Clarges v Wollongong City Council
[2021] NSWPICMP 155
•27 August 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Clarges v Wollongong City Council [2021] NSWPICMP 155 |
| APPELLANT: | Matthew Clarges |
| RESPONDENT: | Wollongong City Council |
| APPEAL PANEL: | Member Deborah Moore Professor Nicholas Glozier Dr Michael Hong |
| DATE OF DECISION: | 27 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant submitted that the Medical Assessor (MA) erred in his assessments with respect to the Psychiatric Impairment Rating Scale (PIRS) categories of self-care and personal hygiene and concentration persistence and pace; fresh evidence not admitted because it was simply a statement by the appellant challenging the findings by the MA in circumstances where the appellant had provided a number of conflicting statements; the MA’s assessments were open to him on the evidence; Held – the MAC was extremely thorough and detailed; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 May 2021 Matthew Clarges (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 6 April 2021.
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):
· 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,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 WorkCover Medical Assessment Guidelines 2006.
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 none was requested, and we consider that we have sufficient evidence before us to enable us to determine the appeal.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) A statement by the appellant dated 30 April 2021
The appellant submits as follows:
“The contents of the statement are relevant because they describe the correct history that was given to the MA in each case, and the error in recording that history by the MA has lead to the incorrect criteria that is the subject of the Appeal.
Given that the evidence contained within that statement arose from the medical assessment itself, the statement could not have been available and was not reasonably available before the medical assessment.
The admission of fresh evidence in the form of a statement by an Appellant Worker, calling into question the accuracy of recording by the MA was considered in Lukacevic v Coates Hire Operations Pty Ltd [2011] NSW CA 112 (Lukacevic) where JA Hodgson at [78] said:
‘… in my opinion, it would be reasonable for an [Appeal Panel] 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 [Appeal Panel] 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.” [emphasis added].
The Appellant Worker asserts that his late statement has substantial prima facie probative value in terms of its particularity, plausibility, and/or independent support for his claim.”
The respondent submits as follows:
“There are two requirements which must be satisfied in section 328(3) of the 1998 Act. The first being the evidence was not available before the assessment and secondly that the first evidence could not have reasonably been obtained by the Appellant before the medical assessment. The information contained in the Appellant’s statement dated 30 April 2021, does not satisfy s 328 of the 1998 Act as it does not include evidence that was not available before the assessment.
The Respondent strongly disputes that Appellant’s submissions that the statement arose out of the medical assessment as the information in the statement is recorded in medical reports supplied by the Appellant and the Respondent.”
The Appeal Panel determines that the evidence should not be received on the appeal for reasons that follow.
Firstly, the MA is an administrative decision maker, making a decision as to the extent of permanent impairment which is binding, subject to an appeal. As an administrative decision maker, the presumption of regularity applies – that is, it is presumed that the administrative decision maker followed the appropriate procedures.
Secondly, there is evidence in addition to the appellant’s statement that is consistent with the observations and findings of the MA.
We are mindful of the decision in Lukacevic but we are not persuaded that the statement is of such probative value as to warrant its admission for reasons that will be more fully dealt with below.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in his classification within the psychiatric impairment rating scales (PIRS) under self -care and personal hygiene and concentration, persistence and pace (cpp).
In reply, the respondent submits that no errors were made.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary Psychiatric/psychological with a deemed date of 8 May 2017.
The MA obtained the following history:
“Mr Clarges commenced work with Wollongong City Council in 1994 as an apprentice signwriter. He was medically retired, against his will, in June 2018. He had attended a meeting with managers, expecting to redeployed, but instead, they gave him a letter dismissing him. He considered the workplace to be toxic and alleges that he was bullied by work colleagues. He stated that his colleagues were “lazy” and resented his work ethic. They openly made derogatory comments such as calling him an “arse licker”. Although this occurred within the hearing of his manager, nothing was done to sanction it. He related that he first noted mental health difficulties in about 2012, although there are indications that he sought help as early as 2010. He sought help, and his anxiety settled. The problems became worse again in 2017 and have not remitted.”
As regards treatment, the MA said:
“Mr Clarges is cared for by his general practitioner… He had been seeing a psychologist…but stopped doing so several months ago for financial reasons.
He has never been referred to a psychiatrist.
He takes no medication… His GP has offered medication on several occasions, but Mr Clarges prefers to manage without drugs.”
Present symptoms were noted as follows:
“Mr Clarge’s mood varies day-to-day, often determined by circumstances. He can experience positive emotion; for example, he enjoys watching comedy videos on YouTube.
He is anxious, especially if he leaves his home. He is concerned about running into ex-work colleagues. He said that some of them still “heckle” him if they see him. Because of this, he feels hypervigilant when out.
He has subjective difficulties with concentration, attention and short term memory. For example, if he tries to read, he is distracted by his thoughts and will lose focus. He said, ‘I can’t get through an article [in the newspaper].’
He has occasional panic attacks with associated chest tightness symptoms, shortness of breath, sweating and agitation.
He is bothered by intrusive thoughts about his circumstances and has lost confidence in himself and his future.
He has some thoughts of suicide and has contemplated means. He feels that he won’t act on these thoughts.
His sleep is disturbed by intrusive thoughts, fretting about his situation (unemployment and financial hardship). He will go to be by about 10 PM but will take sixty to ninety minutes to fall asleep. He frequently wakes through the night.
His appetite is intact and he eats well.
He has lost confidence and faith in others. He worries about being bullied in the future.”
As regards Mr Clarge’s social activities and activities of daily living (ADL’s) the MA said:
“Mr Clarges rises at about 6 AM. He prepares himself breakfast and watches the news on television. He then assists his partner in getting ready for work.
He attends to housework as needed.
His partner does the shopping, but he will often prepare meals. He lives in an apartment, and so there is no garden to manage.
He has one good friend, whom he has known since childhood. They catch up about once a month, when his friend well taken up [sic] and they go to a café together.
He has a home gym and works out about 3 to 4 times a week.
He showers regularly and does not miss meals.
He has stopped socialising with other friends, mostly who were colleagues at work.
He and his wife may go out to a café once or twice a week.
He has stopped attending activities relating to his daughter.
He also has occasional contact with an older man, whom he described as a mental or [sic]. He prefers to stay at home and avoids other social contacts.
He has little contact with his mother.
He travels within the local area, for example, to appointments. He is often uncomfortable, being afraid of running into ex-colleagues from Wollongong City Council.
He has a very good relationship with his partner Susan. Early in the course, they had struggled and discussed separation, but this is now in the past. Mr Clarges described his irritability and tendency toward anger.
He reads articles on his computer, watches the news and reality TV shows. For example, he mentions shows about prospecting or digging for gold.
He hasn’t worked since June 2018, when he was involuntarily medically retired.
At the end of the interview, when I asked if he had anything further to add, he mentioned that he intended to move to North Queensland with his partner, where he hoped to start a business.”
Findings on examination were reported as follows:
“I assessed Mr Clarges by a video link. The quality of the connection was excellent, and I felt able to do a comprehensive assessment.
Mr Clarges was a fit-looking man, casually attired. He was friendly and cooperative throughout the interview.
He described his low mood, but he had a reactive affect and responded in a warm and open manner, even showing humour appropriately. There was no evidence of any disorder of thought-form or perception. He gave a comprehensive account over about 60 minutes.
He acknowledged thoughts of suicide and that he had contemplated means. He stated that he had no intention of going through with this.”
The MA diagnosed “Persistent depressive disorder with anxious distress” adding: “Mr Clarges has received many diagnoses over time. I prefer the above as the best fit, taking everything into consideration.”
As regards consistency of presentation, the MA said:
“There are inconsistencies in Mr Clarges’s presentation, with points of history being ignored or minimised at times. He had more mental health treatment early on than he acknowledged at first. For example, his GP had treated him with fluvoxamine and desvenlafaxine, while Mr Clarges only acknowledged two days of desvenlafaxine. He discussed a teaching English course with Prof Mattick that he didn’t mention with me.
I note Prof Mattick’s comments regarding exaggeration and malingering and will address those below.
Some differences in the histories taken may be due to time and recovery. For example, Mr Clarges’ relationship with Susan had been strained, but now it is fine.”
The MA assessed 7% WPI “without deduction for any pre-existing condition. I do not adjust for treatment effect. He is not on active treatment.”
The MA then turned to consider the other medical information stating:
“From the general practice records:
Dr David Stewart. • 20 November 2009 – In for MHCP [mental health care plan] – depression, relationship difficulties, bereavement, family stress, work stress…
IME Psychiatrists.
On 14 March 2019, A/Prof Robertson diagnosed ‘an adjustment disorder with anxiety and depressed mood.’
IME psychiatrist Dr Christopher Canaris, 18 January 2020, diagnosed a persistent depressive disorder. He determined an impairment of 19% (Classes 2,3,1,3,3,5).
IME psychiatrist Dr Patrick Morris, 17 July 2020 and 16 October 2020, diagnosed major depressive disorder with anxious distress, noting that he had previously diagnosed Mr Clarges with generalised anxiety disorder. He notes that he has considered Prof Mattick’s report and does not change his diagnosis (a diagnosis that Mattick had challenged). He considered that Mr Clarges had not reached maximum medical improvement but determines 15% WPI (Classes 2,3,2,2,3,3).
Professor Richard Mattick Clinical psychologist Professor Richard Mattick assessed Mr Clarges using psychometric tools on 27 May 2020, also referencing an earlier assessment from 2018.
In his report he asserts: All tests/assessments used are reliable, validated, well-normed, widely-accepted, and appropriate to the age and complaints. … Symptom validity assessment is routinely conducted to measure for any exaggeration or fabrication of complaints and deficits, using validated measures and approaches. I further point out that the Psychology Board of Australia advocates for the assessment of overstatement or, to quote them directly, ‘malingering’. I also note that Expert Guidelines in Australia (Published by the Black Dog Institute and endorsed by the Royal Australian & NZ College of Psychiatrists) argue strongly for the assessment of exaggeration, particularly in cases compensation seeking, and refer directly to the MMPI-to being an appropriate instrument to assess for exaggeration. On the MMPI validity scales, he obtained extremely high percentile rankings, nearing 100%, for all except infrequent psychopathology responses, which he rated at the 63rd percent.
Regarding cognitive assessment, he states: ‘There is no impairment when he is assessed using reliable, valid, and accepted measures such as the Wechsler Adult Intelligence Scale and the Wechsler Memory Scale. I do not accept that he has any impairment in attention/concentration or memory given the results today and given his presentation.’
Prof Mattick determines a diagnosis of bipolar disorder contrary to all other assessors. He thought that this had ‘ interacted in the workplace over many years and led Mr Clarges to complain and to come to medical attention, and this has been interpreted by others, including me, as either a Generalised Anxiety Disorder early on, Panic Disorder, or more recently an Adjustment Disorder or a persistent Depressive Disorder.’
Despite not accepting a work-related injury, he determines a whole person impairment of 6% (Classes 2, 3, 2, 2, 1, 2.)
He concludes: ‘His self-reported symptoms should not be taken seriously. His results in symptom validity assessment show his report of complaints is invalid.’
Prof Mattick goes on to criticise other assessors, naming Dr Canaris specifically, for their failure to use similar validity measures, which he considers ‘renders the reports less helpful and less preferable.’
In a supplementary report dated 6 January 2021, Prof Mattick writes: ‘The reason for reviewing this information is that Mr Clarges does declare that he had some relationship problems around 2013 or 2014, but he appears to have had more longstanding emotional disturbance for a range of reasons which are not just simply to do with his relationships. I do not trust that his self-report of his emotional well-being historically is accurate. He appears to have had more emotional disturbance in an ongoing fashion from 2007 probably, but at least from 2009 into 2010, 2012, 2013, 2014, and 2015, and probably thereafter…
I point out that on the [MMPI-2-RF] symptom validity scales, there was clear evidence of exaggeration of emotional disturbance, somatic, and cognitive complaints, and these exaggerations were present in my first assessment as well. I have graphed his course compared with known patient samples who have no evidence of feigning dysfunction, and his results clearly indicate that he reports symptoms at a level which is implausible, and that his self-report currently is invalid.
Dr Stewart (20.11.09) noted that he presented for a mental health care plan, and there is mention of depression, relationship difficulty, bereavement, family stress, and work stress, and a mental health care plan was prepared and a standard referral letter was provided to Mentor Psychology for a Medicare item for mental health problems.
By 14.10.10 he presented after work stress and was reportedly suffering victimisation and abuse by a supervisor and complained of stress and was to be reviewed by Dr Dragutinovich possibly, a psychologist…He presented because of stress and was to be reviewed in a month. Again there was discussion about support, false accusations, and that he was seeing Branka, a psychologist.
Thereafter he had a history of being ‘sick in Indochina’ and there is reference to ‘psychiatric: relationship problem. Felt used by ex-partner/stress at work, bad dreams, anxious, no panic attacks, no suicide attempt’. The reason for the visit was Adjustment Disorder and he was referred to Mentor Services, a psychological practice, and was to be reviewed in a month.”
The MA then set out in considerable detail his comments on the various diagnoses and impairment assessments. He said:
“Mr Clarges has received many diagnoses from the treating clinicians and assessors. Most agree on depression and anxiety in some form. Prof Mattick differed, offering bipolar disorder as his diagnosis. I found little evidence to support a diagnosis of bipolar. Given the long-standing nature of Mr Clarges condition, I prefer a diagnosis of persistent depressive disorder with anxious distress.
His impairment assessment also varies amongst assessors. I have considered the ratings of the other assessors and the written statements available. I rely also on the testimony of Mr Clarges. Some of the differences may be due to time and some recovery. I justify my ratings in the attached PIRS table.
Alone amongst assessors, Prof Mattick argues for a pre-existing condition and quotes from general practice notes…An adjustment disorder will remit when the stressors end. Mr Clarges started seeking help with work-related problems in 2010. I do not consider that there is a pre-existing condition that is contributing to his presentation now. He has been in a supportive relationship for the last seven years.
The more critical issue is the conclusion that Mr Clarges is unreliable and not to be believed. No doubt, malingering sometimes occurs, but such an accusation has the potential to cause harm. It is psychologically damaging to the worker and potentially denies him benefits that he would otherwise receive.
Validity measures are less well accepted in clinical practice than Prof Mattick says. They are not generally used in psychiatric assessments for good reasons…
The guidelines recognise the possibility of malingering and state, ‘A number of psychological tests have been proposed to assist in detecting the feigning of psychological symptoms…’ They do not strongly recommend their use and, instead, suggest a broad-based assessment.
More relevant guidelines, those for anxiety (Andrews et al., 2018) and mood disorder (Malhi et al., 2021), make no such recommendation either.
As far as I am aware, neither the Black Dog Institute nor the RANZCP endorse the use of validity scales to detect malingering in this context…
Prof Mattick quotes impressive statistics here, putting Mr Clarges at a high percentile on validity scales for malingering. The issue remains as to what that means.
Psychometric tests such as the MMPI-2-RF have chiefly been tested and validated using subjects coached to fake symptoms. However, a test cannot be considered valid unless it is tested on the population in which it will be used, in this case, injured workers, who have much more at stake than college students asked to pretend to have an illness.
In his undated supplementary statement, Matthew Clarges indicates a strong disagreement with Prof Mattick’s conclusions. Of relevance is his statement, ‘I found the psychometric testing extremely overwhelming.’ This alone will impact on his test scores.
Potential confounders such as anxiety, engagement, education, gender, occupation, culture, among others, must be considered and tested before the tool is used in a medico-legal setting…
We lack a gold standard test for malingering and do not know what percentage of workers may be guilty of fraudulently claiming workplace injuries compensation.
The assessment of cognition offers further challenges. The deficits in cognition in mental health problems are not due to brain injury or degenerative change. They are, like much of psychiatry, subjective…
In summary, although malingering is an important issue in the compensation setting, we lack an accurate set of tools to determine it, short of catching someone out in a lie. Psychometric assessments may be indicative but are likely to lead to unwarranted accusations more often than not. Such accusations may lead to psychological and social harm. The tools are less well accepted than argued by Prof Mattick and should be viewed with caution.
It is also important to note that all assessors, including Prof Mattick, agreed that Mr Clarges has a mental health disorder…”
Turning firstly to the assessment with respect to self-care and personal hygiene, the MA assessed a Class 1 stating:
“Mr Clarges rises early and makes breakfast. He helps with housework and the preparation of meals. He exercises regularly, using his home gym. He does not need prompting to attend to personal hygiene, such as showering or teeth brushing. He does not miss meals.”
The descriptor for a Class 1 reads: “No deficit or minor deficit attributable to the normal variation in the general population.”
The appellant submits that the MA erred in his assessment for the following reasons:
·It is inconsistent with the evidence contained within the Application to Resolve a Dispute (“ARD”).
·In his statement dated 24 November 2019, he asserts that he relies upon take-out food, and otherwise eats a muesli bar.
·The MA took a similar history to Dr Mattick… who recorded “He said he can prepare and cook meals and does so. He said that he will cook spaghetti bolognese, or Thai-style meals, and he cooks once a week. Otherwise he will do mainly the prep [work] to assist [Susan] …[and does this] most of the week”.
·Mr Clarges disputed the history taken by Dr Mattick.
·Mr Clarges disputes the history obtained by the MA.
·Mr Clarges acknowledges he does not require prompting to attend to showering, although states in the attached statement dated 30 April 2021 that he requires prompting to wear clean clothes.
·The above statement is corroborated by Dr Canaris, who takes a history in his report that the appellant “changes his clothes every couple of days”.
·The appellant also asserts he advised the MA he requires prompting to shave. This is outlined in the attached statement dated 30 April 2021.
·The above is corroborated by: (a) Dr Canaris, who records Mr Clarges was “unshaven and he had a moist handshake consistent with significant autonomic hyperarousal”. (b) Dr Mattick, who records “he did present as unshaved, explaining that he does not shave as frequently as he might as he does not really go out that often”. (c) Dr Mattick, who also records that Mr Clarges failed to shave every day, and missed some meals, therefore applying Class 2 impairment (d) Dr Morris, who records that Mr Clarges was “an unshaven… man”.
·His impairment is demonstrative of either a class 2 or class 3 impairment, noting he relies on take-away food (class 2), frequently misses meals (class 3) needs prompting to wear clean clothes and shave (class 3); and does not prepare his own meals (class 3).
At the outset, we point out that the appellant’s own self-care description is variously recorded as noted above, even though he disagrees with some of those recordings. He has made a number of statements about this, some undated.
The task of the MA as set out in Chapter 1.6 of the Guidelines is to make a clinical assessment of the claimant on the day of the assessment “taking account of the claimant’s relevant medical history and all available relevant medical information…”
It is perhaps timely at this point to set out the task of an Appeal panel as stated in Ferguson v Stateof New South Wales [2017] NSWSC 887 where Campbell J said:
“[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’…
[37] The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’…”
Given the varying assessments, it could be argued that Mr Clarges is on the borderline between a Class 1 and a Class 2 but it seems to us that this reflects a simple difference of opinion on the subject about which” reasonable minds may differ.”
For example, in an undated statement (page 50 of the ARD) he says: "now cooking rarely. due to motivation…able to fix flat car battery if required…”
Dr Robertson in his report dated 14 March 2019 elicited "He occasionally neglects his appearance but tends to consume a balanced diet and attend to his personal hygiene. He was well presented in the interview."
This in our view is quite consistent with the level of self-care and personal hygiene in the general population.
As the MA noted at the time of his assessment on 31 March 2021 (some two years after Dr Robertson): "He was a casually attired but well-presented man. He was well cared for and looked stated age. He was solidly built and appeared physically fit.”
Dr Canaris in his report of 18 January 2020 noted his two hours of gym activity plus 10k daily runs (much more than most in the community) and that "He is definitely not a grub" but would shower "mostly every day" and change his clothes.
Even showering every couple of days is not abnormal in the overall population.
We accept that most of the medical assessors who have seen Mr Clarges have assessed a Class 2. Having said that, in our view many of the descriptions of Mr Clarges presentation in this category could equally describe a Class 1.
As we said earlier as regards the presumption of regularity, there is no reason to think the MA recorded an incorrect history, especially as the history is similar to some other reports, for example, Dr Mattick’s recorded history of his ADL’s.
It is important to note that the MA stated that at the end of his interview with the appellant, he asked him “if he had anything further to add…” clearly providing an opportunity for the appellant to add anything he thought appropriate to ensure that a comprehensive assessment was carried out.
This further reinforces our view that the MA recognised the competing assessments and was keen to ensure that the appellant was able to explain his condition in as much detail as he wished.
In summary, the appellant has given different histories to different assessors, and the MA’s recorded history and rating at the time of his assessment are entirely open to him on all of the evidence.
Turning now to the issue of Concentration, Persistence and Pace, (CPP) the MA assessed a Class 2, adding:
“He watches reality TV shows about practical things such as gold prospecting. He reads the news on his computer. He had completed most of a course to teach English as a second language. He has subjective difficulties on this domain, indicating mild impairment.”
The appellant submits that the MA erred in this assessment for the following reasons:
·The MA records that the worker “reads the news on his computer”. This is inconsistent with the history recorded earlier in the MAC, that “… if he tries to read, he is distracted by his thoughts and will lose focus. He said ‘I can’t get through an article [in the newspaper]’”
·The MA records that Mr Clarges “watches reality TV shows about practical things such as gold prospecting.” This is inconsistent with the report of Dr Canaris who said: “his concentration is ‘bad – I can’t read much – I try to read a newspaper and after a couple of lines I can’t focus’… He is very easily distracted for example when watching TV. He has become much more forgetful…”
·The MA also refers to the appellant completing “most of a course to teach English as a second language”. This is not a history that has been recorded by any of the medical practitioners, and it is not outlined in any of Mr Clarges’ statement evidence.
·The appellant’s impairment is demonstrative of a Class 3 impairment, noting: he was unable to undertake a basic retraining course (inconsistent with class 2); he can only read a few lines [of a newspaper article] before losing concentration (class 4); and (c) is unable to concentrate on even simple tasks (such as watching television) for more than 30 minutes at a time (inconsistent with class 2, which suggests the worker can focus on intellectually demanding tasks for periods of up to 30 minutes).
Once again, the ratings varied a lot between assessors, from a Class 1 to a Class 3.
Dr Mattick rated a Class 1 and suggested that the appellant was malingering. Dr Canaris rated a Class 3.
Because there are such varied opinions, it then befalls the MA to make his own assessment at the time of his examination.
In our view, the MA conducted a thorough assessment over sixty minutes, and clearly explained why he rated a Class 2.
We also note that the appellant provided a number of statements addressing the various medical reports which clearly suggests reasonable concentration over a period of time.
The appellant’s statement that “he hoped to start a business” also seems to us to reflect a degree of confidence by him as to his CPP.
As regards the issue of cognition, Mr Clarges seems to focus on his motivation as opposed to the impairment which is what is rated.
Dr Mattick did a thorough neuropsychological assessment. Leaving aside the issue of malingering, about which it is noted the MA took a different view, Dr Mattick did not identify any objective cognitive or memory impairment on standard tests.
The MA went into considerable detail in explaining the limitations of inferring malingering from a neuropsychological assessment, but this does not detract from the validity of cognitive testing for assessing cognitive function and impairment.
Indeed on all the mental state examinations conducted by the various doctors there has been no evidence recorded by any of them of any objective cognitive issues.
We note that Mr Clarges told the MA that he occasionally watches a documentary or similar type of TV show “as there is no storyline he needs to follow.”
Finally, the appellant’s ability to commence and participate in a 60 hour online TEFL course, (a course to teach English as a second language specifically referred to by the MA), although we accept that he struggled towards the end, is quite consistent with a Class 2 rating.
For these reasons we do not accept that the MA erred in his assessment in the category of CPP.
In summary, there is nothing in the assessments by the MA that suggests that the ratings in the PIRS were either “glaringly improbable” or demonstrated lack of awareness of “significant factual matters relevant to the assessment of impairment.”
The MA provided details of the actual path of reasoning sufficient to identify the classification of the appellant’s impairment within the PIRS.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 April 2021 should be confirmed.
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