Whitbread v Allambi Care Ltd
[2025] NSWPICMP 515
•16 June 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Whitbread v Allambi Care Ltd [2025] NSWPICMP 515 |
| APPELLANT: | Joseph Michael Whitbread |
| RESPONDENT: | Allambi Care Limited |
| APPEAL PANEL | |
| MEMBER: | John Isaksen |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | John Lam-Po-Tang |
| DATE OF DECISION: | 16 June 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal from assessment of whole person impairment (WPI) for psychological injury; worker challenges assessment of the psychiatric impairment rating scale (PIRS) for social functioning; consideration of Ferguson v State of New South Wales; Held – no demonstrable error or application of incorrect criteria found in assessment of social functioning; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 May 2025 Joseph Michael Whitbread (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Canaris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 May 2025.
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).
RELEVANT FACTUAL BACKGROUND
The appellant sustained a psychological injury in the course of his employment as a youth worker and then a residential officer with the respondent, Allambi Care Limited. The appellant was subjected to many assaults and much abuse from difficult clients whom he was required to care for over five and a half years of employment with the respondent
The deemed date of injury is 2 June 2021, which is when the appellant ceased work due to the development of anxiety and panic when he learned that a very difficult client who had previously assaulted him was returning to where the appellant worked.
The appellant made a claim made a claim for a lump sum payment for 26% whole person impairment (WPI) based upon an assessment made by Dr Allan, consultant psychiatrist, in a report dated 17 September 2024.
As part of that assessment of 26% WPI, Dr Allan considered that the appellant reached class 4 for social functioning in the Psychiatric Impairment Rating Scale (PIRS). Dr Allan wrote:
“He has lost friends. He has become isolated and avoidant and he has no ability to start any new relationships given his severity of his difficulties.”
Dr Cassimatis, consultant psychiatrist, provided reports at the request of the respondent dated 6 February 2024 and 11 February 2025. The latter report was in response to the applicant’s claim for lump sum compensation. Dr Cassimatis assessed the appellant as having 17% WPI. He considered that the appellant should be in placed in class 2 for social functioning, and wrote:
“Strained relationship with family. Lives alone in small room.”
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient material to determine the issues which were the subject of the appeal.
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.
The Medical Assessor examined the appellant by video on 22 April 2025. The appellant was in the bedroom of his home for the examination. The Medical Assessor found the appellant’s demeanour to be depleted with an anxious undertone.
The Medical Assessor records that the appellant consumes 8 to 14 standard drinks each night and “sometimes more”. He records that the appellant experiences sadness and fear “like you’ve got a weighted vest all the time”, and that the appellant said: “no one likes me, and I don’t like anyone”.
The Medical Assessor records that the appellant lives with his parents and his sister, her husband, and their two children. He records that the appellant doubts if he would look after himself if he lived on his own.
The Medical Assessor diagnoses the appellant as having persistent depressive disorder (dysthymia) with a persisting major depressive episode and anxious distress. He also finds evidence of a comorbid substance use disorder (predominantly alcohol).
The Medical Assessor makes the following assessments under the PIRS:
Self care and personal hygiene moderate impairment Class 3
Social and recreational activities moderate impairment Class 3
Travel mild impairment Class 2
Social functioning mild impairment Class 2
Concentration, persistence and pace moderate impairment Class 3
Employability totally impaired Class 5
The only PIRS category which is challenged by the appellant is the category of social functioning. The reasons for the decision by the Medical Assessor to place the appellant in class 2 for social functioning are as follows:
“His relationship with his family is ‘not great - I haven’t been the best person to talk to – they’re kind of walking on eggshells - I know they’re doing their best but hears been this kind of wedge’. He had no partner at the time he became unwell. However, he had a lot of friends and now has none (‘Long story short, all my relationships break down’). He will not see himself embarking on a relationship in his current state (‘I didn’t exactly like myself - I can’t see anyone else doing that’).
Comment: Despite the loss of friendships, his fundamental relationships, i.e., with his family are intact.”
The Medical Assessor assesses the appellant as having 22% WPI, but he then makes a one-tenth deduction for pre-existing impairment, which results in a final impairment of 20% WPI.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant submits that he is unable to care for himself, let alone any dependents. He submits that he is unable to perform any long-term lasting relationships as a consequence of his psychological injury. His pre-existing relationships with his family are strained, and all close friendships have ended.
The appellant submits that therefore he ought to have been given at least a class 3, and probably a class 4, for the PIRS category of social functioning.
The respondent submits that the MAC was not made on the basis of incorrect criteria, and nor does it contain a demonstrable error, in the assessment of class 2 for social functioning. It is an appropriate assessment made by the Medical Assessor based upon the examination of the appellant, the history recorded, the review of the evidence, and his extensive clinical judgment and experience.
The respondent refers to the observations of Garling J in Jenkins v Ambulance Services of NSW [2015] NSWSC 663 (Jenkins) at [73] in regard to the different PIRS category of employability:
“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 respondent also refers to Ferguson v State of New South Wales [2017] NSWSC 887 (Ferguson) wherein Campbell J identified the following factors to be considered in determining if there is an error in the application of a class in the PIRS categories:
(a) was the selected category glaringly improbable;
(b) was the Medical Assessor unaware of significant factual matters;
(c) was there a clear misunderstanding made by the Medical Assessor, or
(d) was there an unsupportable reasoning process undertaken by the Medical Assessor.
The respondent submits that none of those elements have been made out by the appellant and therefore a demonstrable error has not been established.
The respondent also submits that the assessment of class 2 for social functioning by the Medical Assessor is consistent with the same assessment made by Dr Cassimatis.
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.
As already noted, the only PIRS category which is challenged by the appellant is the category of social functioning.
The Medical Assessor places the appellant in class 2 for social functioning, which is set out in the Guidelines as follows:
“Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
The appellant contends that he ought to have been given at least a class 3, and probably a class 4, for the PIRS category of social functioning. Class 3 in the Guidelines for social functioning is as follows:
“Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
Class 4 in the Guidelines for social functioning is as follows:
“Severe impairment: unable to form or sustain long-term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependents (eg own children, elderly parent).”
The details recorded by Dr Allan, Dr Cassimatis and the Medical Assessor reveal the appellant to be socially isolated. The Medical Assessor records that the appellant does not go out anywhere socially, and the only times he does socialise is to go on “a drug bender”.
The Medical Assessor records that the appellant no longer has any friends and that the appellant told the Medical Assessor: “Long story short, all my relationships break down”. The Medical Assessor also records that the appellant’s relationship with his family, some of whom he lives with, is “not great” and “they’re kind of walking on eggshells”.
All of these details would suggest that there has been significant strain upon the appellant’s previously established relationships.
Nonetheless, it is apparent from the details obtained by the Medical Assessor that the appellant lives in a supportive environment with some of his family, and that he engages with them on a day to day basis. The Medical Assessor records that the appellant’s family “gets on his case” to ensure that the appellant does eat and maintain a reasonable level of good hygiene. The Medical Assessor concludes that the appellant’s fundamental relationship with his family remains intact.
There are also specific activities and events which the appellant has undertaken which indicate that he has retained a reasonable level of social functioning. Dr Cassimatis records in February 2025 that the appellant had recently gone on holidays for three and a half weeks to the Netherlands with his parents to visit his brother. Dr Cassimatis records that the appellant hated the trip, but he nonetheless completed the holiday. The Appeal Panel concludes that a holiday with a family group suggests that these relationships are intact and supportive.
Although it is now almost 10 months since Dr Allan provided his report, it is recorded that the appellant plays golf with his cousin’s partner. The reason that the appellant gives for missing this activity on numerous occasions is due to lack of motivation. It is not recorded that it is because of a strained relationship that the appellant has with his cousin’s partner.
Dr Allan also records that the appellant had played soccer during the recent season, which is a sport which requires interaction between team members. Dr Allan records that the appellant also missed matches on numerous occasions, but that this was also due to lack of motivation.
While there is evidence of there being a strain upon the appellant’s previously established relationships, there is no evidence of those relationships becoming so severely strained that there have been any episodes of domestic violence.
There is also no evidence of the appellant being separated for any periods of time from those members of his family whom he lives with. As already observed, the available material indicates that those members of his family have been and remain supportive of the appellant.
Having undertaken a review of the available evidence, the Appeal Panel does not consider that the appellant’s social functioning is so severely strained that class 3 should be the appropriate class for that PIRS category, especially when there has been no evidence of periods of separation from those members of the appellant’s family whom he lives with or any episodes of domestic violence.
The Appeal Panel does not consider that the appellant’s level of social functioning is so severe that would warrant the allocation of class 4, which is a submission made by the appellant, because the appellant has been able to sustain long term relationships with members of his family.
The Appeal Panel considers that class 2 for social functioning remains the appropriate class for social functioning because although existing relationships have been strained, the appellant has still maintained a reasonable level of social functioning, especially with members of his family. This is well summarised by the Medical Assessor’s conclusion that the appellant’s “fundamental relationships, ie, with his family remain intact”.
The allocation of class 2 for social functioning by the Medical Assessor is not glaringly improbable and is supported by the reasoning process of the Medical Assessor (Ferguson) having regard to the details which the Appeal Panel has referred to in this decision.
There is therefore no demonstrable error contained in the MAC and the assessment by the Medical Assessor has not been made on the basis of incorrect criteria.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 May 2025 should be confirmed.
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