Diggelman v Rathmines Memorial Bowling Club Co-Operative

DETERMINATION OF APPEAL PANEL
CITATION:	Diggelman v Rathmines Memorial Bowling Club Co-Operative [2022] NSWPICMP 321
APPELLANT:	Bruce Diggleman
RESPONDENT:	Rathmines Bowling Club Co-operative
APPEAL PANEL:	Member Jane Peacock Medical Assessor Nicholas Glozier Medical Assessor Michael Hong
DATE OF DECISION:	8 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Psychological Injury; appellant alleged error in the assessment under all categories under the Permanent Impairment Rating Scale (PIRS) namely self-care and personal hygiene, social and recreational activities, travel, social functioning, concentration, persistence and pace, and employability; the ratings in all classes were open to the Medical Assessor and the Panel could discern no error; Held — Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 April 2022 Mr Bruce Diggleman (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 22 March 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 delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant requested a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although the Appeal Panel could not find error. Absent error, the Appeal Panel has no power to require a re-examination. The Appeal Panel cannot examine the worker to determine whether a ground of appeal has been made out: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

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. They are not repeated in full, 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 matter was referred to the MA for assessment 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: 23 February 2019
·        Body parts/systems referred: Psychiatric/psychological
·        Method of assessment: Whole Person Impairment”
The MA issued a MAC certifying 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

23 February 2019

Chap 11, p 54-60

n/a

Nil

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

The assessment was based on his assessment under the Permanent Impairment Rating Scale (PIRS) as required by the Guides as follows:

“Table 11.8: PIRS Rating Form

Name	Bruce Diggelman	Claim reference number	W6296/21
DOB	27 October 1957	Age at time of injury	61 years
Date of Injury	23 February 2019	Occupation at time of injury	Barman
Date of Assessment	21 March 2022	Marital Status before injury	Single

Psychiatric diagnoses	PTSD
Psychiatric treatment	Psychotherapy
Is impairment permanent?	Yes

PIRS Category			Class		Reason for Decision
Self-Care and personal hygiene			1		Mr Diggelman is independent, lives alone, eats regular good-quality meals and attends to hygiene. He looks after housework, gardening and shopping.
Social and recreational activities			2		He has a friend visit weekly, and they go out for meals or recreational drives together. He enjoys the social interaction at the Men’s Shed, which he attends without support three days a week. He has given up previously-enjoyed activities such as bowls, boating and fishing.
Travel			2		He travels locally in familiar areas. His furthest trip in the last six months was 30 minutes away to a shopping centre. He is anxious when driving.
Social functioning			2		He has maintained good relationships with his friend, Denise, his youngest son, his son’s wife and his granddaughter. He has lost some friends from the bowling club because of his withdrawal from the venue. However, he has made new friends at the Men’s Shed.
Concentration, persistence and pace			2		He has some subjective difficulties in this domain. He does crosswords for up to 2 hours a day and watches television with good retention and comprehension. He has completed projects such as restoring furniture and teaches others woodworking skills. He said that he could complete home maintenance projects when necessary, although he had none pending.
Employability			3		He had been working for 24 hours a week on a casual basis until his position was terminated. He found work at the club stressful and was not coping well because he felt that his employer blamed him for needing extra security and staff. He struggles to trust others. Likely, he would function in a less stressful work situation, in a different role with a different employer for up to 20 hours a week.
Score										Median Class
1	2	2		2		2	3		= 2
Aggregate Score Impairment 12								Total			6 %”

The worker appealed.
In summary the appellant submitted that the MA erred in his assessment under all categories as follows:
(a)    Self-care and Personal Hygiene when he assessed a Class 1 and a Class 2 should have been assessed;
(b)    Social and Recreational activities when he assessed a Class 2 and a Class 3 should have been assessed;
(c)    Travel when he assessed a Class 2 and a Class 3 should have been assessed;
(d)    Social Functioning when he assessed a Class 2 and a Class 3 should have been assessed;
(e)    Concentration, Persistence and Pace when he assessed a Class 2 and a Class 3 should have been assessed, and
(f)    Employability when he assessed a Class 3 and a Class 4 should have been assessed.
The appellant submitted that the MA “has used the incorrect criteria in each PIRS class and has either misinterpreted the history given to him by the worker or failed to make complete inquiries during the consultation to ascertain the correct criteria”.
In summary, Rathmines Bowling Club Co-operative (the respondent) submitted that the MA did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the MA is to conduct an independent assessment on the day of examination. The MA 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 MA. The MA must bring his clinical expertise to bear and exercise his clinical judgement when making an 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.
The MA took a history which was broadly consistent with the other evidence before him. He recorded in detail the appellant’s reporting of present symptoms and impact on activities of daily living (ADLs). The MA recorded as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Diggelman started work with the Rathmines Memorial Bowling Club in 2016. On the evening of 23 February 2019, when working on his own, two armed men came in just after closing time and robbed the club. He was threatened with a knife and hammer and feared for his life.
He was very distressed in the following weeks, with intrusion symptoms, anxiety, and insomnia.
He took eight months off work, returning on a graded return to work plan. His return to work was marred because his manager blamed him for having to have now always two people rostered on and install security cameras.
On 15 August 2020, he got into an argument with his manager and was fired. By then, he had worked up to 24 hours a week.
He has not worked in any paid capacity since.
·    Present treatment:
Treating clinicians:
o   general practitioner Dr Michael Clark
o   psychologist Adrian Doczy
He has not seen a psychiatrist for treatment.
Current psychiatric medications:
o   Nil
Mr Diggelman attends his psychologist every 4-5 weeks. He described psychological treatment with cognitive behavioural therapy, activity structuring and eye movement desensitisation and reprocessing (EMDR).
He had a six week trial of escitalopram but found it made him feel disorientated and unwell. He has been on no medication since.
He has never been hospitalised.
·    Present symptoms:
Mr Diggelman has a frequent low mood, often worse in the late afternoon and evening. He can experience positive emotions when interacting with his son, a friend or attending the Men’s Shed.
He is irritable and short-tempered.
He struggles to trust others and is anxious away from his home. He is hypervigilant and easily triggered into emotional re-experiencing when things remind him of the robbery. Triggers may be people, smells, something he sees on television or related to the bowling club.
Although he tries to keep active, he sometimes loses motivation and interest.
He is bothered by intrusive thoughts about the robbery and his subsequent treatment by management.
He has had thoughts of suicide but never made plans or formed intent.
He is usually in bed by about 9 PM; his sleep quality varies from poor to good. He often has distressing dreams on the theme of the robbery.
He eats a good quality diet and has gained 10-15 kg since the robbery.
·    Details of any previous or subsequent accidents, injuries or conditions:
In 2015, Mr Diggelman found that a friend had collapsed and died. He attempted resuscitation and called for an ambulance. When the ambulance arrived, Mr Diggelman himself had suffered a myocardial infarction, requiring a stent. He went through a time of grief associated with low mood but recovered fully after several weeks. I do not consider that this contributes to his condition now.
·    General health:
Mr Diggelman has ischaemic heart disease, hypertension and hyperlipidaemia.
He uses irbasartan, rosuvastatin and amlodipine.
He quit smoking one year ago and consumes two standard drinks daily.
·    Work history, including previous work history if relevant:
Mr Diggelman was raised in Sydney environs. His father died when he was seven years old, so he was raised by his mother and maternal grandmother. He had a younger brother who died at one week old.
He recalls a safe and happy childhood.
He completed the fourth form at school, followed by a carpentry apprenticeship.
He has worked as a carpenter and joiner, running a Mister Minute franchise and as a maintenance manager at Warriewood Square and Warringah Mall.
He worked at Belrose Bowling club before starting at Rathmines.
He has no previous WorkCover claims.
·    Social activities/ADL:
Mr Diggelman rises between 7 and 7:30 AM.
He attends the local Men’s Shed on Monday, Tuesday, and Wednesday. Every second week he helps with the barbecue at Bunnings, raising money for the Men’s Shed.
He usually stays home on Thursday and Friday. He may do housework, shopping, gardening or cooking.
He enjoys cooking and eats regular meals.
He showers and wears clean clothes daily.
He does home maintenance when necessary
Before becoming unwell, he owned a boat and enjoyed fishing, competed in lawn bowls and socialised at the Rathmines Club.
He has lost confidence in boating and sold his boat. He no longer fishes.
He has a friend visit once a week; they may go out to dinner or for a drive together.
He is more nervous when driving and usually stays within the familiar local areas. His furthest drive has been 30 minutes from his home in the last six months. He used to travel more extensively.
He is close to his friend, Denise, his son, his son’s wife and his granddaughter. He has been estranged from his oldest son for many years for reasons unrelated to the work injury.
He had been married for 24 years, but the marriage failed about 13 years ago.
He has made new friends at the Men’s Shed but has lost friends from the club because he will no longer attend that venue.
He enjoys watching television shows, such as cooking shows and the game show Tipping Point. He finds crosswords relaxing and will do them for one to two hours each day.
He enjoys his time at the Men’s Shed and hopes some work might come out of it, such as handyman jobs. However, some days his mood is low, and he loses motivation and will not attend.”
The MA conducted a mental state examination and recorded his findings as follows:
“I assessed Mr Diggelman in his home by video link. The connection quality was excellent, allowing me to do a comprehensive assessment.
He appeared casually attired and well-groomed.
He was anxious and was a low mood. His affect was reactive, and he could smile at appropriate times in the interview.
There is no evidence of any disorder of thought-form or perception.
He gave a comprehensive account of his history without evidence of any cognitive difficulties.
He acknowledged thoughts of suicide without plans or intent.”
The MA made a diagnosis as follows:
“●     summary of injuries and diagnoses:
I make my diagnoses relying on criteria outlined in the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.
o   Post-traumatic stress disorder
Mr Diggelman experienced potentially life-threatening violence during a robbery. He had a severe initial emotional response to this and has developed symptoms consistent with PTSD.
·    consistency of presentation
There is no inconsistency in his presentation.”
The MA explained his reasons for assessment under each of the PIRS categories as set out in the table above.
The appellant complains that the MA has erred in respect of all of the categories assessed, namely Self-Care and Personal Hygiene, Social and Recreational Activities, Travel, Social Functioning, Concentration, Persistence and Pace and Employability.
The Panel cannot interfere with these ratings absent error by the MA. The Panel cannot interfere with the rating because opinions might differ as to the best fit in each category. There must be error or assessment on the basis of incorrect criteria. The Panel will deal with each category in turn.
In respect of Self Care and Personal Hygiene, Table 11.1 of the Guides provides as follows:
Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene

Class 1

No deficit, or minor deficit attributable to the normal variation in the general population

Class 2

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

Class 3

Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.

Class 4

Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.

Class 5

Totally impaired: Needs assistance with basic functions, such as feeding and toileting.

The MA rated no deficit or minor deficit attributed to the normal variation in the general population at Class 1 with the following reasoning:
“Mr Diggelman is independent, lives alone, eats regular good-quality meals and attends to hygiene. He looks after housework, gardening and shopping.”
The MA has to make an independent assessment. He had regard to the opinions of the other experts and made the following comments as to why he differed in respect of the assessments for Self Care and Personal Hygiene as follows:
“Dr Rastogi found a mild impairment for self-care and personal hygiene, while Dr Vickery and I found none. Dr Rastogi mentioned that Mr Diggelman had ‘lost appetite and struggles with routine, gained weight, and struggles with self-care.’
Contrary to this, Mr Diggelman told me that he eats regular good-quality meals, attends to daily hygiene, and looks after his home and garden without support. He described himself as ‘house proud’.”
The appellant is clearly on the history given on the day of assessment able to look after himself and live independently to a standard consistent with normal variation in the population. The panel can discern no error in the Class 1 rating.
In respect of Social and Recreational Activities, Table 11.2 of the Guides provides as follows:
Table 11.2: Psychiatric impairment rating scale – social and recreational activities

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.

Class 4

Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.

Class 5

Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.

The MA assessed a mild impairment at Class 2 with the following reasoning:
“He has a friend visit weekly, and they go out for meals or recreational drives together. He enjoys the social interaction at the Men’s Shed, which he attends without support three days a week. He has given up previously-enjoyed activities such as bowls, boating and fishing.”
The appellant submitted that a Class 3 or moderate impairment should have been assessed.
The IME qualified on behalf on behalf of the appellant, Dr Ratogi, assessed Class 3 and Dr Vickery the IME qualified on behalf of the respondent assessed Class 1. The MA was required to make an independent assessment using his clinical judgment on the day of assessment. He explained why his opinion differed as follows:
“Dr Rastogi found a moderate impairment in social and recreational activities.
Dr Vickery found no impairment, and I thought it mild. Dr Rastogi noted that
Mr Diggelman ‘does not get too involved in social activities. Does not like attending social events due to loss of interest in activities and social reclusiveness, stays home’, and Dr Vickery noted that Mr Diggelman was fishing and wanted to take up bowls again. He also mentioned that Mr Diggelman socialises with a neighbour and has contact with three friends.
Mr Diggelman told me that he had made new friends since joining the Men’s Shed and enjoyed the social side of this activity. His friend Denise visits weekly, and they enjoy going out to lunch or for drives together.”
The Appeal Panel can discern no error in the rating of a mild impairment. The appellant is undertaking regular social activity without the need for a support person. His social activities are not rarely undertaken but are regularly undertaken. Class 2 is the best fit and the MA has assessed in accordance with the correct criteria and the Appeal Panel can discern no error.
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.

The MA assessed a mild impairment at Class 2 with the following reasoning:
“He travels locally in familiar areas. His furthest trip in the last six months was 30 minutes away to a shopping centre. He is anxious when driving.”
The appellant submitted that a Class 3 or moderate impairment should have been assessed.
Dr Rastogi had assessed Class 3. The MA explained why his opinion differed as follows:
“Dr Vickery found no impairment for travel, while Dr Rastogi mentioned that
Mr Diggelman ‘stays home mainly and will go to familiar places and is still avoidant of the workplace.’
I found that Mr Diggelman restricts travel to the local area or familiar places up to 30 minutes from home while avoiding going near the bowling club. He is anxious when driving. I thought his impairment in this domain was mild.”
While the appellant has anxiety while driving he is still able to undertake driving in the local area and this is consistent with a mild impairment at Class 2. The Appeal Panel can discern no error.
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.

The MA assessed Class 2 with the following reasoning:
“He has maintained good relationships with his friend, Denise, his youngest son, his son’s wife and his granddaughter. He has lost some friends from the bowling club because of his withdrawal from the venue. However, he has made new friends at the Men’s Shed.”
The appellant submitted that the MA should have assessed a moderate impairment at Class 3.
The assessment by the MA accords clearly with Class 2. A mild impairment is the best fit as the appellant has maintained a strong friendship as well as relationships with family members. While there has been some loss of friendships, this is consistent with the criteria for Class 2. The appeal panel can discern no error in the Class 2 rating.
In respect of Concentration, Persistence and Pace, Table 11.5 of the Guides provides as follows:

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.
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.
Class 4	Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.
Class 5	Totally impaired: needs constant supervision and assistance within institutional setting.

Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace

The MA assessed Class 2 or mild impairment with the following reasoning:
“He has some subjective difficulties in this domain. He does crosswords for up to 2 hours a day and watches television with good retention and comprehension. He has completed projects such as restoring furniture and teaches others woodworking skills. He said that he could complete home maintenance projects when necessary, although he had none pending.”
The appellant submitted that a moderate impairment or Class 3 should have been assessed. Dr Rastogi had assessed the appellant at Class 3 and the MA explained why his opinion differed as follows:
“Regarding concentration, persistence and pace, Dr Rastogi found a moderate impairment, noting that Mr Diggelman ‘feels tired and exhausted and has difficulty with following complex tasks. He is forgetful and has poor retention and recall.’ Dr Vickery noted ‘some forgetfulness’ and distraction but found no impairment on assessment.
Mr Diggelman enjoys projects at the Men’s Shed and said he would have no trouble doing home maintenance when needed. He described repairing an antique chair, mentioning that the joinery was ‘intricate’ and that it wasn’t possible to tell that the chair had ever been broken after the repair. He does crosswords for up to two hours a day. I also noted no cognitive difficulties during my interview.”
Assessment cannot be based on self-report alone. The MA has to make an independent assessment on the day of examination using his clinical expertise. The MA has done that here and has based his assessment on the correct criteria and the Appeal Panel can discern no error in the assessment of Class 2 which is the best fit.
In respect of Employability, Table 11.6 of the Guides provides as follows:

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training. The person is able to cope with the normal demands of the job.
Class 2	Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3	Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4	Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5	Totally impaired: Cannot work at all.

Table 11.6: Psychiatric impairment rating scale – employability

The MA rated Class 3 with the following explanation:
“He had been working for 24 hours a week on a casual basis until his position was terminated. He found work at the club stressful and was not coping well because he felt that his employer blamed him for needing extra security and staff. He struggles to trust others. Likely, he would function in a less stressful work situation, in a different role with a different employer for up to 20 hours a week.”
The appellant says the rating should have been a severe impairment at Class 4. The IME qualified on behalf of the appellant Dr Rastogi also assessed a moderate impairment as opposed to the severe impairment that the appellant says should have been assessed by the MA. The MA has made his own independent assessment and amplifies the reasons for that as follows:
“Dr Rastogi found a moderate impairment for employability and Dr Vickery assessed no impairment. Dr Rastogi merely asserts Mr Diggelman’s capacity to work ‘with a new employer in step down role,’ and Dr Vickery noted that ‘Mr Diggelman had continued working until he was terminated in April 2021.’
Mr Diggelman was terminated in August 2020, not April 2021. He recalled not coping well with work and could never return to full-time duties; his best effort was 24 hours a week. He argued with his manager, leading to his dismissal. This argument was out of character for him and due to his workplace injury. He has not worked in the last 18 months, although he is doing some work-like activities at the Men’s Shed, for example, woodwork projects (he is a carpenter). He maintains a schedule, attending three days a week and, every two weeks, the Bunnings barbecue. He interacts with others in planning activities and running the BBQ. Possibly, Mr Diggelman could work as a handyman, as he suggested. On some days, he would feel unwell and not attend. On balance, I thought his impairment moderate, warranting a Class 3 rating.”
The Appeal Panel can discern no error in the assessment of Class 3 as the MA’s findings accord with the criteria for that class and it is the best fit.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 March 2022 should be confirmed.

[2022] NSWPICMP 321

8 August 2022