MacCullagh v Secretary, Department of Education
[2021] NSWPICMP 201
•21 October 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | MacCullagh v Secretary, Department of Education [2021] NSWPICMP 201 |
| APPELLANT: | David MacCullagh |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL: | Member Carolyn Rimmer Dr Douglas Andrews Dr Michael Hong |
| DATE OF DECISION: | 21 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Medical Assessor (MA) made an assessment of 7% whole person impairment (WPI) as a result of a psychiatric injury deemed to have occurred on 17 October 2018; Held - Appeal Panel accept that the inclusion of matters involving support and care of Mr MacCullagh’s father were irrelevant considerations in the Psychiatric Impairment Rating Scale of Self-Care and Personal Hygiene and this constituted a demonstrable error; assessment of WPI by the Appeal Panel was the same as that made by the MA; in those circumstances the Appeal Panel will confirm the Medical Assessment Certificate (MAC) as the review has not led to a different result and should not be interfered with; Robinson v Riley considered; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 September 2021 David MacCullagh (Mr MacCullagh) lodged an Application to Appeal Against the Decision of a Medical Assessor (the appeal). The medical dispute was assessed by Dr Julian Parmegiani, Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 6 August 2021.
The respondent to the appeal is Secretary, Department of Education (the respondent).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
(a) the assessment was made on the basis of incorrect criteria pursuant to s 327(3)(c) of the 1998 Act, and
(b) the Medical Assessment Certificate (MAC) contains a demonstrable error.
The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr McCullagh developed a primary psychological injury in the course of his employment as a teacher as a result of repeated abuse by school children as well as a lack of support from the school executive.
The matter was referred to the MA, Dr Parmegiani, on 21 June 2021 for assessment of whole person impairment (WPI) of Mr MacCullagh’s psychological disorder attributable to the injury deemed to have occurred on 17 October 2018.
The MA examined Mr MacCullagh on 4 August 2021 via videolink and assessed 7% WPI in respect of the psychological disorder. Therefore, the total WPI was assessed as 7% WPI as a result of the injury deemed to have occurred on 17 October 2018.
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.
Mr MacCullagh requested that he be re-examined by a MA who is a member of the Appeal Panel. The respondent opposed that request and submitted that the circumstances of this case did not justify the need to have the appellant examined by the Appeal Panel.
Mr MacCullagh did not provide reasons for requesting a re-examination by a member of the Appeal Panel and did not challenge the accuracy of the history taken by the MA.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Mr MacCullagh to undergo a further medical examination because there was sufficient evidence on which to make a determination and no issue raised concerning the examination findings of the MA.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the MAC given by the MA that are relevant to the appeal are set out 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.
Mr MacCullagh’s submissions include the following:
(a) Mr MacCullagh’s challenge to the assessment was wholly confined to the Psychiatric Impairment Rating Scale (PIRS) Table 11.1 Self-Care and Personal Hygiene;
(b) in his Reason for Decision set out on p8 of the MAC, the MA included: “He also supported his father in Sydney. Mr MacCullagh mowed his father’s lawns, he purchased groceries and he took his father to medical appointments”;
(c) the inclusion of these matters as part of the reason for assigning class 2 under this particular category was erroneous. None of these matters had anything to do with Mr MacCullagh’s self-care or hygiene. They identified services provided to someone else and had nothing to do with hygiene;
(d) the inclusion of this description was so self-evidently wrong it must constitute a demonstrable error. It is an error detectable on the face of the certificate itself without need to examine context or history. It is the type of error (albeit more obvious) with which the Court of Appeal was concerned in Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas), namely the assignment of inappropriate descriptors to a PIRS rating;
(e) because those same inappropriate descriptors form part of the MA’s reasons for decision, it was also clear that he has undertaken the assessment on the basis of incorrect criteria, and
(f) for these reasons, the Appeal Panel will be satisfied that the MAC should be revoked and a new certificate issued pursuant to s 328(5) of the 1998 Act.
The respondent’s submissions include the following:
(a) the respondent disputed that there was a demonstrable error or the use of incorrect criteria by the MA;
(b) the challenge to the MAC was confined to the PIRS rating for self-care and personal hygiene and the MA’s reasoning for assigning class 2 under this category, relevantly: “He also supported his father in Sydney. Mr MacCullagh mowed his father’s lawns, he purchased groceries and he took his father to medical appointments”;
(c) Mr MacCullagh did not challenge the veracity of this record by the MA, only its relevance and application to rating Mr MacCullagh as class 2 in this category;
(d) the MA’s complete reasoning for assigning Mr MacCullagh class 2 in this category was: “Mr MacCullagh was able to live independently over the past six years, with a mild degree of neglect. He did not shower daily, and he did not maintain a healthy diet. Mr MacCullagh was able to perform domestic tasks. He also supported his father in Sydney. Mr MacCullagh mowed his father’s lawns, he purchased groceries and he took his father to medical appointments”;
(e) the submission that the MA’s reasoning for assigning class 2 under this category represented a demonstrable error and/or application of incorrect criteria, cannot be accepted for the following reasons:
(i)Mr MacCullagh specifically chose to challenge one of the three sentences which comprised the full explanation of the MA’s reasons for assigning class 2 under this category, and it can be inferred that Mr MacCullagh accepted the other parts of the MA’s reasoning. In other words, Mr MacCullagh accepted the majority of the explanation by the MA under this category;
(ii)the MA clearly identified that Mr MacCullagh “…was able to live independently over the past six years, with a mild degree of neglect. He did not shower daily, and he did not maintain a healthy diet.
Mr MacCullagh was able to perform domestic tasks…”. It was then a matter of clinical judgement of the MA to assign Mr MacCullagh a class rating of 2. This was appropriate in the circumstances and available to the MA on the evidence before him, and
(iii)even without the sentences referring to Mr MacCullagh’s father, comprising part of the MA’s reasoning, it would still have been open for the MA to assign the class rating of 2.
(f) the MA’s reasoning for assigning class 2 in this category fell squarely within the example descriptor provided by the Guidelines;
(g) the consideration of the MA’s reasoning should be read and considered within the context of the purpose for which the reasoning was provided and not in the narrow manner adopted by Mr MacCullagh. It is reasonable to infer from the MA’s inclusion of Mr MacCullagh’s activities with his father, that those activities were matters which were relevant to his decision to rate the worker class 2. The primary conclusion that can be drawn from the MA’s reference to
Mr MacCullagh’s activities with his father was that those activities represented the extent of the Mr MacCullagh’s (absence of) impairment under this Category;
(h) the MA’s reference to the sentences referring to Mr MacCullagh’s activities with his father was to demonstrate that Mr MacCullagh was able to attend to the care of others (in this case others being his father). The available inference from this was that if one has the capacity to attend to the care of others, then they would more likely than not have at least the same or greater capacity to attend to self-care;
(i) the application did not make out any of the grounds of appeal pursuant to section 327(3) of the 1998 Act outlined above;
(j) the class rating of 2 under the Category of Self Care and Personal Hygiene was appropriate in the circumstances and available to the MA having regard to his examination of the appellant and consideration of all available evidence, and
(k) the MAC dated 6 August 2021 should 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.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
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] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘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.
The Medical Assessment Certificate
On page 3 of the MAC under “social activities/ADL”, the MA wrote:
“Social activities/ADL: Mr MacCullagh lived alone in Nowra over the past six years. He showered every second day, and he did not maintain a healthy diet.
Mr MacCullagh travelled to Sydney regularly to visit his father. He purchased groceries for him and drove him to medical appointments. Mr MacCullagh saw his friend Mike every two days. Mike lived nearby and he operated a bicycle workshop. They spent time chatting and drinking a cup of tea. Mr MacCullagh went shopping on average once a fortnight. He recently borrowed Mike’s van and drove to Forbes to attend a family funeral. Mr MacCullagh performed housework, and he mowed his lawn. Until recently he also mowed his father’s lawn. Mr MacCullagh lost interest in playing golf or playing in church bands. He did not attend church activities. He explained that hecould not tolerate noise and that he wanted to avoid children. He lost interest in
photography because he did not want to be near people. He also found it difficult to concentrate on his photography. He said, ‘excuse the pun, but I cannot focus’”.
On page 4 of the MAC, under “summary of injuries and diagnoses” the MA wrote “major depressive disorder”.
In commenting on other medical opinion, the MA wrote:
“Report of Dr Christopher Canaris, psychiatrist, dated 5 April 2020.
Dr Canaris assessed Mr MacCullagh at his solicitor’s request. Dr Canaris diagnosed
a Major Depressive Disorder. Dr Canaris rated Mr MacCullagh’s psychiatric
impairment at 17%. I do not agree with Dr Canaris’ rating in self-care and personal
hygiene. Mr MacCullagh was able to live independently for the past six years. He also supported his elderly father in Sydney”.
At Table 11.8 PIRS Rating Form, the MA assessed Mr MacCullagh as Class 2 in the PIRS category for self-care and personal hygiene and under “Reasons for decision” wrote:
“Mr MacCullagh was able to live independently over the past six years, with a mild degree of neglect. He did not shower daily, and he did not maintain a healthy diet.
Mr MacCullagh was able to perform domestic tasks. He also supported his father in Sydney. Mr MacCullagh mowed his father’s lawns, he purchased groceries and he took his father to medical appointments.”
Discussion
The MA is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Ground 1 – PIRS self-care and personal hygiene
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 Parker v Select Civil Pty Ltd [2018] NSWSC 140 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 material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
In Chalkias v State of New South Wales [2018] NSWSC 1561, Adamson J noted that the worker alleged that the Medical Appeal Panel (MAP) failed to identify the error in the MAC which was a necessary jurisdictional prerequisite, and had erred by substituting its own opinion for that of the AMS. Adamson J found at [33]-[36] that the MAP reasons demonstrated that it had correctly understood and exercised its jurisdiction. The MAP was satisfied that the AMS had made errors relating to the grading of the self-care and personal hygiene category, and having identified the error, the MAP was entitled and obliged to review the assessment in relation to that category.
Adamson J found that the MAP’s assessment of the self-care category did not amount to a mere difference of opinion of the kind described by Harrison AsJ in Parker, and that the MAP coming to a different assessment of that category did not “convert” its initial finding of error into a mere difference of opinion (at [36]). Adamson J dismissed the worker’s appeal of a MAP’s decision, finding there was no error of law or jurisdictional error.
In Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas) Bell P and Payne JA said (Emmett JA concurring):
“93. Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to 'social and recreational activities' on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
94. Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, i.e. whether it goes to ‘self-care and personal hygiene’, ‘social and recreational activities’, ‘travel', ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker's entitlement to compensation.”
Mr MacCullagh submitted that the MA made a demonstrable error by including matters involving the support and care of his father as part of the reason for assigning class 2 for the category of self-care and personal hygiene. Mr MacCullagh argued that this constituted an error as none of these matters had anything to do with Mr MacCullagh’s self-care or hygiene and were matters which identified services provided to someone else and had nothing to do with hygiene. Mr MacCullagh submitted that the inclusion of this description was so
self-evidently wrong it must constitute a demonstrable error.
Paragraph 11.12 of the Guidelines provides:
“Impairment in each area is rated using Class descriptors. Classes range from 1
to 5, in accordance with severity. The standard form must be used when scoring
the PIRS. The examples of activities are examples only. The assessing psychiatrist
should take account of the person’s cultural background. Consider activities
that are usual for the person’s age, sex and cultural norms.”The classes of each PIRS category are allocated a descriptor. These descriptors are to be determined comparable to the clinical norms considering the person’s age, sex and culture. The associated examples are provided as guides and are not determinative.
Ballas concerned the correct characterisation of the particular conduct as going to the various scales in the PIRS categories. Payne JA said that if conduct was wrongly assigned to one scale, when it should have been assigned to another, this resulted in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales.
The respondent argued that it was reasonable to infer from the MA’s inclusion of
Mr MacCullagh’s activities with his father, that those activities were matters which were relevant to his decision to rate the worker class 2. Further, the respondent argued that these activities with his father demonstrated that Mr MacCullagh was able to attend to the care of others and it could be inferred from this, that if he had the capacity to attend to the care of others, he would more likely than not have at least the same or greater capacity to attend to self-care.The respondent’s submissions did not address the fact that this conduct involving
Mr MacCullagh’s father was conduct that should have been assigned to another scale and therefore an irrelevant consideration in the assessment of the scale of self-care and personal hygiene.The Appeal Panel accept that the inclusion of matters involving support and care of
Mr MacCullagh’s father were irrelevant considerations in the PIRS scale of self-care and personal hygiene and this constituted a demonstrable error.Having found that the MA erred in including matters relating to the care and support of his father in the reasons for assigning class 2 for the category of self-care and personal hygiene, the Appeal Panel proceeded to review the evidence.
The examples under Table 11.1 in the Guidelines for class 1 in self-care and personal hygiene are:
“No deficit, or minor deficit attributable to the normal variation in the general population”.
The examples for class 2 are:
“Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.”
The examples for class 3 are:
“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) 2 –3 times per week to ensure minimum level of hygiene and nutrition”.
The Appeal Panel accepted the history as recorded by the MA.
At Table 11.8 PIRS Rating Form, the MA assessed Mr MacCullagh as Class 2 in the PIRS category for self-care and personal hygiene and under “Reasons for decision” wrote:
“Mr MacCullagh was able to live independently over the past six years, with a mild degree of neglect. He did not shower daily, and he did not maintain a healthy diet.
Mr MacCullagh was able to perform domestic tasks. He also supported his father in Sydney. Mr MacCullagh mowed his father’s lawns, he purchased groceries and he took his father to medical appointments.”Dr Canaris in a report dated 5 April 2020 noted that Mr MacCullagh spent his time in his garden and fixing his house "and I get the place ready for when visitors come".
Dr Canaris assessed Mr MacCullagh as Class 3 in the PIRS category for self-care and personal hygiene and wrote:
“He would shower "every second day- depends on what I've been doing: and might change his clothes every 2 or 3 days "if I'm not seeing anyone" adding, "It saves on laundry" though he would not sleep in the same clothes that he wears during the day. He tends to avoid doing his dishes and his sink is chock a bloc with dirty dishes. He said of his house, "The place where the visitors come - that's clean - I do it, or I pay one of the neighbours to do it" but the rest of the house is a mess. He mowed his lawn recently for the first time in weeks ("It was substantial - I couldn't pick it up in the catcher to put it in with my composting ... "). He would microwave frozen meals and would skip meals "5 - 6 times a week."
Ms Carina Hardy, Occupational Therapist, in a Hone & Activities of Daily Living Assessment Report dated 11 May 2020, recommended that Mr MacCullagh receive assistance, namely, fortnightly domestic cleaning services to complete cleaning of bathroom, toilet, vacuuming, sweeping and mopping fortnightly for a period of 12 weeks and monthly lawn mowing services in the colder months for a period of 12 weeks. She recommended that this level of care be reviewed in the near future but based on Mr MacCullagh's level of symptomology and functional presentation, suggested he would require more than three months of assistance.
In a report dated 3 January 2019, Dr Melissa Barrett, Consultant Psychiatrist, noted that on a usual day, Mr MacCullagh got up at 10:00 or 11:00 am and had been re-heating packaged and frozen foods. She noted that he has not been cleaning regularly but was up to date with his laundry.
In a report dated 4 December 2019, Dr Barrett noted that Mr MacCullagh had stated he has resumed washing dishes. She noted that he stated if he worked outside or went to the beach he would shower once every two days, which was a reduction from his previous habit of showering twice a day. Dr Barrett noted that he said he has been cleaning, "more or less" did the laundry and re-heated frozen foods.
In a report dated 11 June 2020, Dr Barrett noted that Mr MacCullagh was eating only two meals a day but had gained weight. She wrote:
“In regard to his current activities, he stated he lives alone. He makes breakfast, cereal, and one other meal which is usually a frozen meal. He stated he previously would have cooked fresh meals. He stated he is "close" to being up-to-date with laundry tasks. He stated he "struggles" with cleaning. Although he did the dishes about a week ago but prior to that he had not done the dishes for about a month, stating it was, "in the too hard basket" due to poor motivation. He could not estimate the average frequency of his cleaning stating it was as needed. He showers once every two or three days, compared to his former habit of showering once or twice a day.”
The Appeal Panel considered whether the MA had erred in making a class 2 rating for
self-care and personal hygiene. Dr Canaris rated Mr MacCullagh as class 3 for self-care and personal hygiene but that rating was done more than a year ago and the examples in his reasons did not really suggest that Mr MacCullagh could not live independently without regular support.The Appeal Panel accepted the history as recorded by the MA.
On page 4 of the MAC, under “Social activities/ADL” the MA wrote:
“Mr MacCullagh lived alone in Nowra over the past six years. He showered every second day, and he did not maintain a healthy diet…Mr MacCullagh went shopping on average once a fortnight…Mr MacCullagh performed housework, and he mowed his lawn”.
In the Table 11.8 PIRS Rating Form, under “Reasons for decision” the MA wrote:
“Mr MacCullagh was able to live independently over the past six years, with a mild degree of neglect. He did not shower daily, and he did not maintain a healthy diet. Mr MacCullagh was able to perform domestic tasks.”
The Appeal Panel considered whether the MA had erred in making a class 2 rating for
self-care and personal hygiene. Dr Canaris rated the appellant as class 3 for self-care and personal hygiene, but this assessment was made more than a year before the assessment by the MA and it is possible that there had been some slight improvement in this area of functioning as the MA reported that Mr MacCullagh at the time of assessment “performed housework”.
Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel considered that it was open to the MA on the evidence to make an assessment of class 2 for self-care and personal hygiene. Mr MacCullagh was able to live independently and looked after himself adequately, although he did not shower daily and did not maintain a healthy diet. The Appeal Panel considered that the history obtained by the MA was consistent with a class 2 rating for self-care and personal hygiene.
The MA made an assessment of 7% WPI in respect of a psychological injury. The Appeal Panel has made the same rating in respect of the scale for self-care and personal hygiene as the MA. Therefore, the assessment of total WPI by the Appeal Panel was 7% WPI in respect of the injury deemed to have occurred on 17 October 2018.
In summary, the assessment of total WPI by the Appeal Panel was the same as that made by the MA. In those circumstances the Appeal Panel will confirm the MAC as the review has not led to a different result and should not be interfered with (Robinson v Riley [1971] 1 NSWLR 403).
For these reasons, the Appeal Panel has determined that the MAC issued on 6 August 2021 by the MA should be confirmed.
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