McGrath v State of New South Wales (New South Wales Police Force)

DETERMINATION OF APPEAL PANEL
CITATION:	McGrath v State of New South Wales (New South Wales Police Force) [2024] NSWPICMP 839
APPELLANT:	Wayne McGrath
RESPONDENT:	State of New South Wales (New South Wales Police Force)
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	9 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal by police officer from 9% whole person impairment for psychiatric injury; whether Medical Assessor (MA) had erred in not following Ballas v Department of Education (State of New South Wales) and had applied ‘irrelevant considerations’ in social and recreational activities; whether unanimous opinion as to a higher rating by experts on both sides of the record relevant; Held – appellant apprehension of principle in Ballas mistaken; Ballas and Botha v Secretary, NSW Department of Customer Service considered and applied; reasons given by both medical experts did not justify higher rating but in any event; function of MA not to adjudicate regarding other opinions; Wingfoot Australia Partners Pty Ltd v Kocak applied; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 May 2024 Wayne McGrath lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Aman Suman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 April 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 28 March 2024 his matter was referred to the Medical Assessor for an assessment of WPI caused by psychiatric and psychological disorders relating to an injury which was deemed to have occurred on 9 November 2021.
Mr McGrath ceased work as a NSW Police Officer in November 2021 and was medically discharged on 23 March 2022.
He was born in 1968 and attested in 1992. In his time as a police officer he experienced many traumatic events which are the lot of first responders. Mr McGrath has not held any gainful employment since November 2021.
The Medical Assessor assessed a WPI of 9%.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because no error was established in the MAC.

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 which 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.
This appeal is limited to a challenge to the class 2 rating assessed regarding social and recreational activities, one of the categories of the Psychiatric Impairment Rating Scale (PIRS).

The MAC

In considering Mr McGrath’s present symptoms, the Medical Assessor said:[1]
“Mr McGrath told me that he prefers spending most of the time at home, keeping himself busy with household chores and gardening. He does struggle with his motivation on some days. …”
[1] Appeal papers page 23.
With regard to Mr McGrath’s social and recreational activities, the Medical Assessor gave a class 2 rating. He said:[2]
“Social and recreation activities
Class 2
Mr McGrath told me that he avoids any significant social interaction. He feels anxious around people, especially large crowds. Mr McGrath told me, ‘My kids go on their own if there is any function in the city.’
Mr McGrath avoids any significant interaction with his friends, which reminds him of his previous job and related trauma. He spends most of his time gardening, which he finds therapeutic. Mr McGrath avoids working on old cars: ‘I am not motivated anymore’.”
[2] Appeal papers page 24. This description was repeated in the formal Table 11.8 certificate at page 31.
The Medical Assessor reviewed the documentation before him. He noted the assessment of Dr Michael Prior, consultant psychiatrist, of 18% and the assessment of Dr Iftikhar Ahmad, consultant psychiatrist of 11%. The Medical Assessor further noted the medical opinions of Dr Jothi Ramalingam, consultant psychiatrist and Dr Ian Cameron, psychologist, who were both involved in Mr McGrath’s treatment and support.
The Medical Assessor diagnosed that Mr McGrath was suffering from:
·        post- traumatic stress disorder;
·        depressive disorder, and
·        alcohol use disorder (partial remission).

SUBMISSIONS
Mr McGrath

As indicated above, Mr McGrath limited his challenge to the MAC assessment of a class 2 rating for the category of social and recreational activities within the PIRS. He erroneously submitted that the criteria for doing so were to be found in AMA5 as well as the Guides. Chapter 11 of the Guides provides that AMA5 was excluded and replaced by the Guides.
Mr McGrath kindly set out the relevant descriptors for classes 2 and 3 in this category. He submitted that on the history taken by the Medical Assessor a class 3 rating should have been given. He further submitted that the Medical Assessor's rating was erroneous because he had “considered irrelevant matters”.
We were referred to the report of Dr Prior dated 22 February 2023, and the report of
Dr Ahmad of 8 September 2023, both of which opinions rated this category as falling into a class 3 definition.
Mr McGrath submitted that the history taken by the Medical Assessor was consistent with that taken by both specialists. He referred to Ballas v Department of Education (State of New South Wales),[3] which we will consider below in our findings and reasons.
[3] [2020] NSWCA 86.
It was submitted that as a result the inclusion of solitary activities such as gardening and working on old cars were “irrelevant consideration[s] in this category”. It was submitted that the history taken by the Medical Assessor showed that Mr McGrath avoided any significant social interaction including that he avoided taking his children to functions and he avoided significant interaction with his friends.
The decision in Ballas regarding the assessment under this category was “not a matter of discretion” Mr McGrath submitted. It required the “consideration of interaction with other people” (emphasis as written).
The error made by the Medical Assessor, it was submitted, was that he omitted any commentary on events involving an interaction with people.

Respondent

The respondent resisted the appellant's submission that the Medical Assessor had fallen into error. It noted that the appellant had cited the correct guidelines and relied on authority, which we will refer to below, to submit that the appellant's submission really was in the final analysis that the Medical Assessor had come to a different opinion from other opinions that he considered.
The respondent submitted that there was no suggestion that Mr McGrath was needing a support person when he was seeing his friends and family.
The Medical Assessor, it was submitted, did not state that Mr McGrath avoided all social interactions but only those that were “quite significant”. Those were said to be with friends that reminded him of his previous occupation and related trauma.
We referred to Vegan, which we have cited above, in support of the submission that the reasons of the Medical Assessor do not have to be extensive or detailed regarding the criteria applied by medical professionals in reaching a professional judgement.

DISCUSSION

The Psychiatric Impairment Rating Scale

The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[4] 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.”
[4] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[5]
[5] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[6] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Appeal Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘The assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[7]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[6] [2017] NSWSC 887.
[7] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[8] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [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. (Ferguson [24])…..”
[8] [2018] NSWSC 140.
In Jenkins 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.”
It is accordingly necessary for the Appeal Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a)    if the categorisation was glaringly improbable;
(b)    if it could be demonstrated that the AMS was unaware of significant factual matters;
(c)    if a clear misunderstanding could be demonstrated, or
(d)    if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[9] Basten AJ noted at [88]-[89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[9] [2022] NSWSC 929.
The tension between these descriptors, which we apprehend the authors of the Guides foresaw in the many different possible scenarios within the six categories of the PIRS, is the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples. They give a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allow a wider discretion to be applied than if the descriptors were intended to be strict criteria.
Mr McGrath relied on the Ballas decision to ground a submission that his conduct in performing solitary activities such as gardening and working on old cars were “irrelevant consideration[s]” in the category of social and recreational activities, as they did not involve interaction with other people.
This interpretation of the Ballas decision was considered in Diaz v Sydney International Container Terminals Pty Ltd:[10]
[10] [2024] NSWPICMP 437 from [110].
“110. The appellant submitted that the discretion given to Medical Assessors by Table 11.12 … was fettered by dicta from Ballas. Although [counsel] did not refer us to the relevant passage, we assume that he was relying on [94] of the joint judgement of Bell P and Payne JA, (Emmett AJA agreeing):
‘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 [whole person impairment] assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie 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.’
111.   This paragraph was considered by Basten JA, sitting in the Common Law Division of the Supreme Court, in Lancaster. His Honour noted that the facts in Ballas concerned a decision of the delegate who declined to refer that appeal to a Medical Appeal Panel. Basten JA noted at [70] that the plaintiff contended in her appeal that the Approved Medical Specialist (as Medical Assessors were then called) had wrongly taken into account, in assessing the social and recreational activities category, “a solitary activity which might have been relevant to other areas of impairment, but did not bear upon that identified as social and recreational activities”. His Honour said at [70]:
‘....The Court accepted that submission, concluding that the delegate did not properly consider whether that contention was capable of constituting a “demonstrable error”.....However, the Court then proceeded, in a passage on which the plaintiff relies, making the following observations:...’
112.   Basten JA then extracted [94] from Ballas, reproduced above.
113.   At [71] his Honour said:
“....The use of the phrase “taking into account an irrelevant consideration” might suggest an error of a kind which would be described as jurisdictional error for the purposes of judicial review, and hence applicable in the present case. However, the Court in Ballas did not say that the delegate was required as a matter of law to identify a jurisdictional error on the part of the medical specialist. It was sufficient (as the Court held) that the delegate had failed, through a misunderstanding of her proper function, to accept an argument that was capable of amounting to “demonstrable error” on the part of the medical specialist.”
114.   His Honour continued at [72]:
“The plaintiff’s reading of Ballas would have surprising consequences. It would mean that every time a medical specialist considered under one scale an activity which a court determined properly fell under another scale, he or she committed jurisdictional error which could be the subject of review in the Supreme Court. The proposition that gambling (or running) may fall within the descriptor “social and recreational activities” if carried out in company (whatever that might imply) but not if carried out alone, and the assessment by a medical specialist whom a court determined had failed to apply that distinction so as to render his or her determination a nullity would be a surprising consequence. It would involve reading down the term “recreational” by reference to the generic and imprecise exemplars in the class descriptions, so as to impose a legal constraint on the valid exercise of power by the medical specialist. A similar exercise would potentially be available for each of the other scale descriptors.
Even if such an implausible reading of the joint reasons in Ballas were correct, it was not necessary for the determination in Ballas....”
115.   In Botha v Secretary, NSW Department of Customer Service[2024] NSWSC 781 Stern JA, also sitting in the Common Law Division of the Supreme Court, considered the dicta in Ballas. Her Honour said from [66]:
‘66 ....In these circumstances, the word “attends” in the Medical Assessor’s conclusion as to categorisation on the Social and Recreational PIRS should be read as encapsulating attendance at social activities both inside and outside of the plaintiff’s home.
67.In my judgment, that is entirely consistent with the proper construction of the Social and Recreational PIRS. In particular, consistent with the approach to construction of the Guidelines set out (authorities omitted), it is appropriate to have regard to considerations of text, context and purpose, and to the fact that the Guidelines are not drafted by Parliamentary Counsel. As to text, table 11.2 must be construed having regard to the clear instruction at [11.12] .... and reflected in Garling J’s judgment in Jenkins, that the examples of activities in the tables are “examples only” and that the assessing psychiatrist should consider activities that are usual for the person’s age, sex, and cultural norms. I have also had regard to the fact that, on the Social and Recreational PIRS against Class 1 – no or minor deficit, the drafter has referred to participation in social activities, whereas against Classes 2 and 3 – respectively mild and moderate impairment, the drafter has referred to a worker going out to “such events”. I doubt very much that it was intended that a higher standard of engaging in activities outside of a worker’s house, rather than participation in such activities, was intended as regards Classes 2 and 3, as opposed to Class 1.
68.As to context, it is clear that the aim of table 11.2 is to provide a tool for trained psychiatrists to assess a worker’s impairment as regards social and recreational activities. Whether particular activities should be assessed as involving no, mild, moderate, or more severe impairment is a matter of judgment and degree for such a psychiatrist, having regard both to their training and to the examples in the Guidelines. It is unlikely in those circumstances that the Guidelines were intended to be proscriptive as to whether activities within or outside of a worker’s home could be taken into account in making such assessments. ...[T]he intention in table 11.2 is not to provide a tool for assessing a worker’s ability to travel outside the home, nor for assessing their ability to sustain friendships. Rather, the intention in table 11.2 is to provide a tool for assessing the worker’s ability to engage in activities that are properly characterised as social or recreational. There is no good reason why such activities would have to occur outside of a worker’s home. Indeed, the artificiality of the plaintiff’s proposed construction is apparent from her contention that a face to face catch up with a friend or friends can be a social and recreational activity if it occurs at the friend’s house but must be ignored when making an assessment using the Social and Recreational PIRS if the friend or friends come to visit the plaintiff. Similarly, it is wholly artificial to suggest, as the plaintiff did, that the plaintiff hosting a birthday party must be ignored when assessing impairment on the Social and Recreational PIRS.
69.Considerations of purpose point in the same direction. Given that the purpose of the Social and Recreational PIRS is as a tool for trained psychiatrists to assess the functional impact of an injury on a worker’s social and recreational activities, there is no sound reason why a distinction should be drawn between activities within or outside of the home. It is the social and recreational character of the activities that is relevant.
70.That is not to say that there may not be scenarios where the circumstances in which an interaction with a friend occurs, including the fact that it occurs in the worker’s own home, or the lack of information about the circumstances of the interaction, might suggest that it is properly to be considered by reference to the PIRS for social functioning rather than social and recreational activities (as was the case in Ballas). However, where, as here, the Medical Assessor recorded that the plaintiff enjoyed visits both to and from her friends, and those visits occurred at a regular frequency and also that the plaintiff enjoyed “small celebrations at home”, such activities can properly be considered as falling within Class 2 of the Social and Recreational PIRS.’
116.   It can thus be seen that, whilst there may be some tension between the interpretations of the Ballas decision, both Stern JA and Basten JA have delivered opinions that a Medical Assessor is entitled to consider in this category, activities that are either carried out at home or which are solitary, or which are both. We accept that the ratio decidendi of Ballas is limited to the correction of the error by the President’s delegate in not referring that appeal to a Medical Appeal Panel.”

It follows that Mr McGrath’s submission that his solitary activity of gardening was an irrelevant consideration in this category, must be rejected. We note that Mr McGrath’s hobby of working on old cars was included in the submission, but in fact the Medical Assessor recorded that Mr McGrath avoided doing so, as Mr McGrath was not motivated anymore.
The relevant classes pursuant to Table 11.2 of the Guides for this category are:
“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.”
As noted above, the Medical Assessor stated in the body of his report, and in his Table 11.8 PIRS Rating Form:
“Mr McGrath told me that he avoids any significant social interaction. He feels anxious around people, especially large crowds. Mr McGrath told me, ‘My kids go on their own if there is any function in the city.’
Mr McGrath avoids any significant interaction with his friends, which reminds him of his previous job and related trauma. He spends most of his time gardening, which he finds therapeutic. Mr McGrath avoids working on old cars: ‘I am not motivated anymore’.”
The reasons given by the Medical Assessor were, with respect, somewhat brief, and their brevity enabled Mr McGrath to claim that on balance they favoured a class 3 rating. The Medical Assessor had found that Mr McGrath avoided any “significant” social interaction, he was anxious around people and particularly around large crowds and he avoided any “significant” interaction with his friends as it reminded him of the trauma he had experienced whilst a police officer. Mr McGrath emphasised his avoidance of “significant” social interaction and relied on the reports of the medico-legal experts, whose unanimous view was that a class 3 rating was appropriate for this category.
Dr Michael Prior, consultant psychiatrist, reported on 13 June 2023 as Mr McGrath’s expert witness. Dr Prior’s opinion as to this category was:[11]
“In terms of socialisation, he reports that his social network has shrunk. He reports that he has become ‘a bit of a loner’. He reports that he is hypervigilant and uncomfortable in public. He states, ‘I avoid those previous friends who just want to go out and drink a lot and I avoid colleagues who are negative and just want to talk about the traumatic jobs at work’. He reports he saw a friend last Friday and went to dinner at his place.
Mr McGrath reports that he sees three friends on a regular basis. He sometimes goes and stays with a cousin. In terms of hobbies, interests and past times, he reports that he is currently doing woodworking and carving. He states, ‘I’m walking for exercise at the moment’. He reports that he has no patience to work on his car collection at the moment.”
[11] Appeal papers page 77-78.
Although Dr Prior rated a moderate, class 3 assessment on these reasons, the Panel considers that they were more consonant with a class 2 rating. There was no suggestion that Mr McGrath would not regularly see his friends or go to dinner unless he had a support person with him, nor was there any suggestion that Mr McGrath would attend these events without being prompted by his family or close friends. His visits to his cousin “sometimes” implies some regularity, and again there was no suggestion that he was accompanied by a support person. Further, the woodworking and carving were activities that were appropriate hobbies within the general definition set out in the descriptors for class 1.
The respondent retained the services of Dr Iftikhar Ahmad, psychiatrist, as its medico-legal expert. The respondent lodged two reports from Dr Ahmad dated 5 August 2022 and
22 August 2022 respectively.[12] Mr McGrath lodged a further report from Dr Ahmad dated
8 September 2023, and it was this report that assessed a class 3 rating for the category.[13]
Dr Ahmad’s view was:
“The worker reported that he has no pleasurable activities other than spending time in vegetable gardening, ‘1-2 hours a day’. He still has old cars but not spending time on them. Wayne reported that he sees one friend, ‘once a month, go and see him’. His relationship with kids is ‘okay’, ‘may be up and down but good’.
He sees parents, 2 sisters and a brother and then added his relationship with father is ‘not as good’. He has one cousin near Lismore, where he goes 1-2 times a year, ‘to get out of Sydney’ as his cousin has a van for him for sleep-over. He said that he
wants to keep distance from people who are negative and those who drinks a lot of alcohol. He does his own grocery ‘once a week or when needed’ but ‘pick my time’ when to go out.”
[12] Appeal papers pages 543 and 550.
[13] Appeal papers page 96.
It can be seen that these reasons too do not suggest a moderate impairment. It is not suggested that Mr McGrath was rarely involved in social activities, nor that he was prompted by family or close friends to become involved, nor that he needed a support person in order to do so.
In any event, the correctness of other opinions is not an issue that affects the function of a Medical Assessor. His function is, to use the language of the High Court,[14] “neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on [the] medical question. The function is in every case to form and give [his] own opinion on the medical question referred to [him] by applying [his] own medical experience and [his] own medical expertise.”
[14] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.
Whilst the path of reasoning expressed by the Medical Assessor was in some respects unsatisfactory, we do not find that it amounted to a demonstrable error.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 April 2024 should be confirmed.

[2024] NSWPICMP 839

9 December 2024