Dwyer v Secretary, Department of Communities and Justice
[2024] NSWPICMP 276
•6 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Dwyer v Secretary, Department of Communities and Justice [2024] NSWPICMP 276 |
| APPELLANT: | Sally Dwyer |
| RESPONDENT: | Secretary, Department of Communities and Justice |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Ask Takyar |
| DATE OF DECISION: | 6 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from 8% assessment for psychological injury: whether incorrect criteria or demonstrable error; whether fresh evidence admissible; Held – misapprehension by appellant that facts alleged in submissions were evidence; misapprehension infected all the submissions; Ferguson v State of New South Wales, Glenn William Parker v Select Civil Pty Ltd, and Jenkins v Ambulance Service of New South Wales considered and applied; fresh evidence rejected on 4 bases; statutory declaration sworn after grounds of appeal lodged and no evidence that it was served; it infringed section 328(3) in that evidence available at time of assessment; it had no prima facie probative value; Lukacevic v Coates Hire Operations Pty Ltd considered and applied; it did not concern the evidence the Medical Assessor was considering; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 November 2023 Sally Dwyer, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 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 (the 1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· 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 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, 4th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 6 September 2023 this matter was referred to a Medical Assessor for an assessment of WPI caused by psychiatric and psychological disorder on a date of injury of 30 January 2021.
Ms Dwyer was employed as a Correctional Officer with the Department of Communities and Justice, the respondent. She commenced employment with the respondent as a casual worker, working initially one day a week and then up to three days per week.
At the time Ms Dwyer was under regular review by a psychiatrist Dr Kim for an earlier depressive syndrome that arose from her employment elsewhere.
Whilst working for the respondent Ms Dwyer developed a close personal relationship with a senior male colleague which lasted for over one year. Ms Dwyer felt that her mental health began to deteriorate at the end of the relationship. She initially felt embarrassed amongst her colleagues and then felt she was being unfairly treated and at times laughed at.
Her interactions with others at the workplace became increasingly difficult and Ms Dwyer eventually became certified as having no capacity for employment.
At the time of the assessment Ms Dwyer had on three occasions attempted to be re-established in the workplace but each attempt had been unsuccessful. The last one had been in April 2022.
The Medical Assessor found 8% WPI.
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 it was not necessary for the worker to undergo a further medical examination as we were unable to find any error in the MAC.
We note that a request was made by the appellant for an opportunity to make oral submissions, but no submissions were addressed as to that application. In any event no issue arose in the case that was sufficiently novel to warrant the granting of the application.
Fresh evidence
The appellant seeks to admit the following evidence:
(a) Statutory declaration dated 6 December 2023 from Ms Dwyer.
This application is integral to the outcome of this appeal, and we shall consider it below in our findings and reasons.
The Personal Injury Commission (Commission) also received a Form 2C Application to Admit Late Documents from the appellant dated 22 February 2024, by which two letters from the respondent were, we presume, sought to be also admitted as fresh information. The first letter was dated 18 January 2024, the appellant that she had been medically retired. The second document was dated 9 February 2024 confirming that retirement.
The Form 2C gave as the reasons for the application:
“The documents are submitted late given the fact that they have only just been produced and provided to our client.”
This correspondence is rejected. There was no attempt to explain their relevance to the appellant’s case, given that the Medical Assessor found that Ms Dwyer was totally impaired, and could not work at all.
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.
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 which 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 MAC
The Medical Assessor in taking the history relating to the injury, noted that Ms Dwyer’s mother was currently living in a “granny flat” on the same property as Ms Dwyer.
He further noted that Ms Dwyer met with her psychiatrist Dr Kim every six or eight weeks, and that she met with her psychologist, Sharon Draper, every two weeks. She was also noted to be having physiotherapy for persistent neck pain.[1]
[1] Appeal papers page 21.
Ms Dwyer described to the Medical Assessor that she “gets enjoyment from time with animals, both her to pet dogs which she takes for a walk on the beach when she can, and native animals that live in the local area and that she feeds.”
In describing Ms Dwyer’s social activities, the Medical Assessor stated:
“Ms Dwyer lives with her husband, Will. Her mother lives in a granny flat on the same property. Ms Dwyer was previously officially a carer for her mother though Will took over this role in July 2023. Ms Dwyer married Will in May of this year and spent a month in Canada touring on honeymoon….. Most days Ms Dwyer will get out of bed at the time between 8 AM and 10 AM and take her two dogs for a walk on the beach with her husband. They then usually go for a coffee together before returning home and having breakfast or lunch….[Ms Dwyer] is currently enrolled in a Certificate 3 course in horse care and may spend some time doing work online for this, though she finds this tiring and is getting behind with her coursework. She enjoys looking after wildlife which comes to her garden, which she may feed….”
In his findings on physical examination, the Medical Assessor noted:
“…. Her speech was normal, and she gave a comprehensive and spontaneous history….. Her mood was subjectively one of irritability and objectively one of high anxiety, irritability, and anger. She described being very unsure about the future….”
The Medical Assessor noted in his summary at [7] that Ms Dwyer was a married woman who lived on a property she shared with her husband and her mother.
At [10a] the Medical Assessor said that in making his assessment he had taken account of the history provided to him by Ms Dwyer, information from documents provided and mental state examination and interview. He kindly set out a chart demonstrating the class assessments made by each medico-legal expert and himself. Dr Abhishek Nagesh was retained by the appellant, and Dr Judith Clarke, for the respondent.
Relevantly, for the Travel category the Medical Assessor explained his class 2 rating in comparison to the class 3 rating found by Dr Nagesh. Dr Clarke also found a rating of 2. The Medical Assessor said:[2]
“Dr Nagesh bases his rating on Ms Dwyer reporting that she is unable to leave her house without her partner due to anxiety. Ms Dwyer has travelled extensively in recent months, in particular when on her honeymoon which included travel by air, sea and train. Though she was accompanied by her husband, I am of the view that this indicates a mild impairment in this area.”
[2] Appeal papers page 25.
As to Social Functioning, the Medical Assessor noted that all assessors agreed that the appropriate class rating was 2.
In his Table 11.8 Psychiatric Impairment Rating Scale (PIRS) Rating Form the Medical Assessor made the following relevant comments:
“…She has a capacity to look after herself adequately the (sic – she) benefits from the support of her husband.”[3]
“Ms Dwyer frequently goes with her husband to café’s (sic) for coffee, and they take their dogs for walks in the local area. Ms Dwyer and her husband were on honeymoon in May and June of this year going on a cruise and a rail journey through Canada. She does not participate in social or recreational activities without the support of her husband.”[4]
“Ms Dwyer is able to travel in local areas without the support of her husband, though going greater distances will have his support…. She was able to travel overseas including on a train and cruise ship in May and June of this year.”[5]
“Ms Dwyer married in May of this year. She describes a close relationship with her husband though there are tensions in the relationship with his adult children…”[6]
“Ms Dwyer is currently enrolled in the certificate three course on horse care…. She is currently attending a weekly psychotherapy program…”[7]
[3] Reasons regarding Self Care and personal hygiene.
[4] Reasons regarding Social and recreational activities.
[5] Reasons regarding Travel.
[6] Reasons regarding Social functioning.
[7] Reasons regarding Concentration persistence and pace.
SUBMISSIONS
The appellant
The appellant began her submissions by addressing the method mandated by Chapter 11 of the Guides for the computation of the appropriate level of whole person impairment.
We were advised that one additional class 3 would have meant that the application succeeded. Such comments are not germane to our function and ought not to be made.
The appellant addressed some of the categories within the PIRS. The submissions were somewhat imprecise, but appeared to address travel and social functioning.
Travel
The appellant submitted that the history recorded by the Medical Assessor was not that given by Ms Dwyer at the assessment. The Medical Assessor misconceived what he had been told, it was alleged, and his judgment had been affected by the alleged errors.
The appellant submitted that Ms Dwyer, contrary to the MAC, had told the Medical Assessor that she could drive herself in local areas with the support of her husband. It was submitted that the Medical Assessor had misconstrued what Ms Dwyer allegedly said, by finding that she was able to “try travel [sic] locally without her husband.” The submissions alleged that Ms Dwyer had said that “she drives (but with her husband present in the car).”
Further, Ms Dwyer whilst conceding that the appellant’s honeymoon was a relevant factor, submitted that the Medical Assessor had placed “undue weight” on it. This, it was argued, “seems to have affected” the judgement of the Medical Assessor in both travel and “relationships,” which we assume is a reference to the PIRS category of social functioning. For this reason, the appellant argued, it was “incumbent” upon the Medical Assessor to “obtain a detailed history both about the relationship with her new husband and about the honeymoon.”
We were advised that the “proper history” was available from Ms Dwyer. It was submitted that Ms Dwyer “indicates” that she travelled with her mother as well as her husband on her honeymoon. The appellant submitted further that Ms Dwyer “indicates” that she withdrew from several activities during part of the honeymoon, and isolated herself. It was submitted further that Ms Dwyer had forfeited a prepaid full day excursion during the honeymoon, and that the honeymoon was the first attempt “since the incident” (which we assume is a reference to the date of injury), and that she had not holidayed since.
The “preponderance of the criteria” supported a class 3 valuation rather than a class 2, the appellant concluded.
Social “function”
The appellant submitted that again the Medical Assessor had not accurately recorded Ms Dwyer’s statement. Whilst the Medical Assessor had noted that there were tensions in the relationship with her new husband’s adult children, it was submitted that Ms Dwyer had told the Medical Assessor that she had ended her relationship with those children. Further, whilst the Medical Assessor had noted that she had lost contact with her friends, the appellant submitted that Ms Dwyer “has lost five long-term friends, fallen out of regular and meaningful contact with another four long-term friends and ceased her relationship with her two stepchildren.” It was accordingly not accurate for the Medical Assessor to have described ”tensions in the relationship” as Ms Dwyer had lost “those relationships.”
On “a fair assessment of relationships” the appellant submitted that a “category 3” should be assessed. We assume the appellant meant to say a “class 3”.
New evidence
The appellant foreshadowed the content of the fresh evidence in her submissions as follows:[8]
“New Evidence
On 10 October 2023 a contract for the sale of Ms Dwyer’s house became unconditional. She is selling that house and moving to a property in Tasmania. Settlement on that property is due on 27 November 2023. The settlement is away from populated areas and Ms Dwyer will avoid social contact. This is indicative of a higher level of impairment.”
Incorrect criteria/demonstrable error
[8] Appeal papers pages 10-11.
Under this heading the appellant argued that on the facts found by the Medical Assessor a class 4 of social functioning should have been given, rather than the class 2 that the Medical Assessor allowed. The preponderance of criteria, it was submitted, should at least have provoked a class 3.
The facts referred to pertain to the Medical Assessor’s recording that Ms Dwyer and her husband lived together, and her mother lived in a granny flat on the same property. Ms Dwyer had previously been “officially” a carer for her mother until her husband took over the role in July 2023. The appellant therefore argued that as she was unable to care for a dependent she qualified under the “indicative criteria” for a class 4 assessment.
Demonstrable error/history relating to the injury
As to the history regarding the injury, the appellant submitted that the Medical Assessor “downplays the genesis and origin” of the psychiatric condition. The appellant submitted that Ms Dwyer’s view was that the end of the relationship was not the cause of her symptoms. It was submitted that Ms Dwyer considered that she endured workplace bullying by her former boyfriend and colleagues at work. She was made fun of, unfairly treated, sworn at, and at times laughed at. The appellant submitted that Ms Dwyer thought she was exposed to several potentially dangerous incidents when a radio security system was deliberately interfered with. “In effect,” the appellant submitted, “[the Medical Assessor] trivialised the Genesis of the onset of Ms Dwyer’s condition.”
The respondent
The respondent noted firstly that no further evidence had been filed with the appeal. Presumably relying on the precis in the appellant’s submissions, the respondent submitted that the new information was not relevant.
Although the appellant relied on the ground that the Medical Assessor had relied on incorrect criteria, the respondent submitted that no such error had been made out, nor indeed that the appellant had addressed the criteria which it alleged had been incorrectly based.
The respondent then answered each “ground” as set out by the appellant.
Additional relevant information
The respondent repeated that there was no new information lodged. as the location of the appellant’s residence was not a relevant issue regarding the PIRS class ratings. It might have been relevant to the category of social and recreational activities, but the Medical Assessor had rated that category as class 3, and there was no challenge by the appellant to that finding.
The respondent noted that the appellant advised that the sale of her house became unconditional on 10 October 2023. It followed that the impending property sale would probably have been known by Ms Dwyer at the time of the assessment on 5 October 2023. The evidence about the sale was accordingly reasonably obtainable before the assessment, and the evidence was therefore inadmissible.
The respondent also submitted that the “additional relevant information” did not demonstrate an error in the MAC. (We found that submission curious, as at that stage the additional information had not been obtained).
Travel
The respondent kindly reproduced the descriptors for classes 2 and 3 for this category. It submitted that the facts the Medical Assessor relied on justified the class 2 rating.
Social functioning
Again, the respondent kindly set out the descriptors for classes 2-4 of this category. It referred to the facts it had already outlined in its Travel submissions, and referred to some more findings by the Medical Assessor in submitting that no error had been made.
History relating to the injury
The respondent submitted that this ground was misconceived by the appellant, as we understood the submission. The respondent submitted that the cause of the injury was not in issue, and was immaterial to the task the Medical Assessor was required to perform.
DISCUSSION
Before dealing with these submissions, it is convenient to set out the leading authorities as to the PIRS.
The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[9] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[9] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[10]
[10] See 11.15-11.21 at Guides at page 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[11] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[12]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[11] [2017] NSWSC 887.
[12] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[13] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[13] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Appeal Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated, or
(d) if an unsupportable reasoning process could be made out.
It is of course axiomatic that any proposition made during submissions must have some evidentiary basis. We were surprised therefore to find that many of the appellant’s submissions were indeed lacking such support. There seemed to be an assumption by the appellant, with respect, that by including untested facts within her submissions, they would become evidence. Such is not the case. Whilst the rules of evidence are not binding on the Commission,[14] it has an obligation to apply the rules of law in arriving at its decision.[15]
[14] Section 43 of the Personal Injury Commission Act 2020 (2020 Act).
[15] South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16.
The challenge to the class 2 assessment in the Travel category is an example. It was based on an assumption that the Medical Assessor was wrong because Ms Dwyer subsequently said so, as voiced in submissions by her legal advisor. The Appeal Panel is unable to evaluate that submission because it is unable to evaluate the evidence on which it is based.
A perusal of the grounds of appeal demonstrates that the appellant has applied this misconception to most of his submissions. We have considered all the appellant’s arguments, but they are for the most part infected by their reliance on the regrettable misassumption that the submissions therefore became evidence. The MAC was through detailed and carefully considered. Applying the above authorities, we confirm his assessment.
The application to admit Ms Dwyer’s statement of 23 December 2023
The first difficulty with this application is that, although the appellant indicated that she was relying on this ground, the fresh evidence was not lodged with the Form 10 Appeal Application. The Form 10 was signed on 2 November 2023, but the statutory declaration, as can be seen, was dated 6 December 2023. The appellant foreshadowed the content of the fresh evidence in her submissions as follows:[16]
“New Evidence
On 10 October 2023 a contract for the sale f Ms Dwyer’s house became unconditional. She is selling that house and moving to a property in Tasmania. Settlement on that property is due on 27 November 2023. The settlement is away from populated areas and Ms Dwyer will avoid social contact. This is indicative of a higher level of impairment.”
[16] Appeal papers pages 10-11.
The Form 10A Notice of Opposition was signed on 24 November 2023 and the decision by Stephanie Small, the President’s delegate, to permit the appeal to proceed was made on 5 December 2023. Our enquiries have established that the Statutory Declaration by the appellant was lodged on 7 December 2023. The lodgement was unaccompanied by the relevant form for the admission of late documents (form 2C), and there was no indication that the Statutory Declaration had been served.
At paragraph 9 of its submissions in response, the respondent noted that no additional evidence appeared to have been filed. It objected on the basis of the appellant’s description of what the fresh evidence intended to raise, but it does not appear that at any stage has the respondent had access to the Statutory Declaration itself. The description in the appellant’s submissions of the intended fresh evidence proved to be but a portion of the statement’s content, and the additional content is also significant.
There is in any event a breach of natural justice and procedural fairness.[17] We would have been rejected the fresh evidence on the basis that there was no evidence that the Statutory Declaration had been served in any event, but there are more substantive difficulties with her application.
[17] See Shi v Transpace Pty Ltd [2023] NSWPIC 314 and Member Haddock’s review of the legislation and authority governing the application of procedural fairness in the Commission at [192]-[201].
The grounds of this appeal were pursuant to s 327(3)(b)(c) and (d). Section 327 (3) provides:
“(3) The grounds for appeal under this section are any of the following grounds-
(a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment,
(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c) the assessment was made on the basis of incorrect criteria,
(d)the medical assessment certificate contains a demonstrable error.”
It can be seen that the appellant’s challenge is thus that the content of the additional information is relevant to the Medical Assessor’s reasons in that he made his assessment on the basis of incorrect criteria or made a demonstrable error, or both.
Clearly, the intent of the additional evidence as foreshadowed in the submissions before us was to bolster the appellant’s argument about the social functioning category, but the actual document when it was eventually drafted, went a lot further than that.
In her Statutory Declaration, Ms Dwyer stated that she now lived in Tasmania in an area away from populated areas. The settlement of Ms Dwyer’s property – presumably 77 Walmer Avenue, Sanctuary Point, the address given in the Application to Resolve a Dispute (ARD) – occurred on 20 November 2023 and she and her husband moved to Tasmania on 27 November 2023.
As at the date of her Statutory Declaration, 6 December 2023, Ms Dwyer said that she was living at an address in Gowrie Park, Tasmania. It was a 15-minute drive from the nearest town, Sheffield, and her property was isolated.
Pausing there, a number of issues are already evident. Firstly, the appellant, in her submissions to the Appeal Panel, advised that the contract for the sale of Ms Dwyer’s house became unconditional on 10 October 2023. It is a fair assumption that the contract therefore had been exchanged some time earlier, and indeed that the property had been on the market for a while before that. Secondly, the statement in the grounds of appeal that Ms Dwyer had already found a property in Tasmania that was away from populated areas enables a further inference to be drawn that she had been looking for such a place at least on the date of the submissions, 2 November 2023, and probably for some time before that.
It follows that as at the date of the assessment, 5 October 2023, Ms Dwyer had plans well underway to effect her transfer to Tasmania. If the contract for sale became unconditional on 10 October 2023, Ms Dwyer must have been aware that she was selling her property at the time of her consultation with the Medical Assessor on 5 October 2023, and it is probable that she was also intending to move to Tasmania at that time.
Section 328(3) concerns applications for the admission of fresh evidence:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
None of these plans were mentioned to the Medical Assessor. We are satisfied that the pending sale of Ms Dwyer’s property, and her intention to move to Tasmania, was evidence that was available at the time of the medical assessment.
Whilst it appeared by the context of her submission on 2 November 2023 that the appellant intended to confine the content of the fresh evidence to the Social Functioning category, in fact the content of the Statutory Declaration takes the matter a good deal further.
The statement of 6 December 2023
Ms Dwyer’s Statutory Declaration advised that she was then living at an address in Tasmania. She said that she and her husband had sold their Sydney property, with settlement taking place on 20 November 2023.
Ms Dwyer stated from [8]:
“My relationship with my husband has been increasingly strained. I hoped that when we moved to Tasmania things would have improved and the tension would have eased but this has not been the case.
On 30 November 2023, My Husband [sic] and I discussed our marriage and agreed that the marriage was ended and that we would get a divorce.
William is currently still living in the same house as I but he will move out of that house when he has the arrangements in place and he is likely to move back to the mainland. I am likely to stay in Gowrie Park.”
We have uplifted the relevant comments made by the Medical Assessor throughout his statement of reason above. He was advised that Ms Dwyer, her husband and her mother were living on the same property. He was advised that Ms Dwyer was receiving regular treatment every few weeks from her psychiatrist, her psychologist and her physiotherapist. He was advised that she and her husband Will liked to take her dogs for a walk on the beach and go for a coffee before returning home for breakfast or lunch. He was advised that Ms Dwyer and Will had married in May 2023, and that Will took over the role as carer for Ms Dwyer’s mother in July 2023. He was advised that Ms Dwyer and Will had travelled extensively by air, sea and train to Canada in May and June 2023. He was advised that Ms Dwyer enjoyed a close relationship with Will, although there were tensions in her relationship with his adult children.
It can be seen that there was no suggestion of any strain whatsoever with Will. Ms Dwyer’s Statutory Declaration that her relationship with her husband “has been increasingly strained” was not reflected in anything she said to the Medical Assessor. Moreover, she did not allege in her submissions to the Appeal Panel that she had indeed advised him of this tension. Through her legal advisor she said that the move to Tasmania would simply take her away from populated areas.
It was suggested in those submissions that the Medical Assessor had placed undue weight on the fact of the honeymoon, and that submission sought to establish that Ms Dwyer’s mother also travelled with them. Be that as it may, the fact that Ms Dwyer had remarried in May 2023 and been on the extensive honeymoon she described, were material facts that the Medical Assessor was obliged to take into account. We reject the submission that he placed undue weight on those factors.
We have significant reservations about the plausibility of Ms Dwyer’s Statutory Declaration. Whilst it is always possible that a marriage would deteriorate after such a short period, we are left with such questions as what arrangements were made for the care of Ms Dwyer’s mother, if the marriage were to end, given that Will was apparently her carer. With the emphasis placed on the care of her mother as recorded by the Medical Assessor, the failure to address that circumstance gives us some reservations about whether indeed the marriage had ended. Predominantly however we regard the failure by Ms Dwyer to either acknowledge that she was moving to Tasmania, or to give any history to the Medical Assessor that there was any problem in the marriage such a short time before the couple moved to Tasmania, as being inexplicable. We find the Statutory Declaration has no substantial prima facie probative value in terms of its particularity, plausibility or independent support. This statement is accordingly objectionable on this ground also.[18]
[18] See Hodgson JA in Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112 at [78].
We would also note that a Medical Assessor is bound by the terms of Chapter 1a of the Guides which require that “assessing permanent impairment involves clinical assessment of the claimant as they (sic) present on the day of assessment…” It is not suggested that the Medical Assessor was aware that Ms Dwyer was intending to move to Tasmania, neither was it suggested that he was aware that there were tensions between Ms Dwyer and Will. The Medical Assessor dealt appropriately with the evidence that was before him.
The Statutory Declaration (and indeed the two medical retirement letters) do not affect the MAC, as they pertain to matters that the Medical Assessor had no knowledge about when Ms Dwyer presented to him on 5 October 2023.
Accordingly, we reject the evidence contained in the Statutory Declaration of 6 December 2023 on a number of grounds:
(a) the manner in which the Statutory Declaration was lodged offended against the rules of natural justice and procedural fairness.
(b) The evidence that Ms Dwyer was selling her house and moving to Tasmania was available at the time of the medical assessment and therefore not admissible pursuant to s 328(3) of the 1998 Act.
(c) The evidence that there were tensions with Ms Dwyer’s husband which have subsequently led to an agreement to divorce lacks substantial prima facie probative value.
(d) The contents of the Statutory Declaration did not concern the question of whether the Medical Assessor had used incorrect criteria or made a demonstrable error, as he was unaware of Ms Dwyer’s present allegation that circumstances have changed since the medical assessment on 5 October 2023.
For these reasons, the Appeal Panel has determined that the MAC issued on 9 October 2023 should be confirmed.
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