DMAC Personnel Pty Ltd v Williams

DETERMINATION OF APPEAL PANEL
CITATION:	DMAC Personnel Pty Ltd v Williams [2024] NSWPICMP 334
APPELLANT:	DMAC Personnel Pty Ltd
RESPONDENT:	Robert Williams
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	27 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether the deduction Medical Assessor (MA) made under section 323(1) should have been greater than 10%; whether MA had proper regard to the evidence when rating respondent’s impairment in social functioning and in concentration persistence and pace; whether MA adequately explained his ratings of respondent’s impairment in social functioning and in concentration persistence and pace; Appeal Panel held MA did make an error with respect to section 323 by finding the respondent had a pre-existing condition, but neither party identified that error so Appeal Panel could not correct it; Appeal Panel found that an error of the type the appellant contended the MA made with respect to the section 323 deduction was not an error; the Appeal Panel found MA did not adequately explain his reasons for his ratings of respondent’s impairment in social functioning and in concentration persistence and pace; respondent re-examined; based on history obtained and findings made at re-examination, Appeal Panel rated respondent’s impairment in social functioning and in concentration persistence and pace the same as MA did, so notwithstanding errors identified in Medical Assessment Certificate (MAC), no difference in outcome; Held – MAC upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 November 2023 DMAC Personnel Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 October 2023.
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, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

Between June 2018 and 12 November 2018 the appellant employed Robert Williams, the respondent, as a labourer. Due to events that occurred whilst he was undertaking his work, the respondent suffered a psychological injury. He has not worked since 12 November 2018.
By means of a letter dated 9 December 2022, that the respondent’s solicitors forwarded to the appellant’s insurer, the respondent claim compensation of $48,670 under s 66 of the Workers' Compensation Act 1987 (the 1987 Act) for permanent impairment from his injury and also claim weekly payments of compensation from 7 July 2022. The respondent relied on a report of psychiatrist Dr Parsonage dated 17 October 2022, who had examined the respondent on 13 October 2022 and assessed the degree of the respondent’s permanent impairment from his injury was 19% whole person impairment (WPI).
The appellant’s insurer thereupon organised for the respondent to be examined psychiatrist Dr Graham Vickery on 20 March 2023. Dr Vickery had previously examined the respondent on 7 February 2022. With respect to his examination on 20 March 2023 Dr Vickery provided a report to the appellant’s insurer on that same day in which he expressed his opinion on various matters relating to the respondent’s injury. This included that he considered the respondent not undertaken appropriate treatment and as a consequence had not reached maximum medical improvement. Dr Vickery did not make an assessment of the degree of the respondent’s permanent impairment from his injury.
On 18 May 2023 the appellant’s lawyers wrote to the respondent’s lawyers providing them with a copy of Dr Vickery’s report and highlighting that Dr Vickery was of the view that the respondent had not reached maximum medical improvement and advising. The appellant’s lawyers also advised that for the respondent to be entitled to compensation for permanent impairment from his injury he must have reached maximum medical improvement. Although not stated explicitly in their letter, the appellant’s solicitors indicated that their client would not at that time accede to the respondent’s claim for compensation for permanent impairment and would give it no further consideration until their client considered the respondent had achieved maximum medical improvement.
Shortly after the respondent’s solicitors received that correspondence, the respondent instituted proceeding in the Personal Injury Commission (Commission) seeking determination of his claim for compensation for permanent impairment from his injury and also his claim for weekly payments of compensation.
With the consent of the parties his claim with respect to compensation for permanent impairment from his injury was referred on 17 July 2023 to the Medical Assessor to assess several medical disputes relating to his claim, including whether the degree of the respondent’s permanent impairment is fully ascertainable, what the degree of his permanent impairment is from his injury and whether any proportion of his permanent impairment is due to a previous injury or pre-existing condition or abnormality and if so the extent of that proportion.
The Medical Assessor examined the respondent by an audiovisual link on 17 October 2023 to assess those medical disputes. In the MAC he issued on 23 October 2023 he certified that the respondent’s impairment is permanent and that the degree of the respondent’s permanent impairment is fully ascertainable. The appellant takes no issue in its appeal with the Medical Assessor’s assessment and certification of those medical disputes.
The Medical Assessor, in accordance with paragraphs 11.11 and 11.12 of the Guidelines, assessed the respondent’s impairment from his injury by reference to the Psychiatric Impairment Rating Scale (PIRS). The Medical Assessor rated the respondent’s impairment as Class 2 in self-care and personal hygiene, Class 3 for social and recreational activities, Class 2 for travel, Class 2 for social functioning, Class 3 for concentration, persistence and pace (CPP), and Class 5 for employability.
In its appeal the appellant has challenged the Medical Assessor’s rating of the respondent’s impairment in the PIRS categories of social functioning and CPP. In the PIRS rating form within the MAC the Medical Assessor provided the following reasons for his rating of Class 2 of the respondent’s impairment in social functioning:
“He is anxious and socially avoidant, and ceased contact with most of his friends.
He has maintained a few long-term friendships.
The relationship with his sons has become distant.”
Within the body of the MAC the Medical Assessor also detailed within the history he obtained relating to the respondent’s social activities and activities of daily living that the respondent’s sons are both in the Defence Force, were frequently deployed, were living more than six hours away from him, and that this made it difficult for the respondent to catch up and have contact with them. The Medical Assessor noted that the respondent talks occasionally to his sons but had not seen them for a long time. The Medical Assessor also recorded that the respondent has two close friends that do not live close by, but with whom he may go on a camping trip twice a year, with the last camping trip being between 12 months and two years ago. The Medical Assessor also noted that the respondent has “a couple of local friends/acquaintances in town”. The Medical Assessor further noted that the respondent had an online relationship with a married woman, which the respondent ultimately terminated because the woman was married.
The Medical Assessor provided the following reasons in the PIRS rating form for rating the respondent’s impairment in CPP as Class 3:
“Mr Williams described having poor concentration.
He cannot perform repair, change car oil or do maintenance work at home anymore.
He has never been one to read books. He can focus on watching YouTube videos, which is not intellectually demanding.”
Within the history the Medical Assessor detailed in the MAC relating to the respondent’s social activities and activities of daily living, the Medical Assessor recorded that the shows the respondent watches on YouTube related to history, war, and plague. The Medical Assessor also recorded in the MAC that during his physical examination of the respondent he found that the respondent gave a disorganised narrative and had difficulties with some of the history, but was not thought disordered.
The Medical Assessor observed that the median of his Class ratings of the respondent’s impairment in the several PIRS is 3 and that the aggregate of his ratings is 17, which converts to 19% WPI.
The Medical Assessor noted in the MAC that prior to the respondent commencing his employment with the appellant he had been drinking four to five drinks a day, and continued that pattern after he commenced employment until around 12 months ago. The Medical Assessor also recorded that the respondent commenced using cannabis as a teenager but ceased that when he was about 30 and “swapped it for alcohol”. The Appeal Panel observes that at the time the respondent commenced his employment with the appellant he was 47 years of age, meaning that he ceased his cannabis use, and commenced his alcohol intake, around 17 years prior to starting his employment with the appellant.
The Medical Assessor expressed his opinion that the respondent had a pre-existing condition consistent with a substance use disorder. He explained that the respondent drank alcohol regularly and excessively which the Medical Assessor considered was “sufficient to cause cognitive psychological and medical problems”. The Medical Assessor assessed that a proportion of the respondent’s permanent impairment from his injury was due to that pre-existing condition. The Medical Assessor assumed, in accordance with s 323(2) that the proportion was 1/10th. The Medical Assessor stated that that assumption was not at odds with the evidence.
The Medical Assessor accordingly made a deduction of that order in accordance with s 323(1) of the 1998 Act when assessing the degree of the respondent’s permanent impairment from his injury, such that the Medical Assessor assessed the degree of the respondent’s permanent impairment from his injury was 17% WPI. He certified that accordingly.

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 Appeal Panel determined that the respondent should undergo a further medical examination. This is because, for reasons explained below, the Appeal Panel found the MAC contained a demonstrable error, and in order to correct that error the Appeal Panel required further clinical data that it considered it could only get by re-examining the respondent. The Appeal Panel appointed Dr Graham Blom, who is one of the medical assessors constituting the Appeal, to conduct that examination.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor overlooked evidence when rating the respondent’s impairment in social functioning relating to the respondent’s geographical distance from his sons. The appellant submitted that irrespective of whether the respondent suffered injury, he would have reduced contact with his sons because of the geographical distance between them.
The appellant also highlighted the history that the Medical Assessor obtained that the respondent was able to maintain an online relationship with a woman until he came to the view that this was wrong. The appellant submitted that this demonstrated the respondent had the ability to maintain a relationship. The appellant also referred to the history the Medical Assessor obtained relating to the respondent maintaining friendships with two close friends who do not live close by and also to the respondent having local friend and acquaintances.
The appellant submitted that the Medical Assessor erred by rating the respondent’s impairment in social functioning as Class 2, and was obliged to rate it was Class 1 based on the evidence.
The appellant submitted that the nature of the shows that the respondent watches on YouTube is such that it is an intellectually demanding task requiring concentration of more than 30 minutes, which the appellant submitted was consistent with a Class 2 rating in CPP. The appellant also submitted that the respondent being unable to perform, repair, change car oil or do maintenance work at his home is unrelated to the respondent’s psychological injury but rather is due to physical disabilities the respondent has arising from the respondent having right elbow tendonitis, complex regional pain syndrome and diabetes.
The appellant submitted that the Medical Assessor erred by rating the respondent’s impairment as Class 3 in CPP.
The appellant submitted that the Medical Assessor erred by assuming under s 323(2) of the 1998 Act that the deduction to be made under s 323(1) is 10% for the proportion of the respondent’s permanent impairment due to a pre-existing condition because that assumption was at odds with the evidence. The appellant referred to evidence relating to the respondent’s cannabis use and alcohol intake. The appellant noted that the respondent’s report to the Medical Assessor was that he had not used cannabis for 30 years but that was inconsistent with the full history the Medical Assessor obtained. The appellant also referred to the Medical Assessor observing that the respondent had red eyes during his examination of the respondent.
The appellant referred to the various physical aliments that affect the respondent, which the appellant submitted impacts the respondent’s functioning in social and recreational activities, CPP and employability. The appellant submitted that the Medical Assessor did not take account of those matters at all when determining the s 323 deduction.
In reply, the respondent submitted that the Medical Assessor considered all the relevant evidence relating to his impairment in social functioning and provided adequate reasons for his rating. The respondent submitted that the appellant has not established that the Medical Assessor was unaware of any significant factual matters when rating his impairment in social functioning. The respondent submitted that a rating of Class 2 was available to the Medical Assessor based on the evidence.
The respondent submitted that the Medical Assessor correctly confined himself to assessing his impairment with respect to CPP by reference to the effects of his psychological injury only and not taking into account any impairment due to his physical conditions. The respondent submitted that based on the findings the Medical Assessor made it was open to the Medical Assessor to rate his impairment in CPP as Class 3.
With respect to the s 323 deduction the respondent submitted that the evidence was he had not used cannabis since he was 30 years of age and that his post injury use was occasional and scant. The respondent submitted that there was no evidence that his red eyes during the examination was related to cannabis use. The respondent submitted that the Medical Assessor was correct not to consider his cannabis use as a pre-existing condition.
The respondent submitted that there is no evidence his alcohol use affected his ability to work or his life before his injury. The respondent also submitted that his physical problems are irrelevant to the assessment of his impairment from his psychological injury and the Medical Assessor was correct not to have regard to them. The respondent submitted that the Medical Assessor’s assumption that the deductible proportion for the purpose of s 323(1) is 10% was not at odds with the evidence.

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.
The Appeal Panel considers that the Medical Assessor did make an error with respect to the deduction he made under s 323(1) of the 1998 Act, but the error the Appeal Panel identified is not the purported error that the appellant identified in its submissions. Consequently, the Appeal Panel cannot correct the error it identified.[1]
[1] Pombinho v Coco Cola Euro Pacific Partner API Pty Ltd [2023] NSWSC1536 at [70]; Queanbeyan Racing Club Ltd v Burton [2021] NSWCA304 at [26]; Secretary, Department of Communities and Justice v Taane & Ors [2024] NSWSC54 at [67].
The error the Appeal Panel considers the Medical Assessor made was finding that the respondent had pre-existing substance abuse disorder. The evidence does not substantiate that the respondent does. What the Medical Assessor described in the history he obtained is the respondent, prior to his injury, and indeed subsequent to his injury, over a period of time, engaged in daily moderate to heavy drinking. That however does not amount to a substance abuse disorder. There is no evidence that his drinking had an adverse impact on his life, in that no evidence was provided suggesting addiction to alcohol. Nor was there evidence of persistent or recurrent social or interpersonal problems, or a failure to fulfil major work obligations due to alcohol. There was no evidence that the worker was aware of any physical condition being exacerbated or caused by his alcohol abuse. This is to say that there is nothing within the MAC or in the evidence the parties otherwise presented that indicates that the worker meets the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM 5) criteria of a substance use disorder, and hence the respondent does not have a pre-existing condition.
Given that the Appeal Panel cannot correct this error it considers the Medical Assessor made, it must proceed on the basis of the Medical Assessor’s finding that the that pre-existing condition exists (which to repeat the Appeal Panel is not satisfied the evidence establishes exists or was existing) and that this contributed a proportion of the respondent’s permanent impairment from his injury. In that scenario, the Appeal Panel does not consider that the Medical Assessor was wrong to assume, in accordance with s 323(2), the contributary proportion of that to the respondent’s permanent impairment from his injury was 10%. This is because in the Appeal Panel’s view, (and again noting that the finding the respondent has a substance abuse disorder was not challenged), that assumption is not at odds with the evidence.

The evidence does not demonstrate the respondent’s drinking has, or has had, an adverse impact on his life. The evidence does not demonstrate that the respondent’s symptoms and function due to his psychiatric injury, which the Medical Assessor diagnosed was post-traumatic stress disorder with depressive symptoms, was made worse by the respondent’s alcohol intake.
The appellant did not reveal in its submission what evidence it contended demonstrated that the respondent’s permanent impairment has been worsened by his alcohol intake.
The Appeal Panel rejects the appellant’s submissions to the effect that physical ailments that afflict the respondent impact on his psychological impairment in the several PIRS categories. The respondent’s impairment in his function in the several PIRS categories, based on what the Medical Assessor has recorded in the MAC, results from the respondent’s psychiatric injury. Even if there was some cross-over between the effect of the respondent’s psychological injury in the various PIRS domains and the respondent’s physical ailments, which is not the conclusion of the Appeal Panel, it could not be found that a part or portion of the respondent’s permanent impairment was due only to that pre-existing condition.[2] In other words, the evidence that was before the Medical Assessor does not demonstrate that the degree of the respondent’s permanent impairment from his psychiatric injury, which is based on his impaired function in the several PIRS categories, was made greater as a consequence of any physical affliction.[3]
[2] Southwell v Qantas Airways Limited [2024] NSWSC497 at [64].
[3] Ryder v Sundance Bakehouse [2015] NSWSC526 at [45].
The Appeal Panel however agrees with the appellant’s submission that the Medical Assessor did err, based on the face of the MAC, with his rating of Class 2 for social functioning and Class 3 for CPP. The error with respect to the Medical Assessor’s rating in social functioning was, as the appellant submitted, that the Medical Assessor did not take into account, or at least did not explain, whether the fact that the respondent lived a great distance from his sons affected the respondent’s ability to maintain a relationship with his sons. If it did, then noting that the respondent did maintain a relationship with a couple of close friends and had other friends or acquaintances close by, and had formed online relationship, then absent being a strain in his relationship with his two sons as a consequence of his injury, it would seem that the respondent’s impairment in social functioning would be a minor deficit attributable to a normal variation of the general population.
The error the Medical Assessor made with respect to his rating of the respondent’s impairment in CPP was that, on the face of the MAC, he did not have regard to the nature of the shows that the respondent watched on YouTube and the extent of the concentration that would be needed to watch those shows. In other words, noting that the history the Medical Assessor obtained was that the shows the respondent preferred to watch involved history and politics and the like, it would seem, on the face that, it would require some intellectual rigour to watch and understand the shows.
As indicated above the Appeal Panel considered it needed to re-examine the respondent to obtain clinical data from him to correct those errors and the Appeal Panel appointed Medical Assessor Blom to conduct that examination. He did so on 9 January 2024 and provided the following report to the Appeal Panel.
“1    The workers medical history, where it differs from previous records
In his Medical Assessment, Dr Hong did not address in detail Mr Williams’ relationship with his children and other family. I questioned him about this in some detail. He stated that he has two sons aged 27 and 31 years. The older son had spent a considerable amount of his childhood with his mother and Mr William said that his relationship with him had always been somewhat more distant than that with his youngest son, Mitchell. He said that prior to his injury, his relationship with Mitchell had always been very good. He said they were very close and he spent considerable time in contact with him. He denied Dr Hong’s assertion that he had little contact with his sons prior to the injury. He acknowledged that he may not have visited them regularly, but he contacted them via phone, SMS or Facebook reasonably regularly. Both his sons spent a considerable time in the military, and during periods of deployment there was separation but as far as he was able to, he kept in contact with them, particularly with Mitchell. However, the relationship with Mitchell has become very strained, to the point that Mr Williams is fearful that the relationship may be completely disrupted. Mr Williams attributes the disruption in his relationship especially with Mitchell to the impact that his injury has had on the relationship.
He said that both of his sons have now left the military, and that Mitchell had purchased a house in Caloundra, Queensland. He had asked Mr Williams to assist him with renovations and repairs, but Mr Williams because of the significant impacts of his injury, particularly on travel, was unable to travel to Queensland to help his son. He said that his son was angry and disappointed and that since then there has been a strain in the relationship. This became much worse recently following a phone call between himself and Mitchell when Mitchell became enraged at him and according to Mr Williams, was screaming at him down the phone, telling him that he should ‘get out of the house and do something’. He said that his son was so angry with him that he felt that the relationship could end. He was unable to really explain why his son was so angry with him, although he said that he did not believe that his son really understood how unwell he was. He said that his son had said in the past that you should just be able to ‘get over depression’, and that he does not understand the nature of Mr Williams distress and injury.
Following this incident, he also had contact with his older son who was also critical of him and attacked him about his ‘attitude’. Again, Mr Williams attributed the difficulties that he was having, to his sons’ apparent incapacity to empathise with and understand the nature of his illness. He did mention that both of his sons had been deployed to Afghanistan and that following their return from their deployments, they had become less sympathetic and understanding of him. In any case it is apparent from Mr Williams’ description that there has been a considerable change in the overall quality of the relationship with his sons, especially with his youngest son and that this is related to the impact of his injury on their relationship.
Mr Williams acknowledged that he has not had any significant contact with his family of origin (father, mother, and siblings) for many years prior to his injury and there has been no change in this situation.
Mr Williams also confirmed that since his injuries and the development of related symptoms of PTSD and depression, he has become extremely withdrawn and spends most of his time on his farm. He said that it is quite isolated, and this assists him to manage his anxiety but nevertheless he finds leaving the house anxiety provoking – even spending time in the yard increases his anxiety. He also noted that in the years following his injury he became more disorganised and chaotic in his lifestyle. He ceased cleaning up and he said that his house became like a ‘rat’s nest’. When I questioned him about this it would appear that he was hoarding large amounts of ‘junk’ and that his house as a result was filled with material that made it difficult to navigate the rooms. I asked whether he had been buying stuff on the Internet and he acknowledged that this had occurred on occasions but did not feel that this was the cause of his chaos. He appeared at a complete loss to explain how it occurred. He said that he has been gradually trying to change this and clean up the house over the last year although has struggled with this, particularly in persisting in the process. He also stated that he spends several hours each day sleeping due to his level of fatigue and lack of motivation. He also experiences nightmares and generally has disrupted sleep, at night.
2      Additional history since the original Medical Assessment Certificate was performed
Mr Williams said that he has continued to receive threats, he believes from the same man who threatened him while working with DMAC. He said that he has received threatening SMS messages and confirmed this by showing one to me. It showed his home’slocation on a Google map with a threatening message attached saying that he was being watched. As a result, he said that he has become even more anxious and avoidant.
He was diagnosed with diabetes type II a month or so prior to the Medical Assessment and he said that as a result of this he has tried to lose weight, and has lost a few kilograms, primarily by reducing his overall intake of carbohydrates as well as ceasing his intake of alcohol. I asked him did that mean that he had just reduced his drinking of beer but he denied this and said that he now is not drinking any alcohol at all.
3     Current Symptoms.
Mr Williams said that he continues to experience considerable anxiety which is associated with marked avoidance and withdrawal. He said that he is even anxious in the house but gets particularly panicky when he goes out, for example to go shopping. He said that except for essential travel, such as shopping for food, he rarely leaves the house. He sometimes has full panic attacks in the supermarket, but always feels panicky. He describes symptoms of feeling overwhelmed, increased heart rate, air hunger, and light-headedness with a fear that he was going to pass out.
He continues to experience reasonably regular nightmares, about three/week. He often wakes from these in panic. He also has flashbacks occasionally when he leaves the house especially if he believes he has seen someone from work.
His sleep is disturbed, even without nightmares and he experiences considerable daytime fatigue.
His energy is low as is his mood and motivation. He acknowledged that he is sometimes quite irritable, and this was on occasions evident in the interview when talking about his son’s attitude and what had happened to him at work.
He said that he struggles with concentration and focus and that his head ‘feels empty.’
He has been attempting to lose weight but nevertheless says that he does not have much of an appetite and can’t be bothered preparing foods. Previously he was a good cook he said and particularly enjoyed barbecuing but now tends to live on preprepared and packaged foods.
Overall, he described a feeling of helplessness, hopelessness and poignantly describe how he had ‘lost everything in the world’ because of his injury, his incapacity to work and his feeling of imprisonment in his home.
4      Current treatment.
Mr Williams is not currently receiving any treatment at all. He said that previously he had consulted a psychiatrist and had been trialled on various antidepressants but had not been able to tolerate them because of side effects. Moreover, he said that he did not think that they assisted his anxiety or depressive symptomatology.
He had previously had contact with a psychologist but this had ceased. He has attempted to gain further psychological treatment but said that this required him to attend the psychologist office and that he was unable to do this. As a result, he was not receiving any psychological treatment at this point either.
5     Findings on clinical examination
Mr Williams was seen via audiovisual consultation. The quality of the connection was good and I was able to perform a satisfactory examination. Mr Williams was alone throughout the interview, which was conducted I believe in his solicitor’s office.
Mr Williams looked untidy and unkempt. He was wearing a baseball cap and a T-shirt that was dirty and stained. Overall, it appeared as though his self-care was less than satisfactory.
During the interview he was cooperative and attempted to engage, although he had a discursive style and tended to be somewhat rambling. He was vague and distractible.
He was an anxious and somewhat stressed man, who occasionally was irritable, especially when talking about the abuse that he had experienced and his hurt and annoyance at his sons’ ‘lack of understanding’ and judgemental attitude. On occasions he also was close to tears, again when talking of his sons.
He appeared depressed, although his affect was reactive. He expressed passive suicidal ideation.
He was not psychotic, and in particular did not display formal thought disorder, delusions or hallucinations.
His cognitive function was consistent with the history that I took and my mental state examination and reflected a man with significant trauma-based anxiety compounded by depressive disorder.
6      Diagnosis.
At the current interview, I believe that Mr Williams met the DSM 5 criteria for the following disorders:
I.Post Traumatic Stress Disorder (PTSD) – chronic.
II.Persistent Depressive Disorder – with persistent Major Depressive disorder.
I made the diagnosis of PTSD because of the presence of threats that Mr Williams credibly believed were potentially violent and life-threatening. This has resulted in symptoms of anxiety characterised by intrusive re-experiencing, avoidance, hypervigilance and mood related disorder. I have made a second diagnosis of Persistent Major Depressive Disorder, because at the time that I examined Mr Williams I believe that his depressive symptoms, marked by persistently low mood, marked fatigue, sleep disturbance, feelings of hopelessness helplessness, loss of motivation and disturbed concentration were severe enough to warrant a separate diagnosis.
I have not diagnosed a substance abuse disorder, because at this time Mr Williams is not using alcohol or cannabis. Again he confirmed that he has not used regular cannabis for many years. When I questioned him about his previous use of alcohol it appeared to me that whilst he was a heavy drinker, he did not display behaviours consistent with Alcohol Abuse disorder. He did not acknowledge on close questioning any behavioural, interpersonal or medical effects, of which he was aware, impacting his life as a result of his use of alcohol. He also denied any forensic issues directly related to his use of alcohol. If my history is correct, then he does not, nor has he in the past, met the criteria, according to DSM 5 for a Substance Abuse disorder.

7     Results of any additional investigations since the original Medical Assessment Certificate
No investigations were undertaken.
8     Review of the matters under appeal.
As I have noted above, Mr Williams described a close relationship with both of his sons, particularly his youngest son, prior to his injury. While he did not necessarily see them frequently, he had reasonably close contact with them. Since his injury there has been increased levels of conflict and in particular the relationship with his younger son has become disrupted because of, it appears, of his disappointment and anger at his father’s ongoing illness and disability. His relationship with his oldest son has also become more strained and tense.
Mr Williams said that prior to his injury he only had reasonably limited social circle but nevertheless has had a couple of friends for many years. Even though he does not have face-to-face contact with them very often now he nevertheless maintains contact with them and there has not been any significant disruption in the relationship. He continues to maintain cordial relationships with friends and acquaintances in his local area.
While Mr Williams is able to watch YouTube videos mostly these are played in the background as ‘background noise’. When I asked him about watching political videos he was somewhat scathing about the previous medical examinations saying that ‘he wasn’t some sort of intellectual’ and that when he had previously watched ’political videos it was to try to understand what was happening in Afghanistan where his sons were serving. Primarily he said he listens to music type videos. He said that he spends much of his day however sleeping and just sitting on the lounge. He tries to clean up but is very slow and struggles to persist. He has also tried to play the guitar but finds that he struggles with concentration and persistence. In the interview with me he was vague, sometimes rambling and tended to be reasonably easily distracted. He sometimes struggled with his memory.
Signed:     Dr Graham Blom.”

The Appeal Panel accepts the report of Medical Assessor Blom and adopts:
(a)     the updated history he had provided the Appeal Panel in his report,
(b)    the history he obtained from the respondent relating to the symptoms the respondent currently suffers,
(c)    the history he obtained relating to the respondent’s function in social functioning and in CPP
(d)    the findings he made from his clinical examination, and
(e)    the diagnosis of the respondent’s injury.
Based on what Medical Assessor Blom has advised in his report to the Appeal Panel, the Appeal Panel rates the respondent’s impairment in social functioning as Class 2. The Appeal Panel observes that the descriptors provided for a Class 1 rating in social functioning, which is what the appellant submitted should be the rating, are:
“No deficit, or minor deficit attributable to the normal variation of the general population: no difficulty in forming and sustaining relationships (eg. A partner, close friendships lasting years).”
The descriptors provided for a Class 2 rating are:
“Mild impairment: existing relationship strained. Tension and argument with partner or close family member, loss of friendships.”
The respondent’s relationship with his sons has deteriorated since his injury. It is fair to say that his relationship with his sons is now strained and is subject to tension and arguments. Whilst it is the case that he maintains relationships with close friends and local acquaintances, the fact that his relationship with his sons is strained means that his impairment in social functioning best correlates with the impairment described by the descriptors for a Class 2 rating.
The Appeal Panel, based on what Medical Assessor Blom has set out in his report to it, rates the respondent’s impairment in CPP as Class 3. Medical Assessor Blom’s report reveals that the respondent does not actively engage in the shows he views on YouTube. It reveals that the respondent struggles playing the guitar due to his impairment to concentrate and his persistence. It reveals that the respondent was vague and at times rambling during Medical Assessor Blom’s examination of him and was easily distracted. It revealed that the respondent struggles with his memory. Those are all impairments consequent upon the respondent’s psychiatric illness constituting his injury. They have nothing to do at all with any physical ailment the respondent has.
The Appeal Panel notes that the descriptors provided in Table 11.5 for Class 2 impairment in CPP are:
“Mild impairment: can undertake a basic retraining course, or a standard course at slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then fatigue or develops headaches.”
The descriptors provided for a Class 3 impairment are as follows:
“Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, buildings plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The respondent’s function in CPP, as described by Medical Assessor Blom, best correlates with the impairment described by the descriptors for a Class 3 impairment. They do not fit within the descriptors provided for a Class 2 impairment, in the Appeal Panel’s view. Essentially, the respondent exhibits very limited concentration and persistence and has difficulty with his memory. That is a moderate impairment.

The upshot of this was the Appeal Panel found that the Medical Assessor did make errors with his assessment of the respondent’s impairment in social functioning and CPP, but on re-examination the Appeal Panel, and correcting those errors, the Appeal Panel has assessed the respondent’s impairment in those PIRS categories the same as the Medical Assessor. Consequently, notwithstanding there were demonstrable errors in the MAC, the Appeal Panel confirms the MAC.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 October 2023 should be confirmed.

[2024] NSWPICMP 334

27 May 2024