Hamer v Port Kembla Operations Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Hamer v Port Kembla Operations Pty Ltd [2022] NSWPICMP 270
APPELLANT:	Derek Hamer
RESPONDENT:	Port Kembla Operations Pty Ltd
APPEAL PANEL:	Member Carolyn Rimmer Medical Assessor Nicholas Glozier Medical Assessor Patrick Morris
DATE OF DECISION:	7 July 2022
CATCHWORDS:	WORKERS COMPENSATION- Appellant worker sustained primary psychological injury deemed to have occurred on 15 March 2017; Appeal Panel concluded that the Medical Assessor (MA) did not err and it was open to the MA to assess the appellant worker as Class 2 for Social and Recreational Activities; 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 8 April 2022 Derek Hamer (Mr Hamer/the appellant) made an application to appeal against a medical assessment (the appeal) to the President of the Personal Injury Commission (the Commission). The medical assessment was made by Dr Michael Hong, Medical Assessor (the MA) and issued on 14 March 2022.
The respondent to the appeal is Port Kemble Operations Pty Ltd (the respondent).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria pursuant to
s 327(3)(c) of the 1998 Act, and
· the Medical Assessment Certificate (MAC) contains a demonstrable error.
The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments 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, 4^th ed 1 April 2016 reissued 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

Mr Hamer developed a primary psychological injury in the course of his employment with the respondent as an Information Technology Support Administrator.
On about 10 February 2021, Mr Hamer commenced proceedings in the Commission claiming 17% 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 15 March 2017.
The matter was referred to the MA, Dr Michael Hong, on 22 April 2021 for assessment of WPI of Mr Hamer’s psychological disorder deemed to have occurred on 15 March 2017. The MA examined Mr Hamer on 6 May 2021 by videolink. In a MAC dated 6 May 2021, the MA found that Mr Hamer had not reached maximum medical improvement (MMI) as he had just commenced a change in his medication regime six weeks before the examination by the MA.
It appears that the MA re-examined Mr Hamer in early March 2022 through videolink. The MA assessed 8% WPI as a result of the injury deemed to have occurred on15 March 2017.

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.
Mr Hamer requested that he be re-examined by a MA who is a member of the Appeal Panel. The respondent objected to a re-examination being conducted of Mr Hamer.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Mr Hamer to undergo a further medical examination because there was sufficient evidence on which to make a determination.

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.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) supplementary statement of Derek Hamer dated 7 April 2022.
In his further statement dated 7 April 2022, Mr Hamer said that the audiovisual platform used to facilitate the assessment was unreliable and at times failed. Mr Hamer submitted that the statement dated 7 April 2022 was not new evidence as it restated what was articulated by the MA to Mr Hamer during the examination. Mr Hamer argued that, in essence, this statement was a restatement of the information contained in the reports of Dr Bertucen and Dr Lal. Further, to the extent the statement provided a description of how the audiovisual platform facilitating the examination failed, subsequently limiting or resulting in a miscommunication of the relevant details, this was evidence that was not previously available and should be allowed as part of this appeal.
Mr Hamer submitted that if the appeal was decided on the papers, the Appeal Panel should consider the further statement dated 7 April 2022 as material of evidentiary value, which would otherwise have been available to the MA if the examination was conducted in a
face-to-face format.
The respondent objected to the admission of the further statement dated 7 April 2022. The respondent submitted that the criteria for admission could not be made out when the evidence was procured in response to and for the purpose of challenging the substance of the decision which it sought to vitiate. The additional evidence of Mr Hamer purported to cavil with a challenge to the clinical findings and history recorded by the MA. This was one of the principles identified in CSR Limited v Ewins [2020] NSWSC 511.
The respondent noted that Mr Hamer in his further statement of 7 April 2022 asserted that the audiovisual platform was insufficient. However, the MA did not record in the MAC any difficulties experienced with the audiovisual platform at the time of his re-examination on 4 March 2022. Further, the respondent was not aware of any correspondence lodged with the Commission immediately following the examination on 4 March 2022 advising of an inadequate or insufficient connection for the purposes of the examination.
The respondent submitted that in any event, the contents of Mr Hamer’s statement of 7 April 2022 were not of such probative value that it was reasonably clear it would change
the outcome of the case (Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7 (Ross)).
Further, the respondent submitted that the provision of a statement which addressed the way in which the MA had carried out his examination was not additional relevant information as it is not information of medical kind, which directly related to the decision made by the medical assessor (Petrovic v BC Serv No 14 Pty Limited t/as Broadlex Cleaning Services [2007] NSW SC1156 (Petrovic)).
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross. The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by a panel (see discussion in Australian Prestressing Services Pty Ltd v Vosota WCC 10798-04). In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
The issue concerning “additional relevant information” which is a separate ground of appeal under s 327(3)(b) was addressed by Hoeben J in Petrovic. Hoeben J held that a statutory declaration addressing the way in which an Approved Medical Specialist (AMS) carried out his examination was not “additional relevant information” as it was not information of a medical kind or which directly related to the decision made by the AMS. At [31], Hoeben J said:
“In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs327(3)(b).
32. It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not ‘additional relevant information’ for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar.”
Hoeben J did note that once the matter came before an Appeal Panel, the matter in the statutory declaration could be considered by the Appeal Panel.
The Appeal Panel accepted that the statement, in so far as it related to events that occurred in the examination by the MA, could not reasonably have been obtained before the MA’s assessment.
In so far as the statement of Mr Hamer was a restatement of the information contained in the reports of Dr Bertucen and Dr Lal, these reports are in evidence and will be considered by the Appeal Panel..
Although the statement of Mr Hamer came within the literal definition of “fresh evidence” as referred to in s 328(3), the Appeal Panel decided to disregard that evidence since it was quite contrary to the purpose of the 1998 Act. The Appeal Panel does not understand the intention of the legislature to be that such criticisms of an MA or problems alleged to have occurred during an examination ought to be admitted as fresh evidence. The Appeal Panel believes that the purpose of the legislation is to give some prima facie credence to the opinion of a MA in situations where he has examined the client and all the competing medical views. The system would not be able to operate properly if the MA’s view could be overturned merely because of some untested documentary evidence as to the events that occurred during the examination. There was no evidence that Mr Hamer complained to the Commission about the alleged problems with the audiovisual system immediately after his re-examination on 14 March 2022. Further, it should also be noted that the applicant’s evidence concerning the technical problems during the examination in early March 2022 would have little, if any, probative value. The MA rated Mr Hamer as Class 3 for Concentration, Persistence and Pace and noted that Mr Hamer described himself as having poor concentration. The MA noted that during the examination Mr Hamer had temporary lapses in concentration but was able to remain focused the majority of the time. In those circumstances, the Appeal Panel considered that it was unlikely that Mr Hamer’s recollection of exactly what was said in the examination by the MA was such that he could remember word for word what he said to the MA several weeks after the examination. The Appeal Panel decided that the statement of Mr Hamer was not evidence of such probative value that it was reasonably clear that it would change the outcome of the case.
The Appeal Panel determines that the following evidence should not be received on the appeal:
(a) the statement of Derek Hamer dated 7 April 2022.

Medical Assessment Certificate

The parts of the medical certificate given by the MA that are relevant to the appeal are set out 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.
Mr Hamer’s submissions include the following:
(a)     The conclusions that the MA has reached in relation to the function in the area of social and recreational activities were inconsistent with the evidence available to the MA as well as with the MA’s own commentary within the MAC.
(b)     The connection by which audiovisual conference was conducted was unreliable, and, at times, failed. It was likely that this was the cause of the MA’s recording of history from Mr Hamer that was erroneous and persuaded the MA to determine the impairment that he did.
(c)   There was a significant body of evidence that was made available to the MA, primarily in the Application to Resolve a Dispute, registered 10 February 2021 that verified Mr Hamer had considerably reduced social and recreational activity caused by his psychiatric injury which the MA appeared to overlook. In particular, the statement of Mr Hamer dated 16 July 2018, the clinical notes of Mr Simon Jakes, psychologist reports of Dr Sharat Lal, medico-legal report of Dr Jeff Bertucen of 6 April 2020, and the MACs of the MA dated 6 May 2021 and 14 March 2022.
(d)    In the MAC dated 6 May 2021, the MA made a number of observations consistent with a Class 3 classification in respect of social activities/Activities of Daily Living (ADL). Under the heading “Social activities / ADL” the MA wrote:
“in the past Mr Hamer competed and fishing and enjoyed kayaking. He has not been doing this consistently since 2017. He said one of his friends is also keen on fishing, always encourages him to go out. They went to a tournament in February 2020, this was right before COVID, but he could not cope… Mr Hamer said he has gone fishing with his friend maybe two or three times this year, but he often cancelled when his friend asked him to go. He sees that friend once a month. He only goes fishing on his own maybe two or three times in the last two years. He recalled he drove about 90 minutes to St George's Basin to do kayaking but could no longer enjoy it…. In the past Mr Hamer took classes in cooking and enjoyed entertaining and having barbecues at home. He said it is very rare for them to have barbecue at home anymore. Mr Hamer goes to other people's houses for barbecue, maybe once every two or three months. He gets together with his wife's family and sometimes his next door neighbour.”
(e)    The MA referred to Professor Kaplan's comments that included the cessation of competitive kayak fishing and that Mr Hamer would prepare himself to go fishing and then decide not to.
(f)    In the MAC dated 14 March 2022, the MA made comments and observations that were consistent with a Class 3 classification. For example, under the heading “Social activities/ ADL” the MA noted:
“Mr Hamer has regular contact with predominantly two friends, one of them he goes fishing with, and he probably has gone three or four times in the last 12 months. He was pedalling on his Mirage Pedal kayak when he was fishing, but the propulsion broke. His friend had to tow him back because he was about 100 meters out on the lake, and he is worried this could happen again… he spends most of his time at home with his two dogs. He spends time in the garage sorting through his fishing gear and lures. Previously he competed in fishing, but he cannot do this anymore as he is too anxious…Mr. Hamer tried to make something with woodwork, but ended up cutting the wrong size wood. He does not read books, do crosswords or Sudoku that he used to enjoy as it required too much concentration”.
(g)    Despite all the references in the evidence above that supported a significantly reduced social and recreational activities, the MA recorded under the heading summary:
“I took a history that Mr Hamer enjoys some socializing, by having coffee at the local cafes with two friends usually once a month, and he discussed some reduction in outing with COVID-19 restrictions. He goes out with his wife as well. He has tried other activities with a neighbour but not now. He cannot enjoy large social gatherings and needs support in those settings. Mr. Heyman has reduced participation and continues to enjoy fishing activities”.
(h)    This conclusion was contrary to the MA’s earlier recording of the fishing trip where his propulsion failed and he was left stranded but for a companion who had to tow him in. It stands to reason that fishing trips were no longer enjoyable for Mr Hamer. It was also inconsistent with paragraphs 11 to 14 of the further statement of the Mr Hamer dated 7 April 2022.
(i)    The comment by the MA that Mr Hamer does not need “prompting or support” is contrary to the history recorded by the MA in the MAC dated 14 March 2022. On page 5, the MA stated Mr Hamer said “he has gone fishing with his friend maybe two or three times this year, but he often cancelled when his friend asked him to go. He sees that friend once a month. He only goes fishing on his own maybe two or three times in the last two years. He recalled he drove about 90 minutes to St George's basin to do kayaking but could no longer enjoy it”. Further the MA noted “and he often organizes and prepares his fishing equipment at home sometimes 3 – 4 hours per day”.
(j)    This comment made little sense when reconciled against what the MA recorded earlier when he noted that Mr Hamer had suggested he might have gone fishing three to four times in the previous 12 months and in an earlier recording said that Mr Hamer stated he had been fishing two to three times this year. Regardless of what was more accurate, this was a significant reduction for someone who previously competed and fishing tournaments weekly. Moreover, participants who go fishing three to four times in the past 12 months do not spend three to four hours per day organizing and preparing their fishing equipment at home.
(k)    The comment that “He does not go fishing on his own and goes fishing with a friend, 3 – 4 times in the past 12 months, and he engages in Facebook online fishing groups with people across Australia” should not be viewed as a continuation of Mr Hamer’s pre-injury regular participation and passion for fishing nor any rationale to suggest he is socially active because he peruses fishing pages on Facebook.
(l)    The MA wrote:
“Overall this is more consistent with 2 as his social recreational activities are not rare, he needs support for some activities and does not need support with two close friends, he remains actively engaged during these activities, but he avoids large social gatherings”.
(m)     Mr Hamer submitted that recreational and social activities are in fact “rare” when compared to his pre-injury participation. It was unclear how the MA was able to conclude that Mr Hamer remained actively engaged during these activities, presumably referring to the coffee that he sometimes shared with an old school friend as recorded on page 5 of the MAC dated 14 March 22 and not “on a monthly basis” as later recorded. In support of his Class 2 rating, the MA incorrectly stated that “he goes out to coffee at the local cafe with two long term friends, including a friend that he has known since primary school”. The MA earlier recorded that he “sometimes” has coffee with the long-term school friend. As to the fishing friend, the MA earlier recorded that Mr Hamer may see him once per month but not for fishing as the MA recorded that the fishing trips had reduced to only three to four occasions in the last year. The MA wrote “he continues to engage in fishing related recreational activities” but this history is incorrect.
(n)    The MA erred in not having considered the entirety of evidence supporting the diminished social and recreational activities of Mr Hamer including the reports of Dr Bertucen dated 6 April 2020 and the report of Dr Lal dated 19 August 2020. If this evidence was considered, Mr Hamer’s current social and recreational activity rating should be Class 3 which would be consistent with the Guidelines. On the evidence the MA should have provided a Permanent Impairment Rating Scale (PIRS) rating of 3 for Social and Recreational Activities. The MAC contained a demonstrable error, and was based on incorrect, correct criteria.
(o)    Mr Hamer would benefit from a re-examination by a medical member of the Appeal Panel as the matter should not simply be determined on the papers. However, if the Appeal Panel was satisfied, it could be determined on the papers.

The respondent’s submissions include the following:
(a)    The respondent submits that the MA was entitled to arrive at the conclusion and application of a Class 2 in relation to the Social and Recreational Activities category, noting the updated history recorded in the MAC dated 14 March 2022.
(b)    For the purposes of allocating at the appropriate class under the PIRS categories, the historical records (in this case dating back to 2020) were not determinative or necessarily informative for an assessment taking place some two years later. It was the updated history recorded by the MA which was relevant for the determination of the allocation of the PIRS categories.
(c)    The MA was entitled to arrive at the conclusion of Class 2, based on the history recorded in the MAC. The MA recorded under the heading “Present Symptoms” that Mr Hamer could tolerate some close family members and two close friends. The MA recorded under the heading “Social Activities/ ADL” that Mr Hamer was capable of attending Dr Lal by himself (ie without a support person). The MA recorded that Mr Hamer had regular contact with two friends who he would have coffee with.
(d)    This was not entirely inconsistent noting that Dr Kaplan in his report of 24 February 2020 had recorded that Mr Hamer would occasionally go to lunch with a friend or see another friend for coffee once or twice per month.
(e)    The history as recorded in the MAC of 14 March 2022 in relation to Social and Recreational Activities supported an allocation of “mild impairment” as per Class 2, as opposed to a moderate impairment of Class 3, and there was no application of incorrect criteria by the MA.
(f)    The MAC did not contain any demonstrable error. In Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007] NSWSC 22, the court found: “A demonstrable error would essentially be an error for which there is no information or material to support the finding made - rather than a difference of opinion”.
(g)    Having regard to the above, the MA did not err and the MAC did not contain a demonstrable error.
(h)    The MA was entitled to arrive at the conclusion and application of a Class 2 in relation to the Social and Recreational Activities category, noting the updated history and information as recorded by the MA in the MAC dated 14 March 2022.
(i)    The MA disclosed his reasoning for the allocation of Class 2 in paragraph 7 of the MAC dated 14 March 2002.
(j) Having regard to the above Mr Hamer has not established that the MAC contained the application of incorrect criteria or a demonstrable error as contemplated by s 327(3)(c) or (d) of the 1998 Act.
(k)    The respondents submits that the MAC dated 14 March 2022 does not disclose any error and 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.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
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] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘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 MAC

On page 3 of the MAC dated 14 March 2022 under “Present symptoms”, the MA wrote:
“Mr Hamer continues to avoid situations that will increase his anxieties when he can, e.g. when he is near crowds, people generally. He stated he can only tolerate close family members and two close friends.
…
He avoids social situations due to his anxieties.”
Under “Social activities/ADL” the MA wrote:
“Social activities/ADL:
Mr Hamer can drive when there is not much traffic. If he has to go longer distances, usually his wife would drive him, for example, when he sees Dr Lal his wife drives and this would take them about 20 to 30 minutes. Occasionally, he will go to see Dr Lal by himself early in the morning when there is not much traffic. He finds it very hard to park and said that he is very stressed about doing reverse parking, he will start to sweat. He has tried to avoid it, and his psychologist has been pushing him to do it, to help him build up confidence.
He remains socially anxious. The last time he went to any kind of social gathering was during Christmas 2021. He went to his brother-in-law’s home, but remained quite withdrawn.
Mr Hamer has regular contact with predominantly two friends, one of them he goes fishing with, and he probably has gone three or four times in the last 12 months. He was pedalling on his Mirage Pedal Kayak when he was fishing, but the propulsion broke. His friend had to tow him back as he was about 100 meter out on the lake, and he is worried this could happen again. He has contact with another friend he has known since primary school age. She would call him and talk on the phone. Mr Hamer goes out to have coffee with these two friends and does not maintain contact with other friends.
He spends most of the time at home with his two dogs. He spends time in the garage sorting through his fishing gear and lures. Previously he competed in fishing, but he cannot do this anymore as he is too anxious.
Mr Hamer tried to make something with wood work, but ended up cutting the wrong sized wood. He does not read books, do crossword or Sudoku that he used to enjoy as it required too much concentration.
He spends time in the lounge, checking his Facebook and sometimes he would read a bit of news. He continues to engage in an online fishing group on Facebook. He watches his friends’ posts, they would post fishing videos from all over Australia.
He explained that one of the reasons he does not want to mingle with people is that people will ask him how he is and feels very embarrassed to tell people what happened to him.
He does some shopping early in the morning and late at night when there are not many people in the shops.
He has an irregular sleep pattern. On the day when he has low mood, he usually sleeps in and said that he is embarrassed because he does not brush his teeth and it is very late. On a good day, he would wake up and try to eat healthy food, such as making some salad, but on a bad day he said he relies on take away food.
The relation with his wife remains good, and he said that she is his rock. She works full time in TAFE Education.
At my last assessment, I noted:
In the past Mr Hamer competed in fishing and enjoyed kayaking. He has not been doing this consistently since 2017. He said one of his friends is also keen on fishing, always encourages him to go out. They went to a tournament in February 2020, this was right before COVID, but he could not cope.
Mr Hamer said he has gone fishing with his friend maybe two or three times this year, but he often cancelled when his friend asked him to go. He sees that friend once a month. He only goes fishing on his own, maybe two or three times in the last two years. He recalled he drove about 90 minutes to St George’s Basin to do kayaking but could no longer enjoy it.
In the past Mr Hamer took classes in cooking and enjoyed entertaining and having barbeque at home. He said it is very rare for them to have barbeque at home anymore. Mr Hamer goes to other people’s houses for barbeque, maybe once every two or three months. He gets together with his wife’s family and sometimes his neighbour. The main friend is the friend who goes fishing with him, and he sees him once a month. Mr Hamer has a school friend he sometimes goes out for coffee with, and he said he has also become quite close to a neighbour.
In the past Mr Hamer stated that he enjoyed doing the budgeting and the finance spreadsheet, but he does not do any of this anymore as he could not concentrate, and his wife does it now. He does not read books. Sometimes he will do a bit of tinkering in the garage but finds that he gets the measurements wrong, and is frustrated with himself. He has trouble focusing.
Mr Hamer described on a good day he would get up, have coffee and talk to the wife and empty the dishwasher, and do some housework. However, he finds that he has been clumsy, for example he dropped the keys, he dropped a peg when he was hanging out the washing, sometimes he would even trip going up and down stairs.
Mr Hamer eats and showers regularly, but on a bad day he does not brush his teeth until about midday.
Mr Hamer can drive on a quiet road but said he is easily flustered. He tried to park and if there are people around, he becomes embarrassed and drives away. He said sometimes he will miss the turnoff. If they have to go long distances, for example to Sydney, his wife will drive.”
Under “Findings on physical examination” the MA noted:
“Mr Hamer presented as anxious and engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements. He was moderately restricted in his affect range and reactivity.
He spoke spontaneously and readily and he was less disorganized than in my last assessment.
We went through the history in my last report, and we discussed the history in his GP and treating psychologist and Dr Lal’s reports.
I assessed him over 60 minutes, and whilst there were temporary lapses in concentration, he was able to remain focussed the majority of the time.”
Under “Summary of injury and diagnoses” the MA wrote:
“I noted Dr Bertucen rated Mr Hamer’s Social and Recreational Activities as 3 and wrote that Mr Hamer's social and recreational life has become significantly restricted in the last few years with a loss of enjoyment in fishing and ancillary activities (boating, making fishing rods, etc.) and significant reduction of socialising owing to anxiety and panic features in public venues. He stated that there is now very infrequent socialising with Katrina or previous ‘couple friends’ and attendance at family functions has been markedly reduced by the fear of embarrassment. He receives a neighbour to the home on occasions for barbecues.
I took a history that Mr Hamer enjoys some socializing, by having coffee at the local cafés with 2 friends usually once a month, and he discussed some reduction in outing with COVID- 19 restrictions. He goes out with his wife as well. He had tried other activities with a neighbour, but not now. He cannot enjoy large social gatherings and needs support in those settings. Mr Hamer has reduced participation and continues to enjoy fishing activities. He does not need prompting or support and he often organizes and prepares his fishing equipment at home, sometimes 3 - 4 hours a day. He does not go fishing on his own and goes fishing with a friend, 3 - 4 times in the past 12 months, and he engages in Facebook online fishing groups with people across Australia. Overall this is more consistent with 2 as his social recreational activities are not rare, he needs support for some activities and does not need support with two close friends, he remains actively engaged during these activities, but he avoids large social gatherings.”

Discussion

The MA 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 MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

PIRS categories

In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“66. In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense…
70. 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.
71. 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…”
In Chalkias v State of New South Wales [2018] NSWSC 1561, Adamson J noted that the worker alleged that the Medical Appeal Panel (MAP) failed to identify the error in the MAC which was a necessary jurisdictional prerequisite, and had erred by substituting its own opinion for that of the AMS. Adamson J found at [33]-[36] that the MAP reasons demonstrated that it had correctly understood and exercised its jurisdiction. The MAP was satisfied that the AMS had made errors relating to the grading of the self care and personal hygiene category, and having identified the error, the MAP was entitled and obliged to review the assessment in relation to that category.
Adamson J found that the MAP’s assessment of the self care category did not amount to a mere difference of opinion of the kind described by Harrison AsJ in Parker, and that the MAP coming to a different assessment of that category did not “convert” its initial finding of error into a mere difference of opinion (at [36]). Adamson J dismissed the worker’s appeal of a MAP’s decision, finding there was no error of law or jurisdictional error.
The MA assessed Mr Hamer as Class 2 for Social and Recreational Activities.
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Social and Recreational Activities

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 classes of each PIRS category are allocated a descriptor. These descriptors are to be determined comparable to the clinical norms considering the person’s age, sex and culture. The associated examples are provided as guides and are not determinative.
The examples in the Guidelines under Table 11.2 for “Social and Recreational Activities” in the Guidelines are:
“Class 2: Mild impairment: Occasionally goes out to such events without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3: Rarely goes to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn”.
In the PIRS Rating Form, the MA rated Mr Hamer as Class 2 for Social and Recreational Activities and wrote:
“He is socially anxious and has difficulties with large social gatherings, and only goes when his wife urges him and acts as his support, and he tends to remain quiet and withdrawn in large social gatherings. He goes out to coffee at the local café with two long-term friends, including a friend he has known since primary school. This is around once every month. He continues to engage in fishing related recreational activities.
I have discussed this further under ‘Summary’.”
Mr Hamer submitted that that the conclusions the MA reached in relation to the function in the area of social and recreational activities were inconsistent with the evidence available to the MA as well as with the MA’s own commentary within the MAC.
In his statement dated 16 July 2018, Mr Hamer wrote:
“16. In terms of my interests outside of work, I enjoy competition fishing from my kayak and I would go every weekend prior to my injury.
17. I am rarely involved in fishing outside although I feel that I would like to be able to go out and do this activity. I just haven't been able to do anything relating to fishing due to my current state of mind with my injury.
18. Since my injury I have found it difficult to go into crowded areas and to be social. I have sometimes found it difficult to have quality family time outside of the home”.
In his report of 6 April 2020, Dr Bertucen under “Psychological sequelae” wrote:
“…however, in late 2015 and 2016 the symptoms recurred with poor concentration and memory, indecisiveness and difficulty with executive function at work, delayed sleep onset (owing to ruminations) physiological symptoms of anxiety on weekends are in the morning such as nausea, tremor and chest tightness, loss of interest in previous hobbies (particularly fishing which he previously engaged at a tournament level) and self-consciousness in public.”
Under the heading “Recent /current symptoms”, Dr Bertucen wrote:
“He remains prone to somewhat unhelpful ideas of shame and guilt about his condition with ideas of low self-worth, seeing himself as ‘weak’ and flawed for being unable to return to work, remains uninterested in his previous principal passion of fishing and reports a ‘lack of joy’ in most previous activities, eg woodwork, socializing and attending family, although he occasionally sees his neighbours at home (or in-laws), for very occasional barbecues”.
Dr Bertucen rated Mr Hamer as a Class 3 for Social and Recreational Activities and wrote:
“Mr Hamer’s social and recreational life has become significantly restricted in the last few years with a loss of enjoyment in fishing and ancillary activities (boating, making fishing rods, etc). and significant reduction of socializing owing to anxiety and panic features in public venues. He states that there is now very infrequent socializing with Katrina, or previous ‘couple friends’ and attendance at family functions. has been markedly reduced by the fear of fear of embarrassment. He received a neighbour to the home on occasions for barbecues, etc.”

In a report dated 21 November 2017, Dr Lal wrote: “Derek's current interests including include fishing and cricket although he has lost interest in fishing and hasn't been able to play cricket recently”.
In a report dated 3 August 2018, Dr Lal wrote:
“Derek said he is feeling better. His sleep has improved significantly. Derek said he has stopped drinking alcohol at night and has increased his exercise levels. He has also got a new puppy which is keeping him busy and Derek is enjoying training the dog”.
In a report dated 17 June 2019 Dr Lal wrote:
“I feel exercising will be a benefit to Derek, both in terms of his weight (and therefore his self-image) but also in terms of helping him feel better. Exercise has been shown to help with both anxiety and depression. Derek's weight gain is partially due to medication and his difficulty exercising is partly due to his depression. I would like to request approval for Derek to see an exercise physiologist.”
in a report dated 19 August 2020 under the heading “Employment” Dr Lal wrote:
“Mr Hamer is very unwell and has been so over the time that I have been treating him almost 2 and a half years. His mood remains depressed and his anxiety can reach the point of panic at times, even undertaking routine tasks such as going to the shops. He is not even able to engage in previously very pleasurable activities such as fishing. This is significant, as generally, fishing would see be seen as low stress activity”.
In in a report to Dr Goderie dated 21 June 2019, Mr Jakes stated: “He now attends once a month and his mood continues improved. He is still highly self critical but has started fishing and doing work restructuring his garden”.
In a letter to Mr Hamer dated 25 October 2019, Mr. Jakes wrote:
“Currently your mood has improved significantly and you no longer feel suicidal. However you are left with a number of psychological handicaps. You suffer from low self esteem, lack of self-confidence, panic, anxiety, and social phobia. These problems do not show any sign of remitting and prevent you from engaging in voluntary work or other organized groups”.
In a further letter to Mr Hamer dated 29 April 2020, Mr Jakes wrote under the heading “Social Functioning”:
“Most of your relationships have been impacted by your illness. You have a good marriage and you see a couple of friends, but you often worry about your interactions with others, feeling that you have let them down or failed them in some other way. This means you try to avoid family functions or meeting friends of your wife. You worry about the stigma of being depressed and you worry about how to respond to their questions”.
Under the heading of “Work”, Mr Jakes wrote:
“You have tried to undertake some voluntary work with a friend who owns a fishing shop. However because you were highly anxious about failing you found you made some mistakes which you then became more anxious about failing. Although you can contribute to the housework, and do physical work in the garden your worry about failing in a work situation has meant that so far trying to do voluntary work this has not helped. Hopefully this will change, but it is difficult to predict whether it will”.
Associate Professor Robert Kaplan, in a report dated 24 February 2020, noted the problem with Mr Hamer's sleep. Under “Current situation” Associate Professor Kaplan wrote:
“He gets up at 6:30am and has breakfast with his wife before she goes to work. He does housework, tinkers in the garage and spends time with his dogs. He does not watch much television, but goes for a walk. He does the laundry, goes to the shops and prepares food. He does not read the newspapers but checks social media and fishing news on the internet. He keeps busy with repairs and the day passes quickly.
On some occasions, he finds crowded places, such as supermarkets, difficult and will leave in a state of anxiety”.
Associate Professor reported that Mr Hamer “will occasionally go out for lunch with a friend and sees another friend for coffee once - twice a month… He is going kayak fishing once a month. A friend takes him out, a good distraction.”
In a report dated 16 November 2020, Associate Professor Kaplan noted:
“Mr Hamer agrees that he is better than when last seen but mood tends to fluctuate.
After four years, he is 'a shell' but grateful for his treatment. He does not feel that he could work again.
Mr Hamer gets up at 7am to be with his wife when she gets ready for work. He will have several cups of coffee, spend time with his dogs, take a shower, do housework, washing and tinker in the garage. He listens the radio but does not watch much television. He will check social media and do exercise.
He prepares to go fishing but may not go further; he stopped competitive kayak fishing. He goes out to the doctors and grocery shopping. His wife comes home, and he prepares the meal….
On weekends, they go out for coffee …
His father is nearly blind. He sees him regularly to assist him around the house and take him to appointments”.
Associate Professor Kaplan did not believe MMI has been reached and advised that other treatment including psychiatric admission, TMS (transcranial magnetic stimulation, a non-invasive physical treatment for mood disorder), group program, treatment in consultation with the Black Dog Institute could further improve Mr Hamer's psychological symptoms.
Mr Hamer argued that in the MAC dated 6 May 2021, the MA made a number of observations consistent with a Class 3 classification in respect of social activities /ADL including his cessation of competitive fishing, cancellation of planned fishing trips with one of his friends and lack of enjoyment in fishing. Mr Hamer also noted that in the past he had taken classes in cooking and enjoyed entertaining and having barbecues at home but it was very rare for them to have barbecue at home anymore although he would go to other people's houses for a barbecue, maybe once every two or three months. The MA reported that Mr Hamer would get together with his wife's family and sometimes his next door neighbour.
Mr Hamer argued that In the MAC dated 14 March 2022, the MA made comments and observations that were consistent with a Class 3 classification and referred to regular contact with “predominantly two friends, one of them he goes fishing with, and he probably has gone three or four times in the last 12 months”. The MA noted that Mr Hamer spent most of his time at home with his two dogs, time in the garage sorting through his fishing gear and lures, did not compete in fishing anymore and tried to make something with woodwork, but ended up cutting the wrong size wood.
The Appeal Panel considered that more weight should be placed on observations made by the MA in the most recent examination in March 2022, than the other information obtained at least 17 months prior, when considering the classification for Social and Recreational Activities. There were, in the view of the Appeal Panel, some activities that were indicative of a Class 2 classification where others were indicative of a Class 3 classification.
It was evident that the MA considered the question of whether Mr Hamer should be classified as a Class 2 or as a Class 3 in the scale for Social and Recreational Activities very carefully. The MA noted that Dr Bertucen rated Mr Hamer’s Social and Recreational Activities as Class 3 but pointed out that he obtained a history that Mr Hamer enjoys some socializing, by having coffee at the local cafés with two friends usually once a month and went out with his wife as well as to family barbeques. The MA noted that Mr Hamer had tried other activities with a neighbour, but did not now, and could not enjoy large social gatherings and needed support in those settings. The MA reported that Mr Hamer had reduced participation and continued to enjoy fishing activities, although at a reduced frequency, did not need prompting or support and he often organizes and prepares his fishing equipment at home, sometimes three to four hours a day. The MA noted that Mr Hamer did not go fishing on his own and went fishing with a friend, three to four times in the past 12 months, and he engaged in Facebook online fishing groups with people across Australia.
The MA considered that overall these features were more consistent with Class 2 as his social recreational activities were not rare, support was needed for some activities but he did not need support with two close friends, he remained actively engaged during these activities, but avoided large social gatherings.
The Appeal Panel accepted that Mr Hamer had reduced social interaction, needed support in larger groups but could see a friend for coffee or lunch by himself.
The MA had the benefit of two examinations of Mr Hamer, one on 6 May 2021 and the other in early March 2022.
The Appeal Panel regarded this as a case where the significance or otherwise of matters raised in the consultation was very much a matter for the clinical judgment and assessment of the MA. The MA took a detailed history from Mr Hamer and conducted a medical assessment, and the significance or otherwise of matters raised in the consultation was very much a matter for his assessment. The question of whether the findings fell into Class 2 or Class 3 was a difference of opinion about which reasonable minds may differ. In these circumstances, a classification of Class 2 for Social and Recreational Activities was open to the MA and the Appeal Panel was not persuaded that the MA made a demonstrable error or that the assessment was based on incorrect criteria.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 March 2022 should be confirmed.

[2022] NSWPICMP 270

7 July 2022