Breda v State of New South Wales Fire and Rescue NSW

DETERMINATION OF APPEAL PANEL
CITATION:	Breda v State of New South Wales - Fire and Rescue NSW [2024] NSWPICMP 311
APPELLANT:	Shelley Breda
RESPONDENT:	State of New South Wales - Fire and Rescue NSW
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	22 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against 9% whole person impairment for psychological injury; claimant employed by Fire and Rescue; lodged fresh evidence in statement and psychologists report; whether fresh evidence admissible; whether Medical Assessor (MA) erred in assessment of social functioning and concentration, persistence and pace; Held – fresh evidence rejected; statement did not challenge MA reasons or conduct, rather that his rating should have been higher; statement rejected as of marginal weight; psychologist report rejected as infringing section 328(3); substratum of opinion incorrect; impermissibly cavilling with MA’s findings; breaching section 326 and doubts as to expertise; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 31 August 2023 Shelley Breda, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 August 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):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        the assessment was made on the basis of incorrect criteria, and
·        the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
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 4 July 2023 this matter was referred to the Medical Assessor for a WPI arising from a psychiatric and psychological disorder that occurred on 24 October 2017.
Ms Breda was born in 1967 and had been employed as a Fire Fighter since 2003. She was at Brunswick Heads initially, then at Sydney until 2011 when she was transferred to Lismore.
On the pleaded date of injury Ms Breda was the driver of a fire truck on Ballina Road, Lismore, when a woman attempted to commit suicide by stepping in front of the truck but was not killed. Ms Breda had witnessed many traumatic events during her time as a firefighter but was able to manage quite well until this incident.
The Medical Assessor noted also that around the same time Ms Breda experienced significant traumatic events which were likely to have increased the risk of a mental health problem developing.
She sought an assessment from psychologist Greg Anning on 9 September 2017 and was diagnosed as suffering acute stress and alcohol use disorders. Ms Breda was already receiving psychological treatment from Mr Peter Chown, psychologist for “previous work-related matters”.
Ms Breda was admitted to Currumbin Clinic on three occasions, December 2017,
January 2018 and 2022.
The Medical Assessor noted that Ms Breda gradually returned to work in mid-2018 and progressed back to her pre-injury duties, but whilst attending a fire on the Gold Coast in October 2020 she became unwell and was unable to continue work.
A diagnosis of post-traumatic stress disorder and major depressive disorder was made by her general practitioner (GP) Dr Hilda Steele, and Ms Breda has not returned to work since.
Ms Breda stated on 7 June 2023:[1]
“Over the years I attended countless traumatic scenes, many of which involved fatalities. These included multiple structure fires, vehicle suicides, assisting with ambulance calls, high speed motor vehicle accidents, domestic violence incidents, floods and other events”.
[1] Appeal papers page 55.
The Medical Assessor assessed 9% 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 no error was established by the appellant.

Fresh evidence

The appellant seeks to admit the following evidence:
(a)    a further statement from the appellant dated 15 September 2023;
(b)    report of psychologist Peter Chown dated 16 September 2023, and
(c)    clinical records from Currumbin Clinic.

The appellant’s statement

Ms Breda stated that she disagreed with the ratings given by the Medical Assessor in the two appeal categories of the psychiatric impairment rating scale (PIRS). She said:[2]
“2.     I disagree with Dr Doris’ ratings in respect of my social functioning and concentration, persistence and pace.
3.      My socialising with friends is mainly limited to meeting 2 or 3 friends that I see every couple of months a beach walk or quiet activity.
4.      Before my injury I had a larger circle of friends and actively socialised. I did not rely on work for socialising and for making friends as I had a separate group of friends outside of work. Because of my injury I am no longer able to socialise as I used to, and I am not great company. My psychologist encourages me to try to improve my wellbeing and I do occasionally try to increase my social activities based on that advice.
5.     I am trying to engage in attending training course as encouraged by my treating psychologist. I have dropped out of a few courses as I am simply unable to concentrate and motivate myself to complete them.
6.      I do very limited voluntary work by helping out occasionally at the Queer Families group barbecue at Bunnings which are held every few months.
7.      I do not think that having the television on shows that I am able to concentrate and focus as I rely on the TV because I am lonely and depressed, and it keeps me company. I still fall asleep in front of the TV while watching and can only focus on very short news articles.”
[2] Appeal papers page 25.

Mr Peter Chown report, 16 September 2023

The index to the ARD[3] showed that Mr Chown did not supply a report in the proceedings, but that his clinical records were filed.
[3] Appeal papers page 54.
Mr Chown noted that he had been requested to provide a report on 23 August 2023. The appellant sought to have admitted his report dated 16 September 2023 that was nine pages in length, and in which Mr Chown acknowledged receipt of three reports, two dated
3 August 2022 from Ms Breda’s medico-legal specialist, Dr Christopher Canaris, and the MAC.
Mr Chown explained that he had been providing treatment for Ms Breda since
31 October 2017. He gave details of the history he obtained from Ms Breda, her present condition, her present symptoms, his findings on examination and his diagnosis. He was also asked to comment on causation and Ms Breda’s capacity for work.
Mr Chown was asked to advise which PIRS “category” (we assume the reference was intended to be the appropriate “class”[4]) ratings were appropriate in the two categories of social functioning and concentration, persistence and pace. Mr Chown cavilled with the finding by the Medical Assessor as to social functioning, referring to Ms Breda’s motivation for doing the activities she was involved with. He assessed a class 4 rating against the Medical Assessor’s rating of class 2.
[4] See our explanation of the PIRS system below, under “Discussion”.
With regard to the classification for concentration, persistence and pace, Mr Chown was of the view that a class 3 rating was appropriate. Again, Mr Chown referred to Ms Breda’s motivation for doing the various activities Mr Chown described. The Medical Assessor assessed a class 2 rating.
He was asked to and did comment on Ms Breda’s future prognosis and future treatment.

SUBMISSIONS AS TO ADMISSIBILITY

The appellant

Ms Breda’s statement had been filed, it was submitted, because the Medical Assessor had been “overtly obtuse and positive”, and had based his assessments on “incorrect presumptions” that did not “reflect the reality” of the information provided.
The evidence was designed to demonstrate that whilst Ms Breda’s social activities were “positive and focused”, they were done on the advice of her psychologist, and the fact that she had withdrawn from three courses in 2022 was a factor that the Medical Assessor had not taken into account when assessing a class 2 rating. He also failed to appreciate that
Ms Breda’s voluntary work was only occasional, that is to say, for a couple of hours every quarter.
With regard to the concentration, persistence and pace category, the statement was designed to underscore that the Medical Assessor had again been “overly positive” and that the fact that Ms Breda was able to attend a 3-day course with her short attention span should not have resulted in a class 2 rating. Moreover, the fact that Ms Breda had the television on overlooked that she was “lonely and depressed”. The television, it was said, kept her company.
As to the report from Mr Chown, the appellant submitted that the purpose for obtaining the fresh material was to enable Mr Chown to comment on Ms Breda’s social functioning and her concentration, persistence and pace.

The respondent

The respondent opposed the introduction of the additional evidence and referred to s 328(3) of the 1998 Act.
We were referred to Ross v Zurich Workers Compensation Insurance[5] as authority that was relevant to this section.
[5] [2002] NSWWCCPD 7.

DECISION AS TO FRESH EVIDENCE

Section 328(3) of the 1998 Act provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The clinical records from Currumbin Clinic had been the subject of a separate Application to Admit Late Documents which the appellant had unsuccessfully attempted to file prior to the medical assessment, due to a technicality within the rules. We note the objection by the respondent to this and the other additional material, but in the case of the Currumbin Clinic records we accept that, but for this technicality, they would have been admissible. We accordingly admit those records.
Ms Breda’s statement, on the other hand, is that type of fresh evidence that was considered in Lukacevic v Coates Hire Operations Pty Limited,[6] which concerned the admissibility before a Medical Appeal Panel (AP) of a statement from a dissatisfied claimant who had made a statement challenging the Medical Assessor’s conduct and the record made of the consultation.
[6] [2011] NSWCA 112 (6 May 2011).
Hodgson JA, (Handley AJA agreeing; Giles JA dissenting) stated at 78:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
Ms Breda’s evidence had independent support, as it did not question the Medical Assessor’s account of what she had said.
The Medical Assessor recorded that Ms Breda had two friends that she would meet every couple of months. He noted that she would go for beach walks. He reported that the number of relationships had significantly decreased since she left work and Ms Breda was trying to form new relationships. He noted that she had recently started volunteering for a family organisation and participated in a barbecue event, which we infer was a reference to the Queer Families group barbecue at Bunnings referred to in Ms Breda's statement.
With regard to CPP, the Medical Assessor recorded that Ms Breda was at TAFE, but had dropped out of the online courses. He also recorded that Ms Breda was able to sustain concentration on television or movies that she had an interest in, and to read short articles of news.
A comparison of these findings with the contents of Ms Breda's statement of
15 September 2023 demonstrates that the Medical Assessor had recorded these matters and used his clinical experience and his expertise to determine the appropriate class. Whether Ms Breda had undertaken these activities because her psychologist had advised it, or whether her voluntary work was very limited, was beside the point. Chapter 11.11 of the Guides shows that the PIRS is designed to evaluate the functional impairment, relevantly in the categories of social functioning and CPP, by assessing the behavioural consequences of the disorder, as we describe further in our discussion of the appeal, below. The motivation for a person to behave in a certain way is a minor consideration, as the emphasis is on the way a person actually behaves.
Ms Breda’s statement did not challenge either the record of what was said, or the conduct of the Medical Assessor. She did not seek to deny what the Medical Assessor had recorded, neither did she suggest that the Medical Assessor had misunderstood her. Her disagreement was with the ratings he allocated to her. In the final analysis, the contents of the appellant’s statement are of marginal relevance. The statement does no more than advance arguments that the classes rated might have been different, and takes the opportunity to restate her case. The appellant has no experience or expertise in assessing impairment, as far as the Panel is aware.
We accordingly decline to admit Ms Breda’s statement of 15 September 2023.
With regard to the report of Mr Chown dated 16 September 2023 we acknowledge that it is a very thorough and considered report, but we find it to be inadmissible for a number of reasons. The first is that it offends against s 328(3) in that the evidence was clearly available to the appellant prior to the medical assessment if, as he stated, Mr Chown had been treating Ms Breda since 2017. No submissions were advanced as to why it could not reasonably have been obtained before the medical assessment. In our view it could have been – save for the comment about the Medical Assessor’s rating of the social functioning category.
Secondly, we note that Mr Chown took into account Ms Breda’s motivation for her behaviour and appeared to increase the severity of the consequences from 2 to 3 because, although she was participating in her volunteer work and attending TAFE, it was difficult for her to do so. As we have indicated, the purpose of the PIRS is to establish whether the behavioural consequences of a person’s psychiatric disorder has resulted in a functional impairment. If Ms Breda is performing certain functions such as volunteering, or maintaining limited friendships, or studying a course at TAFE, her motivation for doing so is of less relevance than the fact that she is able to function in those ways. The Guides are not concerned with a person’s motivation for his/her actions but rather with the question of whether he/she is able to perform them.
Further, Mr Chown’s comments about the opinion of the Medical Assessor regarding social functioning sought to cavil with the Medical Assessor’s findings, which in itself is inappropriate. We note also that Mr Chown advised that a class 3 rating was appropriate for the CPP category. Whilst Mr Chown did not refer to the Medical Assessor’s rating in this category, nonetheless Mr Chown was seized of it, and intended also to cavil with that assessment, given the date of the report, and given that he disagreed with the assessment regarding social functioning.
There would be no finality in this litigation if parties were permitted to adduce expert evidence that disagreed with the findings of the Medical Assessor, and such a procedure would make a mockery of the terms of s 326 of the 1998 Act, namely that a medical assessment certificate is “conclusively presumed to be correct”.
Moreover, whilst we appreciate the thoroughness of Mr Chown’s report, we have some reservations as to whether a psychologist has the expertise to advise in this area of psychological practice, concerned as it is with legal concepts and authority.
For these reasons the application to admit report of Mr Chown as fresh evidence is also rejected.

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 issues raised in this appeal concerned the class ratings ascribed by the Medical Assessor to the PIRS categories of social functioning and concentration persistence and pace (CPP). The application for the admission of additional evidence has been rejected, and we have admitted the notes from Currumbin Clinic, which were of no relevance to these issues.

THE MAC

The Medical Assessor took a consistent history. In discussing Ms Breda’s current symptoms he recorded, relevantly:[7]
“Ms Breda describes her mood as low most of the time. She describes trying to appear bright when she is with other people as she does not want to negatively affect them. She recognises that social contact with other people makes her feel better, though her degree of social contact has significantly reduced in recent years. She also feels better when doing things such as cycling or paddle boarding, though does these activities much less compared to previously due to low levels of energy and motivation. She estimated that she last surfed approximately one year ago, and this was formerly an important recreational activity for her.
Ms Breda recognises that she is rather isolated in the community though is visited by her sister every week or two and has two friends that she will meet with every couple of months. She has recently started volunteering for a family organisation and participated in a barbecue event.
Ms Breda has recently started attending TAFE in Ballina to study for a certificate four in training and assessment. She was able to attend three face-to-face teaching sessions last week and hopes to continue with this. Ms Breda explained that she has had to withdraw from three online courses over the last year as her concentration was not adequate for this type of study, and she recognised that online study was unhelpful for her isolation.
…
When not at the [TAFE] course Ms Breda spends much of her time watching material on television…”
[7] Appeal papers pages 36/37.

In discussing Ms Breda’s social and daily living activities, the Medical Assessor repeated that she spent much of her time watching material on television.[8]
[8] Appeal papers page 38.
In his Table 11.8 PIRS Rating Form, the Medical Assessor gave the following reasons for his class assessment for each impugned category. For social functioning he said:[9]
“The number of relationships that Ms Breda has have significantly decreased as she is no longer working. Work previously provided her with many social contacts. She has been able to sustain relationships with her sister and a small number of friends. She said ‘I am harder to be around now’ as her mood is low, and this can make it difficult in relationships. She is actively trying to form some new relationships with activities such as attending a face-to-face course at TAFE and doing occasional voluntary work.”
[9] Appeal papers pages 43-44.
With regard to CPP, he said:
“Ms Breda started a certificate four in training and assessment last week. She attended the course for the required three days. She found this a challenge to her concentration, though plans to persist. She has previously attempted courses online and struggled to maintain concentration beyond approximately 30 minutes and so has not persisted. She is able to sustain concentration on television or movies that she has an interest in and to read short articles of news.”

Appellant’s submissions

As indicated, the Currumbin Clinical records we have admitted to proceedings. As also indicated, we do not find them helpful, notwithstanding the submission that “the treating documents are relevant”. The records pertain to admissions to the clinic in 2017, 2018 and 2022 – all of which were noted by the Medical Assessor.[10] We accordingly put them to one side.
[10] Appeal papers page 36.
The appellant’s submissions we note were made before the application to admit fresh evidence was prepared. In the category of social functioning, Ms Breda relied on the opinion of her medicolegal specialist Dr Canaris of 3 August 2023, who had assessed a class 3 rating. Dr Canaris had taken the same history as the Medical Assessor relating to her two friends and that her circle of friends had narrowed. This was acknowledged by the appellant, who reproduced the Medical Assessor’s comments. Dr Canaris also referred to the absence of a relationship in Ms Breda's life since 2016.
It was submitted that the rating in this category was "overly obtuse and positive" as it was based on "incorrect presumptions" and did not "reflect the reality of the information our client provided". Ms Breda referred to the findings of the Medical Assessor, and made submissions that were similar to those made regarding the admission of the fresh evidence which we have rejected. Ms Breda referred to her continuing friendship with two or three friends that she would meet "every couple of months at most" and to her attendance at courses (presumably the TAFE course). She submitted that she did not rely on work for her social activity as she had always socialised separately, and she said that her attendance at the courses was further to advised by her treating psychologist. She noted that she had withdrawn from three courses in 2022 and submitted that it provided a "false impression" to allocate a class 2 rating. It was also submitted that the voluntary work was occasional, namely, "a couple of hours every quarter."
With regard to the CPP category, Ms Breda again referred to the report of Dr Canaris, relying on the history that her concentration and energy levels fluctuated, that she had given up a course in Human Resources Management and that she could not concentrate well enough to read. When she watched TV she found herself "often rewinding because she had fallen asleep or her mind had wandered”.
This summary was contrasted with the findings by the Medical Assessor, and Ms Breda again submitted that the Medical Assessor had given "an obtuse and overly positive portrayal of the reality". His rating of a class 2 was "not feasible" as it was based on an attendance at a three day course and "consideration of a short attention span". It was submitted that
Ms Breda watched television because she was lonely and depressed and that she could only focus on very short news articles.

The respondent

The respondent submitted that the Medical Assessor had made his assessment after considering all the relevant evidence, conducting a thorough examination and providing adequate reasons, none of which demonstrated error.
The respondent referred to authority, which we reproduce below, and submitted that the MAC is to be read as a whole and not with an eye finely attuned to error. It referred to Parker as authority for the proposition that an appellant is required to demonstrate more than a difference of opinion on a subject about which reasonable minds may differ, to establish error in the statutory sense.
It kindly reproduced the descriptors regarding the first three classes for social functioning and submitted that the class 2 rating was appropriate.
Similarly the respondent reproduced the descriptors or is regarding the first three classes for CPP, and submitted that there had been an improvement in Ms Breda's situation since the report of Dr Canaris in August 2022. It submitted that the class 2 rating in this category was also appropriate.

DISCUSSION

The psychiatric impairment rating scale

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[11] 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.”
[11] Guides 55.
The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[12]
[12] See 11.15 - 11.21 at Guides p 65 and Table 11.7 at Guides p 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[13] 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’.”
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 [2015] NSWSC 633. 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].”
[13] [2017] NSWSC 887.
In Glenn William Parker v Select Civil Pty Ltd,[14] 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])…..”
[14] [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.

Social functioning

A class 2 social functioning is defined by Table 11.4:[15]
“Class 2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
[15] Guides page 56.
Class 3 is described as follows:
“Class 3 Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
We have reproduced above the reasons given by the Medical Assessor for his class 2 rating.
Neither Ms Breda nor the Medical Assessor made comments to which a class 3 rating applied. Mr Breda did not complain that any relationships were strained, nor that she had been in a situation where there were periods of separation or domestic violence. Indeed she stated to Dr Canaris she had not been in a relationship since 2016.[16]
[16] Appeal papers page 96.
The Medical Assessor has given a detailed and considered explanation for the class 2 assessment which we find to be well within the scope of his remit.
The class 2 rating in this category is confirmed.

Concentration persistence and pace

The descriptors in relation to this category can be found at Table 11.5 of the Guides. A class 2 is defined as follows:
“Class 2 Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.”
Class 3 is described as follows:
“Class 3 Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
Again, we have reproduced the Medical Assessor’s reasons above. The commencement of Ms Breda’s TAFE course, and her capacity to focus for up to 30 minutes on her online courses is also consistent with a class 2, mild, impairment. The Medical Assessor acknowledged that Ms Breda had not been able to persist in her online course because she could not concentrate longer, but maintained his Class 2 rating. This finding was open to him.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 August 2023 should be confirmed.

[2024] NSWPICMP 311

22 May 2024