Cunningham v Australia and New Zealand Banking Group Ltd

[2024] NSWPICMP 636

DETERMINATION OF APPEAL PANEL
CITATION:	Cunningham v Australia and New Zealand Banking Group Ltd [2024] NSWPICMP 636
APPELLANT:	Daniel Cunningham
RESPONDENT:	Australia & New Zealand Banking Group Limited
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	9 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant worker appealed assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under two categories of the psychiatric impairment rating scale (PIRS), namely travel and social functioning; Held – no error found; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 9 April 2024 Mr Daniel Cunningham (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, who issued a Medical Assessment Certificate (MAC) on 11 March 2024.

2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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 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.

4. Rule 128 of 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 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) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

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. In the formal part of the pleadings of the Application to Appeal, the appellant did not seek that he undergo a re-examination by a Medical Assessor who is also a member of the Appeal Panel. In the substance of the appellant’s submissions he submitted that the Appeal Panel should revoke the MAC and issue a new MAC certifying 19% whole person impairment (WPI) or alternatively the appeal panel should revoke the MAC and re-examine the appellant. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel did not find error and absent a finding of error the Appeal Panel has no power to require the worker undergo a re-examination, see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary 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. 

Medical Assessment Certificate

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

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

2. The Appeal Panel held a preliminary conference.

3. Subsequent to the preliminary conference and without being directed by the Appeal Panel to do so, the appellant filed further written submissions seeking to admit further evidence in the form of a statement from the appellant dated 21 June 2024. The statement is dated some three and half months after the medical assessment certificate issued on 11 March 2024.  The matters deposed to relate to events subsequent to the medical assessment. The appellant did not seek to amend the grounds of appeal and the appeal is being dealt with as an appeal that the Medical Assessor has made a demonstrable error or made an assessment on the basis of incorrect criteria. It is not an appeal based upon “deterioration of the worker’s condition that results in an increase in the permanent impairment” and indeed there is no expert opinion to support such a ground, which in any event is not before the Appeal Panel. The respondent objected to the fresh evidence in submissions filed in response. As the evidence relates to matters which occurred subsequent to the medical assessment the subject of appeal, they cannot be relevant to the disposition of an appeal based on the grounds of demonstrable error and incorrect criteria and the Appeal Panel declines to admit the further evidence.

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. 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.

3. The matter was referred to the Medical Assessor by the Commission as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):

   ·        the degree of permanent impairment of the worker as a result of an injury (s319(c))

   ·        whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))

   ·        whether impairment is permanent (s319(f))

   ·        whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))

   ·    Date of injury: 24 April 2018 (deemed)

   ·    Body parts/systems referred: Psychiatric/psychological

   ·    Method of assessment: Whole Person Impairment”

4. The Medical Assessor issued a MAC as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
Psychiatric	24 April 2018 (deemed)	Chap 11, p 54-60	n/a	15%	1/10	14%
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					14%

1. The assessment of impairment was based on the Medical Assessor’s findings as per the psychiatric impairment rating scale (PIRS) as follows:

“Table 11.8: PIRS Rating Form

Name	Daniel Cunningham	Claim reference number	W5524/23
DOB	xxxx	Age at time of injury	40
Date of Injury	24 April 2018 (deemed)	Occupation at time of injury	Business banking manager
Date of Assessment	6 March 2024	Marital Status before injury	Married

Psychiatric diagnoses	Persistent depressive disorder with an ongoing major depressive episode and anxious distress
Alcohol use disorder
Psychiatric treatment	Medication		Psychotherapy
Is impairment permanent?	Yes

PIRS Category			Class		Reason for Decision
Self-care and personal hygiene			3		Mr Cunningham depends on Christie for support and would function less well without it. She does the housework, including cleaning and meal preparation. He neglects showering and dental hygiene for several days until encouraged and prompted by Christie. He is eating a poor-quality diet and drinking excessively, leading to weight gain and a risk to his health.
Social and recreational activities			3		He has limited social activities but goes to the beach with Christie. He frequently visits a local café with her for breakfast or lunch. They recently attended two concerts, but he left halfway through the last concert. He has reciprocated visits with a friend on the Gold Coast. He recently attended an aunt’s 80th birthday at a restaurant but kept to himself. He wouldn’t attend these events without Christie as a support person.
Travel			1		He can travel alone locally and frequently travels between Carey Bay and the Gold Coast. He functions within the normal variation in the general population.
Social functioning			2		His marriage broke down because of his work injury, and he became estranged from his ex-wife, children, and sister. However, he has been able to forge a new intimate relationship and maintain it for several years. His relationship is now stable, caring, and supportive. He is reconciling with one of his children. He has maintained two close friends but lost others because of his social disengagement.
Concentration, persistence and pace			3		He doesn’t read. He often watches movies, often repeats of Top Gun, which he is very familiar with. He may lose focus while watching a new movie. At work, he makes many mistakes because of inattention and memory deficits. He struggled with details and event sequences during my 90-minute assessment.
Employability			3		He works in his own business for about 20 hours a week. He describes the work as “basic and mundane,” and he takes direction from Christie. He has lost confidence and trust in others. He is irritable and prone to angry outbursts, limiting his ability to work with others.
Score										Median Class
1	2	3		3		3	3		=  3
Aggregate Score Impairment    15								Total			15%”

1. The worker appealed.

2. There was a one-tenth deduction made by the Medical Assessor under s 323 to take into account any pre-existing injury, condition or abnormality. This aspect was not the subject of any complaint on appeal.

3. There was no allowance for treatment effect and this aspect was not the subject of complaint on appeal.

4. The appeal concerns the assessments made under two of the PIRS categories being travel and social functioning.

5. In summary, the appellant submitted on appeal that the Medical Assessor made a demonstrable error and/or assessment on the basis of incorrect criteria for reasons which include the following:

   (a)    by rating travel as Class 1 when he should have rated a Class 2, and

   (b)    by rating a class 2 for social functioning when he should have rated a Class 3.

6. In summary the respondent employer Australia & New Zealand Banking Group Limited (the respondent) submitted on appeal that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.

7. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.

8. The Medical Assessor took a history as follows: (emphasis in original)

   “Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

   Mr Cunningham commenced working with ANZ as a business banking manager in 2014. Before starting work, he was warned that he would work with two “difficult” women. From the start, he experienced bullying, harassment and a lack of cooperation in the workplace. His manager failed to deal with issues that arose. Mr Cunningham tried to bring concerns about inappropriate and fraudulent practices to the attention of senior management but was ignored. He became stressed, and his mental health started to decline; he sought help in 2016.

   ·    Present treatment:

   Treating clinicians:

   o   general practitioner Dr Kehinde Olatunbosun (Dr Ola)

   o   psychologist Laura (last name unknown)

   o   psychiatrist – nil

   Psychiatric medication:

   o   venlafaxine XR 150 mg daily

   He started seeing a psychologist, Mr John Groth, in August 2016. He transferred care to Laura about 12 months ago. He now sees her every 2 to 4 weeks, and, by his description, she is offering supportive psychotherapy.

   He commenced seeing a psychiatrist, Dr Narayani Nair, in 2016 but was told that
   Dr Nair had nothing further to offer and hadn’t seen him for about three years.

   Mr Cunningham has been taken to hospital on three occasions and for two of these sent home within a few hours. Two or three years ago, he spent 12-14 days in the mental health unit at Maitland Hospital.

   ·    Present symptoms:

   Mr Cunningham usually has a low mood, without diurnal variation, and is reactive to circumstances. He is irritable and has angry outbursts quickly triggered by reminders of his work at ANZ. For example, he lashed out explosively a couple of weeks ago when he learned that ANC had acquired Suncorp. Mr Cunningham suffered injuries to his hand and foot and believes that he has fractured bones in both. He showed me bruising and swelling to demonstrate this.

   He has a reduced capacity to experience positive emotions but suggested that physical intimacy gives him pleasure, although his libido is impaired.

   He has a profound sense of having suffered injustice, leading to intrusive thoughts and severe anxiety. He has panic attacks a couple of times each month.

   He has subjective problems with concentration, attention and memory.

   He has self-harmed as mentioned and two years ago he superficially cut his wrists and emailed photographs of these to his former employer. He denied thoughts of suicide.

   His sleep hygiene is irregular, with initial and middle insomnia and frequent distressing dreams.

   His appetite varies – he either skips meals or binges on poor-quality foods.

   I was unable to elicit any history suggestive of bipolar disorder. The account of his having had a manic episode previously is unconvincing.

   ·    Details of any previous or subsequent accidents, injuries or conditions:

   Mr Cunningham denied any pre-existing mental health problems or any subsequent accidents, injuries or conditions. He expressed concern about contemporaneous general practice notes and insisted that he had been prescribed Effexor (venlafaxine) off-label for erectile dysfunction or premature ejaculation. He stated that his general practitioner had recorded depression to justify the prescription. He also argued that, even if there had been a depression, it had had no negative impact on his social or vocational function.

   Statement, Daniel Cunningham, 7 June 2022

   Mr Cunningham consulted his doctor for ‘involuntary movements and vocalisation’ in 2010 and was referred to a neurologist. This persisted, and he was commenced on haloperidol in 2012.

   In November of that year, he consulted his GP with erectile dysfunction.
   Mr Cunningham discussed stressors such as ‘paying out one house and borrowing more money to build another house.’ The GP prescribed venlafaxine 75 mg daily.

   Mr Cunningham again consulted his GP in 2013 and was given a further script for venlafaxine, again ostensibly for erectile dysfunction. He was later prescribed Cialis (tadalafil), a drug specifically indicated for this condition.

   Comment: Venlafaxine is not a treatment for erectile dysfunction and is likely to cause sexual difficulties rather than prevent them. Neurologist Dr Keith Burton, 16 August 2010, wrote that he considered that Mr Cunningham probably had Tourette syndrome.

   On 21 June 2015, Mr Cunningham threw an object at an RTA mobile speed camera and was interviewed by the police. Dr Olatunbosun provided him with a letter in support stating that Mr Cunningham suffered from ‘anxiety and depression.’

   General practice notes, Dr Kehinde Olatunbosun and Dr Sivateha Mukkamala

   21 November 2012 – ‘worried about dad at the moment and feeling he is depressed and not going anywhere at the moment. Reason for contact: Depression – Major.’ Prescribed venlafaxine.

   16 August 2013 – ‘Daniel want his Effexor dose increase as he is a bit depressed but not suicidal. [sic] Reason for contact: Depression – Major.’ Further prescription for venlafaxine.

   16 October 2014 – ‘mood is good, no suicidal ideation.’ Prescriptions provided for venlafaxine and mirtazapine.

   13 July 2015 –‘Bit stress open with finance at this stage. Not suicidal. No other complaint. Reason for contact: depression – Major.’ Prescriptions for venlafaxine and mirtazapine.

   6 August 2015 –:

   ‘Mr Daniel Cunningham IS RECEIVING MEDICAL TREATMENT IN THIS PRACTICE FOR A KNOWN MENTAL ISSUE – DEPRESSION AND ANXIETY PROBLEM. HE CLAIMED HE STOPPED USING HIS MEDICATION BECAUSE THE MEDICATION GOT FINISHED AND DID NOT HAVE TIME TO COME TO THE SURGERY TO REFILL HIS SCRIPTS IN EARLY JUNE 2015 AND HE SAID ON ONE OCCASION, HE RELAPSED AND LOST CONTROL OF HIS BEHAVIOUR WHICH LED TO THE INCIDENT ON 21 JUNE, 2015.

   DANIEL HAS BEEN BACK ON HIS ANTIDEPRESSANT MEDICATION SINCE THEN AND NO ISSUES SINCE THEN.

   THE MENTAL HEALTH ISSUE HAS BEEN ONGOING FOR SOME YEARS NOW AND I HAVE NOT KNOWN DANIEL TO HAVE ANY BEHAVIOURAL ISSUE AS A BANKER. Reason for contact: Depression – Major.’ (Emphasis Dr Olutunbosun’s)

   Prescriptions were provided for venlafaxine and mirtazapine.

   It is not possible to ignore the contemporaneous medical records that provide a clear account of mood and anxiety problems, including a diagnosis of major depression, from 2012. Venlafaxine would be an unusual choice of medication for erectile dysfunction as it is more likely to cause sexual problems than cure them. It may have minor benefits in premature ejaculation, but there are better medication choices available.
   Mr Cunningham continued on medication through to starting work at ANZ, except for a brief and unsuccessful attempt to withdraw the medication. I consider that
   Mr Cunningham had a pre-existing major depression and an anxiety disorder that the adverse work circumstances have exacerbated. I accept that he was functioning well when he started with ANZ.

   ·    General health:

   Mr Cunningham has hypertension, for which he takes olmesartan.

   There is a described history of tics and abnormal movements, and Mr Cunningham saw a neurologist in 2010 who considered the possibility of Tourette’s syndrome.
   Mr Cunningham described minor symptoms that no longer trouble him and disputed the diagnosis.

   His current weight is 90 kg (up from a putative 70 kg in 2014). At 178 cm, his BMI is 28.4, marginally overweight. I note that Mr Cunningham was 83 kg in June 2019, as measured by Dr Olatunbosun.

   Mr Cunningham is a non-smoker and drinks alcohol to excess, although he was imprecise about quantities. He said that some days he may not drink at all but other days may have up to 20 standard drinks. He prefers canned mixed vodka drinks but often adds extra vodka to these. He agreed that his drinking was a problem and that his partner thought so also. He said that he had been a “social drinker” before starting with ANZ.

   ·    Work history, including previous work history if relevant:

   Mr Cunningham was raised in Cessnock with a younger sister. His father was a coal miner, and his mother attended to home duties. He recalled a loving and safe family environment. He completed high school in 1995.

   From 1998 until 2014, he worked for the CBA and earned a Diploma in Finance and Mortgage Brokering in 2014.

   He started work with ANZ in 2014. He left them in August 2018 and has not worked in banking since.

   He was married to Brooke for 25 years, and they have three children, aged 24, 21 and 14, who live with their mother in Cessnock. The marriage failed during the Covid pandemic. Mr Cunningham attributes the relationship breakdown to his work injury. He said, ‘I was just asleep on the lounge, depressed… I would stay on the lounge all day.’ His wife could not cope and suggested that he go and live in a rental apartment they owned on the Gold Coast.

   After going to Queensland, he sometimes helped his property agent with the setting up for inspections. While doing this, he met Christie, who worked for the agent. They formed a relationship and have been together since.

   They started a cleaning business together that failed because Mr Cunningham wasn’t working sufficiently well.

   They moved to Carey Bay where they purchased an engraving business that they attend full-time. Christie does most of the front office customer service and manages the financial aspects of the business. Mr Cunningham is at the business full-time but said he works about four hours daily. He often makes mistakes and mentioned that the business was declining, losing about half its customers. They are planning a full-time relocation to the Gold Coast without clear work plans.

   ·    Social activities/ADL:

   Mr Cunningham lives with his current partner, Christie. They split their time between Carey Bay and the Gold Coast. Christie has an 18-year-old daughter and 16-year-old son. The children live with them when they are on the Gold Coast and stay with their father when Mr Cunningham and Christie are at Carey Bay.

   Mr Cunningham has irregular sleep habits, sometimes sleeping during the day. Christie and her daughter do the housework, including meal preparation. Mr Cunningham said, “I just follow Christie around.” He will go out shopping with her but usually only stays in the shop for 10 minutes. He will wait in the car if she has an outing, such as a yoga class.

   He goes without showering or brushing his teeth for several days until Christie persuades him. He has his haircut at a barber every couple of months.

   He often misses meals or eats excessively of a poor-quality diet.

   Before becoming unwell, he had an active social life with sporting activities such as hockey and squash, attending his children’s activities and social barbecues.

   Now, he occasionally goes to the beach with Christie, and they often go to a nearby café for breakfast or lunch. They have attended two concerts at Casino, the most recent a Queen tribute concert 3 to 4 months ago. Mr Cunningham left halfway through. He has one friend on the Gold Coast, a man in his 70s, and they visit each other. He has another friend in Newcastle with whom he keeps in touch.

   Mr Cunningham can drive alone locally. He regularly travels between Carey Bay and the Gold Coast, a more than 700 km journey, sharing the driving. While he is sometimes inattentive when driving, he manages with, at most, a minor deficit attributable to the normal variation in the general population.

   He described a caring and supportive relationship with Christie. He gets along well with her two children, his parents and two friends. His relationship breakup with Brooke was acrimonious, and he is estranged from her and two of his three children. He has had recent contact with one son, and they communicate occasionally. He has fallen out with his sister – he said, ‘I don’t like her; she didn’t believe me when this happened.’ He has lost other friends because of his social disengagement. In general terms, he said, ‘I don’t like people.’

   Mr Cunningham doesn’t read but frequently watches movies. He enjoys Top Gun – Maverick and watches it two or three times weekly. He may watch new movies but cannot always engage with them. He has no hobbies or projects.”

1. The Medical Assessor recorded his findings on mental state examination as follows:

   “I assess Mr Cunningham in his home by video link, with his partner, Christie, in attendance.

   He presented as an overweight man, casually attired in a dark T-shirt, clean-shaven with short hair. He was cooperative and somewhat intense during the interview. He briefly lost composure once near the interview's end but recovered quickly. He expressed considerable anger about his circumstances, stating that he would like ‘vengeance’ and that if he came across his ex-manager, he would like to ‘smash his face in.’ Pressed on this, Mr Cunningham said that these were his feelings but that he would not actually be violent and act on these thoughts.

   He described his low mood and anxiety; his affect was restricted, consistent with his stated mood and congruent with the interview content.

   There was no disorder of thought-form or perception.

   He was imprecise about details and event sequences, sometimes turning to Christie for reassurance or information.

   He has a sense of being treated unjustly and talked of ‘vengeance’. He insisted that he would not hurt anyone even though he felt wronged.

   When asked at the end of the interview if he had anything else to add, he agreed that we had covered everything necessary and referred to Christie. She emphasised that she had now taken on caring for Mr Cunningham.”

2. The Medical Assessor made the following diagnosis:

   “summary of injuries and diagnoses:

   My diagnoses rely on the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.

   o   persistent depressive disorder with an ongoing major depressive episode and anxious distress

   o   alcohol use disorder

   Mr Cunningham has all nine symptoms described in the DSM-5 for a major depressive disorder. His symptoms open present from more than two years, warranting a diagnosis of persistent depression. He has marked anxiety symptoms and may have an underlying generalised anxiety disorder. He is drinking in a harmful manner, warranting a diagnosis of an alcohol use disorder.

   ·    consistency of presentation

   Mr Cunningham emphatically denied having had a mental health disorder before starting work at ANZ. Contemporaneous medical records refute this. Venlafaxine would be an unusual and ineffective treatment for erectile dysfunction (this diagnosis is likely correct given that Mr Cunningham was later prescribed Cialis (tadalafil)). For
   Mr Cunningham’s account to be accurate, his general practitioner would have had to falsify his records over several years, with no compelling reason to do so.”

3. The Medical Assessor had regard to the other evidence that was before him and made brief comment as follows:

   “My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:

   Report of Dr Saji Damodaran, IME psychiatrist, 17 February 2023

   Dr Damodaran noted a history of ‘mild depression’ in 2012 and 2013. He considered that Mr Cunningham is now ‘suffering from major depressive disorder along with anxiety disorder not otherwise specified as he has a combination of generalised anxiety symptoms, panic symptoms and also social anxiety symptoms.’ Dr Damodaran determined a 17% WPI (classes 3, 3, 2, 3, 3 and 2). He made no deduction for any pre-existing condition, reasoning that “even though he had some depressive symptoms in the past, [Mr Cunningham] did not have any impairment in his functioning before commencement of employment.’

   Report Dr Richa Rastogi, IME psychiatrist, 28 March 2019

   Dr Rastogi diagnosed Mr Cunningham with a major depressive disorder with anxiety. She determined a 17% WPI (classes 2, 3, 2, 2, 3 and 4) before adding 1% WPI for the treatment effect, arriving at a final 18% WPI. She noted, ‘Your client did not suffer from a pre-existing psychological condition.’

   Report Dr Graham Vickery, IME psychiatrist, 25 June 2018

   Dr Vickery noted a ‘pre-existing Generalised Anxiety Disorder [which was aggravated] when he went on holidays to Thailand and on his return he underwent performance review and suspension.’ Dr Vickery maintained a diagnosis of generalised anxiety disorder.

   Report Dr Graham Vickery, IME psychiatrist, 19 June 2019

   Dr Vickery quoted a Procare report:

   ‘Brooke reports Daniel has a history of unstable/irritable mood, pressure of speech, increased distractibility, overspending and impulsive behaviour however she denied that these episodes last for days or longer. She reports that Daniel has had long-standing difficulties with depressed mood and comorbid anxiety.’

   On this basis, Dr Vickery offered a diagnosis of ‘Bipolar Affective Disorder.’ He also refers to a ‘pre-existing episode of Major Depression in 2015’ Dr Vickery considered that Mr Cunningham had not reached maximum medical improvement but noted, ‘It is my opinion there is a 50% deduction for non-work-related injuries.’

   Report Dr John Albert Roberts, IME psychiatrist, 30 May 2023

   Dr Roberts noted:

   ‘When questioned as to whether [Mr Cunningham] had ever attended upon a psychologist, psychiatrist, counsellor or general practitioner for the treatment of any nervous condition and if so when for the first time, Mr Cunningham had made reference to 2017; that he had no ‘issues’ prior to that date.’

   Regarding alcohol consumption, Dr Roberts recorded:

   ‘He referred to consuming between one and 10 drinks per day, he referred to his drink preference being vodka; that 700 mills may lasting two days but that he did not necessarily consume that much every day, all day.’

   Dr Roberts diagnosed Mr Cunningham with a major depressive disorder and substance use disorder related to alcohol. He noted that this was ‘an aggravation of a pre-existing condition.’

   Report Dr John Albert Roberts, IME psychiatrist, 17 October 2023

   Dr Robert’s reviewed various workers and concluded, ‘based on my perusal I consider that Mr Daniel Cunningham is an unreliable historian, who statements cannot be accepted as valid.’ Further, ‘I consider that the predominant cause of the applicant’s condition relates to pre-existing congenital non-work-related circumstances.’

   Comments:

   Dr Rastogi found a mild impairment in self-care and personal hygiene, whereas
   Dr Damodaran and I thought it moderate. Dr Rastogi noted:

   ‘Mild impairment as needs prompting with meals and dressing due to a motivation and poor energy levels.’

   Mr Cunningham is dependent on his partner. He does no housework and needs prompting to attend to personal hygiene. He drinks excessively and consumes a poor-quality diet, leading to weight gain. His functioning deteriorated without Christie’s support.

   Drs Damodaran and Rastogi found a mild impairment in travel, whereas I consider that Mr Cunningham functions within the normal variation in the general population.
   Dr Damodaran argued:

   ‘With regard to travel, Mr Cunningham can travel without a support person though only to familiar places, such as the local shops or visiting the doctor. Otherwise, he does not really go out much.’

   And Dr Rastogi:

   ‘Mild Impairment as will go short distances and to familiar places without support, will not drive long distances due to poor concentration and anxiety.’ 

   Mr Cunnngham frequently travels to and from the Gold Coast, a more than 700 km journey each way.

   Dr Damodaran found a moderate impairment in social functioning, whereas Dr Rastogi and I considered it mild. Dr Damodaran:

   ‘There is significant impairment in the social functioning. He is separated from his wife. He is with his current partner. According to him, the relationship is quite rocky and his partner might leave him tomorrow. He acknowledges that there is a lot of disagreement, arguments, lots of stress and the relationship is severely strained. He also is not talking to his parents as according to him, they have taken the side of his ex-wife. Mr Cunningham has not seen his children as according to him, they are also blaming him.’

   Mr Cunningham’s marriage failed, and he is now estranged from his wife and two of his three children. He is also estranged from his sister. He has lost most friends because of his social disengagement. He has been able to form a new relationship and maintain it for several years. He described the relationship as having some strain but it is generally caring and supportive. He said there was no talk of separation. He is getting along now with his parents and has been able to commence a reconciliation with his son. Assessing Mr Cunningham as he presents now, his impairment is mild.

   Dr Damodaran found a mild impairment and employability, whereas Dr Rastogi considered severe and I thought it moderate. Dr Damodaran argued:

   ‘Mr Cunningham is currently self-employed. He is funding a business though he is only doing the engraving in the back of the shop. The shop is run by his partner. He has plenty of work to do. He does not know whether he ever does a full-time role. He can work sometimes up to full-time hours and at other times he may work less than full-time hours. This requires very little social engagement. He does not trust other people. He has a Class 2 impairment in the area of employment.’

   And Dr Rastogi:

   ‘Severe Impairment as pace is erratic and reduced.’

   Although Mr Cunningham is at work for the whole day, he manages about four hours a day. Because he is self-employed, he doesn’t need to meet an employer's expectations. Christie supports him in his role and manages the office. Because of his impairment, he has lost a significant number of customers.”

4. The appellant complained on appeal about the assessments under the PIRS in respect of two categories namely travel and social functioning.

5. In respect of Travel, Table 11.3 of the Guides provides as follows:

   Table 11.3: Psychiatric impairment rating scale – travel

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2	Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3	Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
Class 4	Severe impairment: finds it extremely uncomfortable to leave own residence even with trusted person.
Class 5	Totally impaired: may require two or more persons to supervise when travelling.

1. The Medical assessor Class 1 (no or minor deficit attributable to normal variation in the population) with the following reasoning:

   “He can travel alone locally and frequently travels between Carey Bay and the Gold Coast. He functions within the normal variation in the general population.”

2. The appellant submitted that a Class 2 or mild impairment should have been assessed.

3. The Medical Assessor noted in the MAC after taking a careful history about travel from the appellant:

   “Mr Cunningham can drive alone locally. He regularly travels between Carey Bay and the Gold Coast, a more than 700 km journey, sharing the driving. While he is sometimes inattentive when driving, he manages with, at most, a minor deficit attributable to the normal variation in the general population.”

4. The Medical Assessor was cognisant that both IMEs had found a mild impairment for travel but clearly explained why his opinion differed. The Medical Assessor is required to make an independent assessment using his own clinical judgment. This is exactly what the Medical Assessor has done here. He explained as follows:

   “Drs Damodaran and Rastogi found a mild impairment in travel, whereas I consider that Mr Cunningham functions within the normal variation in the general population.
   Dr Damodaran argued:

   ‘With regard to travel, Mr Cunningham can travel without a support person though only to familiar places, such as the local shops or visiting the doctor. Otherwise, he does not really go out much.’

   And Dr Rastogi:

   ‘Mild Impairment as will go short distances and to familiar places without support, will not drive long distances due to poor concentration and anxiety.’ 

   Mr Cunnngham frequently travels to and from the Gold Coast, a more than 700 km journey each way.”

5. The Medical Assessor having taken a clear and careful history from the appellant, has not relied on self report alone, has had regard to the other expert opinion and explained why his opinion differed. Sharing the driving on a 700km car journey is not indicative of a need for a ‘support person’ but rather a safe approach to driving long distances taken by much of the population. Having made an assessment on the day of examination that correctly accords with the criteria for a Class 1 rating in the guidelines, the Appeal Panel can discern no error.

6. In respect of Social Functioning, Table 11.4 of the Guides provides as follows:

   Table 11.4: Psychiatric impairment rating scale – social functioning

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 separation or domestic violence. Spouse, relatives or community services looking after children.
Class 4	Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5	Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.

1. The Medical Assessor assessed Class 2 with the following reasoning:

   “His marriage broke down because of his work injury, and he became estranged from his ex-wife, children, and sister. However, he has been able to forge a new intimate relationship and maintain it for several years. His relationship is now stable, caring, and supportive. He is reconciling with one of his children. He has maintained two close friends but lost others because of his social disengagement.”

2. The appellant submitted that the Medical Assessor should have assessed a moderate impairment at Class 3.  The appellant submitted that the Medical Assessor incorrectly applied the guidelines in table 11.4 for social functioning and that he made a demonstrable error by “failing to accurately take into account all the evidence of the appellant’s relationships with his partner and children”. Although at one point the appellant refers to the assessment for social and recreational activities rather than social functioning the appeal panel reads this as having been referred to in error because it is clear from the balance of the submissions that the appellant is appealing social functioning and not social and recreational activities where the Medical Assessor assessed a Class 3 consistent with the opinion of the IME qualified on behalf of the appellant.

3. The appellant submitted that the evidence shows the relationship with Christie to be severely strained including one incident where the police were called which could be characterised as an incident of domestic violence.

4. The appellant refers to an incident in May 2021 when the appellant tried to end the relationship causing Christie to take the wheel in an attempt to crash the car.

5. The appellant submitted:

   “these relationships remain severely strained , despite periods of stability, and as such, the appellant function in the category of social function is at least moderately impaired. It is therefore respectfully submitted that this is not consistent with a rating of Class II for social functioning.”

6. The IME qualified to provide an opinion on behalf of the appellant Dr Damodaran had assessed a Class 3 moderate impairment for social functioning. The IME Dr Rastogi qualified to provide an opinion on behalf of the respondent had assessed a mild impairment at Class 2 for social functioning.

7. The Medical Assessor was clearly cognisant of the differing view of Dr Damodaran and he notes:

   “Dr Damodaran found a moderate impairment in social functioning, whereas Dr Rastogi and I considered it mild. Dr Damodaran:

   ‘There is significant impairment in the social functioning. He is separated from his wife. He is with his current partner. According to him, the relationship is quite rocky and his partner might leave him tomorrow. He acknowledges that there is a lot of disagreement, arguments, lots of stress and the relationship is severely strained. He also is not talking to his parents as according to him, they have taken the side of his ex-wife.
   Mr Cunningham has not seen his children as according to him, they are also blaming him.”

8. The Medical Assessor has to make his own independent assessment on the day of examination using his clinical expertise. He very clearly explains what he has taken into account and that the assessment is based on the presentation on the day of assessment as follows:

   “Mr Cunningham’s marriage failed, and he is now estranged from his wife and two of his three children. He is also estranged from his sister. He has lost most friends because of his social disengagement. He has been able to form a new relationship and maintain it for several years. He described the relationship as having some strain but it is generally caring and supportive. He said there was no talk of separation. He is getting along now with his parents and has been able to commence a reconciliation with his son. Assessing Mr Cunningham as he presents now, his impairment is mild.”

9. The Medical Assessor as set out above took a very clear and careful history of the breakdown of the appellant’s marriage and the subsequent establishment of a relationship with his partner Christie. The Medical Assessor records:

   “He described a caring and supportive relationship with Christie. He gets along well with her two children, his parents and two friends. His relationship breakup with Brooke was acrimonious, and he is estranged from her and two of his three children. He has had recent contact with one son, and they communicate occasionally. He has fallen out with his sister – he said, ‘I don’t like her; she didn’t believe me when this happened.’ He has lost other friends because of his social disengagement. In general terms, he said, ‘don’t like people’.”

10. The Medical Assessor has to make an independent assessment of the appellant’s impairment on the day of examination, not based on self-report alone, or levels of impairment the appellant may have had some years prior, and before reconciliations with some family members, having due regard to the other evidence before him and applying his clinical expertise. He has clearly done that here and the assessment of a mild impairment for social functioning is based upon the application of correct criteria as per the guidelines on the day of examination.

11. The Medical Assessor was required to make an independent assessment.

12. The Medical Assessor was cognisant of the arguments in his relationship with his new partner, Christie, but also noted the quality and duration of the relationship and that they maintained a business together, and at the time he assessed the appellant, were making future plans.

13. The Medical Assessor is entitled to rely on his findings on the day of examination to which he applies his clinical judgment having due regard to the other evidence and opinion before him. This has very clearly been done here with an adequate path of reasoning demonstrated by the Medical Assessor.

14. For these reasons, the Appeal Panel has determined that the MAC issued on 11 March 2024 should be confirmed.