Kent v Trustees for Catholic Education Office Archdiocese of Canberra and Goulburn
[2024] NSWPICMP 806
•28 November 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Kent v Trustees for Catholic Education Office Archdiocese of Canberra and Goulburn [2024] NSWPICMP 806 |
| APPELLANT: | Bradley Thomas Kent |
| RESPONDENT: | Trustees for Catholic Education Office Archdiocese of Canberra and Goulburn |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 28 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Psychological injury; appellant worker alleged assessment on the basis of incorrect criteria and demonstrable error in the making of assessments under five of the psychiatric impairment rating scale categories; Held – Appeal Panel found error in one category; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 August 2024 the worker, Mr Bradley Thomas Kent (the appellant), lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 August 2024.
The appellant relies on the following ground 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 grounds 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant requested that he undergo a re-examination. However, as a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although the Appeal Panel found error, there was sufficient material before the Appeal Panel to enable a determination to be made.
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.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 20 July 2022
· Body parts/systems referred: Psychiatric and psychological disorders
· Method of assessment: Whole person impairment”
The Medical Assessor issued a MAC certifying as follows:
Body Part or system
Date of Injury
Chapter,
page and paragraph number in NSW workers compensation guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
1. Psychiatric injury
20 July 2022
Chapter 11, page 54
Chapter 14, pg 361-365
6
0
6
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)
6
The assessment was based on his assessment under the psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows:
“Table 11.8: PIRS Rating Form
Name
Bradley Thomas Kent
Claim reference number (if known)
W4488/24
DOB
xxxx
Age at time of injury
53
Date of Injury
20 July 2022
Occupation at time of injury
Teacher
Date of Assessment
22 July 2024
Marital Status before injury
Single
Psychiatric diagnoses
1.
2.
3.
4.
Psychiatric treatment
Is impairment permanent?
Yes
No (circle one)
PIRS Category
Class
Reason for Decision
Self-Care and personal hygiene
2
Since the subject injury, he said he said he is showering 3-4 times a week, and he has been cooking though he has been making simple meals like a toasted sandwich instead. He said he has been cleaning less frequently and about once a week or fortnight, and he has been doing his laundry once a week or as needed.
As he can still care for himself, he has mild impairment.
Social and recreational activities
2
Since the subject injury, he said he has a similar amount of friends, whom he would see to a comparable frequency as prior to the subject injury. He later said he sees them less frequently, about once a month, particularly with a friend who has been tied up with his father’s death.
Since the subject injury, he said he still enjoys walking regularly. He has been trying to improve his farm to he can sell it.
As he has been seeing friends, to a comparable frequency as pre-injury, he has mild impairment.
Travel
1
He has been going shopping once a week or as needed. He said he has been driving every day and he can drive alone, and he said he can drive for up to an hour. He said he is unsure if he can drive to new places or faraway places, though he can become anxious driving long distances on country roads, and worse compared to pre-injury.
As he can still drive long distances, albeit with some anxiety, he has minor impairment.
Social functioning
1
Since the subject injury, he said he has been in touch with his siblings on occasions.
Since the subject injury, he said he has a similar amount of friends, whom he would see to a comparable frequency as prior to the subject injury. He later said he sees them less frequently, about once a month, particularly with a friend who has been tied up with his father’s death.
Since the subject injury, he said he still enjoys walking regularly. He has been trying to improve his farm to he can sell it.
As his relationship with his family and friends have been substantially comparable to his pre-injury function, he has minor impairment.
Concentration, persistence and pace
3
Since the subject injury, he said his concentration has been poor and he rarely reads, and he has been generally reading magazines and short newspaper articles rather than books.
He was alert, appeared grossly cognitively intact and was able to sustain his concentration for the duration of the assessment.
As he has struggled with his concentration, and not to the extent to being observable in a brief conversation, he has moderate impairment.
Employability
3
Since the subject injury, he said he has done some farm work in 2022 with milking cows at a week at a time to help out a person who had fallen ill. He has been going to his farm 4 to 5 times a week, to check his sheep, repairing roads and fixing the fences, and he spends from 8.30am to 4.30pm.
As he can still work in a less stressful job, almost fulltime, he has moderate impairment.
Score
Median Class
1
1
2
2
3
3
=2
Aggregate Score Impairment
Total
%
+1
+1
+2
+2
+3
3
12
6
The worker appealed.
In summary, the appellant submitted that the Medical Assessor made assessments on the basis of incorrect criteria and/or made demonstrable errors in the assessments he made under five of the PIRS categories, as follows:
(a) in assessing class 2 for social and recreational activities when he should have assessed a class 3,
(b) in assessing class 1 for travel when he should have assessed a class 2,
(c) in assessing class 1 for social functioning when he should have assessed a class 2,
(d) in assessing class 3 for concentration, persistence and pace when he should have assessed a class 4, and
(e) in assessing class 3 for employability when he should have assessed a class 4 or 5.
In summary, the respondent employer Trustees for Catholic Education Office Archdiocese of Canberra and Goulburn (the respondent) submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self- report can be properly evaluated in the context of other evidence before the Medical Assessor.
The appellant complains on appeal that he had researched the medical assessor that he had been given notice about but on the day it was a different medical assessor and this put him off. This is an irrelevant consideration. The President of the Personal Injury Commission has the power to refer the matter to any of the approved Medical Assessors and there is no irregularity to be found in the appointment of the Medical Assessor who assessed the worker in this instance.
The Medical Assessor took a history which he recorded as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
He said that he had been teaching a year 9 Science Class, and he was going around the room, looking at the students doing their work. He said he looked at a student’s work, and she got up and walked out of the classroom, and as she was walking out she said “get out of my personal space”. She had not said anything prior to that to him.
He said afterwards, two other students sitting next to her walked out as well. He had spoken to the principal afterwards, and the principal said he would be in touch. The next day or so, the principal emailed him asking what happened, and Bradley emailed him back about the incident. The principal asked him to contact the Catholic Diocese, and he contacted the person at the Diocese, but did not hear back for a month. She then called him back a month later, after interviewing many students at school, and no one had spoken to him. She then sent him the allegations 10 weeks after the incident, and he replied to them. He then had various email correspondence and a phone conference about the allegations with someone else. His union representative was with him, and he said the meeting became hostile, and later he was accused of lying on his work application, which he said he disproved with his application form. He said they had contacted the Education Department, without his knowledge. He later had another email from someone else, attacking his integrity and personality. He said that the main cause of his distress at the perceived lack of procedural fairness into the investigation by the Catholic Diocese, without seeking his input, and not caring for him, and the lack of consent of transfer of information from the Education Department.
He said soon after being told he was not able to return to school, he developed psychological symptoms, including depressed mood, anxious mood, having a feeling of disbelief, feeling terrible and difficulties with concentration.
He said he saw a psychologist around July 2023 on two occasions in Wagga Wagga, though he resigned from the business. He met another psychologist via Zoom, and he saw another psychologist from Newcastle. Altogether, he has had four psychology sessions. He found it of no benefit.
He has not seen a psychiatrist. He has been on Sertraline 50mg, and he said it was started after the subject injury. He said it has been of variable benefit, or overall there has not been any clear benefit.
Present treatment:
He is currently on Sertraline 50mg daily.
He is seeing his GP once a month.
He has been in touch with a psychologist to try to arrange an appointment, and they have yet to get back to him.
There are no further plans for treatment escalation or medication changes.
He is motivated for further escalation of treatment, but he is not sure how to best go about this.
Present symptoms:
He said he has been feeling very depressed most of the time. He said he has not been able to enjoy much. He said he has poor sleep, and he finds himself waking up in the middle of the night and struggling to return to sleep. His appetite has been generally low, and he doesn’t have the drive to eat healthy food, and his weight has increased by a few kilograms. His energy has been low. His concentration has been poor, and he rarely reads, and he has been generally reading magazines and short newspaper articles rather than books. He has been feeling pessimistic frequently, and he has been having suicidal thoughts, without plans. He said he has a lot of anxiety about the future of his career and his finances, though he doesn’t have panic attacks.
He said that he has the insurer trying to get him to work in unfamiliar work fields, such as being a shearer.
Details of any previous or subsequent accidents, injuries or condition:
He denied any life stressors or injuries since the subject injury.
Prior the subject injury, he said he has had depression in 2018, in the context of drought, losing the roof to her house, and his mother’s illness, whom he was caring for. He said he had seen the doctor incidentally while seeing the doctor for another reason. He said he had not had any medication treatment or psychological treatment. I raised references to him being on treatment at the time, but he said he cannot recall having treatment at the time. He said he had recovered from the psychological symptoms after a few weeks.
I asked if there was a similar episode from 2015-2017 when there were similar allegations against him. He acknowledged that he had a similar episode in 2015, not in 2017. He said in 2015, he was treated terribly by the teacher and that he was not able to get another job, so he was depressed for a couple of weeks or so. He said he had seen a psychologist then.
Prior to the subject accident, he denied any substance use, and he had occasional alcohol use. He said he has been drinking alcohol a couple of beers once a week, and he denied any substance use.
General health:
Prior to the subject injury, he said he had knee surgery in 2015 and a testicular removal in 2017.
Work history including previous work history if relevant:
He has worked as a Pool inspector and lifeguard, and various other short-term jobs at university. He has been working as a teacher in April 1990. He said he has had a hobby farm at Temora since 2013, and he said on that farm he runs some sheep on pasture, and he has previously hired people to help him in various tasks at the farm. He would spend weekends on the farm.
Social activities/ADL:
He is currently 56 years old and lives alone in Temora since 2012.
He has four siblings, and no children.
Prior to the subject injury, he said he rarely sees his siblings, who live far away. His mother died 7 months prior to the subject injury. He said he has not had a partner for over 20 years.
Since the subject injury, he said he has been in touch with his siblings on occasions.
Prior to the subject injury, he said he had many friends, mainly outside Temora. He said he had a few friends in Temora. He said he would see his friends once a month or so. He said they would talk on the phone or catch up for beer.
Since the subject injury, he said he has a similar amount of friends, whom he would see to a comparable frequency as prior to the subject injury. He later said he sees them less frequently, about once a month, particularly with a friend who has been tied up with his father’s death.
Prior to the subject injury, he said he would enjoy exercising by riding a push-bike, doing some reading, watching sports and working on his hobby farm.
Since the subject injury, he said he still enjoys walking regularly. He has been trying to improve his farm to he can sell it.
Prior to the subject injury, he would shower most days, less in winter. He said he would cook nearly every night, and he would do the laundry as needed, and he would also be involved in cleaning the house as needed. He would shop for groceries once a week. He said he would be able to drive without restrictions.
Since the subject injury, he said he said he is showering 3-4 times a week, and he has been cooking though he has been making simple meals like a toasted sandwich instead. He said he has been cleaning less frequently and about once a week or fortnight, and he has been doing his laundry once a week or as needed. He has been going shopping once a week or as needed. He said he has been driving every day and he can drive alone, and he said he can drive for up to an hour. He said he is unsure if he can drive to new places or faraway places, though he can become anxious driving long distances on country roads, and worse compared to pre-injury.
Prior to the subject injury, he said his concentration was good, and he said he could read books for up to an hour or two hours.
Since the subject injury, he said his concentration has been poor and he rarely reads, and he has been generally reading magazines and short newspaper articles rather than books.
Prior to the subject injury, he said he was working as a teacher, teaching Primary and High School. He said he was working on a casual basis, but he was working there most days of the week. He had worked as a teacher since 1990.
Since the subject injury, he said he has done some farm work in 2022 with milking cows at a week at a time to help out a person who had fallen ill. He has been going to his farm 4 to 5 times a week, to check his sheep, repairing roads and fixing the fences, and he spends from 8.30am to 4.30pm.
He denied any family history of psychiatric conditions.
He was born in Parramatta, and he denied any perinatal or developmental delays.
His mother stayed at home and his father worked at a paint shop. He described them as being fine parents. He completed High school and he studied Education. “
The appellant complains he “felt rushed”. The Appeal Panel is satisfied that an adequately detailed history was taken which is broadly consistent with the other evidence that was before the Medical Assessor. Medical Assessors have to obtain a focussed history and undertake a mental state assessment in a finite appointment time.
The Medical Assessor conducted a mental state examination which he recorded as follows:
“He presented as a casually dressed and reasonably groomed middle-aged bespectacled man. He had an expanded build and appeared to be his stated age. He engaged cordially in the assessment and provided relevant answers to questions asked, spontaneously supplying detail.
He told me he was feeling anxious and depressed most of the time.
He displayed a restricted range of emotional reactivity during the interview.
He spoke articulately and in a logical sequence most of the time, without much prompting, with intact prosody.
He has been frustrated with the process with his claim, and ongoing pessimistic thoughts of guilt, and suicidal ideations with no plans.
He was alert, appeared grossly cognitively intact and was able to sustain his concentration for the duration of the assessment.”
The Medical Assessor summarised the injury and his diagnosis as follows:
“• summary of injuries and diagnoses:
He has:
ØPersistent Depressive Disorder, with persistent major depressive episode, with anxious distress
· consistency of presentation
There were minor inconsistencies, which were addressed in the course of the assessment.”
The Medical Assessor explained his assessment as follows:
“My opinion and assessment of whole person impairment 6%, without any adjustments for effect of treatment, or deductions for pre-existing conditions.
In making that assessment I have taken account of the following matters:-
The information from the assessment and my observations of him, which can be found above, as well as information from the relevant documents, which have been summarised below:
The statement written by Bradley Kent, dated 18 January 2024.
He alleged that there was an incident in class that occurred on 28 June 2022 which resulted in further investigations by his employer. He was not returned to his usual employment and he felt he was not provided with sufficient information nor provided the opportunity to consent on notes provided to him and he was dismissed. This caused him to develop psychological symptoms including low mood, anxiety, irritability and insomnia.
The statement written by Bradley Kent, dated 23 May 2024.
The claimant asserted he had previously had stress and anxiety in 2018 after he lost his job while caring for his sick mother. He was not formally diagnosed with depression and was not placed on any medications for this and his symptoms subsided after receiving support from his general practitioner.
Clinical Progress notes, dated from 13 April 2022 to 1 December 2022.
On 13 April 2022, he attended his general practitioner’s practice. He appeared to have his depression controlled with Sertraline with a normal mood, normal self-esteem, no suicidal thoughts, no panic attacks and sleeping normally. He was on Sertraline 50mg daily. From 24 June 2022, he appeared for another follow up and he continued to appear stable in terms of his mental state on Sertraline. He represented from the alleged incident at school on 10 November 2022 regarding allegations against him by students and he was told he would not work again. There were possible previous allegations many years ago at a different school. He complained of significant anxiety and poor sleep and wanted to put in a claim for his mental health. He refused a Mental Health Plan but has appointments to see a counsellor through Catholic Care. He remained on Sertraline 25mg daily with a plan to increase to 50mg.
Certificates of capacity.
The certificates of capacity indicated that he was diagnosed with major depression. He had engaged in labouring roles three days in November 2022.
The report written by Dr Peter Whetton, psychiatrist, dated 30 January 2023.
He had a previous similar episode in 2015 to 2017, after allegations were made against him. He was treated with medication and counselling and he was asked to resign. He mounted a workers compensation claim in relation to this matter. There was no substance use history. There was no specific psychiatric diagnosis provided.
The report written by Dr Martin Allan, psychiatrist, dated 31 January 2024.
He has had previous depressive symptoms, stress and anxiety in the context of his mother’s declining health with financial stress in 2018 to 2019. He was treated with psychological therapy and Sertraline. Following the subject injury, he has attempted to engage with psychologists on several occasions. He continues to see his general practitioner on a regular basis. He was diagnosed with having a pre-existing Adjustment Disorder and current diagnosis if Major Depressive Disorder which was not a re-triggering, exacerbation or acceleration of any previous condition as the previous period of Adjustment Disorder had resolved and his current depression being related to his work related incidents. He has been on Sertraline 50mg but not engaged in any psychological therapy of substance. Self-care and personal hygiene were mildly impaired as he was living alone without supports, although less attentive to his self-care. Social and recreational activities was moderately impaired as he had no social life. Travel was mildly impaired, he could travel to local areas. Social relationship functioning was severely impaired. Concentration was moderately impaired. Adaptation was severely impaired. His whole person impairment was 22%.
Rehabilitation report, dated 15 February 2024.
He drives around eight kilometres a day. He suffers from broken sleep. He drinks five to six beers a week. He lives on his own in a hobby farm. He is independent with showering and dressing. He performs household chores regularly. He cooks meals in the evening and makes toast and a sandwich for breakfast and lunch. He does his laundry and shops regularly. He enjoyed running, riding a bike, going to the gym, swimming daily. He operates his farm, hiring workers to help. He has been attempting to read but finds it difficult due to poor concentration.
The report written by Dr Ashwinder Anand, psychiatrist, dated 18 March 2024.
The claimant was diagnosed with Major Depressive Disorder with prominent anxiety with a guarded prognosis with his employment being the main contributing factor. He had pre-existing psychiatric issue in 2018 at a time when he lost his job and was accused of improper conduct and caring for his sick mother. He was treated with psychological therapy and antidepressants at that time. He has been on Sertraline 50mg, waiting to see a psychologist and seeing his general practitioner, Dr Read. Self-care and personal hygiene was mildly impaired. Social and recreational activities was moderately impaired. Travel was mildly impaired. Social functioning was mildly impaired. Concentration was mildly impaired. Adaptation was moderately impaired. His whole person impairment was 6% with a pre-existing condition.
The report written by Dr David Read, general practitioner, dated 12 December 2022.
He was diagnosed with Adjustment Disorder although he considered Major Depressive Disorder as an alternative.
The report written by Dr David Read, dated 14 December 2023.
He was diagnosed with depression in December 2018, October 2019, July 2021 and April 2022. He considered that a more accurate diagnosis was Adjustment Disorder with low mood in the context of various stressors regarding a drought, his mother being in palliative care and her death. His current diagnosis was Major Depressive Disorder. Treatment has included antidepressant medication and psychological counselling referral. He did not have total incapacity for work, he was not physically disabled and would be capable of jobs that included manual labour.”
The Medical Assessor made brief comment on the other opinions as follows:
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
My assessment is more aligned with Dr Ashwinder Anand, with the details of my reasoning for each domain in the PIRS to be found in the PIRS worksheet.”
The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above.
The appellant complains that the Medical assessor has erred in respect of five out of the six categories assessed, namely Social and Recreational Activities, Travel, Social Functioning, Concentration, Persistence and Pace, and Employability.
The Appeal Panel cannot interfere with these ratings absent error by the Medical Assessor. The Appeal Panel cannot interfere with the rating because opinions might differ as to the best fit in each category. There must be error or assessment on the basis of incorrect criteria. The Appeal Panel will deal with each category complained about on appeal in turn.
In respect of Social and Recreational Activities, Table 11.2 of the Guides provides as follows:
Table 11.2: Psychiatric impairment rating scale – social and recreational activities
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2
Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3
Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4
Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5
Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.
The Medical Assessor assessed a mild impairment at class 2 with the following reasoning:
“Since the subject injury, he said he has a similar amount of friends, whom he would see to a comparable frequency as prior to the subject injury. He later said he sees them less frequently, about once a month, particularly with a friend who has been tied up with his father’s death.
Since the subject injury, he said he still enjoys walking regularly. He has been trying to improve his farm to he can sell it.
As he has been seeing friends, to a comparable frequency as pre-injury, he has mild impairment”.
The appellant submitted that a class 3 or moderate impairment should have been assessed.
The Appeal Panel can discern no error in the rating of a mild impairment. The appellant is undertaking regular social activity without the need for a support person. His social activities are not rarely undertaken but are regularly undertaken, about monthly, and are comparable to those undertaken prior to injury. He is also undertaking regular recreation activities such as running and swimming. Class 2 is the best fit and the Medical Assessor has assessed in accordance with the correct criteria and the Appeal Panel can discern no error.
In respect of Travel, Table 11.3 of the Guides provides as follows:
Table 11.3: Psychiatric impairment rating scale – travel
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2
Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3
Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
Class 4
Severe impairment: finds it extremely uncomfortable to leave own residence even with trusted person.
Class 5
Totally impaired: may require two or more persons to supervise when travelling.
The Medical Assessor assessed class 1 with the following reasoning:
“He has been going shopping once a week or as needed. He said he has been driving every day and he can drive alone, and he said he can drive for up to an hour. He said he is unsure if he can drive to new places or faraway places, though he can become anxious driving long distances on country roads, and worse compared to pre-injury.
As he can still drive long distances, albeit with some anxiety, he has minor impairment.”
The appellant submitted that a class 2 or mild impairment should have been assessed.
On the history taken by the Medical Assessor on the day of assessment, there is no deficit or a minor deficit consistent with variation in the normal population. Feeling anxious whilst driving long distances is not an impairment, and the appellant reports no travel limitations in his statement e.g. he can travel further but “struggles”. The Appeal Panel can discern no error in the assessment of class 1.
In respect of Social Functioning, Table 11.4 of the Guides provides as follows:
Table 11.4: Psychiatric impairment rating scale – social functioning
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
Class 2
Mild impairment: existing relationships 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.
Class 4
Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5
Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.
The Medical Assessor assessed class 1 with the following reasoning:
“Since the subject injury, he said he has been in touch with his siblings on occasions.
Since the subject injury, he said he has a similar amount of friends, whom he would see to a comparable frequency as prior to the subject injury. He later said he sees them less frequently, about once a month, particularly with a friend who has been tied up with his father’s death.
Since the subject injury, he said he still enjoys walking regularly. He has been trying to improve his farm to he can sell it.
As his relationship with his family and friends have been substantially comparable to his pre-injury function, he has minor impairment.”
The appellant submitted that the Medical Assessor should have assessed a mild impairment at class 2.
The Appeal Panel considers that irrelevant considerations such as enjoying walking and improving his farm have been taken into account in the assessment in this category. Social functioning is concerned with the quality of relationships. The Medical Assessor identifies less frequent contact at one stage and the statements indicate a reduction in social relationships. The Medical Assessor did not consider the evidence related to the appellant’s social impairment, noted in Dr Martin Allan’s assessment and in the report from IVJ & associates, dated 15/2/2024, “The vocational implications of injuries sustained by Mr Brad Kent” which noted the appellant:
“…has withdrawn socially, preferring not to deal with people. There have been allegations, and he has become distrustful and prefers not to have negative things said about him. He becomes irritable, agitated, hostile and aggressive and it becomes explosive, his anger can escalate from placid to extremely angry with little trigger”.
The report goes onto to make further mention of “social avoidance, social withdrawal and decrease in social engagement”.
The Appeal Panel considers that a mild impairment is the best fit and a class 2 is the more appropriate assessment in accordance with the criteria of the category of social functioning.
In respect of Concentration, Persistence and Pace, Table 11.5 of the Guides provides as follows:
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame. |
| Class 2 | Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache. |
| Class 3 | Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting. |
| Class 4 | Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services. |
| Class 5 | Totally impaired: needs constant supervision and assistance within institutional setting. |
Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace
The Medical Assessor assessed class 3 or moderate impairment with the following reasoning:
Since the subject injury, he said his concentration has been poor and he rarely reads, and he has been generally reading magazines and short newspaper articles rather than books.
He was alert, appeared grossly cognitively intact and was able to sustain his concentration for the duration of the assessment.
As he has struggled with his concentration, and not to the extent to being observable in a brief conversation, he has moderate impairment.”
The appellant submitted that a severe impairment or class 4 should have been assessed.
Assessment cannot be based on self-report alone, although the appellant’s reported ability to read newspaper articles exactly matches a class 3 descriptor. The Medical Assessor has to make an independent assessment on the day of examination using his clinical expertise, and specifically noted that the appellant’s concentration on assessment did not match the criteria for a severe impairment. The Medical Assessor has made an independent assessment on the day of examination and has based his assessment on the correct criteria and the Appeal Panel can discern no error in the assessment of class 3 which is the best fit.
In respect of Employability, Table 11.6 of the Guides provides as follows:
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training. The person is able to cope with the normal demands of the job. |
| Class 2 | Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required). |
| Class 3 | Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful). |
| Class 4 | Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic. |
| Class 5 | Totally impaired: Cannot work at all. |
The Medical Assessor rated class 3 with the following explanation:
“Since the subject injury, he said he has done some farm work in 2022 with milking cows at a week at a time to help out a person who had fallen ill. He has been going to his farm 4 to 5 times a week, to check his sheep, repairing roads and fixing the fences, and he spends from 8.30am to 4.30pm.
As he can still work in a less stressful job, almost fulltime, he has moderate impairment.”
The appellant says the rating should have been a severe impairment at class 4 or total impairment at class 5.
The Appeal Panel can discern no error in the assessment of class 3. What the Medical Assessor described is that the appellant regularly engages in work-like activities on the farm that can be remunerated under different circumstances, clearly more than 20 hours per week and this is consistent with a rating of 3 in employability. The Medical Assessor’s findings on the day of examination clearly accord with the criteria for class 3 and it is the best fit.
What this means is that all of the contested classes assessed by the Medical Assessor have been confirmed on appeal with the exception of social functioning wherein the Appeal Panel has found an error in the assessment of class 1 when it should have been assessed as class 2.
This means the calculations become as follows:
Score
Median Class
1
2
2
2
3
3
=2
Aggregate Score Impairment
Total
%
+1
+3
+5
+7
+10
3
13
7
For these reasons, the Appeal Panel has determined that the MAC issued on 26 July 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: | W4488/24 |
Applicant: | Bradley Thomas Kent |
Respondent: | Trustees for Catholic Education Office Archdiocese of Canberra and Goulburn |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Pane revokes the Medical Assessment Certificate of Medical Assessor Yu Tang Shen 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 NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychiatric injury | 20/07/2022 | Chapter 11, page 54 | Chapter 14, pg 361-365 | 7 | 0 | 7 |
| Total % WPI (the Combined Table values of all sub-totals) | 7 | |||||
The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.
0