State of New South Wales (NSW Police Force) v Tan
[2024] NSWPICMP 616
•30 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (NSW Police Force) v Tan [2024] NSWPICMP 616 |
| APPELLANT: | State of New South Wales (NSW Police Force) |
| RESPONDENT: | Margarita Tan |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 30 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant employer alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under one psychiatric impairment rating scale (PIRS) category being concentration, persistence and pace; Held – the Medical Appeal Panel did not find error; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 30 April 2024 the State of New South Wales (NSW Police Force) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 April 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, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 did not seek that the worker undergo a re-examination by a Medical Assessor who is also a member of the Appeal Panel. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel did not find error and absent a finding of error the Appeal Panel has no power to require the worker undergo a re-examination, see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
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.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor by the Commission as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 9 March 2021
· Body parts/systems referred: Psychological\Psychiatric disorder
· Method of assessment: Whole person impairment”
The Medical Assessor issued a MAC as follows:
| 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 AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) | ||
| 1. Psychiatric injury | 9 March 2021 | Chapter 11, page 54 | Chapter 14, pg 361-365 | 17 | 0 | 17 | ||
| 2. | ||||||||
| 3. | ||||||||
| 4. | ||||||||
| 5. | ||||||||
| 6. | ||||||||
| Total % WPI (the Combined Table values of all sub-totals) | 17 | |||||||
The assessment of impairment was based on the Medical Assessor’s findings as per the psychiatric impairment rating scale (PIRS) as follows:
“Table 11.8: PIRS Rating Form
| Name | Margarita Tan | Claim reference number (if known) | W1358/24 |
| DOB | Xxxx | Age at time of injury | 36 years old |
| Date of Injury | 9 March 2021 | Occupation at time of injury | Police officer |
| Date of Assessment | 25 March 2024 | Marital Status before injury | Married |
| Psychiatric diagnoses | 1. | 2. | |
| 3. | 4. | ||
| Psychiatric treatment | |||
| Is impairment permanent? | Yes | No (circle one) | |
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-Care and personal hygiene | 2 | She said she showers two or three days a week, and she changes her clothes every two days, and she said she doesn’t use make-up now, though she would use make-up regularly in the past. She said she cooks once or twice a week, and they arrange take-away regularly, and her husband cooks as well. She said her husband organises the laundry most of the time, and she does the laundry once a week. She said she doesn’t do much cleaning, and she vacuums once every few weeks. She said she orders grocery online, and she does light shopping once a week. | |||||||||
| As she can undertake basic self-care independently, albeit with a degree of self-neglect, so she has mild impairment. | |||||||||||
| Social and recreational activities | 3 | She said she has no friends at all and doesn’t speak to anyone. She said she previously had a friend before, but they have moved away during COVID, 3-4 years ago. They have occasional messages every few months. She said she doesn’t meet up with anyone. She doesn’t engage in any activities outside and spends time at home watching TV or movies. I raised the references of her decorating cakes, and she said she had starting decorating cakes for her children many years ago. Several years ago, she made her sister’s twin sons, and her family praised her for it and encouraged her to start a business, which lasted less than a year, and she felt it was too pressured. She said she had entered the Easter Show on several occasions, in 2019, 2021 2022, without any entry in 2023 though she had started a cake for the Easter Show that year but she did not complete it. She said a few weeks ago, her son wanted to enter the Easter Show, and so she completed cake from 2023, so she has entered this cake in this year, with her son. She said her finalist nomination in 2023 was related to a cake made in 2022. She said she has not been baking cakes at other times. | |||||||||
| As she rarely leaves the house, and has only engaged with the cake decoration with her son, but not so impaired that she never leaves her residence as she has to drive her children regularly, so she has moderate impairment. | |||||||||||
| Travel | 2 | She said she drives the children to school and their afterschool activities. She said she can drive alone, and she said she has not tried to go to faraway places or new places. She said she would feel apprehensive and worried if she had to drive far. | |||||||||
| As she can drive within the local area, she has mild impairment. | |||||||||||
| Social functioning | 2 | She said her relationship with her husband has been ok, and he has been understanding as he also works for the Police. She said they spend time together, and they go to the shops together or stay home. She said they don’t argue a lot, but only sometimes. She said her relationship with her children has been fine. She said she takes them to school, and she takes them to their afterschool activities. She said she prepares simple meals for them sometimes, though they also arrange for take away. She said she has two older brothers, and she said she talks to them every few weeks. She said she has no friends at all and doesn’t speak to anyone. She said she previously had a friend before, but they have moved away during COVID, 3-4 years ago. They have occasional messages every few months. She said she doesn’t meet up with anyone. | |||||||||
| As her relationship with her husband and children remains stable, and she continues to participate in care-giving activities with her children, and she maintains regular contact with her siblings, though she has lost many friends, she has mild impairment. | |||||||||||
| Concentration, persistence and pace | 3 | She said her concentration now has not been great. She said it took her a few weeks to finish the cake for the Easter Show, whereas in the past it would take her a full day or so. She said doesn’t read much nowadays, and she would flick through Facebook and read posts online. She was alert, appeared grossly cognitively intact and was able to sustain her concentration for the duration of the assessment. | |||||||||
| As she has not been able to concentrate, but not to the extent of her impairment being easily observed in a brief conversation, she has moderate impairment. | |||||||||||
| Employability | 4 | She said she has not worked since leaving the NSW Police, when she had been working 2 days a week, 7 to 10 hours, which she had been doing after returning from maternity leave. She said she has not considered returning to alternative employment or studying, due to her lack of motivation and concentration. She has been able to care for her children, and she has been able to decorate a cake, albeit over a long period of time. This implies she is not totally impaired, and so she has severe impairment. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 3 | 3 | 4 | =2.5=3 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| +2 | +2 | +2 | +3 | +3 | 4 | 16 | 17 | ||||
*There is no pre-existing impairment.
*She has not responded to treatment.”
There was no deduction made by the Medical Assessor under s 323 to take into account any pre-existing injury, condition or abnormality. This aspect was not the subject of any complaint on appeal.
There was no allowance for treatment effect and this aspect was not the subject of complaint on appeal.
The appeal concerns only the assessments made under one of the PIRS categories being concentration, persistence and pace.
In summary, the appellant submitted on appeal that the Medical Assessor made a demonstrable error and/or assessment on the basis of incorrect criteria in rating a class 3 or moderate impairment for concentration, persistence and pace for reasons which include the following:
(a) because the Medical Assessor took a history that the worker was able to “bake, decorate and submit a cake for an award at the Royal Easter Show in March/April 2024 is conduct more appropriate to a finding of class 2 mild impairment”;
(b) by assigning a moderate impairment for concentration, persistence and pace which was inconsistent with the criteria in the Guidelines;
(c) because the Medical Assessor formed the view that the worker cannot work more than one or two days at a time, less than 20 hours per fortnight by virtue of her severe impairment of employability which is inconsistent for an individual that the medical assessor considers is unable to read a newspaper by virtue of the moderate impairment assessment made for concentration, persistence and pace, and
(d) by assigning a class 4 impairment for employability concedes that the worker does have a capacity to work which is inconsistent with the reasoning that she has not been able to concentrate to the extent of being able to read more than newspaper articles or follow complex instructions.
In summary the respondent worker Margarita Tan (the respondent) submitted on appeal that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The Medical Assessor took a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
She said when she started working in General Duties, she had seen a lot of things that ‘were not great’, including deceased people, a girl whom she had seen upset and depressed who later died from suicide. She said there was a lot of sexual harassment, and harassment around her pregnancy, and she was in the DVLO role where she came across a lot of sexual assault, including involving children. She said she had her son at the time, and returned to the DVLO role for a few months, before having to leave. She said after having her son, she felt that she was more bothered, particularly with the sexual assaults of the children. She said she was thinking about it every day, and she had a lot of thoughts and images.
She then moved into the Education role, and she said she was off a lot, as she had a lot of maternity leave, as she was pregnant again soon after starting that position and had two lots of one-year maternity leave for her two younger children. She said while she was on maternity leave, she had a lot of pressure to return to work. When she had returned to work, she said her children were in childcare and frequently sick, so she had to take the Wednesdays off. She didn’t think she had taken a lot of time off, but they said that they were pressuring her.
She said in the last few years of work, she was frequently teary, and falling asleep at the desk. She said her experiences was a continuation from DVLO, but it worsened over the years.
She said after she had her first-born child, she felt that the things she saw at work started to bother her, and she would have nightmares of the children being missing or being sexually abused.
At the time she left NSW Police, she was feeling depressed often, and she was sleeping poorly having about 6 hours, and she was eating junk food, she felt pessimistic and worthless, and her concentration was sluggish already, her energy was low, and she felt she had wasted her life, and she denied any suicidal ideations.
She said she had intrusive recollections related to a sexual assault case when she was triggered, causing her significant distress, and she was having nightmares related to those incidents. She was more socially withdrawn, and she would avoid triggers such as watching news. She had felt that the world was dangerous and struggled to trust people around her children. She had constant feelings of fear, and she had diminished interest in her previous activities such as going to the gym or going out with friends, and she felt detached from people. She would be more irritable, with frequent yelling. She was more hypervigilant, with poor concentration and disrupted sleep.
She has had psychological therapy, over 6 months, and she did not find it helpful. She was not sure of the modality of treatment, but she recalled being taught techniques to stop the thinking and breathing techniques. She doesn’t think she would get anything out of seeing a psychologist, and doesn’t want to re-visit the same things all the time.
She has been seeing a psychiatrist, Dr Betts. She has been on medications, though she doesn’t know the name. She said she could not tolerate the medications with headaches, so she ceased it. She said there are no plans for her to go on medications, and she is not keen to go back on medications.
Present treatment:
She sees her general practitioner once every month, though her regular GP has recently gone on maternity leave.
She has been seeing her psychiatrist every 3 months.
She is not on any medications.
Present symptoms:
She said she has been feeling depressed sometimes, and she said she has not been able to enjoy much. She said she has been sleeping poorly still, and stays up quite late. Her appetite has been normal. Her energy has been constantly low, and she feels a bit hopeless. She denied any suicidal ideations.
She said she has ongoing intrusive memories of harassment though this is not a major component of her intrusive recollections. She predominantly has intrusive recollections and nightmares of the traumatic incidents she has been exposed to. She continues to avoid her triggers, struggling to trust people, constant feeling of fear, ongoing diminished interest in activities, and detached from people. She continues to be irritable and hypervigilant on the roads and continues to complain of poor concentration and disrupted sleep. She sometimes feels she is in a dream, which occurs sometimes, without significant impairment.
She denied any psychosis.
Details of any previous or subsequent accidents, injuries or condition:
She said she had no pre-existing psychiatric injuries prior to the subject injury.
She said she doesn’t drink alcohol prior to or since the psychiatric injury. She denied any substance use.
She denied any family history of note.
She was born in Sydney, with no known perinatal issues, or developmental delays or learning delays. She described her parents as being good to her, and she denied any adverse childhood experiences.
She was able to make friends at school, and she denied any bullying. She finished Year 12.
General health:
She denied any medical conditions of note.
Work history including previous work history if relevant:
After school, she attended University and studied Bachelor of Arts, in Psychology, then she transferred to Forensic Science, which she didn’t complete.
She joined the NSW Police in 2007.
She said she has worked in General Duties for 2 years, Domestic Violence Liaison Officer for 4 years and Assistant Education Liaison Officer for 8 years.
Social activities/ADL:
She lives in Kellyville Ridge, with her husband of over 15 years, and three children, aged 8, 10 and 12 years.
She said her relationship with her husband has been ok, and he has been understanding as he also works for the Police. She said they spend time together, and they go to the shops together or stay home. She said they don’t argue a lot, but only sometimes.
She said her relationship with her children has been fine. She said she takes them to school, and she takes them to their afterschool activities. She said she prepares simple meals for them sometimes, though they also arrange for take away.
She said she has two older brothers, and she said she talks to them every few weeks.
She said she has no friends at all and doesn’t speak to anyone. She said she previously had a friend before, but they have moved away during COVID, 3-4 years ago. They have occasional messages every few months. She said she doesn’t meet up with anyone.
She doesn’t engage in any activities outside and spends time at home watching TV or movies. I raised the references of her decorating cakes, and she said she had starting decorating cakes for her children many years ago. Several years ago, she made her sister’s twin sons, and her family praised her for it and encouraged her to start a business, which lasted less than a year, and she felt it was too pressured. She said she had entered the Easter Show on several occasions, in 2019, 2021 2022, without any entry in 2023 though she had started a cake for the Easter Show that year but she did not complete it. She said a few weeks ago, her son wanted to enter the Easter Show, and so she completed cake from 2023, so she has entered this cake in this year, with her son. She said her finalist nomination in 2023 was related to a cake made in 2022. She said she has not been baking cakes at other times.
She said she showers two or three days a week, and she changes her clothes every two days, and she said she doesn’t use make-up now, though she would use make-up regularly in the past. She said she cooks once or twice a week, and they arrange take-away regularly, and her husband cooks as well. She said her husband organises the laundry most of the time, and she does the laundry once a week. She said she doesn’t do much cleaning, and she vacuums once every few weeks. She said she orders grocery online, and she does light shopping once a week.
She said she drives the children to school and their afterschool activities. She said she can drive alone, and she said she has not tried to go to faraway places or new places. She said she would feel apprehensive and worried if she had to drive far.
She said her concentration now has not been great. She said it took her a few weeks to finish the cake for the Easter Show, whereas in the past it would take her a full day or so. She said doesn’t read much nowadays, and she would flick through Facebook and read posts online.
She said she has not worked since leaving the NSW Police, when she had been working 2 days a week, 7 to 10 hours, which she had been doing after returning from maternity leave. She said she has not considered returning to alternative employment or studying, due to her lack of motivation and concentration.”
The Medical Assessor recorded his findings on mental state examination as follows:
“She presented as a casually dressed and reasonably groomed woman. She had an average build and appeared to be her stated age. She engaged cordially in the assessment and provided relevant answers to questions asked, spontaneously supplying detail.
She told me she was feeling worried and depressed.
She displayed some emotional reactivity and became teary at times during the interview.
She spoke articulately and in a logical sequence most of the time, without much prompting, with intact prosody.
She had ongoing complaints of pain in her right hand.
She complained of intrusive recollections of previous exposure to traumatic events from her work.
She had pessimistic thoughts of guilt, and no suicidal ideations.
She was alert, appeared grossly cognitively intact and was able to sustain her concentration for the duration of the assessment.”
The Medical Assessor made the following diagnosis:
“summary of injuries and diagnoses:
She has presented with:
Ø Post-Traumatic Stress Disorder
· consistency of presentation
Her presentation is generally consistent.”
The Medical Assessor made an assessment of 17% WPI and stated he had taken account of the following matters:
“● The statement written by Rashelle Conroy, dated 1 July 2021. She was employed as a police officer and currently holding the rank of Superintendent and was previously a Human Resources Manager, Inspector, between 2014 to 2016. The claimant was attached to the Forensic Evidence and Technical Services Command where she was working as an Educational and Development Officer. She’d had maternity leave and significant periods out of the workplace and was working under the provisions of a Flexible Work Agreement with reduced hours. Around 2016 or 2017, the witness had to undertake mandatory sick leave reports and the claimant triggered a review. She had a meeting with the claimant along with Sergeant Liz Little, focussing on supporting the claimant and identifying strategies to assist her. There was no further action required and her sick leave improved over the subsequent 12 months. She had approved multiple flexible working arrangements and also secondary employment as the claimant had a home decorating cake business.
· The statement written by Johnathon Stone, dated 30 July 2021. He was working as a police officer, holding the rank of Sergeant, attached to the Forensic Evidence and Technical Services Command. He worked as the claimant’s supervisor and said that they had informal discussion around her sick leave and that she was in a Flexible Work Agreement, working two days a week and they would request that she provide a doctor’s certificate for leave moving forward. She advised that she had annual leave booked over Christmas 2020 and wanted to take extended leave without pay to extend this into 2021. She had requested six weeks of leave without pay for the purposes of recreation, which the witness supported. She submitted an updated Flexible Work Arrangement in February 2021, which was unlikely to be supported. The claimant returned to work on 3 March 2021 and left that day, going home sick and did not provide a medical certificate until a few days later, which said she had a medical condition with psychological symptoms and unfit for work. She did not supply a Workcover certificate until June 2021.
· The statement written by Harriet Kelly, dated 2 August 2021. She worked full time as a police officer, holding the rank of Sergeant and was the supervisor of the claimant. The claimant was described to be pleasant and cooperative, although there was a decline in her engagement and participation at work of an 18 month period, particularly towards the end of 2020, when she requested an extended break. There was an escalating amount of sick leave and carer’s leave taken and there was a decline in the claimant’s work performance and engagement with work and overheard the claimant making disparaging comments about her supervisors. She was granted leave without pay from December 2020 to March 2021 and became upset during the keynote address on the day she returned at a retirement workshop.
· Supplementary statement by Harriet Kelly, dated 13 August 2021. She stated on 18 September 2020, they had an informal discussion about her taking sick leave and carer’s leave. She said that she did not direct the claimant to supply medical evidence for her absences and were aimed to be proactive intervention and support for the claimant.
· The statement by Margarita Tan, dated 10 August 2022. She had worked to the rank of Senior Constable, performing in the role of Assistant Education and Development Officer. She alleged she was exposed to various traumatic events including workplace bullying and harassment. This included sexual harassment by a colleague from 2007 to 2009 and another incident in 2013 and there were a few other disparaging comments targeted at her by other colleagues. She also alleged she was exposed to various other traumatic incidents including reviewing domestic violence matters. She stated she has been diagnosed by psychiatrist, Dr Charles Betts, with Posttraumatic Stress Disorder and Major Depressive Disorder and the insurer has declined liability.
· Supplementary statement by Margarita Tan, dated 15 May 2023 and 19 February 2024. She has been struggling with her focus, taking longer to sculpt cakes. She has sculpted around 22 cakes between 2020 to 2022 and was not baking any cakes in 2023. She was nominated as a finalist in August 2023 for the Australian Cake Decorating Network and did not attend the awards, because she did not like leaving home. She shared the nomination on her Facebook page. She says she requires prompting to take care of herself and to shower and not wearing makeup. She changes her clothes every few days. She orders take-a-way food frequently and prompted to do the laundry. She avoids going out and does not participate in social gatherings, apart from visiting family once every few months. She goes out with her husband if she has to go anywhere on rare occasions. She has lost nearly all her friendships and not seeing or speaking to friends. Her husband does most of the driving as she struggles with parking and is easily distracted and agitated. She loses concentration a lot and finds it hard to focus.
· NSW Police Force Incident Reporting Form, dated 26 May 2021. She was off duty on sick leave due to psychological factors in the workplace from bullying and harassment.
· The report written by Dr Charles Betts, psychiatrist, dated 26 June 2021. The claimant had no previous psychiatric diagnoses. There was significant exposure to childhood trauma, witnessing domestic violence between her parents, being hit by her mother and her mother attempting suicide by overdose when she was in year eight. She experienced significant sexual harassment at work and subsequently did four years of domestic violence work, which she enjoyed until she had a child and found a particular case traumatising. She also reported excessive demands in her current work environment and has difficulties with both her supervisors and feels she has been discouraged from taking carer or sick leave. She had to cease her domestic violence job due to an index exposure of a case involving sexual assault against two boys and developed flashbacks related to this, which causes her to be preoccupied with concern about her children being hurt. She was diagnosed with Posttraumatic Stress Disorder and Major Depressive Disorder. She expressed a preference for psychological treatment rather than medication.
· Procare Investigation, dated 13 July 2021. She resided in Kellyville Ridge with her husband and had a registration for a business named Buttersweet Sugar Art, with photos of her sculpted cakes, but no posts between May and October 2020 on her business and social accounts and resumed posting of a photos of her cake creations after October 2020 and she was recently nominated for several cake awards in 2021.
· The report written by Dr Peter Young, psychiatrist, dated 27 July 2021. There was no previous history of psychiatrist disorders and one previous workers compensation claim several years ago due to a back injury. There was a history of prejudicial experiences in childhood including a history domestic violence in the home when growing up, but she denied suffering any direct trauma, neglect or abuse. She developed symptoms due to a series of events at work around 2018, including working part time and having time off for sick leave due to her own illnesses or her children’s illnesses and her workplace being generally unsupportive of these leave requests. She felt her employers as being unreasonable and lacked consideration of her personal circumstances and felt pressured not to take leave. She has been suggested to take antidepressants but she has been avoidant of this and this has also been suggested by a psychiatrist, which she is now more accepting. She was diagnosed with Adjustment Disorder and would benefit from psychological therapy. She felt not able to cope with day to day demands and not able to return to work.
· The report written by Dr Jenny Wong, clinical psychologist, dated 16 December 2021. She was diagnosed with Adjustment Disorder with mixed anxiety and depressed mood relating to the alleged sexual harassment around 2007 and 2008 and perceived harassment since early 2020 with no pre-existing psychological conditions or injuries. She had not engaged in any active treatment such as counselling or medications. She was independent with activities of daily living including communication, self-care, home living, social and interpersonal skills, use of community resources, self-direction, functional academic skills, leisure and health and safety. She does not require any support or modification of any daily activities. She has not been motivated to pursue her hobbies such as cake making or decorating and she was unfit for work as an operational duties police officer.
· The report written by Dr Chellapah, general practitioner, dated 24 August 2022. The claimant was diagnosed with depressive symptoms, anxiety symptoms and Posttraumatic Stress Disorder symptoms. Her treatment included avoidance of triggers using psychological strategies, improving her diet, exercise and being referred to a psychologist. She was compliant with a treatment plan but had not had any improvement. Future treatment plan was a continuation of the current treatment plan with a consideration of medication if she felt no improvement. She was not thought to be able to return to work with NSW Police Force and may be suitable for alternate employment.
· The report written by Chellapah, general practitioner, dated 14 February 2023. She was diagnosed with Major Depressive Disorder and Posttraumatic Stress Disorder with the DASS-21 indicating severe depression, extremely severe anxiety and extremely severe stress. She had been referred to a psychiatrist and psychologist and provided lifestyle intervention advice with consideration of medication if there was no improvement after four to six weeks. There was a low chance she would be able to return to work in alternate employment outside of the NSW Police Force with a poor prognosis. She was able to attend to personal hygiene and self-care. Her capacity for social and recreational function was impaired and she had impaired cognitive function and concentration.
· Procare Investigation report, dated 15 March 2023. A Facebook search showed she had 200 more followers and her page was updated on 17 December 2022. She was nominated for cake decorating awards between November 2021 to June 2022 and one first prize at the Sydney Royal Easter Show and featured in a Saracino Magazine on 3 November 2021, 10 April 2022, 8 May 2022 and 6 June 2022 and there has not been any post since December 2022. The claimant had continued to decorate cakes, however, there have been no posts since December 2022.
· The report written by Dr Charles Betts, psychiatrist, dated 9 June 2023. She had a diagnosis of Posttraumatic Stress Disorder, Major Depressive Disorder and Generalised Anxiety Disorder. Her symptoms have persisted and worsened over the past two years and would require long term management. She was unlikely to improve in the foreseeable future. She would benefit from further psychiatric and psychological treatment based on her preference. She had ongoing reservations of commencing antidepressant therapy.
· The report written by Dr Peter Anderson, psychiatrist, dated 12 July 2023. She was diagnosed with Posttraumatic Stress Disorder and Major Depressive Disorder arising from the history of sexual harassment and difficulties in her role as a domestic violence liaison officer with a history of more recent workplace incidents involving the inflexibility related to her family care arrangements. She would benefit from further psychiatric and psychological treatment and pharmacotherapy. She had some psychological therapy with breathing and relaxation techniques but stopped contact with a psychologist as the psychologist would not provide reports of a legal nature and had not taken up treatment with an alternative psychologist. She had recently commenced antidepressant medication treatment two weeks prior. Her self-care and personal hygiene was mildly impaired as she had a poor diet, irregular eating, weight gain, lack of exercise, lack of attention to showering, clean clothes and personal presentation. Her social and recreational activities was moderately impaired as she had no visitors, no group involvements, no hobbies or recreational and no social activities. Her travel was mildly impaired as she has anxiety when travelling with a restriction to the local area and avoidance of further travel. Her social functioning was mildly impaired as she had strain in her personal relationship and with difficulties in her relationship with her children due to her irritability. Her concentration, persistence and pace was moderately impaired as she had difficulties with concentration, even in conversation and had memory difficulties. Her employability was totally impaired. She had a whole person impairment 19%.
· Procare Investigation report, dated 29 August 2023. She was still active as a finalist for the 2023 Australian Cake Decorating Network Awards in the 3D and sculpted cakes category.
· The report written by Dr Peter Young, psychiatrist, dated 27 October 2023. She was diagnosed with a Persistent Depressive Disorder (Dysthymia). She had tried an antidepressant three months prior and was not able to tolerate this so she ceased it after a month. Her psychiatrist had discussed alternative medications which she was willing to consider. She had not re-engaged with a psychologist. Her self-care and personal hygiene were mildly impaired as she was able to dress herself and manage her self-care at a minimal standard, but not maintaining her appearance as previous. She was not bothering with brushing her hair or wearing makeup and showering every two to three days. She cooks less frequently, often relying on take-a-way food. Her social and recreational activities was moderately impaired as she has withdrawn from her cake decorating activities over the preceding 18 months and not attending gym or other regular exercise and avoids situations where she is required to talk to people. Her travel was mildly impaired as she was able to leave the house alone and drive short distances, but is easily distracted and spaced out and cannot concentrate. She transports her children to school and local activities. Her social functioning was mildly impaired as she maintains a relationship with her husband, although somewhat irritable at times and does not like meeting people. Her concentration, persistence and pace were mildly impaired as her memory was pretty poor and she was easily forgetful and her concentration was poor. Her employability was totally impaired as she was not able to engage in any work or work like activities. Her final whole person impairment was 9%.”
He noted in respect of the IME opinions as follows:
“My assessment is more aligned with Dr Peter Anderson than Dr Peter Young, with my reasoning to be found in the PIRS worksheet.”
In respect of Concentration, Persistence and Pace, Table 11.5 of the Guides provides as follows:
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame. |
| 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 (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting. |
| Class 4 | Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services. |
| Class 5 | Totally impaired: needs constant supervision and assistance within institutional setting. |
The Medical Assessor assessed class 3 or moderate impairment with the following reasoning:
She said her concentration now has not been great. She said it took her a few weeks to finish the cake for the Easter Show, whereas in the past it would take her a full day or so. She said doesn’t read much nowadays, and she would flick through Facebook and read posts online.
She was alert, appeared grossly cognitively intact and was able to sustain her concentration for the duration of the assessment.
As she has not been able to concentrate, but not to the extent of her impairment being easily observed in a brief conversation, she has moderate impairment.
The MAC must be read as a whole. As set out above a detailed history has been taken. It is evident from the above history that the Medical Assessor has taken from the worker a very careful and detailed history relating to the cake baking and decorating. He records:
“I raised the references of her decorating cakes, and she said she had starting decorating cakes for her children many years ago. Several years ago, she made her sister’s twin sons, and her family praised her for it and encouraged her to start a business, which lasted less than a year, and she felt it was too pressured. She said she had entered the Easter Show on several occasions, in 2019, 2021 2022, without any entry in 2023 though she had started a cake for the Easter Show that year but she did not complete it. She said a few weeks ago, her son wanted to enter the Easter Show, and so she completed cake from 2023, so she has entered this cake in this year, with her son. She said her finalist nomination in 2023 was related to a cake made in 2022. She said she has not been baking cakes at other times.”
Careful regard has also been had to the other evidence. The Medical Assessor has not relied on self report alone.
The Medical Assessor has recorded his findings on mental examination as set out above.
The Medical Assessor had regard to the other medical opinion noting that Dr Anderson, the IME qualified to provide an opinion on behalf of the worker had assessed a moderate impairment at class 3 “as she had difficulties with concentration, even in conversation and had memory difficulties”.
He had regard to the IME opinion of Dr Young who was qualified to provide an opinion on behalf of the appellant who had rated concentration, persistence and pace at mild impairment at class 2 “as her memory was pretty poor and she was easily forgetful and her concentration was poor.”
The Medical Assessor was required to make an independent assessment.
Assessment cannot be based on self-report alone. The Medical Assessor has to make an independent assessment on the day of examination using his clinical expertise. The Medical Assessor has done that here and has based his assessment on the correct criteria and the Appeal Panel can discern no error in the assessment of class 3 which is the best fit.
The Medical Assessor is entitled to rely on his findings on the day of examination to which he applies his clinical judgment having due regard to the other evidence and opinion before him. This has very clearly been done here with an adequate path of reasoning demonstrated by the Medical Assessor. He has clear regard to the cake baking and decorating and has taken a very careful history from the worker in this regard as set out above.
The appellant’s submission that a rating of class 4 for employability concedes a level of concentration, persistence and pace that cannot be assessed as moderate but must be assessed as mild is without merit. The classification in one PIRS category cannot be used to justify the rating in another. A Medical Assessor is not permitted to approach the assessment under each PIRS category in this way because the PIRS categories are independent of each other and therefore an appellant cannot use the rating in one PIRS category to overturn the rating in another PIRS category on appeal.
The Appeal Panel considers that a moderate impairment or class 3 for concentration, persistence and pace has been appropriately and correctly rated by the Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on 2 April 2024 should be confirmed.
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