Campbell v State of New South Wales (NSW Police Force)
[2024] NSWPICMP 221
•12 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Campbell v State of New South Wales (NSW Police Force) [2024] NSWPICMP 221 |
| APPELLANT: | Kaye Elizabeth Campbell |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 12 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appellant challenged Medical Assessor’s (MA) ratings of her impairment in several psychiatric impairment rating scale (PIRS) categories; whether MA incorrectly characterised some of her activities with the consequence that the MA had regard to irrelevant matters when rating appellant’s impairment in several of the PIRS; whether MA had regard to all relevant evidence; Appeal Panel held that MA considered irrelevant matter when rating appellant’s impairment in PIRS for self-care and personal hygiene, but otherwise did not; the error of the MA when rating the appellant’s impairment in self-care and personal hygiene, when corrected, did not make a difference to the outcome; MA had regard to all relevant evidence; Held – Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 December 2023 Kaye Elizabeth Campbell, the appellant, 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 5 December 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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, 4th ed
1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment in 2003 as a police officer for the State of New South Wales, the respondent. She ceased duties around 2022 and was subsequently medically retired.
Due to numerous incidents that occurred in her work as a police officer she suffered a psychological injury.
Consultant psychiatrist Dr Shannon Paisley examined the appellant on 22 March 2023 at the request of the appellant’s solicitor and in a report of the date advised the appellant’s solicitor that he assessed the appellant had 23% whole person impairment (WPI) from her work injury, which he diagnosed was post-traumatic stress disorder and major depressive disorder.
On 17 May 2023 the appellant’s solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation from the respondent under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 23% WPI from her injury and also claimed compensation under s 67 of the 1987 Act for pain and suffering. The respondent’s lawyers then organised for the appellant to be examined by psychiatrist Dr Kirsty MacDonald on 11 July 2023. Dr MacDonald advised the respondent’s solicitors in a report of that date that she assessed the appellant had 9% WPI from her injury which she diagnosed as post-traumatic stress disorder. Dr MacDonald noted that Dr Paisley had diagnosed the appellant also had major depressive disorder but Dr MacDonald considered that the appellant’s presentation of low mood was not persistent as is usually the case in depressive illness. Dr MacDonald nevertheless acknowledged the possibility that the appellant does suffer longer-term depressive disorder that is greater than the depressive anxiety symptoms usually associated with post-traumatic stress disorder.
The respondent’s insurer, relying on that report of Dr MacDonald, wrote to the appellant on 15 August 2023 to notify her in accordance with s 78 of the 1998 Act that it denied liability for her claim for compensation for permanent impairment because the degree of her permanent impairment was not at least 15% which was required by s 65A(3) of the 1987 Act for her to be entitled for compensation for permanent impairment from her injury.
Thereupon the appellant initiated proceedings in the Personal Injury Commission (Commission). A delegate of the President of the Commission referred the matter to the Medical Assessor on 9 October 2023. The Medical Assessor examined the appellant on 10 November 2023 to conduct the assessment of the appellant’s permanent impairment. As said the Medical Assessor issued a MAC on 5 December 2023, in which she certified she assessed the degree of the appellant’s permanent impairment from her injury was 9% WPI.
MEDICAL ASSESSMENT CERTIFICATE
The appellant’s appeal relates to the manner in which the Medical Assessor composed her clinical history and the Medical Assessor’s ratings of her impairment in the Psychiatric Impairment Rating Scale (PIRS) for self-care and personal hygiene, social and recreational activities, travel, and social functioning.
The Medical Assessor’s rating of the appellant’s impairment in the PIRS the appellant has challenged and her explanation for her ratings are as follows:
Self care and personal hygiene
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Ms Campbell reported that she showers 2-3 times a week and often missed to brush her teeth. She reported that she has incontinence of stool when she gets anxious and frequently showers after that. She reported that she is able to pack kids’ school lunches, get her kids dressed up, drop and pick them to school and take kids to swimming lessons. She is able to do laundry but often procrastinates. She tries to make some meals for her kids.
Social and recreational activities
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Ms Campbell reported that she used to socialise frequently, organise get-together with her friends before the workplace incident. She does not like socialising anymore and has seen her friends only on a couple of occasions. She does not socialise with her work friends anymore but is able to meet “mums group” with Aimee. She reported that she does that at the insistence of her partner and, at times, finds it overwhelming. She is able to take her kids to sporting events, mother’s group and occasional dinners with friends.
Travel
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Ms Campbell reported that she is able to drive and is able to drive her kids to school, swimming lessons, et cetera. Her partner, however, thinks that she does not pay attention and gets road rage. She said that they have an automatic car which slams the break and Ms Campbell, however, reported that she did not have any accidents or any near misses in the recent past.
Social functioning
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Ms Campbell reported that she did not speak to her mum for three months and then restarted talking to her. She said that she has not been intimate with her partner for a long time and does not answer when her family calls. She said that her family is in Newcastle and her younger sister is quite supportive. Her anxiety and depression impact her ability to socialise, however, her partner has been quite supportive.
The Medical Assessor provided the following summary of the appellant’s injury and her diagnosis of it:
“Ms Campbell is a 42-year-old female who lives with her partner and their two children.
Ms Campbell commenced working with New South Wales Police Force in 2003 and was finally medically discharged in May 2023. Ms Campbell reported that she witnessed multiple traumatic incidents during her career with the New South Wales Police Force which impacted her mental health. She reported experiencing intrusive symptoms, flashbacks, nightmares, avoidance of stimuli associated with traumatic events, negative alterations in cognition and mood and marked alterations in arousal and reactivity. These symptoms caused clinically significant distress and functional impairment in a number of categories. She also experienced low mood, feelings of isolation, numbness, decreased interest in activities, impaired sleep, reduction in her social and occupational activities.
Her presentation was consistent with the diagnosis of PTSD (Post-Traumatic Stress Disorder) and Major Depressive Disorder.”
The Medical Assessor said that she based her assessment of the appellant’s WPI on her clinical interview with the appellant, her mental state examination of the appellant and the documentation that had been provided to her.
The Medical Assessor noted that her diagnosis of the appellant’s injury differed from the diagnosis Dr MacDonald had made, in that she diagnosed the appellant had major depressive disorder in addition to post-traumatic stress disorder. The Medical Assessor said that “I agree with the ratings in the various PIRS categories” that Dr MacDonald had made. The Medical Assessor noted that Dr MacDonald had included a rating for the effect of treatment but the Medical Assessor considered that there had not been significant improvement in the appellant’s condition and hence she did not make a “treatment effect allowance”.
The Medical Assessor noted that Dr Paisley had assessed the appellant had 22% WPI. The Medical Assessor noted, with respect to the PIRS for social and recreational activities, Dr Paisley had recorded the appellant was “generally isolated and withdrawn, prefers to stay at home, may go out with prompting”. The Medical Assessor further observed that in her assessment of the appellant’s permanent impairment she noted the appellant was unable to go to sporting events without a support person and had stopped meeting her work friends but was able to socialise with a mum’s group and could meet friends. The Medical Assessor considered that what she had recorded warranted a class 3 rating in the PIRS for social and recreational activities, rather than a class 2 rating that Dr Paisley had made based.
The Medical Assessor also noted that Dr Paisley had rated the appellant’s impairment in social functioning as class 3 whereas she had rated it as class 2. The Medical Assessor noted that Dr Paisley had recorded the appellant was “socially withdrawn and has lost friends, cannot care for her children without supervision, significant strain in her intimate relationship with consideration of separation, sees her family less frequently”. The Medical Assessor contrasted that with what she had recorded which was that the appellant did not report any periods of separation or domestic violence, had difficulties in her relationship with her mother but had restarted talking with her mother, and had reported that her youngest sister is supportive.
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 did not require the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel would be confirming the MAC and did not need to re-assess any part of the medical dispute that had been referred for assessment. Moreover, absent the Appeal Panel finding error in the MAC, the Appeal Panel has no power to examine the appellant.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor wrongly characterised her childcare activities as a matter relevant to self-care and personal hygiene. The appellant referred to Ballas v Department of Education (State of NSW)[2] (Ballas) at [93]-[95] in support of this submission.
[2] [2020] NSWCA86.
The appellant submitted that the Medical Assessor wrongly took into account her faecal incontinence when considering her impairment in self-care and personal hygiene. The appellant submitted that this is a symptom of her injury that is outside of her volition and was due to her having anxiety.
The appellant referred to various parts of a statement she signed on 18 September 2023 and a statement her partner signed 18 September 2023 that related to her capacity with self-care and personal hygiene including that she does not shower every day, forgets to brush her teeth and after she ceased work she did not have her hair cut for a few years and now rarely brushes it and she wears her clothes to bed.
The appellant submitted that if the irrelevant matters that the appellant contends the Medical Assessor had regard to when rating her impairment in self-care and personal hygiene are disregarded but the relevant evidence she and her partner gave in their respective statements then her impairment in self-care and personal hygiene should be rated as class 3.
The appellant submitted that the Medical Assessor wrongly had regard to her taking her children to their sporting events when rating her impairment in social and recreational activities. The appellant submitted that this is not social and recreational activity. The appellant submitted that the Medical Assessor did not have regard to all of her symptoms from post-traumatic stress disorder, which she and her partner had described in their respective statements and her nominated treating doctor had detailed in a report in July 2023. The appellant submitted that the symptoms from her work injury which she and her partner had described in their respective statements, had not abated at the time of the Medical Assessor’s examination and was such that they affect her engagement in social and recreational activities.
The appellant submitted that the Medical Assessor wrongly regarded her attendance at a mum’s group was a social and recreational activity because she accompanies her partner at those groups and does not engage in it voluntarily or for pleasure.
The appellant submitted that the Medical Assessor wrongly had regard to her driving her children to sporting activities when considering her impairment in the PIRS for travel. The appellant referred to her statement in which she described experiencing excessive anxiety when travelling. The appellant referred to her partner’s statement which also referred to her losing driving skill. The appellant highlighted that she was previously a professional driving trainer for police officers. The appellant submitted that the Medical Assessor failed to have regard to the totality of the evidence when rating her impairment in travel.
The appellant submitted that the Medical Assessor wrongly assumed that when assessing her impairment in social functioning that it is a prerequisite for there to be evidence of separation domestic violence for a class 3 rating. The appellant submitted that the descriptors provided in the Guidelines are non-prescriptive.
The appellant submitted that the Medical Assessor failed to recognise that a person with post-traumatic stress disorder can have a severely strained relationship with a supportive partner. The appellant referred to a mistake the Medical Assessor made when describing her relationship with her partner in that Medical Assessor said it commenced in 2020 rather than 2010 and hence her relationship is of 13 years duration and not three years. The appellant referred to Dr Paisley taking a history that her and her partner had considered separating and that her and her partner often argue after she had become stressed.
The appellant submitted that the Medical Assessor took into account an irrelevant matter by having regard to her younger sister and her partner being supportive but not having regard to the intrusive symptoms she has from post-traumatic stress disorder which have a negative effect on her relationships. The appellant referred to Ferguson v State of New South Wales & ORS[3] (Ferguson) at [28] in support of her submission that the Medical Assessor erred by assessing her impairment in social functioning as mild because she has a supportive partner.
[3] [2017] NSWSC887.
The appellant submitted that the Medical Assessor in the history she provided in the MAC had reproduced without attribution large extracts of a report of psychiatrist Dr Suzanna Goodison dated 6 October 2022. The appellant submitted that this was inconsistent with the Guidelines and potentially affected the Medical Assessor’s clinical assessment of her.
In reply, the respondent submitted that if the appellant’s childcare activities were not to be considered in the PIRS for self-care and personal hygiene the appellant’s impairment would still be class 2 because the other matters that the Medical Assessor detailed when explaining her rating support a class 2 rating.
The respondent noted that the appellant showers after episodes of faecal incontinence and submitted this is directly relevant to her impairment in self-care and personal hygiene.
The respondent submitted that, contrary to the appellant’s submission, the Medical Assessor did have regard to the statements of the appellant and her partner. The respondent submitted this is apparent because the Medical Assessor when detailing the facts on which she relied to make her assessment of the appellant’s whole person impairment noted she had regard to the documentation she had received.
The respondent submitted that the Medical Assessor provided appropriate reasoning for her assessment of the appellant’s impairment in social and recreational activities. The respondent submitted that it requires more than a difference of opinion to establish error on the part of a Medical Assessor. The respondent submitted that the Medical Assessor’s rating of the appellant’s impairment in social and recreational activities was reasonably available and that there is no error on the face of the MAC with respect to her rating.
The respondent submitted that the Medical Assessor’s consideration of the appellant driving her children to different events involves different types of conduct and hence the activity can be considered in more than one PIRS.
The respondent referred to Ferguson as authority for the proposition that an Appeal Panel must be satisfied that a Medical Assessor’s assessment is erroneous in one of the following ways before a demonstrable error can be found:
(a) the categorisation was glaringly improbable;
(b) it can be demonstrated that the Medical Assessor was unaware of significant factual matters;
(c) a clear misunderstanding could be demonstrated, or
(d) an unsupportable reasoning process can be made out.
The respondent submitted, in substance, that no error of that type could be demonstrated from the Medical Assessor’s rating that the appellant’s impairment in travel was class 2.
The respondent submitted that the Medical Assessor made no error with respect to her rating the appellant’s impairment in social functioning as class 2 because her relationship with her partner has undergone some strain but there had been no domestic violence or periods of separation and her partner is supportive. The respondent noted that the appellant still sees some friends for dinner and is able to look after her children.
The respondent submitted that the Medical Assessor did appropriately reference Dr Goodison’s report in the MAC. The respondent submitted that there is no obligation on the Medical Assessor to itemise each report that has been considered. The respondent submitted that the Medical Assessor’s history is based on all available medical information and the Medical Assessor was entitled to rely on the medical evidence before her and place as much or as little weight as she considered appropriate on it.
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.
Self care and personal hygiene
The task of a Medical Assessor when rating a worker’s impairment in the PIRS for self care and personal hygiene is to consider the effect the worker’s injury has on the worker’s ability to look after him or herself. A worker’s ability therefore to care for another person will only be relevant to that if it can be inferred from what the worker does in caring for someone else to what extent the worker’s capacity to look after him or herself is impaired. In other words, if a Medical Assessor has regard to a worker’s activity in looking after someone else focuses on the conduct of the worker in doing that in terms of determining to what extent the worker’s ability to care for him or herself is impaired, then the Medical Assessor will not have taken into account an irrelevant consideration and will not have made an error of the type that the Court of Appeal identified in Ballas.[4]
[4] Ballas [93]-[94].
In this case, the Appeal Panel considers that the Medical Assessor’s consideration of the appellant’s ability to prepare lunches for her children was considered by the Medical Assessor in the context of determining to what extent the appellant can care for herself, that is prepare meals for herself. Although the Medical Assessor did not explicitly say that, the Appeal Panel considers from her reasoning for her rating for the appellant’s impairment as class 2 for self-care and personal hygiene, when considered as a whole, that this was her purpose for having regard to the fact that the appellant prepares lunches for her children. Consequently the Medical Assessor did not err by having regard to the appellant preparing her school lunches because it related to the conduct of the appellant with respect to her capacity for self-care and personal hygiene.
The Medical Assessor was however wrong to consider the appellant taking her children to and from school and to and from their swimming lessons when considering the appellant’s impairment in the PIRS for self-care and personal hygiene. No part of the appellant’s conduct in engaging in that activity relates to her self-care and personal hygiene.
However, consistent with what the respondent submitted, it seems to the Appeal Panel that if that matter is disregarded then having regard to all the other matters that the Medical Assessor has detailed when explaining her rating for the appellant’s impairment in self-care and personal hygiene, the Medical Assessor was correct to rate the appellant’s impairment as class 2. In this regard the Medical Assessor was correct to have regard to the appellant’s faecal incontinence because when the appellant experiences this she showers and by doing so maintains her personal hygiene notwithstanding her incontinence.
The Appeal Panel does not accept the appellant’s submission insofar as she contends that the Medical Assessor did not have appropriate regard to what she and her partner said in their respective statements regarding the appellant’s ability in self-care and personal hygiene. The Medical Assessor said in the MAC that she had considered the documentation the Commission had provided her. She was entitled to exercises her clinical judgement based on the material that was before her, including the information she elicited when interviewing the appellant to obtain a history. She was entitled to give pre-eminence to her clinical observations.[5]
[5] Ferguson at [23] citing with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA36.
The reasons the Medical Assessor provided within the PIRS rating form her for assessment of the appellant’s impairment in self-care and personal hygiene detailed what the appellant is able to do, rather than what she is not. Based on what the appellant is able to do, that is considering her capacity for self care and personal hygiene, the Appeal Panel considers, notwithstanding the Medical Assessor did take into account an irrelevant consideration because she had regard to the appellant being able to drop off and pick up her children from school and sporting events, the Medical Assessor’s rating of class 2 is correct. This is because the appellant showers two or three times a week, and showers after she experiences incontinence, brushes her teeth although not regularly, and has capacity to make meals for herself, given that she can make lunches for her children. That indicates to the Appeal Panel that the appellant does not require support to be able to attend adequately to her self-care and personal hygiene. That equates to a class 2 rating.
In so far as the appellant submitted the Medical Assessor applied incorrect criteria, the Appeal Panel does not accept that submission given that the Medical Assessor assessed the appellant's impairment by reference to the criteria set out in Chapter 11 of the Guidelines.
Social and recreational activities
The Appeal Panel agrees with the appellant’s submission to the effect that the Medical Assessor ought not to have taken into account her taking her children to sporting events when considering her impairment in social and recreational activities. There is no evidence that the appellant engages with others at those events. There is no evidence that she watches or participates in the events and if she does that she derives pleasure from it. In the Appeal Panel’s view, absent that evidence, no part of the appellant’s conduct in engaging in this activity can be characterised as a social and recreational activity.
That said however, the Appeal Panel considers that a class 2 impairment in this PIRS is correct having regard to the other matters to which the Medical Assessor referred when explaining her rating of the appellant’s impairment in this PIRS. In other words, the Appeal Panel in correcting the error the Medical Assessor did make by having regard to an irrelevant activity, would have rated the appellant’s impairment the same as Medical Assessor did.
The Appeal Panel does not accept the appellant’s submission to the effect that the appellant participating in a mum’s group is not to be characterised as a social activity. Such an activity would necessarily involve the appellant socialising with other mothers and their children.
The Appeal Panel also does not accept the appellant’s submission to the effect that the Medical Assessor did not have proper regard of her symptoms from her post-traumatic stress disorder. The Medical Assessor detailed under the subheading “present symptoms” in the MAC the symptoms that the appellant reported she presently suffers from her psychiatric illness. Further, and as was previously mentioned, the Medical Assessor noted in the MAC she had regard to the documentary evidence the Commission had forwarded to her when making her assessment of the appellant’s impairment, which included the clinical records relevant to the appellant’s injury and also the reports of independent psychiatrist who had examined the appellant on behalf of either the appellant or the respondent.
The evidence, including the clinical history the Medical Assessor obtained, reveals the appellant does not like socialising anymore but still sees some friends although does not socialise with her work friends. It reveals the appellant attends a mum’s group with her partner and has occasional dinners with friends. The appellant’s symptoms from her work injury are not such that they prevent her from engaging in a mum’s group and socialising with some of her friends and having the occasional dinner. The evidence reveals that prior to her injury the appellant socialised more frequently than she does now and organised ‘get-togethers’ with her friends. In the Appeal Panel’s view those matters, when weighed together, represent a mild impairment in social and recreational activities.
Hence, the Appeal Panel considers that the Medical Assessor’s error of having regard to irrelevant consideration of the appellant taking her children to sporting events, does not make a difference to the outcome because given the activities that appellant does do warrants a rating of class 2 in the is PIRS.
Again, in so far as the appellant submitted the Medical Assessor applied incorrect criteria, the Appeal Panel does not accept that submission given that the Medical Assessor assessed the appellant's impairment by reference to the criteria set out in chapter 11 of the Guidelines.
Travel
The Appeal Panel considers that it was open to the Medical Assessor to rate the appellant’s impairment as class 2 in this PIRS for the reasons the Medical Assessor set out in the PIRS rating form. The Appeal Panel does not accept the appellant’s submission to the effect that the Medical Assessor made an error of the type identified in Ballas when assessing her impairment in this PIRS by considering the fact that she drives her children to various events. Again, this is because the Medical Assessor was considering the conduct of the appellant in driving when rating her impairment in this category, and not the appellant’s conduct in maintaining a relationship with her children.
The Appeal Panel is of the view that the Medical Assessor read the statements of the appellant and her partner, again because the Medical Assessor in the MAC said that when making her assessment of the appellant’s permanent impairment she relied on the documentation the Commission had forwarded to her, which included the appellant’s statement and the statement of her partner. Further, the Medical Assessor’s task in assessing the appellant’s permanent impairment is an administrative task and hence a presumption of regularity applies, that is that the Medical Assessor attended to all matters necessary to undertake the task of assessing the appellant’s permanent impairment.[6] There is nothing within the appellant’s submissions, in the Appeal Panel’s view, that rebuts that presumption. Indeed, and to repeat, the fact the Medical Assessor said that she relied upon the documentation the Commission forwarded to her supports the assumption being made.
[6] Bojko v ICM Property Service Pty Ltd [2009] NSWCA175 at [36]; Jones v The Registrar WCC [2010] NSWCA481 at [50].
Campbell J in Ferguson at [24] approved the approach that an Appeal Panel took in NSW Police Force v Daniel Wark[7] that intervention by an Appeal Panel is “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 of an unsupportable reasoning process could be made out”. His Honour held that there must be more than a difference of opinion on a subject matter about which reasonable minds might differ in order to establish error.
[7] [2012] NSWWCCMA36.
In the Appeal Panel’s view, for the reasons the Medical Assessor stated in the PIRS rating form, it was open to her to make the assessment she did. It was not glaringly improbable. It is not apparent that she misunderstood anything. It is not apparent that she was unaware of any factual matters. Her reasoning for her rating is supported by what she has stated.
Simply put, there is no demonstrable error in the MAC as a consequence of the Medical Assessor’s rating the appellant’s impairment in travel as class 2. Further, the Medical Assessor applied correct criteria because she applied the criteria set out in chapter 11 of the Guidelines.
Social functioning
The Appeal Panel does not accept the appellant’s submission that notwithstanding her partner is supportive, their relationship is severely strained. The circumstances that were considered in Ferguson are not analogous to the appellant’s situation. The worker in Ferguson separated for a period of six months from her partner as a consequence of her injury. Their relationship before separation was an intimate one. When they resumed living under the one roof it had become a platonic friendship. In this case the Medical Assessor noted that the appellant and her partner had not been intimate for some time, but there had been no separation. There is no evidence that the nature of their relationship now is platonic. Indeed, the evidence confirms that they remain in a supportive marital relationship.
It is the case, as the appellant submitted, that domestic violence or physical separation is not a prerequisite to classifying a worker’s impairment as class 3 in social functioning. However, there is nothing within the Medical Assessor’s reasoning for rating the appellant’s impairment as class 2 that indicates she rated it as class 2 simply because there had been no domestic violence or periods of separation in the appellant’s relationship with her partner.
Again, noting the matters to which the Medical Assessor referred in explaining her rating, the Appeal Panel considers that there is nothing glaringly improbable about her rating, that she has taken into account all relevant matters, that it is not apparent that she misunderstood anything and that her reasoning is supported by what she has set out in the PIRS rating form.
The Appeal Panel does not discern any demonstrable error as a consequence of the Medical Assessor rating the appellant’s impairment as class 2. Further, the Appeal Panel is satisfied that the Medical Assessor applied correct criteria to assess the appellant’s impairment because she applies the criteria set out in Chapter 11 of the Guidelines.
Dr Goodison’s report
The appellant is correct in her submission that part of the history the Medical Assessor set out in the MAC was a reproduction of parts of Dr Goodison’s report. That was a lazy way, in the Appeal Panel’s view, for the Medical Assessor to compose the appellant’s clinical history. However, it does not make the history the Medical Assessor obtained wrong.
It is necessary that a Medical Assessor obtain a history relevant to a worker’s injury so that the Medical Assessor can assess the impairment of the worker from the injury. The process of obtaining a history involves a Medical Assessor questioning a worker to elicit information directly from the worker. It also involves a review of all relevant medical data relating to the worker that may be contained in whatever documentation is available to the Medical Assessor. The Medical Assessor’s questioning of the worker will be done against the background of that medical data. Hence a clinical history is compiled both from information the Medical Assessor elicits from the worker directly and the relevant medical data within the available documents. In general, a medical history will include details about the worker’s medical history, past treatment, present treatment, the medications the worker is taking and the symptoms that the worker is experiencing.
The Appeal Panel considers that the history the Medical Assessor obtained relevant to the appellant’s injury, although lazily compiled insofar as she merely repeated parts of Dr Goodison’s report, is nevertheless reliable in terms of the information it contained. The sections of the Medical Assessor’s report that spoke to impairment were not copied, indicating that the Medical Assessor engaged sufficiently with the assessment to form her view.
No error is demonstrated in the MAC by the manner in which the Medical Assessor obtained the appellant’s history,
For these reasons, the Appeal Panel has determined that the MAC issued on 5 December 2023 should be confirmed.
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