McLeod v Master Hire Pty Ltd
[2023] NSWPICMP 240
•6 June 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | McLeod v Master Hire Pty Ltd [2023] NSWPICMP 240 |
| APPELLANT: | Peter McLeod |
| RESPONDENT: | Master Hire Pty Ltd |
| Appeal Panel | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 6 June 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - The appellant submitted that the Medical Assessor erred in his classifications in 4 of the Psychiatric Impairment Rating Scale (PIRS) categories; Panel found no error with respect to 3 of the categories but error in the category of concentration, persistence and pace; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 27 March 2023 Peter McLeod (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 March 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 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the 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 the Panel is satisfied that we have sufficient evidence before us to enable us to determine this appeal without any re-examination of Mr McLeod.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in his assessments in four categories in the psychiatric impairment rating scale (PIRS) namely Self-care and Personal Hygiene, Social Functioning, Concentration, Persistence and Pace and Employability.
In reply, the respondent submits that no errors were made.
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 appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury occurring on a deemed date of injury of 13 August 2021 (wrongly noted by the Medical Assessor as 2012).
The Medical Assessor obtained the following history:
“He said that there was a lot of bullying, yelling and abuse at work, with a lot of put-downs. He said this was predominantly by Ben Mawby.
He said that he started to have difficulties with his mental health around June to July 2018. These included feeling depressed, not wanting to go to work, and being late to work a few times.
He felt that things were at their worst in 2019, due to a lot of pressure to move to Coffs Harbour, and there was a lot of uncertainty.”
After setting out details of the appellant’s present treatment regime, the Medical Assessor then noted present symptoms as follows:
“His mood has been generally up and down. He said he has been able to enjoy things, such as a new car he got a couple of weeks ago, and it took him three weeks to mount the bull-bar, and he feels frustrated that he has not been able to complete it efficiently. He has issues with going to bed, initiating sleep and waking in the middle of the night and hard to return to sleep, and he gets about 6 hours of sleep. He said he has nightmares about scissor lifts, related to his work experiences. His appetite has been poor, and he has been snacking throughout the day, and will have pie for lunch, Vita Brits for breakfast, and generally eats whatever his wife organises for dinner. He said he has increased in his weight. His energy and motivation were low, though he has been trying to engage with a gym program from Tuesday to Thursday for his Diabetes, though his attendance has been sporadic. He said he has been feeling worthless and guilty. He said he has thought of suicide, but without intent, and having seen the impact of his brother-ine that on his family.
He said his concentration has been poor, with making carless mistakes, being easily distracted while working. He said these are a bit more than his usual ADHD symptoms. He is still able to feed the birds, clean the cages. He cannot read much due to his concentration. He will start watching a movie, then get distracted after half an hour, though prior to the subject injury he would be able to finish watching a movie on returning from work.
He said he tends to worry a lot, that he wishes he could turn everything off. He is anxious about people judging him, leading to him avoiding people, even the neighbours. He also has panic attacks.”
The Medical Assessor then set out details of Mr McLeod’s prior injuries and conditions and said:
“He said he has had depression following his marriage breakdowns, in 1999 and 2003. He said his depressive episode lasted months, and he denied any suicidal ideations or attempts. He said he has been treated, but he cannot recall them. He said he has had psychological as well.
He said he was admitted to a psychiatric hospital in 1999, due to his marriage breakdown and his business was causing him stress. He was in hospital from November to end of December.
He was diagnosed in 1999 with ADHD at the Kempsey Hospital on the basis that he would start and not finish tasks, and he was treated with dexamfetamine, and he was on this for 3 years, but the found that he was concentrating too much, and he was too tired, and fall asleep when he returned home. He had hypertension, which led to him ceasing dexamfetamine.
He said prior to the injury, he would drink about once a fortnight, up to a nip of Southern Comfort, and denied escalating alcohol use. He denied any substance use. He denied any forensic history apart from speeding offences and unregistered vehicle and motorbike.
He said in his family, there is a family history of his son with ADHD…
He has had three long-term relationships, and in the first relationship she had mental health conditions, and the second relationship was critical and nasty to his children.”
The Medical Assessor then set out details of Mr McLeod’s work history and said:
“He said he was scheduled to work in 2019, but he had a panic attack and didn’t proceed with it. I suggested he had done work for Nissan and Kawasaki, which he said he did do,
He said he has been working for the RSPCA, with mowing and weeding. He said he was not paid for that, and does 12 hours a week, in four-hour shifts. He also spends 2 hours during his BBQ shift at Bunnings.
He has a current mechanic licence. I asked if he has worked for Brisbane Motorway Services, which he said he has not done since 2010, and CEMT in 2017 for the Tunnel.”
As regards Mr McLeod’s activities of daily living, the Medical Assessor said:
“He said he lives in Toormina with his wife of 13 years. He said he had an ‘up and down’ relationship with his wife, as he said she doesn’t understand depression, as she gets upset that the house is cluttered, and the lawn needs mowing and cannot understand why he struggles to undertake those tasks. He said they have been having disagreements, but no fights and no periods of separation, though they have not been staying in the same room, though his wife works busy night shifts.
He has three children (43 years old Matt, 40 years old Michael and Sjaan 37 years old). He said he has a strained relationship with his children. He calls his son Matt who lives in Adelaide and calls him fortnightly to see if he is alright, and he has little contact with his other two children.
He has one brother and one sister. He is in regular contact with his sister, and email contact with his brother.
He said he has friends he communicates via Facebook, mainly two of them whom he contacts every ‘couple of weeks.’ He last caught up with them before Christmas, and had coffee and had a chat, while he was doing repairs on his house. He is also in the local Lions Club, and does the local Bunnings BBQ once every 6 weeks, on the afternoon shift with a team of others. He has not participated in the last two BBQs though, as one of them has been invalidating about depression. He has also participated in meetings with the Lions Club who meet every second Tuesday for 2 hours, with his last meeting being the end of January 2023. He said he sees Neil and Therese, whom he saw on New Year’s Eve, and they live locally, and he spent half an hour there for a drink and seeing Neil’s airplanes.
He has been enjoying going to the RSPCA, and enjoying mowing the lawn and cleaning the gardening a bit there, but doesn’t do their own, which is the reason why his wife is frustrated at him.
He also enjoys spending time with his 16 birds and three dogs, having to
care for them, and he walks his dogs, and last went out last night with them.
He does a bit of gardening at home, cleans up the bird cages, and walks the dogs, and does the lawn mowing at the front, but not the back. His wife does the meal preparation and cleaning, though he would cut the steaks up and put them in the containers, and eats them on the plate. He has been showering himself every couple of days, or sometimes every day. He does some of the shopping at Aldi, particularly in the afternoon, when there are less people.
He has been driving, as he likes driving, to Urunga at his mother’s house, and collects the mail there. He also drives to the RSPCA and Bunnings. He has driven to Sydney to see his sister and for a Workcover assessment at Erina two weeks ago, and his niece was also engaged. He drove himself there.”
Findings on mental state examination were reported as follows:
“He presented as casually dressed in a high-vis shirt and was reasonably groomed. He had an average build, and was balding. He engaged cordially in the assessment and provided relevant answers to questions asked.
He told me he was feeling up and down and anxious with his mood. He displayed limited emotional reactivity in the interview.
He spoke articulately and in a logical sequence most of the time, without much prompting.
He had ongoing feelings of worthlessness and death ideations, without plans. He had ongoing ruminations of the incidents at work and frustration at his lack of motivation.
He was alert and appeared grossly cognitively intact.”
The Medical Assessor summarised the injury as;
“Aggravation of Major Depressive Disorder, partial remission, and Aggravation of attentional dysfunction of ADHD…he has had a previous history of recurrent depressive episodes, and ADHD.”
The Medical Assessor assessed 6% WPI from which he deducted one-tenth for the pre-existing conditions, leaving a total of 5% WPI.
He then set out in considerable detail a summary of all the evidence he had before him which he considered in making his assessment, including two statements made by the appellant.
The appellant’s first statement is dated 11 June 2020 and primarily deals with the work issues leading to his injury. In his second statement dated 27 July 2022 he records the impact of his injury on various aspects of his life.
Dealing firstly with the category of self-care and personal hygiene, the appellant submits as follows:
(a) Dr Shen incorrectly applied the class descriptors set out in Table 11.1 for ‘Self-care and Personal Hygiene’. In assigning a Class II, he considered matters that fell outside of the Class to reach his conclusion, specifically the following: ‘He does a bit of gardening at home, cleans up the bird cages, and walks the dogs, and does the lawn mowing at the front, but not the back’;
(b) Dr Shen goes on to state: ‘His wife does the meal preparation and cleaning, though he would cut the steaks up and put them in the containers, and eats them on the plate’ and ‘He does some of the shopping at Aldi, particularly in the afternoon, when there are less people’;
(c) the appellant acknowledges that the examples in Table 11.1 are examples only and are not exclusive. However, whilst a Medical Assessor retains a degree of discretion and is entitled to exercise their clinical judgment in conducting the assessment, the PIRS categories limit the boundaries of that judgment and discretion;
(d) the examples in Table 11.1 all refer to a worker's ability to look after the self. They concern the degree to which a worker can live independently and to look after one's self adequately. The examples refer to the extent to which a worker requires assistance with meal preparation and matters of personal hygiene. None of the examples suggest that the ability to garden, clean bird cages, walk dogs or mow the lawn should be taken into account. Self-evidently, these have nothing to do with an assessment of a worker's capacity for self-care and personal hygiene. In fact, Dr Shen took a scant history of the pertinent aspects of the Appellant's capacity for self-care and personal hygiene. The clear implication is that he failed to give these proper consideration;
(e) when the irrelevant factors considered by Dr Shen are disregarded, what is left is a description of the Appellant as a man who ‘has been showering himself every couple of days, or sometimes every day’ and a man who appears to rely on his wife for meal preparation;
(f) while Dr Shen seems to have failed to obtain a full history concerning the Appellant's capacity for self-care and personal hygiene, other evidence was available to Dr Shen that he did not consider at all. In this regard, the following evidence was available from the Appellant's statement: ‘Since ceasing work with Master Hire I have struggled to exercise personal care and basic hygiene. I shower every few days and this is usually because my wife has prompted me. I goes for days at a time without brushing my teeth, as a result of this I have had a number of teeth extracted in the last couple of years’. I struggle to undertake household duties and chores. My wife does most of the housework… I struggle to pick up my clothes or put things away;
(g) Dr Khan took a history from the Appellant that he ‘showers and brushes his teeth every few days. He relies on his wife for meal preparation.
Mr McLeod's appetite has been disturbed and he has gained weight. He neglects activities of daily living and domestic duties’, and(h) consequently, when all of the available, relevant evidence is considered and irrelevant criteria disregarded, the Appellant submits that the appropriate Class for Self-Care and Personal Hygiene is Class Ill.
In assessing a Class 2, the Medical Assessor said:
“He does a bit of gardening at home, cleans up the bird cages, and walks the dogs, and does the lawn mowing at the front, but not the back. His wife does the meal preparation and cleaning, though he would cut the steaks up and put them in the containers, and eats them on the plate. He has been showering himself every couple of days, or sometimes everyday. He does some of the shopping at Aldi, particularly in the afternoon, when there are less people.
Dr Khan reported Self-care = 3, grooms every 3 days, relies on wife for meal preparation and neglects self-care. Dr Vickery reported he had some reduced hygiene and grooming.
Overall, he would be able to self-care independently, though perhaps not to the extent as before the subject injury. Hence he has mild impairment.”
As the appellant correctly pointed out, “the examples in Table 11.1 are examples only and are not exclusive”.
The concept of “self-care and personal hygiene” is not defined in the Guidelines. They refer to examples or “descriptors” relevant to the assigning of a specific class.
The Medical Assessor addressed a number of factors relevant to this category. For example, he noted that Mr McLeod “has been showering himself every couple of days, or sometimes everyday”. He also does some of the shopping, for food, and helps in some preparation (cutting up steak) clearly relevant to this category.
In our view, activities such as a bit of gardening and cleaning up bird cages, and some lawn mowing, although not as relevant as attending to nutrition and hygiene, form part of the capacity to maintain a hygienic and safe living environment, and contribute to assessing the person’s capacity to manage oneself. Furthermore, these activities are not better placed in another category in the PIRS. Even setting aside these activities, the Medical Assessor took sufficient history to justify a rating of 2 and no error can be discerned.
For these reasons, we do not accept that the Medical Assessor erred in his assessment in this category.
Turning next to the category of social functioning, the Medical Assessor assessed a Class 2 and said:
“He said he lives in Toormina with his wife of 13 years. He said he had an ‘up and down’ relationship with his wife, as he said she doesn’t understand depression, as she gets upset that the house is cluttered, and the lawn needs mowing and cannot understand why he struggles to undertake those tasks. He said they have been having disagreements, but no fights and no periods of separation, though they have not been staying in the same room, though his wife works busy night shifts.
He has three children (43 years old Matt, 40 years old Michael and Sjaan 37 years old). He said he has a strained relationship with his children. He calls his son Matt who lives in Adelaide and calls him fortnightly to see if he is alright, and he has little contact with his other two children.
He has one brother and one sister. He is in regular contact with his sister, and email contact with his brother.
He said he has friends he communicates via Facebook, mainly two of them whom he contacts every ‘couple of weeks.’ He last caught up with them before Christmas, and had coffee and had a chat, while he was doing repairs on his house.
Dr Khan reported Social Functioning = 3, significant difficulties with his wife, and loss of libido, and withdrawn from family.
Dr Vickery described that he had a supportive relationship with his wife and children.
Overall, while there has been strain in the relationship with his wife, there has not been any significant separation or fighting, and similarly with his children, and friends. Hence, there is mild impairment.”
The appellant submits as follows:
(a) in assigning Class II, he primarily relied on the state of the appellant's relationship with his wife of 13 years. While Dr Shen recorded a history that the appellant's relationship with his wife was "up and down", he failed to consider all of the available evidence, nor explain what "up and down" precisely means;
(b) at paragraph 36 of his [second] statement, the appellant states: "My relationship with my wife has experienced significant difficulties. We are no longer intimate due to my loss of libido and lack of confidence. We now sleep in separate rooms”;
(c) Dr Shen appears to have relied on the fact that the appellant communicates with friends via Facebook to arrive at the conclusion that he is mildly impaired. Specifically, Dr Shen states that "He said he has friends he communicates via Facebook, mainly two of them whom he contacts every 'couple of weeks’;
(d) the fact that the appellant now relies on Facebook as his primary means of communicating with friends suggests there has been a significant change in his capacity to engage in person with those friendly and familiar to him;
(e) Dr Shen failed to consider all of the available evidence concerning the appellant's social functioning. For example, at paragraph 33 of his [second] statement, the appellant states: "I find that I am easily agitated and can be quick to anger. I feel fatigued most of the time. I have anxiety answering the phone and tend to avoid it by sending all calls to an answering machine. I believe that my close friends are avoiding me because of my now irritable and intolerant mood. I tend to stay at home with my animals", and
(f) when all of the relevant evidence is considered, the appropriate Class for Social Functioning is Class Ill.
The descriptor for a Class 2 rating reads: “Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
The descriptor for a Class 3 reads: “Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
In assessing a Class 3, Dr Khan said:
“Mr Mcleod described significant difficulties in his relationship with his wife. He is no longer intimate due to his loss of libido. Mr Mcleod sleeps in a separate room to his wife now. He has withdrawn from his extended family and has lost many friendships.”
Dr Khan assessed the appellant on 10 June 2021, some 19 months prior to the Medical Assessor who saw him on 27 February 2023.
The history obtained by the Medical Assessor in this category differs significantly from that obtained by Dr Khan.
For example, the appellant told the Medical Assessor that he had “regular contact with his sister, and email contact with his brother” and that although he had disagreements, with his wife, there were “no fights and no periods of separation”.
The Medical Assessor also noted that:
“He said he has friends he communicates with via Facebook, mainly two of them whom he contacts every ‘couple of weeks.’ He last caught up with them before Christmas, and had coffee and had a chat…”
The use of Facebook for communication with friends or family is not uncommon these days, and does not of itself indicate a significant impairment in this category.
Moreover, the contact the appellant described to the Medical Assessor was not indicative of severely strained relationships since they apparently had contact “every couple of weeks”.
Clause 1.6 of the Guidelines notes that the task of a Medical Assessor is to assess a claimant as they present on the day of the assessment.
There is nothing in the history obtained by the Medical Assessor that accords with the descriptor for a Class 3 rating.
Indeed, in our view, the evidence points strongly to a Class 2 rating as assessed by the Medical Assessor.
We accept the comments made by the appellant in his statement to which he refers, but they certainly differ somewhat from the history he gave to the Medical Assessor.
For these reasons, we cannot see any error by the Medical Assessor in his assessment in this category.
Turning next to the category of concentration, persistence and pace, the Medical Assessor assessed a Class 2 rating and said:
“He said his concentration has been poor, with making careless mistakes, being easily distracted while working. He said these are a bit more than his usual ADHD symptoms. He is still able to feed the birds, clean the cages. He cannot read much due to his concentration. He will start watching a movie, then get distracted after half an hour, though prior to the subject injury he would be able to finish watching a movie on returning from work. He was alert and appeared grossly cognitively intact.
Dr Khan reported Concentration = 3, struggles with concentration and poor memory.
Dr Vickery reported that he has some difficulties with concentration.
Overall, he has had a mild worsening of his cognitive function over and above his baseline untreated ADHD.”
The appellant submits as follows:
(a) Dr Shen relied on the Appellant's capacity to feed birds and clean their cages in reaching the conclusion that the Appellant should be placed in Class II. Even if these activities were somehow relevant, the act of feeding birds and cleaning bird cages is a very simple, straight forward task requiring very little thought. The examples set out in Table 11.5 deal with a worker's capacity to concentrate on minor to complex tasks;
(b) Dr Shen also failed to consider relevant evidence which indicated that the Appellant was having difficulty performing complex tasks. Dr Shen records that the Appellant had recently acquired a new motor vehicle, yet it took him 3 weeks to mount a bull bar, a task that ought to have been a very straight forward one for a motor mechanic. That is clear evidence of difficulty in following installation instructions;
(c) at paragraph 31 of his statement, the appellant states ‘I have attempted to rebuild my chainsaw. This type of project in the past would have taken me roughly a day, now it has taken more than a year to complete’;
(d) at paragraph 30 of his statement, the appellant states: ‘I regularly struggle to maintain attention and concentration. I feel unable to focus on cognitively challenging tasks such as reading. I feel as though my memory is also affected’;
(e) Dr Shen concluded that ‘Overall, he has had a mild worsening of his cognitive function over and above his baseline untreated ADHD’. This indicates that
Dr Shen took into account a pre-existing condition (ADHD) when deciding the appropriate Class to assign. However, Dr Shen also relies on the diagnosis of ADHD in order to reduce his assessment of WPI for pre-existing conditions. He has to do one or the other, but cannot do both. The effect of what Dr Shen has done is to ‘double count’ a factor that is adverse to the Appellant in his assessment of the Appellant's WPI. The Appellant does not seek to disturb the section 323 deduction made by the Assessor, which he agrees it was open to the Assessor to find. However, he should not have considered the pre-existing condition when assigning the class value, and(f) the appropriate Class for Concentration, Persistence and Pace is Class Ill.
The descriptor for a Class 2 rating reads: “Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.”
For a Class 3 it reads: “Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
In this instance we agree with the thrust of the appellant’s submissions, particularly in point e above.
The appellant’s untreated ADHD must lead to a degree of cognitive impairment.
Moreover, as the appellant points out, the Medical Assessor has “double counted” this factor.
In addition, we note that in the past, the appellant was able to undertake many tasks consistent with his occupation as a motor mechanic, but as the Medical Assessor recorded, these tasks now take much longer than previously.
For these reasons we agree that the Medical Assessor should have assessed a Class 3 rating in this category, which the Medical Assessor implied in rating the impairment as mild only “over and above his baseline untreated ADHD”.
Turning finally to the issue of employability, the Medical Assessor assessed a Class 3 rating and said:
“Given his capacity to participate in volunteering roles, including basic handyman work for the RSPCA, involvement with the Lions club and caring for his animals, he likely has partial capacity for some form of work, in spite of some worsened mood, motivation and concentration, and has moderate impairment.
Dr Khan reported Employability = 5, not working due to mental and cognitive difficulties.”
The appellant submits as follows:
(a) Dr Shen's score of Class Ill for Employability is at odds with all of the available evidence;
(b) Dr Shen relies on the fact that the appellant has participated in "Volunteering roles including basic handyman work for the RSPCA; involvement with the Lions Club and caring for his animals”;
(c) while Dr Shen does not specifically say so, the history he records indicates that the Appellant cannot work at all as a motor mechanic;
(d) in his statement the appellant states:
"I feel physically and mentally unable to undertake any type of paid work. I also occasionally volunteer with the RSPCA, mowing the lawns with a ride on mower. I generally do not need to interact with people, and therefore this is manageable. However, even with volunteering, I can experience severe anxiety. For example, one time I volunteered to make dog treats at the RSPCA, but cancelled beforehand and told them I had a migraine. I did not really have a migraine, I was just too anxious to attend”;
(e) the appellant has not worked since he left employment with the respondent apart from a single shift with Mystery Shoppers on 14 October 2020;
(f) in light of the above evidence, when the appellant's "volunteer work" is considered in its proper context, it cannot be considered as reliable evidence of a residual earning capacity or a capacity to engage in part time paid employment. It is clear from the appellant's statement that there are constraints on the "volunteer work" he performs and that his symptoms make his reliability poor, and
(g) the appellant is for all intents and purposes unfit for paid employment and that the appropriate Class for Employability is Class V.
The descriptor for a Class 3 rating reads:
“Moderate impairment: Cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).”
For a Class 5, it reads: “Totally impaired: Cannot work at all.”
The appellant, through his voluntary work, has certainly demonstrated that he has the skills and ability to undertake various tasks within a range of organisations. Undoubtedly both the RSPCA and the Lions Club would take steps to ensure that even their voluntary workers were able to reliably and responsibly carry out the tasks assigned to them.
The fact that the work is voluntary does not in itself suggest total impairment in this category.
We certainly agree with the MA that Mr McLeod is indeed impaired, but we do not accept that the totality of the evidence supports a Class 5 rating for reasons that follow.
We note that in his second statement, Mr McLeod said:
“After I stopped work for Master Hire, my mental state was such that I could not bring myself to find another job. I kept thinking about the way I had been treated by Master Hire and by Mr Mawby in particular. The more I thought about it the worse I felt…”
It is clear from both Mr Mcleod’s statements and indeed the history he gave to the Medical Assessor about his work with the respondent, that he still harbours considerable anger about various aspects of his job. Whilst this is perhaps understandable, his statement above suggests that it is his ruminating on the way he was treated that has prevented him from seeking other employment.
In our view, the evidence is broadly consistent with the Class 3 descriptor.
We should also point out that mere disagreement with an assessment is not a proper basis for appeal.
In conclusion, it is perhaps timely to set out the task of an Appeal panel as stated in Ferguson v Stateof New South Wales [2017] NSWSC 887 where Campbell J said:
“[23] By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS: ‘... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’ (our emphasis).
[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’…
[37] The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’…”
In summary, save for the category of Concentration, Persistence and Pace, there is nothing “glaringly improbable” about the Medical Assessor’s assessments, nor can we see that he demonstrated that he was unaware of significant factual matters, or misunderstood such matters or demonstrated an unsupportable reasoning process.
The MAC however should be revoked because of the error to which we have referred to above.
This means that the aggregate score is as follows: 1, 2, 2, 2, 3, 3 = 13, median of 2, and a WPI of 7%.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 March 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W5207/22 |
Applicant: | Peter McLeod |
Respondent: | Master Hire Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Yu-Tang Shen, and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychiatric injury | 13 August 2012 (deemed) | Chapter 11, page 54 | Chapter 14, pg 361-365 | 7% | 1/10th | 7% |
| Total % WPI (the Combined Table values of all sub-totals) | 7% |
0
2
0