BFV v Philip Leong Stores Pty Ltd

[2023] NSWPICMP 275

DETERMINATION OF APPEAL PANEL
CITATION:	BFV v Philip Leong Stores Pty Ltd [2023] NSWPICMP 275
APPELLANT:	BFV
RESPONDENT:	Phillip Leong Stores Pty Ltd
Appeal Panel
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	16 June 2023
CATCHWORDS:	wORKERS cOMPENSATION - Psychological Injury; appellant alleged error in the assessment under three categories under the Psychiatric Impairment Rating Scale (PIRS) namely, self-care and personal hygiene, social and recreational activities and employability; the ratings in these classes were open to the Medical Assessor and the Panel could discern no error; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 20 March 2023 BFV (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
   Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 February 2023.

2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):

   ·        the assessment was made on the basis of incorrect criteria, and

   ·        the MAC contains a demonstrable error.

3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.

4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). 

PRELIMINARY REVIEW

1. 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.

2. The appellant did not request a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could not find error. Absent error, the Appeal Panel has no power to require a re-examination. The Appeal Panel cannot examine the worker to determine whether a ground of appeal has been made out: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary evidence

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

1. It is noted that the delegate’s decision refers to the respondent employer not having filed a notice of opposition. The Appeal Panel notes there is a notice of opposition included with the papers referred to the Appeal Panel.

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

FINDINGS AND REASONS

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

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

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

   ·      Date of injury:  25 February 2020 deemed

   ·      Body parts/systems referred: Psychological/Psychiatric disorder

   ·      Method of assessment: Whole Person Impairment”

4. The Medical Assessor issued a MAC certifying as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psychological	11, page 55-60	14	7%	n/a	7%
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					7%- 3.5%+1% = 5%

1. The assessment was based on his assessment under the permanent impairment rating scale (PIRS) as required by the Guidelines as follows:

“Table 11.8: PIRS Rating Form

Name	BFV	Claim reference number (if known)	W4447/22
DOB	xxxx	Age at time of injury	56
Date of Injury	25/02/2020 deemed	Occupation at time of injury	Storeperson
Date of Assessment	07/02/2023	Marital Status before injury	Married

Psychiatric diagnoses	1. Adjustment Disorder with Mixed Anxiety and Depression.
Psychiatric treatment	Psychotherapy and antidepressants.
Is impairment permanent?	Yes

PIRS Category

Class

Reason for Decision

Self Care and personal hygiene

2

He skips showers sometimes. His wife manages his medication and organises him. He is otherwise independent with his self-care and contributes to the housework. He cooks with his wife when his family visit. He sometimes misses a meal and has lost weight.

Social and recreational activities

2

He  has reduced his church attendance. He regularly goes to a local steakhouse with his wife. They regularly entertain their children at home. He enjoys socialising. He enjoys visits to the shops. He interacts with people when at the shops. He plays the guitar and sings. He enjoys gardening and tending to his vegetables.

Travel

2

He is reluctant to drive since the injury. He limits his travel to local areas. He walks alone to the local shops. He travelled to America with family support.

Social functioning

3

His relationships have been strained by anger and domestic violence.

Concentration, persistence and pace

3

Pre-injury he was not inclined towards intellectually demanding activities but since the injury he relies on his wife to manage the running of the household and organise him. He is passive and amotivated. Dr Hong's serial assessments suggest a deterioration in cognitive function that has been maintained. I cnosider this consistent with a Class 3 impairment.

Employability

2

Were it not for his physical injuries, he would be capable of working as a storeman. His hours would need to be reduced due to the effects of the adjustment disorder. He could work no more than 20 hours per week due to reduced concentration and motivation.

Score

Median Class

2

2

2

2

3

3

=2

Aggregate Score Impairment

Total

%

2+2

+2

+2

+3

+3

14

7%

1. The Medical Assessor explained his assessment as follows:

   “My opinion and assessment of whole person impairment

   7% - (50% x 7%=3.5%) = 3.5% + 1% = 4.5%, rounded up to 5%

   In making that assessment I have taken account of the following matters:-

   The information contained in the documents listed above and my clinical assessment of the patient.

   An explanation of my calculations (if applicable)

   A portion of his impairment relates to the psychological effects of his physical injuries, a subsequent secondary psychological injury with the features of an adjustment disorder. That portion is substantial in that he would be happy to return to his substantive role were it not for his physical injuries, and the inability to work due to physical impairment is a major stressor for him, with significant consequences on his income and self-esteem. On balance, the secondary psychological effects of his physical incapacity account for 50% of his impairment, reflecting that both the original psychological injury and the consequences of his physical deficits contribute equally to his current symptoms and whole person impairment. A deduction of 50% is warranted as a secondary psychological injury is not assessable when calculating whole person impairment.

   A 1% adjustment for treatment effects is warranted, given the response noted to Venlafaxine augmentation.”

2. The worker appealed. There was no appeal in respect of the adjustment of 1% for the effects of treatment or the deduction of 50% made by the Medical Assessor to account for the secondary psychological injury. The appeal concerned the assessments made under three of the PIRS categories. 

3. In summary the appellant submitted that the Medical Assessor erred in his assessment under three of the PIRS categories, as follows:

   (a)    in respect of self care and personal hygiene when he assessed a Class 2 and a Class 3 should have been assessed;

   (b)    social and recreational activities when he assessed a Class 2 and a Class 3 should have been assessed, and

   (c)    in respect of employability when he assessed a Class 2 and a Class 5 should have been assessed.

4. In summary, Phillip Leong Stores Pty Ltd (the respondent) submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.

5. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an 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.

6. The Medical Assessor took a history which was broadly consistent with the other evidence before him. He recorded in detail the appellant’s reporting of present symptoms and impact on activities of daily living (ADLs). The Medical Assessor recorded as follows:

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

   BFV is a 57-year-old man, married more than 30 years with seven children. Three of his children still live at home; the other four are married and live in Sydney. He lives with his wife and three children in Cabramatta in rental accommodation. His wife is studying at TAFE.

   He was employed as a storeperson for Woolworths for about six years based at the Erskineville warehouse. He last worked on 15 February 2020 when he sustained a crush injury to his left hand's third and fourth fingers (left-handed). He was terminated in April 2020. He is on a Jobseeker benefit from Centrelink since the insurer stopped payments. He is on a medical certificate because his physical injuries prevent him from lifting more than 5 kg.

   After the injury to his hand in December 2019, BFV returned to work on light duties and reduced hours. He was unable to cope with lifting 20 kg boxes. He said his employer subsequently bullied him, and there were four performance warnings and meetings. He told me his employer had accused him of causing the injury to himself and faking it. He became increasingly stressed under the threat of termination. He felt pressured by management and insulted by their conduct. He developed symptoms of depression and anxiety.

   He consulted with his general practitioner on 25 February 2020 after a performance meeting where he was threatened with termination. He was diagnosed with an adjustment disorder. He was referred to a psychiatrist and psychologist and was prescribed an antidepressant, mirtazapine. Liability was denied on the basis of Section 11A of the Workers Compensation Act. The Personal Injury Commission later concluded that they were not satisfied that the employer's actions were reasonable. The matter was remitted to the President for referral to a medical assessor to assess Whole Person Impairment.

   BFV said anxiety commenced after the meeting on 25 February 2020 when he was told he was a liar and was told that it was his last warning before termination. He told me his mental state was at its worst just after the meeting on 25 February 2020. He started mirtazapine because he had insomnia, headaches, body aches and weakness. He felt upset, sad, anxious, angry and irritable. His irritability and temper caused uncharacteristic anger outbursts. There were violent altercations with his son and nephew, and his family called the police. His mental health has fluctuated because he cannot physically work due to his hand injury, and he misses the meaning and purpose that employment provided. 

   ·    Present Treatment:

   BFV takes mirtazapine 15 mg at night (a sedating antidepressant), Diaformin 1000 mg twice a day for diabetes, Colchicine daily for gout, candesartan for blood pressure and tadalafil for erectile dysfunction. His wife helps him with his medication. He had to collect the medication to give me a list.

   He sees a psychiatrist, Dr Kumagaya, every four weeks and a psychologist every four weeks, sometimes in person and sometimes via teleconference. He has had more than 20 sessions with his psychologist since the injury. He is not working with a rehabilitation provider. He has never had a psychiatric admission. From the documentation, he has previously taken venlafaxine. BFV could not recall taking venlafaxine and was unsure if he was still taking it.

   ·    Present Symptoms:

   BFV said his sleep is disturbed. He said he might sleep for four hours before waking up. He often wakes up because of pain in his hand while sleeping. He can get back to sleep and might have five hours on a good night.

   His appetite varies, and he has lost 5 kg since he stopped working. His energy is low. He sometimes feels he cannot catch his breath. He feels particularly anxious at night. He has panic-like symptoms at night with shortness of breath. He has not had a sleep study to rule out obstructive sleep apnoea.

   He said he can feel happy and "enjoy a nice talk". His mood is more irritable than before the injury. He has problems with his temper. There is friction with one of his sons. BFV said his son does not listen properly, opposes BFV and is sometimes in trouble with the police. He said his son is smoking marijuana, and they often fight about it. His wife has been scared of him at times due to his temper. He has twice tried to assault his nephew with a weapon and once his son. His wife told me that she has to get away from him when he is angry and call her children to come and calm him down. She said the change occurred since lockdown, around when he left work on 20 February 2020.

   He denied suicidal thoughts. He said he worries about his hand injury, life, wife, and children.

   ·    Details of any previous or subsequent accidents, injuries or condition:

   BFV denied any psychiatric history. He said he has had suicidal thoughts in the past, and in the last three weeks after he lost his temper and threatened his nephew with a knife.

   He reported one of his main stressors was his relationship with his 20-year-old son. He misses working and the loss of income and meaningful activity. He has ongoing pain in his hand and shoulders limiting his physical capacity and activities.

   He was not exposed to developmental trauma and was well-adjusted in his early life. There has been no subsequent trauma exposure.

   ·    General Health:

   He drinks one to two beers on a Friday and, if particularly stressed, might have two beers on a Sunday. He never drinks more than six drinks in a sitting. He smokes two cigarettes per week. He denied illicit or recreational drug use. He has not been gambling recently but had a history of problem gambling while working with Woolworths.

   He has high blood pressure, type 2 diabetes and gout.

   He has not been assessed for obstructive sleep apnoea (Comment: This should be considered in the context of the nocturnal panic symptoms and shortness of breath).

   There is no family history of psychiatric disorders.

   ·    Work history including previous work history if relevant:

   BFV worked with Woolworths for six years. He left school after Year 7. He worked in New Zealand as a forklift driver and storeperson. He has been a storeperson for 22 years. He denied prior workers compensation or personal injury claims.

   ·    Social activities/ADL:

   He has vegetables in his backyard and grows taro and bananas. He spends time in the garden, weeding and pruning. He walks locally. His wife takes him shopping at the Casula and Liverpool shops. He said he goes alone to the local shops and walks there. He said his wife takes him if they go to a larger shopping centre. He enjoys being out; they walk around, eat, and watch people every week. He said his wife helps him by laughing together and talking to him.

   I asked him about his overseas travel. He said he travelled to America after his sister and brother invited him. He travelled alone and spent five weeks. He described it as "really nice, happy and relaxing". He attended his niece's wedding with around 200 people and enjoyed it. He said he felt good and relaxed in America, spending time with his brother, sister and their children. When he returned, he felt under pressure and angry again. He said he was angry because "When I say something and my kids don't do it or don't listen, I get angry". He said the most conflict is with his 20-year-old son. He said his main stress is his son.

   He helps his wife around the house. He does the washing, cleaning, and mopping and cooks about four times per week. Sometimes he skips meals and only eats lunch. He drinks one to two beers on a Friday and, if particularly stressed, might have two beers on a Sunday. He never drinks more than six drinks in a sitting. He goes to the Cooks Hill pub to the steakhouse with his wife on Fridays and sometimes on Wednesdays too. He otherwise eats at home and sometimes has takeaway from the local fish and chip shop. He goes to church infrequently. He has been twice this year. He enjoys the social aspect of the church. His wife goes on Sundays and Wednesdays. They might go to the Marconi Club every six months.

   He plays the guitar once or twice a week. He loves singing. He is not a member of any groups or associations other than the church. He said there are no problems with his libido, and he is still intimate with his wife. I note he is taking tadalafil.

   He showers most days. He clippers his hair and shaves some days. He said he had not been to see a dentist for years before the injury. He has had no teeth or dentures for many years. He has to cut his food small and eat soft foods such as taro or potato.

   His children come to their house and bring the grandchildren. He and his wife will go to their house when invited. He said his children are there every week and they have a family meal. He said he and his wife cook and all the children visit. He said he enjoys it when they come. He said he gets on well with his older children and is only having trouble with his 20-year-old. He attended his nephew's wedding in May/June 2022 in America.

   I asked him about his concentration, persistence and pace. He is reluctant to drive due to his poor concentration. He said he reads the Bible some days but only for a minute before losing concentration. He said his wife does all the daily administration and running of the household. He has never read for pleasure. He has never been interested in intellectually-demanding activities. He said he enjoys watching football. He has not been to a football game since lockdown. He has no problems with crowds and would enjoy going. He said he occasionally sees friends when shopping locally, and they stop and talk. He said he is not visiting friends.

   I asked him about returning to work. He said he wanted to work. He said he lost friends from work. He said he is keen to face his fears. He thinks about the workplace most days because he loves the job and misses it. He said if he had no pain in his hand and shoulders, he would return to work tomorrow on light duties. He said he knew he could pick up empty boxes, and if Woolworths called him to return to work, he would. He said he cannot lift more than 5 kg, has problems with his shoulders, and still has pain in his hands. I asked him about the activities he videoed of himself while in America, such as removing a tree stump with his brother. He told me, "I just helped him a little bit, and my brother did not know I was still feeling pain". He said he wants to lose weight and get fitter before he returns to work. He has considered trying truck or bus driving but is unsure if getting his license is beyond his capabilities.”

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

   “BFV presented well-groomed in a jacket and tie. He had a recently-maintained goatee and glasses. His hair had recently been cut. He was pleasant and cooperative. There was no evidence of distress. His affect was reactive. His speech was of normal rate, tone and volume. He described his mood as okay, sometimes angry or scared.

   There were no abnormal patterns of speech or beliefs indicating an underlying or emerging psychotic illness. He described sadness at the loss of a job he enjoyed. He described worries about his family and the future. There was no evidence of rumination or preoccupation with the incident at Woolworths. He was worried about the effects of his hand injury and its impact on his work capacity. He denied intrusive memories and thoughts about the circumstances of the injury, except regret he was no longer working with Woolworths. He denied anxiety in crowds or social settings. He reported periodic suicidal thoughts in the context of family conflict and losing his temper. There was no evidence of psychotic symptoms.

   He was alert and oriented, and his intelligence was estimated to be in the low-average range. His command of English and use of language was limited to simple vocabulary. There were no overt cognitive deficits during the interview. He was able to pay attention and his narrative was logical. His insight and judgement were intact. He appeared to take a passive approach to his treatment and was managed by his wife.”

2. The Medical Assessor made a diagnosis as follows:

   “Summary of injuries and diagnoses:

   BFV has symptoms that meet the criteria for a DSM-5 diagnosis of an adjustment disorder with mixed anxiety and depressed mood. An adjustment disorder is a stress-related disorder that develops within three months of a specific stressor. He has developed emotional and behavioural symptoms in response to the circumstances of the physical injury and his treatment in the workplace after the physical injury(Criterion A). He experienced marked distress that impaired his functioning (Criterion B). The symptoms did not meet the criteria for another mental disorder and were not an exacerbation of a pre-existing mental disorder (Criterion C). The symptoms did not represent normal bereavement (Criterion D).

   The adjustment disorder is characterised by anxious mood, physical symptoms of anxiety, sleep disturbance, irritability, anger, and a degree of anhedonia and social withdrawal.

   A portion of his impairment also relates to the psychological effects of his physical injuries, a secondary psychological injury, also with features of an adjustment disorder. That portion is substantial in that he would be happy to return to his substantive role were it not for his physical injuries. The inability to work due to physical impairment is a major concern for him, with significant consequences on his income and self-esteem.

   ·    Consistency of presentation

   BFV presented as a consistent historian. There was no evidence of exaggeration, hyperbole or malingering.

   BFV has symptoms that meet the criteria for a DSM-5 diagnosis of an adjustment disorder   with mixed anxiety and depressed mood.”

3. The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above. The assessments in the categories of self-care and personal hygiene, social and recreation activities and employability are the subject of complaint on appeal.

4. The Medical Assessor has had careful regard to the other evidence that was before him including other medical opinions as follows:

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

   In his statement dated 19 November 2021, BFV detailed the circumstances of his hand injury and subsequent treatment by his employer. He noted becoming increasingly stressed and anxious about losing his job. He noted he was subjected to improper performance management when he had not recovered from his physical injuries. He noted that he became stressed and irritable since interacting with his manager. He became short-tempered, causing arguments with his family, depressive moods, fleeting thoughts of suicide, lack of concentration, disturbed sleep, loss of appetite and increased anxiety. He noted an increase in aggression. He noted that before February 2020, he enjoyed going out and spending time with his friends, going to church with his wife every weekend, noting that he never left the house and no longer socialised or enjoyed life. He noted that he does not eat or shower unless prompted by his wife. He noted reduced motivation to complete chores around the house and forgetfulness. He noted he had contact with a cousin who cooks for him without contact with other family members or friends. He noted he avoided driving where possible because he could not focus and had poor concentration while driving. BFV has improved since November 2021, according to his self-reported function, and consistent with the observations of Dr Kumagaya after venlafaxine was added to mirtazapine.

   The Section 78 Notice dated 28 February 2020 noted that liability was disputed because the adjustment disorder was caused by issuing a warning rather than the injury to the fingers on his left hand.

   A report by Carl Nielsen, Psychologist dated 14 September 2021 noted that BFV felt unsupported and belittled due to accusations about him lying about his workplace injury and feared losing his job. Mr Nielsen detailed symptoms of anxiety and depression caused by worries about losing his job and being called a liar by Woolworths' management against a background of BFV enjoying his position and wanting to continue working for Woolworths. He noted that BFV had lost trust in the work environment and confidence in his abilities to perform his duties and had anergia from sleep disturbance secondary to pain experienced in his left hand and continuing up to his shoulder. He was provided with evidence-based treatment. No non‑work related stressors were identified.

   In his report dated 12 June 2020, Dr Michael Hong detailed the circumstances of the injury. No significant inconsistencies were identified. He detailed symptoms of anxiety and depression shortly after the crush injury and further distress in the context of performance warnings and fear for his job security. He detailed symptoms of anxiety and depression. He noted no major problems with his friends and occasional church attendance. Dr Hong diagnosed an adjustment disorder with anxiety and depression with ongoing finger pain and numbness. He noted limited treatment and that BFV had not reached Maximum Medical Improvement. He reported the onset of depression and anxiety soon after the crush injury with a further decline as a result of the way his employer managed the injury and return to work. He concluded it was premature to determine his capacity.

   A further report by Dr Michael Hong dated 23 April 2021 noted ongoing symptoms of anxiety and depression. He noted that at the time of his assessment, BFV had not been to church for some time. He noted that BFV did not go to the steakhouse anymore. This was contrary to the history obtained today. He noted in his mental state examination overt cognitive problems, a change from his initial examination. Dr Hong noted that the adjustment disorder had evolved into a major depressive disorder, a deterioration with greater impairment. Dr Hong concluded that BFV had reached Maximum Medical Improvement. He assessed Whole Person Impairment at 24% rating Self-care and Person Hygiene Class 3, Social and Recreational Activities Class 3, Travel Class 2, Social Function Class 3,Concentration, Persistence and Pace Class 3 and Employability and Adaptation Class 5. BFV's function in self care and personal hygiene, social and recreational activities and employability has improved since his treatment was augmented with venlafaxine. 

   In a supplementary report dated 16 October 2021, Dr Hong noted that BFV's psychological symptoms developed initially from the crush injury and predated administrative action related to performance discipline and/or transfer and was not wholly or predominantly related to administrative action. He noted the predominant cause was the crush injury followed by administrative action. He has not commented on the effects of physical incapacity that have become more prominent since October 2021.

   Initial assessment by Dr David Kumagaya, Consultant Psychiatrist dated 26 March 2020 detailed the psychiatric history. No significant inconsistencies were identified. He noted that BFV continued to experience pain in his fingers after the injury interfering with his ability to attend to activities of daily living such as attending to his household. He diagnosed an adjustment disorder with mixed anxiety and depressed mood.

   Subsequent correspondence from Dr Kumagaya between April 2020 and October 2021 noted enduring symptoms of adjustment disorder with mixed anxiety and depressed mood. He was prescribed melatonin for insomnia. He continued psychological therapy. He commenced mirtazapine on 26 August 2020, ceasing melatonin. The diagnosis was revised to a major depressive disorder with anxious distress on 26 August 2020. The mirtazapine was increased from 15 mg to 30 mg on 2 December 2020. The diagnosis remained major depressive disorder with anxious distress. A mild improvement was noted on subsequent review. The mirtazapine was increased to 45 mg nocte on 4 March 2021.

   A report by Dr David Kumagaya dated 10 March 2021 maintained a diagnosis of major depressive disorder with anxious distress with a guarded prognosis. On 22 April 2021, Dr Kumagaya noted an improvement in his mental state with a lift in mood and an improvement in sleep disturbance and energy levels. He was noted to continue to experience anxiety and restlessness. On review on 20 May 2021, further improvements were noted, with an improvement in mood and attenuation of anxiety. He was noted to have problems with psychosocial functioning including a reduced capacity to concentrate, a decreased ability to engage in social and recreational activities and problems with his social functioning; for example, irritability and impaired employability.

   No inconsistencies were identified on WorkCover certificates of capacity, various dates.

   In medical records as at 17 August 2021, no significant inconsistencies were identified. The symptoms reported were consistent with those described by Dr Kumagaya. Ongoing problems with pain in his hand and shoulders were noted. I note venlafaxine 37.5 mg was added on 11 March 2022 by Dr Kumagaya.

   A report by Dr Eric Lim dated 26 July 2022 noted a diagnosis of major depressive disorder with anxious distress with symptoms including nightly nightmares, impaired self-care, showering every second day and loss of weight.

   A report by Dr David Kumagaya dated 27 May 2022 diagnosed major depressive disorder with anxious distress noting an improvement in his mental state following the commencement of venlafaxine with improvement in mood and attenuation of anxiety symptoms. This was consistent with the improvement in function reported at my examination.

   A confidential background social media search report dated 23 September 2022 by AV Investigations noted videos on Facebook of BFV's activities in the United States noting that he showed no signs of mental or physical restrictions, appeared in good spirits and moved freely. Five videos were noted on 20 June 2022 showing the claimant enjoying himself, having a barbeque, smoking and drinking beer and singing along to an older man playing the guitar and momentarily playing the guitar himself at a low- key gathering held in a residential backyard consisting of individuals believed to be BFV's relatives. He was noted to be using a shovel with both hands to dig up a tree stump on 4 June 2022, while in the United States. He was noted to enjoy attending a relative's American wedding. It was noted that all the live videos obtained of BFV provided compelling information about BFV carrying out activities contrary to his spectrum of injuries.

   In his further statement, dated 17 October 2022, BFV addresses the AVI Investigations report noting that he went overseas to regain control of his life and try to be happy. He said it took a lot of convincing for him to travel. He noted that the investigation only details snippets of his life where he appeared to be doing well noting that the report did not detail times he had to take a break from his family due to feeling overwhelmed or when he struggled on the inside. He stated that social media could be misleading. He noted at night he struggled with sleeping and getting his mind off previous experiences of work, struggling to switch his mind off. Comment: Context-specific preservation of affective reactivity is consistent with a diagnosis of adjustment disorder but less likely with a major depressive disorder with anxious distress. BFV's behaviour while in the US may also reflect improvements in his mental state due to venlafaxine augmentation. Deterioration in mood on his return home supports my apportionment of 50% of the whole person impairment to the effects of his physical incapacity. In the US, he did not have to worry about the consequences of unemployment related to his physical incapacity; it was effectively 'time out' from contextual stressors. Commenting on discrepancies observed in his physical capacity is outside my area of expertise.”

5. The appellant complains that the Medical Assessor has erred in respect of three of the categories assessed, namely, self-care and personal hygiene, social and recreational activities and employability. The Medical Assessor assessed Class 2, mild impairment, in all three categories and the appellant says a Class 3 should have been assessed in for self care and personal hygiene and social and recreational activities and a Class 5 should have been assessed for employability.

6. The Panel cannot interfere with the ratings ascribed by the Medical Assessor to the categories of self care and personal hygiene, social and recreational activities,  and employability absent error by the Medical Assessor. The Panel cannot interfere with the rating because opinions might differ as to the best fit in this category. There must be error or assessment on the basis of incorrect criteria.

7. In respect of self care and personal hygiene, Table 11.1 of the Guidelines 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.

1. The Medical Assessor assessed Class 2 with the following reasoning:

   “He skips showers sometimes. His wife manages his medication and organises him. He is otherwise independent with his self-care and contributes to the housework. He cooks with his wife when his family visit. He sometimes misses a meal and has lost weight.”

2. The Medical Assessor had clear regard to the opinion of Dr Hong, the IME qualified on behalf of the appellant who assessed a Class 3 for self care and personal hygiene. The Medical Assessor noted that the appellant’s function in self care and personal hygiene, has improved since his treatment was augmented with venlafaxine. 

3. The appellant submitted a Class 3 should have been assessed. However the Medical Assessor is entitled to rely on his clinical findings on the day of assessment including the history taken on the day of assessment. He has very clearly had regard to the higher assessment by the IME for the appellant and has explained why his opinion differs. Class 2 is clearly the best fit and the Appeal Panel can discern no error.

4. In respect of social and recreational activities, Table 11.2 of the Guidelines provides as follows:

   “Table 11.2: Psychiatric impairment rating scale – social and recreational activities

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2	Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3	Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4	Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5	Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.”

1. The Medical Assessor assessed a mild impairment at Class 2 with the following reasoning:

   “He has reduced his church attendance. He regularly goes to a local steakhouse with his wife. They regularly entertain their children at home. He enjoys socialising. He enjoys visits to the shops. He interacts with people when at the shops. He plays the guitar and sings. He enjoys gardening and tending to his vegetables.”

2. The appellant submitted that a Class 3 or moderate impairment should have been assessed.

3. The Medical Assessor noted that Dr Hong the IME qualified on behalf of the appellant, assessed a Class 3. The Medical Assessor has carefully noted that the history he obtained and upon which he is entitled to rely, shows an improvement in function. He notes that the improvement in function is consequent upon an adjustment in medication. Class 2 is clearly the best fit and the Appeal Panel can discern no error.

4. In respect of employability, Table 11.6 of the Guidelines 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.

1. The Medical Assessor assessed a Class 2 with the following reasoning:

   “Were it not for his physical injuries, he would be capable of working as a storeman. His hours would need to be reduced due to the effects of the adjustment disorder. He could work no more than 20 hours per week due to reduced concentration and motivation.”

1. The appellant submitted that a Class 5 should have been assessed. The Medical Assessor has made an assessment on the day of examination in accordance with his clinical judgment and rated the appellant as Class 2. He has noted the improvement in function since the adjustment to the appellant’s medication and has made a clear and reasoned assessment of impairment in respect of employability that results from the psychological injury as distinct from the physical injury. The Appeal Panel can discern no error in Class 2 which is the best fit.

2. For these reasons, the Appeal Panel has determined that the MAC issued on
   22 February 2023 should be confirmed.