Ingram v State of New South Wales (Fire & Rescue NSW)

DETERMINATION OF APPEAL PANEL
CITATION:	Ingram v State of New South Wales (Fire & Rescue NSW) [2024] NSWPICMP 811
APPELLANT:	Rodney Ingram
RESPONDENT:	State of New South Wales (Fire & Rescue NSW)
APPEAL PANEL
MEMBER:	Rachel Homan
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	29 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether demonstrable error or incorrect application of criteria in Medical Assessor’s assessment of class 2 in the psychiatric impairment rating scale of social functioning; where matter referred for further assessment or reconsideration after worker previously found not to have reached maximum medical improvement; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 2 September 2024, Rodney Ingram (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 August 2024.
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.
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.
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.
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).

RELEVANT FACTUAL BACKGROUND

The appellant was employed by the State of New South Wales (Fire & Rescue NSW) (the respondent) as a firefighter.
The respondent’s insurer has accepted liability for a psychological injury arising out of or in the course of the appellant’s employment with the respondent.
On 25 July 2023, the appellant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 relying on an assessment of 19% whole person impairment (WPI) made by Dr Naresh Verma on 18 May 2023.
On 17 December 2023, the insurer wrote to the appellant notifying him that his claim could not be assessed based on an assessment by Dr Gerald Chew, dated 13 November 2023, that the appellant had not reached maximum medical improvement.
Proceedings were commenced in the Personal Injury Commission (Commission) and the matter was referred to the Medical Assessor. On 28 February 2024, the Medical Assessor issued a MAC in which she agreed that the appellant had not reached maximum medical improvement as he had not received evidence-based treatment for his symptomatology.
The Workers Compensation Division Head issued a Certificate of Determination on 3 April 2024, determining that the degree of permanent impairment was not fully ascertainable and that the proceedings could be restored when the appellant had attained maximum medical improvement.
On 2 July 2024, the appellant wrote to the Commission applying to have the proceedings restored. The application attached reports from the appellant’s treating clinical psychologist, Mr Robert Pringle, and his general practitioner, Dr Bruce Wakefield. The application was not opposed. The matter was referred back to the Medical Assessor who issued the MAC which is the subject of this appeal. The Medical Assessor made an assessment of 11% WPI.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
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 had sufficient material before it to resolve the appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
The documents that were sent to the Medical Assessor included statements prepared by the appellant dated 9 and 22 December 2022.
The appellant detailed the circumstances of his injury and noted that his symptoms worsened generally over time but particularly deteriorated in mid-2021. The appellant consulted his general practitioner, Dr Bruce Wakefield, who referred him to a psychologist, Ms Briony Osborne. The applicant was now seeing another psychologist, Mr Robert Pringle.
The appellant said his symptoms had eased since ceasing work but he still felt anxious, had sleeping difficulties, occasional nightmares and was underweight.
The appellant qualified Dr Naresh Verma to prepare an independent medical examination report, dated 18 May 2023.
The appellant described interrupted sleep, nightmares, daytime flashbacks of troubling incidents, avoidance and concentration difficulties. The appellant was more short-tempered, fearful and hypervigilant. Dr Verma recorded:
“He eats about one and a half times a day and has lost 10kg in six years. He stated that he had not eaten Pho (Vietnamese dish) for years but was looking forward to eating this today. He is good with his hygiene and showers everyday although he can stay in the same clothes for a few days. He tends to eat microwavable meals or get takeaway. On some days he can drive on his own and he was able to do this today. Last week he had a drink with a friend. He tends to meet his friends weekly, but they are the ‘the same blokes’ who he meets at the pub. He is not able to exercise as much as he did before. He stated that previously he would exercise a lot because he had to try harder with his fitness as he is short in height.
He recently told his brother and sister about his symptoms. He has also reported that he has fallen down a few times in the last few weeks. He stated that he is not a happy man. There is ongoing passive suicidal ideation. There are no psychotic or manic symptoms. He tends to feel a bit better after a walk. He feels hopeless and worthless.”
Dr Verma diagnosed post-traumatic stress disorder, persistent depressive disorder and alcohol use disorder.
Dr Verma assigned a Class 2 to the Psychiatric Impairment Rating Scale (PIRS) categories of “Self-care and Personal Hygiene”, “Social and Recreational Activities” and “Travel”. A Class 3 was assigned to “Social Functioning” and “Concentration, Persistence and Pace” and a Class 5 assigned for “Employability”. In relation to “Social Functioning”, Dr Verma gave the following rationale:
“Moderate impairment. He has pushed away his friends over the years away. He has not been in a romantic relationship for many years.”
Dr Gerald Chew prepared a medico-legal report for the respondent on 13 November 2023. Dr Chew noted that he had previously assessed the appellant and provided a report dated 17 April 2023. Dr Chew recorded that the appellant had reiterated the history described in his previous report and reported that there had been no change in his condition. Dr Chew commented:
“He attends to basic ADLs around the home. He showers approximately twice a week. He is able to go to the shops and relies on take-aways a lot. He goes to the shops to buy his alcohol once a week. He has a friend who comes around once or twice a week and they go for a walk. Once a week he goes to the bowling club with a friend. Most of the time he likes to sit at home and watch TV. He does enjoy watching rugby league and we discussed the Australia and New Zealand Test the previous weekend. He does get the paper and reads a bit of it every now and then.”
The appellant reported that he was not taking any psychotropic medication. He had previously tried sertraline but did not like the side effects. The appellant was seeing a psychologist every four to six weeks.
Dr Chew made a diagnosis of post-traumatic stress disorder and indicated that further alternative treatment was indicated. He recommended that the appellant consult with a psychiatrist and further psychological treatment including eye movement desensitization and reprocessing (EMDR) be considered. Dr Chew expressed the view that maximum medical improvement had not been reached.
A psychological assessment report prepared for the respondent by Greg Anning on 27 October 2022 recorded an account of the appellant’s functioning as follows:
“Mr Ingram reported that when he was not feeling well he was unable to leave the house. He reported that he now tries to get out and most days goes down to the bowling club in the afternoon and has a few beers before coming home and cooking dinner. He described that he believes that he is looking after himself pretty well. He informed that his weight has increased to 63.5 kg, adding that he is paranoid about his weight.
Mr Ingram reported that he lost contact with friends over the last few years. He stated that he has reconnected with his best friend and his godson.

Mr Ingram reported that he has been trying to get back into exercise and is riding pushbike, going to the gym, and walking a lot.”

A report from psychologist Mr Robert Pringle, dated 18 June 2024, which was forwarded with the application to restore the proceedings, responded to the Medical Assessor’s view that the appellant had not reached maximum medical improvement. Mr Pringle detailed the psychological treatment administered to the appellant. Mr Pringle said the appellant engaged with the treatment as much as he could and his management of symptoms had improved. Mr Pringle said he was not a practitioner or proponent of EMDR and expressed doubt that the appellant would participate in such an approach. Mr Pringle explained why he did not consider EMDR an appropriate therapeutic approach for the appellant.
Mr Pringle expressed the belief that assertive management for the appellant’s condition had been applied within the realms of what was possible and appropriate. Mr Pringle considered that the appellant’s condition had stabilised and reached a plateau of improvement beyond which further improvement was unlikely over the next 12 months and into the future.
Mr Pringle commented on the treatment administered for alcohol abuse and depression. Mr Pringle commented,
“Although he does not usually present in session as clinically depressed, and is able to recall happy experiences with family (most recently on a holiday, to attend a wedding in Bali), he sustains a stable baseline of low mood, loss of energy and interest/pleasure in activities he previously enjoyed.”
Mr Pringle said he had encouraged connection and engagement with others.
A report from general practitioner, Dr Bruce Wakefield, dated 3 April 2024, was also forwarded with the application to restore the proceedings. Dr Wakefield reported that the appellant was not interested in trying EMDR and that his cognitive behavioural therapy (CBT) sessions with Mr Pringle had relieved a lot of his symptoms. The appellant had reduced his alcohol intake and did not feel the need to reduce it further. Dr Wakefield noted that the appellant had trialled sertraline at very low doses and was not able to tolerate the side effects. The appellant had reported that he was unlikely to take medication prescribed by psychiatrist. The appellant had demonstrated an improvement in mood since ceasing work, engaging in his own exercise program and engaging with his psychologist.

Medical Assessment Certificate

The MAC of 6 August 2024 which is the subject of this appeal uses the Commission’s template for Further Assessment or Reconsideration. It does not set out the full history relating to the injury or a review of the documentary evidence but records and considers the additional documentary evidence from Mr Pringle and Dr Wakefield, the additional history obtained by the Medical Assessor since the first MAC and a further clinical assessment.
It is useful therefore to set out the relevant parts of the first MAC issued on 28 February 2024.
In that document, the Medical Assessor noted that the appellant was a 61-year-old male. The appellant reported that during his career with the respondent, he had attended at least nine fatalities, of which two were suicides. Two of his fellow firefighters had also taken their own lives.
The appellant reported a gradual onset of symptoms including, difficulty breathing, sleep disturbance, nightmares, and feelings of sadness and being on edge.
The appellant saw a psychologist and began working on avoidance behaviours. He was commenced on sertraline but stopped taking it as it made him feel sick. The appellant had been prescribed other antidepressants but had not trialled them. The appellant had not seen a psychiatrist for treatment purposes.
The appellant reported that he was the youngest of four siblings and had a reasonable relationship with them. The appellant’s parents died when he was aged 21 and 33 respectively.
The appellant reported that he had been drinking on a regular basis over the last few years, imbibing about 10 standard drinks per day. Previously, when he was working, the appellant would only drink over the weekend. The appellant used alcohol as a means to cope with his significant mental health symptoms. The appellant smoked tetrahydrocannabinol (THC) every evening and also smoked cigarettes.
The appellant reported that he continued to have flashbacks and vivid memories of the incidents that he had witnessed in the course of his employment. Overall, his mental health had not improved much apart from some initial improvement when he stopped working. The appellant continued to experience nightmares and disturbed sleep. His appetite had decreased, and he had lost approximately 10kg in the last few years. The appellant experienced fluctuating anxiety, daytime flashbacks, avoidance and concentration difficulties. The appellant reported being more short-tempered and fearful. He remained hypervigilant, particularly around anything to do with firefighting.
With regard to his social activities and activities of daily living, the Medical Assessor recorded that:
“Mr Ingram reported that he used to enjoy going to the gym, but he has not gone to the gym in the last eight to nine months. He reported that his best friend comes on Fridays and he takes him to clubs, and they sit in the corner and he has a beer. He reported that he leaves when it is crowded. He said that he has another friend who comes and takes him out for a walk.
He is able to drive to nearby distances but said that his driving is “sketchy.” He reported that he had a couple of near misses recently. He is able to leave home to get groceries and newspapers.
Mr Ingram reported that his siblings live in different areas. His brother comes and picks him up to go to Sydney. He, however, has been avoiding picking up his phone and does not even like answering the door.”
The Medical Assessor diagnosed post-traumatic stress disorder, persistent depressive disorder and alcohol use disorder based on the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria.
In finding that the appellant had not reached maximum medical improvement, the Medical Assessor commented:
“Mr Ingram up until now has received psychological intervention; however, he has not seen any Psychiatrist for detailed management and treatment of his conditions. He has trialled some antidepressants; however, has not had a specialist’s input. He would need assertive management for PTSD, Alcohol Use Disorder, and Major Depressive Disorder.
Treatments like EMDR or trauma-based cognitive behavioural therapy are evidence-based treatments which are often used in treatment of PTSD. Mr Ingram unfortunately has not received any one of that. Also, for his Alcohol Use Disorder, Mr Ingram has not received any psychological interventions, neither is on any medication for the same nor has he received any anti-craving medications.
I believe he should receive inpatient detoxification and rehabilitation program for at least three weeks to address his Alcohol Use Disorder. I therefore believe that he has not reached maximal medical improvement as he has not received evidence-based treatment for his current symptomatology.”
The Medical Assessor expressed agreement with the opinion of Dr Chew that the appellant had not reached maximum medical improvement. The Medical Assessor agreed with the diagnoses reached by Dr Verma but disagreed that calculation of WPI was indicated.
The Medical Assessor also made reference to reports from the appellant’s treating practitioners in which the appellant’s treatment to date was described.
Despite finding that the appellant had not reached maximum medical improvement, the Medical Assessor proceeded to partially complete the PIRS rating form. Reasons for assessment were provided in respect of each PIRS category other than “Employability”. No class was assigned to any of the categories.
In relation to the “Social and Recreational Activities” category, the Medical Assessor stated,
“Mr Ingram reported that he used to enjoy going to the gym, but he has not gone to the gym in the last eight to nine months. He reported that his best friend comes on Fridays and he takes him to clubs, and they sit in the corner and he has a beer. He reported that he leaves when it is crowded. He said that he has another friend who comes and takes him out for a walk.”
In relation to the “Social Functioning” category, the Medical Assessor stated,
“Mr Ingram reported that his siblings live in different areas. His brother comes and picks him up to go to Sydney. He, however, has been avoiding picking up his phone and does not even like answering the door.”
In the second MAC, dated 6 August 2024, the Medical Assessor noted that the matter had been referred for further assessment or reconsideration. The Medical Assessor specifically noted the medical report of Mr Pringle dated 18 June 2024 and the medical report of Dr Wakefield dated 3 April 2024. Those reports primarily addressed the appellant’s willingness to undertake further treatment.
The Medical Assessor recorded a history of improvement in symptoms, function and impairment in the six months since the original MAC was issued. The Medical Assessor also recorded that the appellant reported to her that his life had significantly changed in the last five to six months. He had continued to see a psychologist and had been working on avoidance behaviours. He felt he had calmed down with more therapy. The Medical Assessor noted:
“Mr Ingram said that he has been leaving his house more regularly and frequently. He leaves his house to go out for walks about twice a week with his friend and to the gym about two times a week. He said that although he continues to get nightmares, he ‘does not get them as much as before’.
He said that they are ‘not major nightmares but drama dreams’. He said that he wakes up ‘sweaty’, but most of the time, he does not remember the content of the dreams. He continues to feel triggered by the news and hence avoids watching it.
He also has been working on his alcohol use and has cut down the alcohol use from about 60- 70 drinks per week to 30 drinks a week. He said that he ‘likes his beer and wines’. He was reflective and insightful that ‘alcohol was impacting his relationship’ when a friend texted him that he might lose their friendship if he continued drinking.
He reported that the flashbacks have improved now, but he still gets triggered by things around him. He gets ‘spooked on when he hears sirens or any loud noises’. He continues to feel ‘edgy and anxious’; however, he is ‘not as anxious as before’.
He was quite happy to share that his appetite has now improved and he has put on 3 kg in the last six months. His sleep, too has now improved significantly. He continues to smoke THC at night as he used to do previously, but he has also cut down on the THC use. He said that he only uses about one joint every day. He denies smoking cigarettes.”

The Medical Assessor expressed the opinion that the appellant had now achieved maximum medical improvement as no other treatment options were left to be trialled based upon his being “not keen” or interested in receiving biological interventions, antidepressants, detoxification rehabilitation, EMDR and/or exposing himself to traumatic memories.
The Medical Assessor said she had noted the letters from Dr Wakefield and Mr Pringle corroborating that the appellant was not willing to trial any other treatment options.
The Medical Assessor proceeded to complete the PIRS rating form, assigning a class 2 to the categories of “Selfcare and Personal Hygiene”, “Social and Recreational Activities”, “Travel” and “Social Functioning”. A class 3 was assigned to the category of “Concentration, Persistence and Pace and a class 5 to the category of “Employability”.
An addition of 2% was made for the effects of treatment. No deductions were made for any pre-existing impairment, leaving a final assessment of 11% WPI.
Relevantly, in the category of “Social and Recreational Activities”, the Medical Assessor gave the following reasons for her assessment:
“Mr Ingram reported that he used to enjoy going to the gym and he has now started doing that. He said he now goes to the gym about two times a week on his own. He continues to go to the club with his friend, Rick, every Friday. On the weekend, he also goes out to watch football matches in the club where there are at least 50-60 people, but he is able to sit there and watch the match, without feeling overly anxious.”
In the “Social Functioning” category, the Medical Assessor stated,
“Mr Ingram reported that his relationship has improved as there is ‘more honesty between him and his siblings’. He said that his elder brother and two sisters often call him up and check up on him. His brother who is now retired comes over at least ‘once a month’ and spends time with him. He has lost some friendships.”

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor made a number of demonstrable errors, made an assessment on the basis of incorrect criteria and erred in reaching her conclusions in relation to the PIRS categories.
The appellant extracted the descriptors set out in Table 11.2 of the Guidelines for “Social and Recreational Activities”, but submitted that the Medical Assessor erred in assessing the appellant’s “Social Functioning”.
The appellant extracted parts of Dr Verma and Dr Chew’s reports and submitted that an earlier report from Dr Chew dated 14 April 2023 ought to be obtained by the Appeal Panel.
The appellant also extracted parts of Dr Wakefield and Mr Pringle’s most recent reports as well as the report from Mr Anning, dated 27 October 2022.
The appellant submitted that the Medical Assessor had “failed to appreciate the period for which the worker’s injury arose and the onset of symptoms to which were caused by the work-related injury”.
It was further submitted that the Medical Assessor had “incorrectly assumed that prior to the injury the appellant was reclusive with the limited interaction with family, friends nor had any real social life.” The appellant submitted that prior to the injury, he was a highly regarded in active member of the New South Wales firefighting fraternity who was active socially and had real and close relationships with his family. The Medical Assessor’s reference to the appellant having “lost some friendships” was said to understate the significance of the impairment and the importance of the appellant’s work and “social avenues of commune”.
The appellant had reported only a very slight improvement in his relationship with his siblings owing to “more honesty” and his brother seeing him once a month. The appellant rarely interacted with other people and had lost relationships.
The appellant submitted that a Class 3 impairment for “Social Functioning” was more appropriate than the Class 2 which was assigned.
The appellant further submitted that the Medical Assessor’s failure to expose the history relied upon in her assessment meant that her assessment of each of the PIRS categories was in error.
The appellant submitted that in the MAC which is the subject of this appeal, the Medical Assessor failed to refer to the other medical opinions and evidence. The Medical Assessor failed to explain why her assessment differed from that of Dr Verma, particularly in relation to social functioning.
The appellant further submitted that the Medical Assessor had failed to engage with the updated evidence from Mr Pringle indicating that the appellant’s condition was deteriorating rather than improving. By failing to engage with that material, the Medical Assessor fell into error.
The appellant submitted that the Medical Assessor fell into error in finding that there had been a “significant improvement” in the applicant’s condition. It was unclear on what basis the Medical Assessor had arrived at the view that there had been a significant improvement. The Medical Assessor did not engage with the applicant’s alcohol use disorder and cannabis use. There was no evidence suggestive of improved social functioning.
The appellant also submitted that the Medical Assessor had completed two PIRS rating forms, which were contradictory. This irregularity was unable to be cured without a re-examination by the Appeal Panel. It was unclear why the PIRS rating form was partially completed in February 2024 when the appellant had not reached maximum medical improvement. The carrying out of two PIRS assessments was said to be contrary to the Guidelines and inappropriate, resulting in demonstrable error and the application of incorrect criteria.
The appellant submitted that the bulk of the history was contained in the first MAC. None of the history contained in the final PIRS rating form was set out in the MAC dated 6 August 2024. In these circumstances, the Medical Assessor had failed to expose an adequate path of reasoning. The appellant could not know the basis for the Medical Assessor’s opinion or the substance of her clinical evaluation.
In objecting to the appeal, the respondent submitted that:
(a)    the appellant sought to cavil with the Medical Assessor’s findings and the grounds of appeal were not supported;
(b)    the MAC did not contain demonstrable errors with respect to the assessment of permanent impairment;
(c)    the Medical Assessor had provided adequate reasons for her conclusions, and
(d)    it was open to the Medical Assessor, based on her clinical judgement, the history provided by the appellant and the evidence included in the referral documents to conclude that there had been a significant improvement.
The respondent noted that the appellant’s submissions referred to the PIRS Guidelines for “Social and Recreational Activities” but addressed the assessment of “Social Functioning”.
The respondent submitted that no submissions had been made to explain the appellant’s position that a Class 3 impairment in “Social Functioning” was more appropriate. The appellant’s submissions as to the nature of his relationships was at odds with the history obtained by the Medical Assessor in her assessments in both February and August 2024.
The respondent submitted that the Medical Assessor was not required to compare pre-injury functioning with functioning at the time of the assessment. Rather, the Medical Assessor was required to make a clinical assessment of the appellant’s current functioning and the extent to which the psychological injury had resulted in impairment of that functioning.
The respondent submitted that the clinical assessment was more consistent with a Class 2 impairment for “Social Functioning”. There was no evidence of “severely strained relationships” within the appellant’s family. The appellant had weekly interactions with friends and an honest relationship with his siblings who called him often. His socialisation had improved although he had lost some friendships.
The respondent noted that although the appellant submitted that the assessment in relation to each of the PIRS categories had been made in error, no submissions in support of that proposition had been made.
The respondent submitted that the Medical Assessor clearly engaged with the updated reports from Dr Wakefield and Mr Pringle. The Medical Assessor engaged with the reports of Dr Chew, Dr Verma and Ms Osborne in the MAC dated 28 February 2024.
The respondent submitted that the finding of a “significant improvement” was consistent with the history given by the appellant that his life had significantly changed in the five to six months since February 2024. The appellant reported that he was leaving his house more frequently and regularly, did not experience nightmares as much and had reduced his alcohol intake. His sleep had improved significantly. The respondent submitted that the Medical Assessor adequately justified her conclusion that the appellant’s condition had improved.
With regard to the appellant’s submission that there were two contradictory PIRS assessments, the respondent submitted that no reference had been provided to any part of the Guidelines, indicating that this was not permitted. The two assessments could be explained by the fact that in the first MAC it was clearly stated that maximum medical improvement had not been reached. The second PIRS rating form was completed and included class ratings as the Medical Assessor had now concluded that the appellant had achieved maximum medical improvement.
The respondent relied on Skates v Hills Industries [2020] NSWSC 837 at [71] to assert that a Medical Assessor is bound by the terms of the referral and that the terms of the referral in this case clearly indicated that a further assessment or reconsideration was required.
The respondent submitted that the MAC dated 6 August 2024 ought to be read in conjunction with the MAC dated 28 February 2024. Pursuant to s 329(2) of the 1998 Act, the certificate as to a matter referred for further assessment or reconsideration prevailed over any previous certificate as to the matter to the extent of any inconsistency.
When read together, the Medical Assessor obtained a detailed history of the appellant’s injury. The initial MAC included a history relating to the injury and included details pertaining to the appellant’s work history, forensic history, family history, general health and treatment. The subsequent MAC contained ‘additional history since the original medical assessment certificate was issued’.
The respondent said it was clear that the Medical Assessor had taken into account the history obtained in the earlier assessment. The Medical Assessor had provided adequate reasoning for her conclusions.
The respondent submitted that the MAC ought to be confirmed.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Some of the difficulty that arises in this appeal is due to the use of the Commission’s template for Further Assessment or Reconsideration rather than the ordinary Assessment of the Degree of Permanent Impairment template. It is, however, implicit in the Medical Assessor’s use of the Further Assessment or Reconsideration template that the MAC issued on 6 August 2024 is to be read together with the earlier MAC, dated 28 February 2024.
Approached in this way, it is sufficiently clear that the Medical Assessor continued to rely on the history previously obtained, the evidence previously reviewed and the initial examination. The second MAC makes clear that the Medical Assessor also considered the new evidence including, the reports of Mr Pringle dated 18 June 2024 and Dr Wakefield dated 3 April 2024. The Medical Assessor also recorded an additional history obtained at reassessment and undertook a further clinical examination. Reading the two MACs together in this way gives the Medical Assessor’s assessment of the PIRS categories context and makes clearer what evidence and reasons the assessment was based upon.
The Medical Assessor’s analysis of the medical evidence in the first MAC was, however, heavily focused on the treatment the appellant had received to date rather than the level of impairment. Even reading the two MACs together, although it is apparent the Medical Assessor has read and considered Dr Verma’s assessment, nowhere has the Medical Assessor explicitly engaged with Dr Verma’s assessment of a Class 3 in the category of “Social Functioning” or provided reasons why she disagreed with that assessment.
The Appeal Panel accepts that this circumstance gives rise to a demonstrable error in the nature of a failure to take into account relevant material, whether or not other errors may also be found.
Having found error, the Appeal Panel has conducted its own assessment.
The Appeal Panel observes that although the appellant has submitted that the Medical Assessor’s assessment of all of the PIRS categories was affected by error, no clear submissions were made to why the assessments should be any different other than in respect of the category of “Social Functioning”.
The Medical Assessor’s assessment of the PIRS categories was identical to that conducted by Dr Verma, with the exception of the Medical Assessor’s finding of Class 2 for “Social Functioning” in place of Dr Verma’s Class 3.
The Appeal Panel notes that no assessment of permanent impairment was conducted by Dr Chew in his report of 13 November 2023. The appellant has submitted that the Appeal Panel should call for the earlier report prepared by Dr Chew on 17 April 2023. However, neither party sought to put that report before the Medical Assessor. It has not been demonstrated that the earlier report is relevant to the assessment of permanent impairment. In the circumstances, the Appeal Panel is not satisfied that it is appropriate to “call for” that additional evidence.
After considering the parties’ submissions, the relevant lay and medical evidence and the contents of the two MACs, the Appeal Panel is not satisfied that there is any basis to disturb the Medical Assessor’s findings in relation to the PIRS categories other than “Social Functioning”. The Appeal Panel accepts and adopts the Medical Assessor’s ratings for those categories.
Although the appellant’s submissions focused upon the assessment of “Social Functioning”, his submissions erroneously extracted the Guidelines relevant to “Social and Recreational Activities”.
Table 11.4 of the Guidelines relevantly provides that a Class 2 assessment in the “Social Functioning” scale would be appropriate in the following circumstances:
“Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
A Class 3 assessment is appropriate where:
“Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
Dr Verma recorded in May 2023 that the appellant had a drink with a friend the previous week. At the time of Dr Verma’s report, the appellant tended to meet with friends weekly at the pub although he had pushed some friends away. Dr Verma recorded that the appellant was in communication with his brother and sister and had recently disclosed his symptoms to them. The appellant had not been in a romantic relationship for many years.
In November 2023, Dr Chew recorded that the appellant had a friend who came around once or twice a week to go for a walk. Once a week, the appellant went to the bowling club with a friend.
Mr Anning, in his report of October 2022, had recorded that the appellant had lost contact with friends over the last few years. However, the appellant told Mr Anning that he had reconnected with his best friend and his godson.
At the time of the first MAC, the appellant told the Medical Assessor that his best friend came on Fridays and took him to clubs, where they would sit in the corner and have a beer. The appellant had another friend who would come and take him out for a walk. The appellant’s siblings lived in different areas but he would see his brother. The appellant had, however, been avoiding picking up his phone and did not like answering the door.
In the more recent examination, the Medical Assessor recorded a history that the appellant was now leaving his house more regularly and frequently, going out for walks twice a week with his friend. The appellant’s elder brother and two sisters often called him up and checked on him. The appellant’s brother, who was retired, would come over at least once a month to spend time with him. The appellant had, however, lost some friendships.
The appellant’s submissions suggested that prior to the injury he was a highly regarded and active member of the New South Wales firefighting fraternity who was active socially and had real and close relationships with his family. The appellant submitted that his work provided “social avenues of commune”. There is, however, very little evidence as to the nature of the appellant’s pre-injury relationships. The regard with which Mr Ingram was held and the somewhat trite, self-evident, observation that working with other people provides “social avenues” are irrelevant. In any event, Medical Assessor’s task was to assess impairment at the time of her examination by reference to the Guidelines.
All of the clinicians involved in this case have noted some loss of friendships, but continuing regular and supportive contact with some friends, who go out with the appellant at least weekly. One took him to a funeral only the week prior to the second MAC. He has an improving relationship with his siblings, and no record of tension with his family, with whom he has a close enough relationship that he recently attended a family holiday in Bali, as recorded by Mr Pringle in June 2024. The appellant has not had a partner for many years and it had not been suggested that this circumstance is related to his psychological injury.
In the Appeal Panel’s view, the evidence only supports a Class 2 assessment for “Social Functioning” rather than a Class 3 assessment as urged by the appellant.
Having made the finding above, the Appeal Panel agrees with the Medical Assessor’s assessment of the PIRS categories.
It has not been suggested by either party that the addition for the effects of treatment should be disturbed.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 August 2024 should be confirmed.

[2024] NSWPICMP 811

29 November 2024