Hurtak v State of New South Wales (NSW Police Force)

[2022] NSWPICMP 523

DETERMINATION OF APPEAL PANEL
CITATION:	Hurtak v State of New South Wales (NSW Police Force) [2022] NSWPICMP 523
APPELLANT:	Christopher Hurtak
RESPONDENT:	State of New South Wales (NSW Police Force)
Appeal Panel
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	19 December 2022
CATCHWORDS:	wORKERS cOMPENSATION - Psychological injury; appellant alleged error in the assessment under three categories under the Permanent Impairment Rating Scale (PIRS); self-care and personal hygiene, social and recreational activities, and concentration, persistence and pace; Held – the ratings in these three classes were open to the Medical Assessor and the Panel could discern no error; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 25 July 2022 Mr Christopher James Hurtak (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
   Professor Nicholas Glozier, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 29 June 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 (1998 Act):

   ·        Availability of additional relevant information pursuant to s 327 (3)(b) of the 1998 Act, 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 ground(s) of appeal on which the appeal is made.

4. 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.

5. 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 (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.

Fresh evidence

1. 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.

2. The appellant seeks to admit the following evidence:

   (a)    supplementary statement of the appellant dated 21 September 2022.

3. The Appeal Panel notes that this statement was filed in response to a direction made by the President’s delegate. This direction was made because the appellant indicated it relied on additional evidence in his grounds of appeal but did not in fact file any with the appeal. The appellant complied with the direction and filed the supplementary statement.

4. The respondent objected to the admission of the supplementary statement.

5. The Appeal Panel determines that the following evidence should not be received on the appeal:

   (a)    supplementary statement of the appellant dated 21 September 2022.

6. The Appeal panel has declined to admit the supplementary statement because it does not qualify for admission as it is the appellant’s own evidence about his symptoms and restrictions and was therefore available to the appellant to give evidence about before the medical assessment and moreover he was given the opportunity by the MA to give a history to the MA about these very matters. In other words, it is evidence that was available to the appellant before the medical assessment and could reasonably have been obtained by the appellant before that medical assessment.

EVIDENCE

Documentary evidence

1. 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

1. 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

1. 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 MA 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 any 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:   12 July 2020 (for nature and conditions)

·    Body parts referred:            Psychiatric/psychological disorder

·    Method of assessment:      Whole Person Impairment”

1. 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)
Psychological injury/ Mind	12/07/20	Chapter 11, pp 55-60	14	8%	NIL	8%
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					8%

1. The assessment was based on his assessment under the Permanent Impairment Rating Scale (PIRS) as required by the Guides as follows:

“Table 11.8: PIRS Rating Form

Name	Christopher Hurtak	Claim reference no.	W179/22
D.O.B.	10 November 1982	Age at time of injury	37
Date of injury	12 July 2020	Occupation before injury	Police Officer
Date of assessment	21 June 2022	Marital status before injury	Married

Psychiatric diagnoses	Posttraumatic Stress Disorder
Psychiatric treatment	Temazepam 10mg nocte, Agomelatine 25mg nocte, monthly psychological treatment focusing on anxiety management, Mindfulness and health behaviours, regular GP follow-up.
Is impairment permanent?	Yes

PIRS Category	Class	Reason for decision
Self-Care and Personal Hygiene	1	Currently he undertakes a range of chores around the home, focusing on his diet, gym programme, managing his intake and cares for his children within the range of average levels of self-care.
Social and Recreational Activities	2	He goes to a number of activities without prompting, e.g. taking his children out, or seeing one or two friends, and going camping and interstate on holidays. He no longer goes four-wheel driving with his friends but will go cycling locally and if out, will be less interactive.
Travel	2	He describes minimal limitation but the development of physical symptoms whilst driving, such that he limits long distance and driving in crowded areas, although appears to have no difficulty travelling locally.
Social Functioning	2	He has a very good relationship with his wife and close family but has lost several of his friends due to his condition.
Concentration, Persistence and Pace	2	He showed no objective difficulties today and was able to relate plots of entire series to me as well as able to binge-watch shows.
Employability	4	He undertakes a few days’ work per month with a friend, indicating that he is not totally impaired for employability and is looking to do what he may undertake as a career and work in the future.

Classes in Ascending Order:  Median Class

1 2 2 2 2 4 =2

Aggregate Score Impairment:  Total     %

1+ 2+ 2+ 2+ 2+ 4 13 =7%

Whole Person Impairment:

7%

1. The MA then added 1% WPI for the effects of treatment giving 8% WPI as a result of the referred injury.

2. The worker appealed.

3. In summary the appellant submitted that the MA made a demonstrable error when he erred in his assessment under three of the PIRS categories as follows:

   ·        Self care and personal hygiene when he assessed a class 1 and class 2 should have been assessed;

   ·        Social and recreational activities when he assessed a class 2 and a class 3 should have been assessed, and

   ·        Concentration, persistence and pace when he assess a class 2 and a class 3 should have been assessed.

4. In summary, the State of New South Wales (NSW Police Force) (the respondent) submitted that the MA did not err and the MAC should be confirmed.

5. 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.

6. The MA took a history which he recorded as follows:

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

   · We used his statement and the treating clinician records to inform the history elicited from him today. Mr Hurtak had been attested into the Police Force in August 2003. After working in General Duties, he then spent over a decade in Highway Patrol, for a significant period in the Camden Local Area Command. As expected with any frontline emergency service worker, he was confronted with a whole range of potentially-traumatic Criterion A events, detailed in his statement dated 24 March 2021. Although after these he may have had brief periods of psychological symptoms, these resolved and he thought he was coping until the allegations of him using excessive force whilst arresting a woman and the subsequent complaints and investigations. He said that from that time he found himself questioning himself and every few months this episode would get to him, usually associated with the investigation and processes. He might feel “down on myself” with reduced confidence and less self-esteem but no more pervasive symptoms. They would not last for longer than a week or two and be associated with the degree of external stressors. These were compounded by media stories. He said over this time he could ‘pull myself out of it’ without any intervention and no one would have noticed any dysfunction.

   At the end of 2018, although some time after the last case in November 2017, the media ran a story about this and another allegation, both locally and internationally. He said that as a result he became miserable and distressed, with reduced sleep, appetite, and rumination, and presented to his general practitioner who confirmed these symptoms. He was referred to a psychologist and took a period of time off. He says that once the media attention had resolved and he began to feel a little better, alongside the weekly psychology, he began a slow return-to-work process. However whilst off, it was noted that he had a panic attack, developed a fear of leaving the house with hyperarousal, hypervigilance, nightmares and now triggered memories of previous workplace events. With support from his GP and psychologist, he eventually returned to work in a non-operational role which required him to go to Fairfield. He told me today he was back at full operational duties by mid-2019. He appeared to have been doing relatively well as he did not consult his general practitioner for over a year with any psychological problems.

   Then in July 2020 he presented with two stressors: Renewed media attention on assault charges and a further court case, as well as a motor vehicle accident where there were allegations against him that he had assaulted the other driver. He was moved back to Eagle Vale during this investigation. He is convinced there was no assault but he received a penalty notice for negligent driving and there were some further investigations which continued to maintain his symptoms. This also triggered intrusive recollections of prior motor vehicle accidents he had been involved in during his time with the Highway Patrol. It would appear that the initial case against him was found against the Police in the Supreme Court. Around that time he developed suicidal ideation alongside worsening mental health. He said he had no motivation, little energy, was becoming dysfunctional and could spend hours doing nothing at work, contemplating self-harm. He was subsequently referred to the St John of God PTSD programme. He then engaged in a weekly PTSD course and continues to be reviewed by a psychologist, Sally Blair. He has had EMDR which he found useful. The frequency of his attendance has reduced. He saw Dr Smith for some time from August 2020, who continued to review his Agomelatine and Temazepam psychiatric treatments which he has remained on to this time.

   He reported today he has continued to make slow improvement with Ms Blair. He has also engaged in treatment with an exercise physiologist who, since December 2021, has given him a gym-based programme with further exercises to do at home, increasing his activity and physical function. As a result of Dr Smith’s demise, he has not seen a psychiatrist for some time but has now been referred for further review and is due to have an assessment in the near future. He reported that following some time of financial difficulties after his medical discharge, he has received TPD payments allowing him to completely pay off his mortgage, which has ‘taken a huge weight off my shoulders’ and again continued the upward trajectory in his symptoms and function.

   · present treatment:   Temazepam 10mg nocte, Agomelatine 25mg nocte, monthly treatment with Sally Blair focusing on anxiety management, Mindfulness and health behaviours, regular GP follow-up.

   · present symptoms:   Mr Hurtak described that most of his time his mood is flat rather than depressed. He can get some days when he is “down on myself” but he can generally pull himself out of this with activity. He is no longer anhedonic and described a range of activities he likes. He continues to have intrusive re-experiencing phenomena, although with a reduced severity and frequency compared to when he was at his worst. He goes to bed around 10:30pm or 11pm and has no onset insomnia, particularly with his medications. He wakes almost nightly between 2am and 2:30am, a couple of times a week with nightmares. He said he has had no startling and hyperarousal ones for months. He is only awake for 10 or 15 minutes and thus does not meet criteria for a middle insomnia. He is able to return to sleep until approximately 7:15am, gaining a near-normal sleep duration and has reasonable energy throughout the day. He describes a range of activities he is motivated to do. He is currently focused on his improvements in his diet and physical health, and described no significant cognitive difficulties watching shows, explaining seasons of shows and plots to me. He dislikes being around lots of people, where he can be aroused and nervous. This is more so in crowded areas and as such he goes to such places less frequently. When out he prefers to sit with his back to the wall, a long-term trend for him. If out socially he will talk less and has less involvement, e.g. at kids’ parties. He can still have some hyperarousal and noise intolerance. He has intermittent low levels of self-esteem although these again are self-limiting and he is future-focused, thinking about what he can do for the rest of his life. There is no suicidal ideation, except for a passive sense that he might be better off not being here every couple of months which is very brief and he can pull himself out of.

   · details of any previous or subsequent accidents, injuries or condition:   He describes no prior mental health difficulties. Although there was a motor vehicle accident unrelated to his work in 2012, where he broke some hand bones, he described no driving or traffic-related sequelae to this.

   · general health:   He had significant burns in 2009 and 2010 requiring inpatient treatment at Concord but otherwise no accidents, operations or injuries. He smokes approximately 15 cigarettes a day and has been a lifelong smoker although has periodically given up. He denied any drug use. He has only been a very intermittent drinker since he has been with Erin and drinks very rarely now. He has a stress dermatitis that can flare up when he feels overly stressed, e.g. when he drove 14-hours to Queensland recently.

   · work history including previous work history if relevant:   Mr Hurtak left school after year 12. He commenced a diploma in civil engineering which he never completed. He worked for a few years in pizza delivery before joining the Police Force.

   · social activities/ADL: In the period prior to him becoming unwell and at the time of the allegations, he had started to live with Erin, having divorced from his first wife. He was living in the same home that he lives in now. He and Erin shared the home duties although he focused more on the outside activities. He worked fulltime in shift work, covering a wide area in Highway patrol. He enjoyed home renovations and also helped other members of the family and neighbours with these. They liked four-wheel-driving and camping. He and Erin would go on a trip every few weeks and he would go on “guys’ trip” every 3 or 4 times. He had his friends mainly through the police but a couple of friends from before and neighbours. He described no problems with information technology or travelling in any modality.

   He continues to live with Erin and they now have two young daughters, aged 6½ and 4. The youngest is in pre-school twice a week. Over the past few weeks Erin has been working as a junior school teacher which he says she really enjoys. When he gets up in the morning he and Erin get the girls ready for school or childcare. They have a regular week whereby he and Erin are at home with the girls on Mondays and Tuesdays, whereas Wednesdays, Thursdays, Fridays he looks after their youngest daughter and on Thursdays they may go to his parents. As a result he sees his parents and siblings every Thursday, they have a regular family get-together and they remain a close and supportive family. He described a close and supportive relationship with Erin with no significant difficulties. He is focusing on eating better, has cut down on his junk food and together with his exercise programme has achieved 3-4kg of weight loss recently as he focuses on improving his self-care and health. He does many chores and can do basic cooking. He also maintains the outside of the home and has established vegetable garden for growing herbs and fruit. He goes to the gym once or twice a week.

   Over the summer he likes being out, swimming in their pool. He goes cycling regularly although not particularly far, on a mountain bike around the local paths either with his daughters or by himself. He will walk his daughters to and from school a few days a week and describes no problems travelling locally or going to the local smaller shops. He has some anxiety and arousal in larger shops, e.g. when he does go out with a friend or an errand, he finds it difficult to relax in cafes, sitting with his back to a wall and is less involved in children’s parties.

   The family went camping for a few days in January to where they used their ski boat and he described an enjoyable holiday. He sees one of his ex-police officer friends every 2-3 weeks for coffee but no longer goes 4WDing with friends. He has been encouraged to get out and he and Erin watched the Maverick movie last week. He describes watching military movies, comedies, binge-watches series, and was able to explain to me the plots of recent series he has been watching. He avoids crime shows and reality shows involving the police. At the weekends they may see some parents/friends from the school but generally are focused on the girls, taking them to the park, out on scooters etc. He says his driving is a lot better; he can drive to Croydon to see his psychologist without difficulty. They went on holiday with friends to Moreton Island in March 2022 and he drove all the way there. Whereas previously he had no problems driving such long distances he became anxious and aroused and his stress dermatitis flared up. He enjoyed the time with the family and friends away on holiday.

   He has experienced reduced friendships over time, particularly those with police friends. He still has some friends, e.g. a mate who asks him to come along and help out in his roofing business a few days a month. He says he has done 4 or 5 days in the past couple of months. He is limited from doing more in part because he does not have his white card when his friend needs help. So he can only go to certain sites and he is considering getting his white card as a potential future vocation. He has always enjoyed home renovations and likes this. He is looking to do some work on the lawns when it gets warmer because of the recent floods. He did a vocational assessment with Procare at the beginning of this year and is looking at lower-stress jobs, particularly outdoors.”

1. The MA has recorded a detailed history much of which is broadly consistent with the other evidence that was before the MA.

2. The MA conducted a mental state examination and recorded his findings as follows:

   “Mr Hurtak was casually-dressed, and well-kempt. He was a focused and detailed historian, displaying no cognitive difficulties or problems with the pace of the assessment, persisting with it throughout 90 minutes. He does not have pervasive depression or anhedonia and described no consistent biological features of depression now. Although he has nocturnal re-experiencing phenomena, there is not enough sleep disturbance to meet the criteria for insomnia. He only has very occasional passive suicidal ideation which he can deal with quickly. He continues to have re-experiencing phenomena and some avoidance, hyperarousal, hyperstartle and noise intolerance. He is future-focused but quite stuck vocationally, and has only intermittent negative cognitions as he has improved.”

3. The MA made a diagnosis as follows:

   “Mr Hurtak developed Posttraumatic Stress Disorder with multiple Criterion A events and precipitated to a large extent by the court cases over the allegations against him with symptoms in all other four domains. He continues to have symptoms in enough domains to meet the criteria for this disorder although the severity and intensity has significantly reduced with good evidence-based treatment over a significant period of time. He no longer meets the criteria for Major Depressive Disorder and does not have a Substance Abuse Disorder.”

4. The MA noted the appellant to be consistent in his presentation as follows:

   “Mr Hurtak was internally consistent and the detailed history presented consistent with a slowly-improving condition.”

5. The MA explained his reasons for assessment under each of the PIRS categories as set out in the table above.

6. The MA made comment on the other evidence that was before him, including comment on where his opinion differed from that of other experts whose opinions were in evidence before him as follows:

   “I have included the worker’s statement into the history above. His GP notes and those of his treating psychologist confirm the symptoms and progress over time.

   Report by Dr Smith, consultant psychiatrist, dated 14 July 2021

   Dr Smith saw Mr Hurtak over a period of time and wrote his report a year ago. He has continued to improve since that time. Had I seen him at the time I would almost certainly have concurred with Dr Smith’s diagnoses. He no longer meets the criteria for Major Depressive Disorder. Dr Smith’s report has been written from a somewhat advocative treating psychiatrist, rather than independent assessor, viewpoint. Even then it would be difficult to see how his description of self-care met a class 3 (moderate) impairment. Currently he undertakes a range of chores around the home, focusing on his diet, gym programme, managing his intake and cares for his children. I cannot see how this is outside of the range of normal levels of self-care. In terms of social and recreational activities, he goes to a number of activities without prompting, e.g. taking his children or seeing friends and going camping on holidays, and he is able to enjoy these although generally they may often be with people he can feel safe with, although one cannot consider some of these as being purely there as supportive people. He no longer goes four-wheel driving with his friends but will go cycling locally and if out, will be less interactive: a mild impairment.

   I would also disagree in terms of concentration, persistence and pace, whereby he showed no objective difficulties today and was able to relate plots of entire series to me as well as able to binge-watch shows, indicative of at the very most a mild impairment. Finally, in terms of employability, he undertakes a few days’ work per month with a friend, indicating that he is not totally impaired for employability and is looking to do what he may undertake as a career and work in the future.

   Reports by Dr Bisht, consultant psychiatrist for the insurers

   In the first of these dated 27 August 2020, Dr Bisht elicited a history indicative of a mor severe condition at that time and opined that he met the criteria for a Major Depressive Disorder and Posttraumatic Stress Disorder at that time. He was of the opinion that he had not reached maximum medical improvement.

   In a subsequent assessment dated 6 December 2021, he noted reduced symptoms and a somewhat improved condition which appears to have continued on an upward trajectory. As a result I disagree with some of his classes even now. I disagree with the rating of 2 for self-care and 3 for social and recreational activities for the reasons given above in response to Dr Smith. In terms of employability, I would suggest he is still severely impaired as although he undertakes a range of tasks at home, he currently only does a few days’ work per month in a volunteer capacity with a friend, currently indicative of a more than moderate impairment.”

7. The appellant complains that the MA has erred in respect of three of the categories assessed, namely, self care and personal hygiene, social and recreational activities, and concentration, persistence and pace.

8. The Panel cannot interfere with these ratings absent error by the MA. The Panel cannot interfere with the rating because opinions might differ as to the best fit in each category. There must be error or assessment on the basis of incorrect criteria.

9. In respect of Self Care and Personal Hygiene, Table 11.1 of the Guides 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.

1. The MA rated no deficit or minor deficit attributed to the normal variation in the general population at Class 1 with the following reasoning:

   “Currently he undertakes a range of chores around the home, focusing on his diet, gym programme, managing his intake and cares for his children within the range of average levels of self-care.”

2. The MA has to make an independent assessment. He had regard to the opinions of the other experts and made the following comments as to why he differed in respect of the assessments for Self Care and Personal Hygiene. He noted that the IME Dr Smith qualified on behalf of the appellant was based on assessment undertaken over one year previously. Dr Smith assessed a Class 3 or moderate impairment. The MA noted that he differed from the opinion of Dr Smith because of the following:

   “Currently he undertakes a range of chores around the home, focusing on his diet, gym programme, managing his intake and cares for his children within the range of average levels of self-care.”

3. The appellant is clearly on the history given on the day of assessment able to look after himself and live independently to a standard consistent with normal variation in the population. The panel can discern no error in the Class 1 rating.

4. In respect of Social and Recreational Activities, Table 11.2 of the Guides 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 MA assessed a mild impairment at Class 2 with the following reasoning:

   “He goes to a number of activities without prompting, e.g. taking his children out, or seeing one or two friends, and going camping and interstate on holidays. He no longer goes four-wheel driving with his friends but will go cycling locally and if out, will be less interactive.”

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

3. The IME qualified on behalf on behalf of the appellant, Dr Smith assessed Class 3 as did
   Dr Bisht the MA qualified on behalf of the respondent. The MA was required to make an independent assessment using his clinical judgment on the day of assessment. The MA explained why his opinion differed as follows:

   “In terms of social and recreational activities, he goes to a number of activities without prompting, e.g. taking his children or seeing friends and going camping on holidays, and he is able to enjoy these although generally they may often be with people he can feel safe with, although one cannot consider some of these as being purely there as supportive people. He no longer goes four-wheel driving with his friends but will go cycling locally and if out, will be less interactive: a mild impairment.”

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. His social activities are not rarely undertaken but are regularly undertaken. Class 2 is the best fit and the MA has assessed in accordance with the correct criteria and the Appeal Panel can discern no error.

5. In respect of Concentration, Persistence and Pace, Table 11.5 of the Guides provides as follows:

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.

Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace

1. The MA assessed Class 2 or mild impairment with the following reasoning:

   “He showed no objective difficulties today and was able to relate plots of entire series to me as well as able to binge-watch shows.”

2. The appellant submitted that a moderate impairment or Class 3 should have been assessed. Dr Smith had assessed the appellant at Class 3 and the MA explained why his opinion differed as follows:

   “I would also disagree in terms of concentration, persistence and pace, whereby he showed no objective difficulties today and was able to relate plots of entire series to me as well as able to binge-watch shows, indicative of at the very most a mild impairment.”

3. Assessment cannot be based on self-report alone. The MA is not bound by the opinion of the other experts before him whom he notes saw the appellant at an earlier point in time (over one year before the MA’s assessment) and the MA notes that the appellant’s condition has slowly improved over time. The MA has to make an independent assessment on the day of examination using his clinical expertise. The MA has done that here and has based his assessment on the correct criteria and the Appeal Panel can discern no error in the assessment of Class 2 which is the best fit.

4. For these reasons, the Appeal Panel has determined that the MAC issued on 29 June 2022 should be confirmed.