Clinch v Secretary, Department of Education

[2024] NSWPICMP 384

DETERMINATION OF APPEAL PANEL
CITATION:	Clinch v Secretary, Department of Education [2024] NSWPICMP 384
APPELLANT:	Amber Clinch
RESPONDENT:	Secretary, Department of Education
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	18 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) obtained accurate history; whether the history MA obtained was in accordance with the evidence; whether the MA’s ratings of the appellant’s impairment in all Psychiatric Impairment Rating Scale (PIRS) categories other than travel correct; Held – MA obtained an accurate history sufficient to enable him to assess the degree of the appellant’s permanent impairment from injury; MA’s ratings in PIRS were correct; Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 27 March 2024 Amber Clinch, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Professor Nicholas Glozier, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 March 2024.

2. The appellant relies on the following grounds for 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.

3. 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) of appeal on which the appeal is made.

4. 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.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

1. The appellant commenced employment as a teacher in 2013 with the Secretary of the Department of Education, the respondent. She worked at the Glenville Park High School.

2. On 4 December 2017 a student assaulted her causing her both a physical and a psychological injury. Her solicitors arranged for her to be examined by psychiatrist Dr Christopher Canaris on 4 August 2022, who advised in a report of that date that he assessed the appellant had permanent impairment from her injury to the degree of 23% whole person impairment (WPI). Dr Canaris came to that opinion by rating the appellant’s permanent impairment by reference to the psychiatric impairment rating scale (PIRS), as detailed in paragraphs 11.11 an 11.12 of the Guidelines. His ratings were Class 3 for self-care and personal hygiene, Class 3 for social and recreational activities, Class 2 for travel, Class 3 for social functioning, Class 4 for concentration, persistence and pace (CPP), and Class 5 for employability. Those ratings converted to a WPI of 26%, but Dr Canaris identified the appellant had “other conditions such as possible autism spectrum disorder… and potential trauma responses to other assaults” and he reduced the overall permanent impairment he assessed the appellant had by one-tenth on account of those other conditions so as to arrive at his assessment of 23% WPI that he considered had resulted from the appellant’s injury.

3. Relying on that report of Dr Canaris, the appellant claimed compensation from the respondent’s insurer pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from her injury.

4. To respond to the appellant’s claim the insurer organised for the appellant to be examined by psychiatrist Dr Mathew Boulton on 23 February 2023. In a report of that date addressed to the insurer Dr Boulton advised he assessed the appellant had an overall permanent impairment of 24% WPI. He too assessed the appellant by reference to the PIRS, rating her impairment for self-care and personal hygiene as Class 3, for social and recreational activities as Class 3, for travel as Class 2, for social functioning as Class 3, for CPP as Class 3 and for employability as Class 5. He also made a one-tenth deduction for, it would seem, a persistent depressive disorder that he considered was unrelated to the appellant’s work injury but due to events subsequent to that. He advised in that report that he assessed the degree of the appellant’s permanent impairment from her injury was 22% WPI.

5. The insurer subsequently obtained a supplementary report from Dr Boulton. The letter by which the insurer requested that is not before the Appeal Panel, nor was it before the Medical Assessor. However, in his supplementary report dated 28 March 2023, Dr Boulton detailed the matters that the insurer had asked him to consider when providing his supplementary report. None of the specific matters on which the insurer sought Dr Boulton’s further opinion prompted Dr Boulton to change his opinion as expressed in his report of 23 February 2023 but in response to a general question “any other comments you wish to make”, Dr Boulton advised that he would reassess the appellant’s impairment in social functioning as Class 2. When he did that, he revised his assessment of the degree of the appellant’s permanent impairment from her injury to 20% WPI.

6. It would seem from the material before the Appeal Panel that the insurer made an offer to settle the appellant’s claim for compensation for permanent impairment by paying her compensation under s66 of the 1987 Act for 20% WPI. It would also seem the appellant did not accept that offer as she instituted proceedings in the Personal Injury Commission (Commission) seeking determination of her claim for compensation.

7. A delegate of the President of the Commission referred the matter to the Medical Assessor on 22 January 2024. He examined the appellant on 28 February 2024 and, as noted above, issued the MAC on 1 March 2024 in which he certified that he assessed the degree of the appellant’s permanent impairment from her injury is 8% WPI.

PRELIMINARY REVIEW

1. 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.

2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established either of the grounds for appeal on which he relied, and consequently there was no basis for the Appeal Panel to examine the appellant.[1]

   [1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

EVIDENCE

1. 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

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. The appellant’s submissions were drafted by her solicitor.

3. Paraphrasing them, to provide a summary of them, they are that the Medical Assessor either failed to consider the evidence in her statements or failed to adequately consider that evidence.

4. The Appeal Panel observes that attached to the Application to Resolve a Dispute (ARD) that the appellant lodged with the Commission to initiate the proceedings in the Commission there were two statements said to be signed by the appellant. The earliest of these was dated 15 March 2022. The date of latest was specified in the index of the ARD as 12 September 2023. It however bore a date of 12 December 2023 adjacent to what was described as the appellant’s signature. The Appeal Panel also observes that the signatures on each of these statements, whilst described to be that of the appellant, differed substantially.

5. The Appeal Panel has noted this, merely for the sake of completeness, as nothing hinges on it.

6. The appellant submitted that the Medical Assessor referred only to his history and failed to refer to the comments of Dr Canaris and the comments of Dr Boulton. The appellant submitted that the Medical Assessor’s failure to refer to Dr Canaris’ and Dr Boulton’s respective comments and his failure to consider her evidence is a demonstrable error.

7. The appellant submitted that the ratings that both Dr Canaris and Dr Boulton made of her impairment in the PIRS categories of self-care and personal hygiene, social and recreational activities, social functioning and employability were “significantly at odds with the (Medical Assessor’s) finding”, which the appellant submitted “is concerning and amounts to a demonstrable error”.

8. Under the heading in her submissions “inconsistencies and factual irregularities in the report” the appellant listed several factual errors she contended the Medical Assessor made with respect to the history he obtained.

9. The appellant noted that the Medical Assessor recorded she was not tired or adversely affected from having stayed up the previous night to attend to sick children but she said in her submissions that she felt sick during the assessment and that after the assessment was diagnosed with laryngitis. The appellant also referred to an incident where she was assaulted sometime after her injury by a child whom the Medical Assessor noted had been restrained in a cage, but the appellant said that the child was in a break-out space and not a cage. The appellant also said that the Medical Assessor did not ask her about the psychological “side of things” regarding that assault.

10. The appellant referred to the Medical Assessor noting that she had been assaulted by her partner and that police had pressed charges against her relating to a domestic violence situation. The appellant said that the charges were dropped but the Medical Assessor failed to record that.

11. The appellant referred to the Medical Assessor recording she had reported to him that she virtually has no sleep disturbance, but the appellant said that the Medical Assessor simply did not ask her this. The appellant also submitted that the Medical Assessor noted that she goes to bed late at night and that the Medical Assessor failed to have regard to what she had said in her statement about her sleep issues. The appellant said that she continues to struggle with her sleep.

12. The appellant noted the Medical Assessor detailed that she is able to use techniques to avoid panic attacks, but the appellant said this is not what she said during the examination and it is untrue and does not accord with her statement and the evidence of Dr Canaris and Dr Boulton.

13. The appellant submitted that what the Medical Assessor outlined in the MAC regarding her social activities is untrue and contrary to what she had said in her statements. She said the same about the Medical Assessor recording her showering and bathing irregularly.

14. The appellant also noted that the Medical Assessor recorded she was a homebody before her injury which the appellant said was untrue.

15. The appellant also claimed that there was no discussion during the Medical Assessor’s examination of her regarding her capacity to drive. The appellant noted that the Medical Assessor had recorded that she considered herself to be lucky to be on compensation so that she could spend more time with her family and her children which made her happy, but the appellant said she never indicated or mentioned that to the Medical Assessor and she said that she would prefer to be working and financially independent.

16. The appellant also said that the Medical Assessor did not enquire of her what the psychological effects were from physical injuries she suffered after her work injury. The appellant referred to a letter from Diana Grujoska, who is a registered psychologist whom the appellant has consulted, in which Ms Grujoska said all her symptoms relate to her injury. The appellant also noted that both Dr Canaris and Dr Boulton considered that that was the case in their respective reports.

17. The appellant submitted that the Medical Assessor made errors with respect to the dates on which she had received psychological treatment and made an error regarding her suspending Eye Movement Desensitization and Reprocessing (EDMR) treatment for some months. The appellant said that she did not receive EDMR treatment from her psychologist because the psychologist was on leave.

18. The appellant submitted that the Medical Assessor’s rating of her impairment in self-care and personal hygiene as Class 2 is an error and it ought to have been rated as Class 3. The appellant referred to various matters that the Medical Assessor had noted in the MAC and also to parts of her statements and to parts of the reports of Dr Canaris and Dr Boulton and submitted that that evidence supports a rating of a Class 3 impairment.

19. The appellant submitted that the Medical Assessor’s rating of her impairment in social and recreational activities as Class 2 is an error and the correct rating should be Class 3. She again referred to various matters the Medical Assessor had noted in the MAC and also to Dr Canaris and Dr Boulton rating her impairment in social and recreational activities as Class 3, in support of her submission that her impairment in this PIRS category is a Class 3 impairment. She noted that she continues to be isolated and withdrawn and that she has limited interactions that are not “induced solely due to the needs of her children”.

20. The appellant submitted that the Medical Assessor’s rating of her impairment in social functioning as Class 2 is an error and that the correct rating is Class 3. She referred to various parts of her statement and to the reports of Dr Canaris and Dr Boulton to support her contention that her impairment in social functioning is Class 3.

21. The appellant submitted that the Medical Assessor’s rating of her impairment in CPP as Class 2 is an error and that the correct rating is either Class 3 or Class 4. She referred again to various parts of her statement and the reports of Dr Canaris and Dr Boulton to support her contention that her impairment in this PIRS is either Class 3 or Class 4.

22. The appellant submitted that the Medical Assessor erred by rating her impairment in employability as Class 4 and that correct rating is Class 5. She referred to various matters the Medical Assessor had noted in the MAC and also to parts of the reports of Dr Canaris and Dr Boulton to support her contention that her impairment in employability is Class 5.

23. The appellant submitted that the Medical Assessor’s rating of her impairment in self-care and personal hygiene, social and recreational activities, travel, social functioning and CPP as Class 2 does not accord with her having a severe mental illness. The appellant contended that the Medical Assessor’s finding that her posttraumatic stress disorder is in partial remission is inconsistent with her having ongoing psychiatric consultations and taking medication.

24. In reply, the respondent submitted that it is clear the Medical Assessor had regard to both statements of the appellant and also to the reports of Dr Canaris and Dr Boulton. The respondent submitted that the Medical Assessor was not bound to follow the findings of Dr Canaris and Dr Boulton nor was he required to refer to each piece of evidence when rating the appellant’s impairments in the PIRS categories.

25. The respondent submitted, with respect to the inconsistencies and irregularities that the appellant listed in her submissions that this amounts to the appellant cavilling with the history the Medical Assessor obtained and that her submissions relating to this is not based on evidence currently in the proceedings. The respondent noted the appellant did not file further evidence regarding these alleged inconsistencies and irregularities.

26. The respondent submitted that insofar as the appellant has addressed matters relating to her level of functioning in her list of irregularities and inconsistencies, those are matters that occurred before the medical assessment. The respondent submitted, in effect, that the appellant’s submissions relating to her functioning amounts to evidence of those matters and the Appeal Panel ought not accept that evidence because it was available to the appellant before the assessment.

27. The respondent further submitted that fresh issues raised by the appellant in her list of inconsistencies and irregularities do not have sufficient prohibitive value such that they would change the outcome of the case.

28. The respondent submitted that it was open to the Medical Assessor to consider the appellant’s physical injuries and whether they had an effect on her psychological presentation.

29. The respondent submitted that the Medical Assessor was required to assess the degree of the appellant’s permanent impairment as at the time the Medical Assessor conducted his examination and he was required to apply his clinical judgment in doing so. The respondent highlighted that the Medical Assessor was not bound by the findings of Dr Canaris and Dr Boulton. The respondent submitted that the Medical Assessor however had regard to their opinions and also to the appellant’s statements. The respondent noted that the examinations that Dr Canaris and Dr Boulton had done of the appellant were done much earlier than the Medical Assessor’s examination of the appellant. The respondent noted that the Medical Assessor addressed that in the MAC.

30. The respondent submitted that the Medical Assessor’s ratings of the appellant’s impairment in the PIRS categories were open to him on the information before him and his ratings not contain a demonstrable error and did it involve the application of incorrect criteria.

FINDINGS AND REASONS

1. 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.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

Inconsistencies and irregularities

1. As said the appellant’s submissions were drafted by her solicitor, and the Appeal Panel infers they reflect what the appellant instructed her solicitor. Consequently, insofar as they detail what the appellant told the Medical Assessor and what the Medical Assessor asked of her during the Medical Assessor’s examination of her, her submissions are in effect hearsay evidence from her solicitor regarding what the appellant has said after her examination about the examination. This hearsay evidence is not evidence that the Appeal Panel considers it should receive in the appellant’s appeal against the MAC.

2. This is because the Appeal Panel is unable to ascertain from the Medical Assessor whether what the appellant contends she told him or what the appellant contends he asked her is correct. The Appeal Panel cannot compel the Medical Assessor to give evidence to it. Further, the Appeal Panel considers the appellant’s recount to her solicitors of what she has told the Medical Assessor or what the Medical Assessor asked her is much less reliable than the history the Medical Assessor has set out in the MAC. The appellant’s instructions to her solicitors would have been provided days or weeks following the examination and her memory of the details of what occurred during examination. The Appeal Panel infers that the Medical Assessor made notes of what the appellant reported to him over the 90 minutes of the assessment. That is standard practice for a psychiatrist when assessing a patient, or in this case a worker. His notes, because they are a contemporaneous record, are more reliable than the appellant’s subsequent recount of what occurred.

1. The Medical Assessor’s composition of the appellant’s clinical history would have been based on the notes he made and based too on the appellant’s statements and the histories Dr Canaris and Dr Boulton provided in their respective reports and indeed, the other evidence before the Medical Assessor. That also is standard practice. Further, it is apparent form the MAC that is how he composed the relevant clinical history.

2. The Appeal Panel observes that 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.

3. It is feasible there may have been some inaccuracies in the Medical Assessor’s notes and also there may have been some inaccuracies in the appellant’s recount to him of certain facts, but any inaccuracy in the clinical history the Medical Assessor has composed has no bearing on the outcome in this matter. What the appellant has contended are discrepancies between what the Medical Assessor has detailed in the MAC and what she contends is correct, have no bearing on the Medical Assessor’s assessment of her impairment in the several PIRS categories.

4. For example, the fact that a child who assaulted the appellant subsequent to her injury may have been restrained in a break-out space rather than a cage is immaterial.

5. The fact too that domestic violence charges her partner brought against her were dropped, which occurred in 2018 being well prior to the medical assessment of her, is also immaterial. It is immaterial because as at the time of assessment her relationship with her partner has for some time been strong and supportive.

6. The fact that she worked as a teacher of behaviourally challenged children in New Zealand whereas she was a main stream teacher is also irrelevant.

7. The fact that the appellant may have been tired during the examination and was subsequently diagnosed with laryngitis is also irrelevant. The Medical Assessor was aware that the appellant had been up late the previous night with her children in a hospital, however the Medical Assessor recorded that he found during his 90 minute examination of the appellant that she was reactive and was a detailed historian. That is what is relevant. The fact that the Medical Assessor considered the appellant did not appear to be tired is irrelevant.

8. The Medical Assessor also obtained a history of the appellant’s treatment following her injury and detailed that in the MAC. Again, even if there is some inaccuracy in what the Medical Assessor has detailed, what is critical in terms of the assessment of the appellant’s permanent impairment from her injury is her current treatment which the Medical Assessor noted consisted of consulting her psychiatrist Dr Nardine Elzahaby every six weeks to two months and seeing her long-term psychologist Allie Mackay and her taking venlafaxine 25mg.

9. The Appeal Panel notes too that the history the Medical Assessor obtained included the psychological sequelae the appellant experienced from subsequent physical trauma. It was necessary for the Medical Assessor to track that so as to have a proper understanding of the appellant’s presentation. The fact that there may be some inaccuracy in the history relating to that is immaterial, given that at the time the Medical Assessor assessed the appellant’s permanent impairment from her injury, the Medical Assessor concluded, based on the appellant’s presentation at the time of assessment, that her depression from these matters lifted and consequently the mood disorder associated with that depression. Simply put, the Medical Assessor found the psychological sequelae from the appellant’s physical traumas post injury had resolved.

10. In short, what the appellant has described in her submissions as inconsistencies and factual irregularities amounts to an analysis of the MAC with an eye keenly attuned to the perception of error. That is, the appellant is seeking that the Appeal Panel adopt an overzealous review of the MAC, which is not how the Medical Assessor’s reasons should be read.[2]

    [2] Minister for Immigration & Ethnic Affairs v Wu Shan Liang, Huang Cheng Jiang & Liu Jun Liang (1996) 185 CLR 259, [1996] HCA 6 at [30]-[31].

11. In short, the Appeal Panel considers that the Medical Assessor gave exhaustive attention to the documents before him, including the appellant’s statements and reports of Dr Canaris and Boulton, to compose a detailed clinical history relating to the appellant to enable him to assess the degree of the appellant’s permanent impairment as it was at the time she presented for assessment. The Appeal Panel considers that what the appellant has detailed in her list of factual irregularities and inconsistencies is immaterial and hence, her evidence of what was said during the Medical Assessor’s examination relating to that is also immaterial. The Appeal Panel is not required to receive that evidence.[3]

PIRS ratings

[3] Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112 at [102].

Self-care and personal hygiene

1. In the PIRS rating form within the MAC the Medical Assessor provided the following reasons for rating the appellant’s impairment in self-care and personal hygiene as Class 2:

   “She describes no difficulties washing, dressing, showering, does so daily whilst the twins are getting ready. She gets the twins ready and does chores around the home within her physical limitations. She has a range of strategies to enable her to do this. The only impairment would be a reduction in the quality of her diet, use of junk food and she is otherwise motivated to try and improve her wellbeing through a range of

   other exercises and exercise physiology. As such this is only just borderline for being a mild impairment.”

2. The appellant contended that the correct rating is Class 3.

3. The examples provided in Table 11.1 of the Guidelines for a Class 2 and Class 3 impairment in self-care and personal hygiene are:

Class 2	Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3	Moderate impairment: 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.

1. The appellant submitted to the effect that it could be inferred from her getting the twins ready and doing chores around the home that she prioritises the care of her children over her personal care. The appellant also submitted that the Medical Assessor’s comments are to the effect that she has to be prompted to attend to her own personal care by her husband Abraham. The appellant highlighted that the Medical Assessor noted that her partner had started a new job a few weeks before the assessment and now works on a shift basis and works weekends. The appellant also referred to various parts of her latest statement in which said that she commonly fails to look after her personal hygiene, has to be reminded to be showered, spends most of her days in her pyjamas and has got unhealthy and lazy and has put on 30 kilograms.

2. The appellant also referred to the ratings Dr Canaris and Dr Boulton had made of her impairment in self-care and personal hygiene which she submitted corroborated the evidence in her statement and supported a rating of Class 3 in self-care and personal hygiene. The appellant submitted that the Medical Assessor failed to take into account her evidence and the reports of Dr Canaris and Dr Boulton.

3. The Appeal Panel considers that it may be the case that the appellant does prioritise the care of her children over herself, but that circumstance does not result in the Medical Assessor’s rating of her impairment as Class 2 in self care and personal hygiene being wrong.

4. The Medical Assessor obtained a history that the appellant has no difficulty with her washing, dressing, showering and does this each day. The Medical Assessor also recorded that the appellant is motivated to improve her well-being through exercise and exercise physiology. The Medical Assessor noted that the quality of the appellant’s diet has reduced in that she eats junk food. The Medical Assessor reasoned that because of those matters the appellant had a mild impairment in self-care and personal hygiene.

5. The Medical Assessor explained that there had been a marked improvement in the appellant’s condition since the time she made her statements. The Medical Assessor also observed that the appellant’s condition had improved markedly from the time that Dr Canaris and Dr Boulton had examined her. On the Appeal Panel’s reading of the MAC, the Medical Assessor did not obtain a history of the appellant’s partner having to prompt her to attend to her self-care, nor could it be inferred from the history the Medical Assessor obtained that this is the case.

6. As earlier indicated, the Appeal Panel considers that the Medical Assessor obtained a clinical history of the appellant that was thorough and adequate to enable him to assess the degree of the appellant’s permanent impairment. He was entitled to rely upon that history and his clinical observations of the appellant during examination to rate the appellant’s impairment. The Medical Assessor’s task was to make his assessment of the appellant’s impairment, and not to select or adjudicate or opine on the correctness of the assessment of other medical examiners.[4]

   [4] Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43 at [47] and [56]; State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [25]-[26].

7. The Appeal Panel considers that the Medical Assessor adequately explained his reasons for rating the appellant’s impairment in self-care and personal hygiene as Class 2. The appellant’s impairment correlates with that described by the descriptors for a Class 2 impairment in Table 11.1, given that the appellant is able to attend to all of her tasks to ensure her personal hygiene and care although relies on take-away food. Her impairment does not correlate with the impairment described by the descriptors for a Class 3 impairment.

Social and recreational activities

1. The Medical Assessor provided the following reasons in the PIRS rating form for rating the appellant’s impairment in social and recreational activities as Class 2:

   “She has always been a homebody. She has regular social events with her few close friends, focused around their children with child activities, on a weekly basis and is going to such things on her own with the twins now in order to address her anxiety.”

2. The appellant contended that the correct rating is Class 3.

3. The examples provided in Table 11.2 of the Guidelines for a Class 2 and Class 3 impairment in social and recreational activities are:

Class 2	Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3	Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.

1. The appellant submitted that the Medical Assessor’s rating of her impairment as Class 2 is contrary to the evidence in her statement and the opinions of Dr Canaris and Dr Boulton.

2. The appellant highlighted that the Medical Assessor recorded that she was a home-body prior to her injuries, that she has become isolated and withdrawn, that she becomes more anxious when trying to increase her function, that she sees a younger friend at her home every one or two weeks, that she goes out on weekends on her partner’s days off and does family events, and that she has pervasive anxiety about unfamiliar social situations with associated arousal boarding on panic attacks.

3. The appellant submitted that her limited interactions are due to the needs of her children to have social interaction with friends. The appellant submitted that her interaction at home with a younger friend is in essence not a social interaction because they each talk about anxiety issues they have.

4. The appellant referred to her statement where she said that prior to her injury she would go out for dinners and movies but now prefers to stay at home and avoid any social interaction.

5. Again, the Appeal Panel considers that the Medical Assessor assessed the appellant’s impairment in social and recreational activities by reference to the history he obtained. That history indicates that the appellant is attending regular social events focused around her children. It is, in the Appeal Panel’s view, not an uncommon occurrence that once people have young children their social and recreational activities will tend to be based on their children and family activities.

6. The Appeal Panel considers that for the reasons the Medical Assessor provided in the PIRS rating form, he has correctly rated the appellant’s impairment in social and recreational activities as Class 2. The appellant attends regular social activities without a support person. She is not prompted by family or close friends to attend social events. In the Appeal Panel’s view that squarely accords with an impairment described by the descriptors for a Class 2 impairment and not a Class 3 impairment.

Social functioning

1. The Medical Assessor provided the following reasons in the PIRS rating form for rating the appellant’s impairment in social functioning as Class 2:

   “She reports being very well supported by Abraham and they are now engaged, a good relationship with her children and with her close family with almost daily contact with her mother, sisters and flying over to see the family on a yearly basis whilst her mother comes over frequently to stay with her. She has lost some friends over time but the irritability and withdrawal of the depression has resolved.”

2. The appellant contended that the correct rating is Class 3.

3. The examples for a Class 2 and Class 3 impairment provided in Table 11.4 of the Guidelines for social functioning are:

Class 2	Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3	Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.

1. The appellant again referred to parts of her statement in which she described losing friendships and ending relationships and having a strained relationship with her partner. She also described having no interest in going out and socialising with her partner and getting angry with her children.

2. The appellant also referred to some parts of the history the Medical Assessor recorded in the MAC in which he noted, firstly, that she had lost some friendships and, secondly, that after consulting a specialist she went to her car and found herself short of breath and wanting to cry.

3. The appellant again referred to the opinions of Dr Canaris and Dr Boulton.

4. The appellant submitted on the totality of the evidence that she has a moderate impairment.

5. Again, the Appeal Panel considers the Medical Assessor was entitled to rate the appellant’s impairment in social functioning based on the history he obtained. That history supports his rating of the appellant’s impairment being Class 2 for the reasons he provided. It is apparent from the MAC that the appellant is able to maintain a very good relationship with her partner and also with her siblings and mother. There was evidence of strain in 2018 between the appellant and her partner, but history the Medical Assessor obtained reveals that their relationship has been strong for some time. The Medical Assessor took account of the appellant having lost some friends due to her injury. The Appeal Panel again considers that these matters correlate with an impairment described by the descriptors for a Class 2 impairment. They do not correlate with a Class 3 impairment because her relationships with her partner and family are not presently severely strained. She is able to look after her children.

Concentration, persistence and pace

1. The Medical Assessor provided the following reasons in the PIRS rating form for rating the appellant’s impairment in CPP as Class 2:

   “She appears to have lost some aspects of her ability to focus and read, particularly when she was depressed, and now tends to multi-task and distract herself with phones, internet searches and games whilst watching TV. She was a detailed high-context speaker with excellent focus and concentration in the assessment, markedly different to that seen by the others.”

2. The appellant contended that the correct rating is Class 3.

3. The examples provided in Table 11.5 of the Guidelines for a Class 3 and Class 4 impairment in CPP are:

Class 2	Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3	Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.

1. The appellant noted that the Medical Assessor recorded in the MAC that her “description of the temporal course did not quite match that of the contemporaneous documents although given the complexity of the case and the passage of time, this is understandable”. The appellant also highlighted that the Medical Assessor noted that she had downloaded a game to play because she did not feel as sharp as she previously did. The appellant highlighted that the Medical Assessor noted in the evening she watches television in a distracted fashion. She also noted that the Medical Assessor recorded that she no longer reads because over time she has found it difficult to focus and retain information.

2. The appellant again referred to parts of her statement relating to her ability to concentrate. She again referred to reports of Dr Canaris and Dr Boulton relating to their respective assessments of her impairment in concentration, persistence and pace.

3. Again, the Appeal Panel considers that the Medical Assessor was entitled to rate the appellant’s impairment in CPP based on the history he obtained. For the reasons the Medical Assessor provided the Appeal Panel considers that his rating is correct. The matters he has detailed in his reasons for rating the appellant as Class 2 are based on the history obtained and accord with an impairment described by the descriptors for a Class 2 impairment. Further, the Appeal Panel notes that during the 90 minutes over which the Medical Assessor examined the appellant he found that “she was a detailed, high-context historian” and that she was able to give a more extensive answer to his questions which were “logical” and “not discursive or chaotic”. He found she was always able to come back to the point of the question.

1. A Medical Assessor is required to have regard to all relevant factors relating to a worker’s capacity or conduct in a particular scale so as to evaluate the degree of seriousness of the worker’s function in the particular scale. Here, the Appeal Panel considers the Medical Assessor has done that. The fact that a particular aspect of the appellant’s conduct in CPP accords with a descriptor in a scale other than in which the Medical Assessor rated the appellant’s impairment does not mean the Medical Assessor’s rating is wrong. The Medical Assessor has highlighted what the appellant is able to do and how her activity in CPP is impaired. Whilst the appellant may have difficulty with reading, the Appeal Panel considers that overall, based on what the Medical Assessor has described, the Medical Assessor was correct to correlate the appellant’s impairment in CPP with the descriptors for a Class 2 impairment, and not by a Class 3 impairment. Consequently, the Appeal Panel discerns no error in the Medical Assessor’s rating of her impairment in CPP.

Employability

1. The Medical Assessor provided the following reason in the PIRS rating form for rating the appellant’s impairment in employability as Class 4:

   “She describes motivation, focus, pushing herself to do tasks within her physical limitations. While she could not return to working with aggressive children, even now were she not in such difficulties with pain, with such low levels of symptoms she would be able to work at least a few hours a week in a low demanding occupation were she also not having to raise young twins”

2. The appellant contended that the correct rating is Class 5.

3. The examples provided in Table 11.6 of the Guidelines for a Class 4 and Class 5 impairment in employability are:

Class 4	Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5	Totally impaired: Cannot work at all.

1. The appellant submitted that the reasons the Medical Assessor provided for rating her impairment as Class 4 in employability contradicted what he had elsewhere recorded in the MAC.

2. The appellant noted that the Medical Assessor had recorded she had deteriorated after she had an operation and that over the year of 2023, she had problems with her mood due to chronic pain. The appellant noted that the Medical Assessor recorded that she described getting aroused and anxious at times and having increased levels of anxiety that suggested panic and that during the day she could get worked up again with the prospect of never again working as a teacher. The appellant highlighted that the Medical Assessor noted that she can be anxious when driving and that she prefers not to go to large shopping malls. The appellant again referred to evidence of Dr Canaris and Dr Boulton. She also referred to her statement which she described not being able to return to work in any capacity due to anxiety, social isolation and fatigue.

3. The Medical Assessor reasoned that were the appellant not having to care for her young children, which the Appeal Panel notes are infants, she has the motivation and focus to perform tasks in a low demanding occupation for a few hours a week. The Medical Assessor noted that the appellant had difficulties with pain which would inhibit her capacity for employment but explained that the appellant’s low level of psychiatric symptoms provided her with the capacity to engage in some employment.

4. The Appeal Panel notes that within the body of the MAC the Medical Assessor noted that the appellant had given consideration to being a doula but had not progressed that.

5. The Medical Assessor also noted in the MAC that the appellant met the criteria for a diagnosis of posttraumatic stress disorder but through treatment that illness was now in partial remission. He also noted that the appellant’s mood symptoms and depression consequent upon her physical traumas had lifted. He noted that the appellant’s presentation at the time he assessed her was “remarkedly different to that described by clinicians up until the middle of last year”. He noted that the appellant no longer presented with the affect and emotional difficulties that those clinicians had identified.

6. In substance, what the Medical Assessor was describing was that the appellant has largely recovered from her injury.

7. The Appeal Panel considers that there is no error in the Medical Assessor coming to that conclusion for the reasons he has provided in the MAC. Given that, it is the case, in the Appeal Panel’s view, that the Medical Assessor was correct to conclude that the appellant’s psychiatric injury does not render her totally impaired in employment, as distinct from the symptoms she has from her physical injury.

8. Again, the Appeal Panel discerns no error in the Medical Assessor’s rating of the appellant’s impairment in employability.

9. The Appeal Panel also considers that the Medical Assessor based his assessment of the appellant’s impairment from the correct criteria, given that he utilised the criteria specified in Chapter 11 of the Guidelines.

10. For these reasons, the Appeal Panel has determined that the MAC issued on 1 March 2024 should be confirmed.