly able to maintain concentration for over 30 minutes during the examination, was able to watch soccer on television without any reported concerns but had ceased reading Serbian newspapers. Consistent with the approach in NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Medical Assessor applied a class 2 impairment consistent with his findings on examination and the criteria in accordance with table 11.5 of the Guidelines.
(k)    Employability - there is no error with respect to the Medical Assessor’s assessment of employability. The Medical Assessor noted that the appellant is working in a less demanding position, but working 25 hours per week, which is consistent with a class 2 impairment given that the criteria notes that a worker “can work in the same position but no more than 20 hours per week” and that the “duties require comparable skill and intellect as those of the pre-injury job”. The appellant was previously a truck driver delivering goods. He now drives a van delivering goods.
(l)    The appellant’s suggestion the Medical Assessor failed to consider the possibility that the appellant worker may lose his job and potentially struggle to obtain alternative employment is without any legal basis. This submission from the appellant flies in the face of the Medical Assessor’s entitlement to give pre-eminence to his clinical observations of the appellant.
(m)     The appellant referred to comments made by Justice Wright in Ballas v Department of Education (State of NSW) [2020] NSWCA 86 at 94. The appellant suggests that “one must be mindful that the conduct assessed must be consigned to the correct category…or failure to do so will result in error”. This comment in Ballas was relevant to the question of whether a Medical Assessor had incorrectly used conduct assigned to one PIRS category to another, thus taking into account irrelevant considerations in providing an assessment. The respondent notes that the appellant has not made any submissions suggesting that the Medical Assessor mistakenly used conduct assigned to one PIRS category for another, in allegedly falling into error with his assessment.
(n)    The assessment conducted by the Medical Assessor was not made on the basis of incorrect criteria and there is no demonstrable error contained within the MAC.
(o)    The MAC should be confirmed.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 the form of the words used in s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

Discussion

The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Self care and personal hygiene

The appellant submitted that the Medical Assessor incorrectly applied the Guidelines and Table 11.1 by failing to take into account the appellant’s evidence and specifically the available evidence relating to the failure to shower and shave regularly, failure to change into clean clothes, failure to take pride in one’s appearance and failure to eat properly.
The examples under Table 11.1 for “Self care and personal hygiene” in the Guidelines are:
“Class 2 Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3 Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
The Medical Assessor assessed the appellant as class 2 for self care and personal hygiene. In the PIRS Rating Form, the Medical Assessor wrote:
“Self care and personal hygiene- Class 2
Mr Stancovici said this has deteriorated because he forgets to shower. He said he now showers 3 times per week after working. He changes into to clean clothing when he goes to work but otherwise does not worry and needs to be reminded by his wife to change. He also said she reminds him to get a haircut. He believes he has lost 2 or 3 kg because he is less interested in food. He was well-dressed and neatly presented at interview. He is mildly impaired.”
Under “Social activities/ADL” the Medical Assessor wrote:
“Prior to the work injury Mr Stankovic 5 yes [sic] what your history said he had no difficulties. He was diligent in regard to self-care and personal hygiene activities”.
Under Findings on Physical Examination on page 4 of the MAC the Medical Assessor noted that the appellant was neatly dressed and well presented.
In his statement dated 17 September 2024, the appellant stated:
“17. … I forget to shower, and my wife says I smell. I forget to change clothes, and my wife has taken to laying out fresh clothes each morning.
18. My appetite fluctuates from eating almost nothing but sweets, to overeating.”
Dr Blagoje Kuljic, treating psychiatrist, in a report dated 17 November 2023, assessed a Class 3 for self care and personal hygiene providing the following reasons:
“My appetite is unstable. I either overeat or don’t eat. When I work, I do not eat at all. My wife nags about it and pushes me to eat. Without her, I would only eat sweets and my son complains that it is a bad example to my grandkids. I do not care about my hygiene. I skip showers. My wife says I smell and gives me clean clothes to change.”
Dr Sue Morgans, consultant psychiatrist, in a report dated 1 July 2024 assessed a class 1 for self care and personal hygiene providing the following reasons:
“Mr Stanovici was kempt. He lives with his wife and is entrusted in caring for others (his grandchildren). He was kempt in the review, he was organised in his self care to attend work.”

The appellant argued that the Medical Assessor has fallen into error by incorrectly allocating a class 2 rating in circumstances where the Medical Assessor’s findings on examination and history obtained does not support a class 2 PIRS. The appellant argued that the findings in the MAC together with the available evidence made it is clear that the appellant is incapable of living independently and heavily relies on support and prompting from his wife.
The Appeal Panel considers that the Guidelines provide many descriptors for distinguishing between a class 2 and a class 3 impairment, which generally comprise different aspects of whether someone has the ability to live independently without support. In our view, the evidence including the appellant’s statement and the statement of his wife, does not suggest that the appellant cannot live independently. The fact that the appellant needs some prompting from his wife to shower and change clothes does not in and of itself result in him being unable to live independently. The Medical Assessor noted that the appellant now showers three times per week after working, changes into to clean clothing when he goes to work but otherwise does not worry and is reminded by his wife to change. The appellant told the Medical Assessor that his wife also reminds him to get a haircut. The Medical Assessor noted that the appellant has lost 2 or 3 kg because he is less interested in food. This loss of 2 to 3kg over many years does not suggest that there has been a dramatic loss of appetite, indicative of an actual impairment. The Medical Assessor observed that the appellant was well-dressed and neatly presented at interview. The Medical Assessor also noted that the appellant cares for two granddaughters in their home one day a week, which is an extension of the ability to care for oneself in addition to the relationship conduct categorised under Social Function.
Although the appellant submits that a class 2 impairment does not adequately reflect the appellant’s impairment and is unsupported by the available evidence, the Appeal Panel was not satisfied that there was any inconsistency in the MAC or that the reasons described someone who is unable to live independently.
The Appeal Panel noted that Dr Kuljic assessed a class 3 for self care and personal hygiene but her report was written some time ago in November 2023. Further, Dr Kuljic’s reasons for a class 3 assessment merely recite what the appellant said. The Appeal Panel noted that
Dr Morgans assessed class 2 for self care and personal hygiene.
The Appeal Panel is satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS category of self care and personal hygiene and the assessment in this class is not made on the basis of correct criteria. The categorisation of class 2 for self care and personal hygiene was not glaringly improbable; the Medical Assessor was not unaware of significant factual matters, there was no clear misunderstanding by the Medical Assessor and his reasoning process was sufficiently clear.

Social functioning

The appellant submitted that when taking into consideration the evidence the Medical Assessor failed to provide an adequate path of reasoning which justifies a category 2 PIRS finding and incorrectly applies the relevant Guidelines and therefore falls into error.
The appellant worker submits the class 2 rating does not properly reflect the impairment caused to the appellant’s ability to function within this category. For these reasons a class 3 rating is more appropriate on the history taken by the Medical Assessor, the available evidence and to reflect the impact which the appellant’s psychiatric disorder has caused to his ability to form social relationships.
The examples under Table 11.4 for “Social functioning” in the Guidelines are:
“Class 2: Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3: Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The Medical Assessor assessed class 2 in relation to social functioning noting:
“Mr Stancovici said he is difficult to live with and gets into frequent conflicts with his wife. He said they argue but they are not in danger of separation. He described
being less patient with his grandchildren. He maintains a good relationship with his children but is reluctant to socialise with friends. He is mildly impaired.”
Under “Present symptoms”, the Medical Assessor wrote:
“Current symptoms consist of nightmares arising from the motor accident every 3 or 4 weeks. He continues to experience anxiety while driving and does his best to avoid heavy traffic, major roads and roads with overhanging trees…He continues to be a bit more difficult to live with and is less inclined to socialise.”
Under “Social and recreational activities” the Medical Assessor noted that the appellant continues to see the friends with whom he swam the Danube to escape Romania.
In his statement dated 17 September 2024, the appellant stated:
“My wife and I sleep in separate rooms. She complained that I wake her during the night, and she had to work the next day, so I moved into the spare room. Our relationship is in any event is strained so I prefer to be on my own. We argue a lot. I don’t have the patience I used to and sometimes the smallest thing will set me off. We are no longer intimate.
…
I have lost friendships since the accident. Friends would visit and I would become irritable and go to my room. After a while they stopped coming.”
Dr Blagoje Kuljic, treating psychiatrist, in a report dated 17 November 2023, assessed a class 3 for social functioning providing the following reasons:
“I avoided socialising, and my friendships suffered. I changed a lot as a person. I am too irritable, and I cannot resist arguing. It affected my friendships. The relationship with my wife suffers, too. We argue. We have not been sharing a bedroom for a few years now.”
Dr Sue Morgans, consultant psychiatrist, in a report dated 1 July 2024 assessed a class 2 for social functioning providing the following reasons:
“He reported he socialises less and reported that he is irritable and there are problems with his wife being irritable with him for not socialising anymore. However, he is able to care for his grandchildren on Tuesdays. He reported stain in his marriage. However, he remains married despite his assertion there are stresses in the marriage and there was not external collateral to support the reported marital disharmony.”
The appellant alleges that there was a “substantial breakdown in the husband and wife relationship” and that he had “essentially disengaged from all relationships”. This submission does not reflect the history obtained by the Medical Assessor nor the history supplied by
Dr Kuljic, the appellant’s long term treating psychiatrist.
The Medical Assessor’s assessment of class 2 impairment for social functioning is consistent with assessment of Dr Morgans. Dr Kuljic, assessed a class 3 for social functioning but as noted above her report was written some time ago in November 2023. Again, Dr Kuljic’s reasons for a class 3 assessment merely recite what the appellant said.
The Medical Assessor noted that the appellant and his wife sleep in separate rooms and are no longer intimate. The appellant described the marital relationship as strained however, the Medical Assessor noted that the appellant said they were not in danger of separation. There has been a loss of friendships but he continues to see some friends. The Medical Assessor noted that the appellant maintains a good relationship with his children.
The Appeal Panel does not accept that the evidence supported a greater impairment in social functioning. Although the appellant argued that class 3 is a more appropriate assessment of the applicant’s psychological functioning, the Appeal Panel considers that the evidence supports an assessment of class 2 for social functioning. Further, the Medical Assessor provided clear and adequate reasons for assessment of class 2 for social functioning.
The Appeal Panel is satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS category of social functioning and the assessment in this class is not made on the basis of correct criteria.

Concentration, persistence and pace

The appellant submitted that the Medical Assessor has fallen into error in allocating a class 2 for this PIRS category in light of the findings on examination, the history provided and the available evidence. The appellant argues that a class 2 rating does not adequately reflect the impairment resulting from a traumatic incident and perceived by the appellant as life threatening and a class 3 PIRS rating is more appropriate.
The examples under Table 11.5 for “Concentration, persistence and pace” in the Guidelines are:
“Class 2: Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3: Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
Under “Findings on mental state examination”, the Medical Assessor noted:
“He was cooperative with the interview
and provided information willingly and without prompting. He did not become anxious or distressed throughout the interview and was not depressed in appearance. He denied suicidal ideation. He described trauma-related symptoms such as nightmares, intrusive recollections and anxiety in situations which reminded him of the work injury.
Mr Stancovici was fully oriented in time, person and place and displayed no evidence of organic or psychotic psychopathology.”
The Medical Assessor assessed the appellant as class 2 for concentration, persistence and pace. In the PIRS Rating Form, the Medical Assessor wrote:
“Concentration, persistence and pace - Class 2.
Mr Stancovici said he is able to enjoy watching soccer on television but does his best to avoid the news. He said he has stopped reading Serbian newspapers. His
wife manages the family money. He is able to focus for more than 30 minutes as indicated by his participation in the interview. He is mildly impaired.”
In his statement dated 17 September 2024, the appellant stated that:
“I feel I have lost interest and motivation
…
I forget to pay the bills, and we receive reminders and my wife becomes angry, saying it is all my fault if the electricity is cut off.
I lose concentration quickly. I might start to watch a movie or read something and l lose concentration quickly. I might start to watch a movie or read something and lose concentration and give up. I used to read the English and Serbian newspapers nearly every day. Now I rarely bother.”
Dr Blagoje Kuljic, treating psychiatrist, in a report dated 17 November 2023, assessed a class 3 for concentration, persistence and pace providing the following reasons:
“Mt attention is poor. I cannot watch movies. Even at work, my mind drifts away, and I miss turns even though I always drive the same route. I stopped reading newspapers after the accident, I cannot focus.”
Dr Sue Morgans, consultant psychiatrist, in a report dated 1 July 2024 assessed a class 3 for concentration, persistence and pace providing the following reasons:
“Mr Stanovici reported he used to be able to read the newspaper. He said he is not able to do this anymore.”
The Appeal Panel noted that the Medical Assessor relied on the ability of the appellant to participate in the interview as the only indication of ability to focus, and in fact the only conduct identified that might support a class 2. The evidence is that the appellant is unable to read the newspaper anymore and his wife manages their finances. The Appeal Panel accept that the appellant can watch soccer on TV but avoids watching the news, which may be avoidance rather than impairment in this category. In his statement the appellant said that he might start to watch a movie or read something but lose concentration quickly and gives up.
The Appeal Panel considered that all of the evidence apart from the ability to focus on the interview indicated a class 3 rating for concentration, persistence and pace.
Drs Kuljic and Morgans both assessed class 3 for concentration, persistence and pace. The Medical Assessor in commenting on Dr Morgans’ report simply noted that he differed with her assessment in this category and that “concentration was not significantly impaired during the interview”.
Based on the evidence and history obtained by the Medical Assessor, the Appeal Panel concludes that the appellant struggled to focus, could not read newspapers, watch movies or attend to the family finances. The Appeal Panel considers that the descriptors provided in Table 11.8 by the Medical Assessor were, in the main, class 3 descriptors. Therefore, the Appeal Panel considers that the reasoning process for assessing the appellant as class 2 in this category is unable to be made out and the descriptors support a rating of class 3 for concentration, persistence and pace.
The Appeal Panel considers that the Medical Assessor fell into error when assessing
the appellant as class 2 in the category of concentration persistence and pace.

Employability

The appellant submitted that the Medical Assessor falls into error in that he has not taken into account the above stated available evidence and in doing so has incorrectly applied Table 11.5 of the Guidelines.
The examples under Table 11.6 for “Employability” in the Guidelines are:
“Class 2: Mild impairment. Able to work full-time but in a different environment from that of the pre- injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (e.g. no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3: Moderate Impairment; cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).”
The Medical Assessor assessed the appellant as class 2 for employability. In the PIRS Rating Form, the Medical Assessor wrote:
“Employability - Class 2.
Mr Stancovici is working 3 days/week from 5 AM until 1 PM for a total of 24 hours/week delivering vegetables for another company. This is a less demanding role than his previous position. He is mildly impaired.”
On page 2 of the MAC, the Medical Assessor noted:
“Mr Stancovici is a 70-year-old man who lives with his wife and 37-year-old daughter in their own home in Western Sydney. He now works 3 days/week from 5 AM until 1 PM driving a truck owned by his employer ROM Enterprises delivering vegetables to Subway outlets in the area from Prospect to Penrith, Windsor and North Richmond.”
Under “Social activities/ADL” the Medical Assessor wrote:
“Prior to the work injury Mr Stankovic …had no difficulties with concentration and was employed full-time in his own business”.
On page 3 of the MAC the Medical Assessor noted:
“Work history including previous work history if relevant:
Mr Stancovici had his own transport company for 20 years (DMT Trans) and drove the one vehicle. He is currently employed by another company on a part-time basis.”
In his statement dated 17 September 2024 the appellant wrote:
“8. Returning to work as a driver has been difficult for me. I am always fearful in traffic. If I am on the road and bad weather happens, I park and wait for it to pass. If I hear a loud noise I jump and feel my heart race. I start to sweat and become anxious. I take the same route each day and use the quiet streets. The familiarly with the route helps me with the anxiety I feel when I am in the car.
9. I was unable to work until about mid-2022 when I purchased a van and started to deliver vegetables to Subway. I no longer drive long distances and no longer drive a truck. The longest drive I now have is about 25 minutes and then I wait for loading and unloading of the deliveries. I use the waiting time to destress. I work 3 days per week and manage. I don’t believe I could drive 5 days; I feel overwhelmed.”
Dr Blagoje Kuljic, treating psychiatrist, in a report dated 17 November 2023, assessed a class 3 for Adaption providing the following reasons:
“I work three days a week, eight hours a day. I always get the same route with roughly 40 drop-offs. In between, I have to wait for unloading. Driving and loading/unloading takes 5-50% of working time. The longest patch is 25 minutes drive. The paperwork is straightforward. I get the sheet, and customers must sign off when they receive the goods.”
Dr Sue Morgans, consultant psychiatrist, in a report dated 1 July 2024 assessed a class 2 for employability providing the following reasons:
“Mr Stanovici is reportedly working three days a week and 8 hours a day.”
The appellant argued that a class 2 PIRS does not adequately take into account the appellant’s impairment for the reasons provided above and the appropriate PIRS category is class 3.
The Appeal Panel is satisfied that the appellant no longer performs the same job. The appellant does not drive a truck now, and he does not drive long distances. Importantly he does not manage his own company and perform the administrative tasks involved in owning and managing a company, which bring associated stress. The appellant now drives a van, is employed by another company as a delivery driver and works three days for eight hours a day. The Appeal Panel are satisfied that the appellant’s current employment is less demanding and less stressful than his pre-injury employment in his own company.
Although the appellant works slightly more than 20 hours a week in a different position which is less stressful, he is not able to work full time in a different environment performing duties that require comparable skill and intellect as the pre-injury job. The Appeal Panel is satisfied that the appellant cannot work in his pre-injury job for 20 hours a week or less.
Taking these factors into account, the Appeal Panel concluded that the appellant is moderately impaired in scale of employability and the assessment of class 2 did not take into account the level of impairment the appellant has in this category.
Therefore, the Appeal Panel considers that the reasoning process for assessing the appellant as class 2 in this category was unable to be made out. The descriptors supported a rating of class 3 for employability.
The Appeal Panel considers that the Medical Assessor fell into error when assessing
the appellant as class 2 in the category of employability.
The Appeal Panel was satisfied that the assessments of class 2 for concentration, persistence and pace and class 2 for employability could not be supported by the evidence. The Appeal Panel assesses the appellant as class 3 for concentration, persistence and pace and class 3 for employability.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS categories of self care and personal hygiene and social functioning.
The Appeal Panel finds that the PIRS scales score 2 3 2 2 3 3, ascending order 2 2 2 3 3 3, median 2.5 =3, aggregate 15 so that the final WPI = 15%.
For these reasons, the Appeal Panel has determined that the MAC issued on
6 November 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W26507/24
Applicant:	Ilia Stancovici
Respondent:	DMT Trans 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 Wayne Mason 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	29/11/2020	Chapter 11	15%	0	15%
Total % WPI (the Combined Table values of all sub-totals)					15%

[2025] NSWPICMP 99

18 February 2025