Ingram v Veolia Recycling & Recovery Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Ingram v Veolia Recycling & Recovery Pty Ltd [2024] NSWPICMP 380
APPELLANT:	David Ingram
RESPONDENT:	Veolia Recycling & Recovery Pty Ltd
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	14 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Medical Assessor allegedly erred with respect to their assessments under two categories of the Psychiatric Impairment Rating Scale, namely social functioning, and social and recreational activities; Held – error in the assessment of social functioning; no error regarding social and recreational activities; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 April 2024 David 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, (MA) who issued a Medical Assessment Certificate (MAC) on 8 March 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 availability of additional relevant information (s 327(3)(b) of 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.

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 although one was requested, the Panel considers that we have sufficient evidence before us to enable us to determine this appeal.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) a further statement from the appellant dated 4 April 2024.
The appellant makes no specific submissions as to the relevance of this evidence other than to state that it contradicts the history obtained by the MA.
The appellant submits that the evidence was not available and could not reasonably have been obtained because it was only after the issuing of the MAC that it was obtained to correct an alleged error by the MA.
Veolia Recycling & Recovery Pty Ltd (the respondent) submits that it would constitute the denial of natural justice to allow the updated statement of the appellant to be admitted into proceedings in circumstances where the appellant was provided the opportunity to give his account of current circumstances to the MA when examined by her at the medical assessment and presumably satisfied the MA that he had done so. In addition, the respondent submits that the appellant has failed to satisfy the requirements of s 328(3) of the 1998 Act and Practice Direction No 16 and leave ought to be denied for the appeal to proceed under s 327(3)(a) of the 1998 Act.
We also note the comments made by Hoeben J in Petrovic BC Serv No 14 Pty Limited & Ors [2007] NSWSC 1156 where if a statement going to the way in which a medical assessment was conducted was additional relevant information “it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal.”
The Appeal Panel determines that the evidence should not be received on the appeal because it is of little probative value, and the appellant could and should have made the points now raised at the time of the assessment.

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.

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 MA erred with respect to her assessments under two categories of the Psychiatric Impairment Rating Scale (PIRS), namely Social Functioning and Social and Recreational Activities. In addition, it is submitted that the reasoning process of the MA cannot be easily identified from the information contained in the MAC.
In reply, the respondent submits that no errors were made.

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 appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychological injury on a deemed date of injury of 3 March 2020.
The MA obtained the following history:
“Mr Ingram is a 45-year-old male who lives on his own. He was working as a site supervisor for Veolia Recycling & Recovery Pty Ltd. Mr Ingram reported that he had some difficulties with his manager Mr BJ. He alleged that he was unsupported by his manager and was overworked.
He said that they were asked to work more and more but were not getting paid overtime adequately. He said that after a certain number of hours, ‘he wasn't even paid’. Mr Ingram said that he was working approximately ‘110 hours per week but was only being paid for 50 hours’. He said that they were being pushed to work more and more.
He added that he had to take on the additional workload of another work site after the other site supervisor was pushed out of the company by Mr BJ. As a result of additional site coverage his interaction with Mr BJ increased and led to more struggles and difficulties. He said that despite the workload being high Mr BJ did not employ any more staff members to help Mr Ingram out.
He said that his managers would often threaten that if they did not work more they would then ‘get rid of them’. He said he also had a few physical injuries due to the high workload. He said that he broke his jaw in 2020. He said that at that time he was working about 20 hours a day. Mr Ingram reported that seven of his teeth were knocked out and he had to undergo implants. Mr BJ still pushed him to continue working and did not let him take any time off work despite the physical injury.
Mr Ingram was unable to cope with the stress and took a stress leave a day before Easter in 2020. He said that at that time he was just ‘living to work and did not even have time to talk to his family members’. His psychological and mental status worsened gradually, but there was no support being offered from his family members.
He also sustained a left elbow injury in around February 2020. The claim for the left elbow injury was initially declined but later accepted. He had surgery on his left elbow in around February 2021. He said that since the claim was rejected, he did not receive optimal treatment between February 2020 and February 2021 which led to the development of pain in his right wrist and elbow.
Mr Ingram reported that at that point he had 8 to 10 sessions of physiotherapy after the surgery but did not get any further sessions. He reported that he pulled away from his family gradually and the pain in his hand also started impacting his ‘overall functioning’. He said that he was unable to use his hand for more than 15 to 20 minutes at a time and would start experiencing pain.
Despite the continuous pain, he continued to work and managed to work and started using the other hand more instead of the injured hand. His sleep gradually worsened and it was impaired. He would only sleep for 2 to 3 hours as he was working, and he would only get two to three hours and would not rest adequately. His appetite was also impaired and lost ‘some weight’. He was not sure as to how much weight he lost at that time.
He said as his mental health worsened he then was not able to work with his employers and last worked with them in March 2021. He reported that he started seeing a Psychologist in 2022 and saw a Psychiatrist via tele twice in 2020. He said that he saw the Psychologist weekly and saw them for about 10 to 12 sessions. He saw another Psychologist for a further 10-12 sessions.
He said that following his work cessation, his employers made false allegations against him and accused him of misusing the work car and threatened to sack him which is when he had to resign under duress. Mr Ingram reported that he was unable to return to work even with different employers because of difficulties as well as elbow and hand pain.”
The MA then set out details of Mr Ingram’s “personal history” and said:
“He said that he has been married twice. He got married in October 1998 and his first wife left in 2000, He later remarried in 2005 and had two children from this marriage which lasted around 23 to 24 years. He said that his two kids are aged 15 and 13 years. He said that his ex-wife has put an AVO against him for stalking and intimidating. Mr Ingram acknowledged that he has never been intimidating. He is currently in a relationship with his girlfriend who has been supporting him quite well.”
The Appeal Panel notes at this point that the MA’s dates referred to above are clearly incorrect.
The Medical Assessor then noted present treatment and symptoms as follows:
“Mr Ingram is not currently receiving any psychiatric interventions and last saw a Psychiatrist at least 18 months back. He also has not seen any Psychologist in the last 18 months. He is not receiving any physiotherapy sessions as well. He is on Escitalopram 10 mg and is no longer on Lyrica and Valdoxan. He is also on Celecoxib 200 for pain.
Mr Ingram reported that overall ‘he is a little better’ as he is now able to go out as compared to ‘completely housebound’. He further added that his mood is ‘usually down’ and does not like talking to people. He said that he has ‘better days’ than before and is trying to move on with his life.
His sleep is ‘also getting better’, and he sleeps for five to six hours a day. He sometimes has a latency of sleep but is able to sleep through the night. He continues to feel anxious but has ‘a lot of more good days’ now. He reported that not seeing his kids is, of course, impacting his mental health. He said that his ex-wife has put an AVO on him for intimidating and stalking her.
Mr Ingram's appetite fluctuates but his weight has been stable.
His energy levels are ‘okay’ but fluctuate at times. His motivation also depends if he is having ‘a good day or a bad day’, and on days he is able to get up early and is able to do ‘fencing and plumbing’ before his hands start to pain. On some days, he has no motivation and does not want to do things.
Mr Ingram said that the pain in his right arm has also improved but his left elbow has not improved much and is ‘real sore’. He said that the pain impacts his ability to drive a car, hold a steering wheel, hold a hose and moving his hands above the shoulder level also triggers the pain. He is unable to do water skiing as he cannot hold the rope as his hand is too weak now.
He also reported that his panic attacks have improved, and he has not experienced any in the last year. Mr Ingram often contemplates how his life has changed from when he used to work to his current circumstances. He said that he had also separated from his wife as they were having frequent conflicts but now has been seeing his girlfriend for a couple of weeks and described her as quite supportive.
Mr Ingram reported that ideally, he wants to work, but since he is ‘more hands-on’ he would like to do ‘hands on work. rather than sitting in the office and working.”
As regards any prior conditions, the MA said:
“Mr Ingram denied having any past history of any mental health issues. He did report that when he split up with his first wife 25 years ago he saw a Psychologist for about 12 to 15 sessions and found this very helpful. He was not on any antidepressants or any anti-anxiety medications at that time and he seemed to have fully recovered from the incident.”
The MA then turned to consider the impact of Mr Ingram’s injury on his social activities and activities of daily living (ADL’s) and said:
“Mr Ingram lives on his own. He said that he showers once a week on a few days, but on a few days, he will, ‘get up every day and then showers every day’. He manages to keep his house clean and does his own laundry. He is also able to cook food for himself but he does not cook every night. He said he prefers to cook simple food like pasta, chicken, sausages and pies.
Mr Ingram reported that he enjoyed water skiing, golf, bike riding and footy with his kids. He has not engaged in these activities primarily because of the pain in his hands and it ‘hurts’ to do these activities. He is not able to do maintenance work around the home as well and he experiences pain which he enjoyed doing earlier. He has now started going out to the pub for dinner with his girlfriend and is able to go out for walks as well.
He is able to drive and only drives to close distances because of his pain. He has driven to Sydney and had to take a few stops because of the pain in his hand. He is able to go out on his own to the shops for his appointments etc.
Mr Ingram reported that he has been in a relationship with his girlfriend for a couple of weeks. He said that she is ‘there for him’. He has, however, lost some of his friendships. He said that he does not want to talk to family members especially after his dad committed suicide and ‘people were greedy after the money.’
Mr Ingram spends a lot of time watching TV and watching cricket. He said that he ‘could watch TV even if it is switched off and often lays on his couch and does not do anything’. His attention and concentration is ‘still bad’ but have slightly improved in the last couple of months. He said that he tried to fix things at home in the shed but he is not able to do it as he gets distracted very soon. He reported that he ‘has never read a book even before the workplace incident’. He gets help from his daughter to send emails as he is not that good. He has automated his bills so that he does not forget paying bills as his ex-wife usually would do that.
Mr Ingram does not have any capacity to engage in any sort of employment based on his current depressive and anxiety symptoms. He also has impairment in his concentration and persistence which would preclude him from engaging in employment.
On a typical day, Mr Ingram gets up at varying times from 9:30 to 10 a.m. He has his breakfast and then goes out for a walk around the block on his own. He then comes back and ‘sits around and plays with his dog’. He said that he lives on a five-acre block and hence at times walks around the block. He said that he has not been able to do a lot of maintenance work because of the pain in his hand. He is able to do a ‘bit of gardening and mowing’ when he can. He added that the pain in his hands impacts his ability to hold the whipper snipper. He lives by himself and he has a girlfriend who lives close by and visits him frequently.
Findings on mental state examination were reported as follows:
“I reviewed Mr Ingram via video. He engaged well during the assessment and was cooperative. He presented as a Caucasian male of stated age. There was no evidence of any psychomotor agitation or retardation, and no abnormal movement like tics and mannerisms were noted. He was casually dressed in a t-shirt and reasonably well-groomed. He had a stubble and was bespectacled. Mr Ingram was heavily tattooed on his arms. He gave a clear account of his symptoms and his difficulties. He reported his mood to be ‘fluctuating and his affect was slightly dysphoric. His thoughts were logical and goal-directed. He currently reports partial improvement in his mental health; however, he continues to experience affective and anxiety symptoms at times. There was no evidence of any manic, psychotic or perceptual abnormalities.’”
The MA assessed 9% WPI to which, somewhat peculiarly as in section 8e she reported “No”, she added 2% in respect of the pre-existing condition, leaving a total of 11% WPI.
What she intended to do, we believe, was to add 2% for the effects of treatment which was referred to consistently in the body of the MAC and on page 11.
She then turned to consider the other medical opinions and material before her and said:
“I have noted statements by Mr David Ingram dated 28.04.2020, 23.07.2021, and 27.06.2023.
I have noted IME by Dr Frank Chow dated 18.10.2022. I have noted that Dr Chow concluded that Mr Ingram's presentation was consistent with the diagnosis of Major Depressive Disorder… I have also noted that Dr Chow calculated the WPI as 22%. I respectfully disagree with the calculation in the following areas.
1.Self-care and personal hygiene. I have noted that Dr Chow has marked self-care and personal hygiene as class 3. However, it is to be noted that Mr Ingram now lives independently and reported some improvement in his self-care and personal hygiene. I therefore believe that class 2 better depicts his current functioning instead of class 3.
2.Social and recreational activities. I have noted during my assessment that Mr Ingram has been able to go out with his girlfriend to the pub and also is able to go out for walks. He has not been able to engage in other activities like water skiing, golf and bike riding, which he attributed to pain in his hands. I believe that this also warrants class 2 or mild impairment.
I have also added 2% for the improvement in his mental health due to treatment, and hence the final WPI is 11%.
I have noted a letter by Dr Asha Sadasivan, Consultant Psychiatrist dated 21.04.2020… I agree with Dr Sadasivan's conclusion that Mr Ingram's presentation is consistent with Adjustment Disorder…
I have noted IME by Dr Gerald Chew dated 19.01.2023… Dr Chew mentioned ‘He is not engaging in significant psychiatric or psychological treatment and there are still ongoing physical pain issues and he is awaiting surgery. I would be hopeful he could reach maximal medical improvement within six months.’
I believe that Mr Ingram has now achieved maximum medical improvement as he is on antidepressants and has received psychological interventions as well. In fact, Mr Ingram's mental health since then has improved as well.
I have noted a letter by Leslie Adamson, Psychologist, dated 02.02.2023…”

The appellant’s submissions

As regards the category of social functioning, the appellant submits as follows:
(a)    the appellant should be classified within class 3 or class 4 of the PIRS.
(b)    The MA said:
“Mr Ingram reported that he has been in a relationship with his girlfriend for a couple of weeks. He said that she is ‘there for him’. He has, however, lost some of his friendships. He said that he had also separated from his wife as they were having frequent conflicts but now has been seeing his girlfriend for a couple of weeks and described her as quite supportive.”
(c)    The information recorded by the MA above is inaccurate. The appellant had only met this woman eight days before the assessment. There was no relationship at that time, and they had only met on two occasions prior to the assessment.
(d)    There is no evidence of any relationship in any of the documents provided to the MA, and there is insufficient direct evidence from the appellant to establish any meaningful relationship as at the time of the assessment. The MA appears to have misinterpreted or incorrectly recorded what was discussed in the examination. Otherwise the MA confirms that the appellant lives alone.
(e)    The MA refers to the appellant’s new romantic relationship eight times in the MAC. Considering the lack of evidence of any relationship and the brief duration of the appellant's contact with this acquaintance, the appellant argues that it was inappropriate of the MA to place any emphasis on this unsubstantiated relationship.
(f)    It appears the MA also assumed that because the appellant is in a new romantic relationship, this equates to improvements in social and recreational activities, as well as social functioning. This assumption is erroneous.
(g)    The MA should have given adequate consideration to the significant changes in the appellant's relationships since sustaining the psychological injury. These include losing the majority of his friendships, his inability to care for his young children, and the tumultuous separation with his wife.
(h)    The MA appears to have understated his loss of friendships. For instance, Dr Chow has stated: “He is not seeing friends and he has lost friendships. He is not coping socially.”
(i)    The appellant also states at page 18 of the Application to Resolve a Dispute (ARD) “I used to socialise a lot more before whereas I hardly socialise with anyone now, even with close friends. I very rarely leave the house due to anxiety.”
(j)    Further on page 18 of the ARD, the appellant states: “Í feel like I get frustrated and irritable very quickly now, even with my immediate family, which has put strain on my relationships. I try to keep in contact with one of my friends by telephone, but I even struggle with that.”
(k)    The MA did not consider the appellant’s evidence outlined above.
(l)    A year after the appellant sustained his injury, he was heavily reliant on his ex-wife. For instance, on page 17 of the ARD, he stated,
(i)“My wife often has to tell me to take a shower – before the injury, I would shower each day and get dressed and ready for work. Now, I am reliant on my wife to remind me to shower a couple of times per week.”
(ii)He also states on page 17, “My wife also prompts me to eat. I normally eat a lot less than I used to prior to the injury”.
(iii)On page 20 of the ARD, he stated:
“I relied on my wife for everything. She came with me to my medical appointments, she prompted me to change clothes and shower, she cooked, grocery shopped and cleaned the house, and she consoled me when I was experiencing anxiety and low mood”.
(m)     The breakdown of his marriage occurred in February 2023 and was as the result of his deteriorating psychological condition.
(n)    On page 20 of the ARD, the appellant’s details the apprehended violence order (AVO) against him, initiated by his ex-wife. He states on page 20, “Despite the AVO, I continued to try and contact my ex-wife. I struggled to live my life without her.”
(o)    The appellant breached the AVO twice and was incarcerated on two separate occasions.
(p)    On page 3 of the MAC, the MA incorrectly asserts that the appellant denied having criminal convictions. The evidence of the convictions and police involvement in this relationship and resulting incarcerations is a significant factor to be taken into account and it does not appear that the MA did so.
(q)    There is also an insufficient investigation into the appellant’s young dependants. His relationship with his children has been seriously affected by his injury. There is little if any contact.
(r)    The appellant said: “My ex-wife and I share two children, aged 14 and 12. They live with her, and I have not seen them in months. I miss seeing and taking care of my children.”
(s)    Class 4 deals with the specified descriptions of “pre-existing relationships ended, eg lost partner, close friends. Unable to care for dependents, eg own children”, all in which pertains to the appellant. There is no doubt that the appellant has lost his partner, close friends and has a near non-existent relationship with his dependents.
As regards the category of Social and Recreational Activities, the appellant submits as follows:
(a)   the MA assessed a Class 2.
(b)   The appellant ought to be assessed as a Class 3.
(c)   On page 10 of the MAC, the MA states: “He has now started going out to the pub for dinner with his girlfriend and is able to go out for walks as well.”
(d)   The appellant asserts that he visited the pub only once for dinner when he met this acquaintance. The MA states on page 4 of the MAC, that the appellant has “started going out to the pub”, which implies regular visits. This is inaccurate and the MA should have specified that source of this evidence and accurately reported it. There is no evidence of regular visits to the pub in any of the documented evidence before the MA. This ensures a more accurate portrayal of his social and recreational activities.
(e)   The MA also states on page 4 of the MAC:
“Mr Ingram reported that he enjoyed water skiing, golf, bike riding and footy with his kids. He has not engaged in these activities primarily because of the pain in his hands and it ‘hurts’ to do these activities. He is not able to do maintenance work around the home as well and he experiences pain which he enjoyed doing earlier.”
(f)    There is no evidence in the ARD or in the respondent’s Reply to the ARD to suggest that the appellant stopped engaging in social activities i.e., water skiing, golf, bike riding and footy, because of pain in his hands.
(g)   Dr Chow has correctly stated that the appellant stopped participating in these social and recreational activities because of his psychological injury.
(h)   We refer to Tagg v Racing New South Wales [2023] NSWSC 1547 (Tagg). In Tagg, Schmidt AJ at [58] found that the Appeal Panel erroneously failed to apply the PIRS criteria correctly and failed to provide adequate reasoning for the conclusions they arrived at. In Tagg, the plaintiff similarly had both physical and psychological workplace injuries. The plaintiff successfully argued that the Appeal Panel erred by neglecting to assess her impairment in line with the relevant guidelines and that they considered irrelevant factors regarding her physical disability when assessing her psychological injury.
(i)    As per Tagg at [75], the MA should have expanded on the extent of the appellant’s physical impairments which led the MA to conclude that they, rather than the psychological impairment, were mainly responsible for the appellant’s inability to engage in the stated recreational activities. This exercise was not undertaken by the MA.
(j)    The MA neglected to provide an adequate explanation regarding the nature and severity of the pain experienced by the appellant's hands, as referenced on page 10 of the MAC.
(k)   In effect, the MA has indicated that every single social activity that the appellant no longer performs is to be reduced because of physical impairment, when those activities themselves have varying degrees of physicality involved.
(l)    Neither medico-legal psychiatrists, i.e., Dr Chow or Dr Chew, has attributed the restriction of social activity due to any physical impairment.
(m)     The approach of the MA is erroneous. The MA has in fact accepted that the psychological injury has impacted the appellant’s social activities but then it appears that she has watered down this assessment on the basis that he “mostly” cannot do these activities because of factors unrelated to the psychological injury but there is no reasoning process for this discount and as detailed above, it is unclear as to what the injury itself is to the hands.
(n)   If it is the case, as it appears from the report, that it is accepted that the psychological injury has impacted upon his social activities then there should be no reduction in the assessment for factors which have not been properly evaluated, and he should be correctly assessed in category three, which is consistent with the restrictions in his social activity.

The respondent’s submissions

The respondent’s submissions focus on a number of authorities dealing with the role of an Appeal Panel.
In light of those authorities, the respondent submits that the appellant has not successfully established that the MAC discloses:
(a)     if the categorisation was glaringly improbable;
(b)     if it could be demonstrated that the MA was unaware of significant factual matters;
(c)     if a clear misunderstanding could be demonstrated;
(d)     if an unsupportable reasoning process could be made out;
(e)     how the MA has expressed more than a difference of opinion in expressing his clinical judgment, or
(f)      how his application of clinical judgment to PIRS does not conform or is inconsistent with the PIRS, allowing for examples supplied at Table 11.2 and Table 11.4 being general indicators in any event.
The respondent adds:
(a)    in the report of Dr Ash Takyar it was noted the appellant would not attend any type of live social event by himself, but there was no mention of his inability to attend live social events with another person. Regardless of this omission, the appellant clearly demonstrated the ability to do this as he had attended the pub with his girlfriend as was mentioned by him to Dr Verma at the medical assessment.
(b)    It is clear in the clinical records of Narooma Medical and Specialist Centre and the treating report of Lesley Adamson that the appellant was suffering from ongoing symptoms of pain in the forearm, elbow, and hand which continued to disable him. It was also noted by Dr Gerald Chew that the appellant was awaiting surgery on his right arm for right carpal tunnel and further nerve damage in his elbow. The appellant also reported to Dr Chew that he “particularly feels hindered by physical problems.”
(c)    It was appropriate for the MA to refer to the fact that some restrictions to the appellant’s ability to engage in social and recreational activities were not linked to his psychological injury.
(d)    The MA has appropriately explained her reasoning and it is clear how she reaches her conclusion.
(e)    The MA’s observation of the appellant’s new relationship with his girlfriend, or who he says is simply a friend who is a girl, indicates the appellant now can meet a new person, form a friendship with them, and plan a social outing with them on at least one occasion. It is noted that at page 5 of the MAC, Dr Verma recorded the appellant told her that: “He lives by himself and he has a girlfriend who lives close by and visits him frequently”.
(f)    The ability to form and sustain relationships fits wholly within the general example for Class 1 impairment under Table 11.4 of the PIRS.

Discussion

The Appeal Panel agrees with the thrust of the appellant’s submissions for reasons that follow.
Dealing firstly with the category of social functioning, the MA assessed a Class 2 and said:
“Mr Ingram reported that he has been in a relationship with his girlfriend for a couple of weeks. He said that she is ‘there for him’. He has, however, lost some of his friendships. He said that he does not want to talk to family members especially after his dad committed suicide and ‘people were greedy after the money’”.
The MA’s statement above does not adequately address the descriptors in the Guidelines.
The descriptor for a Class 2 rating reads: “Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
The descriptor for a Class 3 reads: “Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
That descriptor fits entirely with Mr Ingram’s circumstances. He has not only lost the majority of his friendships but has been unable to adequately care for his children, and has very little contact with them.
The separation from his wife was, as the appellant submitted, “tumultuous” indeed.
There was an AVO taken out by his ex-wife which the appellant breached twice for which he was incarcerated on two separate occasions.
Table 1.6 of the Guidelines provides: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking into account the claimant’s relevant medical history and all available and medical information …”. (Our emphasis.)
The MA does not appear to have considered Mr Ingram’s detailed statement and other evidence, particularly the medical evidence in making her assessment.
She certainly focussed on Mr Ingram’s “new” relationship with a woman in making her assessment.
Even if Mr Ingram had recently formed a new friendship or relationship, it is clear that his “previous established relationships [were] severely strained, evidenced by periods of separation or domestic violence…”
For these reasons, we agree that the MA erred in assessing a Class 2 rating, and that a Class 3 rating is consistent with all of the evidence.
Turning next to the category of social and recreational activities, the MA assessed a Class 2 and said:
“Mr Ingram reported that he used to enjoy water skiing, golf, bike riding and footy with his kids. He has not engaged in these activities mostly because of the pain in his hands and it ‘hurts’ to do these activities. He is not able to do maintenance work around the home as well and he experiences pain which he enjoyed doing [sic] earlier. He has now started going out to the pub for dinner with his girlfriend and is able to go out for walks as well.”
The descriptor for a Class 2 reads: “Mild impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved (e.g. dancing, cheering favourite team).”
For a Class 3 it reads: “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.”
The clinical records from the Narooma Medical and Specialist Centre reveal that Mr Ingram had left forearm and wrist problems in 2019 which continued for some time.
He appears to have had a compensation claim for these injuries described as cubital fossa syndrome and carpal tunnel syndrome and came to surgery.
On 18 August 2021 the entry reads: “Called for pain the discomfort for affecting the arm affecting the right arm. Started a while ago but very bothersome now.”
On 2 May 2022 the entry reads: “Going well but pain is still bothersome. Worried about mental health as well.”
On 23 June 2022 the entry reads: “Here for scripts. Going well on the medication. Pain is bothersome affecting ADL.”
Subsequent entries throughout 2022 refer to these physical problems.
On 31 May 2023 it was noted that Mr Ingram had “3 different WC claims.”
There were however regular references to his psychological problems throughout the entries.
We have carefully considered the appellant’s submissions and the decision in Tagg to which he has referred.
In the present case, it is clear that Mr Ingram had significant physical impairments which as one entry noted, impacted on his “ADL’s.”
We agree with the appellant that the MA failed to provide any adequate reasons for her assessment however, even allowing for that, the evidence does not support a Class 3 rating.
There is no evidence to suggest that Mr Ingram needs a support person to go out, nor that he needs “prompting” to go out.
He certainly appears to be relatively quiet and withdrawn but he is still able to go out on occasions for example to a pub and with a friend. According to the worker he has met his new female friend twice in the past week or so.
As in Tagg, Mr Ingram has both physical and psychological injuries.
The clinical notes clearly demonstrate that physical impairments have certainly restricted his activities.
Dr Chow saw Mr Ingram on 29 September 2022, some 18 months prior to the MA.
He simply recorded: “Mr Ingram is not engaging in hobbies or activities. He is not engaging socially.”
A Medical Assessor is not bound by the opinions of other medical specialists, although of course they do form part of the evidence.
Having said that, we do not agree that the MA erred in her assessment in this category for the reasons set out above.
The final aggregate score is thus 2,2,2,3,3,5, with a median score of 3.
This translates to 19% WPI.
The MA added 2% for the effects of treatment which we note has not been the subject of appeal by either party although the Appeal Panel would view this degree of impairment as unlikely to meet the three requirements under Paragraph 1.32 of the guidelines for such an adjustment.
Thus the final WPI is 21%.
For these reasons, the Appeal Panel has determined that the MAC issued on 8 March 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W570/24
Applicant:	David Ingram
Respondent:	Veolia Recycling & Recovery Pty Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Surabhi Verma and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
1. Psychological Injury	03/03/2020	Chapter 11 Guidelines 11.1-11.3 11.4-11.6	Guidelines 11.11,11.12 Table: 11.1,11.2,11.3, 11. 5,11.5,11.6	21%	N/A	21%
Total % WPI (the Combined Table values of all sub-totals)					21%

[2024] NSWPICMP 380

14 June 2024