Hicks v New South Wales Sugar Milling Co-operative Limited
[2021] NSWPICMP 128
•20 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hicks v New South Wales Sugar Milling Co-operative Limited [2021] NSWPICMP 128 |
| APPELLANT: | Christopher Hicks |
| RESPONDENT: | New South Wales Sugar Milling Co-operative Limited |
| APPEAL PANEL: | Member Jane Peacock Dr Julian Parmegiani Dr Patrick Morris |
| DATE OF DECISION: | 20 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological Injury; appellant alleged error in the assessment under two categories under the Permanent Impairment Rating Scale (PIRS) namely Self-Care and Personal Hygiene and Concentration, Persistence and Pace; Held- the Panel could discern no error in the assessments for which clear reasons were given and the ratings accorded with the criteria in the Guidelines; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 10 March 2021 Mr Christopher Hicks (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (MA). The medical dispute was assessed by
Dr Douglas Andrews, a MA, who issued a Medical Assessment Certificate (MAC) on 11 February 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 is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
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).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant worker requested that he be re-examined by a MA who is a member of the Appeal Panel. However, 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 Appeal Panel was not satisfied as to error for the reasons explained below and absent a finding of error the Appeal Panel has no power to require a further medical examination.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the MA 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.
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 matter was referred by the Registrar to the MA for assessment (s 319 of the 1998 Act) as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 23 April 2015
· Body parts/systems referred: Psychiatric/psychological
· Method of assessment: Whole Person Impairment”
The MA 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 Guides | % 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 | 23 April 2015 | 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% | |||||
The assessment was based on an assessment by the MA conducted under the permanent impairment ratings scale (PIRS), as set out in the following table:
Table 11.8: PIRS Rating Form
| Name | Christopher Hicks | Claim reference number | 5171/20 |
| DOB | 23 June 1972 | Age at time of injury | 42 years |
| Date of Injury | 23 April 2015 | Occupation at time of injury | Steam Turbine Operator |
| Date of Assessment | 8 February 2021 | Marital Status before injury | Unmarried |
| Psychiatric diagnoses | PTSD | ||
| Major Depressive Disorder | |||
| Psychiatric treatment | Psychotherapy | Medication not tolerated | |
| Is impairment permanent? | Yes | ||
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-Care and personal hygiene | 2 | Mr Hicks attends to showering and wearing clean clothes without prompting. He assists in the chores of the household, including childcare, chores and cooks most dinners. He misses meals and has gained weight because of inactivity. | |||||||||
| Social and recreational activities | 3 | He no longer sees friends or attends social outings such as clubs, barbeques, surfing or touch football. He will go to family gatherings, with his wife as support, but does not interact socially except with close family members. He is anxious in crowds. | |||||||||
| Travel | 2 | He travels comfortably in the local area and occasionally takes trips further afield, such as visiting his brother in Northern NSW. He is prone to road rages. | |||||||||
| Social functioning | 2 | He has maintained close and loving relationships with his wife, step-sons and his family. He has lost may friends because of his social withdrawal and a few because of arguments. | |||||||||
| Concentration, persistence and pace | 2 | He is less active than previously but fares better with structure. For example, he enjoys the mornings because he has set things to do. He obtained three vocational certificates in 2020, indicating that he is capable of short-course study. He can follow a television series with understanding. | |||||||||
| Employability | 3 | He has not worked since 2017. He is keen to work, but it is untested whether he will succeed. His symptoms remain moderately severe. He would have trouble interacting with work colleagues and management. He cannot return to the same workplace and remains phobic about using angle grinders. He is likely able to work in a different role, probably for less than 20 hours a week. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 2 | 3 | 3 | = 2 | |||||
| Aggregate Score Impairment 14 | Total | 7% | |||||||||
The MA made no deduction under s 323 and made no adjustment for the effects of treatment.
The worker appealed.
In summary, the complaints on appeal by the appellant are that the MA erred in his assessment of a class 2 impairment, rather than a class 3 impairment, in relation to the PIRS categories of Self-Care and Personal Hygiene and Concentration, Persistence and Pace.
In summary, New South Wales Sugar Milling Co-operative Limited (the respondent) submitted that the MA did not apply incorrect criteria nor did he make a demonstrable error and that the MAC should be confirmed.
The role of the MA is to conduct an independent assessment on the day of examination. The MA 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 MA. The MA 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.
The appellant submitted that “in failing to correctly apply the findings of the clinical examination and medical evidence to the criteria of the PIRS to reflect the appellant worker’s level of functioning, the MA has fallen into demonstrable error. Ultimately, the MA has failed to provide a viable and sufficient path of reasoning to substantiate assessments of mild impairment, rather than a moderate impairment”, in the two PIRS categories which are the subject of complaint on appeal.
The Panel notes that the MA has taken a detailed history which is broadly consistent with the other evidence that was before him as follows:
“● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Hicks commenced work with NSW Sugar on 17 July 2014. He was later appointed as a Steam Turbine Operator, which he considered to be the best job he had ever had.
On 23 April 2015, he suffered severe injuries to his left hand, while using an angle grinder when the blade broke. He sustained a near amputation to his little finger, and cuts to other parts of his hand. At the Tweed Hospital he underwent microsurgery, and eventually had an excellent physical recovery from this injury.
Mr Hicks was traumatised by the incident, and from the beginning suffered intrusive thoughts and re-experiencing phenomena. He had increased anxiety, especially relating to the use of angle grinders.
He sought support from his general practitioner, Dr Christie, who referred him to a psychologist, Mr Daniel Murphy.
He returned to work, with a medical restriction that he not use or be exposed to angle grinders, but was otherwise to do full duties.
By November 2016, he felt that his employer was pushing to have him back on full unrestricted duties. They pressured him to use an angle grinder, and he refused. Management started asking co-workers specifically to use angle grinders in the areas that Mr Hicks was working. He was on friendly terms with these people, and challenged them on why they were doing the work standing next to him. They said that managers had directed them to do so.
This behaviour continued and eventually, with support from WorkCover, Mr Hicks resigned from his position.
Shortly after, He relocated to Newcastle.
Mr Hicks was on opiate medication for a time after his surgery.
His doctor also prescribed Cymbalta (duloxetine) and Lyrica (pregabalin). The Cymbalta was being used as an antidepressant to assist with mood and anxiety disturbance. The Lyrica was used to help with pain and anxiety.
Both medications were unhelpful for Mr Hicks. He felt that they made him feel “spaced out” and so they were stopped.
· Present treatment
Mr Hicks is on no specific treatment for his mental health condition. He has not used any medication the last two years.
He is not now seeing a psychologist. His previous psychologist moved to telephone treatment, even attempting EMDR this way, but Mr Hicks felt unable to connect.
His current general practitioner, Dr Jafari, has suggested a referral to a new psychologist.
He has not seen a psychiatrist.
· Present symptoms:
Mr Hicks has low mood about half the time, which is worse when he is stressed. He can take pleasure in interactions with his family, especially his step-sons.
He experiences severe anxiety and restricts his activity to limit this. He has occasional panic attacks (flushing, sweating, and shaking), especially when interacting with other people.
He has subjective difficulties with attention and memory.
He is bothered by intrusive thoughts, both about his accident and his dealings with management at NSW Sugar.
He has had recurrent thoughts of suicide since he became unwell.
He goes to bed about 10 PM but may take several hours to fall asleep. He frequently wakes through the night. He experiences nightmares, all was about the angle grinder accident, almost every night.
He has less interest in eating, but has gained weight. When he was working, he was slim and fit, weighing about 68 kg. He now weighs about 85 kg.
His libido is intact.
· Details of any previous or subsequent accidents, injuries or condition:
Mr Hicks had no history of any mental health conditions before his accident of April 2015.
His perception that he was being harassed and bullied by management to have him leave his position, aggravated the mental health response to the angle grinder accident.
· General health:
His general health is reasonably good.
He uses no medication.
He drinks alcohol on rare occasions, and never more than two standard drinks.
· Work history, including previous work history if relevant:
Mr Hicks grew up in a safe and caring family in Newcastle.
He left school after year ten and started an apprenticeship as an electrician. He completed less than two years, leaving to complete his higher school certificate.
He worked as a storeman in various jobs in Newcastle for seven years. He then moved to Adelaide and worked as a storeman for a further year before taking a position at an abattoir for the next four years. He found a new job in a chicken abattoir for 2 to 3 years.
He then moved to Murwillumbah to run a company specialising in solar energy and batteries for the next eight years.
He then commenced work with NSW Sugar.
He had no previous WorkCover claims, except for a claim for medical expenses when he suffered injuries to his leg in a crush accident at the abattoir. He took no time off work.
· Social activities/ADL:
Before his angle grinder accident, Mr Hicks was active in surfing, touch football and other active pursuits. He had a wide circle of friends, and was close to several work colleagues. He attended a bowling club 2 to 3 times a week, and met with friends at barbecues and other activities. He had travelled to Sri Lanka to get married.
Now he rises between 5 AM and 6 AM. He makes coffee, cleans the kitchen, feeds the fish and cares for his dog.
His wife, Rochelle, wakes at 6 AM and he will make a cup of coffee.
He then helps get her three boys up and organises them for the day.
He enjoys the early morning because it has a set routines.
He is much less active during the day but may do some household chores or mow his lawn. If something needs maintenance, he will attend to it.
He usually misses breakfast and lunch.
He attends to hygiene, tasks such as showering and wearing clean clothes and brushing his teeth, without prompting.
His wife will leave lists of things that she hopes that he will do.
He and his wife usually do the shopping together, but Mr Hicks will prepare the evening meal.
He has given up previously enjoyable activities such as his surfing and football. He no longer socialises with friends, saying he now has no friends outside of his family.
He will go to family gatherings because he feels obliged to, but often feels anxious and unable to interact comfortably.
He has no hobbies.
He travels without difficulty within the local area. He often visits one of his brothers, who runs a coffee shop in Newcastle, a trip of about 30 minutes. Before the Covid-19 pandemic he travelled as far as Ocean Shores in northern New South Wales to visit another brother. He is more prone to road rages and copes less well with traffic.
He had known Rochelle from his time at high school. When they reconnected in 2017, he was quite well, working full-time at NSW Sugar.
He has a close and loving relationship with Rochelle and her three sons. However, he feels that she doesn’t understand his condition well and struggles with coping with it.
He has lost some friends through arguments, but mostly through his lack of engagement.
He remains close to his family.
He he struggles with reading because of low retention. During 2020, He completed vocational certificates to operate an excavator, a bobcat, and drive a truck.
He has been watching a series on SBS television, Vikings, with reasonable engagement and retention.
He is keen to get back to work and applies for several jobs every day. When asked, he discloses his WorkCover claim, and believes that this is why he has not been offered employment. He feels able to work full-time.”
The MA conducted a mental state examination and recorded his findings as follows:
“I assessed Mr Hicks, with him in his home, over a video link using Zoom. The quality of the connection was excellent, and I felt able to do a comprehensive assessment.
He was casually attired and reasonably groomed.
He said that his depression had been worse in the last couple of weeks and that he was quite anxious, attributing this to his need to undertake this assessment. His affect was restricted, consistent with his stated mood.
He was open and gave a full account of his history, struggling with some details such as dates and sequences of events.
There was no evidence of disorder of perception or thought-form.
He acknowledged ongoing thoughts of suicide without plans.”
The MA summarised the injury and his diagnosis as follows:
“● summary of injuries and diagnoses:
I make my diagnoses relying on criteria outlined in the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.
o Post-traumatic stress disorder
o Major depressive disorder
· consistency of presentation
I could find no evidence of inconsistency in Mr Hicks’s presentation.”
The MA has had regard to the other evidence that was before him. He specifically notes where his opinion differs from the two IME’s whose reports were in evidence before him, namely Dr Takyar, the IME qualified on behalf of the appellant and Dr Vickery, the IME qualified on behalf of the respondent in respect of the assessments under the PIRS categories. The MA makes comments as follows:
“IME psychiatrist, Dr Ash Takyar, 22 May 2020. diagnosed post-traumatic stress disorder and major depressive disorder. He assessed Mr Hicks at 22% whole person impairment.
Treating psychologist, Dr J Richards, diagnosed PTSD, and describes the five treatment sessions that Mr Hicks had undertaken with him.
IME psychiatrist, Prof Phillip Morris, on 22 August 2016, diagnosed PTSD and offered an opinion on fitness to work.
IME occupational physician, Dr Robin Mitchell, on 7 January 2020, wrote:
Mr Hicks reports significant psychological symptoms following the subject incident of 23 April 2015 however has achieved a relatively good result from the physical injuries sustained to the 4th and 5th fingers.
IME psychiatrist, Dr Graham Vickery, on 4 June 2020, appears to endorse a diagnosis of PTSD. He did an impairment assessment, determining a WPI of 1%.
On 12 August 2020 he provides a supplementary report, in which he states:
It is evident from Dr Takyar’s recommendations that Mr Hicks has not undertaken appropriate treatment for his condition and has not reached maximum medical improvement and that whole person impairment assessment cannot be undertaken at this time. I would recommend review in 12 months.
The diagnoses are consistent across assessments, except that the co-morbid diagnosis of major depression.
All parties agree that Mr Hicks has PTSD. I consider that a diagnosis of MDD is also warranted, agreeing with Dr Takyar.
I give my reasons for considering that Mr Hicks has reached maximum medical improvement in the report’s body.
Dr Takyar differs from my assessment on these domains: self-care and personal hygiene; concentration, persistence and pace; and employability.
Dr Vickery differs from my assessment on these domains: self-care and personal hygiene; travel; social functioning; and employability.
It is worth noting that these IME assessments were done less than two weeks apart, and yet they vary by 21% WPI. Eight months have passed since these assessments, which may also affect results.
Dr Takyar rated a Class 3 for self-care and personal hygiene. Mr Hicks describes participating in housework, home maintenance and yard maintenance. He assists in getting his step-sons ready for school, looks after the family pets, and cooks the evening meal. He now says that he attends to his hygiene, showering and wearing clean clothes, without prompting. I consider this more consistent with a Class 2.
Dr Takyar rated a Class 3 on concentration, persistence and pace.: He writes:
Mr Hicks presented with moderate concentration deficits during the review and intermittent difficulties. He stated that he struggles to follow TV for more than 10 to 15 minutes, does not read much and cannot multitask anymore. He stated that his short-term memory was particularly problematic. He would not be able to engage in retraining or course work at the moment because of his cognitive difficulties.
Contrary to this, Mr Hicks told me that he has completed three vocational certificates, all around the time that Dr Takyar had assessed him. Although he doesn’t watch much television, he has enjoyed this series of Vikings, and follows the plot without difficulty. I consider this more consistent with a Class 2.
Regarding employability, Dr Takyar writes:
Realistically, Mr Hicks does not have current psychiatric capacity to return to work for any job for which he has skill, training or experience because of his PTSD and depressive symptoms.
Mr Hicks is actively looking for full-time work and believes that he would cope. It is untested whether this is true, but more likely than not, he would be able to work in a job suited to his skill, training and experience, at least part-time. Because of his PTSD, he should not work with angle grinders, but would be otherwise unrestricted.
Dr Vickery rated Class 1 on the four domains where his ratings differ from mine.
On the domain of self-care and personal hygiene, he writes, “There is no impairment in hygiene or grooming.”
Mr Hicks has several self-care deficits, indicated by his missed meals, lack of exercise and weight gain. His wife leaves him lists to encourage him to be active in the home.
On the domain of travel, Dr Vickery writes, “There is a lowered frustration tolerance was driving over the past six months however ‘I can still drive to places.’”
In my view, this description is consistent with a Class 2 rating, and I give further reasoning in my PIRS table.
Regarding social functioning, Dr Vickery writes, “There is a generally supportive marital relationship. He is close to his three sons.” While this is true, it ignores the significant social withdrawal Mr Hicks has experienced, and his anxiety in being with people outside of his close family.
Regarding employability, Dr Vickery writes, “Mr Hicks helps with the care of his three sons aged 10, 12 and 15 years and ‘I have been homeschooling them until today.’”
Mr Hicks wants to find employment and said, “I’m looking every day.” He has not worked since December 2017. Although he is keen to return to work, it is untested whether he will succeed. His symptoms remain moderately severe, and he struggles with interacting with others. He would likely exhibit that some impairment in the workplace.”
The appellant complains that the MA has erred in respect of the assessments for Self Care and Personal Hygiene and for Concentration, Persistence and Pace and Employability.
The panel, after careful review of the evidence, can discern no error in the ratings ascribed by the MA in respect of the categories of Self-Care and Personal Hygiene and Concentration, Persistence and Pace complained about on appeal. There was no application of incorrect criteria. Each of the ratings were open to the MA in accordance with the correct application of the criteria in the Guides. The MA has given reasons for each of his ratings. He has given a clear and reasoned explanation, that is based on the application of his clinical expertise and accords with the criteria set out in the Guidelines. The MA has to rate according to the criteria in the Guides and provide the best fit in each category. He has done so without discernible error. The MA must rate impairment that results from injury. The ratings ascribed by the MA in the two categories under complaint accord with the criteria for each class. The Panel cannot interfere with these ratings absent error by the MA.
In respect of Self-Care and Personal Hygiene, Table 11.1 of the Guidelines provides as follows:
Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population Class 2 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. Class 3 Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition. Class 4 Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self. Class 5 Totally impaired: Needs assistance with basic functions, such as feeding and toileting.
The MA rated a Mild Impairment Class 2 with the following explanation:
“Mr Hicks attends to showering and wearing clean clothes without prompting. He assists in the chores of the household, including childcare, chores and cooks most dinners. He misses meals and has gained weight because of inactivity.”
The MA explained very clearly why his assessment differed from that of Dr Takyar, the IME qualified on behalf of the appellant who had rated a class 3 and Dr Vickery, the IME qualified on behalf of the respondent who had rated a Class 1. The MA explained his reasoning in this regard as follows:
“Dr Takyar rated a Class 3 for self-care and personal hygiene. Mr Hicks describes participating in housework, home maintenance and yard maintenance. He assists in getting his step-sons ready for school, looks after the family pets, and cooks the evening meal. He now says that he attends to his hygiene, showering and wearing clean clothes, without prompting. I consider this more consistent with a Class 2.
…
Dr Vickery rated Class 1…On the domain of self-care and personal hygiene, he writes, ‘There is no impairment in hygiene or grooming.’
Mr Hicks has several self-care deficits, indicated by his missed meals, lack of exercise and weight gain. His wife leaves him lists to encourage him to be active in the home.”
The MA has also noted that eight months has passed between his assessments and that of the two IMEs which can affect the results.
The MA explains clearly his reasons for assessment of Class 2 for Self Care and Personal Hygiene having exercised his clinical judgment in respect of his findings on the day of assessment, and having due regard to the other evidence that was before him. The assessment of Class 2 in this category accords with the criteria in the Guides and the Panel can discern no error.
In respect of Concentration, Persistence and Pace Table 11.5 of the Guidelines provides as follows:
Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame. Class 2 Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache. Class 3 Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting. Class 4 Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services. Class 5 Totally impaired: needs constant supervision and assistance within institutional setting.
The AMS has rated the appellant at Class 2 Mild Impairment explaining his reasoning as follows:
“He is less active than previously but fares better with structure. For example, he enjoys the mornings because he has set things to do. He obtained three vocational certificates in 2020, indicating that he is capable of short-course study. He can follow a television series with understanding.”
The MA explained very clearly why his assessment differed from that of Dr Takyar, the IME qualified on behalf of the appellant who had rated a class 3. Dr Vickery, the IME qualified on behalf of the respondent also rated a Class 2. The MA explained his reasoning in this regard as follows:
“Dr Takyar rated a Class 3 on concentration, persistence and pace.: He writes:
Mr Hicks presented with moderate concentration deficits during the review and intermittent difficulties. He stated that he struggles to follow TV for more than 10 to 15 minutes, does not read much and cannot multitask anymore. He stated that his short-term memory was particularly problematic. He would not be able to engage in retraining or course work at the moment because of his cognitive difficulties.
Contrary to this, Mr Hicks told me that he has completed three vocational certificates, all around the time that Dr Takyar had assessed him. Although he doesn’t watch much television, he has enjoyed this series of Vikings, and follows the plot without difficulty. I consider this more consistent with a Class 2.”
The Panel considers that the rating of a mild impairment in this class was open to the MA on the evidence including the findings of his mental state assessment on the day of examination, accorded with the criteria in Table 11.5, and the panel can discern no error in the exercise of the MA’s clinical judgment in rating no deficit in the class of Concentration, Persistence and Pace. The assessment in this category is not to rely on self-report alone but is one that is clearly within the purview of the MA when assessing, using clinical expertise and judgment, the appellant on the day of examination. Again the MA has also noted that eight months has elapsed between the assessment of Dr Takyar and his assessment which can impact the results.
The ratings the MA has ascribed in the classes of Self Care and Personal Hygiene and Concentration, Persistence and Pace accord with the criteria in the Guides. The Panel cannot disturb these ratings absent error by the MA which the Panel cannot discern. The ratings for each of these categories are well-reasoned, not based on self-report alone and have had due regard to the history taken by the MA, the mental state examination conducted by him, and having due regard to the other evidence that was before him. The MA has exercised his clinical judgment on the day of examination and the Panel can discern no error.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 February 2021 should be confirmed.
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