Blacktown City Council v Djordjevic

DETERMINATION OF APPEAL PANEL
CITATION:	Blacktown City Council v Djordjevic [2024] NSWPICMP 372
APPELLANT:	Blacktown City Council
RESPONDENT:	Peter Djordjevic
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	7 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal by employer from 22% whole person impairment (WPI) assessment for psychological injury; whether Medical Assessor (MA) erred by referring to worker’s activities in social and recreational activities category; whether MA had offended the authority of Ballas v Department of Education (State of NSW); whether MA had failed to consider financial documentation: Held – referral to socialising with one friend properly considered under social and recreational activities; Ballas considered; Lancaster v Foxtel Management Pty Ltd and Hennessy v Northcott Supported Living Ltd considered and applied; asking MA to draw inferences solely on financial documentation unsafe and beyond MA’s expertise without more; appellant employer arguing against unanimous opinion of medicolegal experts in both issues; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 November 2023 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 Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 October 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 13 February 2023 this matter was referred for assessment regarding two injuries. This appeal concerns the assessment of impairment caused by a psychological injury caused “between 2017 and 27 August 2020.”
The referral followed a defended hearing at which Member Philip Young made an order for weekly compensation, s 60 expenses and remitted the two injuries for assessment,
Mr Djordjevic was employed by the appellant employer since 2004, as a street cleaning operator. He was bullied and harassed during his employment until he ceased work in March 2018. He began obtaining treatment for his psychiatric condition by a psychiatrist Dr Howpage and a psychologist Dr Ming Lo Sze. Mr Djordjevic returned to work in July 2018 but found that his supervisor, who had been the main cause of his condition, continued to bully and harass him.
He applied for a position as a midnight Team Leader in October 2019 but was disappointed that his application was not accepted. Mr Djordjevic then ceased work on 27 August 2020
The Medical Assessor awarded 22% WPI.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the appellant employer failed to establish error on behalf of the Medical Assessor.

EVIDENCE

Documentary evidence

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

Medical Assessment Certificate

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

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 MAC

The Medical Assessor gave a thorough and considered medical assessment certificate supported by detailed reasons. Relevant to the issues before us, she said with regards to personal history:[1]
“[Mr Djordjevic] said that he had some relationships in the past but has been in a stable relationship with his wife for about 38 – 40 years.”
[1] Appeal papers page 35.
In discussing Mr Djordjevic’s social activities and activities of daily living, the Medical Assessor said relevantly:[2][3]
“He used to enjoy scuba diving, gym, and exercising. He has not done any scuba diving or exercising in the last 2-1/2 years. He used to be very active and used to socialise once a week. He does not socialise at all now. He only sees one of his friends monthly. He added that his other friends do not understand his mental health issue or empathise, so he is not in contact with them anymore.
…. He currently lives with his wife and said that his wife has been quite supportive and he relies on her. He added that he does not have a libido and does not have an active sex life. He, however, has a good relationship with his kids…”
[2] Appeal papers page 36.
We shall consider the relevant contents of the Medical Assessor’s Table 11.8 psychiatric impairment rating scale (PIRS) rating form below.

SUBMISSIONS

In its preamble to its submissions the appellant employer referred to Ferguson v State of New South Wales.[4] It submitted that the Medical Assessor had fallen into error in his assessment of the categories of social and recreational activities and social functioning.
[4] [2017] NSWSC 887.

Social and recreational activities

The error alleged by the appellant employer was that the Medical Assessor had erroneously applied the wrong criteria to this category. We were referred to Ballas v Department of Education (State of NSW).[5]
[5] [2020] NSWSC 86 at [95] to [96].
The error alleged was that the Medical Assessor took into account Mr Djordjevic’s monthly social interaction with his one friend, which was not relevant to the descriptors of the social and recreational activities category within the PIRS.
It was further submitted that the financial material provided by Mr Djordjevic demonstrated that he spent considerable time attending coffee shops, restaurants and golf venues.
The appellant employer kindly reproduced the descriptors in this category for mild and moderate impairment.
In all the circumstances it was submitted that the appropriate assessment was a mild class 2 assessment and not the moderate class 3 assessment given by the Medical Assessor.

Social functioning

In this category it was submitted that the Medical Assessor had erred in ascribing class 2 rating after giving a description of the relationship of social functioning with his wife and children, which was more consistent with the descriptors for class 1.
The appellant employer also submitted that the findings of the Medical Assessor that Mr Djordjevic was seeing a friend on a monthly basis without being prompted or having a support person available, was also relevant to a class 1 rating.
The appellant employer noted that Mr Djordjevic was able to drive to the shops.
The appellant employer submitted that there was “no explanation as to whether [Mr Djordjevic’s] libido was prior to the work injury.” [(sic].
It was further submitted that Mr Djordjevic’s relationship with his wife and children was unaffected, and he enjoyed a good relationship with them. There was, it was noted, no evidence to indicate that the children had moved out because of his psychological injury.

RESPONDENT SUBMISSIONS

Mr Djordjevic’s submissions were prepared by Mr Bruce McManamey of counsel.
Mr McManamey noted that the meaning of each category (scale) was derived by considering the descriptors within the classes for each category. We were referred to Chapter 11 of the Guides and the descriptors given for classes 1, 2 and 3 in the category of Social and Recreational activities.
It was submitted that the combination of the descriptors demonstrated that this category was focussed on the interaction with other people and engagement in social activities, which “clearly” included matters relevant to social interaction.
Mr McManamey contrasted that category with the Social Functioning category, submitting that it was concerned with the ability to form and maintain interpersonal relationships. We were referred to the language of the descriptors in this category and those of the Social and Recreational activities category. It was submitted that there was a “close relationship” between the two categories – especially regarding classes 4 and 5.21
Features of social withdrawal and avoidance of social contact were relevant in both categories, and the “overlap” was evident in that the title of both categories contained the word “social”. It followed, it was argued, that features of how the worker currently lives could be relevant to both categories.
Thus, it was argued, a need to live alone was referred to in class 5 of both categories, the difference being that for Social and Recreational activities it was relevant to the lack of engagement in public activities and interactions, whereas for social functioning it was relevant to more personal interactions.

Social and Recreational activities

The appellant employer argued that the Medical Assessor had erred by saying that Mr Djordjevic did not socialise at all, and saw his friend only once a month, which was alleged to be an irrelevant consideration. Mr McManamey recounted the full text of the reasons given by the Medical Assessor and submitted that when read as a whole it could be seen that the focus of the reasons was whether Mr Djordjevic continued to engage in social and recreational activities. The fact that Mr Djordjevic only socialised with one close friend was consistent with the descriptors for classes 3 and 4 in this category, Mr McManamey argued.
He noted that the medicolegal experts on each side of the record had also assessed a class 3 rating in this category.
Mr McManamey then addressed the appellant employer’s reliance on Ballas. He submitted that the facts of Mr Djordjevic’s case were distinguishable from the facts that pertained in Ballas, where the worker was also seeing one friend regularly, but in the context that doing so was a solitary activity, which constituted another error. Mr McManamey argued that the worker’s conduct in Ballas went to the Social Functioning category as it had been limited to the question of whether the worker still maintained social relationships.
In the present case, however, the reference to seeing a friend was in the context of whether Mr Djordjevic went out and engaged in social activities. The dicta in Ballas accordingly did not apply, except as a statement that “only matters relevant to each scale should be considered when determining the class within each scale.”
Thus, the context in which Mr Djordjevic was socialising with his friend was important, Mr McManamey argued. There was now a considerable restriction consistent with a class 3 rating.
As to the reliance by the appellant employer on what appeared in the bank statements, Mr McManamey submitted that all the bank statements showed was that there was some expenditure by persons unknow in certain venues. There was no submission made by the employer, nor other evidence, to explain what the records really showed. In the absence of any such explanation. the Medical Assessor could not have made a demonstrable error by failing to give the records any weight.

Social functioning

Mr McManamey referred to the reasons given by the Medical Assessor for her class 2 rating.
It was submitted that the class 2 assessment was appropriate to the facts that were before the Medical Assessor. She was aware of and referred to the strain of the marriage and also the loss of libido.
Again Mr McManamey noted that both the opposing medicolegal specialists had assessed the same class 2 rating.
The submissions by the appellant employer were, it was argued, simply an attempt to cavil with the outcome. Mr McManamey submitted that in fact the appellant employer did not submit that there was any error, but simply stated that a class 1 rating was more appropriate.
Mr McManamey submitted that matters raised by the appellant employer as to the claimant going out without a support person and travelling to the shops was not appropriate to this category, but were only relevant to the category of travel. They did not relate to the ability to form and maintain relationships, with which the category of Social Functioning was concerned.
The fact that Mr Djordjevic had lost all of his friends except one as a result of his injury was a factor that alone was sufficient to justify a class 2 rating, it was submitted.

DISCUSSION
The PIRS

The appellant employer relied upon the authority of Ballas to establish error on behalf of the Medical Assessor in the assessment of Mr Djordjevic’s impairment under the category of Social and Recreational activities within the PIRS.
The 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[6] 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.”
[6] Guides page 55.
The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[7]
[7] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[8] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (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’.
24. 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.
25. 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[9]. 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].”
[8] Cited by the appellant employer above.
[9] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[10] 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])…..”
[10] [2018] NSWSC 140.
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.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category 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.
In Ballas the Court (Bell P, Payne JA, Emmett AJA agreeing) held that the conduct assessed must be consigned to the correct category (or scale), and failure to do so would result in appellable error, which is the basis of the appellant employer’s challenge to the rating for the Social and Recreational Activities category, and its contention that a class 2 rating should have been assessed.

Social and Recreational Activities

The classes in this category have the following descriptors:
“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.”

In assessing a class 3 rating, the Medical Assessor said:[11]
“He used to enjoy scuba diving, going to the gym and exercising. He has not done any scuba diving or exercising on the last 2-1/2 years. He used to being very active and used to socialise once a week. It does not socialise and all. He sees his friend only monthly now. He added that he has only one friend whom he speaks to. Otherwise he does not socialise at all with his other friends as they do not understand his mental health issues.”
[11] Appeal papers page 42.

In Ballas, the issue concerned whether the Delegate of the President had erred in refusing to order that the matter proceed to a Medical Appeal Panel. In the Supreme Court, the Delegate’s decision was confirmed, but on appeal to the Court of Appeal it was set aside.
Ballas was a case where the Medical Assessor (“AMS” as they were then called) assigned a class 2 rating for the worker’s Social and Recreational activities, finding amongst other things that the worker gambled on poker machines, spending around an hour at an RSL club every month by herself. The Court (Bell P and Payne JA, Emmett A JA agreeing) described the worker’s submission at [85]:
“The argument advanced by Mr Hooke SC on behalf of Ms Ballas was that, in giving his reasons for the particular rating of 2 assigned to the ‘social and recreational activities’ area of impairment…, Dr Hong took into account matters that, whilst they may have been relevant to other areas of impairment that fell for assessment such as ‘travel’ and ‘social functioning’, did not bear upon that area identified as ‘social and recreational activities’. In particular, the solitary nature of Ms Ballas’s gambling was said not to be relevant to ‘social and recreational activities’ because, to quote from para 6 of her submission to the Delegate, that scale ‘is directed to the kind of activities that involve interactions with other people’. This was the essence of what made it ‘arguable’ that the AMS had made a ‘demonstrable error’.”
It is this distinction that is relied on by Mr Djordjevic, as it was not suggested that his social activity with his friend was solitary and the nature of his activity, speaking with his friend, was one which by definition involved interactions with other people.
However, in Ballas the Court held that in relation to the categories of the PIRS, they were “fixed and are treated by the Guidelines as distinct from each other.” (For clarity, the six categories of the PIRS are referred to as “scales” in Ballas). The Court said at [92]:
“…The structure of the Guidelines, and the mandated use of a standardised form on which an AMS must specify the ‘class’ he or she assigns to each ‘scale’ and give his or her reasons for doing so, are designed to add transparency and rigour to the exercise of WPI assessment.”
At [94] the Court said:
“…If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.
95. In the present case, it was plainly ‘arguable’, to use the language of Vannini, that the AMS took into account an irrelevant consideration in relation to the scale ‘social and recreational activities’ when he made reference in his reasons to ‘[s]ees one friend regularly’ (see [9] of the submissions to the Delegate, extracted at [81] above). This is because there is a separate scale entitled ‘Social functioning (relationships)’ to which that conduct is more directly relevant.
96. Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by s 11.15 of the Guidelines to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the ‘Social functioning (relationships)’ scale.”
Paragraph [9] at [81] said relevantly:
“9. When assessing social and recreational activities, the AMS also refers to the Appellant seeing one friend regularly. There is no reference to this in the history and accordingly, it is unknown in what circumstance[s] this contact occurs. In any event, the AMS has repeated the same error of taking into account an irrelevant consideration. The issue of ability to maintain friendships is relevant to the Class of social functioning not social and recreational activities….”
It can be seen therefore that the distinction sought to be made by Mr Djordjevic has been specifically referred to in this decision. The Court of Appeal considered both that activities performed whilst alone, and the activity of seeing a friend, were not assessable under the Social and Recreational Activities category.
However, we note the observations by Basten AJ, sitting in the Common Law Division of the Supreme Court, in Lancaster v Foxtel Management Pty Ltd.[12] His Honour said from [72]:
“72. The plaintiff’s reading of Ballas would have surprising consequences. It would mean that every time a medical specialist considered under one scale an activity which a court determined properly fell under another scale, he or she committed jurisdictional error which could be the subject of review in the Supreme Court. The proposition that gambling (or running) may fall within the descriptor ‘social and recreational activities’ if carried out in company (whatever that might imply) but not if carried out alone, and the assessment by a medical specialist whom a court determined had failed to apply that distinction so as to render his or her determination a nullity would be a surprising consequence. It would involve reading down the term ‘recreational’ by reference to the generic and imprecise exemplars in the class descriptions, so as to impose a legal constraint on the valid exercise of power by the medical specialist. A similar exercise would potentially be available for each of the other scale descriptors.
73. Even if such an implausible reading of the joint reasons in Ballas were correct, it was not necessary for the determination in Ballas…..”
[12] [2022] NSWSC 929.
We note further the comments of a Medical Appeal Panel in Hennessy v Northcott Supported Living Ltd:[13]
“The Appeal Panel does [not][14] consider that the examples listed within Table 11.2, which is the relevant table for social and recreational activities, are to be read such that a Medical Assessor when rating a worker’s impairment in social and recreational activity is limited to considering only activity in which a worker engages with others. Recreational activities such as surfing, running, playing a computer game, walking along a bush track, star gazing even, are some of numerous recreational activities in which someone may engage without the interaction of others. Such activity is rightfully considered under table 11.2.”[15]
[13] [2023] NSWPICMP 581.
[14] We assume that there was a typographical error and have inserted the “[not]” to enable the passage to be properly understood.
[15] The Panel cited Lancaster as authority for this statement.
We are accordingly satisfied that the ratio decidendi in Ballas was that the Delegate of the President had erred in not referring the dispute to a Medical Appeal Panel, and that, as was argued by Mr McManamey, only matters relevant to each category within the psychiatric impairment rating scale should be considered when determining the class within each category.
The appellant employer relied only on a portion of the Medical Assessor’s reasons for erroneously giving a class 3 rating for the social and recreational activities category. We note that a class 2 speaks of a claimant “occasionally going out…” whereas a class 3 descriptor says “rarely goes out…”
The reasons given by the Medical Assessor indicated that whilst Mr Djordjevic used to enjoy recreational activities such as scuba diving, going to the gym and exercising, he no longer did so at all. Her comment that Mr Djordjevic used to be very active and socialise once a week informs her statement that he now did not socialise, and had only one friend that he spoke to. We assume that the Medical Assessor was referring to the same friend whom she said that Mr Djordjevic saw once a month. In context, we read the reference to the claimant being “very active and used to socialise once a week” as a reference to the activities the Medical Assessor had just described, namely scuba diving, going to the gym and exercising. Seen in that light, the contrast described by the Medical Assessor is plainly relevant to this category.
The reliance by the appellant employer on the contents of the financial material that was before the Medical Assessor does not advance its case. Firstly, the financial material only indicates the expenditure of money for certain products at certain venues. The submission proceeds on the assumption that a Medical Assessor should speculate as to each individual circumstance where such expenditure occurred, as there was no other evidence upon which inferences could be drawn. Secondly, the interpretation of financial documentation is not related to the expertise and experience of a Medical Assessor, and it would be unsafe to expect him/her to draw any conclusions simply on the financial documentation itself. The expenditure for instance might have been by a family member.
We note that in order to succeed in the submission, the appellant employer had also to argue against its own medicolegal specialist, who had also assessed a class 3 rating in this category, and moreover who had also agreed with the medicolegal specialist retained by Mr Djordjevic.

Social functioning

Table 11.4 of the Guides provides relevantly:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
Class 2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
In her reasons for assessing a class 2 in this category, the Medical Assessor said:
“[Mr Djordjevic] said that he lived with his wife and all of his children have moved out. He said that his wife has been patient with him and he relies on her. He reported that he does not have libido and is not have an active sex life. He has good relationships with his kids.”
With regard to the appeal against this rating, the appellant employer again set itself a difficult task, as it argued that its own medicolegal expert had been incorrect in his assessment of a class 2 rating, which had been the same as that of the claimant. Dr Bisht noted:[16]
“Peter often gets irritable towards his family and is distant from them. There have not been any periods of separation however.”
[16] Appeal papers page 569.
For the appellant, Dr Rastogi said:[17]
“Mild impairment as existing relationships strained with family with a feeling of being a burden, lost friendships and does not engage as much with people.”
[17] Appeal papers page 148.
Whilst a Medical Assessor’s function is “neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question”[18] where, after applying his/her expertise and experience, a Medical Assessor concurs with a unanimous assessment by the medicolegal experts, an appellant’s task is usually an uphill one. In the present case the appellant employer has done no more than cavil with the assessment of the Medical Assessor. It was not correct that Mr Djordjevic’s relationship with his wife remained unaffected, as was submitted. Mr and Mrs Djordjevic had been together for almost 40 years, and the Medical Assessor noted that Mrs Djordjevic had been “patient” with him, which is evidence in context that a long-term relationship had become strained. The class 2 rating was open to the Medical Assessor accordingly.
[18] Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43.
For these reasons, the Appeal Panel has determined that the MAC issued on 12 October 2023 should be confirmed.

[3] Appeal papers page 36.

[2024] NSWPICMP 372

7 June 2024