DETERMINATION OF APPEAL PANEL	
	
CITATION:	Haslegrave v St Marys Town Centre Ltd [2024] NSWPICMP 522	
		
APPELLANT:	Nicola Haslegrave	
		
RESPONDENT:	St Marys Town Centre Ltd	
		
Appeal Panel		
		
MEMBER:	Rachel Homan	
		
MEDICAL ASSESSOR:	Graham Blom	
		
MEDICAL ASSESSOR:	Michael Hong	
		
DATE OF DECISION:	30 July 2024	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether demonstrable error by Medical Assessor (MA)  in assessing Class 2 in the psychiatric impairment rating scale (PIRS) for  self-care and personal hygiene, and concentration, persistence and pace; considered change and stabilisation of medication regime in the period since the assessment by the appellant’s expert; whether relevant considerations taken into account; Held – Medical Appeal Panel not satisfied that Medical Assessment Certificate (MAC) affected by demonstrable error; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 13 May 2024, Nicola Haslegrave (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Timothy Berry, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 15 April 2024.
2.	The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act): 
•	the MAC contains a demonstrable error.
3.	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 of appeal on which the appeal is made. 
4.	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.
5.	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
6.	The appellant was employed by St Marys Town Centre Ltd (the respondent) as a town centre manager. The appellant claimed to have suffered a psychological injury as a result of the nature and conditions of her employment between March and November 2022.
7.	The appellant made a claim for compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) on 11 September 2023. The appellant relied on an assessment of 22% whole person impairment (WPI) made by consultant psychiatrist, Dr David Kumagaya on 31 August 2023.
8.	On 29 January 2024, the respondent declined the claim, relying on an opinion expressed by Dr John Honey in a report dated 1 December 2023, that the appellant’s condition had not yet reached maximum medical improvement.
9.	The appellant commenced proceedings in the Personal Injury Commission (Commission) by lodgement of an Application to Resolve a Dispute on 28 February 2024. There being no liability dispute, the matter was referred to a Medical Assessor on 22 March 2024.
10.	The Medical Assessor examined the applicant on 5 April 2024 before issuing his MAC on 15 April 2024.
11.	The Medical Assessor found the appellant had reached maximum medical improvement. The Medical Assessor agreed with the assessment conducted by Dr Kumagaya with two exceptions, finding that a Class 2 was more appropriate than a Class 3 in the Psychiatric Impairment Rating Scale (PIRS) scales of “Self-care and Personal Hygiene” and “Concentration, Persistence and Pace”. These determinations led to an assessment of 10% WPI.
PRELIMINARY REVIEW
12.	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.
13.	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 the Appeal Panel found no demonstrable error in the MAC.
EVIDENCE
Documentary evidence
14.	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
15.	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. 
16.	The Medical Assessor took a history of the injury that was broadly consistent with the other evidence. The appellant’s primary symptoms at the time she lodged her claim were noted to include low mood, decreased enjoyment in activities and poor sleep. She felt anxious, on edge and had episodes where she felt a lump in her throat and her mouth was dry. The applicant felt dizzy and restless and withdrew from people, feeling exhausted.
17.	The appellant saw a psychologist for a short period in December 2022 but was referred to a new psychologist in April 2023 whom she continued to consult. The appellant was referred to a psychiatrist and commenced on medication in July 2023.
18.	The appellant had not worked since 15 November 2022.
19.	After some initial trials, the appellant’s medications had stabilised and her current regime included sertraline, mirtazapine and lorazepam. The Medical Assessor noted,
“She was reluctant to trial new medication after her trial of duloxetine (which felt like being hit with a shovel) but she has found her current regime helpful at reducing some symptoms and improving sleep.”
20.	The appellant reported that she found the input from her psychologist and psychiatrist helpful and she had developed strategies to manage anxiety.
21.	The Medical Assessor recorded the appellant’s present symptoms. With regard to the appellant’s activities of daily living, the Medical Assessor recorded,
“In terms of current activities of daily living, Ms Haslegrave has reduced self-care. She has stopped her previous skin care routine. She tries to shower at least every other day. She brushes her teeth daily. 
On good days she can cook basic meals pasta or a dish using her air fryer. She tries to cook two to three nights per week. She is able to go to the supermarket but goes in the evening when it is less busy. It can make her feel anxious. She feels like people are staring at her. 
She struggles with household chores. She will put on washing and then forget about it for a few days. She asked for support around the home but this was declined so she pays for a cleaner to come every two to three weeks to help with chores like cleaning the floors. 
She can drive but does not do so frequently and does not drive beyond her local area. She takes care if she has used lorazepam the previously evening. She has not been on trips beyond her local area since her injury. 
She avoids anywhere with crowds. She has avoided going to restaurants and cafes in the last 18 months. She can collect takeaway from such places. She can go to her sister’s house and spend time with her nieces/nephews. 
Her relationship with her husband has deteriorated. He has struggled through this whole process. They are no longer intimate. She feels anxious when he is in her personal space. She would prefer to be alone.
 Many of her family live overseas. She speaks to them on Sundays. She sees friends ‘here and there’ but most contact is via telephone. Most of her friends live at least an hour away. Mrs Haslegrave’s best friend has visited her at her home on a few occasions. She has not been to visit any friends. 
She goes to check on her horses daily. She will check them for injuries and give them some food. She rides once per fortnight which is much less than she used to. She finds it relaxing to spend time with her horses. When at home, she spends most time on her phone or watching television.”
22.	On examination, the Medical Assessor found the appellant was easily engaged in the review and calm and appropriate throughout. Her speech was fluent and spontaneous. There was mild psychomotor slowing, and no agitation. The appellant’s focus and pace throughout the review were largely normal. Her affect was restricted and she had low mood. There was no formal thought disorder.
23.	The Medical Assessor found that the most appropriate diagnosis was a major depressive disorder. The appellant also had significant symptoms of anxiety and, as such, the Medical Assessor added a specifier for anxious distress. The Medical Assessor observed:
“Her current symptoms include anxiety and ruminations; low mood and motivation; diminished interest in activities; significant weight gain; fatigue; poor sleep; and diminished concentration. Since she stopped work, she has engaged in treatment and this has led to some improvement in symptoms which has in turn allowed some improvement in functioning. She continues to do much less than before and still feels low and anxious. In my view, her condition has stabilised and she has now reached maximum medical improvement.”
24.	The Medical Assessor referred to the opinions from Dr Kumagaya and Dr Honey, as well as reports from the appellant’s treating psychologist and general practitioner.
25.	The Medical Assessor explained the differences between his assessment and that made by Dr Kumagaya in relation to the PIRS scales as follows:
“Self-care and personal hygiene 
Class 3. I am of the view that Ms Haslegrave could live independently if required and self-care is adequate if not optimal. I think a class 2 is more appropriate.
…
Concentration, persistence and pace 
Class 3. Ms Haslegrave reports a reduction in concentration such as forgetting laundry. However, her concentration throughout the assessment was largely normal. In my view, a class 2 is more appropriate.”
26.	In the PIRS rating form, the Medical Assessor gave the following reasons for finding a Class 2 impairment in the scale of Self-care and Personal Hygiene:
“Mild impairment. Self-care is reduced and she has employed a cleaner to help around the home. However, I am of the view she could live independently. Self-care is adequate and she can cook basic things and attends the supermarket.”
27.	In the scale of Concentration, Persistence and Pace, the Medical Assessor gave the following reasons for finding a Class 2 impairment:
“Mild impairment. Ms Haslegrave reports reduced concentration. Her concentration throughout the assessment which lasted over an hour was broadly normal.”
SUBMISSIONS 
28.	Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel. 
29.	In summary, the appellant submits that the MAC contains two demonstrable errors being:
(a)	the finding that there was a Class 2 in the PIRS scale, “Self-care and Personal Hygiene”, when Class 3 was a better fit, and 
(b)	the finding that there was a Class 2 in the PIRS scale, “Concentration, Persistence and Pace”, when a Class 3 would have been a better fit.
30.	In relation to the first alleged error, the appellant submitted that the Medical Assessor proceeded on the understanding that the appellant could live independently. All of the evidence was that the appellant required and was in fact receiving assistance to perform her daily tasks of living. The appellant employed a cleaner to help her. The role of her husband in helping her cope with everyday life, particularly in regard to grooming and eating, as described in Dr Kumagaya’s report was not addressed. If this evidence had been considered, the Class 3 found by Dr Kumagaya would have been found to be the best fit.
31.	There was no evidence of any improvement in the appellant’s condition since Dr Kumagaya’s assessment.
32.	In relation to the second alleged error, the Medical Assessor proceeded on the basis that the appellant’s concentration throughout the assessment, which lasted over an hour, was broadly normal. The appellant alleged that the Medical Assessor misunderstood the difference between the effort required to answer questions on an assessment on a set topic over an hour and the type of concentration and persistence required to be assessed. Dr Kumagaya found that the appellant could not concentrate for over five minutes, was unable to read for any long period of time and was unable to do any cognitively difficult tasks. Nowhere in the MAC was this evidence addressed.
33.	If this evidence had been considered, the Class 3 found by Dr Kumagaya would have been found to be the best fit.
34.	The respondent asserted that there was no demonstrable error in the MAC. The respondent asserted that the Medical Assessor took an appropriate history and noted that medication had helped the appellant with her functioning. The Medical Assessor reviewed Dr Kumagaya’s report and his assessments. 
35.	The Medical Assessor acknowledged that the appellant had hired a cleaner and received assistance from family before concluding that she could live independently.
36.	The assessment of Concentration, Persistence and Pace took into account the appellant’s reported difficulties in concentration. 
37.	The MAC had to be read as a whole.
38.	The Medical Assessor made explicit findings, giving reasons, as to why he felt Class 2 was more appropriate with direct reference to the history taken from the appellant.
39.	The respondent referred to the authorities in Campbelltown City v Vegan (2006) 67 NSWLR 372, Marina Pitsonis v Registrar Workers Compensation Commission & Anor [2008] NSW CA 88 and Glenn William Parker v Select Civil Pty Limited [2018] NSWSC 140. 
40.	The respondent submitted that the Medical Assessor’s reasons need not be extensive or provide detailed explanation. There had to be more than a difference of clinical opinion or judgement on a subject about which reasonable minds might differ in order to establish error. The appellant’s submissions sought to cavil with a matter of clinical judgement. 
FINDINGS AND REASONS 
41.	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. 
42.	The Appeal Panel notes that although the delegate’s decision in this case referred to two grounds of appeal, being application of incorrect criteria and demonstrable error, the appeal documents only identified one ground of appeal, being demonstrable error. The Appeal Panel has confined its consideration to that ground.
43.	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.
44.	In Tasevski v Westpac Banking Corporation [2024] NSWSC 41, Schmidt AJ, referring to the High Court decision in Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324, commented on the meaning of the term, “demonstrable error”: 
“Gleeson JA explained that ‘demonstrable error’, a term which is not defined, is intended to convey the degree of strictness of scrutiny to which the disputed assessment may be subjected. As such, a finding of ‘error alone is not sufficient’. The error must be ‘material’ and apparent in the certificate, although there is no limit on the material to which the Panel may have regard when assessing whether the certificate ‘contains’ a demonstrable error: at [77]-[78].
An error is also not demonstrable merely because the Panel disagrees with the assessor’s opinion: at [87]. An error for which there is no information or material to support the finding made, rather than a difference of opinion, will establish a demonstrable error.”
45.	Relevantly to this appeal, Schmidt AJ noted the decision in Ballas v Department of Education (State of NSW) [2020] NSWCA 86 and commented:
“It follows that on an appeal where the grounds advanced are application of the wrong criteria or making a demonstrable error in the conclusions reached about the severity of the impairment, the Panel has to consider the assessor’s conclusion about the correct class of any disputed scale, by confining itself to the conduct relevant to that scale and the requirements of the Guidelines.
Even if the Panel identifies that the evidence raised matters about which reasonable minds might differ, it cannot resolve what is in issue about a disputed scale by an observation that what arose to be considered concerned matters about which reasonable minds might differ. Nor can it do so by a finding that the conclusion the assessor reached was ‘open’.
It must rather consider and determine whether the assessor applied the incorrect criteria in arriving at his or her conclusion. Or whether there was a demonstrable error in the conclusion reached about that class assignment. For example, by impermissibly taking into account conduct not relevant to the scale, or by arriving at the incorrect conclusion about the class into which that scale fell into, given the conduct which arose to be considered in light of the requirement to take into account cultural background, age, sex and cultural norms.”
46.	The Appeal Panel has reviewed the history recorded by the Medical Assessor, his findings on examination, the evidence before him and the reasons for his conclusions.
47.	It is apparent from the MAC that the Medical Assessor was aware the appellant was a 
37-year-old, married woman with no children and was originally from the United Kingdom.
48.	The appellant had provided a written statement on 22 February 2024. In relation to self-care, the appellant stated:
“Prior to my injury my routine consisted of waking up at 7:00am, having breakfast, showering multiple times a day and performing skincare routines. Typically when I came home from work, at approximately 6:30pm, I would take my dogs for a walk, prepare dinner, feed my horses, and continue working, before going to sleep at approximately 11:00pm.
Since my injury my current self-care and personal hygiene routine has deteriorated significantly. I wake up between 10 – 11 AM and do not tend to have breakfast every day. I wash my hair once or twice a fortnight and struggled to shower daily. I have gained substantial weight, approximately 20 kg in the last year. My physical appearance has affected my confidence and self-esteem. I tend to navigate to unhealthy eating and convenient food.”
49.	With regard to concentration, the appellant stated:
“Prior to my injury, I had no difficulties with my concentration. The nature of my work often required my concentration for long periods at a time. Since my injury, I have struggled to maintain my attention and concentration for longer than approximately five minutes at a time. I am unable to focus on reading for more than a short period. Nor have I been able to complete any other cognitively demanding tasks.”
50.	In his report dated 31 August 2023, Dr Kumagaya reported that the appellant experienced considerable challenges with her capacity towards self-care and personal hygiene as well as concentration, persistence and pace.
51.	In assigning a Class 3 to the first scale, Dr Kumagaya, stated:
“Ms Haslegrave is unable to live independently without the support of her husband. Ms Haslegrave stated that required prompting for attendance to meals, her self-care, and personal hygiene, owing to her low mood, decreased interest and engagement in activities, and decreased energy levels. Despite such support, Ms Haslegrave reported regularly missing meals and showers.”
52.	In assigning a Class 3 to the scale for concentration, persistence and pace, Dr Kumagaya stated:
“Ms Haslegrave struggles to maintain her attention and concentration for longer than five minutes at a time. She is unable to focus on reading for more than a short period. She has not been able to complete any other cognitively demanding tasks recently.”
53.	In his report for the respondent, Dr Honey recorded the appellant’s account of her impairments:
“She says that she continues to be significantly disabled by symptoms of depression and anxiety. She says, quote, ‘I can't do anything. It's causing problems in my marriage’. She said that she becomes frustrated and angry with her situation. She says that she has little energy to do anything. She often sleeps till midday. She occasionally can find the energy to do some cooking and minor household tasks. She does not go out socially, she makes a point of avoiding people, she feels ashamed about how she is.”
54.	The appellant’s “current status” was reported as:
“Mrs Haslegrave said she continues to have no interest in anything much at all and feels that she has no energy to do anything. She now sleeps long hours, often sleeping until midday and then having great difficulty getting out of bed. She finds it almost impossible to find the motivation to do any necessary tasks around the house. She avoids social contact. She spends the time watching programmes on television, and at times can lose herself in the story and distract herself from her distress.”
55.	Dr Honey noted his finding upon examination of the appellant in the following terms:
“As noted above, the appointment was at 9.00am. She appeared on Zoom just prior to that time and appeared as if she had just woken from sleep and was quite vague. However, even though she remained slowed throughout the interview, she was quite forthcoming and about her circumstances. Her mood was depressed and she was significantly anxious. She displayed some insight as mentioned above. She was at a loss to explain to herself why the effects of the difficulties in the workplace had persisted as they have.”
Self-care and Personal Hygiene 
56.	The Appeal Panel was not satisfied that there was demonstrable error in the Medical Assessor’s assessment of this PIRS scale. 
57.	Table 11.1 of the Guidelines provides that a Class 2 assessment in this PIRS scale would be appropriate in the following circumstances:
“Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.”
58.	A Class 3 assessment is appropriate where:
“Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
59.	The Medical Assessor referred to the fact that the appellant had employed a cleaner to help her. The Medical Assessor referred to Dr Kumagaya’s assessment of a Class 3 impairment, in which Dr Kumagaya recorded that the applicant was unable to live independently without the support of her husband.
60.	The Appeal Panel noted that the Medical Assessor was required to make his assessment on the basis of the appellant’s presentation on the date of assessment. Although the appellant has submitted that there was no evidence of an improvement in her condition since Dr Kumagaya’s report, the Appeal Panel noted that Dr Kumagaya’s report was prepared some nine months before the MAC. 
61.	In the intervening period, as noted by Dr Honey and the Medical Assessor, there had been a change in the appellant’s medication regime. The Medical Assessor noted that the appellant had ceased using duloxetine, which she described as like “being hit in the head with a shovel”. Dr Kumagaya recorded that the appellant had been taking duloxetine at the time of his assessment. The Medical Assessor observed that the appellant’s medications had stabilised and this had helped with reducing some symptoms and improving the appellant’s functioning. The appellant had also found the input from her psychologist and psychiatrist helpful.
62.	The Medical Assessor recorded that the appellant was trying to shower at least every other day and was brushing her teeth daily. The appellant was cooking basic meals on good days and trying to cook two to three times per week. The appellant was doing grocery shopping, albeit with some anxiety and at times when there were fewer people around. The Medical Assessor considered that the appellant could live independently, if required, and her self-care was adequate, albeit not optimal.
63.	Whilst the reasoning and explanation provided by the Medical Assessor were not detailed, the Appeal Panel was not satisfied that there was any relevant evidence which was not taken into account when reading the MAC as a whole. The Medical Assessor provided sufficient explanation to justify the assessment of Class 2. The class adopted was not glaringly improbable and, in the Panel’s assessment, a Class 2 was the best fit rating.
Concentration, Persistence and Pace 
64.	The Appeal Panel was not satisfied that there was a demonstrable error in relation to the Medical Assessor’s assessment of this scale.
65.	Table 11.1 of the Guidelines provides that a Class 2 assessment in this PIRS scale would be appropriate in the following circumstances:
“Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.”
66.	A Class 3 assessment is appropriate where:
“Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
67.	The appellant submitted that the Medical Assessor’s reliance upon the appellant’s ability to maintain concentration during the assessment for the purposes of this scale involved error.
68.	The Appeal Panel considered, however, that this was an appropriate and relevant consideration for the Medical Assessor to take into account.
69.	This was a scale in which the Medical Assessor was able to judge impairment more objectively, while the other scales required more subjective assessment. The Medical Assessor was entitled to apply his own clinical judgement and it was appropriate for him to give weight to his own observations. 
70.	During the examination, the Medical Assessor would have had the opportunity to observe the appellant’s ability to concentrate, persist with the cognitive demands of the assessment and observe the pace at which she was able to engage. He noted there was mild psychomotor slowing, consistent with Class 2.
71.	Were this the only consideration taken into account, the Medical Assessor would have erred. The Appeal Panel was satisfied, however, that the Medical Assessor also took into account the appellant’s own reported reduction in concentration, including, for example, forgetting about the washing. The Medical Assessor clearly had regard to Dr Kumagaya’s assessment of a Class 3. 
72.	As indicated above, there was a change in the appellant’s medication regime in the period between Dr Kumagaya’s assessment and the Medical Assessor’s assessment of the appellant, which had the potential to account for the different assessments.
73.	The Appeal Panel also noted that both Dr Honey and the Medical Assessor had recorded a history consistent with a Class 2 assessment including, the ability to follow television programs.
74.	The evidence of impairment in relation to this scale was limited in both the applicant’s statement and the medical evidence on which she relied. The Appeal Panel was not satisfied that any relevant evidence was overlooked.
75.	Once again, the Medical Assessor’s reasoning and explanation was not detailed. The Appeal Panel accepts, however, that the MAC ought to be read as a whole. In doing so, the path of reasoning was sufficiently explained.
76.	The class adopted was not glaringly improbable and, in the Panel’s assessment, a Class 2 was the best fit rating.
77.	The Appeal Panel was not satisfied that the MAC was affected by demonstrable error.
78.	For these reasons, the Appeal Panel has determined that the MAC issued on 15 April 2024 should be confirmed.