Hadyn John Jobson (t/as Canowindra Bottleshop Bottlemart)

WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under one of the psychiatric impairment rating scale categories (concentration, persistence and pace); employer cross-appealed in respect of the treatment of the secondary psychological condition; Held - no error found; Medical Assessment Certificate confirmed.

1. In proceedings numbered M1-W29213/24, the worker, Sandra Lee Frecklington, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 May 2025.
2. In proceedings numbered M2-W29213/24, the employer Hadyn John Jobson (t/as Canowindra Bottleshop Bottlemart) also lodged an Application to Appeal.
3. The delegate has directed that the appeals be heard concurrently and for ease of reference the worker will be referred to as the appellant and the employer will be referred to as the respondent.
4. The appellant relied 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.
5. The respondent relied on the following ground 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
   • the MAC contains a demonstrable error.
6. 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 grounds of appeal on which the appeal is made.
7. 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.
8. 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).

1. 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.
2. In the formal part of the pleadings the appellant requested that she undergo a re-examination by a Medical Assessor who is also a member of the Appeal Panel. However in the written submissions the appellant specifically stated that she considered a re-examination was unnecessary and she did not request that one be undertaken. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel did not find error. Absent a finding of error, the Appeal Panel has no power to require the worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

1. 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.

1. 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.

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

1. 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.
2. 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.
3. The matter was referred to the Medical Assessor for assessment as follows:

"The following matters have been referred for assessment (s 319 of the 1998 Act):

• the degree of permanent impairment of the worker as a result of an injury (s319(c))
• whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
• whether impairment is permanent (s319(f))
• whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))

Body part/s referred: Psychological/Psychiatric Disorder

Method of assessment: Whole Person Impairment**"**

1. The Medical Assessor issued a MAC certifying 7% whole person impairment (WPI) as a result of the injury as follows:

page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA5 Guides

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)

Total % WPI (the Combined Table values of all sub-totals)

1. The assessment was based on his assessment under PIRS as required by the Guidelines as follows:

1. Persistent depressive disorder (dysthymia with intermittent major depressive episodes with current episode).

GP follow ups, psychological treatment and antidepressants.

Ms Frecklington wakes up in the morning and then gets her children organised to go to work and school. She would get up at 5 a.m. and her daughter has to catch a bus. So, she will drive to the bus stand or the other one to the school. She comes back home. She showers once a day. Her girls will do the laundry. She will do the cooking. It just started now. She has also started to clean the house and involved in vacuuming. She will eat when she feels hungry. She may have cheese tomato for breakfast or have a sandwich for lunch and then have a tea or coffee. She will have the dinner but does not eat much. She always eyes over her shoulder. She walks with her walker. She showers by herself and she makes sure that her daughter is nearby to avoid any fall.

Ms Frecklington does not have a social life. She is not going out to sporting activities. She is not going out on hikes. She cannot do it anymore and her legs shake. She stated that it is embarrassing to her using a walker and going out. She does not go out for lunch. She has lost motivation and desire to engage in social activities.

Ms Frecklington goes to the post office to collect the mail. She drives to Orange which is one and a half to two hours' drive. She was today in her solicitor's office. She drove with her daughter. She is also driven by herself but she is anxious so normally she will have her daughter as a support person when she drives. She feels relaxed to drive and likes the mindfulness part of it. She has not travelled interstate and not gone overseas since the injury.

Ms Frecklington stated that she does not have any issues with her relationship with her daughter. Her relationship with her first husband was good and was good with her second ex-husband as well. She denied any domestic violence in her relationship. She has been single even before the injury as she separated from her second marriage and was divorced. She denied any period of separation or domestic violence currently. She denied any arguments with her daughters.

Ms Frecklington stated that she is doing reading and trying to fix herself. She is reading on illness and well-being. She may read for up to 30 minutes but then she needs to take a break and needs to rest. She feels down sometimes. She was able to sustain her attention and focus quite well during the assessment without any issues.

Ms Frecklington has not worked since 2019. She did try a small return to work but it failed. She is totally impaired and cannot return to any form of employment.

1. Both the worker (appellant) and the employer (respondent) appealed.
2. In summary, the appellant submitted that the Medical Assessor made demonstrable errors in the assessments he made under one of the six psychiatric impairment rating scale (PIRS) categories, namely concentration, persistence and pace, causing him to make an error in the assessment in these domains as follows:

(a) in assessing Class 2 for concentration, persistence and pace when he should have assessed a Class 3.

1. In summary, the respondent submitted in response to the above that the Medical Assessor neither erred nor made an assessment on the basis of incorrect criteria and the MAC should be confirmed.
2. 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 for mere difference of opinion but must be satisfied as to error.
3. 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 MAC must be read as whole.
4. The Medical Assessor took a history which broadly accords with the other evidence as follows:

"● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

Ms Frecklington stated that currently she lives near the police station. She has been living at the same place for the last three years, though this place is away from other areas, but she prefers to live there as she feels safe living near a police station. She currently lives with her two daughters who are aged 18 and 16. Ms Frecklington stated that she sustained a psychological injury during the course of her employment at Canowindra Bottleshop Shop while working as a sales assistant. She stated that she had worked for around 8 or 9 months before she sustained her injury. She was obliged to load and unload heavy cartons of beer into her car which she had to pick up from Orange. Her back just went bad and she had x-rays and physiotherapy and all other treatment. Her back continued to remain as a problem and she was told that she has a lumbar disc lesion.

Ms Frecklington stated that apart from her physical injuries, she sustained psychological injuries because of her employer. He did wicked things to people in the town. If he did not like someone then he would throw firecrackers in their yard and scare their dogs. One night the police came in the store and went through everything. The police found that they were not licenced to sell alcohol. However, he got out of it as usual and got time to fix things. He asked me to watch myself and said the most horrible things. He was a drug dealer and was a drug addict. He would intimidate Ms Frecklington and get in her face. He was always drunk and drugged and would say horrible things to Ms Frecklington.

Ms Frecklington did not tell those things to others for a long time. She feared for her life that she may end up dead. When the police came to the shop and she was told that they were operating unlicensed and she called him to tell him he came and abused Ms Frecklington. He ripped her guts out. Ms Frecklington stated that he was horrible. He destroyed her life. He could not forget anything that he said and she kept thinking about it. He destroyed her life. Ms Frecklington could not get another job in the same small place so she continued working as she had to support her family.

She had to wash his clothes and his kids' clothes. He would have a party and then she would walk in with bottles smashed up and he would ask Ms Frecklington to clean that.

Ms Frecklington stated that she started to get so anxious that she had to wear nappies because if she would see him, she would wet herself. She could not avoid him because his children played football as Ms Frecklington 's daughters. Ms Frecklington struggled to walk because of her back injury. She had to use callipers and later had to use a walker. He made Ms Frecklington feel down and made her feel belittled. Ms Frecklington would even feel anxious to see his car. She lost her fun personality. She started to feel sad and down and at times thought that life was not worth living. Her sleep started to decline and she would be often restless and toss and turn. She would still drive but limited because of her back pain as she has to often get out and stretch herself. She would be anxious to drive. She started to struggle in social situations and started to feel worthless. She stopped to go out. She continued to live with her daughters who have been very supportive. However, she did not have any friends. She started to struggle with her focus and concentration and would often forget things. She would often get bored very fast while watching TV and lose her focus. She also started to struggle with her energy and easily feel tired.

Ms Frecklington stated from day one itself her mental health got affected due to work and few months later she mentioned this to her GP. She was too scared to do anything about it. Before this she was happy in her life and there were no mental health problems. However, her job affected her mental health severely and the symptoms continued. She also saw a psychiatrist at the hospital when she had admission for other medical reasons who increased her duloxetine to 120 mg.

Ms Frecklington stated that her work injury which occurred on 18 November 2019 with a sudden onset of pain in her left leg and back associated with lifting of cartons. Following this, she was transported and assessed at Orange Base Hospital. She experienced severe pain immediately from the injury and was treated with pregabalin, tapentadol, Panadeine Forte and oxycodone. She had physiotherapy but it was not of much benefit.

• Present Treatment: Ms Frecklington continues to see her GP. She also visits her psychologist. He has physiotherapy sessions. She is currently on duloxetine 120 mg, Valium as PRN and oxycodone as PRN as well for pain. She also takes heart medication which is Nebivolol.
• Present Symptoms: Ms Frecklington currently lives with her two daughters. She is currently not working and she has not worked since the work injury. She is currently on disability support pension since January 2025. Before this, she was on workers' compensation payment only. Now, she is receiving both the payments. She stated that she tried for 12 months to get back to work but she struggled with her injury. She was always crying and was scared to death. She did a bit of a work placement for workers' compensation. However, she could not progress any further.

Ms Frecklington stated that she is not 100% good in her mental health. She is always worried and looking over her shoulder. She is always thinking that she has worked for a drug dealer who ran a bottle shop. She had no idea that he was a drug dealer. He used to frighten her all the time. She finds things very embarrassing to say. If she is at a sporting event and sees her previous employer (Mr Jobson), she gets so anxious that she may wet herself. She has to wear underpants to avoid accidents.

Ms Frecklington reported following symptoms. Her mood is always anxious. She often has panic attacks and feels that she is going to die. She cannot move when she is highly anxious and cannot do anything and feels terrified. She gets so anxious that she loses control over her bladder and may wet herself. Her motivation can be better at times and good. She is not motivated to leave the house. She does not go anywhere. She would just stay in her yard and spend time there. She has lost her self-esteem and lost her confidence. She feels like nothing and feels horrible all the time. She does not sleep very well. She may sleep for two hours and then she is awake again. She is terrified that someone will come and get her. She may take Valium to help her sleep but even the tablet does not work so she avoids it as she may not sleep still after taking the medication. She may get two to three hours of sleep in the night. She does not sleep in the day. Her energy level is always low. She is not like as she used to be and she feels run down. She feels worthless and hopeless. She is not motivated. Her appetite has been low as well. She cannot eat much and then feels sick if she eats a bit and has lost weight. She reported lack of pleasure and joy. She is not able to enjoy activities in her day-to-day and she tries to put a brave face for her children. She does not feel happy at all. She has some happiness with her children and has missed out on so many things because of lack of pleasure and initiation. Ms Frecklington expressed the desire that she wishes that her problems go away but it does not happen. She denied any self-harm or suicide attempts. She is in constant state of fear and anxiety.

Ms Frecklington stated that she used to lift 400 cartons of beer in a day at work which involved loading and reloading while she was putting the carton into the rack. Her back just went, when she told her employer that she hurt herself, he did not consider it and asked her to keep working. She was not even able to walk properly and he did not allow her to go to seek any help.

Regarding her back injury, Ms Frecklington stated that she needs to be careful what she can do and manage. She stated that she has been told that her back cannot be fixed properly and she has to live with it. The back pain comes and goes. She may take oxycodone to help with the pain. She has also experienced numbness in her leg and foot drop on the left side.

Ms Frecklington stated that in January 2024, she had a fall and fractured her left hip and as a result, underwent a left hip replacement. She also experienced episode of chest pain and she was transported to the hospital and diagnosed with acute myocardial infarct.

Ms Frecklington also reported symptoms such as nightmares, flashbacks, and thinking about the abuse that she had to face and sustain during her employment and would see her employer's face screaming towards her. There was no physical abuse but a lot of verbal abuse. She stated that these symptoms still continue though they are less in intensity.

• Details of any previous or subsequent accident injuries or condition: Ms Frecklington did not report previous history of psychological or psychiatric symptoms. She did not report previous history of psychiatric or psychological treatment.
• General health: Ms Frecklington had two heart attacks. She also had a knee injury in 2016. She has a history of asthma and elevated cholesterols. She was recently diagnosed with gastroesophageal reflux disease and cardiovascular disease with an acute myocardial infarction in 2024.
• Work history including previous work history: Ms Frecklington stated that she sustained back injury, sciatica, and a foot drop because of her last employment. She denied any previous work-related psychological or physical injuries.
• Social activities/ADL: Ms Frecklington wakes up in the morning and then gets her children organised to go to work and school. She would get up at 5 a.m. and her daughter has to catch a bus. So, she will drive to the bus stand or the other one to the school. She comes back home. She showers once a day. Her girls will do the laundry. She will do the cooking. It just started now. She has also started to clean the house and involved in vacuuming. She will eat when she feels hungry. She may have cheese tomato for breakfast or have a sandwich for lunch and then have a tea or coffee. She will have the dinner but does not eat much. She always eyes over her shoulder. She walks with her walker. She showers by herself and she makes sure that her daughter is nearby to avoid any fall.
• Personal History: Ms Frecklington stated that she was born and grew up in Orange. She had a very good childhood. She grew up with her mother and father and an older brother. She denied any negative experience growing up. She went to school up to year 10 and then did a TAFE in a typing course. She did a secretarial course as well. She started working at a chemist at the age of 18. During the school time, she would work after school. She then worked at a TV station and later with Elders Real Estate company. She worked at Harris Farm Market as a store supervisor. She worked labouring on the family farm and worked in a local bottle shop. She then got a job at the Canowindra Bottleshop as a sales assistant.

Ms Frecklington got married in 1985 and has two sons and one daughter from the marriage. She again remarried and was in a second marriage for 13 to 14 years from which she has two daughters. She is not in a relationship since she separated from her husband seven years ago.

Ms Frecklington denied any family history of mental illness.

Ms Frecklington denied any drug and alcohol history.

Ms Frecklington denied any previous work injury claims, both physical and psychological.

Ms Frecklington denied any motor vehicle accident-related personal injuries."

1. The Medical Assessor conducted a mental state examination and recorded his findings as follows:

"Ms Frecklington was seen over a video conference. She attended the appointment by herself. She was clean and dressed casually. She maintained good eye to eye contact and a rapport was established. There were no signs of agitation or retardation. She had a spontaneous speech with normal rate, tone and volume. She described her mood as sad and anxious and I found that affect to be distressed. She described her sleep as disturbed and her appetite has been low and has lost weight. She described low levels of energy and motivation. She had lack of pleasure and enjoyment. She reported low self-esteem and low levels of confidence.

he reported thoughts of hopelessness and helplessness. She also reported some flashbacks and nightmares from the traumatic experience at work. She denied having any active or passive suicidal thoughts, intents or plans and there were no thoughts or plans of harming others. She did not describe any grandiosity, racing thoughts or increased energy levels. There was no evidence of formal thought disorder, no delusional pattern of thinking and no perceptual abnormalities. She described her attention and concentration as poor. She had an intact judgement and had reasonable insight into her issues and was help-seeking."

1. The Medical Assessor summarised the injury and diagnosis as follows:

In my opinion, Ms Frecklington has sustained a psychological/psychiatric injury because of her employment with Canowindra Bottleshop as a sales assistant. Ms Frecklington has sustained a primary psychological injury on 18 November 2019, arising out of in the course of her employment. She currently presents with symptoms of major depressive disorder on a background of persistent depressive disorder. Her symptoms have been ongoing for many years since she stopped her employment. She has received treatment both in form of medications and psychological intervention and has not been able to attend remission of her symptoms. She continues to have symptoms which meet the DSM-5 TR criteria of a primary psychological injury.

Ms Frecklington has also sustained a secondary psychological injury because of her employment as a result of an injury to her back as well.

Ms Frecklington continues to present with the following symptoms.

1. Depressed mood most of the day or more days than not for at least 2 years.

2. Presence while depressed of the following symptoms:

a) Poor appetite.

b) Insomnia.

c) Low energy.

d) Lower self-esteem.

e) Poor concentration and difficulty making decisions.

f) Feelings of hopelessness.

3. She has never been without the symptoms for more than 2 months at a time.

4. Criteria for major depressive disorder may be continuously present.

5. There has never been a manic episode or hypomanic episode and has never met criteria for a cyclothymic disorder.

6. The disturbance is not better explained by a psychotic illness.

7. The symptoms are not attributable to physiological effects of a substance or another medical condition.

8. The symptoms have caused clinically significant distress or impairment in social occupation and other important areas of functioning.

Ms Frecklington's DSM-5-TR diagnosis, because of the work-related psychological injury, is persistent depressive disorder (dysthymia with intermittent major depressive episodes with current episode).

Her presentation was consistent with the history given during the clinical interview, documentation received and mental state examination."

1. The Medical Assessor outlined that the facts on which his assessment was based, as follows:

"The facts on which I have based my assessment of whole person impairment are:

1. The Medical Assessor assessed a total of 7% WPI based on the scores in the PIRS table as set out above.
2. The Medical Assessor made brief comment on the other medical evidence that was before him as follows:

"My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs.

In my opinion, Ms Frecklington has reached maximum medical improvement as she continues to present with symptoms and impairments that are affecting her functioning. In my opinion, her impairment is permanent, and her condition has become stable. Her impairment is unlikely to change substantially by more than 3% in the next 12 months with or without treatment. Hence, I have assessed her whole-person impairment. I have not made a deduction as there is no pre-existing psychiatric condition. I have not made any adjustment for the effects of treatment, as there has not been any significant effect from the treatment received so far. The final WPI is 7 %.

I don't agree with Dr Peter Young, in my opinion, she has sustained both a primary and secondary psychological injury.

I differ in my opinion with Dr Christopher Canaris, in the assessment of WPI and my final WPI is 7 % instead of 16 %.

1. Earlier in the MAC the Medical Assessor outlined that he had specific regard to the IME opinions of Dr Canaris, the IME qualified to provide an opinion on behalf of the appellant and Dr Young, the IME qualified to provide an opinion on behalf of the respondent, outlining as follows:

"● I have noted the independent medical examination report by Dr Christopher Canaris, consultant psychiatrist, dated 22 March 2024. The IME report stated her presentation is consistent with the diagnosis of persistent depressive disorder (dysthymia with a persisting major depressive episode and anxious distress). Her prognosis is guarded at best, given the severity of her symptoms despite having had appropriate treatment. Ms Frecklington has reached maximum medical improvement. Evidence in documentation suggested she has had previous psychological or psychiatric issues giving rise to impairment. I have therefore made a 1/10 in deduction, yielding a whole person impairment of 15%. I have added 1% by way of an adjustment for treatment effects. She received and continues to receive appropriate treatment, but I am left with the impression that it has not had a considerable impact on her level of impairment. This yields a final whole person impairment of 16%.

• I have noted the independent medical examination report by Dr Peter Young, consultant psychiatrist, dated 7 August 2024. The report stated as per the body of the reported symptoms did not appear to be consistent with a primary psychological injury and appear to have become apparent in context of a physical injury associated chronic pain and impairments of functioning. I think the most appropriate diagnosis is adjustment disorder. The symptoms described and represent a disease, condition occurring as a gradual onset as a result of cumulative stresses and underlying vulnerability. It appears that work-related incident causing a physical injury has resulted in ongoing pain and impairment in functioning causing secondary psychological symptoms. Clearly, the accompanying documents as well as Ms Frecklington's self-report indicate that a lumbar spine injury and associated radiculopathy is contributing to her psychological state and therefore her condition is a secondary psychological injury. I do not think there is a substantial portion attributable to a primary injury. As her pre-injury duties was part-time casual work, I consider that Ms Frecklington from a psychological perspective, is fit for normal pre-injury duties. I believe that Ms Frecklington has reached maximum medical improvement. As the impairment is related to a secondary condition, this is excluded from the PIRS assessment and therefore not provided. There is no primary psychological injury and according to the guidelines associated, impairment is excluded from WPI calculation."

1. In respect of the issue of the impairment resulting from a primary and/or a secondary injury, the Medical Assessor opined as follows:

"There is no pre-existing condition which requires deduction. However, I have noted there is a component of her secondary psychological injury that is due to the back injury that she sustained during her employment. She has sustained a primary psychological injury and that is the predominant psychological/psychiatric injury suffered because of her employment.

• In NSW, only impairment arising from primary psychiatric and psychological impairments in which work was found to be a substantial contributing factor is assessable.
• A secondary psychiatric injury arises as a consequence of, or secondary to, another work related condition.
• No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments."

1. The respondent complained on appeal that the Medical Assessor had made a demonstrable error and/or assessment on the basis of incorrect criteria when he assessed the impairment as resulting from the primary psychological injury. The Appeal Panel considers that there is no error in the Medical Assessor's approach. The Medical Assessor after taking a through history, conducting a clinical assessment of the appellant and having due regard to the other evidence was unable to disentangle the impairments resulting from the primary and the secondary psychological injury, having found that the predominant impairment resulted from the primary psychological injury, and accordingly he was correct to assess WPI as resulting from the primary psychological injury.
2. The appellant complained about one of the assessments in the category concentration, persistence and pace. The Medical Assessor rated a mild impairment (Class 2) in this domain and the appellant submits that the rating was erroneous and seeks a moderate impairment rating (Class 3) for the contested category.
3. In respect of concentration, persistence and pace, Table 11.5 of the Guides provides as follows:

No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.

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.

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.

Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.

Totally impaired: needs constant supervision and assistance within institutional setting.

1. The Medical Assessor rated Class 2 (mild impairment) with the following reasoning:

"Ms Frecklington stated that she is doing reading and trying to fix herself. She is reading on illness and well-being. She may read for up to 30 minutes but then she needs to take a break and needs to rest. She feels down sometimes. She was able to sustain her attention and focus quite well during the assessment without any issues."

1. The appellant submitted that a Class 3 or moderate impairment should have been assessed in this domain.

The appellant submitted that the Medical Assessor did not address the history recorded by Dr Canaris, the IME who was qualified to provide an opinion on behalf of the appellant.

Dr Canaris rated a moderate impairment for concentration, persistence and pace and took a history that the appellant's concentration was "shocking", she "forgot things real quick", can mage focus on TV for around 20 minutes only and has no energy and has lost the will to do anything.

1. The appellant also submitted that the rating of a mild impairment for concentration, persistence and pace and the reasons given were "internally inconsistent" with the history recorded earlier in the MAC as follows:

"She started to struggle with her focus and concentration and would often forget things. She would often get bored very fast while watching TV and lose her focus. She also started to struggle with her energy and easily feel tired."

1. The MAC must be read as a whole.
2. The Medical Assessor must make his own independent assessment using his clinical expertise not based on self-report alone.
3. His assessment is to be independent of the other medical opinion before him.
4. The Appeal Panel notes that the assessment of Dr Canaris was in March 2024 some 15 months before the assessment by the Medical Assessor.
5. The later assessment of Dr Young kn August 2024 (some 10 months before the medical assessment) recorded that the appellant loves reading and "keeping my mind active" and "a bit of difficulty sometimes with her concentration however this is not significant".
6. The Medical Assessor is entitled to rely on his clinical findings on the day of assessment which took place in June 2025. He must not rely on self-report alone and must make a clinical assessment in accordance with the correct criteria.
7. This is what the Medical Assessor has done here. The Appeal Panel can discern no error in the rating of a mild impairment or Class 2 for concentration, persistence and pace for which rating the Medical Assessor has given adequate reasons that accord with the correct criteria in the Guidelines.
8. For these reasons, the Appeal Panel has determined that the MAC issued on 26 May 2025 should be confirmed.