Uniting (NSW Act) v Miao

DETERMINATION OF APPEAL PANEL
CITATION:	Uniting (NSW ACT) v Miao [2023] NSWPICMP 78
APPELLANT:	Uniting (NSW ACT)
RESPONDENT:	Jenny Miao
Appeal Panel
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	8 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Assessment of degree of impairment resulting from psychiatric injury; appellant alleged error in the assessment in one of the categories under the permanent impairment rating scale (PIRS), employability; the rating in this class was open to the Medical Assessor and the Panel could discern no error; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 December 2022 Uniting (NSW ACT) (the appellant) made an application to appeal against a medical assessment (the appeal) to the President of the Personal Injury Commission (Commission). The medical assessment was made by Medical Assessor John J Baker and issued on 7 December 2022.
The respondent to the appeal is Jenny Miao (Ms Miao).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the Medical Assessment Certificate (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 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 NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 April 2016 reissued 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

Ms Miao developed a primary psychological injury in the course of her employment with the appellant as a childcare worker.
Ms Miao commenced proceedings in the Commission claiming 16% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 4 November 2021.
The matter was referred to the Medical Assessor on 21 August 2022 for assessment of WPI of Ms Miao’s psychological injury deemed to have occurred on 4 November 2021.
The Medical Assessor examined Ms Miao on 15 November 2022 through video link. The Medical Assessor assessed 22% WPI as a result of the injury deemed to have occurred on
4 November 2021.

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 WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that Ms Miao be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Ms Miao 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 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 Assessment Certificate (MAC) dated 7 December 2022 was appealed on the basis that the MAC contained a demonstrable error and was infected by the application of incorrect criteria in respect of the Psychiatric Impairment Rating Scales (PIRS). The Medical Assessor incorrectly applied a rating of “5” for Employability.
(b)    The applicable legal principles as to whether an assessment by a Medical Assessor was erroneous and amounted to a demonstrable error were set out by Campbell J in Ferguson v State of NSW [2017] NSWSC 857.
(c)    The Medical Assessor assessed Ms Miao on video on 15 November 2022. The Medical Assessor placed Ms Miao into PIRS Class “5” for Employability.
(d)    In his reasons for decision, the Medical Assessor stated Ms Miao had failed her return-to-work plan to work in any lesser role prior to this assessment and could not work at all due to this primary psychological injury. Ms Miao did not fail “her return to work plan to work in any lesser role”. In her statement dated
18 March 2022, Ms Miao stated that during 2021 she continued to work at Uniting lluka Early Learning Bondi doing light duties, working eight hour shifts one to two times a week.
(e)    The Medical Assessor rating of Class “5” for Employability was also inconsistent with the following evidence which was provided to the Medical Assessor (report of Dr A. W. Khan, psychiatrist, dated 29 September 2021; report of Dr J Zhao, nominated treating doctor, dated 31 March 2022; report of Dr M Kumar, psychiatrist, dated 2 December 2021; MAC of Dr Mastroianni dated 15 March 2022; Ms Miao’s statement dated 8 November 2021 specifically paragraph 24, and report of Dr Ming Sze, psychologist, dated 14 March 2022).
(f)    All of the above factual and medical evidence was contrary to the Medical Assessor placing Ms Miao into Class “5” for Employability. The Medical Assessor‘s conclusion that Ms Miao was unable to obtain treatment was clearly wrong.
(g)    There was no evidence from treating doctors and / or psychologists that inpatient hospital admission had been recommended / needed. Similarly, there was no supportive evidence from treaters with respect to the Medical Assessor’s suggestion that Ms Miao needed to be treated with Electro Convulsive Therapy or Transcranial Magnetic Stimulation Therapy.
(h)    The Medical Assessor stated that there had been a deterioration of Ms Miao’s condition during 2022. No reason, or no supported reason, was provided for that opinion, and it was inconsistent with all of the factual and medical evidence referred to above and contained in the Application to Resolve a Dispute and Reply.
(i)    Whilst the Medical Assessor stated that he disagreed with the assessments of WPI of both Doctor Khan and Doctor Kumar, he did not state specific reasons for doing so.
(j)    The Medical Assessor seemed to have provided his assessment predominantly based on Ms Miao’s presentation via video on 15 November 2022, and although he referred to the documentary evidence provided to him, he did not apply the required clinical judgment to it in assessing the Class “5” for Employability.
(k)    The Medical Assessor’s reference to, and seeming acceptance of as factually accurate, Ms Miao’s statement of 18 March 2022 that she was unable to proceed with treatment in late 2021 because the insurer had denied her claim, was factually inaccurate. Her claim was declined on 8 October 2020. The treating psychologist referred to above continued to treat Ms Miao under the public health system until late 2021, and it seems it was Ms Miao who did not return to that psychologist for any further treatment after the 30 consultations referred to.
(l)    It was surprising and questionable that the Medical Assessor quoted much of
Ms Miao’s statement dated 18 March 2022 but conveniently omitted the contents of paragraph 16 of that statement.
(m)     Where there was an inconsistency between the history Ms Miao provided to the Medical Assessor at the time of the assessment and the contents of her written statements, this should cause the Medical Assessor to apply clinical judgment and to not assess on self-report alone, but to properly take into account all of the evidence provided to the Medical Assessor. Why the Medical Assessor should quote extensively from Ms Miao’s statement dated 18 March 2022 but conveniently omit perhaps the most relevant paragraph 16, was of some concern with respect to the required objectivity of the Medical Assessor.
(n)    The Class “5” Employability assessment by the Medical Assessor was a demonstrable error and based on an incorrect application of the relevant criteria. The correct Employability rating must be a Class “3” or a Class “4”.
(o)    The MAC should be revoked. On the material evidence the Medical Appeal Panel could substitute its own reasoning for the PIRS Employability Class rating as “3” or “4”.
Ms Miao’s submissions include the following:
(a)    The Medical Assessor performed his assessment of the applicant on
15 December 2022. The assessment was performed by way of video conferencing. Relevantly, the MAC recorded the following observations:
“The applicant had a daughter to her second marriage who was 12 years of age at the time of examination and lived at a fulltime boarding school due to Ms Miao being unable to care for her as a consequence of the deterioration of her major depressive disorder with anxious distress during 2022.”
The Medical Assessor then went on to note the progression of the condition from commencing employment with the appellant in January 2017 and the increasing levels of distress and anxiety associated with workplace interactions through to 2021. The doctor noted that there was a failed to attempt to return to work:
“Ms Miao tried to recover and progress to her return to work program. The angry statements of the senior manager continued unabated. Ms Miao then tried to seek help from the company’s human resources and head office. On both cases nobody picked up her call. She left messages and waited for response. She immediately felt overwhelmed and abandoned by senior manager in her workplace.”
(b)    Given the suboptimal treatment being provided to Ms Miao, the Medical Assessor noted contributed to the deterioration in the worker’s condition:
“She requested further sessions from her insurer to receive psychiatric treatment, however, she was declined this treatment. Ms Miao’s mental state declined as she was unable to afford admission to psychiatric hospital as an inpatient in relation to her primary psychological injury. Her treatment was managed by a general practitioner and psychologist. She continued to deteriorate …”
(c)    The Medical Assessor set out the nature of the treatment being provided and the nature and extent of the symptomatology being suffered when examined in November 2022.The Medical Assessor went on to note that Ms Miao was unable to return to her primary substantive role and that: “She has failed her return-to-work plan to work in any lesser role prior to this assessment”. The Medical Assessor also noted Ms Miao’s history of being unable to persist in her career or any workplace as she feared future unfair treatment by any employer.
(d)    The Medical Assessor’s observations of the restrictions on Ms Miao’s ability to function at the time of his examination were then set out in detail within the MAC. The Medical Assessor then made the following determination having assessed and recorded the extent of Ms Miao’s impairment in the employability category:
“Ms Miao’s employability is totally impaired. She is unfit to return to her primary substantive role with this employer at any time in the future due to this work related injury. She remained anxious, depressed and avoidant of all workplaces. She has failed her return to work plan to work in any lesser role within this assessment. She could not work at all due to this primary psychiatric injury. She has not worked in any capacity since leaving the workplace in November 2021.”
(e)    The MAC repeated the above assessment with respect to matters going to employability in the schedule of setting out the PIRS ratings being the Table 11.8 PIRS rating form.
(f)    The Medical Assessor also spent some considerable time (which the authorities consistently observe does not need to be done in exhaustive detail in any event) in an analysis of the opinions expressed by treating and independent medical examiners including psychiatrists Dr Khan and Dr Kumar, and psychologist Dr Sze before ultimately reaching the conclusion as to the relevant class to be applied in the employability category.
(g)    Harrison AJ in Parker v Select Civil Pty Ltd [2018] NSWSC 140 observed: “In relation to classes of PIRS, there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in a statutory sense”. The appellant has submitted that “On the material evidenced the appeal panel could substitute its own reasoning for the PIRS employability class rating as 3 or 4”. As observed above this appeal is misconceived. The Medical Assessor has provided a clear and concise basis for his expression of opinion in his application of the class. There was nothing glaringly improbable about the class assigned and this appeal was no more than an attempt seeking to substitute a lower number within the class with the basis for that being no more than the appellant’s difference of opinion on a subject about which reasonable minds may differ.
(h)    The Medical Assessor in reaching his opinion in November 2022 noted the claimant had not worked for 12 months prior to his examination and had failed at attempts to return to work. The appellant cherry-picked from statements to assert that there was a level of employability at some point in the previous 12 to 18 months but did not acknowledge the task the Medical Assessor was required to perform, that is, that task identified at guideline 1.6 of the Guidelines, being the clinical assessment as they present on the day of assessment.
(i)    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.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
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 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “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.

The Medical Assessment Certificate

Under “History relating to the injury” the Medical Assessor wrote:
“Ms Miao had a daughter to her second marriage, who was 12 years of age and living at a fulltime boarding school at the time of this assessment due to Ms Miao being unable to care for her daughter as a consequence of the deterioration of her Major depressive disorder with anxious distress during 2022.
…
Ms Miao was treated by her general practitioner and psychologist. She was assessed by a consultant psychiatrist. She could not afford further fees. She requested further sessions from her insurer to receive psychiatric treatment however she was declined this treatment. Ms Miao’s mental state declined as she was unable to afford admission to psychiatric hospital as an inpatient in relation to her primary psychological injury. Her treatment was managed by a general practitioner and psychologist. She continued to deteriorate, she attended a traditional Chinese practitioner and was placed on traditional treatment for her depression. She stated that she had been prescribed various antidepressant medications including Endep 10mg at night. Ms Miao attended a clinical psychologist and received cognitive behavioural therapy (CBT) and Mindfulness for treatment of her primary psychological injury.
Ms Miao had lost interest in her selfcare, nutrition, personal hygiene, and personal medical regime. She was reliant on her son as a support person to care for her each day. She felt shamed and humiliated by her ongoing depression and lost career. Her self-esteem and self-confidence had been lost and she felt like a burden to her son and having brought shame to her daughter for not being a good mother. Her daughter had left the home to live in boarding school with her daughter returning to her father’s home as Ms Miao was too depressed to attend to her 12-year daughter’s needs.”
Under “Present treatment” the Medical Assessor wrote:
“Ms Miao was treated by her local medical practitioner, clinical psychologist, and psychiatrist on one occasion. She had received evidence based psychological therapy with CBT, and Mindfulness. She had received evidenced based pharmacotherapy to assist with her depressive symptoms with Endep 10mg each morning. She had not been provided with outpatient or inpatient psychiatrist treatment. The insurer did not fund ongoing consultant psychiatric care. She had markedly deteriorated from the time of her last assessments about one year ago. She had not been treated with rTMS or ECT.”
On page 3 of the MAC under “Present symptoms”, the Medical Assessor wrote:
“…Ms Miao reported that she had failed to return to her primary substantive role with this employer. She reported she was unable to persist with her career. She reported she would not be able to return to the workplace in any role as she feared future unfair treatment by any employer.”
Under “Social activities/ADL” the Medical Assessor wrote:
“Ms Miao immigrated to Australia in 2001. Ms Miao married for a second time in 2002. She had a daughter to her second union. The relationship was dissolved in 2012. Her daughter’s father remained in contact with their daughter who is now aged 12 years and living in boarding school as a full-time boarder.
Ms Miao stated that her self-care and personal hygiene was poor. She reported her appetite was poor. Her 28-year-old son provided her with daily care and assistance. She stated that she would miss meals and would not shower unless asked by her son to attend to her selfcare and personal hygiene. She would not change her clothes for many days. She would not attend the local shopping centre as she was too anxious. She relied on her son to purchase and cook meals. She would not clean the house as her energy was poor and she lacked motivation. She had lost interest in washing her clothes. She had no interest in her deportment. She was not able to live independently at the time of this assessment.
Ms Miao reported she had stopped entertaining her friends at home. She had stopped teaching Chinese culture and dance to her local community. She had stopped attending her local Anglican Church. She reported that nothing provided her with joy or interest. She had abandoned walking as she becomes too anxious and agitated. She reported having panic attacks when outside her home. She was no longer interested in international movies from Vietnam or Japan. She no longer attended her daughter’s school events.
Ms Miao reported she was always anxious and agitated when she thought about leaving her home. She was able to leave the home alone to travel to medical services close by. She would travel when she expected there to be few people travelling or in the local area. She became anxious in crowded public spaces or on crowded public transport.
Ms Miao reported that her daughter had been placed in boarding school as Ms Miao was unable to care for her daughter. Ms Miao stated that her daughter prefers to spend time at her father’s house on weekend leave breaks. She stated she usually does not see her daughter during school holidays. Her daughter is now aged 12 years. Ms Miao stated that she did not believe she was ‘a good mother’ to her daughter since the onset of this primary psychological injury. Ms Miao reported that her relationship with her adult son now aged 28 years was also strained. Ms Miao reported that she would become irritable and anxious when she interacted with him. She stated she was a burden on him and that she was not ‘a good mother’. Ms Miao reported that she had lost contact with her friendship circle due to her loss of interest and inability to enjoy their company.
Ms Miao’s concentration, persistence and pace is moderately impaired. She had abandoned reading any text. She reported her concentration is impaired by intrusive distressing thoughts of being bullied and harassed by her employer. She would develop headaches and abandon reading after a few lines of text. She was unable to read the captions on her foreign films she had previously. Her concentration, persistence and pace were poor for all complex tasks. She required prompting in the assessment to remain on track and not become overwhelmed with depressive intrusive ruminations of hopelessness and worthlessness.
Ms Miao’s employability is totally impaired. She is unfit to return to her primary substantive role with this employer at any time in the future due to this work-related injury. She remained anxious, depressed and avoidant of all workplaces. She has failed her return-to-work plan to work in any lesser role prior to this assessment. She could not work at all due to this primary psychological injury. She had not worked in any capacity since leaving the workplace in November 2021.”

Under “Findings on Mental State Examination”, the Medical Assessor wrote:
“Ms Miao presented as a sullen woman with a depressed mood and prominent psychomotor slowing. She was initially seated in her bedroom in dark lighting. She was asked to turn on the room light for adequate lighting. She appeared slow in her movements as she complied with this simple request. Ms Miao was dressed in unwashed clothes and her hair was unwashed and uncombed. She appeared dishevelled. Her rate of speech was slow, and her volume of speech was soft. She required a longer time to organise herself and respond to questions. She had difficulty with her English words in reply to the questions in the assessment.
Ms Miao suffered from a flat affect. She described nothing providing her with pleasure or interest. She was tearful and became anxiously distressed when she spoke about not being able to be a ‘good mother’ to her daughter. She had depressive ruminations of hopelessness and worthlessness. Ms Miao’s concentration was poor. She required assistance to remain on task during the assessment. She felt she had lost her self-esteem. She felt she had lost her self-confidence. She felt shame for being a burden to her adult son. She was reliant on her son as her carer.
Ms Miao did not describe any delusional ideas or psychotic symptoms. She lacked self confidence and motivation to progress. She was insightful into her condition. Her judgment was fair. She had ruminations about suicide and not being a good mother. She reported upsetting, uncontrollable thoughts of death and dying. She had no plan to harm herself or others at the time of this assessment.”
Under “Summary of injuries and diagnoses” the Medical Assessor noted:
“In my medical opinion Ms Miao’s primary psychological injury was Major depressive disorder with anxious distress DSM5 Code 296.23. I note that Ms Miao was treated for this primary psychological injury by her general practitioner, psychologist and a psychiatrist on one occasion. I note that she was unable to afford the treatment from a psychiatrist and the application for psychiatric treatment was not granted by the insurer.
Ms Miao’s depressive disorder had failed to improve throughout 2022. The lack of consultant psychiatric treatment had resulted in Ms Miao developing a much worst Major depressive disorder with anxious distress than was documented by either
Dr Khan or Dr Kumar in their reports about one year ago.”
At 11 of the MAC under “Reasons for Assessment” the Medical Assessor noted:
“In my medical opinion Ms Miao suffers from Major depressive disorder with anxious distress DSM5 Code 296.23. In making that assessment I have taken account of the clinical interview and mental state examination I have performed whilst Ms Miao was in the assessment via videoconference, as well as the assessment using the Psychiatric Impairment Rating Scales.
Ms Miao was employed in a fulltime role with this employer as an Early Childhood educator. Prior to this employment she was employed in various other roles without psychological or physical impairment. Ms Miao had experienced a number of life events that had not caused her to suffer from any loss of her capacity to work.
Ms Miao at the time of this assessment was unfit to return to work in her primary substantive role with this employer or any other employer in the Australian jobs market. Her mental state had not recovered since the onset of this work-related injury on
4 November 2021 – deemed. The impairments sustained by her primary psychological injury had persisted, the consequences of this primary psychological injury had not terminated at the date of this assessment. She remained psychomotor slowed, anxiously distressed and depressed at the time of this assessment.
I note that Ms Miao had received evidence based pharmacotherapy for Major depressive disorder with anxious distress DSM5 Code 296.23. She had attended her psychologist and received CBT, and Mindfulness. These psychological treatments are evidence based treatments. Her primary psychological injury had been treated by a psychiatrist on one occasion. Further request for more treatment was denied by the insurer.
She had not been admitted as an inpatient of a psychiatric hospital for treatment of this primary psychological injury. There was no resolution in Ms Miao’s primary psychological injury that is now a permanent psychiatric impairment.
Ms Miao was permanently unfit to work in her primary substantive role she worked for this employer due to the severity of her primary psychological injury alone. She had failed to return to work in any lesser roles. Ms Miao’s Major depressive disorder with anxious distress DSM5 Code 296.23 had caused her to have a permanent primary psychological impairment in her capacity to work due to the severity of her assessable psychological and psychiatric symptoms alone. She continued to experience the consequences of this primary psychological injury at the time of this assessment.
Ms Miao had not been able to return to her primary substantive role with this employer. She was now totally impaired in her capacity to work in any employable role.”

Discussion

The appellant alleged error in respect of the assessment of the PIRS categories of employability.
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
Campbell J in Ferguson v State of New South Wales [2017] NSWSC 857, where his Honour in dealing with whether there was error in the application of the categories and classes of the PIRS identified the following as relevant:
(a)    Was the categorisation glaringly improbable?
(b)    Was the AMS unaware of significant factual matters?
(c)    Was there a clear misunderstanding by the AMS?
(d)    Was the AMS’s reason process unable to be made out?
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“66.   In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense …
70.    To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
71.    The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self care and hygiene, that is to say, a moderate impairment of self care and hygiene …”
In Jenkins v Ambulance Service of NSW [2015] NSWSC 633 Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
The Medical Assessor is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
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.

Employability

The appellant submitted that the MAC contained a demonstrable error and was infected by the application of incorrect criteria in respect of the assessment in the category of employability in the PIRS.
The appellant argued that factual and medical evidence was contrary to an assessment of Class “5” for Employability. Further, the Medical Assessor’s conclusion that Ms Miao was unable to obtain treatment was clearly wrong, there was no evidence from doctors or psychologists that hospital admission had been recommended or that Ms Miao needed to be treated with Electro Convulsive Therapy or Transcranial Magnetic Stimulation Therapy. The appellant submitted that there was no evidence of a deterioration of Ms Miao’s condition during 2022.
Guideline 1.6.a provides that:
“Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information …”
Guideline 11.6 relevantly provides:
“Medical reports, feedback from treating professionals and the results of standardised tests – including appropriate psychometric testing performed by a qualified clinical psychologist and work evaluations – may provide useful information to assist with the assessment.”
The examples under Table 11.6 for “employability” in the Guidelines are:
“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).
Class 4: Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5: Totally impaired: Cannot work at all.”
The Medical Assessor assessed Ms Miao as class 5 for employability. In the PIRS Rating Form, the Medical Assessor wrote:
“Employability- Class 5. Ms Miao’s employability is totally impaired. She is unfit to return to her primary substantive role with this employer at any time in the future due to this work related injury. She remained anxious, depressed and avoidant of all workplaces. She has failed her return-to- work plan to work in any lesser role prior to this assessment. She could not work at all due to this primary psychological injury. She had not worked in any capacity since leaving the workplace in November 2021.”
In her statement dated 18 March 2022 Ms Miao stated that during 2021:
“14. On 13 January 2021, I consulted with General Practitioner, Dr Ming Luo. I explained to her that despite commencing a new job in childcare, I was struggling substantially with maintaining my work duties. Specifically, I was incredibly tired as I was not sleeping at nights and therefore struggled to concentrate throughout the day. Furthermore, I told Dr Luo that I felt uneasy in a work environment as it brought back memories of the treatment, I was subject to at Uniting.
15. Throughout 2021, I continued to consult with Psychologist, Ming Lo Sze. I informed Ming that I was suffering from hypervigilance, negative self-thoughts, and anxiety. I struggled to leave my house and only went out when I had to pick up my daughter from school or do necessary grocery shopping. Thus, I no longer felt like the happy and independent person I used to be. Accordingly, Ming taught me relaxation and coping techniques and I continued to consult with Ming on a weekly basis. However, in or around December 2021 I stopped consulting with Ming as my insurance company had denied my claim and I could no longer afford the treatment.
16. During this time, I continued to work at Uniting Iluka Early Learning Bondi doing light duties. This consisted of me working 1 – 2 times a week and doing 8-hour shifts. I was able to manage my workplace duties as once the investigations into my workers compensation claim began my Supervisor, Sarah Daley and Co-Worker, Sabira Sultana left. Therefore, work was no longer a toxic environment for me, and I was able to enjoy looking after the children each day. Nevertheless, I found work incredibly tiring as I continued to overthink and worry about things and struggled to respond to stressful scenarios like I used to. However, I found that my new Manager, Charlotte Partridge became increasingly annoyed at my reduced capacity. Therefore, in December 2021 she told me that there were no more light duties available for me and I have been unable to find suitable work since.
….
17. In or around late 2021, I got in contact with a psychiatrist whose name I cannot recall. After having an initial teleconference with the psychiatrist I was unable to proceed with consultations as I could not afford the treatment.
…
21. Since my psychological injuries, I now get extremely anxious and nervous at the prospect of returning to a new workplace. This is because I would constantly be second guessing myself, unable to cope with stressful circumstances, and nervous of being reprimanded by my managers. Additionally, my concentration has also been impeded by my psychological injuries and I would struggle to keep focused on the job. Nevertheless, I would love to return to a caring role where I get to look after children in the future. But I know that at the moment I would be unable to cope with returning to my pre-injury duties.”
Dr Khan, in his report dated 4 March 2021, noted that Ms Miao had started to engage in a gradual return to work in the past four weeks with a current capacity of eight hours per day, two days per week. He reported that Ms Miao had a period of total incapacity to work from
17 July 2020 until about four weeks ago when she returned to work in a significantly reduced capacity at 16 hours per week. He considered that it remained uncertain whether she would be able to return to her pre-injury work capacity in the future.
Dr Khan, in his report dated 29 September 2021, assessed Ms Miao as Class “3” for Employability stating the reasons as:
“Ms Miao predominantly works up to 16 hours per week. Her current work duties require significantly less skills and responsibilities that [sic] previously. She is not included in the staff to children ratio and is merely present as a background support.”
Dr Khan noted that since early 2021 when Ms Miao returned to work in a significantly reduced capacity at 16 hours per week, her work capacity had fluctuated between 16 hours per week and 24 hours per week, although predominantly 16 hours per week. He noted that she had suffered a significant restriction in her earning capacity to date. He wrote: “Given the pervasiveness of Ms Miao’s symptoms of depression and anxiety as well as her cognitive difficulties, it remains uncertain as to whether she will be able to return to her pre-injury work capacity in the future”.
Dr Sze, in a report dated 14 March 2022, wrote:
“She has been seeing me under the Medicare Better Access to Mental Health Care initiative. She has attended a total of 30 consultations between August 2020 and November 2021 … She hasn’t returned to see me this year, so it is unclear about her current condition. My impression is that she never hesitated to seek help when she wasn’t coping. She sometimes would wait outside my consulting room to request me to see her urgently when she wasn’t coping and there wasn’t any nearest appointment available.”
Dr Zhao, general practitioner (GP), in a report dated 31 March 2022, wrote:
“She was initially approved for psychological sessions by the insurance and she had been seeing Ms Ming Lo Sze with good help. The case was rejected and closed and the [sic] she had to continue sessions under medicare-funded mental health plan. She was referred to see a psychiatrist in early 2021 but did not make it for some reasons.” “When I last saw her on 07/01/2022 … She was working 8 hours / day for 3 days / week. The assessment at that time was purely based on her physical capacity. From the psychological point of view, I would believe that she can work pre-injury duty as long as she can cope. She can work at previous place if she feels comfortable.”
Dr Zhao considered that Ms Miao was making good recovery so far and would improve further if she remained on treatment and had regular followups.
In his report dated 2 December 2021 Dr Kumar, although he considered that maximum medical improvement had not been reached, placed Ms Miao into Class “2” for Employability, stating that “Mild Impairment. She is able to work full time in a different environment”.
Dr Kumar also noted:
“In terms of risks, she said she had some thoughts of suicide last year. This, she said was when she went to work and had back problems and could not change nappies and that she was ‘forced’ to work.”
In the Medical Assessment Certificate dated 15 March 2022 in which permanent impairment of Ms Miao’s concurrent physical injury to her lumbar spine and right shoulder was assessed, Medical Assessor Mastrioanni noted: “She is not working. She says that light duties are no longer available at her place of employment”.
Ms Miao, in a statement dated 8 November 2021, made in relation to her concurrent physical injury claim said:
“23. On or about 13 January 2021, I returned to work doing short term on line training and overseeing policy materials.
24. In or around April to May 2021, I returned to work on a part time basis with restricted duties under my rehabilitation work plan. This was 8 hours per day 2 days per week, and I have continued this throughout 2021. Despite my return to work, I was working 'Not in ratio' meaning that I was not included in the carer to child ratio as I was limited in my capabilities at work. As such, I was performing light duties, as I was unable to lift anything heavy or use my arms for prolonged periods. I was unable to carry children, change nappies or help feed the babies, and my lighter duties consisted of playing with the children and supervising during group playtime.”
The appellant submitted that Ms Miao’s evidence as set out in paragraph 24 of her statement of 8 November 2021 confirmed that the return to work plan was not a failure. However, this statement was provided in relation to the concurrent physical injuries and did not address the psychological injury and any psychological problems experienced in that return to work. The appellant omitted to refer to the problems Ms Miao had upon her return to work. These psychological problems were described by Ms Miao in paragraph 16 her statement dated 18 March 2022 (see above at 42).
The appellant submitted that the Medical Assessor’s conclusion that Ms Miao was unable to obtain treatment was clearly wrong as there was no evidence from doctors or psychologists that hospital admission had been recommended or that Ms Miao needed to be treated with Electro Convulsive Therapy or Transcranial Magnetic Stimulation Therapy.
The Medical Assessor noted that Ms Miao was treated by her GP and psychologist and was assessed by a consultant psychiatrist but could not afford further fees. The Medical Assessor reported that Ms Miao requested further sessions from her insurer to receive psychiatric treatment but was declined this treatment. He wrote:
“Ms Miao’s mental state declined as she was unable to afford admission to psychiatric hospital as an inpatient in relation to her primary psychological injury. Her treatment was managed by a general practitioner and psychologist. She continued to deteriorate, she attended a traditional Chinese practitioner and was placed on traditional treatment for her depression. She stated that she had been prescribed various antidepressant medications including Endep 10mg at night. Ms Miao attended a clinical psychologist and received cognitive behavioural therapy (CBT) and Mindfulness for treatment of her primary psychological injury.”

Under “Present treatment” the Medical Assessor again noted that Ms Miao was treated by her local medical practitioner, a clinical psychologist, and a psychiatrist on one occasion. He reported that she had received evidence based psychological therapy with CBT, and Mindfulness and had received evidenced based pharmacotherapy to assist with her depressive symptoms with Endep 10mg each morning. The Medical Assessor wrote:
“She had not been provided with outpatient or inpatient psychiatrist treatment. The insurer did not fund ongoing consultant psychiatric care. She had markedly deteriorated from the time of her last assessments about one year ago. She had not been treated with rTMS or ECT … Ms Miao’s depressive disorder had failed to improve throughout 2022. The lack of consultant psychiatric treatment had resulted in Ms Miao developing a much worst Major depressive disorder with anxious distress than was documented by either Dr Khan or Dr Kumar in their reports about one year ago.”
The Medical Assessor did not state that Ms Miao required Electro Convulsive Therapy or Transcranial Magnetic Stimulation Therapy; he merely reported that she had not received such treatment.
The Medical Assessor did state that Ms Miao’s mental state had declined as she was unable to afford admission to psychiatric hospital as an inpatient in relation to her primary psychological injury and there had been a lack of treatment from a consultant psychiatrist. He noted that her treatment was managed by a GP and psychologist. While the Appeal Panel accepted that there was no evidence from doctors or psychologists that hospital admission had been recommended, the Medical Assessor clearly considered that there had been a deterioration in Ms Miao’s condition over the last year and the lack of consultant psychiatric treatment had resulted in Ms Miao developing a much worst major depressive disorder with anxious distress than was documented by either Dr Khan or Dr Kumar in their reports about one year ago.
The appellant submitted that there was no evidence of a deterioration of Ms Miao’s condition during 2022. However, the Appeal Panel noted that the most recent medical report was the MAC dated 15 March 2022, which only assessed the concurrent physical injuries. The most recent clinical entry from the GP Dr Luo was dated 13 January 2021 and although the report of the treating psychologist, Dr Sze, was dated 14 March 2022, Dr Sze had not seen Ms Miao since November 2021. The reports of Dr Khan were dated 29 September 2021 and the report of Dr Kumar was dated 2 December 2021. There was no evidence from the medical practitioners concerning Ms Miao’s condition in 2022 and it was appropriate and necessary for the Medical Assessor to assess whether there had been any deterioration over the last year. The Appeal Panel considered after taking into account the findings of the Medical Assessor on mental state examination that there was evidence of a deterioration in Ms Miao’s condition since late 2021.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of class 5 for employability. It was significant that on mental state examination, the Medical Assessor reported Ms Miao presented with prominent psychomotor slowing, appeared dishevelled, rate of speech was slow and she required a long time to organise herself and respond to questions. The Medical Assessor noted that Ms Miao’s concentration was poor and she required assistance to remain on task during the assessment. He also noted that she was reliant on her son as a carer. The Panel noted she presented as globally impaired, with significant impairment in all other PIRS categories. The Appeal Panel considered that the history obtained by the Medical Assessor and findings on examination were consistent with Class 5 rating 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 employability and the assessment in this class was not made on the basis of correct criteria. The categorisation of Class 5 for Employability 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 clear.
In conclusion, the Appeal Panel did not consider that there was a demonstrable error in the assessment of the Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 October 2022 by the Medical Assessor should be confirmed.

[2023] NSWPICMP 78

8 March 2023