ACK v Secretary, Department of Communities and Justice
[2021] NSWPICMP 174
•20 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | ACK v Secretary, Department of Communities and Justice [2021] NSWPICMP 174 |
| APPELLANT: | ACK |
| RESPONDENT: | Secretary, Department of Communities and Justice |
| APPEAL PANEL: | Member Jane Peacock Dr Patrick Morris Dr Michael Hong |
| DATE OF DECISION: | 20 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological injury; appellant alleged error in the assessment under four categories under the Permanent Impairment Rating Scale (PIRS) namely Self Care and Personal hygiene, Social Functioning, Concentration, Persistence and Pace, and Employability; Held - the Panel could discern no error in the assessments for which clear reasons were given and the ratings accorded with the criteria in the Guidelines; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 June 2021 ACK (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 May 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant worker did not request that she be re-examined by a MA who is a member of the Appeal Panel. As a result of their preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel was not satisfied as to error for the reasons explained below and absent a finding of error the Appeal Panel has no power to require a further medical examination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the MA for assessment (s 319 of the 1998 Act) as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 19 December 2018
· Body parts/systems referred: Psychiatric/psychological
· Method of assessment: Whole Person Impairment”
The MA issued a MAC certifying as follows:
Body Part or system Date of Injury Chapter,
page and paragraph number in NSW workers compensation guidelinesChapter, 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) Psychiatric 19 December 2018 Chap 11,
p 54-60n/a 7% Nil 7% 2. Adjustment for treatment effect – 2% 9% 3. 4. 5. 6. Total % WPI (the Combined Table values of all sub-totals) 9%
The assessment was based on an assessment by the MA conducted under the permanent impairment ratings scale (PIRS), as set out in the following table:
Table 11.8: PIRS Rating Form
Name ACK Claim reference number xxx/20 DOB xx xx xxxx Age at time of injury 32 years Date of Injury 19 December 2018 Occupation at time of injury Secretary Date of Assessment 5 May 2021 Marital Status before injury Single
Psychiatric diagnoses Major depressive disorder with anxious distress Psychiatric treatment Psychotherapy Medication Is impairment permanent? Yes
PIRS Category Class Reason for Decision Self-Care and personal hygiene 2 ACK lives as an independent adult with her mother. She contributes to the housework, although not to the degree that she did previously. She shops and cooks meals twice a week but sometimes will miss meals. She showers daily but neglects dental flossing. Social and recreational activities 3 She has socially withdrawn to a considerable extent. She goes out to dinner about once a month with a friend. She has recently attended a baby shower but usually refuses invitations to functions that involve many people; she has declined invitations to two weddings. Travel 2 She travels independently in her local area but avoids going further afield. Social functioning 3 She is more irritable and “snappy.” Her relationship with her mother is good. She has maintained a few friendships but lost others through social withdrawal. She no longer talks to her sister and broke up with a boyfriend last year because of her condition. Concentration, persistence and pace 2 She has subjective difficulties in this domain and uses lists as an aide-memoire. She reads books, although less than before. She is in a job that requires new learning and attention to detail. Her employer described her as “in training” to becoming a loan writer. Employability 2 She is working about 18 hours each week. She was working full-time and doing a part-time job, a work situation that she maintained for twelve months after leaving her job as a parole officer. Her condition has not deteriorated. She left the job because she had not declared that she was on compensation, and she wanted to focus on her role as an assistant to a mortgage broker. She could likely continue to work full-time in a position different from that of a parole officer, but working two jobs may be too much. Score Median Class 2 2 2 2 3 3 = 2 Aggregate Score Impairment 14 Total 7 %
The MA made a 2% adjustment for the effects of treatment giving an overall impairment assessment of 9% WPI as a result of injury on 19 December 2018.
The worker appealed.
There was no complaint on appeal about the assessments under PIRS for Social and Recreational Activities. The complaints on appeal concerned the assessments under PIRS in the categories of Self care and Personal hygiene, Social Functioning, Concentration, Persistence and Pace and Employability. There was no complaint about the allowance of 2% WPI for the effects of treatment.
In summary, the complaints on appeal by the appellant are that the MA erred as follows:
· in his assessment of a Class 2 impairment, rather than a Class 3 impairment, in relation to the PIRS category of Self Care and Personal Hygiene;
· in his assessment of a Class 3 impairment, rather than a Class 4 impairment, in relation to the PIRS category of Social Functioning;
· in his assessment of a Class 2 impairment, rather than a Class 3 impairment, in relation to the PIRS category of Concentration, Persistence and Pace, and
· in his assessment of a Class 2 impairment, rather than a Class 3 impairment, in relation to the PIRS category of Employability.
In summary, Secretary, Department of Communities and Justice (the respondent) submitted that the MA did not apply incorrect criteria nor did he make a demonstrable error and that the MAC should be confirmed.
The role of the MA is to conduct an independent assessment on the day of examination. The MA 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 MA. The MA must bring his clinical expertise to bear and exercise his clinical judgement when making an 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.
The Panel notes that the MA has taken a detailed history which is broadly consistent with the other evidence that was before him as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
ACK alleges that she was targeted and bullied by a work colleague at the Department of Community and Justice. At the time, she was working as a parole officer in the Silverwater jail.
She had a relationship with a work colleague, lasting just four weeks. After this relationship ended, a female colleague, JB, started a relationship with the same man. ACK’s relationship was not commonly known, and when JB heard of it, the bullying commenced, taking the form of spreading rumours and filing false complaints. ACK was a civilian worker within the jail and did not carry a radio, so she relied on JB to release locks on doors. JB started neglecting to open doors when requested, creating danger for ACK as she was then confined in a space with male offenders.
At a Christmas party in 2018, JB wanted to fight ACK and assaulted her physically. Criminal charges were laid, and an apprehended violence order obtained. ACK later received a victim’s compensation recognition payment.
ACK had made several complaints regarding JB’s behaviour to her superiors at the jail. She went on to contact Safe Work Australia and the Corrective Services Commissioner. She says that no action has been taken to date, the complaints remain unresolved, and JB continues to work within the corrective system.
ACK’s mental health started to suffer from about March or April 2018. She sought help from her general practitioner, was started on an antidepressant medication, and referred for psychological and psychiatric treatment.
She has not worked as a parole officer since 19 December 2018.
· Present treatment:
Her general practitioner is now Dr Tasneem Kolhapurwala.
She attended clinical psychologist, Ms Tracy Durrant, until about November 2019.
She sees her psychiatrist, Dr Eoin Wilson, once every 2 to 3 months.
Medication:
oBupropion 150 mg daily
oMianserin – a small dose (she was unable to quantitate it) each night
….
· Details of any previous or subsequent accidents, injuries or condition:
There is a note in the general practice file of a ‘psychiatric disturbance’ in December 2007. ACK explained that she was at the Police Academy at the time. After a psychometric assessment, she was required to see a psychiatrist. She believes that this was because she had failed to answer questions about her father, of whom she has no memory. In any event, she was not offered treatment and, in her view, remained well.
In 2013, she had depression associated with grief when her grandmother died. She was treated with antidepressant medication and had psychological treatment, and recovered after about 12 months.
There had been no subsequent accidents, injuries or conditions.
…
· Work history, including previous work history if relevant:
ACK had part-time jobs while still at high school, working for a KFC, a seafood shop, an Italian restaurant and at Rebel Sports.
She completed year 12 at school; she enjoyed the study and was socially well connected.
She attempted to join the NSW Police Force when she was 21 years old but was unable to complete training after injuring her wrist.
She worked as an accounts manager for the same company that her mother worked at and was a volunteer for the Australian Air Force cadets for several years.
When she was 22 years old, she commenced study at the University of Western Sydney, where she earned a Bachelor of Social Sciences in Criminology and Adult Education.
In 2014 she became a community-based parole officer. In 2017 she commenced work as a parole officer at Silverwater jail.
She has not worked in the criminal justice system since January 2019.
She worked for twelve months for the Department of Defence as a Safety Advisor and Executive Officer. She left because she hadn’t declared to them that she had a worker’s compensation claim. She was working a second job as an assistant to a mortgage broker, a job that she wishes to pursue.
She now works 15 to 18 hours each week with a mortgage broker. She acts in a support role but is not directly employed; instead, she contracts her services. This role is flexible, and she can vary her hours as needed.
She is enrolled in relevant TAFE courses relating to her work, but she is neglecting her studies.”
The MA took a detailed account of the appellant’s self reported present symptoms as follows:
“Present symptoms:
ACK has a low mood most of the time but can ‘put on a front.’
She is usually anxious and on edge; she described herself as ‘paranoid.’ By this, she meant that she was unable to trust others.
She is bothered by frequent intrusive and distressing thoughts about her treatment in the workplace and her current circumstances.
She has subjective difficulties with concentration, attention and memory, which she described as severe. She finds it difficult to converse with people as she loses focus during conversations. She uses shopping lists to assist.
She has no active plans for suicide but has often thought of ’not being here.’
She is usually in bed between 10 and 10:30 PM and takes up to 2 hours to fall asleep. She often wakes in the early hours of the morning and has trouble falling back to sleep. She is bothered by distressing dreams. She gets out of bed at about 7:30 AM.
She is exercising less and eating more takeaway food, restricting herself to one meal a day. Because of this, she has gained about 20 kg.”
The MA took a detailed account of the appellant’s self reported restrictions on ADLs as follows:
“ACK grew up in Kingsgrove with an older sister, raised by her mother and her grandmother. Her father had wanted the family to live in Lebanon, but her mother returned to Australia when ACK was two or three years old. She has not seen her father since. She recalls a safe and supportive home environment.
Her mother was a manager of the Australian branch of a New Zealand company.
She has lived with her mother since 2007, in a home that she owns jointly with her sister.
She rises each morning at about 7:30 AM to feed her dog. She then goes to check her computer and watch television.
She does less housework than she did previously but will still do tasks such as vacuuming and cleaning. She does some shopping and cooks about twice a week.
She showers daily and washes her hair weekly but neglects dental flossing.
She attends a gym, where she uses a personal trainer, about once a week. She often misses appointments.
She goes out to dinner with a friend about once a month. She avoids group outings or will find an excuse to leave early. She mentioned going to a baby shower recently, but she has refused invitations to two weddings.
She has no hobbies or interests.
She travels comfortably within the local area, driving herself when necessary, but does not travel further afield.
She is more irritable and prone to anger. She has a good relationship with her mother, but her relationship with her sister is strained. She has maintained a few friendships but has lost others through a lack of social engagement.
She has subjective difficulties with concentration, attention and memory. She watches shows such as Criminal Minds on Netflix. She has started using subtitles to assist with comprehension, and she sometimes has to rewatch segments. She continues to read light books. At work, she does data entry and drafts emails for her employer, tasks which have involved new learning for her.
She feels that she can only go back to work with the Department of Corrective Services and Justice if her grievances are resolved satisfactorily. In the meantime, she is working less than 20 hours a week in her new role.”
The MA conducted a mental state examination and recorded his findings as follows:
“I assessed ACK in her home over a video link. The quality of the connection was excellent, and I felt able to do a comprehensive assessment.
She presented casually attired and well-groomed. She was friendly and cooperative throughout the interview.
She described herself as depressed but appeared relaxed and showed no distress.
She gave a comprehensive account over the 60 minutes of the assessment.
There is no evidence of disorder of thought-form or perception.
At the end of the interview, when asked if she had anything to add, she said, ‘I don’t know how to stop the spiral. The injustice has triggered paranoia and anxiety’.”
The MA summarised the injury and his diagnosis as follows:
“summary of injuries and diagnoses:
I make my diagnoses relying on criteria outlined in the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.
oMajor depressive disorder with anxious distress
ACK has had mood symptoms for more than two years. While her condition may have started as an adjustment disorder, it is now entrenched, and she meets the criteria for major depression. This diagnosis supersedes that of an adjustment disorder.
consistency of presentation
Her presentation is consistent across assessments and in the provided documents.”
The MA has had regard to the other evidence that was before him. He specifically notes where his opinion differs from the opinions of the independent medical expert (IME)ualified on behalf of the appellant Dr Chow whose reports were in evidence before him in respect of the assessments under the PIRS categories. He specifically notes where his opinion differs from the opinions of the IME qualified on behalf of the respondent Dr Teoh whose reports were in evidence before him in respect of the assessments under the PIRS categories. The MA makes comments as follows:
“I have reviewed all the documents provided by the PIC, including two sets of documents provided after an application to admit late documents.
Various medications are mentioned in the medical files, including citalopram, melatonin, fluoxetine, diazepam and amitriptyline, attesting to the difficulty in stabilising ACK’s condition.
A note written by GP Dr Kolhapurwala, 16 July 2018, refers to a recent panic attack:
…related to ongoing verbal abuse from an ex who is at the same workplace as her - her ex is frequently calling and screaming at her over the phone and also sending numerous negative text messages a day - seems like he wants to control her - at one stage recently, pt felt like getting in the car and driving a way to escape - friends aware of situation and now some colleagues know her situation.
ACK said that this was a man with whom she had a brief relationship, and the abuse was short-lived.
A Notice of Decision under the Victims Rights and Support Act 2013 (NSW), 16 November 2020, states, ‘Contemporaneous police, court and medical evidence on the file clearly establishes that ACK was pushed by the offender on 17 November 2018 and that is a direct result of this violence, ACK has continued to suffer from ongoing psychological injury.’
The assault occurred at a workplace function and was perpetrated by the woman who had targeted and bullied her in the workplace. It might reasonably be attributed to her work.
Treating psychologist Ms Tracy Durrant had diagnosed ’anxiety and depression’, which she characterised as severe in her early sessions.
Treating psychiatrist Dr Eoin Wilson, diagnosed an ‘adjustment disorder with anxiety and disturbed mood.’ By 13 November 2019, he considered her improved and fit to work with the ADF full time without restrictions.
IME psychiatrist Dr Frank Chow, 27 April 2020, diagnosed ‘Chronic Adjustment Disorder with anxiety and traumatisation symptoms.’ He determined a whole person impairment of 17% (Classes 3, 3, 2, 3, 3, 2).
IME psychiatrist Dr Ben Hooi-Beng Teoh, 16 September 2020, diagnosed ‘Chronic Adjustment Disorder with Mixed Anxious and Depressed Mood.’‘He initially determined a WPI of 15% (Classes 1, 3, 2, 3, 3, 3), but on 15 October 2020, after receiving further information from the insurer, he offered a supplementary report in which he revised the WPI to 11% (Class 1, 3, 2, 3, 2, 2). Dr Teoh has erred in his calculation of 11% WPI; based on his class ratings, the WPI should be 7%.
I differ from Dr Teoh on the domain of self-care and personal hygiene. He writes, ‘She has been lacking motivation to care for herself. She said that she has neglected to care for herself and she not been motivated to clean up her house.’This description is in line with mild impairment, and I refer the reader to my PIRS table.
I differ from Dr Chow in the domain of concentration, persistence and pace. He writes:
She states she is forgetful and has poor concentration. She often needs to rely on a list and tends to buy the wrong things when she goes to shops. She has short attention span and needs help at work due to poor concentration.
On the other hand, she is in a new job, where she is learning new skills. Her employer posted that she is on the team as a ‘Broker Support Manager in training to become our second loan writer.’ She reads books and showed no obvious signs of cognitive difficulties over the sixty-minute interview. Her impairment is mild.”
The appellant complains that the MA has erred in respect of the assessments for Self-Care and Personal Hygiene, Social Functioning, Concentration, Persistence and Pace and Employability.
The panel, after careful review of the evidence, can discern no error in the ratings ascribed by the MA in respect of the categories of Self-Care and Personal Hygiene, Social Functioning, Concentration, Persistence and Pace and Employability complained about on appeal. There was no application of incorrect criteria. Each of the ratings were open to the MA in accordance with the correct application of the criteria in the Guides. The MA has given reasons for each of his ratings. He has given a clear and reasoned explanation, that is based on the application of his clinical expertise and accords with the criteria set out in the Guidelines. The MA has to rate according to the criteria in the Guides and provide the best fit in each category. He has done so without discernible error. The MA must rate impairment that results from injury. The ratings ascribed by the MA in the four categories under complaint accord with the criteria for each class. The MA cannot ascribe rating on the basis of self report alone, he must exercise his clinical judgment and have regard to all of the evidence before him, He has done this without discernible error. The Panel cannot interfere with these ratings absent error by the MA.
In respect of Self Care and Personal Hygiene, Table 11.1 of the Guides provides as follows:
Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population Class 2 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. Class 3 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. Class 4 Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self. Class 5 Totally impaired: Needs assistance with basic functions, such as feeding and toileting.
The MA rated a mild impairment at Class 2 with the following reasoning:
“ACK lives as an independent adult with her mother. She contributes to the housework, although not to the degree that she did previously. She shops and cooks meals twice a week but sometimes will miss meals. She showers daily but neglects dental flossing.”
The appellant is clearly on the evidence able to live as an independent adult and the rating of a mild impairment accords with the criteria in that Class. The Panel can discern no error.
In respect of Social Functioning, Table 11. 4 of the Guides provides as follows:
Table 11.4: Psychiatric impairment rating scale – social functioning
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years). Class 2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships. Class 3 Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children. Class 4 Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent). Class 5 Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.
The MA rated a moderate impairment at Class 3 and provided the following reasoning:
“She is more irritable and ‘snappy’. Her relationship with her mother is good. She has maintained a few friendships but lost others through social withdrawal. She no longer talks to her sister and broke up with a boyfriend last year because of her condition.”
The appellant submitted the rating should have been a severe impairment at Class 4.
The Panel notes that the criteria upon which the MA has based his assessment clearly accord with the criteria for a moderate impairment in the category of Social Functioning.
Furthermore the Appeal Panel notes that the assessment of a moderate impairment by the MA in this class of Social Functioning accords with that of the IME qualified on behalf of the appellant Dr Chow.
In respect of Concentration, Persistence and Pace, Table 11.5 of the Guides provides as follows:
Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace
Class 1 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. Class 2 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. Class 3 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. Class 4 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. Class 5 Totally impaired: needs constant supervision and assistance within institutional setting.
The MA rated a mild impairment at Class 2 with the following explanation:
“She has subjective difficulties in this domain and uses lists as an aide-memoire. She reads books, although less than before. She is in a job that requires new learning and attention to detail. Her employer described her as ‘in training’ to becoming a loan writer.”
The appellant says the rating should have been a moderate impairment at Class 3. However the MA has to make an assessment on the day of examination, he has the benefit of conducting a mental state examination on that day and is required to use his clinical expertise in making the assessment. He cannot rely on self report alone and must have due regard to the other evidence before him. The MA specifically explains where his opinion differs from that of Dr Chow, the IME qualified on behalf of the appellant as follows:
“I differ from Dr Chow in the domain of concentration, persistence and pace. He writes:
‘She states she is forgetful and has poor concentration. She often needs to rely on a list and tends to buy the wrong things when she goes to shops. She has short attention span and needs help at work due to poor concentration.’
On the other hand, she is in a new job, where she is learning new skills. Her employer posted that she is on the team as a ‘Broker Support Manager in training to become our second loan writer.’ She reads books and showed no obvious signs of cognitive difficulties over the sixty-minute interview. Her impairment is mild.”
The Appeal Panel can discern no error in this assessment.
In respect of Employability Table 11.6 of the Guides provides as follows:
Table 11.6: Psychiatric impairment rating scale – employability
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.
The MA rated a mild impairment at Class 2 with the following explanation:
“She is working about 18 hours each week. She was working full-time and doing a part-time job, a work situation that she maintained for twelve months after leaving her job as a parole officer. Her condition has not deteriorated. She left the job because she had not declared that she was on compensation, and she wanted to focus on her role as an assistant to a mortgage broker. She could likely continue to work full-time in a position different from that of a parole officer, but working two jobs may be too much.”
The MA has assessed the appellant as being able to work full time and this is in accordance with his assessment on the day of examination where he has exercised his clinical expertise. He has had due regard to the other evidence before him. The Appeal Panel notes that the assessment of Class 2 for employability accords with that of both other IMEs whose opinions are in evidence. The Panel can discern no error in this assessment.
The ratings the MA has ascribed in the classes of Self-Care and Personal Hygiene, Social Functioning, Concentration, Persistence and Pace and Employability complained about on appeal accord with the criteria in the Guides. The Panel cannot disturb these ratings absent error by the MA which the Panel cannot discern. The ratings for each of these categories are well-reasoned, not based on self-report alone and have had due regard to the history taken by the MA, the mental state examination conducted by him, and having due regard to the other evidence that was before him. The MA has exercised his clinical judgment on the day of examination and the Panel can discern no error.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 May 2021 should be confirmed.
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