Blacktown City Council v Clark
[2022] NSWPICMP 319
•5 August 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Blacktown City Council v Clark [2022] NSWPICMP 319 |
| APPELLANT: | Blacktown City Council |
| RESPONDENT: | Emma Clark |
| APPEAL PANEL: | Member John Wynyard Medical Assessor Douglas Andrews Medical Assessor Nicholas Glozier |
| DATE OF DECISION: | 5 August 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal by employer from assessment of 15% whole person impairment (WPI) for psychological injury; whether Medical Assessor (MA) had erred in finding class 3 assessments for three of the Psychiatric Impairment Rating Scale (PIRS) categories where both medico-legal experts had found class 2; Held — the MA acknowledged and explained in detail the reasons why he differed with the earlier assessments in the categories of self-care and maintenance, social and recreational activities and employability; Ferguson v State of New South Wales and Jenkins v Ambulance Service of New South Wales applied; employer demonstrated no more than a mere disagreement; observations concerning employability category where circumstances change from teleconference to assessment; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 April 2022 Blacktown City Council, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 16 March 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):
· 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 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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 2 February 2022, following consent orders issued on 18 January 2022, a referral was made to the MA for an assessment of WPI caused by psychological and psychiatric disorder on a deemed date of 1 April 2017.
Ms Clark worked as a cook in the childcare centre at Rooty Hill, beginning in 2011. She was working 25 hours per week and her problems began in 2016/2017 when her Director was replaced by a new temporary Director. This replacement bullied and harassed Ms Clark until she left work on 9 April 2017.
She is under the care of a psychologist, referred by her general practitioner (GP).
She was also referred to a psychiatrist, but she did not go because she did not wish to discuss her problems with another person. She was also reluctant to take medication.
The MA assessed 15% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant employer did not request the worker to be re-examined by a MA who is a member of the Appeal Panel. For the reasons given below, a re-examination was not required.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the MAC given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant challenged the assessments made as to three of the six categories required to be assessed pursuant to chapter 11 of the Guides. These were:
(a) self care and personal hygiene;
(b) social and recreational activities, and
(c) employability.
The MAC
Ms Clark’s present symptoms at interview were described by the MA[1]:
“Ms Clark feels sad and depressed every day. She said her only pleasure in life is being with her children, her husband and her dog. She has lost interest in going out and socialising with friends which she used to enjoy. Her appetite remains good. Her sleep is very poor with trouble getting off and staying asleep. She describes feeling “exhausted every day. She has had very poor levels motivation of and a significantly reduced libido. Her concentration is poor and she has trouble making decisions. She said she sometimes feels guilty about what has happened to her. She feels hopeless and sometimes feels that life is not worth living but does not have any suicidal thoughts. Ms Clark report feeling anxious and restless all the time “for no reason”. She worries frequently about many things.
Ms Clark reports that her symptoms have been relatively stable over the last six months.”
[1] Appeal papers p 26.
The MA noted in discussing Ms Clark’s social activities and activities of daily living that she does not socialise with her friends anymore and does not go out for meals or go to their homes like she used to. He recorded that she ate regularly but sometimes skipped meals. She and her family would go to her husband’s parents’ home in Bathurst occasionally and she would go to a local Catholic church for mass. However she needed prompting by her husband to go to his parents’ home and she does not interact with other people when she went to mass but comes straight back home.
The MA recorded that Ms Clark was able to drive short distances such as taking her children to school. He also noted that she took her dog for a walk in the local area. She did not shower or change her clothes every day and sometimes needed prompting from her husband.
As to Ms Clark’s subsequent work history, the MA said[2]:
“Ms Clark said she stopped work on 1 April 2017 and was off work for two years. She returned to work on light duties in the records section at the Blacktown City Council building for three months. She was then terminated from Blacktown City Council in 2019 or 2020. She then obtained a position as a youth support worker, working 28 to 30 hours per week, for two years. She said she stopped this work about six weeks ago as she could not cope with the work anymore because of her severe anxiety symptoms and poor concentration. She is currently not looking for other work.”
[2] Appeal papers p 27.
The MA spent some time considering the evidence before him at [10c] of his report. We have restructured the paragraph form of his remarks, as the MA made a thorough and detailed review of all the evidence, and our interest is restricted to the three assessments impugned by the appellant employer. The MA said:
“I note a report on Ms Clark by Dr Richa Rastogi, psychiatrist dated 18 February 2021. Dr Rastogi gave Ms Clark the diagnosis of Persistent Major Depressive Disorder with anxious distress which is effectively the same diagnosis I have given Ms Clark.
In her report dated 18 February 2021, Dr Rastogi gave Ms Clark a whole person impairment rating of 17%....
Dr Rastogi differed from me in her rating for Self Care and Personal Hygiene where she rated Ms Clark a Class 2 whereas I have rated her a Class 3. I rated Ms Clark a Class 3 as she reported to me that she no longer does any cooking and her husband and adult daughter are doing all the household chores. She said she sometimes requires prompting from her husband to shower and change her clothes and she appeared dishevelled in appearance at the assessment.
Dr Rastogi rated Ms Clark a Class 3 for Concentration Persistence and Pace whereas I have rated her a Class 2. I rated Ms Clark a Class 2 as she reported being able to read for up to 20 minutes before needing to take a break and also being able to drive for 15 to 20 minutes before needing to take a break because of her poor concentration.
……..
………
In his report dated 23 August 2021, Dr Bisht gave Ms Clark a whole person impairment rating of 6%. Where he differed from me were in his ratings for Self Care and Personal Hygiene where he rated Ms Clark a Class 2 whereas I have rated her a Class 3 for the reasons I have outlined above.
Dr Bisht rated Ms Clark a Class 2 for Social and Recreational Activities whereas I have rated her a Class 3. Ms Clark reported that she is no longer socialising at all with her friends which she used to enjoy. Her only social activity is occasionally going with her family to her husband's parents' home at her husband's prompting. She takes her dog for a walk in the local neighbourhood by herself and occasionally goes to a nearby church by herself but does not interact with other people there and immediately returns home after Mass.
Dr Bisht rated Ms Clark a Class 2 for Employability whereas I have rated her a Class 3. I note that when Ms Clark was assessed by Dr Bisht, she was working 27.5 hours per week as a youth support worker. However, six weeks before my assessment Ms Clark said she had to stop her work as she was no longer coping with it due to her marked anxiety and reduced concentration. Therefore, in my opinion she is only able to work less than 20 hours per week in a less stressful and demanding position than her previous work as a childcare cook.
….”
In relation to each challenged category of the PIRS, the MA made the following classifications and gave the following reasons:
(a) self care and personal hygiene;
(b) social and recreational activities, and
(c) employability.
SUBMISSIONS
Self care and personal hygiene
The appellant employer
The appellant employer noted the reasons given by the MA for his assessment of class 3 in this category. The classification of the relevant PIRS categories were kindly reproduced.
It was submitted that a more appropriate assessment would have been a class 2 as there was no suggestion that Ms Clark could not live independently.
It was conceded that Ms Clark did not prepare meals and it was noted further that she occasionally skipped meals. The appellant employer also noted that the MA had found that Ms Clark sometimes required prompting to shower and change.
There was however no evidence, it submitted, that “she needs encouragement 2-3 times per week to ensure a minimum level of hygiene and nutrition”.
The appellant employer noted that both medical experts on each side of the record assessed a class 2 in this category.
We were referred to Ms Clark’s statement of 23 November 2021, stating that the level of impairment described therein did not support a class 3 assessment.
The respondent worker
Ms Clark’s submissions were prepared by Ms Nicole Compton of counsel. Ms Compton submitted that the appellant employer’s submission that Ms Clark could not live alone independently failed to consider the entirety of the class and particularly the full definition which included the words “without regular support”.
We were referred to the findings by the MA that had not been challenged:
(a) that Ms Clark’s older daughter and husband did the shopping and the cooking now;
(b) Ms Clark’s older daughter and husband did the house cleaning and clothes washing;
(c) that Ms Clark ate regularly but sometimes skipped meals, and
(d) that Ms Clark did not shower and change her clothes everyday and sometimes needed prompting from her husband to do so.
Ms Compton submitted that those findings, when compared with the previous assessments of the medico-legal experts Drs Bisht and Rastogi, reflected Ms Clark’s state, some months after the opinions had been given by the medical experts.
The findings made by the MA were open to him, Ms Compton argued, based on Ms Clark’s presentation at the time of the assessment.
Social and recreational activities
The appellant employer
The appellant employer submitted that a class 2 was more appropriate because Ms Clark was able to go to church alone for mass even though she did not interact. Further, it was argued, Ms Clark was able to walk the dog alone. This made a class 2 value, as found by
Dr Bisht, the more appropriate fit on the totality of the evidence.Accordingly, it was argued that the MA had fallen into error.
The respondent worker
Ms Compton submitted that the appellant employer’s submissions accepted the factual findings by the MA but argued with the categorisation.
Ms Compton referred to various factual matters that had been found by the MA and submitted that no error had been established simply because the MA had made a different calculation.
Employability
The appellant employer
The appellant employer referred to the evidence that Ms Clark had been working 28 – 30 hours per week for two years as a youth worker, until six weeks before the assessment.
The MA had accepted Ms Clark’s explanation that she ceased work because of the severity of her symptoms but, it was argued, no treating or independent medical evidence had been provided in support. Indeed Dr Rastogi on 18 February 2021 thought Ms Clark was fit to do her current duties as a youth worker for 27.5 hours per week and Dr Bisht on 26 July 2021 also thought she was fit to work those hours.
The appellant employer referred to a teleconference in this matter before Member Catherine McDonald on 18 January 2022. At that time, the appellant employer advised us, Ms Clark was working, and her claim for weekly benefits had been withdrawn as there were some difficulties with the claim.
Be that as it may, the appellant employer argued a class 3 assessment was inappropriate. There was a demonstrated capacity to work in excess of Ms Clark’s pre-injury hours in a different role and with different people. There was no evidence to support Ms Clark’s statement as to why she stopped work and accordingly the MA had fallen into error.
The respondent worker
Ms Compton submitted that although the appellant employer was critical of the timing of
Ms Clark’s ceasing work six weeks before the assessment, Ms Clark did not need to supply independent evidence for the purposes of a MAC assessment.Ms Compton referred to the practical difficulties of obtaining that evidence in any event. She noted that the Application to Resolve a Dispute was filed in November, the Reply in December, and the referral was in February so that there was no opportunity to provide that evidence.
Ms Compton referred to the findings by the MA and to his comments within the body of this report. She submitted that the MA had given reasons for his differing from the assessment by Dr Bisht. The MA had taken an accurate history regarding Ms Clark’s employment record, and was aware that she had been working for two years at 28-30 hours per week as a youth support worker before she stopped six weeks earlier.
DISCUSSION
We note the referral to authority by both parties, and make the following observations.
The Psychiatric Impairment Rating Scale
The Psychiatric Impairment Rating Scale (PIRS) is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12 provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[3] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[4]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[3][2017] NSWSC 887.
[4] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd, another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
The appellant employer relied particularly on the dicta of Campbell J in Ferguson as to the four instances where error could be found. The appellant employer made the following submission:
“10 It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in questions of classification under the PIRS was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c)if a clear misunderstanding could be demonstrated, or
(d) if an unsupportable reasoning process could be made out.”
It can be seen that the above citation from Ferguson that Campbell J was referring to the remarks of the Appeal Panel in Wark and that his Honour endorsed them insofar as they confirmed that the Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ was required to establish error in the statutory sense.
We note it has not been suggested that the MA has failed to give adequate reasons for his categorisation. Indeed that would be a difficult submission to make out in view of the thorough and comprehensive statement of reasons given by the MA.
It is correct that where an MA gives an opinion that differs from unanimous view of the medico-legal experts retained for each side, it is incumbent upon an MA to give reasons. That follows from the dicta in Vegan which we outlined at the beginning of these reasons, that where more than one conclusion is open, it is necessary to explain why the MA has preferred his conclusion. The unanimous view of the qualified experts that each of the impugned categories warranted a class 2 value was certainly one conclusion that was open, and the MA accordingly was obliged to explain his finding that each category warranted a class 3 valuation.
That explanation must be viewed bearing in mind that the function of an MA is to form and give his own opinion in the terms described by the High Court in Wingfoot Australia Pty Ltd v Kocak.[5]
[5] [2013] HCA 43.
In Western Sydney Local Health District v Chan[6] Adams J referred from [13] to Wingfoot as it applied to the function of an MA:
“13. In Wingfoot Australia Pty Ltd v Kocak [citation omitted] the High Court considered the task of a Medical Panel responsible for determining a medical dispute pursuant to s 68 of the Accident Compensation Act 1985 (Vic). The Medical Panel’s task in that case is analogous to the role of the [MA] under the Act, insofar as both are responsible for determining medical disputes by forming medical opinions based on their own inquiries as well as reports provided by both parties to the dispute. The Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) held that –
‘[47] The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions [authority omitted]. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
[48] The reasons that [the relevant Victorian legislation] obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself’.”[6] [2015] NSWSC 1968 @ [13].
We now turn to the disputed assessments.
Self care and personal hygiene
The descriptors that apply to this category by virtue of Table 11.1 of the Guides are:
“Mild impairment, Class 2, able to live independently, look after herself, may
look unkept, miss a meal or rely on take away food.
Moderate impairment, Class 3, Cannot 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.”
The MA stated in the reasons section of the rating scale:[7]
“Moderate impairment. Ms Clark relies on the support of her husband and older daughter, who lives at home, to live independently. They now do all the cooking, shopping and other household chores. She does not cook at all now. She sometimes requires prompting from her husband to shower and change her clothes regularly. She was dishevelled in appearance at the assessment.”
[7] Appeal papers p 33.
The appellant employer did not submit that the class 3 assessment by the MA was glaringly improbable, nor that he had been unaware of any significant factual matters.
The error alleged in this category was that, although the MA had made unchallenged findings of fact, another view was that a class 2 finding would have been more appropriate. Part of that argument was that there was no suggestion that Ms Clark could not live independently, but the submission overlooked the rider to that descriptor – that the claimant could not live independently “without regular support”.
That regular support was being given by her family, but we would observe that when submissions of this nature are the basis of the challenge, they must fail. As was noted by Campbell J in Ferguson, the descriptors provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected. They are not criteria, and the MA has a wide discretion because of the nature of this branch of medical science, to apply his medical expertise and experience in considering the appropriate evaluation. As was also remarked in Ferguson, the pre-eminence of the clinical observations by the MA during the interview cannot be underrated as an important function of the assessment process. The appellant employer’s submission does no more than express a mere disagreement with the level given.
Although the appellant employer submitted that Dr Rastogi and Dr Bisht both concurred that a class 2 value was appropriate, we have reproduced the reasons given by the MA for disagreeing, and we again note that no specific submission was made that he failed to give adequate reasons for his conclusions in this or either of the other categories challenged.
We are satisfied that the reasons for so differing were well expressed, detailed and showed the basis for his different classifications. His reasons were based on his assessment of the worker as he saw her on the date of the assessment, 2 March 2022. He took into account the other opinions on different dates and his explanation as to why he differed clearly showed his path of reasoning.
Social and recreational activities
Table 11.2 of the Guides states:
“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.
Mild impairment, Class 2, occasionally goes to such events eg without needing
a support person, but does not become actively involved (eg dancing, cheering
favourite team).
Moderate impairment, Class 3, 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.”
The MA said in the rating scale:
“Moderate impairment. Ms Clark generally remains quiet and withdrawn at home. She has lost interest in socialising or visiting with friends such as going to each other’s places for dinner or going to restaurants for dinner. She occasionally goes out with her family to her husband’s parents’ home at her husband’s prompting. She occasionally goes to a local Catholic church for Mass but does not interact with other people there and comes straight home after the service.”
Again, no reviewable error has been established by the appellant employer. Its submissions were directed at facts actually found by the MA. The MA said that Ms Clark went to church alone for mass. He said that she did not interact with other people, and he recorded that
Ms Clark walked her dog alone. His view was that nonetheless a class 3 was applicable, as he highlighted the lack of social interaction within these activities. Within the discretion available to him these matters did not persuade him that a lower value was appropriate. He had available all the evidence, and he had the benefit of discussing Ms Clark’s situation in person and face to face through the telehealth procedure.In discussing Dr Bisht’s report it was clear that the MA was aware other experts differed to his view, but he explained his reasons for differing. The class 3 finding was open to him, as he found that Ms Clark was no longer socialising at all, and had to be prompted to visit her husband’s parents – matters that fitted within the class 3 descriptors. The appellant employer differs with that view, but the difference in no more than a mere disagreement about which reasonable minds have differed.
Employability
The classes for this category are contained in Table 11.6 of the Guides:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training. The person is able to cope with the normal demands of the job.
Class 2 Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3 Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4 Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5 Totally impaired: Cannot work at all.”
The MA gave the following reasons:
“Moderate impairment. Ms Clark was not able to cope with working as a youth support worker for 28 to 30 hours per week because of her anxiety and reduced concentration. In my opinion she would be able to work in a less stressful and demanding role than her previous position as a childcare centre cook for less than 20 hours per week.”
The appellant employer may have held suspicions as to why Ms Clark ceased work at the time of the teleconference before Member McDonald. Ms Clark had demonstrated an ability to perform 28 - 30 hours of work for the two years preceding that date.
The appellant employer said that the absence of any supporting medical opinion, as we understood the submission, should have caused the MA to have doubts about Ms Clark’s motives, and accordingly not acknowledged her changed situation. He should have found the same class of employability that she was performing when she saw Dr Rastogi and
Dr Bisht.There are some difficulties with that approach. It sometimes happens that factual matters intervene between the referral of a matter to an MA, and the actual consultation. A psychiatrist, especially amongst medical experts, is trained to assess people by an examination of their mental state and appearance at interview. As indicated earlier, the MA by virtue of his clinical experience and his expertise was able to assess the genuineness of Ms Clark’s explanation. In that regard we accept Ms Compton’s submission that independent evidence is not required in this situation.
Secondly, it is integral to the role of the MA to assess the worker as she presents on the day taking into consideration the available facts and opinions of the independent medical examiners. Some information was available to the MA that was not before Drs Bisht and Rastogi. Dr Bisht’s examination was eight months before that of the MA, and Dr Rastogi’s
13 months earlier. The worker’s condition and impairment may have changed in that time. The MA has examined this material carefully and based his opinion on all the available information.Thirdly, the MA could have, and in our view, would have made his reservations clear if he had any doubts as to Ms Clark’s history. That may indeed have taken the form of accepting the class 2 assessments of the qualified experts, or some other expression of doubt. The decision as to the value of Ms Clark’s credit was a matter for him, and he made it plain in his discussion of Dr Bisht’s opinion that he accepted her evidence, but nonetheless found that she remained with some earning capacity.
Fourthly, the MA’s finding of some capacity as defined in a moderate, class 3 assessment was an indication that he had considered this history, and not simply found she had a severe or total impairment. Accordingly, this assessment was open to him.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 March 2022 should be confirmed.
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