Micalizzi-Triolo v Secretary, Department of Education (TAFE)
[2023] NSWPICMP 596
•20 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Micalizzi-Triolo v Secretary, Department of Education (TAFE) [2023] NSWPICMP 596 |
| APPELLANT: | Antonella Micalizzi-Triolo |
| RESPONDENT: | Secretary, Department of Education (TAFE) |
| APPEAL PANEL | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 20 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Worker alleges Medical Assessor (MA) erred in assessing the psychiatric impairment ratings scale (PIRS) categories of self-care, travel, and concentration; Panel accepts that MA did not provide adequate reasons for his classification of the latter two classes; Wingfoot Australia Partners Pty Ltd v Kocak applied; after re-examination by a Member of the Panel, travel and concentration assigned the same classification as in Medical Assessment Certificate (MAC); Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 31 May 2023, Antonella Micalizzi-Triolo (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 15 May 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant was formerly employed by the Department of Education (the respondent) as a language teacher at Newtown High School. In 2019, she was unexpectedly placed on a support plan following complaints by parents to her headmaster. While working on a “support program” she found her students were “uncooperative, confrontational and disrespectful.” There was also conflict with their parents.
In 2020, the appellant ceased work and sought treatment from her general practitioner. She was referred to Dr Anna Farrar, a psychiatrist, who initially assessed her on 18 September 2020. She was also referred to a psychologist, Mary Sawyer. Dr Farrar diagnosed the appellant with an acute exacerbation of a chronic anxiety/depressive disorder.
While the appellant attempted to return to work as a teacher, she has been certified as unfit for work since May 2021. The respondent’s workers compensation insurer ultimately accepted liability to pay the appellant compensation pursuant to the provisions of the Workers Compensation Act 1987 (the 1987 Act).
On 23 March 2022, the appellant saw Dr Richa Rastogi, a consulting psychiatrist, at the request of her solicitor for the purposes of assessing permanent impairment. By a report of that date, Dr Rastogi expressed the opinion that the appellant suffered a chronic adjustment disorder with anxious distress. She assessed the appellant as suffering 19% whole person impairment (WPI) in accordance with the Psychiatric Impairment Rating Scale (PIRS).
On 7 November 2022, the appellant saw Dr Inglis Synnott at the request of the solicitor for the respondent. He diagnosed a major depressive disorder. He assessed 7% WPI in accordance with PIRS. He made a deduction of 10% pursuant to s 323(2) to reflect the appellant’s chronic pre-existing psychiatric vulnerability.
The difference of opinion between Dr Rastogi and Dr Synnott as to WPI gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act. Accordingly, a delegate of the President referred the dispute for assessment to Dr Gerald Chew. It is from his MAC, dated 1 May 2023, that the appellant brings this appeal.
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 concluded that there was prima facie error in the MAC in the PIRS categories of Travel and Concentration, persistence and pace. Conversely, it was unable to find error in the category of Self-care and personal hygiene. As the ostensible errors affected two PIRS categories, and as the appellant’s solicitor sought further medical examination by a member of the panel, the Panel determined that the appellant should be re-examined by Dr Michael Hong.
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 medical certificate 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 here in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in the assessment of the PIRS categories of Self-care and personal hygiene, Travel, and Concentration, persistence and pace.
In respect of Self -care, the appellant submitted that the MA did not “properly investigate” her circumstances in respect of this category. It was not apparent that he carried out “any proper examination as to her self-care and personal hygiene”.
The appellant referred to the report of Dr Rastogi dated 23 March 2022, in which the doctor opined that the appellant fell within Class 2, after noting that she needed “effort to self-care”. She also referred to aspects of her written evidence in which she stated that she lacked motivation in respect of personal care and that her husband prepared meals.
The appellant submitted that the classification of Self-care should be revised “from no deficit to mild impairment and to class 2”.
In respect of the category of Travel, the appellant argued that the MA:
“assessed the appellant as falling within class 2 in this category, whereas the circumstances of the appellant indicate that she falls within Class 3, i.e. moderate impairment.”
The appellant noted that the MA had recorded that she went shopping only once or twice a month, and that she could not drive alone. She again submitted that the MA had failed to consider her statement evidence that she did not leave the house unaccompanied and “no longer drives.”
In respect of Concentration, persistence and pace, the appellant submitted that there was no evidence that she had the capacity to undertake a basic retraining course or a standard course at a slower pace in accordance with the descriptors for Class 2 in Table 11.5 of the Guidelines.
The appellant submitted that the MA had determined classification in this category on the basis of irrelevant factors which provided no proper basis for assigning of Class 2. She submitted that he had not provided any basis for his preference for the opinion of Dr Synnott over that of Dr Rastogi in this category. Thus, his reasons were inadequate.
Further, the appellant submitted that the MA’s reference to “household tasks” was mistaken as it was not a “threshold matter” in the category of Concentration, persistence and pace. The descriptors required an examination of the worker’s capacity to maintain concentration “in relation to intellectual tasks or detailed manual tasks.” She submitted that the MA had failed to consider the prescribed criteria for Class 3. She noted that both Dr Rastogi and Dr Farrar had addressed the issue of the appellant’s poor concentration and difficulties with memory. The MA had also recorded in his MAC that the appellant experienced “poor memory and concentration.”
The appellant, therefore, submitted that the classification in this category should be “revised from class 2 to class 3, in accordance with the evidence and the criteria for moderate impairment”.
The respondent submitted that the classification of the MA should be upheld in each of the three challenged PIRS categories. It submitted that the assessment of Class 1 for Self-care was “open and available” on the evidence and the information provided by the appellant at the consultation.
The respondent argued that it was for the MA to determine “the significance or otherwise of the matters raised in the consultation” in accordance with the reasoning of Campbell J in Ferguson v State of New South Wales.[1]
[1] [2007] NSWSC 887 at [23].
In respect of Travel, the respondent submitted that there was no basis to find error in the classification of the appellant as falling within Class 2. It noted the findings of the MA that the appellant “generally” had a support person when travelling. This suggested that “she is occasionally able to travel to areas on her own.” That was sufficient to enable a classification of a mild rather than a moderate impairment.
In respect of Concentration, persistence and pace, the respondent submitted that:
“The MA provided details of the actual path of reasoning under the heading Social activities/ADL and Differences in WPI to identify the classification of the appellant’s impairment with class 2 for Concentration, persistence and pace of the PIRS.”
The appellant also noted that Dr Synnott, the respondent’s qualified psychiatrist, also assessed Class 2 for Concentration, persistence and pace.
Further medical examination
Medical Assessor Hong of the panel re-examined the appellant on 12 October 2023. Insofar as it is relevant, his report is as follows:
HISTORY RELATING TO THE INJURY
· History:
Ms Micalizzi-Triolo previously suffered depression and anxiety and had been on Zoloft for years. As a result of work stress, she reported that her depression and anxiety returned and the first work stressor was around 2019, related to the Instagram issue. She stopped work in November 2019 and then returned to work, however, there were further problems. There were stresses related to the COVID pandemic and then concerns were raised about her performance. Ms Micalizzi-Triolo said she was on a support plan and never on a performance management plan. She reported that the principal never looked at the program she had prepared, and had accused her of being condescending to the children, which was untrue. She engaged in a gradual return to work plan, initially one day, and eventually five days a week. After about four to six weeks, however, there was an accusation by a student that she grabbed her arm and was verbally abusive. The deputy principal approached Ms Micalizzi-Triolo and claimed bruises could be seen on the student. She said she had never grabbed the student's arm and felt very distressed and then called the Teachers' Federation, who asked her to contact the Department. She said she realised that things were escalating at work at that time, and did not feel well enough to continue working. She said she did not know what the children were saying about her at school and worried that she was going to be bullied further by her employer as well. She last worked in May 2020 and is still employed by the Department. She started treatment with Dr Farrar, psychiatrist in June 2020 and started treatment with Mary Sawyer, psychologist. Her anxiety and depressive symptoms have not resolved and she has not felt significantly different after Dr Chew’s assessment.
· Present treatment:
Ms Micalizzi-Triolo is taking:
·Zoloft 200 mg daily
·Seroquel 25 mg as needed for sleep, not daily.
She consults Mary Sawyer, psychologist regularly and Dr Anna Farrar, psychiatrist, recently every 3 months.
· Present symptoms:
Ms Micalizzi-Triolo reported that her psychological health has not changed and there may be moments where she felt more down. For example, when she was worried about her parents’ health or if she had a disagreement with her son, or worries about finances and paying bills. She said she will then go through a period where she feels "clouded and lethargic" and will lie down, and then after a while, she will pick up again.
She has chronic fluctuating anxiety and depressive symptoms.
She reported she goes to bed at midnight and described having initial insomnia. Sometimes she does not wake up during the night and sometimes she will wake up a few times. She will get up out of bed between 8 and 10 a.m.
She has never had suicidal thoughts or hallucinations.
he reported having major problems with her concentration and memory.
She reported that she does not drink much alcohol, and might have three or four glasses of wine in a week now.
In terms of weight, she reported that she had lost 10kg weight in 2023 because she only eats one meal a day. I asked her why she had lost so much weight this year, when her weight seemed to be stable when seen by the previous IME and asked what her psychiatrist has done about her weight loss. She said she told her psychiatrist about her weight loss, but because her weight is stable they do not need to do anything. She reported her weight has been stable at 52kg but she cannot tell me for how long. She said if she loses more weight, she will eat more and that she is into having a healthy diet. She eats salads, organic food, a bit of meat and has regular seafood. The husband cooks all the food, or they will order food. She said now, she eats one meal a day and sometimes two meals a day.
There has been no problem with irritability.
· Social activities/ADL:
Ms Micalizzi-Trilolo is 64 years old. She is living with her husband, who is not working. They have three adult children with one living at home.
She spontaneously told me that her husband is with her 24/7 and she cannot do anything without support. I discussed with her that this seems different to how she was described when seen by previous assessors. She clarified her statement and said that she does not feel comfortable by herself and that her husband is there for moral support, and if he needs to go away and do things during the day, he will go away and she will be on her own, and she stated this is the same thing that she told all the other assessors.
In terms of driving, Ms Micalizzi-Triolo said she does not feel up to it as she cannot focus, and therefore has not driven for a long time. I discussed with her, that when assessed previously, she appeared to be driving, at least intermittently. She agreed that she was driving by herself previously and now she said she does not and there is no particular reason, other than saying that she does not feel confident.
Ms Micalizzi-Triolo said she does not go out on her own and only goes out with her husband or her family. On clarification, she said that what she meant by this, is that in the past she would go out to get coffee with her friends or eat out, go to parties and go to galleries, but she does not do any of these activities. She can still be out on her own now. When she goes shopping with her husband, her husband drives, or her husband might drop her off, and she goes shopping with her mother. Her mother is 83 and she said that she will spend a couple of hours at the shops with her mother and also help her mother, and that she can be out on her own as well.
She does not argue with people and reported that she has a good relationship with her husband and children. She said she does not talk to her friends and has not had any contact with any friends for a long time now. Her parents are elderly. Her father is 93 and he was recently in hospital. She visited her father in the hospital. Her parents come to visit her sometimes, and some of her relatives come to visit her at home as well.
Her husband attends to the bills now and she said she does not have the concentration to do it.
Ms Micalizzi-Triolo reported that she normally likes to read books and she does not do this now. She said she tried to read but after about five minutes, she could not focus and had to put the book down. She still reads online, such as the news headlines and will listen to the video clips. I asked about audiobooks and she said that she had not done this for maybe five or six years, and that she does not do anything for long. Her psychiatrist suggested that she join a book club, but she did not join. I discussed that Dr Farrar thought that she was listening to audiobooks, and Ms Micalizzi-Triolo said she was not.
She reported that she finds watching movies relaxing and she likes to watch movies about crime and adventure. She has tinnitus that comes and goes, and it is not a major problem.
I asked about ‘family obligations’ that her psychiatrist referred to and she said that she likes to put her focus on her family and look after them and be present for them. Her daughter lives in Canberra and comes home intermittently, and her son and grandchildren will visit maybe once or twice a week.
FINDINGS ON PHYSICAL EXAMINATION
Ms Micalizzi-Triolo was assessed by video. She was at home and her husband, Mr Giuseppe Triolo was present during the assessment. I assessed her from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the assessment. The assessment took 50 minutes.
Ms Micalizzi-Triolo was given the wrong date for the assessment. I offered to reschedule the assessment. After consideration, she and her husband proceeded with the assessment today.
She was bespectacled and her hair was tied back. She engaged well with the assessment. There was no psychomotor slowing or agitation. She was mildly restricted in her affect range and reactivity. She smiled and laughed briefly. She spoke spontaneously and gave a clear history and provided clarification when needed. She listened to the excerpts from her records, and gave considered answers. She remained focused throughout the assessment and maintained a steady pace and speed.
SUMMARY
· summary of injuries and diagnoses:
Since the assessment by Dr Chew, Ms Micalizzi-Triolo reported that she does not feel like she has improved or deteriorated. She has chronic symptoms and intermittently when feeling stressed, there might be a few days when she is more symptomatic. The history she provided today was not entirely consistent with the previous assessments. She initially stated that her husband needs to provide support 24/7, although later on, she also said he does go away and leave her on her own. She also described markedly impaired concentration and memory, which she said she has had for a long time now, but on assessment, there was no overt cognitive impairment.
I have diagnosed a Major depressive disorder.
· consistency of presentation
Ms Micalizzi-Triolo's reported functioning is not consistent with that recorded in previous reports, and I discussed the previous reports, as noted below with her and noted her responses.
Dr Anna Farrar, 12 July 2021, noted initial contact 18 September 2020. She consented to the report being prepared. Ms Micalizzi-Triolo is not exercising and tries to read but has ongoing problems with attention and concentration and is using audiobooks. Her mental state examination was provided in September, October, November 2020 and January, March, May and June 2021. In the last two entries on 10 May 2021 and 6 June 2021, Dr Farrar noted evidence of mild memory impairment.
Dr Rastogi, 25 February 2021, noted that Ms Micalizzi-Triolo catches up with friends occasionally, manages the household work, but struggles with multitasking and doing complex tasks. She enjoys movies and finds them relaxing. She has mild travel impairment as experiences mild anxiety with travel. She has moderate impairment in CPP as struggles with attention and inability to comprehend and inability to make complex decisions.
Dr Rastogi, 23 March 2022, noted that Ms Micalizzi-Triolo avoided driving and only if needed, she would she drive. She lacks concentration and could read for 10 minutes of light reading with poor comprehension and is unable to make decisions and multitask, with poor retention, and also noted that she was oriented to time, place and person. She had mild travel anxiety impairment and drives locally only, and moderate impairment with concentration and struggled with an inability to comprehend and make complex decisions.
Dr Synnott, 20 January 2020, noted no difficulty in travel, most days she would drive the car. No difficulty with concentration and memory and reads up to an hour most days. At that time he felt she had no psychiatric disorder.
Dr Synnott, 13 November 2022, noted Ms Micalizzi-Triolo had not improved. In a week, on two or three occasions she will be a passenger or drive a car and does not walk in her local area. She reads very little except headlines, however, on assessment, she presented as vague without overt cognitive impairment.
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
PIRS Category
Class
Reason for Decision
Self-care and personal hygiene
1
From Dr Chew’s MAC.
Social and recreational activities
3
From Dr Chew’s MAC.
Travel
2
Ms Micalizzi-Triolo has anxiety and prefers to be accompanied. She does not drive now. She can be out on her own. Her husband or a support person is not always with her.
Social functioning
2
From Dr Chew’s MAC.
Concentration, persistence and pace
2
Ms Micalizzi-Triolo described having subjectively very poor concentration.
She reads online, generally only the news headline. She watches movies regularly. She does not read books, listen to audiobooks or engage in other intellectually demanding tasks.
Her mental state examination is consistent with 1 or 2
as she could follow complex questions and engaged in the assessment well for 50 minutes, which is an intellectually demanding task.
Employability
5
From Dr Chew’s MAC.
Score
Median Class
1
2
2
2
3
5
=2
Aggregate Score Impairment
Total
%
+
+
+
+
+
15
+1% treatment uplift
= 9%
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This sub-section was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in her application.
In Campbelltown City Council v Vegan,[2] 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.
[2] [2006] NSWCA 284 (Vegan).
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW.[3] 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. However, in Versace v Australia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the Medical Assessor without first identifying error.
[3] [2008] NSWCA 116.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Ltd V Kocak[4] that it is only necessary for the MAC to explain the actual path of reasoning of the Medical Assessor in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[4] [2013] HCA 43.
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation Legislation; see, for example, El Masri v Woolworths Ltd[5].
[5] [2014] NSWSC 1344 (26 September 2014)
In the MAC, the MA recorded the following In respect of the appellant’s activities of daily living:
“she attends to cooking, cleaning and organising at home. She does not attend social events. She sees family at home or with her husband at their house. She is able to go to shopping once or twice a month. She cannot drive along (sic). She watches TV shows to relax but cannot concentrate on a full movie.”
Self-care and personal hygiene
The descriptors for Class 1 in this category are:
“…no deficit, or minor deficit attributable to the normal variation in the general population.”
The descriptors 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.”
In his reasons for assigning Class 1, the MA stated that the appellant’s Self-care and personal hygiene was “adequate”. He also referred to the opinion of Dr Synnott who had also assigned Class 1. Dr Synnott recorded that:
“Despite her anxiety and poor appetite, she is psychiatrically independent in this area.”
In the opinion of the panel, it was open to the MA to assign Class 1 in this category. There is evidence which is consistent with the determination of the MA and there is no overwhelming evidence to the contrary. Plainly, the MA’s reference to self-care being “adequate” was intended to convey his impression that it falls within the normal variation in the general population. While Dr Rastogi assigned Class 2 in this category, it is inappropriate, as the respondent submits, to elevate a difference of opinion on the issue to a demonstrable error.
While the appellant asserts that she has to make an effort to achieve aspects of Self-care this fact alone does not prove that the appellant must be classified as suffering a mild impairment in this category.
Travel
Table 11.3 contains the following descriptors for Class 2:
“Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
The descriptors for Class 3 are:
“Moderate impairment: cannot travel away from home residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”
The MA recorded that the appellant could not drive alone. By her most recent statement dated 14 December 2022, the appellant said this:
“I only really leave home for grocery shopping and appointments and my husband accompanies me when I am out. I do not go by myself as I feel vulnerable and anxious. I avoid driving now.”
In his reasons for assigning Class 2, the MA recorded that the appellant was only able to travel in familiar areas “but generally has support person”.
As the appellant argued, aspects of her statement, and the history recorded by the MA, is consistent with the assignment of Class 3 in this category. The panel concluded, at the preliminary conference, that the reasons in the MAC did not demonstrate the actual path by which the MA assigned Class 2 for this category. That constitutes a demonstrable error.
Concentration, persistence and pace
Table 11.5 of the Guidelines provides the following descriptors for Class 2:
“Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.”
The descriptors for Class 3 are as follows:
“Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
In assigning Class 2, the MA gave the following reasons:
“Able to focus on daily tasks for no more than 30 minutes.”
The MA also recorded that he preferred the view of Dr Synnott in classifying this category. Relevantly, Dr Synnott had recorded the following:
“At the assessment, despite her subjective sense of moderate difficulties with concentration and memory, only occasionally vague about exact details and generally able to maintain focus and recall details for the duration of assessment. No overt cognitive impairment.”
The descriptors found in Tables 11. 1-6 of the Guidelines are “examples only”. A patient’s account of their activities of daily living will often convey restrictions or symptoms that fall into more than one class. In those cases, an assessor must be given considerable latitude in determining a classification based on his professional expertise. In the opinion of the panel, however, the exceedingly brief reasons given by the MA provide no logical explanation of why he assigned Class 2.
Plainly, the assessment of Concentration, persistence and pace is not capable of assessment solely by reference to the worker’s subjective complaints or their account of their activities of daily living. It must be assessed in the context of the mental state examination performed by the MA. As Dr Synnott recorded in this case, there is often a discrepancy between a patient’s account of their functioning and the findings of the psychiatrist on clinical examination in respect of their ability to function. In some cases, the worker’s account of their functioning must be modified or put to one side to conform with the outcome of the examination.
The MA performed a mental state examination in this case. There is also other evidence which points to a moderate impairment in this category. However, the panel concluded that there was force in the appellant’s submissions that the reasons recorded by the MA for assigning Class 2 in this category bore little relationship to the criteria prescribed by the Guidelines. While there may be a proper basis for the assignment of Class 2, the panel was unable to follow the path by which the MA made this determination. As the appellant submitted, the fact that the applicant could focus on “daily tasks” for up to 30 minutes is not one of the criteria referred to in the Guidelines. While it may be material, it cannot be determinative of classification.
Following Dr Hong’s re-examination of the appellant, the panel reconvened and considered the categories of Travel and Concentration persistence and pace in the context of the other evidence in the case. The results of Dr Hong’s mental state examination of the appellant are plainly consistent with the allocation of Class 2 in respect of Concentration. Both Dr Hong and Dr Synnott recorded the appellant’s account of her difficulties in this category was not consistent with the results of their mental state examinations. Against that background, the panel concluded that it should assign Class 2 in the category of Concentration. Dr Hong, Dr Synnott, and the MA had each independently reached this conclusion. Dr Rastogi reached a different conclusion on this issue. But her findings on mental state examination were quite different to those of Dr Hong.
While the appellant asserts in her statement that she is largely housebound, her account of her ability to function in the category of Travel has varied over recent medical examinations. Dr Rastogi assigned a mild impairment as did Dr Synnott and the MA. Dr Rastogi recorded that the appellant experienced “mild anxiety” with travel and that she does “drive locally only”. Dr Synnott also recorded that the appellant would “be a passenger or drive a car” on two or three occasions in a week. There is no obvious reason why this aspect of the applicant’s psychiatric health should deteriorate over the period since these assessments.
The panel agreed with Dr Hong’s conclusion that it was likely that the appellant was able to travel in her local area without a support person but preferred to be accompanied. A consideration of the entirety of the evidence, including the appellant’s statement, led to the conclusion that Class 2 best fitted the restrictions experienced by the appellant in respect of Travel as a result of her psychiatric injury.
While the panel has found error in the MAC in the categories of Travel and Concentration, following re-examination it has concluded that the MA’s classification of these categories and his certification of the degree of permanent impairment was correct.
For these reasons, the Appeal Panel has determined that the MAC issued on 15 May 2023 should be confirmed.
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