Joe v Sydney Trains

DETERMINATION OF APPEAL PANEL
CITATION:	Joe v Sydney Trains [2022] NSWPICMP 237
APPELLANT:	Michael Joe
RESPONDENT:	Sydney Trains
APPEAL PANEL:	Member William Dalley Dr Nicholas Glozier Dr Michael Hong
DATE OF DECISION:	26 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Allegation of incorrect criteria and demonstrable error in respect of assessment of three PIRS categories based upon the availability of fresh evidence, failure to properly consider Independent Medical Examiner (IME) report and incorrect recording of history; reliance on further statement contradicting history recorded by the Medical Assessor (MA) and additional IME report post-dating the Medical Assessment Certificate (MAC); admission opposed by the respondent; Held- the Panel declined to receive the fresh evidence on the basis of probable delay and possible unfairness to the respondent; the evidence could not be placed higher than to cavil with the matters recorded by the MA; Ross v Zurich Workers Compensation Insurance, Petrovic v B C Serv No 14 and Others, Lukacevic v Coates Hire Operations and Marina Pitsonis v Registrar of the Workers Compensation Commission applied; the respective assessments were open to the MA on the evidence; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 29 November 2021 Michael Joe lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 1 November 2021.
The appellant relies on the following grounds of appeal under section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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 grounds of appeal on which the appeal is made.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The appellant, Mr Joe, commenced employment with the respondent, Sydney Trains, (formerly State Rail Authority) in 1990, rising to the position of Rail Maintainer (Level 2).
Mr Joe suffered a psychological injury resulting from his employment, deemed to have occurred on 7 August 2018. He consulted his general practitioner and received counselling from a clinical psychologist.
On 28 April 2020 Mr Joe was assessed by a psychiatrist, Dr Richa Rastogi, at the request of Mr Joe’s solicitors. Dr Rastogi diagnosed Mr Joe as suffering an adjustment disorder with depressed mood and anxiety which she felt arose from his employment. She assessed
Mr Joe as suffering 15% whole person impairment (WPI).
Mr Joe’s solicitors made a claim for lump-sum compensation pursuant to section 66 of the Workers Compensation Act 1987 in accordance with Dr Rastogi’s assessment. The insurer disputed liability and an Application to Resolve a Dispute was filed in the Personal Injury Commission. Ultimately, agreement was reached as to psychological injury having occurred and the claim was referred to the Medical Assessor for assessment, subject to Mr Joe undergoing examination by an independent medical expert appointed by the insurer.
The insurer arranged for Mr Joe to be examined by a psychiatrist, Dr Doron Samuell, who examined Mr Joe on 5 August 2021. Dr Samuell concluded that Mr Joe had not suffered any diagnosable mental health condition as a result of his employment.
Mr Joe was then examined by the Medical Assessor on 29 September 2021. The Medical Assessor diagnosed Mr Joe as suffering an adjustment disorder with depressed mood and anxiety and assessed 7% WPI. That assessment was made in accordance with Chapter 11 of the Guidelines using the psychiatric impairment rating scale (PIRS).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant submitted that the Panel should find that error was established and re-examine
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792.
Mr Joe. The Panel accepts that, in the absence of a finding of error, it is not open to the Panel to conduct a further examination.[1] 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 sufficient materials were available to the Panel to enable the Panel to determine the appeal.

Fresh evidence

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.
The appellant seeks to admit the following evidence:
(a) report by Dr Richa Rastogi dated 29 November 2021, and
(b) affidavit of the appellant sworn 30 November 2021.
The appellant submits that the evidence is relevant to establish that the Medical Assessor relied on outdated and incorrect information when assessing the areas of function, “self-care and personal hygiene”, “social functioning” and “concentration, persistence and pace”. The appellant makes no submissions as to why this information was not available prior to the medical assessment in so far as it relates to an asserted deterioration of Mr Joe’s condition between the date of his examination by Dr Rastogi to the time of his examination by the Medical Assessor.
The respondent opposes the introduction of that material, noting that the appellant does not seek to rely upon the additional material as a ground of appeal pursuant to section 327(3)(b) of the 1998 Act. The respondent submitted that Mr Joe’s affidavit related to the process whereby the Medical Assessor made his assessment and should not be received in accordance with the reasoning in Petrovic v B C Serv No 14 Pty Ltd and Others[2] (Petrovic), Marina Pitsonis v Registrar of the Workers Compensation Commission & Anor[3] (Pitsonis) and Lukacevic v Coates Hire Operations Pty Ltd[4] (Lukacevic).
[2] [2007] NSWSC 1156 per Hoeben J at [31].
[3] [2008] NSWCA 88 per Mason P at [59], McColl and Bell JJA agreeing.
[4] [2011] NSWCA 1122 per Handley JA at [111] and Hodgson JA at [76] - [78] and [80].
The report of the appellant’s independent medical expert, Dr Rastogi, dated 29 November 2021, provides a further assessment of Mr Joe after consideration of “the statement” by
Mr Joe which may or may not be a draft of the affidavit sworn 30 November 2021.
With respect to the area of function “self-care and personal hygiene”, Dr Rastogi states that Mr Joe would “qualify for Class 3” in the light of the additional material although she does not explain the basis for this reassessment.
With respect to the area of function “social functioning”, Dr Rastogi says that Mr Joe “qualifies for class 3 as stated in my previous report”. That statement is contradicted by the PIRS Table provided in the report by Dr Rastogi which assesses this area of function as “mild”, warranting Class 2. The latter assessment is consistent with Dr Rastogi’s previous report.
Dr Rastogi also states that Mr Joe now qualifies for Class 3 with respect to “concentration, persistence and pace”. This assessment appears to be based on documents which may or may not correspond with the documents provided to the Panel. Assuming the “grounds of appeal” referred to by Dr Rastogi are the draft submissions of the appellant, then that document sets out what the appellant felt should be the outcome of the review by Dr Rastogi, stating with respect to each of the disputed areas of function; “it is suggested that the rating should be 3”.
The affidavit, sworn the day after the further report of Dr Rastogi, sets out assertions which are said to establish a deterioration “between the time of Dr Rastogi’s assessment on 28 April 2020 and the time of the assessment by the Medical Assessor on 1 November 2021”. Mr Joe also deposes that his recollection of the history provided to the Medical Assessor is at odds with the facts recorded by the Medical Assessor in the MAC.
The admission of fresh evidence on appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance[5] (Ross). In Ross, the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes(1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
[5] [2002] NSWCCPD 7.
So far as it relates to allegations that the Medical Assessor incorrectly recorded Mr Joe’s history upon examination, the Panel accepts that this would not have been available until after publication of the MAC. However, the affidavit also seeks to provide further evidence with respect to Mr Joe’s difficulties with activities of daily living. In the affidavit Mr Joe provides further, detailed, evidence relating to self-care and personal hygiene, social functioning and concentration, persistence and pace, deposing that he recalls telling the Medical Assessor that his concentration span was limited to 30 seconds, and not 30 minutes as recorded by the Medical Assessor.
In Petrovic v B C Serv No 14 and Others[6] (Petrovic) Hoeben J held that an Appeal Panel has the discretion to accept late evidence if it met the test set out in section 328(3) of the 1998 Act. In that case the appellant worker sought to introduce into evidence two statutory declarations dealing with the way in which the examination process had been conducted. Hoeben J held that, to meet the requirements of section 327(3)(b) the evidence sought to be introduced was restricted to “information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment”.[7]
[6] [2007] NSWSC 1156.
[7] At [31].
In Lukacevic v Coates Hire Operations[8] (Lukacevic ) Hodgson JA said (Handley JA agreeing, Giles JA dissenting):
“[77] An appeal panel (AP) dealing with an appeal brought on that basis could properly determine that it should not entertain and rule on this kind of dispute between the worker and the AMS concerning what occurred on the occasion of the worker's examination by the AMS. It could then determine that, in those circumstances, the only effective way of dealing with the appeal would be for a member of the AP to conduct another medical examination: WIM Act s 324(3). This procedure itself gives rise to the possibility of procedural unfairness: see Maricic v The Registrar, Workers Compensation Commission [2011] NSWCA 42.
A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
[8] [2011] NSWCA 112 dear.
As noted by the respondent, the Court of Appeal in Pitsonis said:
“Those dependent on the applicant showing that the doctor failed to record or to record correctly things she had told him face a double difficulty. They are not demonstrable on the face of the Certificate. And they seek, in effect to cavil at matters of clinical judgment in that matters unrecorded are likely to be matters on which the specialist placed no weight. The same can be said about factual matters recorded in one part of the Certificate that did not translate into the decision favourable to the applicant now contended for.”[9]
[9] Per Mason P at [59].
The further report of Dr Rastogi can carry little weight. It was made without further examination of Mr Joe and depends upon acceptance of a series of facts which are largely at odds with those recorded by the Medical Assessor. There is an obvious error with respect to the area of function “social functioning” in which Dr Rastogi incorrectly states that her assessment is consistent with her previous report.
No explanation is offered as to why, if it was seriously alleged that Mr Joe’s psychological condition had deteriorated since he was assessed by Dr Rastogi in April 2020, an updated examination and report was not obtained prior to examination by the Medical Assessor. That course was clearly open to the appellant. The Panel is satisfied that the information in the affidavit and the further report of Dr Rastogi are not information that was not available prior to the examination and they cannot satisfy the requirements of section 328 (3) of the 1998 Act. The appellant does not argue that the material is “fresh evidence” admissible pursuant to section 327(3)(b) of the 1998 Act.
If the evidence were to be admitted, fairness would require that the additional evidence be drawn to the attention of the Medical Assessor, so far as it relates to the history provided to him, and a statement obtained in response. The respondent would then have to be provided with the opportunity to obtain further evidence in reply. The Panel would then be faced with the task of deciding which version of the facts should be accepted, a task that the Panel is not well-equipped to perform. There would necessarily be delay and the possibility of unfairness to the respondent. The respondent has objected to the admission and the Panel is satisfied admission would give rise to unacceptable delay.
The Appeal Panel determines that the evidence should not be received on 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.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

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, in the light of the assertions by Mr Joe as to the history provided by him to the Medical Assessor upon examination, an assessment of moderate impairment (Class 3) should have been assessed with respect to the areas of function “self-care and personal hygiene”, “social functioning” and “concentration, persistence and pace”.
In reply, the respondent submits that the additional evidence upon which the appellant’s submissions rests should not be admitted and, accordingly, there would be no basis upon which to find reliance on incorrect criteria or demonstrable error. It was open to the Medical Assessor, on the evidence available to him, to assess mild impairment (Class 2) in respect of each of the areas of function which are the subject of the appeal.

FINDINGS AND REASONS

The procedures on appeal are contained in section 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[10] 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.
[10] [2006] NSWCA 284
The Medical Assessor recorded that Mr Joe had reported the following work-related symptoms:
(a)    anxiety with depressed mood;
(b)    severe suicidal thoughts of harming himself in his partner without intent to act on his thoughts;
(c)    loss of appetite;
(d)    poor sleep;
(e)    loss of self-esteem;
(f)    angry outbursts directed towards his partner;
(g)    increased social isolation and avoidance of socialising with his friendship circle;
(h)    loss of interest in following his sport of hunting and fishing;
(i)    poor concentration with inability to maintain his concentration for short periods;
(j) loss of libido;
(k)    stopped his involvement in all family celebrations, and
(l)    loss of his friendship circle.
The Medical Assessor recorded that Mr Joe had reported that he was skipping showering and meals with poor appetite. He ate preprepared food or takeaway food and appeared unkempt at the time of assessment being ungroomed with his hair uncombed. The Medical Assessor noted that Mr Joe did not participate in cleaning the home and had given up his recreational activities.
Mr Joe reported that he had stopped entertaining friends at home and no longer participated in family occasions. His relationship with his wife was said to be strained with verbal arguments although angry thoughts towards himself and his wife had resolved over recent months. Mr Joe did not expect to separate from his partner.
Mr Joe reported becoming frustrated and easily agitated with impaired concentration. The Medical Assessor recorded;
“He can concentrate for periods up to 30 minutes at a slower pace. He had lost interest in watching media that lasts longer than 30 minutes, as his concentration fatigues and he develops recurrent headaches.”
The Medical Assessor recorded that Mr Joe had presented as “anxious, agitated and unkempt”. He had become frustrated and agitated in the course of examination with outbursts of anger. Mr Joe complained of poor concentration impaired by frustration and agitation.
The Medical Assessor agreed with Dr Rastogi that Mr Joe suffered an adjustment disorder with mixed anxiety and depressed mood. He noted that Mr Joe had found alternative employment in what the Medical Assessor described as a “lesser role” but had since suffered a physical injury which had prevented him from working at that employment.

The Medical Assessor set out substantial portions of Mr Joe’s statement dated 19 September 2019, noting that Mr Joe stated that he had suffered stress anxiety and depression as a result of incidents in the workplace. The Medical Assessor set out the relevant paragraphs from the statement relating to the effects of the psychological injury:
“The situation has affected my health, my relationship with my partner and my children. During this time, I have had sleep problems, I am very angry and confused because of my inability to concentrate on anything. I am suffering from high blood pressure, I have sleep problems, including nightmares and other issues.”
The Medical Assessor also noted the reports of Dr Rastogi dated 28 April 2020, recording the symptoms and noting that psychiatrist’s assessment of impairment. He also noted the report of Dr Samuell dated 17 August 2021, the further report of Dr Rastogi dated 20 September 2021, as well as the other documentary evidence.
The Medical Assessor assessed Mr Joe as suffering 7% WPI. That assessment was made on the basis of assessment of the six areas of function which the Medical Assessor was required to consider pursuant to paragraph 11.11 of the Guidelines as follows:
(a)    self-care and personal hygiene – class 2 (mild impairment);
(b)    social and recreational activities – class 3 (moderate impairment);
(c)    travel – class 2 (mild impairment);
(d)    social functioning – class 2 (mild impairment);
(e)    concentration, persistence and pace – class 2 (mild impairment), and
(f)    employability – class 3 (moderate impairment).
The appellant submits that, in respect of the areas of function “self-care and personal hygiene”, “social functioning” and “concentration, persistence and pace”, the Medical Assessor should have assessed Mr Joe as having moderate impairment (Class 3).
The appellant prefaces his submissions:
“The Worker takes issue with some of the recorded history as taken by the Medical Assessor (“MA”) and the Assessor’s reasonings in the application of various classes to the respective PIRS categories. The Worker says that the MA identifies some areas of his presentation in these categories which the Worker maintains have deteriorated in the period between Dr Rastogi’s assessment on 28 April 2020 and the assessment by the MA on 1 November 2021 [detailing the three areas of function which are the subject of the appeal].”
The appellant submits that the Medical Assessor “has erred in his failure to fully consider the opinion of Dr Rastogi’s report, relied upon by the appellant, qualified for the appellant dated 28 April 2020” and “The appellant submits that his psychological condition has deteriorated between the assessment by Dr Rastogi on 28 April 2020 and the time of the assessment by the Medical Assessor on 1 November 2021”, with reference to the areas of function which are the subject of the appeal. The appellant submitted that the Medical Assessor had incorrectly recorded Mr Joe’s “instructions to the Assessor” in respect of each of those categories. The appellant set out what he said was the situation with respect to those categories.
It is convenient to review the assessment and relevant evidence for each of those areas of function separately.

Self-care and personal hygiene.

In the PIRS rating form the Medical Assessor recorded his reasons for assigning class 2 (mild impairment) to this area of function:
“Mr Joe reported that he would skip showering and skip meals as his appetite was poor. His interest in his nutrition was poor. He appeared unkempt at the time of this assessment. His (sic) was ungroomed and his hair uncombed. He does not participate in cleaning the house, bathroom or bedroom. He does not help with vacuuming, leaving these chores to his partner.”
The appellant submitted that he had informed the Medical Assessor that he could go four to five days without showering and that he needed encouragement from his wife to shower. He said that he would lie in bed all day and that the bedroom smelled. He prepared no meals. On that basis the appellant submitted that the appropriate assessment was moderate impairment (Class 3).
The respondent in its submissions drew attention to the requirement that demonstrable error is “an error which is readily apparent from an examination of the medical assessment certificate and the documents referring the matter to the AMS for assessment)”[11] and referred to the judgement of Mason P in Pitsonis as noted above.
[11] Per Hoeben J in Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939 at [39].
The respondent submitted that the appellant had not demonstrated that the Medical Assessor had “failed to address the guides or to apply the criteria stipulated in them”[12] in order to establish the adoption of incorrect criteria.
[12] based upon the decision of Mason P in Pitsonis at [43]
The respondent noted the class descriptors found in Table 11.1. The relevant descriptors are:
“Class 2 – Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on takeaway 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) two – three times per week to ensure minimum level of hygiene and nutrition.”
Paragraph 11.12 of the Guidelines provides that the examples of activities are examples only.
In Ferguson v State of New South Wales[13] (Ferguson), Campbell J gave guidance as to the appropriate approach to consideration of the assessment made by a Medical Assessor pursuant to chapter 11 of the Guidelines. His Honour said:
“[23] By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales. The Appeal Panel said, ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37]”.
[13] [2017] NSWSC 887
In Jenkins v Ambulance Service of New South Wales (Jenkins), Garling J also said:
“It was a matter for the clinical judgment of the AMS [Medical Assessor] to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
The submissions of the appellant are based upon assertions of fact by Mr Joe that have not been admitted into evidence by the Panel. Applying the reasoning in Ferguson and Jenkins, the Panel is of the view that it was open to the Medical Assessor to assess Mr Joe as falling within Class 2 with respect of this area of function.
The Medical Assessor had the benefit of a comprehensive examination of Mr Joe. His findings agreed with the claim put forward by Mr Joe which was based upon the assessment of Dr Rastogi in her report of 28 April 2020. That claim included an assessment of mild (Class 2) impairment with respect to this area of function. Dr Rastogi recorded at that time “Mild impairment as skips meals showers on days off and needs prompting, self-care limited”.
No adoption of incorrect criteria or demonstrable error has been established in respect of the assessment of this area of function.

Social functioning.

The appellant submitted that a Class 3 (moderate impairment) assessment is appropriate:
“The Worker suggests the MA has understated the position of his relationship with his wife. He informed the MA that the relationship was severely strained. He and his wife sleep in separate bedrooms. The anger issues are not resolved. His wife wants to leave him but she is a nurse by occupation and is compassionate and worries what would happen to the Worker if she left.”
In his reasons for assessment of impairment in this area of function as Class 2 (mild impairment), the Medical Assessor said:
“Mr Joe reported his relationship with his wife had become strained due to the onset of this work-related injury. He reported that there were verbal arguments. He reported his angry thoughts towards himself, and his wife had resolved over recent months. He was not expecting separation or estrangement from his partner or children.”
Dr Rastogi, in her report dated 28 April 2020, assessed Mr Joe as having mild impairment in this area of function. Her assessment was: “mild impairment as existing relationships strained with family with feeling of being a burden, relationship with partner impacted and lost friendships”. There was no evidence to suggest that the situation had deteriorated.
The relevant descriptors in Table 11.2 are as follows:
“Class 2 – Mild impairment: existing relationship strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3 – Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
Again, the submissions of the appellant are based upon assertions which have not been admitted into evidence for the reasons set out above. The assessment of Mr Joe as falling within Class 2 in this area of function was open to the Medical Assessor on the evidence available to him and accorded with the report of Mr Joe’s independent medical expert,
Dr Rastogi upon which his claim was based. There is no suggestion of violence or separation having occurred. Once again, applying the reasoning in Ferguson and Jenkins, the Panel is of the view that no use of incorrect criteria or demonstrable error has been established in respect of this area of function.

Concentration, persistence and pace

The Medical Assessor reported his reasons for assessing mild impairment (Class 2) in respect of this area of function were:
“Mr Joe reported that he becomes frustrated and easily agitated. He suffered from intrusive distressing angry ruminations that impairs his concentration. He can concentrate for periods up to 30 minutes at a slower pace. He has lost interest in watching media that lasts longer than 30 minutes, as his concentration fatigues and he develops recurrent headaches.”
The appellant submitted that he should have been assessed as suffering moderate impairment (Class 3) in respect of this area of function. That assessment is based upon an assertion that the Medical Assessor had incorrectly recorded the history which he provided at examination and that he told the Medical Assessor that he lost concentration after 30 seconds and that he did not read newspapers or magazines.
That submission is based upon evidence that was not admitted for the reasons set out above.
The appellant also submitted that the Medical Assessor had “erred in his failure to fully consider the opinion of Dr Rastogi’s report, relied upon by the appellant qualified for the appellant dated 28 April 2020”. In that report Dr Rastogi assessed Mr Joe as having moderate impairment (Class 3) with respect to this area of function. Dr Rastogi reported “Moderate impairment as continues to have concentration lapses, doing labouring job but struggles with multitasking and organisation, after 15 – 20 minutes”.
The respondent submitted that Mr Joe’s claim that he lost concentration after 30 seconds was inconsistent with his ability to drive and to undertake part-time employment in work carried out on roofs. The respondent noted the relevant provisions of the Guidelines with respect to this area of function:
“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 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 (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The Medical Assessor noted the report and assessment of Dr Rastogi in the MAC. He quoted portions of the further report dated 20 September 2021, recording the then current symptoms.
The Medical Assessor had the advantage of observing at first hand Mr Joe’s ability in respect of this area of function over the course of his examination. The Medical Assessor noted that Mr Joe presented as “anxious, agitated and unkempt”. He demonstrated irritability and was agitated during the assessment. The Medical Assessor noted that Mr Joe’s concentration was impaired by frustration and agitation.
It is clear that the Medical Assessor considered Mr Joe’s ability to demonstrate concentration persistence and pace in the course of his examination. He did note impairment in respect of this area of function but felt that it should be assessed as “mild” rather than “moderate”.
Although minds may differ as to the assessment, having regard to the Guidelines in Table 11.5, it was open to the Medical Assessor to assess Mr Joe as within Class 2 in respect of this area of function, having regard to the significance of the benefit of clinical examination recognised by Campbell J in Ferguson.
The Panel is satisfied that no adoption of incorrect criteria or demonstrable error has been made out in respect of this area of function.
The Panel is satisfied that, in respect of each of the areas of function addressed in the appeal, the assessment of impairment was open to the Medical Assessor on the evidence available to him at the time of examination and no error or adoption of incorrect criteria has been made out. For these reasons, the Appeal Panel has determined that the MAC issued on 1 November 2021 should be confirmed.

[2022] NSWPICMP 237

26 May 2022