Henderson v Canterbury Hurlstone Park RSL Club Ltd

[2023] NSWPICMP 134

DETERMINATION OF APPEAL PANEL
CITATION:	Henderson v Canterbury Hurlstone Park RSL Club Ltd [2023] NSWPICMP 134
APPELLANT:	Annette Henderson
RESPONDENT:	Canterbury Hurlstone Park RSL Club Ltd
Appeal Panel
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	6 April 2023
CATCHWORDS:	wORKERS cOMPENSATION - Psychological Injury; appellant alleged error in the assessment under two categories under the psychiatric impairment rating scale (PIRS) namely, social and recreational activities and social functioning; the ratings in this class was open to the Medical Assessor and the Panel could discern no error; the appellant also alleged error in failure to give an additional impairment for effects of treatment; no error found as there was not substantial or total elimination of impairment; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 15 November 2022 Ms Annette Henderson (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
   Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 October 2022.

2. 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.

3. 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 grounds of appeal on which the appeal is made.

4. 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.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). 

PRELIMINARY REVIEW

1. 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.

2. The appellant did not request a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could not find error. Absent error, the Appeal Panel has no power to require a re-examination. The Appeal Panel cannot examine the worker to determine whether a ground of appeal has been made out: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

EVIDENCE

Documentary evidence

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

Medical Assessment Certificate

1. 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

1. It is noted that the delegate’s decision refers to the respondent employer not having filed a notice of opposition. The Appeal Panel notes there is a notice of opposition included with the papers referred to the Appeal Panel.

2. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The matter was referred to the Medical Assessor for assessment as follows:

   “The following matters have been referred for assessment (s 319 of the 1998 Act):

   ·        the degree of permanent impairment of the worker as a result of an injury (s319(c))

   ·        whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))

   ·        whether impairment is permanent (s319(f))

   ·        whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))

   ·        Date of injury: 4 April 2017

   ·        Body parts/systems referred: Psychiatric/psychological

   ·        Method of assessment: Whole Person Impairment.”

4. The Medical Assessor issued a MAC certifying as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guidelines	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
Psychiatric	4 April 2017	Chap 11, p 54-60	n/a	7%	Nil	7%
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					7%

1. The assessment was based on his assessment under the permanent impairment rating scale (PIRS) as required by the Guidelines as follows:

“Table 11.8: PIRS Rating Form

Name	Annette Henderson	Claim reference number	W3686/22
DOB	Xxxx	Age at time of injury	45 years
Date of Injury	4 April 2017	Occupation at time of injury	Marketing assistant/coordinator
Date of Assessment	12 October 2022	Marital Status before injury	De facto

Psychiatric diagnoses	Persistent depressive disorder with anxious distress
GAD
Psychiatric treatment	Psychotherapy
Is impairment permanent?	Yes

PIRS Category			Class		Reason for Decision
Self-Care and personal hygiene			2		Ms Henderson attends to hygiene, showering daily without prompting and wearing clean clothes. She wears make-up when she goes to work. She has assistance from her mother with housework and rarely cooks, often relying on purchased meals from Lite and Easy. She comfort-eats, and her weight has fluctuated.
Social and recreational activities			2		She is less socially active but still attends cafés with her sister, niece and friends. She occasionally goes to a local pool to swim, where she has a group of friends.
Travel			2		She is independent with local travel. She recently travelled from her home to Wollongong with her mother and sister, a trip of about one hour each way. She also travelled to Hawaii in 2019 with her sister but found the trip challenging. She will not leave her local area without support.
Social functioning			2		She has continuing close relationships with her partner, mother, sister, brother, niece and about four friends. She is estranged from her twin brother, who found her behaviour post-injury challenging. She has withdrawn from some friends, especially those who work for The Club.
Concentration, persistence and pace			3		She has subjective difficulties with concentration, decision-making and memory. She manages in her current workplace, but it is a protected environment where they make significant allowance for any challenges she has. During my 80-minute interview, she struggled to recall details and event sequences.
Employability			3		She is working 24 hours a week in a less demanding workplace, supported by a caring and compassionate manager, and where her partner is the boss.
Score										Median Class
2	2	2		2		3	3		= 2
Aggregate Score Impairment   14								Total			7 %”

1. The Medical Assessor made no allowance for the effects of treatment.

2. The worker appealed. In summary the appellant submitted that the Medical Assessor erred in his assessment under two of the PIRS categories, and in his failure to make an allowance for the effects of treatment as follows:

   (a)    In respect of Social and Recreational Activities when he assessed a Class 2 and a Class 3 should have been assessed.

   (b)    In respect of Social Functioning when he assessed a Class 2 and a Class 3 should have been assessed.

   (c)    When he failed to make an additional allowance for the effects of treatment “despite effective continuing treatment by a psychologist enabling the worker to return to work in supportive environment part-time”.

3. In summary, Canterbury Hurlstone Park RSL Ltd (the respondent) submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.

4. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.

5. The Medical Assessor took a history which was broadly consistent with the other evidence before him. He recorded in detail the appellant’s reporting of present symptoms and impact on activities of daily living (ADLs). The Medical Assessor recorded as follows:

   “Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

   Ms Henderson commenced work with the Canterbury Hurlstone Park RSL Club in February 1998, primarily as a marketing assistant/coordinator.

   She had a new manager from about 2013 and, from that time, felt less supported. Things became much worse in mid-2016, with her co-workers behaving inappropriately. Their conversations were often sexual in nature, rough and swearing. Ms Henderson felt this was unacceptable for a workplace and complained. After that, she felt targeted and excluded. 

   In 2017, Ms Henderson was accused of doing private work for some of the managers at The Club; and suspended. When she returned to work, she was asked to go into mediation with people who had bullied her. She resigned, and her last day of work was 4 April 2017.

   She sought support from her general practitioner and was referred to a psychologist.

   ·        Present treatment:

   Treating clinicians:

   ogeneral practitioner Dr Mamdouh Mattar

   opsychologist Ms Maria Simonetta

   Dr Mattar has discussed referral to a psychiatrist, but Ms Henderson has declined, preferring support from her psychologist.

   She took desvenlafaxine 50 mg daily for about 12 months, commencing shortly after leaving work. She has had no other medication trials and is on nothing now, preferring to manage her condition without medication.

   She sees her psychologist weekly. By Ms Henderson’s description, Ms Simonetta is working as a cognitive behavioural therapist, using dearousal strategies and supportive psychotherapy.

   She has never been admitted to a hospital or attended a structured mental health program.

   ·        Present symptoms:

   Ms Henderson denied being depressed but acknowledged that she is sensitive and that her mood fluctuated with circumstances. She often feels indecisive and confused and believes that she is a burden on others.

   She is an anxious worrier, prone to catastrophic thinking. For example, on a trip to the movies, she worried whether there might be a mass shooting. She is socially anxious and avoids situations that might increase her concern.

   She has subjective difficulties with concentration, attention and memory.

   She is prone to anxious ruminations.

   Earlier in her illness, she had thoughts of suicide, but these have lessened. She said, ‘I feel that I’m a nuisance, but I’m not suicidal.’

   She is generally in bed by 10 PM and falls asleep quickly. She wakes at about 2 AM and will lie awake for several hours.

   She is prone to comfort eating, and her weight fluctuates.

   Her libido is reduced.

   ·        Details of any previous or subsequent accidents, injuries or conditions:

   Ms Henderson denies any pre-existing mental health problems, and no subsequent accidents, injuries or conditions have occurred.

   She was subject to childhood sexual abuse from a perpetrator outside of the family when she was about nine years old. She sought counselling for this in her early 30s. The abuse has not been an ongoing concern for her, and I do not consider it a pre-existing condition contributing to her presentation.

   She describes herself as shy but had not been diagnosed with an anxiety disorder before 2017.

   ·        General health:

   She had a cholecystectomy in 2019 and has impaired glucose tolerance. Her only medication is metformin.

   She rarely drinks alcohol and does not smoke.

   Her weight has fluctuated. She currently weighs 92 kg; at 178 cm, her BMI is 29, in the overweight range. In February 2016, her general practitioner recorded weight of 94.5 kg.

   ·        Work history, including previous work history if relevant:

   Ms Henderson was raised at Earlwood with a sister, brother and twin brother. Her father, now deceased, was a Telstra radio technician and her mother primarily cared for their children.

   She described her family as ‘normal, safe and caring.’

   She completed year 12 at high school and enrolled in a secretarial college. She has studied for diplomas in marketing, management and graphic design (partly completed).

   She worked for the Canterbury Leagues Club for eight years as a receptionist and in the payroll office.

   She transferred to the Canterbury Hurlstone Park RSL Club in 1998.

   ·        Social activities/ADL:

   Ms Henderson lives at Earlwood with her partner of 16 years, David, who manages Foundation House, a drug, alcohol and gambling rehabilitation centre. They have no children.

   For the last two years, she has also worked at Foundation House for 24 hours over three days a week. She has a graphic design and administration role.

   Her immediate supervisor, Joan, is compassionate and understanding about her mental health challenges and makes allowances if she is struggling.
   Ms Henderson’s partner is the overall manager. She considers it a safe and protective environment in which to work.

   She rises most mornings at about 6:30 AM. Before leaving for work, she will shower, dress and put on make-up. She prepares lunches for herself and David the night before.

   When she doesn’t work, she does some cleaning and may go for a walk. Her mother, who lives nearby, assists with laundry and cleaning. David may help prepare the evening meal, although they purchase Lite and Easy for many of their meals.

   Before becoming unwell, she had an active social life and attended cafés, BBQs, movies and events. She had travelled through Europe, Nepal and Hawaii, often with friends. 

   Now, she has regular contact with her mother, sister and her adult niece. They may go walking together or to a café.

   Earlier in the year, she attended a movie, Elvis, with David but was so anxious that she found the experience overwhelming. She has recently participated in a work dinner but was ‘nervous about everything.’

   She goes to the pool to swim about once a month. She is often invited to social outings with people she knows from the pool but usually refuses.

   She is independent with local travel, driving herself to the shops and work. She has recently travelled to Wollongong with her mother and sister, where they went to a café, but she wouldn’t have taken the trip without their support.

   In 2019, Just before the onset of the Covid pandemic, she travelled to Hawaii with her sister. She found the trips challenging, saying, ‘it was very upsetting for me; I would have done anything to have gotten out of it.’

   Her partner David is very supportive and caring, although Ms Henderson worries that she frustrates him because of her indecisiveness and difficulty marshalling her thoughts. She remains close to her mother, sister, one brother, niece and three or four friends. She is estranged from her twin brother because he coped poorly with her mental illness. They had a falling out in early 2022; she said, ‘he blew up at me and abused me, calling me a drama queen.’

   Ms Henderson has no hobbies or projects. She reads little because she finds it hard to concentrate. She is reading a biography of Demi Moore but picks it up on me every couple of months for a few minutes.

   She watches the news in the evening but becomes bored and distracted after a few minutes. She watches ‘fluffy things’ on television, such as The Bold and the Beautiful and The Chase.

   She spends time on Instagram and Pinterest looking at ‘creative things.’

   When she feels challenged at work or overwhelmed, her work colleagues help her, and her manager is willing to outsource tasks.”

6. The Medical Assessor conducted a mental state examination and recorded his findings as follows:

   “I assessed Ms Henderson for 70 minutes by video link; the connection quality was adequate to do a comprehensive assessment.

   She presented casually attired, well-groomed, bespectacled with her hair pulled back and wearing a black top.

   When I first met her, she appeared distressed and anxious but settled early in the interview and maintained her composure.

   Her affect was reactive, consistent with her stated mood and congruent with the interview content.

   There was no evidence of disorder of thought-form or perception.

   She occasionally referred to written notes. She had difficulties with some details and sequences of events.

   She denied any recent thoughts of suicide or self-harm.

   At the end of the interview, when asked if she had anything else to add, she said, ‘I don’t know how I would go in the real workforce; where I am now, I feel safe because it is very supportive and caring’.”

7. The Medical Assessor made a diagnosis as follows:

   “summary of injuries and diagnoses:

   My diagnoses rely on the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.

   o   persistent depressive disorder with anxious distress

   o   generalised anxiety disorder (GAD)

   Although Ms Henderson denies prominent depression, she has several depressive symptoms, including overeating, low self-esteem, poor concentration, difficulty making decisions, and insomnia. Her symptoms have been present for more than two years, likely subthreshold for making a diagnosis of major depressive disorder, and warrant a diagnosis of persistent depression.

   She has prominent anxiety symptoms with elements of social anxiety, but GAD is the best fit.

   A mood disorder diagnosis supersedes that of an adjustment disorder.

   ·        consistency of presentation

   I found no inconsistencies in Ms Henderson’s presentation.”

8. The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above. The assessments in the categories of social and recreation activities and social functioning are the subject of complaint on appeal.

1. The Medical Assessor considered that maximum medical improvement had been reached, noting:

   “Yes. Ms Henderson has been unwell for at least five years. She has had extensive psychotherapy but has been undertreated with medication. She is opposed to taking medication, and her decision must be respected. Her condition and associated impairment are unlikely to change significantly over the next 12 months.”

2. The Medical Assessor explained why he made no adjustment for the effects of treatment:

   “I do not adjust for the effect of treatment because there has not been a substantial or complete elimination of impairment with treatment.”

3. The Medical Assessor’s failure to allow for the effects of treatment is the subject of complaint on appeal.

4. The Medical Assessor had regard to the other evidence that was before him upon which he made brief comments explaining where he disagreed with the assessment of Dr Chow, the independent medical expert  (IME) qualified on behalf of the appellant, and where he disagreed with the opinion of Dr Young (whom he initially erroneously refers to as Dr Clayton Smith), the IME qualified on behalf of the respondent which relevantly in respect of the matters complained about on appeal were as follows:

   “IME psychiatrist Dr Clayton Smith, 10 August 2017, diagnosed an adjustment disorder with depressed and anxious mood that he thought had deteriorated into a major depressive disorder.

   Dr Smith re-examined Ms Henderson on 17 March 2022 and noted that ‘since returning to work her condition had improved considerably.’ He determined a 1% WPI (classes 1, 1, 1, 1, 2, and 2). He believed that there was room for clinical improvement but, given her minor degree of impairment, that her WPI would not change over the next 12 months and, therefore, a determination of impairment was warranted.

   IME psychiatrist Dr Frank Chow, 4 October 2017, diagnosed an adjustment disorder and, although he considered that she had not reached maximum medical improvement, he determined 4% WPI (classes 1, 2, 1, 1, 2, and 2).

   He re-examined Ms Henderson on 10 January 2022, noted deterioration from his previous assessment, and confirmed his diagnosis of an adjustment disorder, which he considered chronic. He determined 17% WPI (classes 2, 3, 2, 3, 3, and 3) before adding 1% WPI for treatment effect.

   I note that the 2022 assessments of Dr Chow and Smith are only two months apart but offered differing estimates of impairment. Dr Chow’s adjustment for the treatment effect is unwarranted, given that he thought that she had deteriorated significantly between his two assessments.

   …

   Dr Young found no impairment in social and recreational activities, while Dr Chow thought the impairment moderate, and I considered it mild. Dr Young noted:

   ‘Ms Henderson reports that she occasionally enjoys going to the beach with her niece. She enjoys seeing her family frequently. She said that she engages in social and recreational activities less frequently, generally due to the pandemic, however she sometimes does feel tired or lacks energy.’

   And Dr Chow:

   She used to go to the beach and socialising frequently. But she is now not engaging in any hobbies or activities.

   Ms Henderson is less socially active but regularly goes to cafés with members of her extended family or friends. She still attends the pool, where she has a group of friends and has attempted to go to movies but found the experience somewhat overwhelming.

   …

   Dr Young found no impairment in social functioning, whereas Dr Chow thought it moderate and I thought it mild. Dr Young argued:

   ‘Ms Henderson reports that she has a good relationship with her partner, with her sisters and with her niece. She also has a good relationship with her mother and she said, “I have some really good girlfriends from school days”.’

   And Dr Chow:

   ‘She is not seeing friends and family as much. Relationship with her husband remains supportive despite difficulties. She has conflict with her brother and brother is not talking to her.

   Ms Henderson is estranged from her brother and has withdrawn from some of her friends. Her relationship with her partner, other family members, and a few friends remain intact. There has been no discussion of separation and no domestic discord’.”

5. The appellant complains that the Medical Assessor has erred in respect of two of the categories assessed, namely, Social and Recreational Activities and Social Functioning. The Medical Assessor assessed Class 2, mild impairment, in both categories and the appellant says a Class 3 should have been assessed in both categories.

6. The Panel cannot interfere with the ratings ascribed by the Medical Assessor to the categories of Social and Recreational Activities and Social Functioning absent error by the Medical Assessor. The Panel cannot interfere with the rating because opinions might differ as to the best fit in this category. There must be error or assessment on the basis of incorrect criteria.

7. In respect of Social and Recreational Activities, Table 11.2 of the Guidelines provides as follows:

   “Table 11.2: Psychiatric impairment rating scale – social and recreational activities

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2	Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3	Moderate impairment: rarely goes out 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.
Class 4	Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5	Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.”

1. The Medical Assessor assessed a mild impairment at Class 2 with the following reasoning:

   “She is less socially active but still attends cafés with her sister, niece and friends. She occasionally goes to a local pool to swim, where she has a group of friends.”

2. The appellant submitted that a Class 3 or moderate impairment should have been assessed.

3. The IME qualified on behalf of the appellant, Dr Chow assessed Class 3 and Dr Young, the IME qualified on behalf of the respondent assessed Class 1. The Medical Assessor was required to make an independent assessment using his clinical judgment on the day of assessment. He explained why his opinion differed as follows:

   “Dr Young found no impairment in social and recreational activities, while Dr Chow thought the impairment moderate, and I considered it mild. Dr Young noted:

   ‘Ms Henderson reports that she occasionally enjoys going to the beach with her niece. She enjoys seeing her family frequently. She said that she engages in social and recreational activities less frequently, generally due to the pandemic, however she sometimes does feel tired or lacks energy.’

   And Dr Chow:

   She used to go to the beach and socialising frequently. But she is now not engaging in any hobbies or activities.

   Ms Henderson is less socially active but regularly goes to cafés with members of her extended family or friends. She still attends the pool, where she has a group of friends and has attempted to go to movies but found the experience somewhat overwhelming’.”

4. The Appeal Panel can discern no error in the rating of a mild impairment. The appellant is undertaking regular social activity without the need for a support person. Her social activities are not rarely undertaken but are regularly undertaken. Class 2 is the best fit and the Medical Assessor has assessed in accordance with the correct criteria and the Appeal Panel can discern no error.

5. In respect of Social Functioning, Table 11.4 of the Guidelines provides as follows:

   “Table 11.4: Psychiatric impairment rating scale – social functioning

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
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.
Class 4	Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5	Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.”

1. The Medical Assessor assessed Class 2 with the following reasoning:

   “She has continuing close relationships with her partner, mother, sister, brother, niece and about four friends. She is estranged from her twin brother, who found her behaviour post-injury challenging. She has withdrawn from some friends, especially those who work for The Club.”

2. The appellant submitted that the Medical Assessor should have assessed a moderate impairment at Class 3.

3. The Medical Assessor had specific regard to the other medical opinion, namely the opinion of the IME qualified on behalf of the appellant Dr Chow who had rated a Class 3 and also that of the IME qualified on behalf of the respondent who had rated a Class 1:

   “Dr Young found no impairment in social functioning, whereas Dr Chow thought it moderate and I thought it mild. Dr Young argued:

   Ms Henderson reports that she has a good relationship with her partner, with her sisters and with her niece. She also has a good relationship with her mother and she said, ‘I have some really good girlfriends from school days.’

   And Dr Chow:

   She is not seeing friends and family as much. Relationship with her husband remains supportive despite difficulties. She has conflict with her brother and brother is not talking to her.

   Ms Henderson is estranged from her brother and has withdrawn from some of her friends. Her relationship with her partner, other family members, and a few friends remain intact. There has been no discussion of separation and no domestic discord.”

4. The Appeal Panel considers that an assessment of a mild impairment at Class 2 accords with the criteria in that Class. Social functioning is concerned with the quality of the relationships able to be maintained by the appellant after injury. The appellant has been able to maintain good relationships with her partner, other family members and a few friends.   The Appeal Panel can discern no error in the Class 2 rating which is the best fit.

5. The appellant also complains about the Medical Assessor’s failure to allow for the effects of treatment.

6. Paragraph 1.32 of the Guidelines provides as follows:

   “Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”

7. The Medical Assessor explained that he did not allow for the effects of treatment as follows:

   “I do not adjust for the effect of treatment because there has not been a substantial or complete elimination of impairment with treatment.”

8. The appellant’s submissions are largely directed to the treatment allowing the appellant to return to part-time work. Employability is but one head of the PIRS categories under which impairment is rated. Allowance for the effects of treatment is only possible when treatment has resulted in substantial or total elimination of the appellant’s permanent impairment. This applies across all categories. This has not been the result of treatment in this case and the Medical Assessor has not erred in this regard.

9. For these reasons, the Appeal Panel has determined that the MAC issued on
   17 October 2022 should be confirmed.