Liu v State of New South Wales (NSW Police Force)
[2024] NSWPICMP 130
•11 March 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Liu v State of New South Wales (NSW Police Force) [2024] NSWPICMP 130 |
| APPELLANT: | Li Li Liu |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Doug Andrews |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 11 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Primary psychological injury deemed to have occurred on 1 November 2010; appellant worker appealed the psychiatric impairment rating scale categories of social and recreational activities and social functioning; statement of appellant worker concerning the Medical Assessor’s (MA) examination not admitted; Appeal Panel found no error in the MA’s assessment of social and recreational activities and social functioning; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 December 2023 Li Li Liu (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surbhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 November 2023.
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 MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant developed a primary psychological injury in the course of her employment with NSW Police Force (the respondent).
The appellant commenced proceedings in the Personal Injury Commission (Commission) claiming 24% whole person impairment (WPI) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 1 November 2010.
The Medical Assessor examined the appellant on 18 October 2023 through video link. The Medical Assessor assessed 9% WPI as a result of the injury deemed to have occurred on
1 November 2010.
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.
The appellant requested that she be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for the appellant to undergo a further medical examination because there was sufficient evidence on which to make a determination.
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) statement of Li LI Lui dated 21 December 2023.
This statement was filed by the appellant on 12 January 2024. It was not attached to the Application to Appeal Against the Decision of a Medical Assessor filed on 1 December 2023., although the submissions attached to the Application to Appeal Against the Decision of a Medical Assessor referred to a potential statement of the appellant. In an email dated 12 January 2024 to the respondent’s solicitors, the appellant’s solicitor wrote: “We send by way of service the attached statement of Li Li Liu that has been submitted on the PIC portal with leave to have the document admitted as supporting evidence”.
In the submissions attched to the Application to Appeal Against the Decision of a Medical Assessor, the appellant wrote:
“The interview between the worker and the MA was less than an hour: 9:55am to 10:53am. The worker seeks leave to submit a statement addressing the manner in which the assessment was performed, and the inaccurate histories (see below) recorded in the MAC.
…
The worker disputes that she told the MA that she has a friend at the yoga class and talks to her, or alternatively, that the MA has misunderstood what she was trying to say. This will be the subject of a statement to be submitted in support of the appeal.”
The Appeal Panel infers that the appellant contends that this evidence is relevant to the assessment of social and recreational activities in the Psychiatric Impairment Rating Scales (PIRS). While the appellant made no submissions as to why the evidence was not available and could not reasonably have been obtained, the Appeal Panel accepts that this evidence was not in existence at the time of the medical assessment on 18 October 2023. However the applicant did not file a statement in these proceedings which addressed what she did in terms of recent social and recreational activities. The appellant in this statement provided details about the examination by the Medical Assessor. Therefore, this evidence was not available and could not have been obtained prior to the medical assessment. The appellant made no submissions concerning the probative value of this evidence.
The Appeal Panel notes that it does not appear that the appellant made a complaint after the assessment by the Medical Assessor in relation to the behaviour of the Medical Assessor during the assessment in accordance with the process referred to in paragraph 1.57 of the Guidelines.
The respondent, by email to the Commission dated 16 January 2024 submitted that the statement dated 21 December 2023 should have been obtained prior to the appeal and submitted with the Application to Appeal Against the Decision of a Medical Assessor, and should not be admitted into the proceedings.
In the submissions attached to the Notice of Opposition Appeal Against Decision of Medical Assessor, the respondent submitted that “whether the appellant has a friend at the yoga studio whom she talks to”, is not of “prima facie probative value” and regardless of its inclusion in the reasonings for the subject PIRS category, it would not have afforded the appellant a higher rating due to having not satisfied any element for a class 3 rating as per the SIRA Guidelines.
In Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes, Part 17 provides:
“17. If a party seeks to rely on additional relevant information as a ground of appeal (s327(3)(b) of the 1998 Act) or give fresh evidence, additional evidence or substituted evidence on appeal(s328 of the 1998 Act) they must provide:
(a) a schedule of the evidence, including the author and date of the evidence;
(b) a clear copy of the evidence;
(c) submissions as to why the evidence is additional relevant information/fresh evidence, and
(d) submissions as to why the evidence was not available to and could not reasonably have been obtained by the party before the medical assessment appealed against”.
The appellant did not comply with the provisions of Procedural Direction PIC7.
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by an Appeal Panel (see discussion in Australian Prestressing Services Pty Ltd v Vosota WCC 10798-04).
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.”
It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of “substantive prima facie probative value”. In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:
“…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.”
In Petrovic v BC Serv No 14 Pty Ltd t/as Broadlex Cleaning Services [2007] NSWSC 1156 (Petrovic) Hoeben J found that it was critical to consider the content of any statement attached to an application for appeal as containing evidence relevant to the grounds of appeal alleged. His Honour stated that in circumstances where all appellants were to be allowed to provide statement evidence in support of an appeal without consideration for its contents, “…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.” His Honour further noted that:
“…the information must be relevant to the task which was being performed by the AMS…additional relevant information for the purposes of section 327(3)(b) is 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”.
It was held that statements which related to the way in which a Medical Assessor carried out the examination and the way in which questions and answers were interpreted during examination did not constitute additional relevant information for the purposes of s 327(3)(b).
The Appeal Panel noted the decision in Halliday v G4S Custodial Services Pty Ltd [20 August 2019] M1-1452/19, where it was held that admission into evidence of statements which essentially cavil with the opinion a Medical Assessor ought not be admitted by Medical Appeal Panel, otherwise “every aggrieved worker could submit a statement addressing the assessment to automatically meet the requirements for a medical appeal”.
The appellant’s statement addresses the way in which the Medical Assessor carried out the assessment and contained criticisms of how the Medical Assessor carried out her examination. The Appeal Panel accepts that the statement of the appellant was not available or could not reasonably have been obtained before the Medical Assessor’s assessment as the statement related to events that had taken place in the assessment by the Medical Assessor. However, the statement was related to criticisms of the way in which the Medical Assessor carried out the assessment, and has little probative value and falls within the prohibition in Petrovic.
The Appeal Panel considered that the statement of the appellant dated 21 December 2023 and attachments had low probative value. Even if the appellant had complied with the provisions in Procedural Direction PIC7, the Appeal Panel could not conclude that this fresh evidence has probative value such that it was reasonably clear that it would change the outcome of the case.
The Appeal Panel determines that the following evidence should not be received on the appeal:
(a) statement of the appellant dated 21 December 2023.
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.
The appellant’s submissions include the following:
(a) the appellant relies upon the following demonstrable errors:
(i)the Medical Assessor recorded and relied upon an incomplete and inaccurate history which impacted her assessment of WPI.
(ii)he Medical Assessor has failed to appropriately consider the entirety of the evidence available to her.
(iii)The Medical Assessor failed to appropriately identify, consider and give proper weight to the evidence as to the appellant’s proper history and current psychological status.
(iv)As a result, the Medical Assessor has not undertaken a proper assessment of WPI.
(b) If the Medical Assessor had recorded and relied upon an accurate and correct history the assessment of WPI would have been significantly higher than 9% (see below). In those circumstances, the appellant submits the assessment by the Medical Assessor contains a demonstrable error.
(c) The interview between the worker and the Medical Assessor was less than an hour: 9.55am to 10.53am. The appellant seeks leave to submit a statement addressing the manner in which the assessment was performed, and the inaccurate histories (see below) recorded in the MAC.
(d) In assessing social functioning, the Medical Assessor has only considered the appellant’s relationship with her partner, and this is the only relationship mentioned in the assessment of this area of function. It appears that the Medical Assessor has assessed a Class 2 impairment because there had been no separation from her partner or domestic violence, which are only given as examples in the assessment criteria. There was no detailed examination of the relationship.
(e) The Medical Assessor ignored the other criteria listed in Class 3, namely “previously established relationships severely strained” because the Medical Assessor does not record any history of the impact of the appellant’s psychological condition on her relationships, whether it be with neighbours, with family and/or friends and former colleagues.
(f) In assessing social and recreational activities, the Medical Assessor relied on the following history: “She said she now goes to the nearby yoga classes once a week. She has a friend at the yoga class and talks to her”. The appellant disputes that she told the Medical Assessor that she has a friend at the yoga class and talks to her, or alternatively, that the Medical Assessor has misunderstood what she was trying to say. This will be the subject of a statement to be submitted in support of the appeal.
(g) In assessing social and recreational activities, the Medical Assessor assessed Class 2 impairment for social and recreational activities based on an inaccurate history.
(h) Dr Holdaway, who had a more accurate history, assessed Class 3 impairment for social and recreational activities.
(i) Had the Medical Assessor assessed the appellant as having a Class 3 impairment for one of either social functioning or social and recreational activities, the Median Class would have increased from 2 to 3, the aggregate score would have increased from 16 to 17, and WPI would have increased from 9% to 19%. This demonstrates that even minor inaccuracies in recording history can have a significant impact on the outcome of the assessment.
The respondent‘s submissions include the following:
(a) the appellant alleged two demonstrable errors in respect of incomplete and inaccurate history, both regarding the determined Class 2 rating for social and recreational activities. First, the Medical Assessor relied on the history that the appellant “has a friend at the yoga class” whom she talks to but the appellant disputes telling the Medical Assessor such and states that the Medical Assessor must have misunderstood her. Second, the appellant disputes the history relied upon by the Medical Assessor in respect of attending “another yoga studio” in Maroubra and contends that during the medical assessment, she reported ceasing attendance at the subject yoga studio in Maroubra.
(b) In assessing social and recreational activities, even if the Medical Assessor considered that the appellant ceased going to a yoga studio in Maroubra instead of relying upon information that the appellant goes to two yoga studios, ithis would also not have afforded a higher rating.
(c) Correction of this inaccuracy would have been relevant in assessing the PIRS category of travel. However, the Appeal Panel would be restricted in considering alleged demonstrable errors within the appellant’s submission and would have no jurisdiction in considering other aspects of the MAC.
(d) Therefore, any such inaccuracy and lack of information as appealed, did not lead to an error in the MAC which is ‘readily apparent’; Stanjovic v Falcones Pty Limited [2022] NSWPICMP 105 at [28]. Furthermore, the information relied on by the Medical Assessor, whether inaccurate or not, appear to be “sufficiently like” those forming the opinion of Dr Kirsty MacDonald; Keith v Gal, Nominal Defendant v Saleh [2011] NSWCA 16 at [263].
(e) In regard to the PIRS category of social functioning, the appellant submitted that the Medical Assessor committed a demonstrable error for failing to take consideration of the appellant’s “previously established relationships” other than that with her partner. As such, the appellant submits that the determined Class 2 was found on the sole basis that the appellant has not had a period of separation nor domestic violence with her partner.
(f) In line with Western Sydney Local Health Local Health District v Chan [2015] NSWSC 1968, failure to consider particular evidence, which in this case would be evidence pertaining to strained relationships other than that with her partner, does not constitute an error.
(g) The appellant submitted that the Medical Assessor committed a demonstrable error for failing to give proper weight to evidence in respect of the appellant’s history and current psychological status.The appellant’s relationship with her partner appears to be the dominant aspect to consider in respect of her social functioning.
(h) Should consideration of her estranged friendships have been included in assessing Social Functioning, it would not have materially impacted upon the Medical Assessor’s expert opinion in determining a class 2 rating; Keith v Gal, Nominal Defendant v Saleh [2011] NSWCA 16. This is evident and further supported by the report of Dr MacDonald, who provided the same rating despite considering the appellant’s relations with her friends.
(i) In light of the above, the appellant’s submissions regarding demonstrable error have not been made out.The MAC ought to be confirmed.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] the form of the words used in
s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
PIRS rating scales categories
The appellant alleged error in respect of the assessment of the PIRS categories of self care and personal hygiene, social and recreational activities, travel, and concentration, persistence and pace.
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
In Jenkins v Ambulance Service of NSW [2015] NSWSC 633 Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS 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.”
In Ferguson v State of New South Wales (2017) NSWSC 887 (Ferguson), Campbell J in dealing with whether there was error in the application of the categories and classes of the PIRS identified the following as relevant:
(a)was the categorisation glaringly improbable;
(b)was the Approved Medical Specialist (AMS) unaware of significant factual matters;
(c)was there a clear misunderstanding by the AMS, and
(d)was the AMS’s reason process unable to be made out?
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“66. In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense…
70. To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
71. The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error…”
The Medical Assessor is required to interview the worker and provide her assessment of WPI and opinion based upon her own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the Medical Assessor, her findings on examination, and the reasons for her conclusions as well as the evidence referred to above.
The appellant first made a number of general submissions, namely:
(a) the Medical Assessor recorded and relied upon an incomplete and inaccurate history which impacted her assessment of WPI.
(b) The Medical Assessor has failed to appropriately consider the entirety of the evidence available to her.
(c) The Medical Assessor failed to appropriately identify, consider and give proper weight to the evidence as to the appellant’s proper history and current psychological status.
(d) As a result, the Medical Assessor has not undertaken a proper assessment of WPI.
The Appeal Panel considered that the appellant did not identify at this stage of the submissions how these allegations had resulted in material error. This was done, in our view, in the submissions made in relation to the PIRS categories of social and recreational activities and social functioning. Therfore the Appeal Panel will address the issues raised in those submissions.
Social and recreational activities
The appellant submits that in assessing social and recreational activities, the Medical Assessor relied on an incorrect history concerning her attendance at yoga classes and assessed Class 2 impairment for social and recreational activities based on an inaccurate history.
The examples under Table 11.2 for “social and recreational activities” in the Guidelines are:
“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.”
Clause 11.11 of the Guidelines classified social and recreational activities as an activity of daily living.
The Medical Assessor assessed the appellant as Class 2 for social and recreational activities. In the PIRS rating form, the Medical Assessor wrote:
“Social and recreational activities - Class 2
She said she used to enjoy going to the gym, meeting with friends, and doing yoga daily. She said she now goes to the nearby yoga classes once a week. She
has a friend at the yoga class and talks to her. She reported that she does not socialise with her friends as much as before. She texts her friends but does not meet them in person. She also goes to another yoga studio which is in Maroubra, and goes there about once every fortnight to a month..”
Under “Present Symptoms ” the Medical Assessor noted:
“Ms Liu reported that most of the time, she stays at home. She does try to take her dog out for a walk, but she tries to avoid running into people who she feels might be critical about her.
She said that she has one friend with whom she keeps in contact with through text. She also frequents another yoga studio which is a few kilometres from her home”.
Under “Social activities/ADL” the Medical Assessor noted:
“She said she used to enjoy going to the gym, meeting with friends, and doing yoga daily.
She said she now goes to the nearby yoga classes once a week. She has a friend at the yoga class and talks to her. She reported that she does not socialise with her friends as much as before. She texts her friends but does not meet them in person. She also goes to another yoga studio in Maroubra about once every fortnight to a month”.
Dr Joanne Holdaway examined the appellant on 10 March 2023. In a report dated 21 March 2023, she assessed the appellant as Class 3 for social and recreational activities giving the following reasons:
“Ms Liu does online yoga, but participates in no other social activities. She does have a friend whom she texts sometimes. She previously taught at a yoga class, and occasionally attends yoga, but largely avoids due to anxiety.”
Under “Current Symptoms and Functioning” Dr Holdaway wrote:
“She does have one friend whom she keeps in contact with by text. She has not physically seen her friend more than once in the last three years. She tells me that when she was at the yoga studio she had a number of acquaintances there who would sometimes invite her to things. She would say yes but then find excuses not to go. She says this had improved up until her last relapse”.
Dr Kirsty MacDonald examined the appellant on 16 May 2023 . In a report dated 16 May 2023, she assessed the appellant as Class 2 for social and recreational activities giving the following reasons:
“Attends events occasionally but isolates away from others. Can attend events alone (including yoga classes). Sometimes makes excuses not to go.”
The Appeal Panel is satisfied that the Medical Assessor took into account the evidence in this matter and in particular the reports of Dr Holdaway and Dr MacDonald.
The appellant alleged two demonstrable errors in respect of incomplete and inaccurate history, both regarding the determined Class 2 rating for social and recreational activities. First, the Medical Assessor relied on the history that the appellant “has a friend at the yoga class” whom she talks to but the appellant disputes telling the Medical Assessor such and states that the Medical Assessor must have misunderstood her. Second, the appellant disputes the history relied upon by the Medical Assessor in respect of attending “another yoga studio” in Maroubra and contends that during the medical assessment, she reported ceasing attendance at the subject yoga studio in Maroubra.
The statement of the appellant dated 21 December 2023 is not in evidence. Both the Medical Assessor and Dr MacDonald reported that the appellant attended yoga classes alone. Dr Holdaway reported that the appellant attended yoga and kept in contact a a friend by text. There was no evidence that the appellant needed to be prompted to go out to her yoga classes and she didi not require a support person to attend the classes.
The Appeal Panel does not accept that the evidence supported a greater impairment of social and recreational activities.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considers that, even if reasonable minds might differ on the weight placed upon different aspects of social and recreational functioning, it was open to the Medical Assessor to make an assessment of Class 2 for social and recreational activities considering the evidence available and the history taken during the assessment by the Medical Assessor.
The Appeal Panel is satisfied that there was no demonstrable error in the MAC in relation to the rating in the PIRS categories of social and recreational activities and the assessment in this class was not made on the basis of correct criteria. The categorisation of Class 2 for social and recreational activities is not glaringly improbable; the Medical Assessor is not unaware of significant factual matters, there is no clear misunderstanding by the Medical Assessor and his reasoning process is sufficiently clear.
Social functioning
The appellant submitted that in assessing social functioning, the Medical Assessor only considered the appellant’s relationship with her partner, as it is the only relationship mentioned and she ignored the other criteria listed in Class 3, namely “previously established relationships severely strained” as she did not record any history of the impact of the appellant’s psychological condition on her relationships, whether it be with neighbours, with family and/or friends and former colleagues.
The examples under Table 11.4 for “Social functioning” in the Guidelines are:
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.”
The Medical Assessor assessed Class 2 in relation to social functioning noting:
“She is still together with her partner and they have been sharing chores and responsibilities. She, however, gets angry with her partner and gets irritable and snappy quite quickly.”
Under “Present Symptoms” the Medical Assessor noted: “She said that she gets snappy and irritable very easily even at things like when her partner does not share the household chores.”
Dr Holdaway in her report dated 21 March 2023, assessed the appellant as Class 3 for social functioning giving the following reasons:
“Ms Liu maintains her relationship with her partner. She has one friend whom she texts but has only seen once in the last three years. She previously visited her parents reasonably frequently, but currently has not seen them for several months.”
Under “Current Symptoms and Functioning” Dr Holdaway wrote:
“She reports reduced contact at the moment with her parents. She says if they had their way she would be around there every night having dinner, but when she is feeling less anxious she visits them every two or three weeks. She says she has not been there for several months, and does not really want to see them at the moment.”.
Dr Kirsty MacDonald examined the appellant on 16 May 2023. In a report dated 16 May 2023, she assessed the appellant as Class 2 for social functioning giving the following reasons:
“Mild impairment, still in relationship with partner (for ~8yrs). Estranged friendships. No DV, separation or child care issues.”
The Medical Assessor’s assessment of Class 2 impairment for social functioning was consistent with assessment of Dr MacDonald.
The appellant submitted that the Medical Assessor only considered the appellant’s relationship with her partner, as it is the only relationship mentioned and she ignored the other criteria listed in Class 3, namely “previously established relationships severely strained”. However, the Medical Assessor was provided with Dr Holdaway’s report of 21 March 2023 and would have been aware that she had not seen her parents for several months. Further, Dr MacDonald referred to estranged friendships.
The Appeal Panel did not accept that the evidence supported a greater impairment in social functioning and Class 3 was the only rating available to the Medical Assessor. The Medical Assessor noted that the appellant is still together with her partner, but she gets angry with her partner and irritable and snappy quite quickly. Dr MacDonald noted that there was no report of domestic violence, separation or child care issues.
The Appeal Panel considered, that based on these histories that the applicant had a mild impairment for social functioning as her primary relationship with her partner, which began after the injury, had remained intact for nearly a decade despite her irritability, she had fluctuating levels of contact with her family, and a loss of friendships. There was no evidence of any periods of separation from her partner or domestic violence.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was available to the Medical Assessor to make an assessment of Class 2 for social functioning considering the evidence available and the history taken during the assessment by the Medical Assessor. The Medical Assessor provided clear and adequate reasons for assessment of Class 2 for social functioning.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS category of social functioning.
Summary
The Appeal Panel concluded there was no error the Medical Assessor’s assessment of the appellant’s impairment in the PIRS categories of social and recreational activities and social functioning.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 November 2023 should be confirmed.
0
13
0