Walter Carter Funerals Pty Ltd v Cameron

DETERMINATION OF APPEAL PANEL
CITATION:	Walter Carter Funerals Pty Ltd v Cameron [2023] NSWPICMP 185
APPELLANT:	Walter Carter Funerals Pty Ltd
RESPONDENT:	Jasmine Cameron
Appeal Panel
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	5 May 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury; worker who had suffered a slow improvement since a previous examination had reached maximum medical improvement; section 323 deduction; Medical Assessor was not required to calculate degree of permanent impairment before the injury; Marks v Secretary of Communities and Justice (No 2), Secretary and Department of Communities and Justice v Lewandowski discussed; one-tenth deduction was appropriate; psychiatric impairment rating scale (PIRS) table for employability; Jenkins v Ambulance Service of NSW and Ferguson v State of NSW discussed; Held – MA not required to agree with certificates of capacity; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 March 2023 Walter Carter Funerals Pty Ltd (WCF) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Prof Nicholas Glozier, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 21 February 2023.
WCF relies on the following grounds of appeal under s 327(3)(c) and (d) 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 was 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 grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Cameron was employed by WCF as a funeral consultant. She suffered a psychological injury in the course of her employment, which is deemed to have occurred on 22 January 2020.
The Medical Assessor prepared a MAC on 14 March 2022. He considered that Ms Cameron had not reached maximum medical improvement and that she would be unlikely to do so for another nine months.
The Medical Assessor assessed Ms Cameron again on 21 February 2023. He assessed 17% whole person impairment (WPI) under the Psychiatric Impairment Rating Scale (PIRS) and deducted one-tenth under s 323 of the 1998 Act, resulting in an assessment of 15% WPI.

PRELIMINARY REVIEW

We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Ms Cameron to undergo a further medical examination because the assessment made by the Medical Assessor did not disclose error and was open to him in the exercise of his clinical judgement.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC 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 we have considered them.
In summary and in submissions prepared by its solicitor, Mr Elder, WCF submitted that it was apparent from Ms Cameron’s supplementary statement that her condition has improved over time and also since the Medical Assessor’s first assessment. The improvement was in respect of her relationships and from the perspective of her being able to commence a Bachelor of Forensic Science course at the University of Technology. WCF said that because Ms Cameron’s condition was improving, the Medical Assessor applied incorrect criteria in determining that her condition had reached maximum medical improvement, contrary to paragraph 1.5 of the Guidelines.
WCF also submitted that the Medical Assessor did not apply the Guidelines or the legislation in making a one-tenth deduction for her pre-existing conditions, so that it was made on the basis of incorrect criteria. It submitted that the Medical Assessor should have taken all of the available evidence into account to calculate the degree of impairment which existed before the injury and deducted that from the assessed impairment. It said that the Medical Assessor had not set out why he determined that one-tenth was appropriate.
WCF submitted that the Medical Assessor was in error in assessing Ms Cameron in class 4 for employability because the following “needs to be satisfied”:
“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.”
WCF said that the certificates of capacity demonstrated that Ms Cameron could work more than one or two days at a time and that the fact that she is studying “ought to have alerted the Medical Assessor that to the fact that the requirements for a class 4 determination were not satisfied.” It noted that pace was not reduced on the Medical Assessor’s examination. WCF also said that the Medical Assessor made a demonstrable error in not considering evidence that he was bound to take into account, citing Minister for Aboriginal Affairs v Peko Wallsend Ltd[1] (Peko-Wallsend). WCF sought a re-examination.
[1] [1986] HCA 40; 162 CLR 259.
In reply and in submissions prepared by Mr Andrew Parker of counsel, Ms Cameron referred to Bojko v ICM Property Service Pty Ltd[2] (Bojko) and said the Medical Assessor’s reasons were not to be overzealously scrutinised by seeking to discern some inadequacy from the way they are expressed.
[2] [2009] NSWCA 175 at [36].
With respect to maximum medical improvement, Mr Parker said that the submission that the Medical Assessor erred because Ms Cameron had shown some improvement over time misconstrued both the test and the Medical Assessor’s findings. The fact that the Medical Assessor previously reached the conclusion that her condition could improve placed him in a unique position to assess whether her condition had stabilised and was unlikely to change substantially.
With respect to s 323 of the 1998 Act, Mr Parker said that the finding of any deduction was fortuitous for WCF because the evidence did not suggest that Ms Cameron had an active condition at the time of the assessment. He said it would have been capricious and arbitrary for the Medical Assessor to assign any particular level of WPI to her previous symptoms. He said that if there was a re-examination, no deduction should be made.
Mr Parker said that WCF’s argument with respect to employability should not be accepted because it was based on the premise that the PIRS categories are prescriptive. He said that the certificates of capacity were historical and could not trump the Medical Assessor’s findings on the day of the examination, that they were not given by a psychiatrist who was assessing WPI, that they are pieces of evidence not findings of fact and that they are based on the requirements in another part of the legislation. He said that pace is in a different category to employability in the PIRS.

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[3] the Court of Appeal held that an 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.
[3] [2006] NSWCA 284.
The Medical Assessor is an administrative decision maker and his reasons are to be considered in that light. In Bojko[4] Handley AJA (with whom the other members of the Court agreed) said that the worker had failed to establish his grounds of appeal because:
“Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’ "
[4] At [36].

Maximum medical improvement

The Medical Assessor’s summary of Ms Cameron’s injury and diagnosis is:
“Ms Cameron has a background of Attention Deficit Disorder but did not receive treatment until she first saw Dr Jacobs in 2018. She has had at least two episodes of prior mood disorder, most likely Major Depressive Episodes or potentially even episodes of PTSD (it is difficult to disentangle following the passage of time) following prior assaults of a fairly significant nature that required treatment, both psychological and psychotropic for months, if not years. However she appeared to have entered into a period of full remission from this recurrent disorder until it was aggravated by her experiences at WCF from 2018. She then decompensated into a further Major Depressive Episode with features significant enough to warrant the diagnosis of a Posttraumatic Stress Disorder. The mood features appear to have ameliorated somewhat although she still remains with intrusive memories, avoidance, some re-experiencing phenomena when triggered and both arousal and cognitive difficulties such that I am of the opinion she still continues to meet the criteria for a Posttraumatic Stress Disorder.”
The Medical Assessor had seen Ms Cameron and prepared a MAC dated 14 March 2022. At that time he said that her condition had not reached maximum medical improvement and:
“From her own description, several areas of her impairment have recently been improving and she has plans for addressing these yet further in the near-future. As such it is quite probable that her impairment will improve by more than 3% in the next 12 months or so.”
In 2023 the Medical Assessor said:
“Over 2022 and into 2023 Ms Cameron has continued on her slow upward trajectory. This is confirmed in her statement in the late documents and in Dr Jacobs’ report of 26 November 2022 where he notes that ‘her general level of psychological functioning has improved.’ He notes improvements in her ability to travel, attend face-to-face appointments, interactions with friends, her flatmate and in her activities of daily living and self-care. Both she and he comment on reduced symptoms of avoidance and dissociation, but still at times being triggered into panic attacks. Ms Cameron confirmed that she has been able to better understand the nature of her progress, it non-linear improvement without dramatic change, and that she feels she is making realistic improvements. As both of them note, she has been attending university with the help of the student assistance services and not taken on a full unit load. Over the Christmas holidays she has travelled to Tasmania to see her family and has been doing university work as part of her preparation for next term.”
The Medical Assessor set out Ms Cameron’s present symptoms:
“She continues to feel fragile but slowly improving. She continues not to be anhedonic and no longer has suicidal ideation. She has imposed more of a routine on herself, generally getting into bed before midnight and reading before she falls asleep. She requires a podcast as she cannot tolerate the silence. She more often than not wakes at the ‘witching hour’ of 2am with bad dreams, is aroused and jumpy, but generally can return to sleep if she can manage to get back immediately rather than ruminate. She wakes up around 6:30am, getting a low/normal sleep duration although during the holidays tends to doze in bed, getting up around 9am with some probable poor sleep efficiency when she has fewer demands. She feels overwhelmed at times with increased stressors and particularly if large numbers of people are around her, she can be aroused and even panicky. As a result she avoids shopping at certain times and describes her interactions in public places as ‘efficient,’ to minimise this arousal. She can experience intrusive recollections of her work-related experiences. She describes being future-focused and aiming to move on with her recovery.”
In the part of the MAC which contains a number of questions relevant to the evaluation of permanent impairment, the Medical Assessor said:
“Have all body parts/systems stabilised/reached maximum medical improvement?
Yes, her gain is so slow now that she is unlikely to improve by 3% or more in the next 12-18 months.
The Medical Assessor’s reference to “non-linear improvement without dramatic change” and the answer set out above shows that he was alert to the requirements of paragraph 1.15 of the Guidelines which provides:
“Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.”
Dr Bisht, qualified for WCF, considered as early as 11 October 2021, that Ms Cameron’s improvement had plateaued and that her condition had reached maximum medical improvement.
The Medical Assessor’s conclusion is consistent with that of her treating psychiatrist, Dr Jacobs in his report dated 26 November 2022. Dr Jacobs noted improvement since the examination by the Medical Assessor in March 2022 and said:
“Her general level of psychological functioning has improved. She has been able to attend most of our consultations with me face-to-face in the last two months compared with previous to that when a number of consultations were done by telehealth or were missed altogether. She has more interactions with friends and acquaintances, even though these are not many. She interacts with her good male (platonic) friend more frequently. Her interactions with her flat-mate have improved. Ms Cameron's activities of daily living (ADLs) have improved. She is able to shop better. She looks after her personal hygiene on a more frequent basis. There are no thoughts of self-harm. She is able to travel on public transport.
A major feature of Ms Cameron's PTSD was avoidance and dissociation. Those symptoms have reduced but there still have been occasions when her symptoms are triggered and she may have a panic attack. This doesn't disable her as before.
As a result of the improvements detailed above I am of the opinion that Ms Cameron has reached Maximum Medical Improvement.”
It was open to the Medical Assessor to determine in the circumstances that Ms Cameron had reached maximum medical improvement.

Section 323

The Medical Assessor recorded a detailed history:
“Aged 19 she had an assault. Although originally treated in the Emergency Department for a physical injury, she was admitted to the psychiatric ward for approximately a week and had ongoing sexual assault counselling and treatment with Fluoxetine for some time afterwards. In 2013 when she left an abusive relationship she again went onto antidepressants, including Zoloft, for a significant period of time and had periods of counselling though a Mental Health Care Plan on at least two occasions with various psychologists. She thought that this may have gone on for two or three years but that by the time she had established her relationship with Mark and had her spinal surgery, she was effectively asymptomatic beyond some of her cognitive difficulties due to her then-untreated ADHD. She acknowledged when I pointed out later documents that she had also been prescribed Ritalin many years ago but due to familial stigma had not continued with the medication. She was adamant that there had been periods of time when she ceased all treatment including from approximately 2016 to 2018. I note that Dr Jacobs suggests that she had been taking medication throughout 2018, according to his first report.”
The Medical Assessor set out his diagnosis:
“Ms Cameron has a background of Attention Deficit Disorder but did not receive treatment until she first saw Dr Jacobs in 2018. She has had at least two episodes of prior mood disorder, most likely Major Depressive Episodes or potentially even episodes of PTSD (it is difficult to disentangle following the passage of time) following prior assaults of a fairly significant nature that required treatment, both psychological and psychotropic for months, if not years. However she appeared to have entered into a period of full remission from this recurrent disorder until it was aggravated by her experiences at WCF from 2018. She then decompensated into a further Major Depressive Episode with features significant enough to warrant the diagnosis of a Posttraumatic Stress Disorder. The mood features appear to have ameliorated somewhat although she still remains with intrusive memories, avoidance, some re-experiencing phenomena when triggered and both arousal and cognitive difficulties such that I am of the opinion she still continues to meet the criteria for a Posttraumatic Stress Disorder.”
After noting that the s 323 deduction made by Dr Bisht who saw Ms Cameron at the request of WCF did not comply with the Guidelines, the Medical Assessor said:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
Attention Deficit Hyperactivity Disorder and recurrent Major Depressive Disorder. These symptoms that are similar to the symptoms she currently experiences and in the case of the ADHD, still has some functional impairment. The contribution of these pre-existing conditions to her current impairment are impossible to determine and so best dealt with under a Section 323 1/10th deduction as some of the symptoms are similar but the exact extent cannot be determined accurately and she was functioning well prior to the injury.
b. The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth.”
Ms Cameron said her first statement that she was first diagnosed with depression and anxiety in 2009 in relation to an assault. She said that she also had some treatment for depression and anxiety in about 2013 following an abusive relationship which she had recently left and which resulted in a significant spinal injury. She began working for WCF in 2016.

Ms Cameron’s treating psychiatrist is Dr Jacobs. He said in his report dated 20 September 2020 that he had first seen Ms Cameron on 9 July 2018 and that she was taking Zoloft. He said:
“Ms Cameron had also previously been on Ritalin for poor concentration but her mother saw it as a stigma and told her stop it. Probably as a result she struggled with her studies at school and was not able to finish her university studies. ... I tested her using The WHO recognized screening test for ADHD the ASRS V1.1 and she was positive for ADHD. I commenced her on Ritalin but later changed her to dexamfetamine sulphate. Both these medications are used to treat ADHD but they are also good adjuncts for depression.”
Section 323 provides:
“323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
…”
The Guidelines provide additional guidance to a medical examiner in paragraphs 1.27 and 1.28 which provide:
“1.27 The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.
1.28 In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.”
WCF said that the Medical Assessor did not apply those paragraphs. It said that the Medical Assessor was required to take into account all available evidence to calculate the degree of permanent impairment which existed before the injury and to deduct that from the assessed impairment. It said that the Medical Assessor did not indicate the evidence he relied on to say that the contribution was impossible to determine. Notably, WCF did not make submissions as to what the extent of the deduction should have been.
The methodology urged by WCF is practically the same as that in paragraph 11.10 of the Guidelines. In Marks v Secretary of Communities and Justice (No 2)[5] (Marks No 2), Simpson AJ held that paragraph 11.10 was inconsistent with s 323 and that the section was to be applied in the same way as for a physical injury.
[5] [2021] NSWSC 616.
The passage from Cole v Wenaline Pty Ltd[6] referring to the consideration of evidence which was quoted by WCF at [27] of its submissions omits important reasoning which came before it and an understanding of the context in which the decision was given. Schmidt J considered a case in which the medical members of an appeal panel found that a deduction under s 323 was mandated because surgery had been undertaken as a result of a previous injury some years before. Her Honour said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, It will always, ‘irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.[7]
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”[8]
[6] [2010] NSWSC 78.
[7] At [29]-[30].
[8] At [38].
The “assumption not provided for” to which Schmidt J referred was that a pre-existing condition must always give rise to a deduction. In describing the methodology for applying s 323, Her Honour specifically noted the exception in s 323(2) to the requirement that the actual contribution of the pre-existing condition to the impairment must be determined.
In the recent decision of Secretary, Department of Communities and Justice v Lewandowski[9] Griffiths AJ agreed with Simpson AJ’s decision in Marks No 2 and said that an approach such as that urged by WCF was “the wrong question”:
“Thirdly, I consider that the Panel fell into jurisdictional error because, instead of acting consistently with the approach identified in Cole and Elcheikh, the Panel failed to determine what proportion of Ms Lewandowski’s pre-existing PTSD condition contributed to her impairment. The Panel erred by asking itself the wrong question (see Craig v South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58). Alternatively the error can be expressed as the Panel applying the wrong legal test (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [41]). This is evident from [63] of its reasons where, after determining that the PTSD caused by the restaurant experience as ‘a minor or background causative factor’, the Panel then turned its attention to whether Ms Lewandowski’s pre-existing impairment could be measured in accordance with the PIRS. The Panel focused its attention not on the proportion of Ms Lewandowski’s impairment which was due to her PTSD, but rather on whether the impairment produced by the PTSD could itself be measured. This was the wrong legal test, which flowed from the Panel asking itself the wrong question. This constitutes jurisdictional error.
It is evident from [62] and [63] that the Panel was conscious of the need to address whether the pre-existing PTSD condition contributed to her impairment but instead of analysing the available medical evidence relating to the issue of contribution, the Panel was distracted from the relevant legal task by its consideration of whether Ms Lewandowski’s pre-existing impairment could be measured according to the PIRS.”
[9] [2023] NSWSC 334 at [54]-[55]
The Medical Assessor clearly said that he had considered Ms Cameron’s statement and Dr Jacobs’ reports. There is no other evidence on which he could have based his assessment of her pre-existing condition. The Medical Assessor noted inconsistencies between the history Ms Cameron provided about having not taken medication for a period with Dr Jacobs’ report and said that he discussed those inconsistencies with her. He observed the difficulty resulting from the passage of time in diagnosing the past diagnoses. That indicates that the Medical Assessor carefully considered the impact of the pre-existing conditions and challenged Ms Cameron’s account when he considered it necessary in order to determine the appropriate deduction.
We agree that the precise extent of the impact of Ms Cameron’s pre-existing conditions is not possible to determine. Ms Cameron had not been treated for ADHD with before she started seeing Dr Jacobs in 2018. She was being treated for that condition at the same time as she experienced the events which gave rise to the injury.
The Medical Assessor was required to exercise his clinical judgement. In El Masri v Woolworths Ltd[10], Campbell J said:
“…, the process is one of expert evaluation. Often when judgment of any type is called for, there will be a gap between expression of reasons and articulation of decision which cannot itself be fully articulated. That gap constitutes what might be called judgment. ... Basically, the statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. Applying that standard, it is clear what was decided and why, as is the reasoning process that led to the decision, …”
[10] [2014] NSWSC 1344 at [50].
The Medical Assessor applied the exception in s 323(2) and clearly set out the path of his reasoning that the one-tenth deduction was appropriate, noting that the similarity of the symptoms between the previous and current conditions and that she was functioning well before the injury.

Employability

The Medical Assessor was required to assess Ms Cameron on the day of his examination[11] and express his own opinion.
[11] Guidelines paragraph 1.6.
WCF’s reference to the “requirements” for assessment in class 4 not “being satisfied” reveals a misunderstanding of the principle that the important part of the description of each class in the PIRS is the level of impairment – e.g. no deficit, severe impairment. Rather than providing criteria for assessment, what follows in each class are examples of limitations on activities which are consistent with the level of impairment. In Jenkins v Ambulance Service of NSW[12] Garling J said:
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[12] [2015] NSWSC 633 at [65].
Campbell J considered the categorisation of impairment in Ferguson v State of New South Wales[13] and said:
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’…”
[13] [2017] NSWSC 887 at [24]-[25].
The Medical Assessor assessed Ms Cameron in class 4 corresponding to a severe impairment and said:
“With her day to day ability to focus and undertake computer based work she could be employable for a few hours a week in the current environment where many roles can be undertaken at home and/or virtually.”
He said:
“She has completed one semester of a forensic science degree doing a three quarter academic load. She managed to achieve a distinction, credit and pass, but says that there were several times when she required extensions and used the assistance services considerably with them although enjoyed aspects of her course, particularly the practical exams which she was able to describe in detail and with positive affect. She attends university several times a week and over the summer holidays has been engaged in learning for next term although is still doubtful that she will be able to function with a full load, finding this draining.”
When describing the mental state examination the Medical Assessor said:
“Ms Cameron … managed the initial problems that I had with the Teams without being flustered although there was some slight anxiety in the assessment and she expressed concern about the outcome. She does not describe a pervasive low mood nor anhedonia, although reports being fragile with some reduced enjoyment, negative cognitions, disturbed sleep, ongoing intrusive recollections, hyperarousal, hyperstartle and some avoidance, all of which have ameliorated over the past few years with ongoing treatment. She was able to focus well within the assessment and showed no difficulties with the pace and persisting with this assessment. Her speech was often quite circumstantial initially but when pushed could readily provide details and she focused well throughout.”
The Medical Assessor’s reference to pace in that context does not, of itself, mean that his assessment of employability can be challenged. Pace on mental state examination is assessed under a different table of the PIRS and conduct must be assigned to the appropriate scale – Ballas v Department of Education[14].
[14] [2020] NSWCA 86 at [93]-[94].
The certificates of capacity are the opinion of the practitioner providing them at the date they were given. Contrary to WCF’s submissions, they were not evidence which the Medical Assessor was bound to take into account nor were they relevant considerations in the sense described by Mason J in Peko-Wallsend[15].
[15] [1986] HCA 40 at [15].
The purpose of certificates of capacity is to assist an insurer in determining the appropriate amount of weekly compensation. The certificates in the file relate to the period from 30 August 2022 to 21 December 2022, which roughly corresponds with the period when Ms Cameron commenced her university course. They were prepared after two injury management consultations, a process undertaken when an insurer is investigating capacity. In report prepared on 8 June 2022, Dr Bennett said:
“Ms Cameron is keen to pursue a career in criminology, and hopes to attend university for a forensic science qualification, but accepts she will likely have to do some bridging courses at TAFE. She has started discussing this with a student liaison group, but hasn't made any further concrete steps.
I mentioned the possibility of volunteer work as a stepping stone, and she seemed very keen, and had looked into transcribing life stories for the elderly. She felt that she could likely work online 5 hours per day, 5 days per week doing this, or face to face for 4 hours per day for 1 to 2 days per week. When I asked about her studying capacity, she agreed that the same capacity would be suitable, but there isn't any capacity to work.
And
“I had a conversation with her psychiatrist, and nominated treating doctor, Dr Jacobs. He described fluctuation in her symptoms, but gradual improvement over the last two years, however he doesn't support a return to her previous role.
…
We discussed the potential route for a career in criminology, he felt that currently she could do a trial of 5 hours per day, 3 days a week either volunteering or studying, but that none would be currently face to face, and she had no capacity to work. If the volunteering was successful then her hours could be increased and a vocational assessment organised.”
After than conversation, Dr Jacobs provided certificates which said that Ms Cameron had capacity for some kind of work for five hours on three days per week. He did not say what work she would be fit for but said that she was “overaroused still and traumatised, still needs psychotherapy.”
Ms Cameron has commenced studying, undertaking less than a full load and she said in her statements dated 9 January 2023 that she attended classes for two to three days each week for a few hours each day and:
“I have engaged with the Student Assistance Services at UTS to assist me manage my psychological symptoms and study load, as I have difficulty completing tasks in the expected timeframes. I have required the assistance of the Student Services Unit on a number of occasions during the semester.
I have had a panic attack at UTS, and have also had to get the Student Assistance Services team to help me get extensions on projects. The stress of assessments and timetable does cause me a lot of anxiety and I have been working with Dr Jacobs to manage this.”
Ms Cameron provided documents evidencing the need for assistance on two occasions in late 2022.
While another assessor may have assessed Ms Cameron differently, the assessment is one on which reasonable minds may differ. It cannot be said that the assessment was not open to the Medical Assessor in the exercise of his clinical judgement and he provided appropriate reasons.
For these reasons, we have determined that the MAC issued on 21 February 2023 should be confirmed.

[2023] NSWPICMP 185

5 May 2023