DETERMINATION OF APPEAL PANEL	
	
CITATION:	Dilernia v Oz Harvest Ltd [2024] NSWPICMP 554	
		
APPELLANT:	Roger Dilernia	
		
RESPONDENT:	Oz Harvest Ltd	
		
Appeal Panel		
		
MEMBER:	Jane Peacock	
		
MEDICAL ASSESSOR:	Professor Nicholas Glozier	
		
MEDICAL ASSESSOR:	Michael Hong	
		
DATE OF DECISION:	8 August 2024	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under two of the psychiatric impairment rating scale (PIRS) categories because of an inadequate path of reasoning; Held – error found and a re-examination was considered necessary; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 10 November 2023 Roger Dilernia (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 
16 October 2023.
2.	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.
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(s) 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).
PRELIMINARY REVIEW
6.	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.
7.	The appellant did not seek a re-examination by a Medical Assessor who is also a member of the Appeal Panel. However, as a result of it’s preliminary review, in circumstances of a finding of error, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination.
EVIDENCE
Documentary evidence
8.	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.  
Further medical examination
9.	Medical Assessor Michael Hong of the Appeal Panel conducted an examination and reported to the Appeal Panel.
Medical Assessment Certificate
10.	The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision. 
SUBMISSIONS 
11.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 

FINDINGS AND REASONS 
12.	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. 
13.	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.
14.	The matter was referred by the Personal Injury Commission (Commission) to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act): 
•	Date of injury: 24 September 2021 – deemed 
•	Body parts/systems referred: Psychiatric/psychological disorder
•	Method of assessment: Whole person impairment”
15.	The Medical Assessor issued a MAC as follows:
Body Part or system	Date of Injury	Chapter,
page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides
	% WPI 	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)	
1. Psychiatric injury	24 September 2021 - deemed	Chapter 11, page 54	Chapter 14, pg 361-365	13	1/10th 	12	
2.      	     	     	     	     	     	     	
3.      	     	     	     	     	     	     	
4.      	     	     	     	     	     	     	
5.      	     	     	     	     	     	     	
6.      	     	     	     	     	     	     	
Total % WPI (the Combined Table values of all sub-totals)	12	

16.	The Medical Assessor conducted a psychiatric impairment rating scale (PIRS) assessment as follows:
Table 11.8: PIRS Rating Form
Name	Roger Dilernia	Claim reference number (if known)	W4410/23	
DOB	xxxx	Age at time of injury	62 years old	
Date of Injury	24 September 2021 - deemed	Occupation at time of injury	COVID Marshall	
Date of Assessment	9 October 2023	Marital Status before injury	De facto	

Psychiatric diagnoses	1. Other Specified Trauma- and Stressor-Related Disorder, aggravation	2.	
	3.	4.	
Psychiatric treatment	Venlafaxine 75mg, amitriptyline 25mg, psychological therapy		
Is impairment permanent?	Yes			

PIRS Category	Class	Reason for Decision	
Self Care and personal hygiene	2	Dr Frank Chow reported Self-Care and Personal Hygiene = 3 due to skipping showers, changing clothes every few days, doing some house chores, including cooking and shopping. 	
		Dr Bisht reported Self-Care and Personal Hygiene = 1, as he has been able to self-care with minimal deficit	
		He showers himself about 3 days a week as he can forget to shower, which has been since the subject injury. He changes his clothes every few days. He doesn’t require any reminders or assistance with these activities. He cooks for himself, usually Italian cuisine, satay chicken, and sometimes microwave meals when he feels less motivated, though prior to the subject injury he would never do microwave meals. He cleans his house himself. He goes shopping about once or twice a week. 	
		As he has sufficient preserved life skills to live independently, albeit with a degree of self-neglect, he has mild impairment.	
Social and recreational activities	3	Dr Frank Chow reported Social and recreational activities = 3 due to not engaging in his hobbies and activities.	
		Dr Bisht reported Social and recreational activities = 1 due to attending social gatherings with minimal deficit, including evidence from the desktop investigation	
		He goes to the movies or Art Gallery with his partner when there are not many people around. Prior to the subject injury, he would go to the movies and library, and watch live bands. He spends a lot of time reading biographies as it takes his mind off the incidents, and he can read up to 1 page or up to 5 pages (up to 15 minutes), before his mind starts to wander, which he does about twice a day.	
		He can go out to social events, but in company of his partner as a support person, so he has moderate impairment. 	
Travel	1	Dr Frank Chow reported Travel = 2 due to driving locally but easily anxious 	
		Dr Bisht reported Travel = 1 as he has been able to travel to unfamiliar places	
		He drives to the local shops, and he also drives to a local park. He has driven to the Blue Mountains once, which he reported there being no issues. He does find that he has been more easily upset and anxious with other unruly drivers on the road, and makes him uncomfortable going out, but he is reasonably comfortable once he’s in his car.	
		As he is still able to drive long distances, albeit with some discomfort, he has minor impairment. 	
Social functioning	2	Dr Frank Chow reported Social Functioning = 2 due to not seeing friends but in contact with son and brother	
		Dr Bisht reported Social Functioning = 1 as he has ongoing contact with his son	
		He has a partner living in Campbelltown, and they have been together for the past 3 years, and they started their relationship prior to the subject injury. He described their relationship as being very good, and he spends most of his time with her on the weekends. He denied there being any fights or arguments with her. 

He has had arguments with his neighbour and a few friends, and he has lost a few friends due to this. He now has 3-4 friends, and he calls them about once every few months, and one of them calls him every few weeks. He doesn’t see them in person, and the last time was about 2-3 years ago, as he no longer feels comfortable leaving the house. 	
		As he has maintained a good relationship with his partner, and maintained a few friends, despite losing others, he has mild impairment. 	
Concentration, persistence and pace	3	Dr Frank Chow reported Concentration, Persistence and Pace = 3 as he has poor concentration and cannot read for long	
		Dr Bisht reported Concentration, Persistence and Pace = 2 as he would be able to do a course	
		His concentration has been reduced and more forgetful. His energy has been low sometimes, and sometimes he has too much energy he cannot sleep.
He was alert and appeared grossly cognitively intact, able to sustain his focus for the duration of the assessment, though there was one lapse of forgetfulness of the question he was responding to.	
		As he has some difficulties with concentration and memory, but not to the extent as to be observable in a brief conversation, he has moderate impairment. 	
Employability	3	Dr Frank Chow reported Adaptation = 5 being totally unfit for work	
		Dr Bisht reported Adaptation = 2 as he has capacity for a suitably qualified work, with desktop investigation referring to work in the past 2 years

Desktop surveillance demonstrated he has capacity to engage in photography. There was no direct evidence of him undertaking employment.	
		His last work was in 2020, when he was last working with OzHarvest. 

Since the subject injury, he has not returned to work, as he said he remains scared of superiors yelling at him. 	
		Given his reluctance to work in an organisation, but having sufficient skills to engage in photography which can be undertaken part-time without having any supervising superiors, and qualitatively less stressful, he has moderate impairment. 	
Score	Median Class	
1	2	2	3	3	3		=2.5=3	
Aggregate Score Impairment	Total	%	
+1	+2	+2	+3	+3	3	14	13	

17.	From the 13% WPI impairment rating under PIRS, the Medical Assessor made a deduction of one-tenth under s 323, leaving 12% WPI. The s 323 deduction is not the subject of complaint on appeal.
18.	The worker appealed.
19.	In summary, the appellant submitted on appeal that the Medical Assessor made assessments on the basis of incorrect criteria and/or demonstrable errors as follows:
(a)	in the assessments of Class 1 for travel when he should have assessed Class 2, and
(b)	in the assessment of Class 3 for employability when he should have assessed Class 5.
20.	In summary, the respondent employer Oz Harvest Limited (the respondent) submitted that the Medical Assessor did not make assessments on the basis of incorrect criteria and nor did he make demonstrable errors and the MAC should be confirmed.
21.	The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
22.	In respect of the category of Travel, the Appeal Panel could discern no error in the assessment of Class 1. 
23.	In respect of Travel, Table 11.3 of the Guides provides as follows:
Table 11.3: Psychiatric impairment rating scale – travel
Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.	
Class 2	Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.	
Class 3	Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.	
Class 4	Severe impairment: finds it extremely uncomfortable to leave own residence even with trusted person.	
Class 5	Totally impaired: may require two or more persons to supervise when travelling.	
24.	The Medical Assessor assessed a Class 1 or minor deficit with the following reasoning which also noted the reasons why the IME qualified to provide an opinion on behalf of the appellant Dr Chow assessed Class 2 and why Dr Bisht the IME qualified to provide an opinion on behalf of the respondent also assessed Class 1:
Dr Frank Chow reported Travel = 2 due to driving locally but easily anxious 	
Dr Bisht reported Travel = 1 as he has been able to travel to unfamiliar places	
He drives to the local shops, and he also drives to a local park. He has driven to the Blue Mountains once, which he reported there being no issues. He does find that he has been more easily upset and anxious with other unruly drivers on the road, and makes him uncomfortable going out, but he is reasonably comfortable once he’s in his car.	
As he is still able to drive long distances, albeit with some discomfort, he has minor impairment. 	

25.	The appellant submitted that a Class 2 or mild impairment should have been assessed. 
26.	The Appeal Panel cannot interfere with a rating unless there is error. Here the findings of the Medical Assessor are adequately explained and based on a history adequately taken and accord with the criteria for Class 1. Such symptoms as “being more easily anxious… with other unruly drivers” or “some discomfort” are not the same as impairment in the conduct rated in this class, or might equate to the minor impairment observed by the assessor. No error can be discerned by the Appeal Panel is respect of the Travel Category. Accordingly this aspect of the assessment will be confirmed.
27.	Turning to the assessment in the category of employability. 
28.	The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self- report can be properly evaluated in the context of other evidence before the Medical Assessor. The Appeal Panel considered that it was not clear that the Medical Assessor had considered all of the evidence before him, that he made no attempt to discuss the surveillance evidence with the appellant and the path of reasoning was therefore inadequate in the PIRS category of employability. The Appeal Panel was satisfied as to error because the history taken by the Medical Assessor was inadequate and did not support an adequate path of reasoning of the assessment made under the PIRS category of employability. In these circumstances the Appeal Panel was satisfied as to error and considered a re-examination was necessary.  This was in the context of the category of employability only.
29.	In these circumstances of a finding of error the Appeal Panel considered that a re-examination by a Medical Assessor member of the Appeal Panel was necessary. Medical Assessor Michael Hong was appointed to conduct the re-examination and he reported to the Appeal Panel as follows (emphasis in original):
“Mr Dilernia is 64 and lives alone. 
He reported he worked at Oz Harvest for four weeks, and due to the psychological injury from the abusive incidents on the 22nd and 24th September 2020, he could not work anymore. He has not engaged in paid work since 2020. We noted that the date of injury was September 2021, and in one of his statements, he incorrectly listed the two incidents as having occurred in 2021. 
Since the MA’s assessment, Mr Dilernia said he is ‘more reclusive’, he doesn't want to go out, he doesn't take care of himself, and he has more nightmares. He said that the MA did not understand the severity of what happened to him at the Oz Harvest. He said before he worked there, he had a bit of anxiety, but he could still function and deal with people, but now he cannot. 
Mr Dilernia's treatment has not changed. He consults his psychologist every two or three weeks. He takes Venlafaxine 75 mg and Amitriptyline 25mg. 
He drinks four or five glasses of wine, three or four days a week, occasionally every day. 
Physically, Mr Dilernia said he feels the same. He suffers from arthritis, high blood pressure and sleep apnoea. He has a pacemaker.
He reports that he has very little enjoyment in anything. Previously, he said he used to take walks, but now he feels ‘paranoid’ and so he does not walk. He said he doesn't want to be around people anymore. He said in the last couple of years, there's been a couple of times when random people, for example, at a car park, yelled at him, and he started shaking and couldn't function in the next few days. He reports that he still sleeps poorly with nightmares. He had random bad dreams about being falsely accused and ending up in jail, and about things that happened in Oz Harvest. 
Mr Dilernia's weight has increased and his Cardiologists tell him he should lose 10-15kg. He tried to cut down to only eating one meal a day, and tried fasting, but he's not managing to lose weight. 
He spends time on the computer. He said he read about the news, the Gaza war and about Trump in America. He might read one, two, or three articles, but he doesn't read for very long. He said he has a lot of books, but after about 10 pages, he doesn't continue any of them. He listens to music. He cooks his meals. 
Mr Dilernia goes shopping once a week to three shopping centres, the furthest is Miranda Westfield, which is about 15 minutes away and explained it is the only place with a deli. He drives everywhere as he does not want to go out on foot. 
He sees his son, maybe every six months because his son is working long hours and very busy. His partner comes to visit him once a week. He stays home and said he doesn't really go out to do much anymore. 
Mr Dilernia has no other surviving family. He has had no contact with his ex-partner since 2020, and said that he's scared of her. 
In terms of employment history, Mr Dilernia said he completed 10 years of school and went to TAFE and studied a diploma in film and television, but said that because he was older by then, he couldn't find work in the industry. He studied and worked in Graphic design in the 1980s, but when computers were introduced, everything changed. He didn't know how to use the software, so he changed work. He was in the call centre for a couple of years. Then his first wife was ill, and he was her carer for 10 years until she passed away in 2011. Mr Dilernia worked as a kitchen hand for two or three years. 
The next time he was married, he said his abusive wife forced him to start a photography business. He did it for three or four years, and predominantly did real estate photos. He would go to different properties, set up the equipment and set up shots, take photos, and said he only did two or three jobs a week. He said he made very little money, maybe $18,000 in a year. He initially worked solo, but he recalled he struggled to do everything needed, because he didn't know how to create floor plans on the computer or Photoshop the pictures. He then worked for a big company but said he was sacked, and the real estate agent complained he talked too much to the clients. Mr Dilernia then worked for another big company and said that he would visit the property, take measurements and sketch the floor plans and people in the office would convert it into the floor plans on the computer with CAD drawing software, and they would use Photoshop to improve his photographs. However, the company then lost clients, and they closed the Sydney branch. Mr Dilernia said many of the real estate agents had very high expectations, and it was too stressful working with them. He then decided to work for Oz Harvest as a Covid marshal. 
We discussed the files supplied to the Panel for the appeal, and discussed the ABI investigation report dated January 2023, with entries related to activities between mid 2022 and late 2022. He said he had read it and he responded to it previously. 
Mr Dilernia said he used to go to the cinema, but he doesn't do that now. He still goes to the art gallery two or three times a year, and in 2024, he has gone to Campbelltown and Hazelhurst art gallery with his girlfriend. He said when he feels safe to go out with her.
Mr Dilernia used to have social media, Instagram and Facebook accounts and posted photos, but he closed those accounts now. He said there were requests from people to be friends online, and he refused. He had 353 followers on Instagram. We discussed he interacted with people online or simple ‘liked’ a post as noted in the ABI report. 
He confirmed going to the Crystal Festival with his partner, and met a colourful young lady who had very frizzy hair. I asked him whether it was crowded as described and he said it wasn't that crowded, and he was on there for 30 minutes. He went and took photographs of the crystals and bought something and left. 
I asked him about the photos of the festival on Stanley Street, he said they were having lunch upstairs, and there was a festival downstairs. He didn't go there for the festival. 
In terms of the photograph in front of the opera house in 2022, Mr Dilernia said he went to the Vivid festival, and he chose Friday night because it's quieter, and took some photographs. 
We talked about the Waterloo pictures business, and he said that it was set up, but he never really worked through it, because he then became a sole trader, and operated in his name. He said he might have done some wedding photography forty years ago in 1980s, and about five years ago, he did the photography for a corporate seminar, but he hasn't done anything else – he explained he was a freelance photographer and he simply put on his profile that he could do everything to try and get more work, such as weddings and corporate events. 
Regarding the jazz event, he said he went to it with his girlfriend and it was a very small club with only 20 or 30 people, so he felt comfortable. He didn't go to any ABBA concert. 
He went to the Royal National Park and took photographs. 
He reported that the photos of the New Year’s Evening fireworks were taken from his balcony, and he showed me that his apartment has a water view of Sydney Harbour.”
30.	The Appeal Panel considers that the examination undertaken by Medical Assessor Michael Hong was conducted in a thorough manner. The Appeal Panel notes the history Medical Assessor Michael Hong has provided in his report to the Appeal Panel, including the history as to the respondent’s ability to function in employability category of the PIRS. The Appeal Panel notes that Medical Assessor Michael Hong had clear regard to the other evidence before him, has not relied on self -report alone and has used his clinical expertise on the day of assessment to make recommendations to the Appeal Panel about the assessments of the employability under PIRS. 
31.	In respect of Employability, Table 11.6 of the Guides provides as follows:
Class 1	No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training.
The person is able to cope with the normal demands of the job.	
Class 2	Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).	
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.	

32.	The Appeal Panel adopts the findings of Medical Assessor Hong on re-examination. 
33.	The Appeal Panel considered that a re-examination was necessary to discuss the surveillance material with the appellant as this had not been undertaken by the Medical Assessor.  The Appeal Panel considers that this has been undertaken by Medical Assessor Michael Hong on re-examination in a thorough manner. This will now allow the Appeal Panel to make an assessment of employability in accordance with the criteria in table 11.6 as set out above.
34.	The Appeal Panel notes the appellant previously worked as a freelance photographer in limited hours a week, possibly 10 hours per week, he worked solo and then for companies. His role was to set up and take photos, and sketch floor plans and he was not proficient in using the computer to create floor plans or modify the photos. On re-examination, the appellant confirmed a capacity in undertaking work-like tasks, that is setting up and taking photographs, which is what he did previously as a freelance photographer. Therefore, the Appeal Panel concludes that the appellant is not devoid of work capacity, and his employability is consistent with Class 4, as he could perform low-stress employment irregularly, for a few hours per week, as a freelance photographer. The Appeal Panel considers that the best fit is severely impaired at class 4. 
35.	Assessment of employability at Class 4 with Travel at Class 1 confirmed and all other PIRS categories unchallenged on appeal, gives the following result:
The median is derived from 1, 2,2,3,3,4 which gives a median of 3
Aggregate score impairment is 1+2+2+3+3+4 equals 15 with a median of 3 equates to 15% WPI. 
36.	A deduction of one-tenth was applied by the Medical Assessor which is not the subject of complaint on appeal. There was no allowance for the effect of treatment which was not the subject of complaint on appeal.
37.	This means that after the deduction and rounding, the total WPI is 14% WPI.
38.	This means that the MAC will be revoked and a new MAC issued.
39.	For these reasons, the Appeal Panel has determined that the MAC issued on 
16 October 2023 should be revoked, and a new MAC should be issued.  The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002

Matter number:	W4410/23	
Applicant:	Roger Dilernia	
Respondent:	Oz Harvest Limited	

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Yu-Tang Shen and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI) 

Body Part or system	Date of Injury	Chapter,
page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides
	% WPI 	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)	
1. Psychiatric injury	24 September 2021 - deemed	Chapter 11, page 54	Chapter 14, pg 361-365	15	1/10th 	14	
2.      	     	     	     	     	     	     	
3.      	     	     	     	     	     	     	
4.      	     	     	     	     	     	     	
5.      	     	     	     	     	     	     	
6.      	     	     	     	     	     	     	
Total % WPI (the Combined Table values of all sub-totals)	14	

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.