Enright v Secretary, Department of Education

DETERMINATION OF APPEAL PANEL
CITATION:	Enright v Secretary, Department of Education [2024] NSWPICMP 778
APPELLANT:	Donna Enright
RESPONDENT:	Secretary, Department of Education
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	20 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Personal Injury Commission Act 2020; the appellant submits that the Medical Assessor (MA) erred in his assessments under three categories of the psychiatric impairment rating scale (PIRS), namely social and recreational activities, travel, and employability; in addition, the appellant submits that the MA acted without jurisdiction in regard to the category of employability in reliance on the provisions of section 56; reliance on section 56 misguided; the MA is not a party to the proceedings; Held – no error by the MA in all categories appealed; the assessment was consistent with all the evidence; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 September 2024 Donna Enright (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 23 August 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

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 worker should not undergo a further medical examination because although one was requested, the Appeal Panel is satisfied that we have sufficient evidence to enable us to determine this appeal for reasons we will set out in due course.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in his assessments under three categories of the Psychiatric Impairment Rating Scale (PIRS), namely Social and Recreational Activities, Travel and Employability.
In addition, the appellant submits that the MA acted without jurisdiction as regards the category of Employability in reliance of the provisions of s 56 of the Personal Injury Commission Act 2020 (the 2020 Act).
In reply, Secretary, Department of Education (the respondent) submits that no errors were made.

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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychological injury on a date of injury of 30 January 2023.
The MA obtained the following history:
“Ms Enright commenced working with the Department of Education in 2002. Her last day at work was on 26 November 2021. She has not returned to work as yet. She denied having any secondary employment or businesses.
Ms Enright reported that since the commencement of Mr Ellerson as a new director in 2021, there were multiple changes at the workplace, which started impacting her. Ms Enright elaborated that Mr Ellerson had different expectations from her and had different practices in terms of using hard copy technology, photocopying, et cetera. She added that he sent her an email stating that he ‘wanted to get things done’ within a stipulated time. Ms Enright, however, said that since she was working remotely during COVID, it was difficult to go through the entire list of tasks that Mr Ellerson wanted her to work on.
She went to the office and told him that she was given a ‘significant number of tasks and that she has got other duties as well on top of what he has asked her to do’. She still went ahead and asked him to give her three weeks to complete the task and to prioritise the task, however, Mr Ellerson said that he wanted to get the tasks completed immediately.
Ms Enright alleged that he started bullying her soon after belittling her and making critical comments about her performance. Ms Enright said that gradually the bullying increased and so did his critical comments which started impacting Ms Enright. Ms Enright said there were multiple incidents where she was bullied and gave an example of how once when she was experiencing neck pain, Mr Ellerson accused her of faking neck pain and queried if she was genuinely sick.
She said that by April 2021, she started experiencing mental health symptoms. She added that she was often ‘undermined’. Mr Ellerson at one point asked her to make an appointment about her performance. She said that this is after they had already discussed that she would need at least three weeks to complete the task. She added that there were discussions around her performance, but she was not put on any performance improvement plan initially. She said by the time they had the meeting; she had already completed the task but her manager still wanted to put ‘some items on PDP’.
He recommended Ms Enright to do more courses to update her which Ms Enright happily completed and complied. Ms Enright then went on leave during Term 3 in 2021. She said that there were multiple meetings, and they used her as a ‘punching bag’ and even called her a liar.
She said that there was another instance where she asked for a day off to look after her granddaughter and asked if she could work from home. Her manager first gave her the permission to take the week off but then changed his mind and said that she would have to work from the office. Her manager accused her of ‘babysitting her grandson during the work hours’.
The last incident when she was made feel ‘unsafe’ was when he was quite aggressive towards her and verbally bullied to the extent that she felt unsafe being in the office. She reported that she started experiencing anxiety attacks and felt ‘afraid to go to work’. She was nervous of what her manager would say and do and felt unsafe around his company.
She started losing her confidence as she was always questioned about the work she did as was allegedly constantly yelled at and bullied. She was also accused of applying for transfer without his knowledge and her manager called her a ‘liar’. She said that her sleep was ‘non-existent’ and she would often dream that ‘she was working at her office’.
She said that things constantly played in her mind over and over again. Her appetite fluctuated. She would binge eat to ‘distract and occupy herself’. She lost weight initially and then gained weight.
She said that she was referred to see a Psychologist in October 2021 and used to see her every fortnight. They talked about coping strategies of how to manage anxiety, dealing with procrastination and low motivation. She has not seen any Psychiatrist for treatment purposes and was under the care of her GP. She was prescribed Propranolol and Mirtazapine to address the anxious and depressive symptoms.”
The MA then set out details of her personal and family history, before setting out details of her present treatment as follows:
“She continues to see the Psychologist but has not seen the Psychologist in the last month because she had a chest infection and flu. She is currently on medications. Ms Enright denied remembering the names of the medications. I have noted from the other documentations that she is on tablet Mirtazapine 30 mg, Propranolol 40 mg and Temazepam 10 mg nocte prn.”
Present symptoms were noted as follows:
“Ms Enright reported that ‘things have changed a lot’. She said that she has a better understanding of her symptoms and is able to cope and manage her anxiety better. She said that when she starts having a panic attack, then she applies techniques to avert a full-blown panic attack.
Ms Enright reported that she has been struggling financially since she was paid until 2021 and has not been paid after that. She said that is the ‘other reason why she cannot go out even when she wants to’. She is fearful of returning to the workplace. She lacks trust in her employers.
Ms Enright reported slight improvement in mood but still continues to have depressive symptoms as before. She continues to have general anhedonia, loss of enjoyment of pleasurable activities, worthlessness, helplessness, hopelessness, pessimistic thoughts about future and intrusive thoughts about the incidents at her workplace. She further reported experiencing low energy levels, decreased motivation, and she also experiences anxiety symptoms including palpitations, breathlessness, tremulousness, unable to relax, feeling on the edge and at times even agitated.”
The MA then turned to consider the impact of Ms Enright’s’ injury on her social activities and activities of daily living (ADL’s) and said:
“Ms Enright reported that she showers about ‘2-3 times a week’. She said that she ‘doesn’t feel like doing much’. She is, however, able to do all the household chores including cooking. She has been able to live on her own most of the time since the accident and her son has only recently moved in. Ms Enright reported that on ‘good days’, she does most of the things, but on ‘bad days’, she does some of the things some of the times.
She enjoyed socialising with her friends and going out for shopping, lunches and dinners. She also used to socialise with friends from her church. She said that now, she only spends time with her family and does not go out with friends. She said that she does not feel like talking about her predicament, however, some of her friends have been supportive. She said that one particular friend used to come over and bring food and stayed overnight and did that whenever she was able to come.
Ms Enright has now stopped going to the church. She said that her friends and family members often come over and visit her. She visits her son in Top Ryde and goes to the shopping centre and meets them there. She takes her grandkids for a walk and for shopping. Her granddaughter also comes over every Friday and she takes her out for shopping.
She leaves home to go out for shopping and buying food to the nearby shops. She has been able to drive to Top Ryde which is a 20 to 30-minute drive from her home without any difficulties. She also used to drive to Gregory Hills which is a 40-minute drive until her son moved in with her. She added that a few weeks back, she went to Canberra to stay with her son overnight and said that it was good.
She visits her brothers frequently and at times, they come over. They have dinner together and spend time watching movies. She has a good relationship with her adult kids and her grandkids. She has, however, lost a few friends.
She said that her attention and concentration are ‘sometimes really good and sometimes I forget’. She said that, at times, she forgets to do what she was doing in the middle of the chores. She described having difficulties in focusing her attention for prolonged period of time and getting distracted even during conversations. Ms Enright, however, was able to focus during the assessment and was not distracted.
On a typical day, she gets up at varying time depending on the number of hours she slept. She then has her coffee and smokes. She then looks around for activities at home like washing dishes, cooking and other household chores. She then does all the household chores. She later watches TV, which she enjoys doing; however, she is unable to focus at times when doing that. She spends a lot of time on the weekends with her grandkids and often takes them out to the shopping market. She also meets up with her son at times in the shopping mall when her grandkids play and they chat. She then has early dinner and goes to bed at varying time depending on how fatigued she feels by the end of the day.”
Findings on mental state examination were reported as follows:
“I reviewed Ms Enright via video. She engaged well during the assessment and was cooperative. She presented as a 63-year-old Caucasian female who looked the stated age. There was no evidence of any psychomotor agitation or retardation. No abnormal motor movements like tics or mannerism were noted. She was casually dressed in a striped T-shirt and had salt and pepper hair and was reasonably well-groomed.
She was teary at times, especially when talking about the incident at the workplace. She was, however, later comfortable and able to answer to the questions asked.
She reported her mood to be sad but slightly better than before. Her affect was dysphoric. Her speech was spontaneous and normal in volume and tone. Her thoughts were logical and goal-directed. She currently reports ongoing anhedonia, sleep disturbances, fluctuation in motivation and energy levels. There was no evidence of any manic, psychotic or any perceptual abnormalities. She had insight into her condition and her judgement was intact.”
In summarising the injuries and diagnoses, the MA said:
“Ms Enright is a 63-year-old female who lives on her own. She was employed by the Department of Education NSW as an Admin Officer. She alleged being bullied, micromanaged, given excessive workload, requirement to adhere to new work practices as brought in by the new director, hostile and aggressive behaviour towards her by her manager and performance management procedures when she was put on the performance improvement plan.
At the time of assessment, Ms Enright reported that she has now a ‘better understanding’ of her symptomatology and is able to use more coping strategies. She said that she has been struggling financially as she has not been paid after 2021 and hence even if she wants to go out, she lacks the finances to do so. She also reported experiencing low mood, fluctuating motivation and energy levels and anxiety symptoms.
Her current presentation is consistent with the diagnosis of Persistent Depressive Disorder. The diagnosis of Persistent Depressive Disorder is based on the DSM-5 criteria…”
The MA assessed 7% WPI to which she added 1% for the effects of treatment, making a total of 8% WPI.
She then turned to consider the other medical opinions and material before her and said:
“I have noted IME by Dr Peter Young dated 25 March 2022. I have noted that Dr Young concluded: ‘Ms Enright presents reporting a history of significant depression and anxiety symptoms occurring in the context of perceived bullying at work by her manager, Mr Ellerson. This appears to have been in the context of what she perceives as being unfair unreasonable criticism regarding her performance. She currently describes symptoms sufficient to meet criteria for Adjustment Disorder, however, she may also be considered to suffer from more serious depressive symptoms qualifying for a diagnosis of Major Depressive Disorder. She has been treated with an appropriate dose of antidepressant medication and psychological treatment. She would benefit from further psychiatric and psychological treatment particularly integrated with a graded return to work plan. I note that this is being delayed due to lack of available suitable duties.’
I have noted another IME by Dr Peter Young dated 9 May 2023. Dr Young concluded that her symptoms were consistent with Major Depressive Disorder. He also calculated the WPI as 19%. Kindly note that my calculation differs in the areas of social and recreational activities, travel and employability. Kindly note the reasons for the same:
A.Social and Recreational Activities. I have noted that Ms Enright has stopped socialising with her friends, shopping and going out for lunch, which she attributed to her financial constraints. I have also noted that she still had some friends who were quite supportive and even come over and bring food. With regards to recreational activities, she continues to go out with her family members to the shopping centres and meet them. She also takes her granddaughter out every Friday for shopping. I, therefore, opine that this meets the criteria for mild impairment as she is able to go out without needing a support person.
B.Travel. Kindly note that Ms Enright has been able to travel and drive on her own multiple times without any difficulties and there can be a minor deficit, including probably occasional anxiety, which is a normal variation and warrants class 1.
C.Employability. I opine that Ms Enright has partial capacity to return to work in a more supported environment and work less than 20 hours per fortnight. I have also noted that soon after Ms Enright had lodged the complaint, she was unable to return to work because of a lack of suitable position and duties for her.
D.IME by Dr Assad Saboor dated 14 November 2022. Dr Saboor concluded that Ms Enright’s presentation is consistent with major depressive illness with anxiety features. I have noted that Dr Saboor calculated the WPI as 17%, added 1% for treatment effect and the final WPI was 18%. Kindly note that there are differences in the class of social and recreational activities and travel.
The Appellant’s Submissions
Employability
a.     Member Wynyard found the Applicant was totally incapacitated for work.
b.     The MA assessed Employability a Class 4:
c. Pursuant to s 56 of the Personal Injury Commission Act 2020, the effect of Member Wynyard’s decision is ‘final and binding’.
d.     The MA acted without jurisdiction by finding contrary or perhaps ignoring the ‘final and binding’ finding of total incapacity made by Member Wynyard. As such, Employability must be Class 5.
Social and Recreational Activities
a.     The Applicant denies telling the MA that she has maintained contact with her friends. In particular, the MA wrongly assumed that ‘friends … often come over and visit her.’
b.     The Applicant maintains that her social and recreational activities are limited to close family members and she will only venture from her home in their company.
Travel
a.     The Applicant denies telling the MA that she could drive outside her local area. In particular, the Applicant denies driving to Gregory Hills until her son moved in with her or that she drove to Canberra.
b.     In particular, the Applicant denies travelling to Canberra ‘to stay with her son’. Instead, the Applicant instructs that she told the MA that she travelled as a passenger with her son to Canberra.
c.     The incorrect history recorded by the MA resulted in a failure to consider relevant information: Samir Harris v. AAI Limited [2015] NSWSC 270.”

The respondent’s Submissions

As stated earlier, the respondent contends that no errors were made, adding:
(a) we observe that s 56 of the 2020 Act provides that the decision of Member Wynyard is “final and binding on the parties” (emphasis added). We submit that the MA, Dr Surabhi Verma is not a party to the dispute and so we would respectfully disagree with the premise of the appellant’s submission that Dr Verma acted without jurisdiction by finding contrary to the finding of the Member.
(b)    The Guidelines provide at Part 2, paragraph 1.6(a), that “assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment (emphasis added) taking account the claimant’s relevant medical history and all available relevant medical information…”
(c)    In assessing the appellant’s permanent impairment, the MA was obligated to take into account the appellant’s presentation at that moment in time, along with all relevant medical information and history.
(d)    That moment in time or day of assessment would be 13 August 2024, which we note is two months apart from the determination of Member Wynyard, 14 June 2024, and five months since the matter was heard before the Member on 13 March 2024.
(e)    The finding by the Member that forms the basis of his determination of the appellant’s entitlement to compensation relates to current work capacity. On the other hand, the MA is required to consider the worker’s impairment on a rating scale in a category of “employability”. It is submitted that it is incorrect to equate those two notions which is what the submissions by the appellant seek to do.
(f)    The finding by the Member in relation to “current work capacity” would nonetheless not preclude a finding of Class 4 in the ‘Employability’ category, as such is not inconsistent with the Statement of Reasons.
(g)    The member confined his statement of the appellant’s total incapacity, “At the moment (emphasis added) however I am not satisfied that she has any current work capacity” to that moment, being the date of his determination, 14 June 2024.
(h)    Member Wynyard did not state that the appellant would not have any current work capacity on an indefinite basis. He also said that he “endorse[d] Dr Young’s view that Ms Enright, if she commenced a return to work program, might find suitable work.”
(i)    If a Member’s finding as to whether or not an appellant had current work capacity at the time of their determination was to be binding on a MA would produce the result where a MA would not be able to consider their own clinical assessment of a claimant as they present on the day of the assessment to the extent it was inconsistent with the view of that Member several months ago.
(j)    This would generate inconsistent and absurd results, including the possibility that an appellant who had returned to suitable employment between the time of a decision and a medical assessment would have to be awarded a Class 5 in the ‘Employability’ category based on the Member’s assessment of their status some time prior.
(k)    We submit that it was open to Dr Verma, upon consideration of all the evidence along with her clinical assessment of the appellant on the day of the assessment to make a finding of Class 4.
(l)    The independent medical examiner (IME) engaged by the appellant, Dr Saboor, made a finding of Class 4 in ‘Employability, stating “She cannot work more than one or two days at a time, less than 20 hours per fortnight”.
(m)     We refer to the statement by the appellant’s treating psychologist:
“I am of the opinion that she should be able to engage in some form of employment within the next three to six months… I am confident that once she is able to experience that a return to a workplace will be positive, I think she will be eager to return to full time work.”
(n)    Clearly, there is medical evidence, upon which it would be open to make a finding of Class 4.
(o)    Dr Verma’s opinion with regards to ‘Employability’ is evidently well supported by this evidence and we submit that it aligns with Member Wynyard’s expectation that despite not having any capacity when he made his determination, the appellant was likely to attain more capacity in the near future, i.e. at the date of the Medical Assessment.
Social and recreational activities
(p)    At the outset, relying on the authority of Marina Pitsonis v Registrar of theWorkers Compensation Commission [2008] NSWCA 88, a matter heard before the Court of Appeal, that matters dependent on the applicant showing that the MA failed to record or to record things correctly are not demonstrable on the face of the MAC. This was expressed by Mason P at [59].
(q) To satisfy s 327(3)(d), the appellant must:
“…demonstrate… that there is an arguable case of error appearing on the face of the Certificate. It may be an error of fact or law, but it must be more than one that depends upon evidence that is not within s 327(3) (a) or (b) being adduced in the appeal” (Mason P at [49]). Relevantly, the Appellant has not depended upon evidence within s 327(3)(b) that would support her assertion.
(r)    It is a fundamental principal that evidence cannot be offered in submissions. It follows that the denial by the appellant of such statements in her submissions cannot constitute evidence of an error.
(s)    In Petrovic v BC SERV No 14 Pty Ltd [2007] NSWSC 1156, (Petrovic) the Supreme Court at [39] confirmed that reasoning offered by the Medical Appeal Panel in that case, that:
“The purpose of the legislation is to give some prima facie credence to the opinion of an AMS in situations where he has examined the client and all the competing medical views. We do not believe the system would be maintainable if the AMS’s view could be overturned on account of some untested documentary evidence as to the events that occurred during the consultation itself”.
(t)    The distinction between whether the appellant’s social and recreation activities being limited to her family members, rather than her family members and friends, is not a matter that would have any bearing upon the making of an award in the category ‘Social and recreational activities’.
Travel
(u)    The appellant has submitted that Dr Verma failed to consider relevant information and so the MAC contains a demonstrable error as Dr Verma recorded that the appellant was able to drive outside her local area until her son moved in with her and that she drove to Canberra when the appellant denies having stated either of these things.
(v)    Relying on the same arguments above, there is no demonstrable error and so this ground of appeal must fail.

Discussion

We agree with the thrust of the respondent’s submissions for reasons that follow.
To begin with, we agree with the respondent that s 56 of the 2020 Act provides that the decision of Member Wynyard is “final and binding on the parties” (emphasis added).
The MA is clearly not a party to the dispute.
Accordingly, that ground of appeal is not made out.
As regards the category of Employability, the MA’s assessment of a Class 4 rating is consistent with the totality of the evidence, including Member Wynyard’s expectation that Ms Enright would likely be able to return to work at some stage.
The descriptor for a Class 4 rating reads: “Severe impairment: cannot work more than one or two days at a time; less than 20 hours per fortnight. Pace is reduced, attendance erratic.”
The MA stated:
“Ms Enright continues to experience symptoms of depression which impact her capacity to return to work full-time, however, I believe that she can still work part-time and cannot work more than 1 or 2 days at a time and less than 20 hours per fortnight. She would need a more supported environment and a gradual return to work plan.”
Clearly the MA acknowledged that Ms Enright was indeed severely impaired in this category at the present time, but equally able to undertake some limited part-time work, as also determined by the IME engaged by the appellant’s lawyers.
For these reasons, we see no error in the MA’s assessment in this category.
Turning next to the category of Social and Recreational activities, the MA assessed a Class 2 rating and said:
“She enjoyed socialising with her friends and going out for shopping, lunches and dinners. She also used to socialise with friends from her church. She said that now, she only spends time with her family and does not go out with friends. She said that she does not feel like talking about her predicament, however, some of her friends have been supportive. She said that one particular friend used to come over and bring food and stayed overnight and did that whenever she was able to come.
Ms Enright has now stopped going to the church. She said that her friends and family members often come over and visit her. She visits her son in Top Ryde and goes to the shopping centre and meets them there. She takes her grandkids for a walk and for shopping. Her granddaughter also comes over every Friday and she takes her out for shopping.”
In the body of the MAC, the MA recorded:
“She enjoyed socialising with her friends and going out for shopping, lunches and dinners. She also used to socialise with friends from her church. She said that now, she only spends time with her family and does not go out with friends. She said that she does not feel like talking about her predicament, however, some of her friends have been supportive. She said that one particular friend used to come over and bring food and stayed overnight and did that whenever she was able to come.
Ms Enright has now stopped going to the church. She said that her friends and family members often come over and visit her. She visits her son in Top Ryde and goes to the shopping centre and meets them there. She takes her grandkids for a walk and for shopping. Her granddaughter also comes over every Friday and she takes her out for shopping…
She added that a few weeks back, she went to Canberra to stay with her son overnight and said that it was good. She visits her brothers frequently and at times, they come over. They have dinner together and spend time watching movies.”
There are clear inconsistencies in these accounts. For example, Ms Enright said: “she only spends time with her family and does not go out with friends.” However, she then said: “She said that her friends and family members often come over and visit her.”
Irrespective of whether she goes out with friends or they come to visit her, she is still in regular contact with her friends.
In her statement dated 27 October 2023 she said:
“I was encouraged by my sister to attend a cruise with her in December last year when she was away for two weeks. Yet, I felt that while away, I felt the same but in a different place. I spent much of the time in the cabin.”
She failed to mention to the MA that she had been on a cruise irrespective of whether she spent “much of her time” (undefined) in her cabin.
These statements again reinforce the importance of the MA’s findings and clinical assessment on the day of the examination.
Most of the appellant’s submissions refer to a “denial” of what she told the MA.
However, as noted above by the respondent in Petrovic:
“We do not believe the system would be maintainable if the AMS’s view could be overturned on account of some untested documentary evidence as to the events that occurred during the consultation itself”.
For these reasons we do not see any error by the MA in her assessment in this category.
Turning finally to the category of Travel, the MA assessed a Class 1 and said:
“She leaves home to go out for shopping and buying food to the nearby shops. She has been able to drive to Top Ryde which is a 20 to 30-minute drive from her home without any difficulties. She also used to drive to Gregory Hills which is a 40-minute drive until her son moved in with her. She added that a few weeks back, she went to Canberra to stay with her son overnight and said that it was good.”
The descriptor for a Class 1 reads:
“No deficit, or minor deficit attributable to the normal variation in the general population: can travel to new environments without supervision.”
For a Class 2 it reads:
“Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
We agree that it is arguable that there are some aspects of the appellant’s abilities in this category that could fit into a Class 2 rating, however, the MA has the benefit of seeing and assessing a claimant and is required to make an assessment based on the “best fit” principle.
Whilst the Appeal Panel notes that the appellant records: “I was getting anxious when I was driving far or to unfamiliar places”, this is a description of symptoms rather than impairment and supports that she is able to travel to unfamiliar areas, although may have some anxiety whilst doing so, as do others in the general population.
There is no evidence that Ms Enright requires a support person in her everyday travels. Equally she has been able to travel up to 40 minutes away which is clearly greater than “local shops” or “visiting a neighbour.”
The appellant’s submissions were no more in the final analysis than the expression of a difference of opinion about which reasonable minds might differ. (See Diaz v SydneyInternational Container Terminals Pty Ltd [2024] NSWPICMP 437.)
In addition, the basis for the reservation in Chapter 11.2 of the Guidelines that the descriptors are intended to be non-binding examples, giving a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allowing a wider discretion to be applied than if the descriptors were intended to be strict criteria, must be considered.
Again, for these reasons, we cannot see any error in the MA’s assessment in this category.
In our view, the MA’s assessment was both detailed and well -reasoned.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 August 2024 should be confirmed.

[2024] NSWPICMP 778

20 November 2024