Gilbert v Donhad Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Gilbert v Donhad Pty Ltd [2024] NSWPICMP 251
APPELLANT:	Darrel Owen Gilbert
RESPONDENT:	Donhad Pty Ltd
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	30 April 2024
DATE AMENDED	22 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for primary psychiatric injury; worker appealed assessments in the psychiatric impairment rating scale categories of social functioning and concentration, persistence and pace; Medical Assessor (MA) erred in assessment of concentration, persistence and pace and social functioning as did not undertake appropriate testing of the descriptors and it was not possible to following the MA’s reasoning process in those assessments; insufficient evidence on which to make a determination; worker re-examined; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 March 2023 Darrel Owen Gilbert (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Gerard Chew, a Medical Assessor, who issued an Amended Medical Assessment Certificate (MAC) on 10 March 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):
· 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).

RELEVANT FACTUAL BACKGROUND

The appellant sustained a primary psychological injury in the course of his employment with Donhad Pty Ltd (the respondent) as an operator.
The appellant commenced proceedings in the Personal Injury Commission (Commission) on 22 July 2022 claiming 19% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 27 August 2018.
The Medical Assessor examined the appellant on 9 March 2023 through video link. The Medical Assessor assessed 8% WPI as a result of the injury deemed to have occurred on
27 August 2018.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant requested that he be re-examined by a Medical Assessor who is a member of the Appeal Panel
As a result of that preliminary review, the Appeal Panel determined that it was necessary for the appellant to undergo a further medical examination because there was an error in the MAC and insufficient evidence on which to make a determination.

EVIDENCE

Documentary evidence

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

Further medical examination

Medical Assessor Michael Hong of the Appeal Panel commenced to conduct an examination of the appellant on 14 July 2023. However, that assessment could not proceed satisfactorily, and the re-examination was deferred. A further re-examination was organised and Medical Assessor Hong examined the applicant on 25 April 2024 and reported to the Appeal Panel.

The MAC

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    the Medical Assessor fell into error when assigning certain psychiatric impairment rating scales (PIRS) by considering irrelevant considerations and failing to consider relevant considerations. In so doing, the Medical Assessor failed to correctly apply the Guidelines;
(b)    the assessment of concentration, persistence and pace was made on the basis of incorrect criterial because the Medical Assessor incorrectly applied the Class Descriptors set out in Table 11.5 for concentration, persistence and pace;
(c)    the examples in Table 11.5 are examples only and not exclusive. Whist a Medical Assessor retains a degree of discretion and is entitled to exercise his own clinical judgment in conducting the assessment, the PIRS categories limit the boundaries of that judgment and discretion. The examples in Table 11.5 all refer to the ability to engage in simple to complex tasks. The capacity to watch DVDs for enjoyment is not evidence of mild impairment of concentration. The reasoning process by which the Medical Assessor employed to arrive at that conclusion was almost absent. The degree of concentration required to watch a DVD would vary according to the subject matter;
(d)    the Medical Assessor relied on “avid DVD watching” to justify a conclusion that the appellant’s concentration had improved. He failed to consider the evidence of the appellant at paragraph 38 of his statement, and of Dr Rastogi in her report dated 20 October 2021;
(e)    the Medical Assessor placed great evidence [sic] on the appellant’s capacity to watch DVDs and it was incumbent on him to explain how this indicated a mild impairment of concentration by reference to the subject matter of the DVDs. The appellant has significant difficulty in concentration and recall and struggles with complex tasks. If the DVDs he watches are cartoons or contain very simple subject matter this would not justify a conclusion that his concentration has improved;
(f)    after considering all of the available evidence, the appropriate class for concentration, persistence and pace is Class 3;
(g)    the assessment in the category of social functioning was made on the basis of incorrect criterial because the Medical Assessor incorrectly applied the Class Descriptors set out in Table 11.4 for social functioning. The reasoning process of the Medical Assessor was difficult to follow and in some respects contradictory;
(h)    in assigning Class 2, the Medical Assessor relied on the fact that the applicant “Has regular contact with a few friends”. However, at page 2 of the MAC the Medical Assessor stated that “His social activity is reduced and he has few friends” and “He said that a friend came to stay over Christmas for company”. By inference, the Medical Assessor placed great weight on this in arriving at his conclusion and it was incumbent on him to explain how this led to his conclusion. The friend may have stayed over to celebrate Christmas or because the appellant either threatened self-harm or suicide. Where a particular factor is given great weight, the Medical Assessor should explain in more detail why the factor was given so much importance;
(i)    the Medical Assessor failed to consider all of the available evidence concerning social functioning including the appellant’s statement which contains evidence that his social functioning is significantly compromised;
(j)    when Dr Rastogi scored Class 2 for social functioning she did so at a time when the appellant’s long-term relationship with his fiancé was on foot. Had she made the assessment after that relationship ended, the assessment was likely to be different. The fact that the appellant has become socially withdrawn when compared to his pre-morbid state is further evidence that his social functioning can be considered to be moderately impaired;
(k)    after considering all of the available evidence, the appropriate class for social functioning is Class 3, and
(l)    the MAC should be revoked.
The respondent ‘s submissions include the following:
(a)    the appellant may have incorrectly noted the PIRS category of “employability” above, as there is no further mention of employability. The appellant then proceeds to discuss the issue pertaining to “social functioning” and not “employability” under “application of incorrect criteria” and further mentioned under “conclusions”;
(b)    the statement from the appellant was obtained some 10 months prior to the MAC. It may be the case the appellant’s concentration, and overall situation has improved since providing his statement in May 2022 and the record obtained by Medical Assessor is a more accurate reflection as to the appellant’s concentration, persistence and pace at the present time;
(c)    the report of Dr Richa Rastogi was dated 20 October 2021 and it may be the case that the appellants condition has improved since his examination with
Dr Rastogi, hence the application of a Class 2 PIRS rating for concentration, persistence and pace by Medical Assessor;
(d)    Dr Vickery in his report dated 6 July 2022 classified the appellant as being a Class 1 in relation to concentration, persistence, and pace, and his report is a more a more accurate reflection of the appellant’s concentration, persistence and pace as opposed to Dr Rastogi’s account based on the time lapse between the assessment of Dr Vickery and the assessment of Dr Rastogi;
(e)    with respect to the appellant’s submissions regarding the reasoning process that the Medical Assessor employed to arrive at that conclusion is almost absent from the MAC, the report of Dr Rastogi dated 20 October 2021, lacked any specific examples as to how the appellant’s concentration, persistence and pace fits into a Class 3 category, apart from recounting his symptoms;
(f)    the histories obtained by the Medical Assessor and Dr Vickery are a more accurate reflection of the appellant’s current functioning with respect to concentration, persistence and pace as the doctors have provided proper examples, i.e., pertaining to DVD and movie watching and the ability to engage for the (MAC) interview;
(g)    the history obtained by the Medical Assessor regarding concentration, persistence and pace is more in line with a Class 2 impairment;
(h)    in relation to social functioning, Dr Vickery in his report dated 6 July 2022, provided details of the appellant’s social activities including family activities. It is evident the appellant has been able to maintain relationships with certain friends, co-workers and family;
(i)    the assessment of Dr Vickery with respect to the PIRS category pertaining to social functioning whereby the doctor reported a Class 1 impairment. Dr Vickery noted the appellant is close to his two nephews and a niece, and there are a number of long-term friends with whom he socialises;
(j)    the Medical Assessor applied a Class 2 functioning with respect to social functioning and noted the appellant has regular contact with a few friends. This is more in line with the conclusion arrived at by Dr Vickery and a more accurate reflection of the appellant’s current social functioning;
(k)    the submission by the appellant that the MAC was contradictory was merely hypothetical and speculative with respect to the appellant’s friend staying with him over the Christmas period. It is not the responsibility of the Medical Assessor to specifically question the appellant as to every aspect of the interview/examination process. If the appellant volunteered certain information at the time of the examination (his friend staying over for Christmas), the respondent submits that it was the appellant’s responsibility to elaborate on such detail, again, noting the seriousness of the alleged self-harm;
(l)    the appellant stated that a long term relationship with a lady from Vietnam was over and has submitted that the Medical Assessor did not read and so did not consider the appellant’s statement because the doctor assumes that the relationship was ongoing when it had in fact ceased. In the report of Dr Vickery dated 6 July 2022, the doctor reported, “There is some distancing in his twelve year relationship with his girlfriend in Vietnam as he has been unable to visit since 2019 due to Covid-19.” The account provided by Dr Vickery above does not indicate his relationship has ceased as alleged by the appellant;
(m)     the appellant’s statement is now at odds with the history he has provided to
Dr Vickery and the Medical Assessor, as both doctors have reported the appellant’s relationship is still ongoing and has not in fact ceased;
(n)    the history obtained by the Medical Assessor regarding social functioning is more in line with a Class 2 impairment, and
(o)    the MAC should be confirmed.

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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] the form of the words used in
s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The Appeal Panel noted that in paragraph 2.2.2 of his submissions, the appellant submitted that the Medical Assessor applied incorrect criteria and made a demonstrable error when assessing the applicant as Class 4 in the category of employability. However, all of the submissions following related to the categories of concentration, persistence and pace and social functioning, so the Appeal Panel has proceeded on the basis that the reference to employability was a typographical error.

Discussion

The appellant alleged error in respect of the assessment of the PIRS categories of concentration, persistence and pace and social functioning.
The Medical Assessor is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Concentration, persistence and pace

The appellant submitted that the Medical Assessor incorrectly applied the Class Descriptors set out in Table 11.5 for concentration, persistence and pace, failed to consider the appellant’s statement and Dr Rastogi’s report, and failed to provide adequate reasons for his assessment in this category.
The examples under Table 11.5 for “concentration, persistence and pace” in the Guidelines are:
“Class 2: Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3: Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The Medical Assessor assessed Class 2 in relation to concentration, persistence and pace providing the following reasons in Table 11.8 for assessing Class 2 for concentration, persistence and pace: “Has some subjective difficulties concentrating. Was able to engage for the interview. Is able to watch movies”.
Under Findings on Examination, the Medical Assessor noted:
“He was seen unaccompanied at his lawyers’ office. On mental state examination he appeared his stated age. He had no abnormal psychomotor activity. His affect was dysphoric. He reported his mood as depressed. He had no suicidality. There was no psychosis. There were no thoughts of self harm. He was oriented to time, place and person.”
In commenting on the other medical opinions, the Medical Assessor wrote:
“I largely agree with Dr Rastogi’s diagnosis based on the history, collateral information and presentation and interview. WPI assessment differs – his concentration has improved, I note avid DVD watching.”
The appellant in his statement dated 20 May 2022 wrote:
“38. There are so many things that I think of, but when I sit down to write
about it I cannot think of everything. Everything is getting worse, my health, my mind. I'm just so frustrated with life.”
Dr Rastogi, in a report dated 20 October 2021, noted that the appellant was struggling with poor decision making capacity. She wrote: “Concentration lapses continue and has poor retention, cannot concentrate and follow through betting”. Dr Rastogi assessed Class 3 for concentration, persistence and pace noting: “Moderate impairment as feels tired and exhausted, lapses and struggles with complex tasks and multitasking, more frazzled and perplexed and struggles with comprehension”.
Dr Rastogi assessed the appellant as class 3 in the category of concentration, persistence and pace providing the following reasons:
“Moderate impairment as feels tired and exhausted, lapses and struggles with complex tasks and multitasking, more frazzled and perplexed and struggles with comprehension.”
Dr Graham Vickery, in a report dated 6 July 2022, noted that the appellant watched videos on the movie channel during the day.
Dr Vickery wrote:
“There was an excellent memory for his work history and his medical history. He can concentrate to watch a movie through.”
Under “Mental State Examination”, Dr Vickery wrote:
“Mr Gilbert’s affect range was not restricted while his behaviour and mood were appropriate to the topic being discussed. His history and presentation were consistent. He was able to relate a detailed coherent and chronological history.
Mr Gilbert was particularly frustrated with his health problems. There was no apparent clinically significant anxiety, melancholic depression, paranoid delusional ideation or formal thought disorder. There was no apparent cognitive impairment. There was no apparent psychiatric impairment noted in the clinical examination.”
Dr Vickery assessed the appellant as class 1 in the category of concentration, persistence and pace providing the following reasons: “There was an excellent memory for his work history and his medical history. He can concentrate to watch a movie through. There was no evidence of any cognitive impairment in the assessment”.

The Appeal Panel was not satisfied that the Medical Assessor undertook appropriate testing of the descriptors relating to concentration, persistence and pace. The Medical Assessor made no detailed reference to the medical reports or to the appellant’s statement. The history obtained during his examination lacked detail.
The Appeal Panel considered that it was not possible to follow the Medical Assessor’s reasoning process in his assessment of concentration, persistence and pace. Therefore, the Appeal Panel considered that the Medical Assessor fell into error and failed to make the assessment on the basis of correct criteria in assessing the appellant as Class 2 in the category of concentration, persistence and pace.

Social functioning

The appellant submitted that the assessment in the category of employability was made on the basis of incorrect criterial because the Medical Assessor incorrectly applied the Class Descriptors set out in Table 11.4 for social functioning. The appellant argued that the reasoning process of the Medical Assessor was difficult to follow, in some respects contradictory, and that he failed to consider all the available evidence.
The examples under Table 11. 4 for “social functioning” in the Guidelines are:
“Class 2: Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3: Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The Medical Assessor assessed the appellant as Class 2 for social functioning. In the PIRS Rating Form, the Medical Assessor wrote:
“Social functioning - Class 2
Has regular contact with a few friends.”
In the MAC, under “Social Activities / ADL” the Medical Assessor wrote:
“He lives independently however struggles with self care and meals. He is able to drive independently to familiar areas. His social activity is reduced and he has few friends. He has a long term fiancé in Vietnam but contact with her is sporadic. He is able to concentrate to watch DVDs and enjoys hiring them from the library. He is a 67 year old man who lives in Newcastle by himself. He said that a friend came to stay over Christmas for company. He has no children.”
In commenting on the other medical opinions, the Medical Assessor wrote:
“I largely agree with Dr Rastogi’s diagnosis based on the history, collateral information and presentation and interview. WPI assessment differs. His concentration has improved, I note avid DVD watching. He remains severely impaired with regard to adaptation and employability but could perform a low skill position at reduced hours with reduced pace and erratic attendance.”
The appellant in his statement dated 23 October 2018 wrote:
“I have good friends but I haven't socialised much because of how I am feeling. I have been engaged to my partner in Vietnam, Sol, for the last three years. Because of my financial situation at the moment, I don't know when I will see her next or get to speak to her, which is causing me a lot of upset. My mother passed away in 1994. When my mother passed away, my half sisters tried to take my mother's house from me so I am still paying them out because of the mortgage I had to take. I don't have any contact with my family.”
In his statement dated 20 May 2022, the appellant wrote:
“I no longer go out and socialise much. I have a couple of close friends who I see occasionally. I used to like to go and have a beer with my mates but I don't do that anymore. I miss meals. I had a long term relationship with a lady from Vietnam but that is now over and I believe because I am now a bit of recluse.”
Dr Rastogi, in her report dated 20 October 2021, assessed class 2 for social functioning and reported:
“Social functioning and relationships: Mild impairment as existing relationships strained with friends and inability to bring his partner form overseas due to financial disadvantage.”
Under “Current functioning/ Daily functioning”, Dr Rastogi wrote:
“Social - He is reconnecting with few friends but remains isolated and connects with social media.
…
He has a long-distance relationship with his partner living in Vietnam engaged for eight years. Mr Gilbert has been unable to see her due to finances and his condition. This causes strain on their relationship. He finds that she struggles to understand and relate to his condition, which causes frustration for them both.”
Dr Vickery, in his report dated 6 July 2022, assessed class 1 for social functioning. Under the heading “social functioning” he wrote:
Mr Gilbert is close to his two nephews and a niece.
There are a number of long-term friends with whom he socialises.
Under the heading ‘History of Presenting Complaints’, Dr Vickery noted:
“There is some distancing in his twelve year relationship with his girlfriend in Vietnam as he has been unable to visit since 2019 due to Covid-19.”
The Appeal Panel was not satisfied that the Medical Assessor undertook appropriate testing of the descriptors relating to social functioning. The Medical Assessor made no detailed reference to the medical reports or to the appellant’s statement. The history obtained during his examination lacked detail. The reasons for assessing class 2 were merely stated to be: “Has regular contact with a few friends”.
The Appeal Panel considered that it was not possible to follow the Medical Assessor’s reasoning process in his assessment of social functioning. Therefore, the Appeal Panel considered that the Medical Assessor fell into error and failed to make the assessment on the basis of correct criteria in assessing the appellant as Class 2 in the category of social functioning.
The Appeal Panel was satisfied that the assessments of concentration, persistence and pace and social functioning were made on the basis of an incorrect criteria and the MAC contained a demonstrable error.
The Appeal Panel considered that re-examination was necessary as there was insufficient information on which to make a determination.
As noted above, Medical Assessor Hong re-examined the applicant on 25 April 2024. Medical Assessor Hong provided the following report:
“1.UPDATED HISTORY
·    History:
Mr Gilbert was assessed by Dr Chew, who provided a MAC dated 10 March 2023.
At the time of my first MAP assessment, 14 July 2023, he said he drank 2L of wine daily from 2018 until May 2023. He had a cerebral CT last week, due to new double vision problems for a few weeks. He was waiting for the results. He had been light-headed recently and was feeling off balance when turning and this was a new symptom. He presented with a hoarse voice. Ultimately, my first assessment was abandoned due to a combination of technological issues, a significant change in his mental state recently and a possible new neurological disorder being investigated.
Mr Gilbert presented for a reassessment on 25 April 2024. He had many things that he wanted to discuss today, including his work history and I discussed the specific reason and the limiting nature of my assessment.
Mr Gilbert has had further testing and said the cerebral CT scan did not identify any abnormality. For a while, the dizziness and double vision had resolved, but recently these symptoms seemed to have returned. He said he stumbles when he walks but he has not fallen over.
He had a hernia operation in March 2024 and had a review with the surgeon and he has been told the operation has been successful. He has moderate sleep apnoea and said that they have not recommended a CPAP machine at present, but he has been given a CD on dream therapy and told to exercise to help improve his sleep.
Mr Gilbert reported that he also had a CT scan for his throat as they were worried about his hoarse voice, and they have only identified gastric reflex and given him a nasal spray for it. He has been using a hearing aid since 2015. There are no other acute medical issues now.
·    Present treatment:
Mr Gilbert is taking:
·    Pantoprazole
·    Vitamins and thiamine
·    Amlodipine
·    Perindopril
·    Mirtazapine 45 mg
He attends the local mental health and substance use service, and consults a counsellor Georgia, a psychologist Paul Constable and previously seen a psychiatrist, Dr Craig Sadler. He has not had a psychiatric admission.
He attends a support group every Wednesday.
·    Present symptoms:
Mr Gilbert does not use alcohol or any recreational drugs. He has chronic anxiety and depressive symptoms, and sleep problems. He has lost weight and is trying to lose more, as he does not want to have to use a CPAP machine. He described being easily frustrated and having major concentration and memory problems. He does not have suicidal ideation now.

· Social activities/ADL:

Mr Gilbert's psychological symptoms are largely the same over time, there has been some fluctuation but no significant change overall. He lives alone. He reported that he doesn't want to go out. He doesn’t want to socialise. He has been attending alcohol management groups and graduated from one of the groups. Now he goes to a sobriety program every Wednesday at Argyle House. He goes in person but said that most of the other attendants join by video. There are about six people and the facilitator.
Mr Gilbert only drives locally maybe five minutes from home to go to the shops, to Mater Hospital and to see his psychologist. He has no confidence to drive further and he asked his friend to drive him here today. He said he doesn't see his friends much and the last time he saw them was at my last assessment in July 2023, when he was driven to that assessment. He said he has only had occasional contact with them by phone and sometimes when they talk on the phone, they might talk for one or two hours.
I asked Mr Gilbert about his relationship with his family, nieces and nephews and noted that other reports indicated a relationship with them. He said this is incorrect, he’s never been that close with them. He attended a family funeral in late 2023 but doesn't really talk to other people in the family generally. He said that after a previous dispute over inheritance, he has not been that close with them.
Mr Gilbert reported that he has a fiancé in Vietnam and has known her for 19 years. She has a son. He reported that he was trying to help her to come to Australia and she applied for a visa, but encountered difficulties with the visa application when the Australian Government asked her about personal intimate details about Mr Gilbert and she struggled with that. He also explained that since being on Worker's Compensation, he has no money and therefore, he cannot afford to help her come to Australia. He does not believe they are a couple now. Mr Gilbert said he has not seen her since his last trip overseas, maybe five years ago and they still text each other. he said they are friends, but not really together because financially he can't bring her over.
He uses Facebook regularly and said he has Facebook friends. He might go online every two days.
Mr Gilbert doesn't do much during the day that requires focus. He goes to the library to borrow DVDs and said he might go through eight movies in a month. He would watch for two hours but elaborated that he has to rewind because he cannot follow what he watches. He tends to watch light-hearted shows and comedies, and movies like Avatar by James Cameron. He also watched Luke Nguyen’s cooking show.
2 FINDINGS ON PHYSICAL EXAMINATION
Mr Gilbert came with 2 friends and Harry Maxymemko was present during the assessment. He has a full beard and presented as talkative but spoke in a disorganized way throughout the assessment. There was no psychomotor slowing or abnormal movements. He was moderately restricted in his affect range and reactivity. He spoke spontaneously and was not thought disordered.
At the end of the assessment, I asked him if he had other matters he wanted to add and he spoke at length about different issues over time, including co-worker statements and wrong information being given to the PIC, not being given a fair go and problems with Dr Chew's interview, which he stated was very brief.
3. FILE REVIEW
The Panel reviewed records from Mr Gilbert's GP, Dr Yee and Dr Rao. Some of the entries appear undated. He has been investigated for renal and hepatic issues. He has various aches and pains. 4 July 2023 noted double vision for the last two months. Ceased alcohol completely. By 18 July 2023 vision is better but very stressed and has PTSD. He attended drug and alcohol service.
Dr Craig Sadler, Staff Specialist in Addiction Medicine based in the Mater Hospital, reported on 11 May 2023, initial assessment, drinking up to 220g daily of alcohol over the last four years and has PTSD, and different treatment had been provided over time.
Paul Constable, Psychologist had written several reports, 1 August 2023 noted Mr Gilbert is living on his own, not drinking, no self-harm, hasn't seen or heard from his partner in Vietnam for some time and is a bit concerned about that. Long distance relationship. Further report 12 December 2023, noted, Mr Gilbert has a close relationship with a girl in Vietnam, who he has been seeing “on and off” for many years now.
4. SUMMARY

· summary of injuries and diagnoses:

Mr Gilbert presented with fluctuating psychological symptoms since Dr Chew's assessment but overall, there have been no substantial changes, and the trajectory is stabilised. He has had several medical issues, which are now properly investigated and there are no requirements for further major investigation at this point.
Mr Gilbert's psychological treatment has been well-established and he has achieved MMI.
In terms of social functioning, it is clear Mr Gilbert has suffered a deterioration in his relationships since his work injury. He has maintained occasional or regular contact with people online, having phone calls with some friends, as well as a female friend with an on and off relationship for many years overseas. Whilst financially, he has been in hardship and this causes problems in terms of bringing her over to Australia, this is not the same as a psychiatric impairment and therefore, rating a 2 is more accurate.
In terms of concentration, persistence and pace, whilst he does watch movies and goes to a sobriety group for 90 minutes, he is clearly struggling to do anything that requires focus and struggling with intellectually demanding tasks, as evident by the need to rewind DVDs, difficulties following the plots and consistent with how he presented on assessment today and therefore, 3 is more accurate.

· consistency of presentation

I have found no inconsistency in Mr Gilbert's presentation.

PIRS Category

Class

Reason for Decision

Self-care and personal hygiene

From Dr Chew’s certificate

Social and recreational activities

From Dr Chew’s certificate

Travel

From Dr Chew’s certificate

Social functioning

Mr Gilbert has regular contact with his friends by phone and on Facebook, and he checks social media every 2 days.

He has two friends, and some times they talk for 1-2 hours. He rarely sees them in person.

He has a friend in Vietnam and they have an on-and-off relationship for many years. They have contact by phone and he stated they are friends now but not a couple, as he has no money to bring her over to Australia.

Concentration, persistence and pace

He watches movies for 2 hours, but rewinds and cannot follow the plot. He could not focus on intellectually demanding tasks or complex questions, and presented as disorganized.

Employability

From Dr Chew’s certificate

Score

Median Class

Aggregate Score Impairment

Total

17”

The Appeal Panel adopts the report and findings of Medical Assessor Hong. The Appeal Panel agrees with the assessment made by Medical Assessor Hong in respect of the PIRS categories of concentration, persistence and pace and social functioning.
The assessment by the Appeal Panel of class 2 for social functioning is the same as the assessment made by the Medical Assessor. However, the Appeal Panel assesses Class 3 for concentration, persistence and pace.
In conclusion, the Appeal Panel considers that the assessment was made on the basis of incorrect criteria and there was a demonstrable error in the Medical Assessor’s assessment. The Appeal Panel has reviewed the matter and makes an assessment of 17% WPI as a result of the injury on 27 August 2018.
For these reasons, the Appeal Panel determines that the MAC issued on 10 March 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W4631/22
Applicant:	Darren Owen Gilbert
Respondent:	Donhad Pty Ltd

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

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Gerard Chew and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system

Date of Injury

Chapter,

page and paragraph number in WorkCover Guides

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

% WPI

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

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

1.Psychiatric

27 August 2018 (deemed)

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

17%

[2024] NSWPICMP 251

30 April 2024