Coote v Secretary, Department of Communities and Justice
[2022] NSWPICMP 400
•13 October 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Coote v Secretary, Department of Communities and Justice [2022] NSWPICMP 400 |
| APPELLANT: | Eric Charles Coote |
| RESPONDENT: | Secretary, Department of Communities and Justice |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Dr Michael Hong |
| MEDICAL ASSESSOR: | Dr Patrick Morris |
| DATE OF DECISION: | 13 October 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal against Medical Assessor’s (MA) finding of 8% for psychological injury; whether MA applied incorrect evaluations in three of the six Psychological Impairment Rating Scale categories; Held – nothing demonstrated in appellant’s submissions but a mere difference of opinion; Ferguson v State of New South Wales and Jenkins applied; path of reasoning clearly displayed; Chan and Wingfoot considered; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 May 2022 Eric Charles Coote, 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 21 April 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The Personal Injury Commission Rules 2021 (the PIC Rules), and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 14 December 2021 the delegate of the President referred this matter to the MA for an assessment of WPI caused by psychiatric/psychological disorder on 20 May 2019.
The appellant was employed by the Department of Corrective Services since he was 21 years old in 1990. During his career he has attended incidents of assault and suicide. He has been injured in the course of his duties and in 2008 was charged with murder (but later acquitted) over an incident that occurred in 2003.
He alleges bullying during his time at Dubbo.
His excess alcohol use, anxiety and disturbed mood commenced around 1994-1995.
He had some psychological support and briefly took medication when he was charged with murder.
On 20 May 2019 he was headbutted by a prisoner and an investigation was opened into his handling of the affair. This led to his decompensation and he finished work on 19 June 2019.
He was relocated to Forbes and engaged in a return-to-work program in a community corrections positions.
He worked for up to three days per week, sometimes from home and sometimes with offenders in the community.
He could not cope with this and was admitted to St John of God Hospital for 21 days.
The MA assessed 8% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant sought to be re-examined by a MA who is a member of the Appeal Panel. For the reasons given below, a re-examination would not have assisted the Panel’s determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
The MAC
The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which but have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant submitted that the MA had erred in the assessment of three of the categories in the Psychiatric Impairment Rating Scale (PIRS).
The MAC
The MA took a comprehensive and considered approach to the assessment.
Under social activities/Activities of Daily Living (ADLs) the MA said:[1]
[1] Appeal papers p 22.
“Mr Coote lives with his wife, Amy. They have three independent daughters, aged 18, 21 and 23 years. He has a 31-year-old son from his first marriage. He has 10-year-old and five-year old granddaughters.
He rises at 9 AM, makes coffee and cares for his dogs.
He owns a heritage house, which he has renovated extensively over the last 18 months.
His wife had a mining accident several years ago and has lost the use of her right arm.
Because of this, Mr Coote does most of the housework and cares for the lawns.
He attends to hygiene, showering and brushing his teeth daily, with rare misses.
He goes to a local hotel with Amy each Wednesday and Friday, where he meets up with his cousin and a small group of friends. He attends the RSL subbranch meeting once a month.
He sometimes goes fishing, having done so about twice in the last three months. He
purchased a boat for fishing but used it infrequently.
He enjoys camping. They went camping with his cousin two weeks ago and plan to go again next weekend.
He owns a motorcycle and is a member of a veterans motorcycle club but has not engaged with the motorcycle club in the last 4 to 5 months. He has travelled on his bike about 12,000 km in the previous three years.
He enjoys playing music and occasionally does so as a performer in public. He struggles to maintain commitment, sometimes playing for only a few minutes at home before giving up.
He described himself as ‘comfortable’ driving. However, he is prone to road rage. He travels independently locally, but on longer trips, Amy insists on driving because she fears that he is inattentive.
He remains close to Amy, his children and grandchildren. He has maintained strong
relationships with his cousin and one schoolmate. He sees other people in social contexts but does not regard them as close friends. He said that ‘many people have given up on me’ because of his social disengagement and refusal to answer calls. He no longer sees ex-work associates.
He no longer reads books, saying that he finds them boring.
He watches television regularly, including shows such as Yellowstone and Schitt's Creek. He likes to watch a movie most days and does so with reasonable understanding.”
In his summary the MA noted the exposure to repeated trauma in Mr Coote’s workplace and he results of the mental state examination which was of intrusive symptoms in the form of memories, unwanted thoughts, distressing dreams and reactions to triggers.
The MA said:[2]
“He has lost interest in participating in significant activities and feels detached from others.”
[2] Appeal papers p 24.
He said:[3]
“He continues to drink in a hazardous manner, despite clear advice to the contrary. He uses marijuana regularly.”
[3] Appeal papers p 24.
As to consistency of presentation the MA said:[4]
“I note differences in the history taken by the various IME psychiatrists, particularly relating to Mr Coote's impairment. I rely on the account I obtained when differences arose.”
[4] Appeal papers p 24.
In his reasons for assessment at [10] the MA considered the other opinions before him. He noted that the assessment by Dr Suman and Dr George were only three months apart and there was nothing to suggest that Mr Coote’s condition or impairment changed significantly. He said:
“I put the difference in impairment assessments down to differences of opinion and interpretation of the history”.
He acknowledged the different classifications made by Dr Suman for social and recreational activities and explained that contrary to Dr Suman’s assumptions Mr Coote described regular social outings and engagement with friends. He acknowledged that Dr Suman wrote:[5]
“Mr Coote told me that he has avoided activities attending any social events/engagements over the last 8 yrs. He said ‘I feel overwhelmed if asked to go to such events. I would make excuses’. If his wife was to insist, he would accompany her "I remain away from the crowd. People do ask me if I am alright".
[5] Appeal papers p 25.
Similarly the MA explained why he differed from Dr Suman in her classification of the social functioning category:[6]
“Dr Suman determined a moderate impairment for social functioning, while Dr George and I considered it mild. Dr Suman argued:
‘Mr Coote told me that his previous relationship ended due to his mental health stressors at the time. His current relationship had been quite strained. He feels his wife is supportive of him. He has lost touch with his friends ‘I avoid responding to them anymore’.
Mr Coote's previous relationship ended more than two decades ago and is not relevant to his current functioning. He remains close to his wife, and there is no violence in their relationship or discussion of separation.”
[6] Appeal papers p 26.
Again in the category of concentration, persistence and pace the MA explained his reasons for differing from Dr Suman. He said:
“Dr Suman also thought Mr Coote was moderately impaired in concentration, persistence and pace, whereas Dr George and I considered it mild. Dr Suman wrote:
‘Mr Coote told me that he has avoided any tasks requiring sustained concentration. He told me that he cannot concentrate for long. His wife has been helping him with tasks including his banking paperwork. He told me ‘I don't remember operating my bank account or dealing with other financial issues recently’.
This narrative is inconsistent with the extensive home renovations done by Mr Coote. He showed no signs of cognitive [difficulties] during my assessment today.”
APPELLANT’S SUBMISSIONS
As indicated, the appellant submitted that the MA had fallen into error in his assessment of three of the six categories of the PIRS set out in the guides as the guidelines by which psychological/psychiatric injuries are to be assessed.[7]
[7] Guides chapter 11.
The three areas were:
(a) Social and recreational activities;
(b) Social functioning, and
(c) Concentration, persistence and pace.
Social and recreational activities
The appellant submitted that rather than being allocated a class 2 value, the MA fell into error by not assessing him as class 3. We were referred to the reasons given by the MA as to his ADL Whilst accepting the accuracy of the MA’s report, it was submitted that the appellant made it known to the MA that his interaction is “mainly limited to seeing his cousin who is a close family member” and that he would not leave the house unless he was in the presence of his wife.
The appellant submitted that the cousin, who is a close relative, and the family members were in fact the appellant’s “support persons”.
The appellant emphasised that he “used to” enjoy the activities described by the MA but said “although not so much since his injuries”.
The appellant “submits” that he rarely goes fishing and that was noted when the MA recorded that he went fishing about twice in the last three months and that he purchased a boat for fishing but used it infrequently.
We were referred to the appellant’s statement of 29 November 2021 in which he said he had been fishing only three times in the last 15 months.
The appellant did not deny that he enjoys camping and fishing but submitted that he did so only with his cousin and occasionally with his wife and on the basis that no-one would know where they were going.
It was alleged that Mr Coote advised the MA that he had been on two camping trips in the last 15 months most recently two weeks prior to the assessment and that he had planned to go again, but this did not eventuate.
These matters, it was submitted “cannot considerably be considered” within the social events contemplated by class 2.
The limited boating, camping and fishing outings in remote locations could not, it was submitted, be considered in the context of social events.
As far as the appellant’s membership of Veterans Motorcycle Club was concerned, it was alleged that Mr Coote discussed with the MA that most meetings were in Canberra and his wife was required to drive them to the meetings. Although he had been a member of the Motorcycle Club since 2013 the appellant referred to the comment by the MA that he had not attended in the last four to five months.
The submission was also made that Mr Coote informed the MA that he had applied for six months leave of absence so that he did not have to continue to make excuses as to why he was not participating in the Club. This discussion, it was alleged, was recognised in the MAC when the MA said:
“He expects to take a further extended break.”
Mr Coote agreed that he told the MA that he participates in a small RSL subbranch meeting once a month. It was submitted that Mr Coote’s wife attended with him as a support person and he has become an affiliate member to facilitate that.
It was submitted that “the MA does not describe in the body of the MAC about the composition of these meetings, and only makes reference to it on page 4 of the MAC saying ‘he attends the RSL subbranch meeting once a month’.”
The appellant further alleged that he advised the MA that he goes to a small local rundown hotel with Amy but not every week on Wednesday and Friday as stated by the MA.
It was alleged that Mr Coote had said to the MA that the hotel had draws on a Wednesday and a Friday but he did not attend them every week, that he may attend each fortnight at most depending on his mood, and his motivation was so that he could sit in a corner and drink alcohol and not associate with anyone.
It was alleged that he never attended without Amy and only went as prompted by her.
The appellant acknowledged that a difference of opinion between doctors is not evidence of a demonstrable error but it was submitted that “the MA has substantially overstated the factual reality” and further that he had disregarded the fact that Mr Coote was always accompanied by Amy or by his cousin.
The appellant also challenged various assumptions made by both Dr George and the MA regarding Mr Coote’s musical performances.
The appellant referred to his statement and submitted that the MA made a “generalised assumption” of the appellant’s musical abilities.
Mr Coote submitted that, as confirmed by the MA, he would play only for a few minutes at home before giving up. This, it was submitted, was a solitary activity and did not involve the appellant leaving his home or socialising with others.
The appellant submitted that the MA had erred by placing him in a class 2 level because “he needed to have satisfied the criteria that the appellant can participate in occasional events without a support person.”
Social functioning
The appellant submitted the MA had erred when he said that Mr Coote had a “wide circle of acquaintances”. It was submitted “he largely only associates with his wife and his cousin and on the odd occasion with his children and grandchild and one close mate”.
This was evident in his statement, the appellant said.
Mr Coote submitted that in effect the MA was incorrect when he said that he remained close to his family members and one friend because the relationship with them was “quite strained”. Evidence for this proposition was said to be found in the reports of Dr George and Dr Suman.
The appellant challenged the MA’s comment that Mr Coote’s marriage that ended more than two decades ago was not relevant to his current functioning. The appellant sought to argue that the MA had erred in failing to give an opinion as to why the breakdown of Mr Coote’s marriage was not relevant to his social functioning.
Mr Coote alluded to his statement that the marriage breakdown was as a result of his excessive drinking and outbursts of temper resulting in his then wife leaving for Queensland.
Concentration persistence and pace
The appellant argued that the MA’s comments that Mr Coote had consistently worked on renovating his house over the last 18 months was inadequate, as he did not record the details that comprised the renovations. The reliance on Mr Coote’s engagement with respect to his extensive home renovations was misdirected, it was submitted.
Again there was an allegation that a conversation had occurred during the consultation that Mr Coote had said to the MA that the only renovations he took part in was the painting of the walls of various rooms throughout the house.
During the conversation Mr Coote alleged that he informed the MA that all renovations were undertaken by qualified tradesmen. The appellant submitted that he was not qualified to act as a tradesman, nor did he have the capacity to be able to follow a plan or instruction manual to build or put together anything.
The appellant also submitted that the MA was largely reliant on the example of the appellant’s concentration at the consultation. It was alleged that the MA should have taken into account the “long history of the appellant’s difficulties”.
The appellant admitted to some difficulty in comprehending the link between the finding that Mr Coote watched movies and documentaries on television and the MA’s conclusion that Mr Coote was able to focus on intellectually demanding tasks.
The MA had made a “generalised assumption” that any material on television presents every viewer with an intellectually demanding challenge, it was argued.
The appellant took issue with the MA’s comment that Mr Coote continued to drink in a hazardous manner despite clear advice to the contrary and that he used marijuana regularly.
It was submitted that the MA “has not taken this into account of his chronic shortcomings in this category either”. There was an impact on the appellant’s ability to follow complex instructions whilst under the influence of drugs and alcohol, the appellant declared.
Mr Coote appeared to reinforce the MA’s view by quoting from Dr George’s report that Mr Coote was able to “binge drink every second day” and that “he could go through a carton of 24 cans of beer and then look for a bottle of rum after that.”
This demonstrated an error on behalf of the MA in not finding a class 3 value for this category.
The appellant submitted that the errors identified would enable Mr Coote to reach the 15% threshold.
RESPONDENT’S SUBMISSIONS
Secretary, Department of Communities and Justice (the respondent) submitted that there was no error identified in the MAC.
We were referred to the MA’s comments on the opinions of the other experts that were before him. It was submitted that the MA gave detailed reasons disagreeing with Dr Suman and that the reasoning of the MA spoke for itself so there is no need to reproduce it.
We were referred to chapter 11.6 of the Guides as to the function of an MA, and the respondent emphasised that by chapter 1.6 the assessment was to be conduced as the appellant presented on the day of consultation, taking into account the relevant medical history and information.
The respondent submitted that “at a global level” there is no error identified in the history obtained by the MA which infected his reasoning. Consequently the appellant was simply disagreeing with the MA, and would rather have had him agree with Dr Suman.
The respondent pointed out an issue (also of concern to the Panel) that the assertions of fact made during submissions about what was said during the assessment consultation were not supported by evidence and should be disregarded.
We were referred to Fergusion v State of NSW[8] and Glen William Parker v Select Civil Pty Ltd[9].
[8] [2017] NSWSC 887.
[9] [2008] NSWSC 140.
“Simply put”, the respondent said “the MA did what he was entitled (in fact legally obliged) to do”.
The respondent submitted that overall the MA provided details and compelling reasons for his assessments and that the submissions raised IN effect no more than a difference of opinion on a subject about which reasonable minds might differ.
DISCUSSION
The PIRS
The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12 provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
The assessor is required to classify each category, and to apply the resulting scores as set out in chapter 11.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[10] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
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.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[11]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[10][2017] NSWSC 887.
[11] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[12] another case regarding assessment of psychiatric disorder, Harrison AsJ cited at [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[12] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
As we indicated whilst considering the respondent’s submissions, we are concerned that the appellant adopted the practice of making allegations of fact that had no evidentiary support. The appellant’s submissions were unfortunately punctuated by allegations that Mr Coote had made statements to the MA that had not been incorporated in the MA’s decision. These allegations are no more than unsubstantiated submissions. We note that no statement was made by the appellant asserting these factual disagreements.
Further, the appellant occasionally referred generally to the appellant’s statement and the reports of Drs Suman and George. We were not directed to any particular section of these documents and accordingly had some difficulty in following the submissions. We now turn to the individual categories under consideration.
Social and recreational activities
Table 11.2 of the Guides provides the following descriptors, relevantly:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
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.”
In his rating scale assessment of a mild impairment, the MA said:
“He enjoys fishing, boating, and camping, although he is less active and motivated. He belongs to a motorcycle club but has not attended in the last 4 to 5 months and expects to take a further extended break.
He goes to an RSL subbranch meeting once a month. Twice a week, he and Amy go to a local hotel where they drink and meet his cousin and other friends.”
There has been no suggestion that the MA has made any glaring errors and it was not submitted that he had made any significant factual error, rather the complaint was that he had not included the explanatory remarks that the appellant now asserts.
The appellant conceded that the MA noted the following:
· He enjoyed fishing, boating and camping, but was less active and motivated.
· He had been fishing about twice in the last three months, and that although he owned a boat for fishing, he used it infrequently.
· He was a member of a motorcycle club, but had not attended in the past four to five months. He expected to take a further extended break.
· He attended an RSL subbranch once a month.
· He attends a small local hotel with his wife twice a week where he meets his cousin.
The assessment in this category was erroneous, it was argued, because:
· The appellant had said in his statement that he had been fishing three times in the past 15 months.
· The appellant had been on two camping trips in the past 15 months, the most recent being two weeks prior to the assessment.
· The appellant has applied for a six month leave of absence from his motorcycle club and planned on resigning.
· He attends the RSL subbranch meeting once a month, but his wife, who is now an affiliate member, attends with him as a support person.
· He attends the hotel, but not every week, but may attend every fortnight.
The appellant submitted that the MA disregarded the fact that he attended these activities because his wife (or his cousin) were support persons. None of the distinguishing factors have been supported by evidence, but accepting for the sake of argument that these allegations are correct, they still do not overcome the onus of establishing that there has been any error in the assessment.
The MA has a wide discretion within the descriptors given for each class. On the one hand the appellant could be classed as having a mild impairment because he is undoubtedly involved in the activities described by the MA, who recorded that they have been curtailed by the appellant’s psychological condition. On the other hand, he could have considered a moderate impairment, as the appellant had a support person in the form of his wife and/ or his cousin. Conversely, his active involvement in the many interests he participates in by way of camping, fishing and visiting the RSL club and the hotel are indicative of a mild impairment. These cases underline the dicta in Ferguson, that the pre-eminence of the MA in his clinical observations cannot be underrated.
In Western Sydney Local Health District v Chan[13] Adams J said:
“In Wingfoot Australia Pty Ltd v Kocak the High Court considered the task of a Medical Panel responsible for determining a medical dispute …. The Medical Panel’s task in that case is analogous to the role of the AMS under the Act, insofar as both are responsible for determining medical disputes by forming medical opinions based on their own inquiries as well as reports provided by both parties to the dispute. The Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) held that –
‘[47] The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise’.”
(Authorities omitted).
[13] [2015] NSWSC 1968 at [13].
It is because the assessment process is so nuanced that an MA has to rely on his clinical judgment in all the circumstances before him. We find no error in the assessment of a mild impairment. The appellant has demonstrated an ability to engage in activities that are age, sex and culturally appropriate. He does belong to clubs and associations, and he is still actively involved in them, albeit not as actively as he was prior to his injury.
Social functioning
Table 11.4 provides:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
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 Even allowing for separation or domestic violence. Spouse, relatives or community services looking after children.”
The MA stated in his rating scale:
“He remains close to Amy, his children, grandchildren, cousin, and one old friend. He has a wide circle of acquaintances but has lost several friends because of his social disengagement.”
Again, the appellant has conceded that he had a circle of friends, as were described in his submissions. However, he sought to explain through his submissions that his circle of friends was not “wide.”
The appellant submitted that Mr Coote’s family relationships were strained, but there was no evidence to that effect. We were unable to find any evidentiary support in the opinions of Dr Suman and Dr George. As indicated, we were not assisted by the casualness of the submission.
We had some difficulty in understanding the submission that events of over 20 years ago were relevant to the assessment of Mr Coote’s current impairment, given that he has remarried and had three children since that time.
Concentration persistence and pace
Table 11.5 provides relevantly:
“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 (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The MA stated in his rating scale:
“He has some subjective difficulties with attention. However, he has consistently worked on renovating his house over the last 18 months in a manner that he says has more than doubled its value. He doesn't enjoy reading but watches documentaries, serials and movies on television with comprehension. There was no evidence of cognitive difficulties during my interview today.”
The appellant challenged the class 2 assessment on a the basis of a conversation of which there is again no evidence. Mr Coote was alleged to have given the MA precise details of how the renovations were carried out, which included a concession that Mr Coote in fact painted the walls of various rooms. Failure to recount that conversation caused the MA to misdirect himself, it was argued, but without a skerrick of evidence to support it. In any event, the admission that Mr Coote performed painting work on his house does not presage the descriptors in class 3, as was urged. An ability to paint several rooms implies a mild impairment when read in context with the MA’s other reasons.
These included Mr Coote’s capacity to watch television. The appellant argued that watching television did not mean that Mr Coote was able to focus on intellectually demanding tasks, which argument as a generality might have had some validity. However, the MA was careful to identify the type of television being watched by Mr Coote. Serials, documentaries and movies are a mode of television that does require some intellectual rigour, and we find no contradiction in the MA’s reasoning.
Also significant in the MA’s reasons was the fact that he saw no evidence of cognitive difficulties during the assessment. The “long history” of Mr Coote’s difficulties, whilst causing his present psychological injury is not a matter that related to this category. The interview elicited the picture of a man who, notwithstanding the trauma of his workplace and his experiences with the law, lives a full life with many interests and a role as a husband, father and grandfather. The disabilities and restrictions caused by his psychological condition were considered and noted by the MA.
We read with interest the appellant’s submissions regarding Mr Coote’s alcohol and marijuana consumption. If the appellant were correct that such consumption should be considered in this category, then all a claimant would have to do would be to abuse alcohol and drugs in order to be able to demonstrate that his/her concentration persistence and pace were worthy of a class 3 assessment. Clearly if a person is under the influence of alcohol or drugs, his/her concentration, persistence and pace would be affected. Such a contention only needs to be stated in order to be rejected.
Summary
The appeal must be rejected. The appellant has made a number of allegations which did no more than disagree with the findings that the impairment in each impugned category was at the mild level. These allegations lacked evidentiary support in any event, but allowing for the sake of argument that they were valid, they did not show any of the mischief referred to in Ferguson. They did not suggest:
· that the assessments were glaringly improbable;
· that the MA was unaware of significant factual matters;
· that a clear misunderstanding had been demonstrated, or
· that an unsupportable reasoning process had been employed by the MA.
We found the reasoning and discussion by the MA to be comprehensive, clearly thought out and carefully explained. The assessments made were open to him on the evidence, and the appellant has done no more, despite his disavowing such intention, than express a difference of opinion about which reasonable minds might differ.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 April 2022 should be confirmed.
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