Burke v Secretary, Department of Communities and Justice

DETERMINATION OF APPEAL PANEL
CITATION:	Burke v Secretary, Department of Communities and Justice [2022] NSWPICMP 455
APPELLANT:	Steven Paul Burke
RESPONDENT:	Secretary, Department of Communities and Justice
Appeal Panel
MEMBER:	Brett Batchelor
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	11 November 2022
CATCHWORDS:	wORKERS cOMPENSATION - Appeal against of Medical Assessment Certificate (MAC) of Medical Assessor (MA) in respect of psychological injury on the grounds that the assessment was made on the basis of incorrect criteria and the MAC contains a demonstrable error; the appellant submitted that the MA had erred in respect of the assessment for self-care and personal hygiene, social functioning, concentration, persistence and pace; Held – the MA had erred in respect of his classification for self-care and personal hygiene, but not in respect of the other two categories challenged; MAC revoked and fresh MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 August 2022 Steven Paul Burke (the appellant/Mr Burke) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor (the MA), who issued a Medical Assessment Certificate (MAC) on 5 August 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,
· 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 (the 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).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment with Corrective Services NSW, a division of the Department of Communities and Justice (the respondent), as a correctional officer in 1991 when he was aged 24 years. He was medically retired from work in October 2017 while employed at the Glenn Innes Correctional Centre, having completed 26 years as a Correctional Officer First Class without promotion. Mr Burke did not seek promotion throughout his career. He worked at Parramatta Jail (closed) between 1991-1997; Grafton Correctional Centre between 1997-2009 and Glenn Innes Correctional Centre 2009-2017.
During the course of his career with the respondent Mr Burke witnessed many incidents of aggression, violence, suicide, death and criminal activity. After witnessing one particular incident at the Glenn Innes Correctional Centre in 2015, when a truck driver was crushed to death by a fork lift that was found to have faulty brakes that had not been repaired notwithstanding having been reported as faulty, Mr Burke’s mental state declined rapidly and did not thereafter improve.
The appellant has been variously diagnosed by a number of the psychiatrists who have treated him, or independently medically examined him, as follows:
(a)    Major Depressive Disorder;
(b)    Alcohol Dependence;
(c)    Marital Dysfunction;
(d)    Bipolar Depression;
(e)    Delusional Disorder;
(f)    Prolonged Adjustment Disorder;
(g)    possible chronic dysthymia;
(h)    Adjustment Reaction;
(i)    complex post-traumatic stress disorder;
(j)    schizoaffective disorder;
(k)    nicotine dependence, and
(l)    cannabis use.
Pursuant to AMENDED REFERRAL FOR MEDICAL ASSESSMENT OF PERMANENT IMPAIRMENT TO MEDICAL ASSESSOR dated 11 April 2022,[1] the medical dispute between the appellant and the respondent as to the degree of permanent impairment resulting from psychological/psychiatric injury deemed to have occurred on 23 October 2017, was referred for assessment under s 293 of the 1998 Act
[1] Appeal Papers (AP) p 66.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
As a result of that preliminary review, the Panel determined that it was not necessary for the worker to undergo a further medical examination because neither the appellant nor the respondent sought such further medical examination, and the Panel finds that there is sufficient material in the AP with which to make its decision.

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.

The MAC

The parts of the medical certificate 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. They are not repeated in full, but have been considered by the Appeal Panel.

Appellant

In summary, the appellant submits that the MA has:
(a)    failed to properly refer to and consider [11.12] of the Guidelines and the classes for each scale of the Guidelines in respect of the following rating scales:
(i)Self care and hygiene (Table 11.1);
(ii)Social Functioning (Table 11.4), and
(iii)Concentration, persistence and pace (Table 11.5);
(Ground 1)
(b)    committed a demonstrable error and applied incorrect criteria in respect of Table 11.1 of the Guidelines for self care and personal hygiene;
(Grounds 2 and 3)
(c)    committed a demonstrable error and applied incorrect criteria in respect of Table 11.4 of the Guidelines for social functioning;
(Grounds 4 and 5)
(d)    committed a demonstrable error and applied incorrect criteria in respect of Table 11.5 of the Guidelines for concentration, persistence and pace;
(Grounds 6 and 7)
(e)    failed to grapple with and provide any reasons for rejecting or disagreeing with the opinion of Dr Brian Parsonage.
(Ground 8).
In respect of Ground 1, the appellant submits that the MA does not, either in the psychiatric impairment rating scales (PIRS) rating form, or in the body of his reasons, specifically refer to the requirements of [11.12] of the Guidelines, or the differences in classes which are relevantly contained in Tables 11.1, 11.4 or 11.5.
The appellant submits that, reading the certificate of the MA and reasons as a whole, the reasoning process by which he arrived at his determination for each class for each of the scales, is inadequate.
The appellant submits that the MA has failed to take into account the mandatory relevant requirement in [11.12] of the Guidelines that he consider activities that are usual for the appellant’s age, sex and cultural norms, and has also taken into account irrelevant considerations in respect of these scales.
The appellant submits that the MA has not set out the relevant descriptors of the competing relevant classes for each category under PIRS, or that he has considered those alternatives when making his assessment, nor does he provide any adequate reasons as to how he arrives at the determination he does. The failure to do so was both a demonstrable error and a failure to apply the correct criteria.
In respect of Grounds 2 and 3 the appellant, after setting out the descriptors for Classes 2 and 3 for self-care and personal hygiene, submits that the focus of the descriptors in this scale is on a person’s ability to properly care for themselves and maintain their own personal hygiene. The appellant notes that the MA accepts his evidence, finding that “Mr Burke’s presentation at the time of assessment was consistent with his clinical presentation”[2].
[2] AP p 35.
The appellant submits that it is clear from the facts as found by the MA that he is not able to look after himself adequately and is barely surviving on his own. The fact that he lives alone does not equate with him being able to live adequately and independently. The appellant submits that it is abundantly clear that he is not able to do so and needs external support although, unfortunately, he is not receiving this.
The appellant refers to the inadequacies of his self care as recorded by the MA. These facts are at least, if not preponderately, more consistent with Class 3.
The appellant submits that the MA has taken into account an irrelevant consideration in determining this scale when he notes that his ex-wife has left to live in her own home. That is a matter only relevant to the assessment of the social functioning scale. The appellant submits that it is an error of law to take into account an irrelevant consideration, citing Ballas V Department of Education (State of NSW)[3].
[3] [2020] NSWCA 86 at [85]-[100].
The appellant submits that based on the MA’s factual findings, there was more than one conclusion open between Classes 2 and 3, and that as such, it was incumbent on the MA to provide adequate reasons as to why he preferred Class 2 over Class 3. His failure to do this was an error of law.
The appellant submit that he should be placed in Class 3 for self care and personal hygiene.
In respect of Grounds 4 and 5, the appellant submits that, based on the MA’s factual findings recorded in the Table 11.8 of the MAC, the assessment of Class 3 in respect of social functioning is either mistaken or glaringly improbable. The appellant submits that he has been unable to sustain any long term pre-injury relationships with his wife, his brother or his mother. Those relationships have ended and he lives a life of social isolation. He should have been placed in Class 3 for social functioning.
The appellant submits that in the alternative, there was more than one conclusion open between Classes 3 and 4, and as such it was incumbent on the MA to provide adequate reasons as to why he preferred Class 3 over Class 4. He has not set out his pathway of reasoning for determining Class 3 over Class 4, and the appellant submits that this failure constitutes an error of law.
In respect of Grounds 6 and 7, the appellant, after quoting the findings of the MA recorded in Table 11.8 of the MAC, submits that based on these the MA has clearly made a demonstrable error by failing to provide adequate reasons for determining Class 3. There was more than one conclusion open between either Class 3 and Class 4, and it was therefore incumbent on the MA to provide adequate reasons as to why he preferred Class 3 over Class 4. He has not set out his pathway of reasoning for determining Class 3 over Class 4, and the appellant submits that this failure constitutes an error of law.
The appellant submits that the correct criteria for concentration, persistence and pace was Class 4.
In respect of Ground 8, the appellant submits that the MA clearly referred to and considered the reports of Dr Parsonage. On p 4 of the MAC[4] he accepts that doctor’s formulation in his 2021 report with respect to the deduction pursuant to s 323 of the 1998 Act, and quotes directly from Dr Parsonage’s 2018 and 2021 reports at pp 17-21 of the MAC[5]. He notes the assessment of Dr Parsonage of 22% whole person impairment (WPI) after the s 323 deduction.
[4] AP p 29.
[5] AP pp 43-47.
The appellant submits that the MA fails to grapple with Dr Parsonage’s differing assessment in relation to self care and personal hygiene. It is incumbent on the MA to provide reasons as to why he differed with Dr Parsonage in relation to that classification. His failure to do so was an error of law and a demonstrable error.
The appellant submits that the correct classes for the three disputed scale classes are:
(a)    self care and personal hygiene – Class 3 moderate impairment;
(b)    social functioning – Class 4 severe impairment, and
(c)    concentration, persistence and pace – Class 4 severe impairment.
The appellant does not cavil with the other categories arrived at by the MA or the deduction pursuant to s 323 of the 1998 Act of 10% for a pre-existing condition.
Based on those revised classes for each scale, the appellant submits that the median Class score is 4 with an aggregate of 21. This results 44% WPI using Table 11.7 of the Guidelines, and after the s 323 deduction of 10% of that figure, 40% WPI.

Respondent

In reply, the respondent submits that in essence, the basis if the appellant’s appeal is what is submitted to be the incorrect categorisation of Mr Burke in specific PIRS categories, and a failure of the MA to give reasons. The respondent notes classification in the three PIRS categories put in issue by the appellant referred to above.
The respondent submits that it was open to the MA to assess the appellant as falling within the classes set out in the PIRS rating form on pp 38-39 of the MAC[6], and that the MA has given reasons to account for the basis upon which he has assessed Mr Burke in respect of each category.
[6] AP pp 64-65.
The respondent submits that Class 2 for self care and personal hygiene is the appropriate categorisation for the appellant, as he is able to live independently, look after himself adequately, notwithstanding that he may look unkempt occasionally, sometimes miss a meal. or rely on take-away food.
With respect with PIRS Class 3 for social functioning, the respondent submits that Class 3, mild impairment, as found by the MA is the correct classification. The respondent submits that the findings recorded by Medical Assessor Baker that the appellant is separated from his ex-wife and also estranged from his brother, has a strained relationship with his mother, does not receive visitors to his house but is occasionally contacted by an old friend who lives in Sydney, are consistent with Class 3.
The respondent submits that the MA has appropriately classified the appellant in Class 3, moderate impairment, for concentration, persistence and pace. Medical Assessor Baker observed that the appellant could not persist with complex tasks such as reading or concentrating for more than a few minutes, and has stopped learning about former interests such as sport and growing cacti.
In conclusion, the respondent submits that:
(a)    the intent of the statutory scheme is that properly educated registered medical practitioners should be given the authority to make binding judgements as to the matters set out in the legislation at s 326 of the 1998 Act;
(b)    the view that one class in the PIRS categories is ‘more appropriate’ than another reflects only a difference of opinion and is not a demonstrable error. More than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error when the assessment is to be made on the behavioural consequences of a psychiatric condition or disorder (Ferguson v State of New South Wales[7]);
(c)    clause [1.6] of the Guidelines specifies that a MA is to exercise clinical judgement on the day of examination in the assessment of the appellant in each of the PIRS categories. The pre-eminence of the clinical observations of the MA in determining the relevant class within each PIRS category cannot be understated (NSW Police Force v Danial Wark [8]);
(d)    it was open to the MA to use his skill, judgement and expertise to come to the conclusion that he did and the respondent submits that the appellant worker was assessed appropriately, and
(e)    the statutory obligations of the MA have been discharged and the assessment of 20% WPI ought to be confirmed.
[7] (2017) NSWSC 887.
[8] [201] NSWWCCMA 36.

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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. Relevant case law includes Siddik v Workcover Authority of NSW[9] and NSW Police Force v Registrar[10].
[9] [2008] NSWCA 116.
[10] [2013] NSWSC 1792.
In Campbelltown City Council v Vegan[11] 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.
[11] [2006] NSWCA 284 (Vegan).
Clause [11.12] of the Guidelines 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 appellant submits that the MA does not specifically refer to the requirements of this Guideline either in the PIRS rating form, or in the body of his reasons in the MAC. The Panel observes that specific reference is not necessary, nor does it necessarily infer that the MA has not taken cognisance of it. The Panel also notes that the MA has included in the MAC at [10.(c)] (“My brief comments regarding the other medical opinions and findings submitted by the parties…”) extensive excerpts from the documents he received. The Panel will consider hereunder when dealing with the grounds of appeal other than Ground 1 if the MA has overlooked the requirements of [11.12] of the Guidelines.
In Grounds 2 and 3 of the appeal, the appellant submits that the MA should have categorised him as being in Class 3, moderate impairment for self care and personal hygiene. The MA sets out in detail in Table 11.8: PIRS Rating Form of the MAC what is also recorded therein on p 7 under the heading “Social activities/ADL”. Medical Assessor Baker classified Mr Burke as suffering from mild impairment in respect of self care and personal hygiene (Class 2), the descriptor for which in Table 11.2 PIRS is:
“Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.”
The descriptor for Class 3, moderate impairment, is:
“Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
Dr Parsonage independently medically examined Mr Burke at the request of his solicitor on 16 August 2012 and produced reports dated 20 August 2018 (x2),[12] and on 2 June 2021 and produced reports dated 4 June 2021 (x2).[13] In the second report dated 20 August 2018 containing an assessment of WPI, the Panel notes that the only assessment included in that report in the AP is that in respect of self care and personal hygiene, which Dr Parsonage specifies as Class 2 for the following reason:
“Mr Burke was well presented and was able to live independently. He was able to prepare simple meals but at times he was drinking excessively which constituted a mild impairment.”
[12] AP pp 125 and 133.
[13] AP pp 135 and 141,

In his second report of 4 June 2021 Dr Parsonage places Mr Burke in Class 3 for self care and personal hygiene based on the following reason:
“Mr Burke reported that he only ate evening meals and had largely stopped eating lunch. While he lived by himself he visited his wife for a few hours every day and she offered him a meal, although he rarely ate it. He said he had not had a shower for the last nine days nor had he shaved because he didn't have the ‘energy’. I considered that he couldn't live independently without regular support at this stage.”
Dr Potter independently medically examined the appellant on 31 May 2021 at the request of the respondent’s insurer and produced two reports of that date.[14] He placed Mr Burke in Class 2 in respect of self care and personal hygiene for the following reason:
“Mr Burke is able to live independently but is likely to miss meals and to be unkempt with lack of hygiene such as bathing and poor diet.”
[14] AP pp 484 and 493.
The reason for the decision in respect of self care and personal hygiene recorded by Medical Assessor Baker in Table 11.8 of the MAC is as follows:
“Mr Burke stated that his self-care and personal hygiene was poor. He stated he had not showered for two months prior to this assessment. He reported he had not shaved for four months. He wore a dishevelled tobacco-stained grey beard with dishevelled, unwashed hair and unwashed clothes. He reported his appetite was poor. He ate one meal of ‘Lean Cuisine’ daily. He had lost 35 kgs in weight. He could attend the local shopping centre to purchase his pre-made frozen meals. He would not clean the home or wash his clothes. His ex-wife had left to live in her own home.”
It is apparent from these descriptions of the appellant’s self care and personal hygiene that he experienced a significant decline in his condition between the first occasion on which he was assessed by Dr Parsonage and on the second occasion on which he was assessed by Dr Parsonage, and also assessed by Dr Potter. There was a further decline by the time he was assessed by Medical Assessor Baker. The Panel notes in particular the large weight loss of 35kg. In the view of the Panel, Mr Burke is moderately impaired in respect of self care and personal hygiene. He should have more regular support than he does; he obviously needs prompting to shower, wash his clothes and prepare his own meals. It does not follow that because he lives alone he is functionally capable of caring for himself adequately. Without external support, he could not maintain basic nutrition and hygiene, and is at risk of further weight loss.
The Panel finds that placing the appellant in Class 2 for self care and personal hygiene was an improbable assessment, and constitutes a demonstrable error on the part of the MA. Mr Burke should be placed in Class 3.
In Grounds 4 and 5 of the appeal, the appellant submits that the MA should have categorised him as being in Class 4, severe impairment for social functioning, rather that Class 3, moderate impairment. The descriptor for Class 3 of Table 11.4 PIRS is:
“Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The descriptor for Class 4, severe impairment, is:
“Unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner or close friends). Unable to care for dependants (eg own children, elderly parent).”
Dr Parsonage in his second report dated 4 June 2021 places Mr Burke in Class 3 for social functioning for the following reason:
“Mr Burke and his wife were separated but they saw each other on a nearly daily basis, however there were no plans to get back together and they had no intimate relationship.”
Dr Potter in his second report dated 31 May 2021 places Mr Burke in Class 3 for social functioning for the following reason:
“Lives alone and maintains only infrequent contact with family and friends.”
The reason for the decision in respect of social functioning recorded by Medical Assessor Baker in Table 11.8 of the MAC is as follows:
“Mr Burke reported that he was permanently separated from his now ex-wife. His ex-wife had become distressed by his inability to recover from this workplace injury. Mr Burke reported that he had also become estranged from his youngest brother. He reported that this brother also worked in the prison system. Since the onset of this workplace injury, their relationship had ceased. Mr Burke reported that his relationship with his mother was also strained with him no longer initiating telephone contact with her. Mr Burke reported that he did not receive visitors to his house. He reported that he would be occasionally contacted by an old friend who lived in Sydney.”
The Panel is of the view that the appellant is moderately impaired in respect of social functioning. His relationship with his ex-wife is severely strained but has not ended completely. Mr Burke’s ex-wife drove him to the examination with the MA, and remained outside the assessment room. At [57] in his statement dated 12 January 2022, Mr Burke says that he and his wife separated in 2018 because she could no longer live with him because of his ongoing depression. However he says at [59] that she is still supportive of him although they don’t live together.[15] Mr Burke’s relationship with his mother is strained. He is estranged from his youngest brother. Matters related to children and dependants are not applicable in the appellant’s case.
[15] AP p 80.
The Panel finds that the appellant is moderately impaired in respect of social functioning and should be placed in Class 3.
In Grounds 6 and 7 of the appeal, the appellant submits that the MA should have categorised him as being in Class 4, severe impairment for concentration, persistence and pace, rather than Class 3, moderate impairment. The descriptor for Class 3 of Table 11.5 PIRS is:
“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.”
The descriptor for Class 4, severe impairment, is:
“Can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives of community service.”
Dr Parsonage in his second report dated 4 June 2021 places Mr Burke in Class 3 for concentration, persistence and pace for the following reason:
“Mr Burke said that he hadn't read a book for the last year and that he couldn't manage to do any repairs around his house and had to get people in to do those tasks.”
Dr Potter in his second report dated 31 May 2021 places Mr Burke in Class 3 for concentration, persistence and pace for the following reason:
“He forgets things and does not involve himself in television or reading. Unlikely to involve himself in more than newspaper articles.”
The reason for the decision in respect of concentration, persistence and pace recorded by Medical Assessor Baker in Table 11.8 of the MAC is as follows:
“Mr Burke concentration, persistence and pace is moderately impaired. He could not persist with complex tasks such as reading or concentrating for more than a few minutes. He would become irritable and agitated as he could not concentrate to watch television or follow sports. He had stopped these activities. He had also stopped learning about cacti and succulents as his reading was slow and his concentration, persistence and pace was poor.”
The Panel is of the view that, whilst minds may differ as to the degree of impairment in respect of the appellant’s concentration, persistence and pace, and that this may be regarded as a borderline case between moderate and severe impairment, Mr Burke is moderately impaired and does not suffer from severe impairment in this regard. Class 4 denotes the ability to read only a few lines before losing concentration, whereas the MA records that Mr Burke reads slowly. Dr Potter records that he is unlikely to involve himself in more than newspaper articles. Mr Burke is able to live alone, albeit as noted above, he would benefit from assistance in this regard. Medical Assessor Baker had the advantage of assessing the appellant in video conference and was able to observe any concentration deficits during conversation with him.
The Panel is of the opinion that the classification of the appellant as moderately impaired for concentration, persistence and pace of the MA should not be disturbed, and that he should be placed in Class 3.
Both in respect of appeal Grounds 4 and 5 (in respect of social functioning), and Grounds 6 and 7 (in respect of concentration, persistence and pace), the appellant submits that the MA has not provided adequate reasons as to why he preferred Class 3 over Class 4 or .”…set out his pathway of reasoning for determining class 3 over class 4 and his failure to do so was an error of law – see Vegan above.”[16] The Panel does not accept this submission. As noted above at [44] the MA has included in the MAC at [10.(c)] extensive excerpts from the documents he received, and has given detailed reasons in Table 11.8 for his classifications. The MAC must be read as a whole, and the Panel is of the view that on such reading the reasoning of the MA as to why he preferred Class 3 over Class 4 is apparent.
[16] AP pp 38 and 45.
Similarly, and for the same reason, the Panel does not accept that the MA has paid no heed to [11.12] of the Guidelines (appeal Ground 1). It is of the view that Medical Assessor Baker has taken account of the appellant’s cultural background, and considered activities that are usual for his age, sex and cultural norms.
In view of the finding of the Panel in respect of the appellant’s self care and personal hygiene, it is not necessary to consider appeal Ground 8.
The appellant’s scores on the Table 11.8 PIRS Rating Form therefore are:
(a)    Self care and personal hygiene – 3;
(b)    Social and recreational activities – 3;
(c)    Travel – 2;
(d)    Social functioning – 3;
(e)    Concentration, persistence and pace – 3, and
(f)    Employability – 5.
Utilising the conversion Table 11.7 of the Guidelines, the WPI is therefore calculated as follows:

Score

Median Class

2

3

3

3

3

5

= 3

Aggregate Score

2+

3+

3+

3+

3+

5

= 19

Total WPI 24%

The appellant does not take issue with the deduction from total WPI figure of 10% thereof for a pre-existing condition pursuant to s 323 (2) of the 1998 Act.
When one-tenth of 24% WPI is deducted therefrom, and the resulting figure rounded up in accordance with [1.26] of the Guidelines, a final figure of 22% WPI is obtained.
For these reasons, the Panel has determined that the MAC issued on 5 August 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W284/22
Applicant:	Steven Paul Burke
Respondent:	Secretary, Department of Communities and Justice

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr John Baker and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - Whole Person Impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Psychological/psychiatric disorder	23/10/17	Chapter 11 pages 60 -68	Chapter 14	24%	1/10 (10%)	22%
Total % WPI (the Combined Table values of all sub-totals)					22%

[2022] NSWPICMP 455

11 November 2022