Guthridge v Northholm Grammar School Ltd
[2021] NSWPICMP 205
•2 November 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Guthridge v Northholm Grammar School Ltd [2021] NSWPICMP 205 |
| APPELLANT: | Lynne Maree Guthridge |
| RESPONDENT: | Northholm Grammar School Ltd |
| APPEAL PANEL: | Member Catherine McDonald Dr Michael Hong Dr Julian Parmegiani |
| DATE OF DECISION: | 2 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological injury; Psychiatric Injury Rating Scale categories; Jenkins v Ambulance Service of NSW, Ferguson v State of NSW and Parker v Select Civil Pty Ltd considered; Held – Medical Assessment Certificate confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 25 August 2021 Lynne Maree Guthridge lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 July 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out being that the MAC contains a demonstrable error. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Guthridge was employed as a school principal by Northholm Grammar School Ltd (Northholm). She suffered a psychological injury on 17 November 2017 as a result of interactions with members of the school council. Ms Guthridge ceased work on that day and has not worked since.
Ms Guthridge claimed permanent impairment compensation on the basis of a report by Dr T O Clarke dated 23 June 2020. Northholm’s insurer arranged for her to be examined by Dr G Smith who prepared a report dated 25 November 2020 in which he said that Ms Guthridge’s condition had not reached maximum medical improvement.
The Medical Assessor assessed 8% whole person impairment (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 WorkCover Medical Assessment Guidelines 2006.
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 because the assessment made by the Medical Assessor was open to him in the exercise of his clinical judgement and does not disclose an error.
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.
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.
Ms Guthridge’s solicitor, Mr Evers, prepared submissions on her behalf. He said that she sought to “attack” the ratings in three tables of the Psychiatric Injury Rating Scale (PIRS) being self-care and personal hygiene, social functioning and concentration persistence and pace.
With respect to self-care and personal hygiene, Mr Evers said that the Medical Assessor did not pay sufficient regard to the evidence about Ms Guthridge’s dependence on her husband. He said that the Medical Assessor should not have relied on her own reporting but should have considered the evidence of her treating psychiatrist Dr Bhandari in his report dated 19 October 2018 that Ms Guthridge lived with a friend while her husband worked in Sydney. He said that the Medical Assessor assumed that Ms Guthridge lived with her husband on a full-time basis. He said that a finding that she could live independently assumed that she could attend to activities without her husband which tended “against the weight of the other evidence.” Mr Evers said it was not apparent that Ms Guthridge told the Medical Assessor that she does not require or receive prompting nor is it apparent that the Medical Assessor sought clarification. He said there is no indication that the Medical Assessor made specific enquiry about the extent of Ms Guthridge’s dependency on her husband. The lack of enquiry coupled with the express evidence that she will miss meals if alone “tends heavily against a finding that she could live independently.”
With respect to social functioning, Mr Evers submitted that the Medical Assessor assessed class 2, despite noting both class 2 and class 4 identifiers. He said that the appropriate assessment was therefore in class 3. Secondly he submitted that, even though there were no instances of separation, Dr Clark had recorded that there was no intimacy, which was reflective of an emotional separation.
Mr Evers said that, in order to assess concentration, persistence and pace, the Medical Assessor was required to have regard to Ms Guthridge’s pre-injury level of functioning which included carrying out multiple important tasks at the same time. He said it was illogical to suggest that she would find jigsaw puzzles or family history research intellectually demanding. He said that “[h]igh achievers should not be punished by the PIRS for retaining a higher than ordinary level of capacity.” Mr Evers said that assessment in class 3 was appropriate.
In reply, and in submissions prepared by Mr Elder, Northholm submitted that it was apparent from the MAC that the Medical Assessor had taken a proper history to provide a basis for his opinion that Ms Guthridge could live independently. Mr Elder noted that Dr Bhandari’s report was almost three years old (at the time he prepared his submissions) and that Ms Guthridge’s circumstances appeared to have changed because the Medical Assessor obtained a history that she was living with her husband at Caves Beach. He submitted that assessment in class 2 was appropriate.
With respect to social functioning, Mr Elder submitted that the fact that Ms Guthridge and her husband cook together appears to show a level of intimacy. He noted that the Medical Assessor also considered her relationships with her children and grandchildren and that assessment in class 2 was open to him.
Mr Elder noted that Ms Guthridge did not challenge the factual basis for the Medical Assessor’s assessment of concentration, persistence and pace. He said it was not necessary for the Medical Assessor to have regard to Ms Guthridge’s previous level of functioning to make his assessment.
Mr Elder said that the submissions filed on behalf of Ms Guthridge reflected disagreement rather than grounds of appeal and that no demonstrable error or application of incorrect criteria had been shown.
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.
Principles of assessment
In Campbelltown City Council v Vegan[1] 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.
[1] [2006] NSWCA 284.
The task of the Medical Assessor was to assess Ms Guthridge as she presented on the day of the examination and to apply his own clinical judgement in the application of the Guidelines[2]. He was not bound to agree with findings of other assessors (such as Dr Clark), nor was he required to choose between their assessments.
[2] Guidelines paragraph 1.6.
Campbell J described his task in State of New South Wales v Kaur[3]:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[3] [2016] NSWSC 346.
Paragraph 11.12 of the Guidelines 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.”
The application of the Guidelines is an egalitarian process – impairment is assessed on the same general basis for all workers. In the example most often quoted, loss of use of a finger is assessed in the same way for a bank manager and a concert pianist.
The PIRS Tables reflect that principle and assessment in class 1 under any of the Tables is expressed to apply where there is “No deficit, or minor deficit attributable to the normal variation in the general population”.
The important part of the description of each class in the PIRS is the level of impairment – eg no deficit, mild impairment. What follows in each class are examples which demonstrate the level of impairment. In Jenkins v Ambulance Service of NSW[4] (Jenkins) Garling J said:
“The submission of the plaintiff that, in assigning a class of impairment to each scale, the AMS is restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum, cannot be accepted.
There are a number of reasons for this. First, the submission pays no heed to the importance, to which I have referred, of clinical assessment and judgment, both of which are required in formulating an opinion.
Secondly, as clause 11.7 of the WorkCover Guides records, there is an expectation that the psychiatrist will provide a rationale for the rating which is assigned. That rating is said to be: ‘… based on the injured worker’s psychiatric symptoms’.But the activities (or perhaps lack of them) listed in the various tables go beyond symptoms. Those examples attempt to explore the ways in which a psychiatric condition impacts upon the activities of daily living of an individual, and their capacity to function in the areas described.
Next, the submission pays insufficient attention to the words in clause 11.13 of the WorkCover Guides. The words require the AMS to use the standard form when scoring the PIRS. It specifically then provides that the examples of activities are ‘examples only’. It then enjoins the AMS to take account of a person’s cultural background and to consider the individual’s activities that are usual ‘… for the person’s age, sex and cultural norms’.
...
In my opinion, it is to misread the WorkCover Guides to require, as the plaintiff’s submissions would, that the AMS can only proceed either by using the examples in the tables solely as the basis for a rating, or as the minimum basis for a rating.
I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[4] [2015] NSWSC 633 at [57]-[65].
In Ferguson v State of New South Wales[5] (Ferguson) Campbell J said:
“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.
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 [2015] NSWSC 633. 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’…”[6]
[5] [2017] NSWSC 887.
[6] At [24].
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Limited[7] (Parker) and said[8]:
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self care and hygiene, that is to say, a moderate impairment of self care and hygiene...”
[7] [2018] NSWSC 140.
[8] At [70]-[71].
The MAC
The Medical Assessor set out the history of the injury and Ms Guthridge’s current treatment. He described her current symptoms:
“Ms Guthridge reports feeling sad and depressed and describes not feeling any ‘joy’ in her life. She describes not laughing anymore. She reports having very little pleasure or enjoyment in life except for spending time with her grandchildren. She feels that she is brimming with tears and feels that she wants to cry but she cannot. She feels hopeless and cannot see what her future will be. She has no suicidal thoughts. She reports reduced motivation. She is not interested in socialising and is socially isolated. She describes periods of ‘self-doubt’. She reports having reduced self-confidence and said she avoids conflict. She describes very low energy levels. She still does some gardening around her home. Her sleep is broken most nights but she is able to return to sleep once she wakens. She has frequent dreams relating to her experiences working as school Principal. She has lost interest in cooking. Her weight is stable. She is able to read and focus to do jigsaws and research history, but her concentration is not as good as it used to be. She reports no pervasive symptoms of anxiety.
Ms Guthridge reports her symptoms as having been stable over the past nine to 12 months. She describes feeling 4 out of 10, where zero is the worst she can imagine feeling and 10 is how she was feeling before her work problems began in 2017.”
The Medical Assessor set out Ms Guthridge’s work history then described her social activities and activities of daily living:
“Ms Guthridge lives in Caves Beach in the Lake Macquarie area in her own home with her husband. She is currently not working. She shares the shopping with her husband and shares the cooking with him. They share the house cleaning and clothes washing. She said that she will skip meals if she is by herself. She said she does not leave her home for any social or recreational activities except for occasionally going to a nearby hotel for a meal on a Monday night with her husband. She said that mostly her children come to visit her at her home but she will occasionally go with her husband to visit her children at their homes. She said she has lost all her friendships because she finds it difficult to trust people. She said she is only able to drive Newcastle, a drive of 35 to 40 minutes. She showers and changes her clothes on a daily basis. She gardens at home at times. She does jigsaws for an hour and a half at a time and can also research family history on the internet for about the same length of time.”
The Medical Assessor described his findings on examination, including that Ms Guthridge was alert and oriented and that he observed no impairments in short term memory, concentration or general knowledge.
The Medical Assessor assessed 8% WPI and set out his reasons in the PIRS rating form. He assessed Ms Guthridge as having a mild impairment of self care and personal hygiene and gave the following reasons:
“Mild impairment. Ms Guthridge is able to live independently. She shares the household chores including the cooking with her husband. She occasionally skips meals. She is less interested in her personal appearance than previously. She showers and changes her clothes regularly without prompting.”
With respect to social functioning the Medical Assessor said:
“Mild impairment. Ms Guthridge reports her relationship with her husband has been strained but they remain together and she said that he is very supportive in his attitude to her. There have been no episodes of separation or domestic violence. She reports generally good relationships with her children and grandchildren but said she has lost all her friendships due to her social withdrawal.”
The third assessment that Ms Guthridge contested was concentration, persistence and pace about which the Medical Assessor said:
“Mild impairment. Ms Guthridge reports that her concentration is not as good as it used to be. She said she can concentrate for up to an hour and a half on jigsaws or
researching family history on the internet. She is also able to read for up to an hour but her recall is not as good as previously. She is able to drive 35 to 40 minutes from her home to Newcastle. There were no short-term memory or concentration impairments present on testing at the assessment.”The Medical Assessor considered the reports of the independent medical examiners. He explained where his assessment differed from that of Dr Clark. He noted that he assessed Ms Guthridge in a higher class for employability than Dr Clark and explained that he did not consider that an allowance for the effect of treatment was appropriate. The Medical Assessor considered the opinion of Dr Smith and reports from Ms Guthridge’s treating practitioners dating from 2018.
Medical evidence
Some of the other medical evidence in the file warrants comment because of the submissions made on behalf of Ms Guthridge.
On 3 September 2018 Dr Bhandari noted that Ms Guthridge lived with her husband in their home at Caves Beach. In his report dated 19 October 2018, Dr Bhandari repeated that statement and noted that Ms Guthridge has a close relationship with her husband though she had become increasingly dependent on him since her injury. Dr Bhandari noted that Ms Guthridge had lived in rented accommodation in Kenthurst while working. He said:
“Ms Guthridge reported that Rick continues to work in Sydney and lives with a friend, although returns home on weekends.”
Dr Bhandari noted that Ms Guthridge had catered for her youngest daughter’s 21st birthday party though had not enjoyed it as much as she usually would.
In his report dated 8 March 2019, Dr Bhandari said that Ms Guthridge recognised the progress she had made in recent months. He noted that she was leaving her home on a regular basis and participating in a variety of interventions and treatments.
On 1 August 2019 Dr Bhandari observed that Ms Guthridge’s condition was slowly stabilising and improving though she recognised that her symptoms were entrenched and affecting her functioning in a number of areas.
By 15 November 2019 Dr Bhandari noted that Ms Guthridge’s emotional state fluctuated, particularly when she saw a position advertised that she would have applied for in the past. He said:
“Ms Guthridge indicated her emotional state has been variable. She has struggled outside her zone of comfort, which involves mostly her house and her garden. To Ms Guthridge's credit, she has undertaken a number of activities, including her interest in beekeeping. She struggled, however, dealing with activities. outside her home and easily becomes overwhelmed.”
On 5 January 2020 Dr Bhandari noted that Ms Guthridge had suffered a deterioration in mood in the context of her realisation that she will not return to her previous level of functioning. There are no subsequent reports from Dr Bhandari in the file.
Dr T O Clark saw Ms Guthridge at the request of her lawyers and reported on 23 June 2020. He took a brief history of the injury and noted that she is “still with” her husband, though the relationship has suffered and there is no intimacy. Dr Clark described the history of Ms Guthridge’s injury and his examination and diagnosed major depressive disorder. He set out all of the criteria for that diagnosis from DSM 5, highlighting those which applied to Ms Guthridge. His opinion was expressed in terms of short answers to a series of questions and there is very little information about her current status.
In his assessment report, Dr Clark set out all of the examples in each of the PIRS tables, highlighting the class he assigned. For self care and personal hygiene he assessed Ms Guthridge in class 3 saying merely that she cannot live independently and her husband provides gratuitous care.
Dr Clark assessed Ms Guthridge in class 2 for social functioning on the basis that there were “some strains in relationship but no separations. No intimacy.” For concentration, persistence and pace, he assessed Ms Guthridge in class 3, saying only that she “often has difficulty concentrating.” His descriptions for the categories that have not been contested are similarly terse.
Dr G Smith reported to Northholm’s lawyers on 25 November 2020. He did not consider that Ms Guthridge had reached maximum medical improvement but the history he recorded in respect of the PIRS categories reflects her level of functioning at that time. He noted that Ms Guthridge lives with her husband in their own home. With respect to self care and personal hygiene, Dr Smith recorded:
“Ms Guthridge stated that she showers daily and she shares meal preparation with her husband and some nights he steps in to assist her. She reported an obsessive focus on cleaning, ‘I don’t like disorder’”.
With respect to social functioning, he recorded:
“Ms Guthridge stated that her husband has been ‘my rock’ and there has been no episode of violence or separation. She stated that she had avoided friends that she mainly previously had contact with through work.”
Dr Smith noted under the heading concentration, persistence and pace:
“Ms Guthridge reported reading as ‘my escape’ and she uses a Kindle to read autobiographies, Kate Grenville and Backman. She is currently reading a book about an ice hockey team. She stated that she finds it difficult to make decisions.”
Self care and personal hygiene
The submissions prepared for Ms Guthridge are based on the premise that her husband lives in Sydney during the week and returns home on weekends. Mr Evers said that before the injury, Ms Guthridge was not reliant on her husband because he “wasn’t even residing in the home most of the time”.
It must be pointed out that the only statement in the ARD was prepared by an investigator for Northholm on 15 December 2017. Many pages of that statement are missing. The ARD did not contain a statement of the evidence that Ms Guthridge would give if there were any contested issues, nor was an up to date statement provided when the ARD was filed on 4 May 2021. The statement did not comply with clause 21 of Procedural Direction PIC3 because there is no description of the treatment undertaken nor the ongoing effects of the injury.
The submission that Ms Guthridge did not live with her husband most of the time is not based on the evidence. The statement which was filed says that Ms Guthridge and her husband both lived in Sydney when she was working. She said that they would be living at Caves Beach until school resumed in 2018.
When Dr Bhandari prepared his report in October 2018, he recorded that Ms Guthridge lived at Caves Beach and her husband lived in Sydney during the week, living with a friend. That report was written two and a half years before the examination by the Medical Assessor and before the pandemic, which has changed the working arrangements of many people.
Both Dr Clark and Dr Smith obtained the history that Ms Guthridge lived with her husband, consistent with the history obtained on the day of his examination by the Medical Assessor.
There is no basis to suggest that the history obtained by the Medical Assessor was not accurate on the date of his examination. The history under the heading “Social activities/ADL” shows that the Medical Assessor asked a series of questions to obtain the information recorded, which is slightly different to other histories in the file.
Based on the history obtained, assessment in class 2 was appropriate. Class 2 reflects a mild impairment and the examples given in the Guidelines are appropriate to describe the history the Medical Assessor obtained:
“Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.”
Ms Guthridge told the Medical Assessor that she shares the shopping, cooking, house cleaning and clothes washing with her husband. She showers and changes her clothes on a daily basis. The Panel agrees that Ms Guthridge would, on that history, be able to live independently. She shares tasks with her husband and he could not be said to be providing gratuitous care as Dr Clark said. Merely sharing a home and household tasks does not warrant assessment in class 3. A person may be able to live independently even with a mild degree of neglect of some household tasks.
In any event, as described in Ferguson and Parker, discussed above, an assessment which differs from that made by another assessor does not disclose an error if it is merely a difference of opinion on which reasonable minds may differ.
Social functioning
The assessment made by the Medical Assessor for social functioning in class 2 is the same as that made by Dr Clark. Mr Evers said that the description by the Medical Assessor identified both class 2 and class 4 identifiers. As noted above, and set out in paragraph 11.12 Jenkins, the activities set out in the Table are examples only. The examples should not be seen as “identifiers”. The role of the Medical Assessor is to consider the history provided and to form a view as to the appropriate class.
While Ms Guthridge said that she had lost her established friendships, her relationship with her partner remains. It cannot be said that a loss of sexual intimacy is the same as a separation and the MAC and other evidence shows that Ms Guthridge and her husband do many things together. The assessment as a mild impairment was open to the Medical Assessor on the history he obtained.
In addition, Ms Guthridge told the Medical Assessor that she maintains relationships with her children who visit her. Occasionally she visits them. She told the Medical Assessor that she finds enjoyment in her grandchildren.
As paragraph 11.12 says, the classes in the PIRS table range from 1 to 5 in accordance with severity. The task of the Medical Assessor is to weigh up all of the information obtained and make an assessment. As Garling J said in Jenkins, the examples do not need to be found in each case. Loss of friendships did not mandate assessment in class 4 when Ms Guthridge maintains a good relationship with her family. Based on the history he obtained, assessment in class 2 was open to the Medical Assessor.
Concentration, persistence and pace
Mr Evers said that Ms Guthridge should be assessed in class 3 for concentration, persistence and pace because she previously operated at a high level of intellectual stimulation. The Guidelines do not permit assessment in that way and it is incorrect to say that her concentration should only be measured in respect of tasks that Ms Guthridge finds intellectually demanding.
It is important to note that each of the PIRS Tables is assessed separately and that particular conduct must be applied to the appropriate scale.[9] The matters raised by Mr Evers – concentrating on and carrying out multiple important functions simultaneously – are relevant to Ms Guthridge’s employability and her inability to return to work in her pre-injury job. Those matters are reflected in the rating in class 4 for employability and any entitlement to weekly compensation Ms Guthridge may have.
[9] Ballas v Department of Education [2020] NSWCA 86.
The history obtained by the Medical Assessor is consistent with a mild impairment for concentration, persistence and pace. He did not observe impairments in short-term memory, general knowledge or concentration.
Ms Guthridge told Dr Smith that she reads novels and that reading is her escape. In 2019 she told Dr Bhandari that she had an interest in beekeeping. The Medical Assessor noted that she is able to maintain concentration for about an hour and a half on those activities which she now undertakes – reading, jigsaws, family history research. The Medical Assessor noted that she does gardening at times.
All of those factors suggest a mild impairment in Ms Guthridge’s ability to concentrate and the assessment made by the Medical Assessor was open to him in the exercise of his clinical judgement.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 July 2021 should be confirmed.
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