Banks v Melitta Professional Coffee Solutions Australia Pty Ltd
[2022] NSWPICMP 356
•14 September 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Banks v Melitta Professional Coffee Solutions Australia Pty Ltd [2022] NSWPICMP 356 |
| APPELLANT: | Robert Banks |
| RESPONDENT: | Melitta Professional Coffee Solutions Australia Pty Ltd |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Dr Douglas Andrews |
| MEDICAL ASSESSOR: | Dr Michael Hong |
| DATE OF DECISION: | 14 September 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION- Assessment of permanent impairment from psychological injury; appellant relied on grounds for appeal provided in s327(3)(b), (c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 submitting that a statement he signed after the assessment revealed Medical Assessor denied him procedural fairness by not recording a correct history and by not permitting him to provide the details he wanted to provide and by making factual findings without any evidence; Held – Appeal Panel did not receive late statement into evidence; no grounds established; Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 April 2022 Robert Banks, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor (the Application). The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 1 April 2022.
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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· 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.
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).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment with Melitta Professional Coffee Solutions Australia Pty Ltd, the respondent, as its national sales manager on 15 November 2016. Due to events to which he was subject in his employment thereafter he suffered a psychological injury.
On 30 March 2020 he made a claim for weekly payments of compensation and compensation for medical, hospital and rehabilitation expenses. The respondent’s insurer thereupon required the appellant to submit to an examination by forensic psychologist Associate Professor Robert Kaplan, which occurred on 13 May 2020. In a report of that date that Associate Professor Kaplan provided to the insurer he confirmed that the appellant suffered an injury due to the appellant’s work with the respondent, which he diagnosed was Major Depressive Disorder.
On 31 July 2020, the insurer wrote to Associate Professor Kaplan providing him with “additional information”, which seems to have been a report on a factual investigation the insurer undertook, and requesting the Associate Professor provide it with a supplementary report. One question the insurer posed to Associate Professor Kaplan was “if you believe work to still be the substantial factor, do you believe that the demotion and subsequent termination by his previous employer, Melitta, is the whole/predominate contributor to the diagnosis?”, to which Associate Professor Kaplan responded as follows:
“I have reviewed the factual investigation. The salient points are that Mr Banks' allegations are denied by the management. It should be noted that a psychiatric examination is not a setting where the credibility of these issues can be tested; furthermore, clinical experience is that a person accused of bullying never admits to this.
There are two possible causes of his disorder:
• It arose as Mr Banks has claimed;
• It arose from disciplinary steps taken at work, as well as distress over personal matters.”
On 10 September 2020 the insurer wrote to the appellant notifying him under s 78 of the 1998 Act that it denied liability for his claim for compensation because it considered his psychological injury, which it described in its correspondence as “Anxiety Disorder Unspecified”, was wholly or predominantly caused by reasonable action the respondent had taken or proposed to take with respect to demotion and dismissal, which by virtue of s 11A of the Workers Compensation Act1987 (the 1987 Act) meant the appellant had no entitlement to compensation.
Following that, the appellant consulted solicitors, who arranged for the appellant to be examined by psychiatrist Dr Frank Chow on 4 November 2020. In a report of 9 November 2020 Dr Chow advised the appellant’s solicitors that he had diagnosed the appellant had Major Depressive Disorder as a result of being bullied by another employee of the respondent. In a further report dated 11 November 2020 Dr Chow advised that he had assessed the appellant to have 22% whole person impairment (WPI) from his injury.
On 3 December 2020 the appellant’s solicitors wrote to the insurer requesting it review its decision to deny the appellant’s claim for compensation. It also advised the insurer that the appellant was claiming compensation of $58,750 under s 66 of the 1987 Act for 22% WPI from his injury.
On 17 December 2020 the insurer wrote to the appellant, care of his solicitors, advising him that it denied liability to pay him compensation. The reason it provided was again that his psychological injury was wholly or predominantly caused by reasonable action the respondent took or proposed to take with respect to demotion and dismissal.
On 19 February 2021 the appellant lodged with the Personal Injury Commission (the Commission) an Application to Resolve a Dispute seeking determination of his claim for weekly payments of compensation and for compensation for 22% WPI. The date of injury was specified within the application to be 1 July 2017.
The matter was referred to Member Brett Batchelor. On 23 March 2021 the Commission issued an Amended Certificate of Determination recording the following determinations the Member made with the consent of the parties:
“1. The Injury Details in the Application to Resolve a Dispute (the Application) are amended by deleting ‘1/01/2017’ and ‘1/01/2017 To 8/04/2020’ where appearing and inserting in lieu thereof:
‘18/01/2020’” and ‘18/01/2020 - Deemed Date’
2. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment for assessment of the degree of whole person impairment as a result of psychological injury deemed to have occurred on 18 January 2020.
3. The documents to be referred to the medical assessor are:
(a) the Application and attachments;
(b) Reply and attachments, and
(c) WorkCover certificates of capacity to be lodged and served by the applicant by 29 March 2021.
4. The parties have leave to approach the Commission for a further telephone conference in respect of the applicant’s claim for weekly benefits after issue of the medical assessment certificate.”
A Delegate of the President issued an Amended Referral to the MA on 10 March 2022, consistent with the Consent Orders the Member made.
On 18 June 2021 the MA examined the appellant, in response to that referral. On 28 June 2021 the MA issued a Medical Assessment Certificate (the earlier MAC) in which he expressed his view that the appellant had not reached maximum medical improvement. He declined, as a consequence, to assess the degree of the appellant’s permanent impairment from his injury. That was in accordance with s 322(4) of the 1998 Act because the appellant’s permanent impairment was not fully ascertainable.
On 1 February 2022 the appellant’s solicitors wrote to the Commission by email requesting that the matter be reinstated on the basis that the appellant had now reached maximum medical improvement. In a letter dated 22 February 2022 the respondent’s solicitors advised that the respondent did not oppose the appellant’s request.
It is apparent that the Delegate of the President again referred the medical dispute between the parties to the MA for assessment. As mentioned, the MA issued the MAC on 1 April 2022. In that he certified that the appellant’s impairment is permanent and that the degree of the appellant’s permanent impairment is fully ascertainable. He certified that he had assessed the appellant to have 8% WPI from his injury.
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.
During its preliminary review, the Appeal Panel considered whether it should receive into evidence a statement the appellant signed on 28 April 2022.
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant in his statement of 28 April 2022 described his impressions of certain aspects of the MA’s examination of him and also detailed his function with some matters falling within the Psychiatric Impairment Rating scales (PIRS) that must be evaluated and rated to establish his impairment from injury.
With respect to the manner in which the appellant considered the MA conducted his examination he said that “the MA kept shutting me down”, without providing any detail or any words of the conversations between him and the MA by which he considered that occurred. He described that the examination started late and lasted for 20 minutes, which contradicts what the MA said in the MAC which was that it lasted for 45 minutes. The appellant said that he “thought the meeting seemed quite rushed” compared with the examination the MA conducted on 28 June 2021, but again the appellant provided no detail by which he formed that impression. He said he didn’t feel heard during the examination. He said that the MA “seemed extremely frustrated that I didn’t attend the inpatient programme at Northern Beaches Hospital”, but again provided particulars or any words of any conversation that occurred between him and the MA by which he formed that impression.
The appellant further said in his statement that the MA had incorrectly recorded that he saw his psychiatrist fortnightly, whereas he said he saw her on a weekly basis. The Appeal Panel observes that that is not what the MA said. Rather, the MA said that the appellant had not since June 2021 seen his treating psychiatrist, whom the Panel notes is a male, and that the appellant had on a weekly basis been seeing his treating psychologist, whom the Panel observes is a female, and had been seeing his general practitioner (GP) on a fortnightly basis.
The appellant also said that he often wears clothes for a week but changes his underwear on most days. He said he could not live without his family’s assistance and that his wife and step-daughter prompt him to have a shower. He said that he and his wife pay for a cleaner to clean the house. He said that people often comment that he looks homeless. He said that his relationship with his wife is severely strained and that they have not had sexual intercourse for a year.
The appellant said that the MA “did not allow me to discuss my relationships or expand on any experiences”, but again he did not provide any details or any words of any conversation between him and the MA by which he formed that impression.
The appellant said that he told the MA that he watched a couple of movies from time to time as a distraction and as recommended by his psychologist. He said he could not recall or necessarily follow the story lines of these. He said he gets lost in conversation and finds it difficult to be around people.
The appellant said that his psychologist recommended he mow the lawns and he said he will do this fortnightly, and not weekly as the MA had recorded. He said that he had not travelled since December 2020, at which time he had struggled travelling to Dubbo Zoo. He said that he had a number of emotional breakdowns when travelling.
The appellant said that he told the MA that his condition had gotten worse but that the MA “didn’t want to hear it”. Again he did not set out any words of any conversation between him and the MA or provide any detail by which he formed that impression. He described changes in medication.
The appellant described he had gained 20 kilograms in weight and his clothes did not fit. He also said that he had lost 12 kilograms of the 20 kilograms that he had put on.
The appellant described finding it difficult to focus and making decisions and having difficulty paying credit card bills.
The appellant’s statement insofar as he describes his ability to function, such as, for example, in areas of self care, concentration, travelling and relations with his wife, is not fresh evidence, such that the Appeal Panel could receive it pursuant to s 328(3) of the 1998 Act nor is it additional relevant information such that it could establish the ground for appeal provided in s 327(3) of the 1998 Act. This is evidence of matters that occurred before the assessment and the appellant could reasonably have recorded his evidence on those matters in a statement and file that with the Commission prior to the assessment. Indeed, the Appeal Panel observes that the appellant did set out some matters relating to his function and treatment in a statement he signed on 17 January 2022 which he lodged with the Commission. Any issue about his function that he wanted the MA to consider was a matter about which he could have reasonably obtained evidence before the medical assessment.[1]
[1] Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112 (Lukacevic) per Handley AJA at [98]-[99]; Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [18].
The appellant’s statement insofar as it relates to matters that occurred during the medical assessment and insofar as he provides his commentary or opinion on the history the MA obtained and the findings the MA made, is fresh evidence. Notwithstanding that, the Appeal Panel retains a discretion as to whether it ought to receive his statement relating to those matters into evidence.[2]
[2] Lukacevic per Handley AJA at [102].
In Lukacevic Hodgson JA stated that:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an [Appeal Panel] not to admit evidence raising such dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply be raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the [Appeal Panel] in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”[3]
[3] Lukacevic at [78].
In the Appeal Panel’s view, the appellant’s evidence relating to what occurred during the MA’s examination of him and his commentary on that, whilst fresh evidence, lacks probative value. This is because, firstly, it is apparent from what is before the Appeal Panel that the appellant has no clinical expertise or has any experience in clinical matters and is therefore highly unlikely that the appellant would know what is required to be done by a MA when conducting a clinical examination and obtaining a history. His additional evidence in this regard simply cavils with the function the MA performed in conducting the medical examination. Secondly, the Appeal Panel considers from its examination of the MAC that the history the MA obtained was the history that the MA considered necessary for him to conduct his assessment. The appellant’s commentary on the examination and how the MA conducted himself is impressionistic and unreliable. The appellant does not in his statement provide any independent evidence to support his contentions. The Appeal Panel discerns no error within the MAC relating to the manner in which the MA obtained the history.
The Appeal Panel consequently exercises its discretion not to receive his statement into evidence.
The Appeal Panel notes that the appellant requested in the Application that he be re-examined by one of the MA members of the Appeal Panel. The Appeal Panel decided during its preliminary review that it did not need the appellant to submit to a further medical examination. This is because the Appeal Panel considered that none of the grounds for appeal on which the appellant relied had been established and the Appeal Panel consequently would not be revoking the MAC. There was thus no need for the appellant to be further examined[4].
[4] See New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33].
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.
The MAC
In the MAC the MA noted in bold type that the MAC was to be read in conjunction with the earlier MAC. In the earlier MAC the MA noted within the history he detailed therein that the appellant was seeing his treating psychiatrist approximately every six months and was due to have inpatient treatment. The MA further noted that the appellant was then seeing his treating psychologist every fortnight and his GP every fortnight. The MA noted that the medication the appellant was then taking was Zoloft 150mg in the morning, Circadin 2mg at night and Valium 5mg when required.
The MA noted in the earlier MAC that the appellant reported lacking energy and motivation and had broken sleep and frequent nightmares relating to his work. The MA noted that the appellant was obsessed with the employee whose actions were responsible for the onset of his injury. The MA noted that the appellant felt depressed and sad most of the time and reported experiencing little pleasure or enjoyment in his life. The MA noted that the appellant’s appetite was variable but he had gained 17 kilograms in weight since October 2020 due to reduced exercise and poor diet. The MA noted that the appellant reported feeling guilty and blaming himself for what had happened at his work. The MA noted that the appellant felt hopeless and that he reported having very poor concentration.
The MA also recorded in the earlier MAC that the appellant lived with his partner and three children and was not currently working. The MA noted that the appellant did little shopping for his family and that his wife and step-daughter did the cooking. The MA noted that the appellant mainly ate takeaway food. The MA noted that the appellant helped with clothes washing and that he and his partner paid for a cleaner to come each fortnight. The MA noted that the appellant reported that a friend visited him on a weekly basis and that he goes out occasionally with that friend for coffee at his friend’s property. The MA noted that the appellant occasionally went to family functions on the prompting of his family but would not stay long due to increasing anxiety. The MA noted the appellant had lost interest in boating and jet skiing but still mowed lawns and did some gardening. The MA noted that the appellant’s partner sometimes had to prompt him to shower. The MA noted that the appellant changed his underwear each day but showered about every second day.
The MA observed from his examination of the appellant that the appellant was dishevelled with long grey hair and an unkempt beard. The MA recorded that the appellant was cooperative but withdrawn in his manner but his speech was normal rate and flow. The MA recorded that the appellant’s mood was depressed and his effect was appropriate to his mood and unreactive. The MA did not observe any thought disorder or psychotic symptoms and observed the appellant to be alert and orientated. The MA noted that the appellant had impairments in his short term memory as he was only able to record two out of three items at two minute recall, but the appellant’s concentration and general knowledge was unimpaired on testing.
In the MAC, following the MA’s re-examination of the appellant on 29 March 2022, the MA noted that since his earlier examination of the appellant on 18 June 2021 the appellant had not been seeing his treating psychiatrist and that the inpatient admission did not occur. The MA noted too that the appellant’s GP had increased his Zoloft medication to 200mg a day. The MA noted that the appellant was still taking Circadin 2mg at night and had also in the previous six months been taking magnesium powder to help with his sleep. The MA noted that the appellant took Temazepam 10mg when required to help with his sleep. The MA noted that the appellant had ceased taking Diazepam.
As mentioned earlier, the MA also noted that the appellant had increased his visits to his psychologist to once a week since the prior time the MA had examined the appellant. The MA noted that the appellant continued to see his GP on a fortnightly basis. The MA noted that the appellant reported his symptoms to have been relatively stable for the past nine months.
The MA noted in the MAC that the appellant reported feeling a lack of energy and feeling tired through the day but his sleep had improved due to his taking magnesium powder. The MA noted that the appellant was still experiencing intrusive thoughts of the employee whose actions have precipitated his injury. The MA noted that the appellant would often wake up refreshed after sleep. The MA noted that the appellant felt depressed and sad most of the time and reported having little pleasure or enjoyment in life and having a reduced libido.
The MA also noted that the appellant’s appetite varied and that the appellant had lost 12 kilograms since November 2021 following treatment for Type II Diabetes.
The MA further noted that the appellant still felt guilt about what happened in his workplace and felt hopeless and had occasional thoughts of his life not being worth living. The MA noted that the appellant complained of being forgetful and having poor concentration but still being able to make decisions. The MA noted that the appellant reported being easily irritated.
What the MA recorded in the MAC with respect to the appellant’s participation in social activities and activities of daily living was substantially the same as that he recorded in the earlier MAC.
The MA’s findings from his examination of the appellant on 29 March 2022 were much the same as he had recorded from his examination relating to the earlier MAC. The MA in the MAC recorded that the appellant was alert and orientated and was able to concentrate for the duration of the assessment that lasted for 45 minutes and answered questions appropriately.
The MA expressed his opinion that the appellant suffered a Persistent Depressive Disorder and that that condition emerged as a result of the workplace stressors to which the appellant was subject whilst working for the respondent.
As mentioned earlier, the MA assessed the appellant to have 8% WPI. In Table 11.8 appended to the MAC, being the PIRS rating form, the MA provided the following classifications for each of the PIRS categories and the following reasons for his classifications:
Self care and personal hygiene
2
Mild impairment. Mr Banks is able to live independently.
He is less interested in his personal grooming than
previously. He does some of the shopping for himself and his family. He eats a lot of take-away and pre-cooked food. He changes his clothes daily but only showers every two to three days.
Social and recreational activities
3
Moderate impairment. Mr Banks generally remains quiet and withdrawn at home. He very occasionally goes out with a friend for coffee at his friend’s prompting. He occasionally goes out with his family to family functions at their prompting. One friend visits him at home. He has lost interest in boating and jet skiing which he used to enjoy.
Travel
2
Mild impairment. Mr Banks is able to drive short distances in his local area without a problem. He is able to drive into the CBD to visit his lawyer and partner who works there and to drive up to Norah Head on the Central Coast to an onsite caravan. However, these are drives where he is familiar with the route. He reports being generally very anxious when driving and therefore falls outside normal variation in the general population.
Social functioning
2
Mild impairment. Mr Banks reports some strain in his relationship with his partner but there have been no episodes of separation or domestic violence. There is reduced intimacy between them. There is some strain in his relationship with his son but he has a good relationship with his daughters. He said that he has lost most of his friendships due to his social withdrawal, but keeps in contact with two friends.
Concentration persistence and pace
2
Mild impairment. Mr Banks complains of reduced concentration and being forgetful. He is able to watch and follow the storyline of a full movie at one sitting. He is able to drive for about one hour before needing to take a break.
Employability
4
Severe impairment. Mr Banks’ employability is significantly affected by his psychological symptoms. He is likely to only be able to work in a less stressful position such as in horticulture or lawn mowing for less than 20 hours per fortnight with a likely reduced pace and erratic attendance.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the MA did not record a correct history so as to be able to assess his impairment with respect to PIRS. The appellant submitted that the MA did not afford him procedural fairness and that the MA ought to have allowed him to provide the history he intended to give. The appellant submitted that the MA did not allow him to give a full account of his circumstances so as to allow the PIRS scale to be applied correctly and that the MA did not permit him to provide details relating to the nature of his personal relationships, the effect of his weight gain, and problems with his concentration and paying bills.
The appellant submitted the MA made factual findings without any evidentiary foundation including the frequency with which he has medical supervision from his psychologist. The appellant submitted that the MA erred by finding that he changes his clothes daily whereas he often wears clothes for a week. The appellant submitted that the MA erred by finding that there is some strain in his relationship with his partner, whereas he has not had intercourse with her for over a year. The appellant submitted that the MA erred by finding that he had loss 12 kilograms of weight whereas that was against a background of having gained 20 kilograms.
In reply, the respondent submitted that the appellant has not provided any additional relevant information and consequently cannot establish the ground for appeal provided in s 327(3)(b) of the 1998 Act. The respondent submitted that the appellant’s contention that the MA incorrectly recorded the frequency of his consultations with his psychologist was wrong because the MA correctly recorded that the appellant consults his psychologist weekly. The respondent submitted that the MA assigning the appellant’s impairment in the PIRS Category for self care and personal hygiene as being Class 2 was valid as it accorded with the descriptors for that class and that any intervention by the Appeal Panel with respect to the MA’s assessment would only be justified if the MA’s assessment was glaringly improbable. The respondent submitted that the MA’s classification was available on the evidence before him and that the MA provided sufficient details to expose his path of reasoning for his classification.
The respondent submitted that the MA’s assessment of the appellant’s impairment in the PIRS Category for social functioning was open and available on the evidence and the MA sufficiently exposed his path of reasoning.
The respondent submitted that the MAC did not contain an error with respect to the history the MA set out regarding the appellant’s weight gain and loss, noting that the MA had stipulated that the MAC was to be read with the earlier MAC.
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.
Noting that the Appeal Panel did not receive into evidence the appellant’s statement dated 28 April 2022, there is no additional relevant information before the Appeal Panel and consequently the ground for appeal provided in s 327(3)(b) is not established.
In the Appeal Panel’s view there is nothing contained within the MAC or within the documents provided to the MA for the purpose of his assessment that indicates the MA obtained an incorrect history. Further, there is nothing within that material that indicates that the MA did not afford procedural fairness to the appellant.
The Appeal Panel considers that if the appellant thought any matter was relevant with respect to the assessment of his permanent impairment from his injury that he could have recorded that in a statement and lodged it with the Commission before the assessment took place. In other words, the fact that a MA may not ask a worker a particular question that a worker considers ought to be asked does not indicate that the MA has not afforded the worker procedural fairness with respect to the assessment the MA has undertaken of the worker’s impairment. Further, a worker can readily ensure that any matter he or she considers relevant to a MA’s assessment is brought to the MA’s attention by means of putting into evidence a statement before the assessment. A MA does not, in the Appeal Panel’s view, deny a worker procedural fairness by not asking questions that the worker considers should be asked. In any event, it is a matter for a MA’s clinical judgment to determine what matters are relevant so as to assess a worker’s impairment.
It is the case, as the respondent submitted, that the appellant is incorrect with respect to what he contended regarding what the MA recorded with respect to the frequency which he consults his psychologist. In other words, the MA recorded that the appellant consults his psychologist weekly, which is what the appellant submitted. Consequently, there can be no error within the MAC as a consequence of that.
Further, in the Appeal Panel’s view, the appellant is also incorrect with what he contended with respect to what the MA recorded regarding the appellant’s weight gain and loss. Noting that the MA stipulated that the MAC had to be read with the earlier MAC, the MA recorded that the appellant gained 20 kilograms in weight, as a consequence of bad diet and lack of exercise, then lost 12 kilograms of that following his commencing treatment for Type II Diabetes. There is consequently no error in the MAC as a consequence of the history the MA obtained with respect to the appellant’s weight gain and loss. The evidence that the appellant had lost weight, even though he had gained weight earlier, suggests that he is now caring for himself better than he had earlier. The MA was right to consider this.
Noting that the Appeal Panel did not accept into evidence the appellant’s statement of 28 April 2022, there is no evidence to support his submission that he often wears clothes for a week at a time. In arguendo, if such evidence were before the Appeal Panel, the Appeal Panel considers that it would still not demonstrate that there is any error with respect to the MA’s assessment relating to the appellant’s functioning in the area of self care and personal hygiene, in which this matter would be evaluated. The MA took a history of the appellant changing his underwear every day but showering and bathing about every second or third day. The reasons the MA provided for assessing the appellant to have a mild impairment in the area of self care and personal hygiene included that the appellant “changes his clothes daily but only showers every two or three days”. The MA noted from his examination of the appellant both when he examined him previously and on 29 March 2022 that the appellant was a “dishevelled looking man with long grey hair and an unkempt beard”. Even if the appellant often wore his outer clothing for up to a week that would not in the Appeal Panel’s view change the rating for the appellant’s functioning in self care and personal hygiene. The evidence indicates that the appellant is able to live independently and able to look after himself adequately although looking unkempt. In the Appeal Panel’s view that accords with a Class 2 impairment in the area of self care and personal hygiene.
With respect to the appellant’s impairment in social functioning, the MA’s reasons for his assessing the appellant to have a mild impairment included that there is reduced intimacy between the appellant and his partner. Again, for arguments sake, even if there was evidence before the Appeal Panel that the appellant has not had sexual intercourse with his wife for a year, that does not result in that element of the MA’s reasoning being wrong. The Appeal Panel considers that it was open to the MA to assess the appellant’s impairment in this area as being Class 2 for the reasons the MA has provided. It is not apparent to the Appeal Panel that there is any error within the MAC with respect to the MA’s assessment of the appellant’s impairment in social functioning.
The Appeal Panel observes that a history a MA obtains is done by reference to the documents before a MA, including clinical data and evidence in the form of statements from a worker and others. The interview a MA conducts with a worker so as to develop a history to enable an assessment of a worker’s impairment is done in the context of that material. In all, the Appeal Panel considers that there is nothing apparent from the MAC or the documents that were provided to the MA that indicates the history the MA obtained was incorrect in a material respect. The Appeal Panel considers that the MA’s assessment of the appellant’s impairment with respect to the several PIRS categories were open to the MA based on the evidence and were justified by the reasons he provided.
The Appeal Panel does not consider that the MA applied incorrect criteria to assess the appellant’s impairment and consequently the Appeal Panel finds that the ground for appeal provided in s 327(3) of the 1998 Act is made out. Further the Appeal Panel considers that it is not apparent from the MAC that there is an error within it and consequently the ground for appeal listed in s 327(3)(d) of the Act is also not made out.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 April 2022 should be confirmed.
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