Curry v Trustees of the Roman Catholic Church for the Diocese of Bathurst

DETERMINATION OF APPEAL PANEL
CITATION:	Curry v Trustees of the Roman Catholic Church for the Diocese of Bathurst [2023] NSWPICMP 429
APPELLANT:	Steven Curry
RESPONDENT:	Trustees of the Roman Catholic Church for the Diocese of Bathurst
APPEAL PANEL
MEMBER:	Brett Batchelor
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	5 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Appeal by worker against Medical Assessment Certificate (MAC) in which there was a finding by the Medical Assessor (MA) that the appellant had sustained 8% whole person impairment (WPI) as a result of psychological injury; the appellant claimed errors on the part of the MA in respect of self-care and personal hygiene, social functioning, concentration, persistence and pace, and employability; The Appeal Panel found error and the appellant was re-examined by a member of the Panel, whose report was accepted by the Panel; finding that the appellant had sustained 24% WPI as a result of the psychological injury from which he suffered; Held – MAC revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 13 January 2023 Steven Curry (the appellant/Mr Curry) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr, Yu-Tang Shen a Medical Assessor (the Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 15 December 2022.
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.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel (the Panel) has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
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.
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).

RELEVANT FACTUAL BACKGROUND

The appellant commenced work as the full-time gardening/maintenance person at MacKillop College in November 1998. He was the sole groundsman at the College as of December 2018, (the date of his first statement in the current proceedings).[1] Prior to the diagnosis of major depression that gave rise to the current proceedings, Mr Curry had experienced previous psychological illness arising from bullying he alleged was perpetrated on him by the previous bursar of MacKillop College. He consulted his general practitioner and was prescribed Paroxetine which, with his doctor’s concurrence, he continued to take. It appears that he had some time off work at that time, which Mr Curry describes as occurring in about 2011, but did not lodge a workers compensation claim for that episode.
[1] Appeal Papers (AP) p 1.
It appears however from the report of Medical Assessor Glozier following re-examination of the appellant on 23 August 2023 set out hereunder, that Mr Curry had been treated with antidepressants including Lovan and Avanza from at least 2000.
In the time leading up to cessation of his employment in 2018 the appellant experienced concerns following a motor vehicle accident in which his daughter was involved. The vehicle she was driving was not comprehensively insured. The situation with the insurance company was satisfactorily resolved, but it was recommended that the applicant take time off work over this incident. This was against a background of long hours of unpaid overtime Mr Curry worked for the respondent, and a build-up of leave in lieu thereof to which he became entitled.
Although the appellant did not feel as though he required leave, he did take a week off work in August 2018. On his return on 27 August, he was upset to see changes that had been made to the grounds, gardens and trees of the College without his knowledge. These included the removal of bollards to prevent vehicles being driven on a lawn which, according to Mr Curry, could cause a safety issue for which he would be responsible. The realisation of what had occurred in his absence, and that it had been part of a plan to “get rid of him”, caused the applicant to decompensate (“melt down” as he describes it). He became extremely upset and took steps to hang himself. This was noticed by a staff member, and he was conveyed to Bathurst Hospital and subsequently admitted to Panorama Clinic for a month. On his discharge at his request, Mr Curry consulted psychologist, Tracey Brewer, and his general practitioner from 30 October 2018. Thereafter a workers compensation claim was lodged.
On 30 July 2019 the appellant was independently medically examined Dr Martin Allan, consultant psychiatrist, at the request of his solicitor, and re-examined on 26 November 2020. Dr Allan produced a report dated 1 December 2020 (which included reference to his earlier examination of the appellant in July 2019 and reporting thereon),[2] in which he diagnosed Mr Curry as suffering from a major depressive disorder against a background history of a past adjustment disorder which had been effectively managed over the years and had gone into a state of remission. Dr Allan assessed the appellant as having sustained 22% whole person impairment (WPI) as a result of injury on 27 August 2018.
[2] AP p 97.
The appellant was examined by Dr John Albert Roberts, consultant forensic psychiatrist, at the request of the solicitor for the respondent on 18 March 2020 and re-examined on
15 April 2021. Dr Roberts produced reports dated 18 March 2020[3] and 26 April 2021.[4] In the latter report he made the following assessment and comment on Dr Allan’s assessment of
Mr Curry:
[3] AP p 439.
[4] AP p 458.
“While Dr Allan’s assessment of permanent impairment namely he now assesses a
24% whole person impairment, would approximate my assessment which I have
assessed as 26% permanent impairment since the aetiology of the impairment is
indeterminate – the application of a Psychiatric Impairment Rating Scale is not in
accordance with guidelines and its use is inappropriate and the results cannot be
applied to the aetiology of any condition considered to be present, since the aetiology
is unknown.”[5]
[5] AP p 473.
The Medical Assessor examined the appellant on 12 December 2022 and produced the MAC dated 15 December 2022.[6]
[6] AP p 23.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Panel determined that Mr Curry should undergo a further medical examination because the Panel found error in the assessment by the Medical Assessor that the appellant should be placed in class 4 for employability having regard to the fact that he has not worked for five years, avoids going outside, avoids contact with people, has no computer skills, has very basic education, has tried a lawn mowing business without success and is basically unemployable. The Panel also found that there was insufficient information to properly assess the appellant in respect of concentration, persistence and pace. For this reason, and because of the Panel’s view in respect of the assessment of employability, re-examination of Mr Curry was required.

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.

Further medical examination

Medical Assessor Nicholas Glozier of the Appeal Panel conducted an examination of the worker on 23 August 2023 and reported to the Panel.

Medical Assessment Certificate

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

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

Appellant

In summary, the appellant submits that the Medical Assessor fell into error in his assessment of the appellant of the relevant classes under the psychiatric injury rating scale (PIRS) categories of:
(a)   Self care and personal hygiene;
(b)   Social functioning;
(c)   Concentration, persistence and pace, and
(d)   Employability,
as the Medical Assessor’s application of the relevant class within each of the above categories was on the basis of the allocation of incorrect criteria and showed demonstrable error.
After citing the criteria for classes 2 and 3 for self care and personal hygiene, the appellant submits that he should have been class 3 and not class 2. The appellant submits that the evidence clearly suggests an inability to live independently, inability in planning basis [sic, basic] activities of daily living such as preparing food and showering not being maintained and by inference, at the very least, monitoring by the applicant’s wife is required. The Medical Assessor noted the appellant ultimately indicated he showered ‘occasionally’ once a week and preparing food which is said to be no higher than ‘has been able to prepare a sandwich and not having cooked ‘as he doesn’t feel like it’. (emphasis in submissions)
The appellant submits that on any analysis the descriptor recorded by the Medical Assessor fits more comfortably at class 3 one turns to the histories recorded by both Drs Martin and Roberts. The appellant refers to the history recorded by the Medical Assessor in respect of self care and personal hygiene. The appellant submits that the Medical Assessor’s own history taking (MAC pp 5-6[7]) in itself suggests a much greater level of dysfunction that the class than he ultimately applied.
[7] AP pp 27-28.
The appellant then refers to the histories recorded by Dr Allan and Dr Roberts in support of its submission that to place the appellant in class 2 for this category was an error.
The appellant submits that the correct class for social functioning should be class 3 and not class 2, the descriptors for each of such classes are quoted in the submissions.
The appellant submits that his dysfunction in this category has been significantly underestimated on the Medical Assessor’s history in the MAC. This includes that Mr Curry had last attended a social outing five or six years previously, and extremely strained relationships (to a level of some toxicity) with former work colleagues, as evidence of severely strained established relationships. The increasingly strained relationship that the applicant had with his wife and distant relationships he had with his children are also cited as evidence of significant social dysfunction.
The appellant relies on the observation of Garling J said in Jenkins v Ambulance Service of New South Wales,[8] that the classes in the PIRS were examples of the activities which would indicate an assessable level of disability, and further, that the boundaries between the classes were not ‘bright line boundaries’ (emphasis in submissions), to submit that the Medical Assessor appears to have placed the appellant in class 2 because there has been no formal separation in the marital relationship between the appellant and his wife.
[8] [2015] NSWSC 633 at [62 – [65] (Jenkins).
Again the appellant refers to the history recorded by the Medical Assessor in the MAC of his social functioning, and the histories recorded by Dr Allan and Dr Roberts.
In respect of concentration, persistence and pace, the appellant submits that class 4 would be the appropriate class, rather than class 2, and again refers to the history recorded by the Medical Assessor in support of his submission. These include that Mr Curry was unable to maintain employment despite a number of supervised, graded attempts at return to work, that he has abandoned friendships, that he has given up his much loved hobby of fishing, and was unable to maintain enough concentration to mow lawns. The best activity observed by the Medical Assessor relevant to this category was that the appellant tried to do puzzles.
The histories recorded by Dr Allan and Dr Roberts are also relied upon in support of the appellant’s submissions in respect of this class.
The appellant submits that he should be placed in class 5 for employability rather than class 4. There is no evidence recorded by the Medical Assessor that he is capable of working, and the Medical Assessor has recorded that attempts at a return to work supervised by a psychologist have failed.
The appellant submits that there is no reasoning provided for the comment by the Medical Assessor that Mr Curry ‘likely retains partial incapacity’ (emphasis in submissions), doing substantively modified duties and reduced hours, so long as there is no contact with people and being out in public is managed. The appellant submits that this failure to provide reasons is in itself demonstrative of error, putting to one side the demonstrable failing relative to the application of the correct class within the category.
The appellant notes that the most recent medical certificate issued by his long term general practitioner confirms that he had no capacity for any employment.
The appellant submits that the alternatives available to the Panel are to have the matter referred to an alternative Medical Assessor or to issue and amended MAC reflecting his submissions.

Respondent

In reply, the respondent opposes the appeal and submits that the MAC should be confirmed.
In respect of self care and personal hygiene, the respondent submits that the clearly appropriate class was as selected by the Medical Assessor, class 2.
The respondent notes that the appellant in respect of this ground of appeal does not challenge the accuracy of the history recorded by the Medical Assessor. Whilst the appellant does refer to the report of Dr Allan and the history recorded therein, there is no submission that the Medical Assessor has recorded the incorrect history with respect to this PIRS category.
That history includes that the appellant has been able to prepare food, and does not think he needs looking after. The respondent notes that class 3 of the for the category of self care and personal hygiene clearly requires the worker be unable to ‘live independently’.
The respondent submits that in circumstances where the appellant himself plainly rejected that assertion in the history provided to the Medical Assessor, it is difficult to see how the appellant can complain about the Medical Assessor accepting and relying on that history. An expert assessor such as the Medical Assessor is entitled to take into account that concession when formulating his assessment.
The respondent submits that at the very least, there is no basis to assert that the rating was ‘glaringly improbable’ (emphasis in submissions). The predominant consideration under class 3 is that the worker cannot live independently. This is not satisfied by the appellant’s concession.
In respect of social functioning, the respondent submits that, having regard to the PIRS descriptors for class 2 and class 3, and the history recorded by the Medical Assessor that the appellant’s relationship with his partner is strained, there have been no periods of fighting or separation. That is a correct history recorded by the Medical Assessor. That is far from suggesting that the relationship is ‘severely strained’ as required by class 3.
The respondent submits that, noting this, and the absence of any episodes of fighting or separation, class 2 for social functioning was clearly available to the Medical Assessor.
The respondent rejects the reliance of the appellant on what Garling J said in Jenkins, asserting that the appellant is attempting to draw the exact kind of ‘bright line’ rejected by the judge.
The respondent submits that the appellant’s assertion that he should have been assessed as class 4 for concentration, persistence and pace cannot be sustained in light of the contents of the MAC and the evidence before the Medical Assessor. The respondent submits that class 4 requires ‘severe impairment’, and that the worker can only ‘read a few lines’ before losing concentration. Further, there must be ‘concentration deficits obvious’ even during a brief conversation. This is in contrast to what the Medical Assessor recorded on p 4 of the MAC that:
“He was alert, and was able to sustain his concentration for the duration of the assessment.”
The respondent submits that the appellant simply ignored that critical examination finding.
The respondent notes the appellant’s statements recorded by the Medical Assessor that, while his concentration is poor, he is able to try doing puzzles, attends his local club two to three times a year with puzzle books there, and had been trying to read a puzzle book in the waiting room. This history, according to the respondent, is not in accordance with the descriptor for class 4 for concentration, persistence and pace. The respondent submits that such descriptor requires a work to be unable to live alone, which does not apply to the appellant.
The respondent also notes the comment by the Medical Assessor that the appellant has been able to undertake cognitively stimulating exercises, and that he has mild impairment. The respondent submits that the appellant has not put forward any argument that the classification of class 2 for concentration, persistence and pace was not open to him on the material before him and the history recorded.
In respect of employability, the respondent submits that the appellant’s submission that he should be placed in class 5 rather than class 4 overlooks the clinical judgement exercised by the Medical Assessor on the basis of the history recorded by him, and his examination of
Mr Curry.
It is the clear and explicit opinion of the Medical Assessor that the appellant retains a partial capacity to work, with the limitations placed on him referred to in [30] above. The respondent submits that the Medical Assessor has not overlooked material facts, made any material mistake, or failed to provide reasons for his opinion.
The respondent submits that the appellant’s reliance on his absence from work for five years does not go to the ability to work, particularly having regard to the appellant’s expression to the Medical Assessor of uncertainty as to whether he wants to work, and that he feels he is allergic to work. The respondent submits that this reveals on the part of the appellant a preference not to work, as opposed to evidencing an inability to perform any work.
The respondent submits that the Medical Assessor clearly engaged with the relevant question, and formed the view on the basis of his examination, that the appellant is not totally impaired.
The respondent submits that this ground of appeal is an attempt by the appellant to cavil with the Medical Assessor and should be rejected.
In further submissions, the respondent submits that the Medical Assessor is not bound by the assessment of any other assessor, and squarely provided his views of Dr Allan’s assessment. It also submits that the repeated references to DrAllan’s assessment by the appellant in submissions are misguided, noting that a condition may change over time and that Dr Allan’s assessment was contained in his report dated 1 December 2020. This submission is supported by the fact that when Dr Allan first assessed the appellant and reported thereon on 31 July 2019, he assessed that Mr Curry had sustained 8% WPI at that time, revealing the propensity for the effects of injury to fluctuate over time.

The respondent also refers to the “incredibility detailed and comprehensive” MAC produced by the Medical Assessor, in which he engaged with each category selected under the PIRS and explained why that category was selected.
The respondent finally submits that this appeal, fairly categorised, constitutes an attempt to scrutinise the MAC “minutely and finely with an eye attuned to the perception of error” (emphasis in submissions), discussed by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[9]
[9] [1996] HCA 6; 185 CLR 259, 272.
The respondent submits that the appellant has not established that any PIRS rating was not open to him; in other words, none of the ratings ascribed have been shown to be ‘glaringly improbable’.
The respondent opposes re-assessment of the appellant, and submits that no basis for such re-assessment has been demonstrated.

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. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. (See Siddik v Workcover Authority of NSW[10] and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales[11]).
[10] [2008] NSWCA 116.
[11] [2013] NSWCA 1792.
In Campbelltown City Council v Vegan[12] 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.
[12] [2006] NSWCA 284.
The Panel will deal with the appellant’s grounds of appeal in the order in which they appear in the MAC.

Self care and personal hygiene

Class 2 for this category is as follows:
“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 is as follows:
“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.”
The Panel notes that Mr Curry continues to live alone, his wife having moved out in early 2023 to live with her sister because she could no longer tolerate his moods, withdrawal, isolation and irritability. The reasons for his current reduced standard of self care are more fully set out in the report of Medical Assessor Glozier dated 23 August 2023, reproduced below. Mr Curry has poor or diet, and does online shopping with the assistance of a neighbour. Notwithstanding that Mr Curry does not think he needs looking after, he rarely showers of even brushes his teeth and gets regular prompting from his ex-psychologist, his wife and daughter to maintain even a basic function. For these reasons the Panel is of the view that the appellant should quite clearly be placed in class 3 for this category.

Social functioning

Class 2 for this category is as follows:
“Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
Class 3 is as follows:
“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 is as follows:
“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 parents).”
The Panel notes what is said by Medical Assessor Glozier in his report dated 23 August 2023 set out in full hereunder that:
“In terms of social functioning (relationships), his previously minimal social activities are now non-existent. His wife has left him and he has lost contact with his family. There is little contact with his children who are interstate. He is no longer contacted by the people who used to help him at school and his only friend has not had any contact with him for over a year, all of which is indicative of a severe impairment.”
The Panel accepts this assessment and is of the view that the appellant is neither mildly nor moderately impaired for social functioning. Mr Curry is unable to form or sustain long term relationships, his relationship with his wife has effectively ended. He does not have to care for dependants, but has minimal contact with his children. The Panel finds that the appellant should be placed in class 4 for this category.

Concentration, persistence and pace

Class 2 for this category is as follows:
“Mild impairment: can undertake basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for up to 30 minutes, then fatigued or develops headache.”
Class 3 is as follows:
“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.”
Consideration of this category must have regard to the very low level of education which the appellant possesses, and the pre-existing low cognitive reserve. The appellant attempts puzzles. There was limited significant cognitive disturbance or focus elicited during the examination carried out by Medical Assessor Glozier. Although the Panel found on preliminary review that there was insufficient information to properly assess the appellant in respect of concentration, persistence and pace, having carried out that re-examination it is of the view that Mr Curry is only mildly impaired in respect of concentration, persistence and pace.

Employability

The Panel notes that the appellant has not worked since 2018, and failed at an attempt at starting his own lawn mowing business as set out in his further statement dated
17 June 2022.[13] The appellant suffers from agoraphobia, panic attacks, an almost total inability to leave the house, and has minimal function. The Panel does not regard the reasons provided by the Medical Assessor for placing the appellant in class 4 for employability as adequate, or that such reasons as are provided justify a finding that
[13] AP p 889.
Mr Curry likely retains partial incapacity for employment. In the view of the Panel he is totally incapacitated for employment and should be placed in class 5 for employability.
The report of Medical Assessor Glozier is as follows:

“APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W3175/22
Appellant:	Steven Curry
Respondent:	Trustees of the Roman Catholic Church for the Diocese of Bathurst
Date of Determination:	23 August 2023

Examination Conducted By:	Professor Nicholas Glozier
Date of Examination:	23 August 2023

The worker’s medical history, where it differs from previous records

I note the GP records indicate Mr Curry has been treated with antidepressants including Lovan and Avanza from at least 2000, at the time they start, rather than later as recorded elsewhere and reported by Mr Curry. He was also noted to be borderline hypertensive from 2014 with a high score (11% Framingham Index) for cardiovascular disease for someone who was in their mid-50s at the time. He stated that he had however been diagnosed with hypertension and treated following the workplace injury. He could not recall when he was diagnosed with obstructive sleep apnoea, denies being a snorer but says that at times he has apnoeic episodes and will frequently wake tired in the morning. Currently he takes Escitalopram 20mg a day and Perindopril 5mg daily.

Additionally I explored his pre-injury functioning. In the time prior to the events of August 2018 he was living with his wife Sally who worked in a newsagents, and his daughter Jessica and her baby. Jessica’s partner did not live with them, and she had two previous children where there were some issues already regarding their custody which have become more entrenched. Mr Curry reported that he had been taught to work very hard throughout his life and would spend up to seven days a week working. He rarely helped out at home and was not a particularly good cook. He said in his limited spare time he collected fishing gear and would occasionally go fishing at the weekends, at times with his only friend Brian. Otherwise he had no social life. He left school at 13, was ‘not very good at reading and writing” The teachers at the school where he worked would help him with forms, and improving his reading and writing. As a result he would struggle with reading a newspaper, book or instruction manual, often not understanding words. He has avoided any other cognitively-demanding activities throughout his life. I note one of the other assessors (for a clinical assessment) suggested some degree of developmental delay and today he gave indications of potential dyslexia.

Additional history since the original Medical Assessment Certificate was performed

As noted previously, his long-term psychologist left to work for the Fire Brigade but he says she still texts him weekly with a repetitive text, suggesting that he wash, drink or eat. He sees his GP two- to four-weekly, generally over the phone, although at times will go into town with his neighbour. When he does so he will also pick up his medication. He was seeing a male psychologist almost weekly at a clinic in Bathurst but stopped this 3 or 4 months ago. He does not see any other specialists. He does not drink alcohol.

His daughter left home quite some time ago to move to Queensland. There were further issues regarding access to her grandchildren and he said that her ex-partner implicated his mental health problems. His wife moved to live with her sister earlier this year, apparently stating that she could no longer tolerate his moods, withdrawal, isolation and irritability. She will still text him to remind him to wash and eat. He has lived on his own for a long time although with fairly minimal function. He sees little need to shower as he does not see people, rarely brushes his teeth although will sometimes clean his false front teeth. His diet is poor, often relying just on potatoes, and he says his appetite is limited but he has not lost any weight, still being around the 90kg in his GP notes from some years ago. He will go to his neighbours’ house to order online shopping with her, and he has this delivered because he does not like shopping in town. He has become increasingly isolative and avoidant. He says his brother and sisters did not understand why he was like he is, think he is lazy because he is not working, and so have not contacted him for a long time. He also has not had any contact with Brian for well over a year and has not been fishing for many years. He will at times get out his fishing gear, dust it off and clean it, and sometimes spend some time tying fishing knots, but otherwise does nothing recreationally and has no social contacts from an already very-limited base. He feels safe at home but outside feels unsafe and anxious with high levels of vigilance. He fears being yelled at, although he knows this is irrational and there have not been any incidents to promote this. He appears to have developed very entrenched avoidant behaviours. He has let his car registration lapse, gets driven into town by his neighbour and will get in and out of GP or pharmacists very quickly if he has to. His wife continues to pay the bills. He only uses his phone for receiving calls from his daughters and otherwise does nothing cognitively although this appears to be lifelong. He says he can go days, if not a week, without seeing people.

Days are all fairly similar. He will go to bed between midnight and 3am, having been sitting there for some hours, ruminating about his condition. He will sit with his dogs although at times can be ‘blank’ for a long period of time that he cannot explain. He says when he goes to bed he frequently will be immediately ‘wired,’ lies there for a short while, gets up, has a coffee and can then go to sleep. He sleeps through until about 6am or 7am, occasionally waking with an apnoeic attack. He will have a coffee, let his dogs out, and “sits back”. A few times a month he has ‘a good day or two’ where he will walk around, have constructive thoughts and do some minimal activity but otherwise has little interest. He will watch the BBC News to catch up on Ukraine but does not follow anything else as he has no interest. He is FaceTimed by one daughter weekly but they don’t have much of an interaction and his other daughter is travelling around Australia with little contact, although he worries about her. He says his home is messy although relatively clean as he has few demands. Despite being a groundsman he does not do any gardening and his yard is just a ‘dirt patch.’ Mostly he does not go out if he is feeling overly anxious and wary. He says he will not do any work because he cannot trust people, fears being yelled at or otherwise treated badly. No-one else contacts him including the teachers from school who used to help him with activities. He maintains himself on an Age pension.

Findings on clinical examination

Mr Curry was casually-dressed, slightly scruffy, and bearded. Although he pre-empted the assessment saying that he would frequently forget things and have to come back to them later, this was not particularly noticeable in the assessment itself. At the end he attended to a few things that he had written down. He could spell out his medications but he could not pronounce them. He said there might be a couple of things he would forget but might recall later, but his recall actually appeared quite intact when prompted. He filled in the gaps where needed, as well as also addressing issues with other IMEs, previous reports etc, in contrast to his perceived memory difficulties. He does not have a completely pervasive low mood but is generally more anxious, fearful and scared. At times he has ‘out of the blue’ panic attacks every week or two with a full range of physical and cognitive symptoms that he cannot explain. He is frequently highly aroused, anxious, particularly if going out, with associated nausea, tension and headaches. He has entrenched avoidant behaviours and what he knows are irrational fears but no other signs of checking or intrusive thoughts. There is no paranoid psychotic elaboration to this although he has some paranoid interpretations, e.g. of people talking about him on the street, or thinking that he is lazy. He has a low-normal sleep duration with some mild onset insomnia and delayed phase although this is probably contributed to in part by his untreated obstructive sleep apnoea. He has little motivation or enjoyment. The only thing he takes pleasure in is being with his dogs.

Results of any additional investigations since the original Medical Assessment Certificate

Nil.

Summary

Mr Curry continues to present with the same diagnoses as that provided by the MA of a Persistent Depressive Disorder and Panic Disorder with Agoraphobia.

In terms of self-care, although he does live on his own, he really cannot be described as living independently in a functional way. His diet is very poor, consisting mainly of potatoes. He rarely showers or even brushes his teeth and gets regular prompting from his ex-psychologist, wife and daughter to maintain even a basic function. In terms of social functioning (relationships), his previously minimal social activities are now non-existent. His wife has left him and he has lost contact with his family. There is little contact with his children who are interstate. He is no longer contacted by the people who used to help him at school and his only friend has not had any contact with him for over a year, all of which is indicative of a severe impairment. He is OK with this state of affairs he said. In terms of concentration, persistence and pace, although he has perceived difficulties with his memory and might write things down, there was limited significant cognitive disturbance or focus elicited during the assessment. He has a very low level of education, a pre-existing low cognitive reserve and thus is only mildly impaired in this area. In terms of employability, given his agoraphobia, panic, almost total inability to leave the house and minimal function, he would be regarded as completely unemployable on the open job market or even if in a supported employment role.

I rate the appealed classes as below:

Self-Care and Personal Hygiene: 3
Social Functioning: 4
Concentration, Persistence and Pace: 2
Employability: 5

Signed:

Professor Nicholas Glozier

Date: 23 August 2023”

The Panel accepts the report of Medical Assessor Glozier.
This assessment results in a finding that the appellant has sustained 24% WPI as a result of psychological injury suffered on 27 August 2018 calculated by use of the Conversion Table 11.7 in the Guidelines, the appellant’s WPI is calculated as follows:

Score

Median Class

2

2

3

3

4

5

=3

Aggregate Score Impairment

Total

%

+2

+2

+3

+3

+4

+5

19

24

For these reasons, the Appeal Panel has determined that the MAC issued on
15 December 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W3175/22
Applicant:	Steven Curry
Respondent:	Trustees of the Roman Catholic Church for the Diocese of Bathurst

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Yu-Tang Shen and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system

Date of Injury

Chapter,

page and paragraph number in WorkCover Guides

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

% WPI

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

Psychiatric disorder

27 August 2018

Chapter 11, page 54

Chapter 14, pp 361-365

Total % WPI (the Combined Table values of all sub-totals)

Score				Median Class
2		2	3	3	4	5	=3
Aggregate Score Impairment				Total	%
+2	+2		+3	+3	+4	+5	19	24

[2023] NSWPICMP 429

5 September 2023