Albee v State of New South Wales (NSW Police Force)
[2024] NSWPICMP 490
•24 July 2024
|
DETERMINATION OF APPEAL PANEL | |
| CITATION: | Albee v State of New South Wales (NSW Police Force) [2024] NSWPICMP 490 |
| APPELLANT: | Steven John Albee |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 24 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appellant submitted that the Medical Assessor (MA) erred in respect of his assessments with respect to three of the psychiatric impairment rating scale (PIRS) categories, namely social and recreational activities, travel and employability; Held – no error by MA; Medical Assessment Certificate (MAC) was thorough and detailed; MA clearly explained his path of reasoning in respect of all the PIRS categories; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 February 2024 Steven John Albee (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Douglas Andrews, , who issued a Medical Assessment Certificate (MAC) on 1 February 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in respect of his assessments with respect to three of the Psychiatric Impairment Rating Scale (PIRS) categories, namely social and recreational activities, travel and employability.
In reply, the respondent submits that no errors were made.
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 appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological injury occurring on 6 September 2016.
The Medical Assessor set out the history he obtained as follows:
“Mr Albee was attested as a probationary officer on 13 December 2013 and posted to St Mary’s. Like other police officers, he was exposed to traumatic incidents involving death and serious injury from early in his career. For example, he attended the death of an elderly gentleman who died choking on food in 2013. Also, before his index injury, he attended the death of a friend who committed suicide by jumping in front of a train. These were distressing incidents for Mr Albee but did not result in diagnosable mental health conditions.
On 6 September 2016 (the date of injury), Mr Albee was involved in the arrest of a violent offender. During a scuffle, the offender “slammed” into Mr Albee’s left leg. Initially, Mr Albee had no concerns, but the pain increased over the next few hours, eventually becoming intense, necessitating a visit to the hospital. He was given pain relief and followed up by his general practitioner. Eventually, an ultrasound was done, and a partial tear to the patella tendon was diagnosed. Mr Albee describes the subsequent surgical events in his statement of 15 December 2023:
“6. I have undergone several surgical interventions including:
a) Repair of the patellar tendon and excision of the tip of the patella and reattachment of the patella, performed by Dr Johnson.
b) Left knee tendon and fat pad debridement plus iliotibial band lengthening, performed by Dr Balalla on or around 10 April 2018.
c) Radiofrequency ablation of the left adductor canal and percutaneous electrical nerve stimulation, performed by Dr Nazha.
7. I have also undergone numerous ketamine infusions to reduce the intensity of my symptoms. 8. On or around 6 October 2023, I ruptured my right knee ACL, a consequential injury of the left knee, due to it giving way. I am currently receiving treatment for this and have surgery booked for 20 November 2023 for a repair.”
Mr Albee was on restricted duties until Boxing Day, when he returned to fully operational policing. On New Year’s Eve 2016, he attended the death of a 23-month-old child who had been run over by a car in the driveway. This event was particularly traumatic for Mr Albee.
He continued at work using oxycodone in excessive amounts to cope with his pain. His first surgery was in June 2017, after which he never returned to full operational duties.
He resigned on 26 November 2018.
Mr Albee had discussed some of the more challenging aspects of his police work with superior officers and with his general practitioner before the knee injury but didn’t seek help for his mental health formally until afterwards, and he was referred to a psychologist.”
Present treatment was noted as follows:
“Treating clinicians: general practitioner Dr Michael Looi, psychologists Dr Bianca Heng and Mr Dylan Underhill.
Psychiatric medication: Nil
Mr Albee saw Dr Heng every two weeks until she went on maternity leave in 2023. His care was transferred to Mr Underhill, who works in the clinic of Mr Albee’s pain specialist.
He acknowledges that he was abusing oxycodone and “went cold turkey” in 2017. He has not used this medication since. This experience has made him wary of medication, and he has refused offers of psychotropic medication such as antidepressants.
He has attended a two-day PTSD program called The Locker Room.”
Present symptoms were noted as follows:
“Mr Albee’s condition fluctuates, but he could not say whether there has been any improvement over the last couple of years.
His mood varies and is reactive to circumstances. He is frequently irritable and prone to anger, lacks patience and is easily frustrated. He is occasionally teary.
He is anxious, often worse in the evening, as he anticipates nocturnal nightmares. When possible, he avoids places in St Mary’s that remind him of his police duties. He is uncomfortable in crowded places.
He takes pleasure in his family and enjoys his hobby of target shooting.
He has some intrusive thoughts, but these are manageable during the day. They are focused on his police experiences and “the way they treated me.”
He has subjective challenges with concentration, attention and memory.
He is generally in bed between 9 and 9:30 PM and watches television until he falls asleep between 10:30 and 11:30 PM. He wakes with nightmares after midnight and has poor-quality sleep after that. Sometimes, he doesn’t fall back asleep at all. 90% of his nightmares are about the death of the baby in 2016.
He eats a poor diet and, together with his reduced exercise, has gained weight.
Asked about his libido, he said, “I don’t have energy for it.”
The Medical Assessor then set out details of Mr Albee’s general health and said:
“Mr Albee has gastro-oesophageal reflux, for which he takes his esomeprazole.
He suffers from chronic pain and continues to see a pain specialist. He is having lignocaine and ketamine infusions every 3 to 4 months. He rates his pain on average 6-7/10 (10 being the worst pain possible), ranging from 3 to 10.
He uses tapentadol 50 mg at night for pain relief.
He does not smoke cigarettes or drink alcohol. He has not used oxycodone since 2017.
Mr Albee weighs 130 kg; at 188 cm, his BMI is 36.8, in the obese range. Although he estimates that he has gained 25 kg since his injury, his weight has varied: 104 kg in 2011, 118 kg in 2012, 113 kg in 2013 and 126 kg in December 2016.”
The Medical Assessor then set out details of Mr Albee’s work history before turning to consider his social activities and activities of daily living (ADL’s), and said:
“Mr Albee lives on a 20-acre property at Ebenezer NSW with his fiancée Nicole and their two children, four-year-old Elsie and two-year-old Lenny. He and Nicole have been together for 12 years, and she works in an office administration. She works full-time, attending her workplace one day a week while working at home the rest of the week.
Mr Albee rises at 6 AM with his children, prepares their breakfast and readies them for the day. He is responsible for their care while Nicole works, except when they are in daycare. He does some housework, for example, stacking dishes or doing laundry, but is limited by his physical injury and pain.
Together with Nicole, he takes Elsie to her various activities, which include dance and swim classes.
He prepares simple meals for his children but often relies on takeaway food, such as McDonald’s. He does some shopping with Nicole and sometimes skips meals.
He attends to showering, wearing clean clothes and dental hygiene daily.
Before his injury, he was active in various team sports, hunting, and motorbiking. He had an active social life with friends and attended sporting fixtures. However, his physical injury and pain prevent him from participating in sporting activities.
He rarely has outings with friends anymore. He and Nicole socialise with another couple with children about once a month. His in-laws visit frequently, and they share meals. He and Nicole occasionally go to a restaurant to celebrate a birthday. He has a shooting range on his property and enjoys target shooting with a 22-calibre air rifle.
He drives a car and rides his motorcycle. He takes his children to activities, driving 30 minutes to St Mary’s or 15 minutes to Richmond or Rouse Hill. In the last six months, he has travelled to Lithgow (about 90 minutes each way) and flown to Perth for a family holiday, where they stayed for seven days.
He has close and loving relationships with Nicole and his children. He is also close to his parents, siblings, and in-laws. He keeps in touch with his siblings but sees them infrequently. He has lost friends because of his social disengagement.
He has never had much interest in reading. He watches television with Nicole – they are currently watching Survivor. He enjoys watching sports on television and has recently followed Gossip Girl.
He has purchased a membership to attend netball games for the family and hopes to attend games, commencing in April. If he cannot do so, his contingency plan is for Nicole to attend with her mother and children.
He worked for 18 months as a Dawson Moving and Storage manager, responsible for training, support and recruitment. He found the work challenging and felt he was underperforming. He planned to resign in 2023 but was instead offered redundancy. He believes redundancy was offered because of his performance issues. He feels unable to work now.”
Findings on examination were reported as follows
“I assessed Mr Albee by video link for 80 minutes with him sitting in his car in the paddock. He wanted to leave the house to be away from his children and any distractions.
He presented as an overweight man, casually attired and well-groomed.
He appeared comfortable during the interview, with a reactive affect. There was no evidence of any disorder of thought form or perception.
He gave a coherent account during the interview without obvious deficits in attention or memory.
When asked at the end of the interview if he had anything else to add, he said, “I can’t think of anything.”
The Medical Assessor diagnosed post-traumatic stress disorder (PTSD) and said:
“Mr Albee experienced trauma in the course of his police work. Some of these events occurred before the injury in September 2016, but the most significant single event was the death of a child in the driveway accident at the end of that year. As time passed and his physical injury and pain didn’t resolve, the symptoms of PTSD were exacerbated. Eventually, they became entrenched. He has continued intrusion symptoms in the form of distressing memories and nightmares. He avoids discussing his circumstances and, whenever possible, travelling to areas that remind him of his police career. He has some negative alterations in mood and cognition with diminished interest in participating in significant activities. He has alterations in arousal and reactivity, evidenced by irritability and anger, hypervigilance and sleep disturbance.
He would have met the criteria for a substance use disorder while misusing oxycodone, but this is now in remission.
He suffers chronic pain and physical limitations, which are exacerbating factors for his PTSD.”
The Medical Assessor assessed 7% WPI.
He then turned to consider the other medical opinions and documents before him and said:
“IME psychiatrist Dr Peter Anderson interviewed Mr Albee on 22 March 2023, when he worked full-time in human resources employed by Dawson Moving and Storage. Dr Anderson noted that Mr Albee “came to be aware of psychological symptomatology when he could not handle stress and pain.” Dr Anderson diagnosed post-traumatic stress disorder “largely to do with a particular [sic] dramatic event in New Year’s Eve 2016, the death of a child in a driveway.” He assessed a 15% WPI (classes 2, 3, 2, 2, 3 and 3).
IME psychiatrist Dr Mukesh Kumar, 17 August 2023, agreed with the diagnosis of PTSD but opined that Mr Albee had not reached maximum medical improvement. Despite this, he offered an assessment of 19% WPI (classes 2, 3, 2, 2, 3 and 5).
Drs Anderson and Kumar found a moderate impairment in social and recreational activities, whereas I considered the impairment mild.
Dr Anderson noted: “Moderate impairment is rated in this domain of activity. There has been social withdrawal and avoidance of previous recreational activities. The avoidance is largely to avoid triggers of his symptoms, questions from others leading to anxiety and intrusive memory. He has a strong preference for being at home. He does not go anywhere without his fiancée. He does not engage in group activity.”
And Dr Kumar: “Mr Albee reported that for the most part of the last few years, he did not take part in any social or recreational activities. He says in the last 6 months, he has attempted to go out for walks with his wife in the local park. He says that there are times when he encounters other people in the park and finds these interactions difficult. He does not take part in other social events. He added that he used to love shooting and hunting which he has now stopped completely. He says that he also had an interest in motorbikes and going outdoors as well as playing golf and he has stopped all these activities.”
Mr Albee has a social get-together with friends with children of similar ages to his own about once a month. He attends family celebrations and his daughter’s dance and swimming activities. He has travelled to Perth recently for a family holiday. He enjoys recreational shooting, although this is a solitary activity. He has dinners with his in-laws, who visit frequently. He plans to attend netball games with his family when the new season starts.
Drs Anderson and Kumar found a mild impairment in travel, whereas I considered Mr Albee unimpaired or with a minor deficit attributable to the normal variation in the general population.
Dr Anderson wrote: “Your client has a preference to be at home because of anxiety when out. He is able to operate a motor vehicle but he is not able to do so in unfamiliar circumstances.”
And Dr Kumar: “Mr Albee reported that he is able to drive and travel in his local area. He says that he lives approximately 35 minutes away from Penrith. He is able to go to his local doctors as well as dropping his kids to daycare, however, he needs his partner for any long-distance travel.”
Mr Albee is independent with local travel. He said he was comfortable doing so, except in the area of St Mary’s, where he is confronted with reminders of his policing work. He travelled to Lithgow for a Christmas lunch and to Perth for a family holiday. It is not unusual for a wife or partner to accompany their spouse on family outings or holidays. This cannot be seen as indicating that Mr Albee could not travel alone.
Dr Anderson found Mr Albee moderately impaired in employability, whereas Dr Kumar thought him unfit for work, and I considered the impairment to be severe. When Dr Anderson assessed Mr Albee, Mr Albee worked full-time in a responsible role. Unfortunately, he was underperforming and unable to continue. The role with Dawson was demanding, and he continued in it for 18 months. Likely, Mr Albee could work a less demanding role, fewer than 20 hours a fortnight, with reduced pace and erratic attendance.”
The Submissions
Social and recreational activities.
The Medical Assessor assessed a Class 2 rating and said:
“He has reduced social and recreational activities. He has monthly get-togethers with friends with children of his children’s ages. He participates in family gatherings, including dinners at home and occasional restaurant celebrations. He enjoys target shooting as a solitary activity. He goes on holiday with his wife and children.”
The descriptor for a Class 2 reads: “Mild Impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved (e.g. dancing, cheering favourite team).”
For a Class 3 it reads: “Moderate Impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without support person. Not actively involved, remains quiet and withdrawn.”
The appellant’s submissions may be summarised as follows:
(a) The appropriate rating should be a Class 3.
(b) It has been reported that the appellant rarely engages in outings and when he does his support person, Nicole, accompanies him. Furthermore, the frequent socialisation with his in-laws that does occur, occurs within his home.
(c) In his statement dated 15 December 2023, the appellant made the following statements: “Social avoidance, Socially isolated, Demotivated to participate in any interest or activities, I am no longer a sociable, extraverted, competent person I used to be and no longer wish to engage in socialising with friends and family, I cannot engage in groups, my fiancée prompt me to join, however I cannot cope with group involvement, I have attempted to go out for walks to the local park with my fiancée. There have been times where I encounter other people. I find these interactions quite difficult.”
(d) Dr Peter Anderson in his report of 22 March 2023 said: “He cannot engage in a group. It is always with Nicole that he will go out and she will prompt him and he will not be able to cope with group involvement.”
(e) Dr Kumar in his report dated 17 August 2023 said: “Mr Albee reported that for the most part of the last few years, he did not take part in any social or recreational activities. He says in the last 6 months, he has attempted to go out for walks with his wife in the local park. He says that there are times when he encounters other people in the park and finds these interactions difficult. He does not take part in other social events. He added that he used to love shooting and hunting which he has now stopped completely. He says that he also had an interest in motorbikes and going outdoors as well as playing golf and he has stopped all these activities. Impairment in this domain is class 3."
(f) The recorded Class 2 for social and recreational activities is inconsistent with the history recorded by Dr Andrews.
Travel
The Medical Assessor assessed a Class 1 rating and said:
“He is independent with local travel and is comfortable doing so, except to St Mary’s, where there are too many reminders of his police work. For example, he can travel longer distances to Lithgow (1 ½ hours each way by car) and Perth by air. He travels on these longer journeys with his wife, as expected on a family outing or holiday.”
The descriptor for a Class 1 reads: “No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.”
For a Class 2 it reads: “Mild impairment: Can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
The appellant’s submissions may be summarised as follows:
(a) The evidence recorded states he is to an extent able to travel locally, however, requires his family to travel further.
(b) It has been reported that the appellant is independent with local travel, save for the St Mary's area which triggers his symptoms due to traumatic incidents taking place there. We note Dr Andrews has recorded that the appellant has travelled long distances with his family, however, believes this does not evince that he requires a support person for long distance travel. This is despite there be no recording that the appellant has travelled long distances himself.
(c) In his statement dated 15 December 2023, the appellant made the following statements: “The incidents I witnessed continue to haunt me to this day. I avoid particularly the St Marys area as it reminds me of the incidents I have attended. I prefer to stay at home and do not like travelling to unfamiliar places as I become anxious. I avoid going on long drives as I use to spend most of my time in the car during my work with the police.”
(d) Dr Peter Anderson in his report of 22 March 2023 said: "He has strong preference to be at home. He does not like travelling in an unfamiliar area. He becomes anxious."
(e) Dr Kumar in his report dated 17 August 2023 said: "Mr Albee reported that he is able to drive and travel in his local area. He says that he lives approximately 35 minutes away from Penrith. He is able to go to his local doctors as well as dropping his kids to daycare, however, he needs his partner for any long-distance travel."
(f) The recorded Class 1 for travel is inconsistent with the history recorded by Dr Andrews and the evidence before him. It is respectfully submitted that the appropriate class is 2 and not class 1.
Employability
The Medical Assessor assessed a Class 4 and said:
“Mr Albee felt unable to continue in a demanding full-time job with Dawson’s and accepted a redundancy. However, he could likely manage a less demanding role at a reduced pace for less than 20 hours a fortnight, although his attendance might, at times, be erratic.”
The descriptor for a Class 4 reads: “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.”
For a Class 5 it reads: “Totally impaired: Cannot work at all.”
The appellant submits as follows:
(a) The history taken by Dr Andrews appears to be contradictory to the reports of Dr Peter Anderson and Dr Mukesh Kumar.
(b) Dr Anderson said: “Your client’s chosen field was police service. He is unfit for that. He is currently working in human resources and prospects of advancement do not appear strong, as he is not subjectively coping with the job and not managing to do the training program which is expected of him."
(c) Dr Kumar said: “Mr Albee attempted to return to work and though he was able to manage for 16-17 months, he had to stop work due to his ongoing severe symptoms. Given the severity of his symptoms, I do not believe that he is able to work in any capacity."
(d) Following Dr Anderson's assessment, the appellant was made redundant from his job due to performance issues. The appellant is currently not engaged in any work.
(e) The recorded Class 4 for employability is inconsistent with the history recorded by Dr Andrews and the evidence before him. It is respectfully submitted that the appropriate class is 5 and not class 4.
Discussion
To begin with, clause 1.6 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th Edition) (Guidelines) notes that the task of a Medical Assessor is to assess a claimant as they present on the day of the assessment. (our emphasis).
In addition, clause 11.6 of the Guidelines indicates that “evaluation of impairment will need to take into account variation in level of functioning over time”.
The appellant places considerable reliance on the opinions of Drs Anderson and Kumar.
Dr Anderson saw the appellant in March 2023 and Dr Kumar in August 2023, and the Medical Assessor in January 2024, some considerable time later.
Dealing firstly with the category of social and recreational activities, the Medical Assessor recorded that:
“Mr Albee has a social get-together with friends with children of similar ages to his own about once a month. He attends family celebrations and his daughter’s dance and swimming activities. He has travelled to Perth recently for a family holiday. He enjoys recreational shooting, although this is a solitary activity. He has dinners with his in-laws, who visit frequently. He plans to attend netball games with his family when the new season starts.”
In our view, it is clear from the history obtained by the Medical Assessor that the appellant’s level of functioning in this domain had improved since the assessments by Drs Anderson and Kumar.
As the Medical Assessor observed: “He takes pleasure in his family and enjoys his hobby of target shooting.”
The descriptor for a Class 2 rating in this category refers to a claimant “occasionally” going out to social events, whereas for a Class 3 the reference is to “rarely.”
As the Medical Assessor noted, Mr Albee “occasionally socialises (approximately once/month) with friends and family” and continues his hobby of shooting as a recreational activity.
This is inconsistent with the observations of Dr Kumar who said: “He does not take part in other social events. He added that he used to love shooting and hunting which he has now stopped completely.”
Given the history obtained by the Medical Assessor, in our view the frequency of Mr Albee’s attendance at social gatherings is “occasional,” and the Medical Assessor noted the same frequency. He said: “He participates in family gatherings, including dinners at home and occasional restaurant celebrations.”
In addition, the Medical Assessor noted that: “He has purchased a membership to attend netball games for the family and hopes to attend games, commencing in April.” Whether this eventuated is of course unknown, but it suggests that Mr Albee anticipated at the time of the Medical Assessor’s assessment that such an activity may be within his level of functioning.
Finally, we point out that the Medical Assessor clearly explained his reasons as to why he disagreed with the assessments of Drs Anderson and Kumar.
His assessment in this category was consistent with a Class 2 rating on all of the evidence. He ascribed the appropriate rating, and we see no error by him.
Turning next to the category of Travel, the Medical Assessor noted that Mr Albee was “independent” with local travel except to St Marys.
This is consistent in our view with a “minor” deficit that could well be “attributable to the normal variation in the general population.”
For example, many members of the general population may avoid a particular area because of unhappy memories of such a place.
In addition, on the history obtained by the Medical Assessor, the appellant seems capable of travelling “to new environments without supervision.”
Again, on the history obtained by the Medical Assessor, it cannot be said that Mr Albee “can travel without a support person, but only in a familiar area such as local shops, visiting a neighbour.” (our emphasis)
The Medical Assessor noted that he “travelled to Lithgow for a Christmas lunch and to Perth for a family holiday.”
Of more significance is the Medical Assessor’s observation that: “It is not unusual for a wife or partner to accompany their spouse on family outings or holidays. This cannot be seen as indicating that Mr Albee could not travel alone.”
We agree with this observation. As the respondent pointed out:
“In the last six months, the appellant has travelled to Lithgow (about 1 ½ hours each way by car) and Perth by air for a family holiday. They stayed in Perth for seven days. These longer distances were with his wife, which would be expected on a family holiday.”
Again, in our view, the Medical Assessor ascribed the correct rating in this category. It is consistent with the evidence he obtained, and we see no error in his assessment.
Turning finally to the category of Employability, the Medical Assessor said:
“Dr Anderson found Mr Albee moderately impaired in employability, whereas Dr Kumar thought him unfit for work, and I considered the impairment to be severe. When Dr Anderson assessed Mr Albee, Mr Albee worked full-time in a responsible role. Unfortunately, he was underperforming and unable to continue. The role with Dawson was demanding, and he continued in it for 18 months. Likely, Mr Albee could work a less demanding role, fewer than 20 hours a fortnight, with reduced pace and erratic attendance.”
Contrary to the appellant’s submission, the Medical Assessor found Mr Albee more impaired in this category than Dr Anderson.
Consistent with the descriptor for a Class 4 rating, the Medical Assessor accepted that in any employment Mr Albee would likely only be able to work “with reduced pace and erratic attendance.”
As the respondent correctly points out:
“The MA is not required to identify the nature of employment that the Appellant is capable or performing or whether any such work is in fact available (Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633).”
And further:
“The available evidence, including the IME reports, does not prevent the MA finding that at the date of the assessment, the appellant had current work capacity. It is within the expertise of the MA to make that finding, and it was available to him on the appellant’s presentation and available evidence.”
We agree with the respondent’s submissions in respect of this category.
Given the Medical Assessor’s findings regarding Mr Albee’s overall functioning, we note that he had worked full time for nearly eighteen months until a month or two prior to the assessment when he took redundancy. Even if underperforming in that full time demanding role, this does not support the appellant’s proposition that only a few weeks later, without any apparent change in his underlying symptoms, he would be considered totally unable to work at all in any setting, even for a few hours a week, with erratic attendance.
Again, it seems to us that the Medical Assessor ascribed the correct rating having regard to the whole of the evidence.
Finally, we emphasise that the MAC was both thorough and detailed, and the Medical Assessor clearly explained his path of reasoning in respect of all the PIRS categories.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 February 2024 should be confirmed.
0
2
0