MidCoast Council v Cheers

DETERMINATION OF APPEAL PANEL
CITATION:	MidCoast Council v Cheers [2024] NSWPICMP 21
APPELLANT:	MidCoast Council
RESPONDENT:	Paul Cheers
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	15 January 2024
CATCHWORDS:	WORKERS COMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in his assessments in respect of four of the psychiatric impairment rating scale categories principally on the grounds of the respondent’s inconsistent presentation; the Appeal Panel agreed the MA erred in respect of two of the categories appealed but confirmed the two others appealed; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 18 May 2023 Midcoast Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor on the basis that relevant material within Applications to Admit Late Documents (AALD) had not been provided to the Medical Assessor, amongst other grounds of appeal.
The Personal Injury Commission (Commission) registered the appeal as M1-W3711/23.
The medical dispute was assessed by Dr Graham Blom, a Medical Assessor, (MA) who issued a Medical Assessment Certificate (MAC) on 20 April 2023.
The matter was referred to a Member to determine the issue of the admissibility of the AALD material. On 7 July 2023 Member Homan issued a Certificate of Determination referring the matter back to the Medical Assessor for reconsideration pursuant to s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). Member Homan confirmed the list of materials to be referred to the MA.
On 24 August 2023 Dr Blom issued a Further Assessment or Reconsideration MAC.
On 21 September 2023 the appellant lodged an Application to Appeal Against a Decision of Medical Assessor in respect of the MAC dated 24 August 2023.
The Commission registered the appeal as M2-W7862/22.
The appellant relies on the following grounds of appeal under s 327(3) of 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th 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 none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant seeks to appeal both MAC-1 and MAC-2
In summary, the appellant submits that the MA erred in his assessment in four of the six Psychiatric Impairment Rating Scales (PIRS), namely the categories of social and recreational activities, concentration, persistence and pace, social functioning and employability, principally on the grounds of Paul Cheers’ (the respondent) inconsistent presentation.
In reply, the respondent submits that all the assessments made by the MA were open to him, and 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 MA for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury occurring on a deemed date of injury of 29 July 2022 (amended with the consent of the parties).
Noting that the appellant appeals both MAC’s for reasons stated above, the history and other matters are much the same, save for the PIRS assessments, so we propose to set out these matters as noted by the MA in his first MAC.
The MA obtained the following history:
“At the time of his injury, Mr Cheers was working as a Team Leader at Mid Coast Council. He had worked for the Council for approximately 14 years prior to his injury and believes that he had a good reputation and work record. In late 2018 or early 2019 he applied for the role of Supervisor of Roads. This role however was subsequently awarded to another applicant, Mr Conde. Mr Cheers believed that the selection of Mr Conde was unfair and related to the fact that he (Mr Cheers) had become aware of certain corrupt practices by another worker, Mr Newell. He had made non-official representations about this matter to his supervisor, and he believes that this impacted his failure to be selected for the role.
Following Mr Conde’s appointment Mr Cheers said he experienced continuing and over time, worsening harassment, bullying and ill treatment which he found humiliating, such as being forced to work in very junior roles, despite his seniority - for example on one occasion he was put into a quite junior position and came under the supervision of his nephew whom he had previously trained. As a result of this treatment which was persistent and repetitive, he developed significant symptoms of anxiety which included feelings of tenseness, a sense of deep shame, marked tremor especially of his hands, loss of appetite with weight loss and increasing sleep disturbance, with both initial insomnia and difficulty maintaining sleep. As these symptoms progressed his mood dropped and he experienced feelings of sadness and fear. He increasingly found it difficult to attend work, associated with marked anxiety in the morning. His motivation dropped and he was repetitively tearful. During this time, he also increased his alcohol intake. Mr Cheers had always been a moderately heavy drinker consuming three stubbies of beer (about four standard drinks) most days of the week. However, as his anxiety worsened his consumption increased to six to eight stubbies of beer/day (that is approximately between eight to ten standard drinks/day).
At the end of 2019 he attended a ‘yard meeting’ where senior management discussed corruption in the Council and the importance of reporting this through a Public Interest Disclosure (PID). Subsequently Mr Cheers submitted a PID in which he accused both Mr Newell and Mr Conde of acting corruptly. Soon after this disclosure he was transferred from the Roads section to Parks and Gardens. His pay was not varied but he was given low-skilled jobs, which he found demeaning. He was told he was not allowed to discuss with anyone the reasons for his transfer to Parks and Gardens. As a result, he said, the other workers in Parks and Gardens became suspicious of him and began isolating him and treating him with a degree of distain and general avoidance. As a result, his symptoms, as previously described, further deteriorated, but as well because of his deteriorating anxiety and worsening depressive state he also noticed a significant deterioration in his concentration and memory as well as increasing levels of fatigue. Unfortunately, this was compounded by marked increase in his alcohol intake - he described drinking up to about twenty standard drinks/day. He became more withdrawn and less available to his two children of whom he was the carer, following separation from his wife several years prior. There was increased tension and conflict within the household, and he struggled to manage himself, the house and his children.
In late 2020 he was accused by a worker at Parks and Gardens of making derogatory comments. He said that this accusation was unfair and unfounded, but it resulted in him ‘breaking down’. Soon after this he attended his General Practitioner and left work around November 2020. He has not returned to work since that time. Mr Cheers at first consulted a psychologist, Ms Minnie Felber, briefly (that is for a few sessions) in 2019 but had no other treatment up until this point. Following contact with his General Practitioner he was initiated on the very sedative antidepressant medication, Amitriptyline, with the dose being raised to the moderate final dose of 75mg/night. He was also referred to another psychologist, Mr Elise Wynyard. He began seeing Ms Wynyard regularly in 2021 and continues to see her to this time, usually at a rate of once a fortnight.
Despite leaving work his symptoms did not improve and he became increasingly isolated and withdrawn. He was fearful of leaving the house because of anxiety about running into colleagues, complicated by deep feelings of shame and exclusion. His symptoms further deteriorated, and his alcohol intake continued heavily and more frequently. During 2020 he had occasionally had alcohol free days but by 2021 he tended to drink every day. The situation with his children and the general management of his house also deteriorated.
In mid-2021 his General Practitioner switched his antidepressant to Sertraline as he had had no significant positive response to the Amitriptyline. The Sertraline was raised to a dose of 100mg/day. He has continued on this moderate dose of Sertraline to the present. He was also initiated on the sedative medication Melatonin at a dose of
2-4mg/day as well as the antianxiety benzodiazepine medication Diazepam at a dose of 5-10mg/day as required. Towards the end of 2021 his situation further deteriorated when his younger son, who was by this time about 15 could no longer tolerate living with his father and left to live with his mother because of conflict with his father and increasing difficulties with Mr Cheers’ behaviour, including his irritability, drinking and general emotional unavailability. His eldest son remained at home with Mr Cheers, but Mr Cheers said with some shame that his son became almost a carer for him at this stage. Around the time that his younger son left home Mr Cheers’ symptoms deteriorated dramatically and for a period he said he felt suicidal although he never acted on this. He was able to contact a friend and get sufficient support to weather this difficult time. Towards the end of 2022 the situation deteriorated further, when Mr Cheers had to leave his rented house. Since that time, he has become somewhat itinerate in his living situation. For a time, he lived with his mother who has early-stage Dementia but he could only stay there for a few weeks to a month. He then moved to various friends’ places and at times was reduced to sleeping in his car. At the time of this interview, he was staying for a few weeks with a friend on the Gold Coast but said that he could only stay there for a couple of weeks more and intended to move back to his mother’s. It would appear that his living circumstances are such now that he moves from place to place for as long, he feels welcome or tolerated, at the house at which he stays.
He has continued to see his General Practitioner and psychologist despite these difficulties. His General Practitioner and psychologist have both recommended an admission to hospital and/or referral to a psychiatrist. Mr Cheers said initially he was keen to do this, but the insurer provided significant roadblocks to the referral and then he found it almost impossible to find a psychiatrist that was willing to see him as a Workers Compensation patient. As a result, he has now become less willing to attend a psychiatrist and certainly is unwilling at this point to undergo an admission to hospital. His General Practitioner has also suggested an increase in his medication, but Mr Cheers is unwilling to do this because of the side effects he has experienced. He feels that there has been some improvement from Sertraline, and he is not very keen to try other medications. Over the last few months his symptoms have remained reasonably stable although his overall consumption of alcohol has reduced, primarily it would appear due to financial difficulties. He however continues to drink every day and could not nominate to me the last time he went for a day without drinking alcohol.”
After setting out details of the respondent’s treatment regime, the MA noted present symptoms as follows:
“Mr Cheers describes ongoing significant anxiety every day. This is associated with marked tremor, episodes of sweating, and intense feelings of stress and tension. He has panic attacks approximately two to three times/week. These occur especially in the morning and seem to be triggered by the realisation of what he sees as the hopelessness of his current situation. His sleep pattern is very disturbed. Over the last several months he has begun sleeping in the daytime for a couple of hours because, he said, he experiences marked and overwhelming daytime somnolence. Unfortunately, this is also associated, probably causally, with very significant disturbance of his night-time sleep pattern with marked initial insomnia and significant interval insomnia. He described his mood as sad and depressed. He said he was ‘very emotional’ by which he meant he experienced repetitive episodes of tearfulness that he could not control. This is a source of some embarrassment to him. His motivation is low, and he struggles with his energy. His concentration and memory are impaired, and he struggles to focus for lengthy periods of time or to maintain activities.
His confidence is low, and he describes feeling useless and worthless and concerned about his future. He has not however experienced further suicidal ideation since his son left. He continues to drink very heavily, consuming approximately ten to twelve standard drinks/day. Worrisomely because of the expense of drinking beer he has begun to drink spirits as well as beer. It is possible that his morning anxiety and panic is related to withdrawal symptoms. Certainly, he describes significant cravings which he experiences every afternoon. He does not use illicit drugs. He does not smoke cigarettes although he has taken to ‘vaping’ which he does regularly most afternoons.”
The MA then set out details of the respondent’s general health and the impact of his condition on his activities of daily living, and said:
“Currently Mr Cheers is staying with his friend, [CDA], on the Gold Coast. I gather he has been there for a couple of weeks and intends to stay for a few more weeks, then move to his mother for a period of time. As mentioned, he is essentially itinerate at the moment and has been since he was unable to maintain his rent.
He struggles to maintain his hygiene because of lack of motivation and some general loss of concern about his appearance. He misses showers often for two to three days at a time and often doesn’t shave. Sometimes he needs prompting to shower. His appetite has been poor since the beginning of his disorder. He said because of his anxiety he doesn’t feel like eating. As a result he has lost considerable weight, currently about nine kilograms. He generally depends on others for meals although if no one is there to cook he will prepare himself a frozen meal or other pre-prepared dish.
He has a pet dog to whom he is very attached. He walks him most days. He occasionally goes out with friends to social situations such as a restaurant or a coffee shop although says that this only occurs when they strongly encourage him. He will only stay for a reasonably short period of time he says because he becomes increasingly anxious especially if there are too many other people around. If there are crowds, he won’t attend any kind of social event. He previously played guitar professionally and on one occasion over twelve months ago he attempted to play a gig with some friends. This was unsuccessful and caused him considerable anxiety and he has not attempted this again. Occasionally however friends will visit his place and he will play music with them together. Otherwise, he remains isolated and avoidant.
Up until late last year he was able to drive reasonable distances although he experienced considerable anxiety doing so. However, over the last six months or so he has been experiencing more daytime somnolence and fatigue as well as significant anxiety, so he has stopped driving outside the local area. He felt forced into this, following a couple of near misses whilst driving his vehicle when he began to nod off. Now when he needs to go long distances such as to the Gold Coast either one of his friends or his eldest son will drive him.
Generally, he has maintained good relationships with a couple of long-term friends as well as his friend, [CDA]. He has known [CDA] for many years and during 2021 through to 2022 they attempted to engage in a more intimate relationship. Mr Cheers however said that this was not successful because he had serious difficulty trusting her. He said that generally since his injury he finds it difficult to trust people. In any case the intimate relationship ceased however they remained friends and she is quite supportive of him. He continues to have a good relationship with his eldest son although this appears to be something of a carer relationship rather than a father son relationship. His youngest son has left home and has had very little contact with Mr Cheers since leaving because of his resentment at his illness and the impact that it has had on his personality and his behaviour.
His concentration and memory is impaired. Whilst he was able to maintain reasonable focus through a lengthy interview (just short of two hours) at times his attention wandered, and he certainly had significant difficulties with memory. He said that he used to read quite regularly, particularly crime novels and crime true stories. He has attempted to do this several times since his injury but finds that it is impossible as he can only maintain attention for ten to fifteen minutes then forgets what he has read. He also struggles to maintain motivation with his reading. He occasionally watches television but can only manage to maintain concentration for about thirty minutes with relatively undemanding light entertainment. He said that he has tried to watch movies but has never been able to maintain concentration throughout the movie and usually has to stop it before it is finished.
Mr Cheers has not worked since November 2020. He continues to experience a wide range of depressive and anxiety-based symptoms as well as having clearly developed a significant Substance Abuse Disorder (Alcohol Abuse Disorder). He has substantial difficulties with focus and concentration, he is anxious in crowds and generally avoidant of social situations. He struggles with his own self-care. For all of these reasons at this time and for the foreseeable future he is not capable of any form of employment.”

Findings on mental state examination were reported as follows:
“Mr Cheers was seen via the Teams App. He struggled initially to connect with the application but once connected did not have any further significant difficulties. He was seen only from the chest up. He appeared as a bald man who shaved his head. He had a stubble of beard. He was quite thin although fit looking. He was wearing a clean t-shirt.
He was tremulous during the interview and at times clearly anxious. He was not tearful. His affect was only mildly flattened. He denied any suicidality at this interview or in recent times.
He presented generally as an honest and reliable witness although he clearly struggled with memory, and this sometimes confused the history.
There was no evidence of formal thought disorder, hallucinations or delusions.
He struggled with his concentration and at times persistence. This was consisted with his disorder.”
In summarising the injuries and diagnoses, the MA said:
“Mr Cheers experienced a period of bullying and harassment, as well as being humiliated by being given tasks well below his skill level. As a result, he developed substantial symptoms of anxiety which gradually deteriorated into a significant depressive disorder. This was associated with marked increase in his alcohol intake. As a result of the bullying and harassment and his deteriorating symptoms he eventually left work in November 2020 and has not returned to work since that time. Since leaving work he has had modest medical treatment and ongoing and appropriate psychological treatment with only very limited improvement in his overall symptomatology. Currently he meets the diagnostic criteria for:
1. Alcohol Abuse Disorder and almost certainly dependency although this could only be established if he had had sufficient period of abstinence from alcohol to determine whether he has withdrawal, which I suspect he would have.
2. Major Depressive Disorder with anxious distress.”
The MA added: “Mr Cheers’ presentation was consistent with the documentation I reviewed, the history I took and my Mental State Examination.”
The MA assessed 22% WPI.
He explained his reasons as follows:
“A prolonged history of bullying, harassment and demeaning treatment leading to typical symptoms of Anxiety Disorder and eventually substantial Depression. This has been compounded by very heavy alcohol use in an attempt by the worker to moderate his symptoms. He has had appropriate psychological treatment and moderate medical treatment but is unwilling to undertake further treatment at this time even though it has been offered to him.”
The MA then turned to consider the other medical opinions, namely Dr Bisht and Dr Smith, which we do not intend to repeat at this stage: they will be discussed more fully below.
The MA made the following PIRS assessments in respect of the categories appealed.
“a.    Social and recreational activities: Class 3: ‘He has a pet dog to whom he is very attached. He walks him most days. He occasionally goes out with friends to social situations such as a restaurant or a coffee shop although says that this only occurs when they strongly encourage him. He will only stay for a short period of time he says because he becomes increasingly anxious especially if there are too many other people around. If there are crowds, he won’t attend any kind of social event. He previously played guitar professionally and on one occasion over twelve months ago he attempted to play a gig with some friends. This was unsuccessful and caused him considerable anxiety and has not attempted this again. Occasionally however friends will visit his place and he will play music with them together. He remains isolated and avoidant.’
b.     Social functioning: Class 3: ‘Generally, he has maintained good relationships with a couple of long term friends as well as his friend, [CDA]. He has known [CDA] for many years and during 2021 through to 2022 they attempted to engage in a more intimate relationship. Mr Cheers however said that this was not successful because he had serious difficulty trusting her. He said that since his injury he finds it difficult to trust people. As a result the intimate relationship ceased however they remained friends. He continues to have a good relationship with his eldest son although it appears his son takes a carer role to some extent. His youngest son has left home and has had very little contact with Mr Cheers for many months because of his resentment at his illness and the impact that it has had on his personality and behaviour.’
c.     Concentration, persistence and pace (cpp): Class 3: ‘His concentration and memory is impaired. Whilst he was able to maintain reasonable focus through a lengthy interview (just short of two hours) at times his attention wandered, and he certainly had significant difficulties with memory. He has attempted to read light crime literature since his injury but finds that it is impossible as it can only maintain attention for ten to fifteen minutes then forgets what he has read. He occasionally watches television but can only manage to maintain concentration for about thirty minutes with relatively undemanding light entertainment. He said that he has tried to watch movies but has never been able to maintain concentration throughout the movie and has to stop it before it is finished.’
d.     Employability: Class 5: ‘Mr Cheers has not worked since November 2020. He continues to experience a wide range of depressive and anxiety-based symptoms as well as having developed a significant Substance Abuse Disorder (Alcohol Abuse Disorder). He has substantial difficulties with concentration and memory, he is anxious in crowds and generally avoidant of social situations. For all of these reasons at this time and for the foreseeable future he is not capable of any form of employment.’”
As stated earlier, a Member of the Commission referred the matter back to the MA admitting a number of documents and other material as set out in her determination and in the referral. They included, inter alia, medical reports, surveillance material and Mr Cheers’ bank records from July 2022 to February 2023
Following this referral, the MA issued a further MAC on 24 August 2023.
The appellant then sought to appeal that MAC.
In the second MAC, (the date of the examination unknown), the MA set out the further history as follows:
“I confirmed, with Mr Cheers, the accuracy of my previous history. I then reviewed with him the various documents presented by the insurer. Prior to this, he confirmed that his son Curtis had moved out of home at the end of 2021 and that he (Mr Cheers) had been evicted from his place of residence toward the end of 2022. At that time, his oldest son, Tyler, had moved into his own accommodation in Forster and was working as a trainee chef. This was of significance as one of the questions raised by the bank statements related to Mr Cheers travel. In his previous interview with me, he had said that his son, Tyler as well as his friend, [CDA], drove him whenever he needed to travel longer distances.
I then discussed with him the transactions noted on his bank statements - prior to this I clarified with him who had access to the debit card associated with these statements. He stated that several other people often did shopping for him, including his mother, [CDA] and Tyler. He said that on these occasions, he would give his debit card to them to pay for the shopping. He said that he often avoided shopping centres because of anxiety, essentially confirming his statements to me in my Medical Assessment. I accepted that this use of the card was likely an accurate statement.
He however did acknowledge, when I pointed out the considerable amount of travelling between Tuncurry and Tweed Heads that he had undertaken in the period covered
by the bank transactions, that on occasions, he drove himself between these 2 destinations. I note that this is a distance in excess of 500 km.
I also discussed with him the Surveillance and he commented that the address at Susella Crescent was his previous residence, and he was no longer living there at the time of the surveillance. He acknowledged the other brief activities alluded to in the surveillance.
Given that he clearly spent considerable time at [CDA]’s residence, I again questioned the nature of the relationship. He confirmed that they had been friends for many years, but that the previous intimate relationship had been ended by [CDA] because of his symptoms and impairment. He was very clear that no further intimate relationship had been started and that to some degree, [CDA] acted as his carer because of their long friendship. I accepted this, as it was consistent with his other overall symptoms and impairment, as well as the previous medical reports provided. There was nothing in the new documentation to challenge this.
Mr Cheers confirmed that he had not worked since leaving the Council in 2020. He has not worked in the period since the previous Medical Assessment was undertaken. He also described ongoing symptoms consistent with those described in the previous MAC. I believe he still meets the DSM 5 diagnostic criteria for: 1. Alcohol Abuse Disorder. 2. Major Depressive Disorder with anxious distress.”
On this occasion, findings on examination were reported as follows:
“Mr Cheers was seen via the teams app. He was neatly and cleanly dressed, and was now clean shaven. He was clearly anxious throughout the interview. There was no evidence in his presentation that he was in any way alcohol, or other substances of abuse. He appeared particularly anxious about the nature of the Re-Consideration and frustrated with the lengthy process that he has had to undertake for his Workers Compensation claim. Nevertheless, he was cooperative and appeared to be generally truthful in his answers, although in the interview, it was apparent that he clearly aware of the requirements of the PIRS categories.
His affect was somewhat flat and his voice subdued. He did not appear to be experiencing feelings of hopelessness or worthlessness. He was not suicidal at this time. There was no evidence of hallucinations, delusions or formal thought disorder. Overall, his concentration was reasonable, and he persisted through a short interview, although continued to display clear difficulties with memory of chronological events, which I think clearly reflected the impact of his depressive symptomatology, rather than any attempt to dissemble.”
The MA then said:
“I have reassessed the PIRS class rating for the PIRS category of Travel. In my previous MAC Mr Cheers clearly stated that he had been unable to drive outside of his local area due to daytime somnolence, fatigue and anxiety. The evidence from the Bank Statements disputes this and it is clear that Mr Cheers misled me regarding his driving capacity, at my last assessment.
I do not believe that the additional evidence presented, however, gives me any reason to think that my other class ratings are incorrect or do not reflect the level of Mr Cheers impairment.
Moreover, there is no evidence that I could find, in the range of documentation that was provided by the insurer, that would cause me to revoke those other findings.”
As regards the additional medical evidence, the MA said:
“Dr Bisht, in her [sic] Supplementary Report dated 4 January 2023, places a substantial weight upon the surveillance reports supplied. I assume this is the same ProCare report with which I was provided. I found this report totally unconvincing. The surveillance team undertook a total of 41 hours of surveillance, but only managed to obtain a total of 9 minutes footage of the claimant! This surveillance did not provide any evidence that was previously not available. Mr Cheers was seen drinking, presumably alcohol whilst he took his dog for a walk. He went for a brief swim of approximately 5 minutes and walked his dog on a beach, for a brief period of time. During this time, he conversed with an unknown individual. I asked Mr Cheers about this and he said that the individual was his previous yoga instructor, who had enquired after his well-being. None of this constitutes activity that would change my view of my previous assessment of his level of impairment. In fact, the very fact that he is carrying what I assume is an alcoholic drink, while going for a walk would tend to confirm my concern about his abuse of alcohol. I disagree with Dr Bisht’s findings that Mr Cheers would be able to work as a gardener or store person and do not believe the information from the surveillance report offers any reasonable evidence to support Dr Bisht’s claim. I have not altered my assessment of his capacity for employment.
The handwritten notes of Ms Elise Wynyard. These confirm my overall assessment and impairment.
The statement of Mr Cheers. This goes to previous work assessment forms. I continue to believe that given the severity of Mr Cheers symptomatology and level of impairment that he is incapable of employment in any way.”
On this occasion, having rated Mr Cheers as a Class 1 for travel, and maintaining his assessments in the other categories, the final WPI was 19%.

The Submissions

The appellant’s submissions are extensive and detailed, and to do justice to those submissions, it is appropriate that we set them out in similar detail. They are as follows:
(a)    There was clear evidence before the MA which demonstrated the histories described by the respondent to both the forensic medical experts (and later himself) were [ultimately] inconsistent with objective documentary evidence, such as previous bank statements and surveillance evidence. Indeed, Dr Yajuvendra Bisht concluded that such documentary evidence raised considerable concerns that the Respondent had been overstating or exaggerating his symptoms.
(b)    In a supplementary statement signed by the respondent on 17 April 2021 it was alleged [at the time] that, “I don’t socialise and tend not to go out at all unless I have to and if I do it is usually with someone as a support person.” Days later, the respondent was examined by Dr Glen Smith on 22 April 20212. At the time he continued to report loss of interest in his previously enjoyed activities including music, surfing and boxing. He said he was “avoidant of going out in public”.
(c)    Despite the respondent’s use of terms which insinuated a degree of ‘absoluteness’, such as the tendency not to venture out of the house “at all unless I have to”, it is evident from the respondent’s bank transactions in the weeks even leading up to the signing of his supplementary statement and the history he gave to Dr Smith in April 2021, that he was definitely not restricted to his home and definitely did not demonstrate a tendency to refrain from venturing out of his house or avoid going out in public. The bank statements from this period demonstrated that the respondent was engaged in physical financial transactions on almost every single day from what were public locations, e.g., supermarkets, liquor stores, petrol stations, hairdressers, the post office, etc.
(d)    A review of the bank transactions reveal that the respondent frequented a number of pubs, clubs, hotels and adult stores throughout the duration of his claim, which were not places that he ‘had to’ attend. The bank records confirmed the respondent's presence at these locations in the weeks leading up to his supplementary statement dated 17 April 2021 and his examination by Dr Smith on 22 April 2021. For instance, on Saturday, 27 March 2021 the respondent attended the Palm Breach Surf Lifesaving Club, ALH Venue in Palm Beach and the Coolangatta Hotel (Mintpearl Pty Ltd). On the following day (Sunday, 28 March 2021), he went to the Ivory Tavern & Marina Tweed Heads. These places were located approximately 500+km from the respondent’s residence at that time. On Saturday, 11 April 2021 he attended the Tuncurry Bowling Club and on Sunday, 12 April 2021 he went to the Bellevue Hotel Motel Tuncurry. Notably, the respondent appeared to have been at the Bellevue Hotel Motel Tuncurry on Wednesday, 21 April 2021, on the day immediately prior to his examination with Dr Smith on 22 April 2021. It is submitted that many of these transactions occurred at licensed venues on Saturdays and Sundays, which are typically the days on which licensed venues attract the largest numbers of patrons (for meals, drinks, the viewing of sports and gambling, etc).
(e)    In MAC-2, the Medical Assessor directly questioned the respondent on who had access to his debit card associated with the bank statements. It was explained by the respondent that “several other people often did [the] shopping for him, including his mother, [CDA] and Tyler”. This response (if it can be believed at all given that the respondent is a single man who has mostly resided on his own throughout the life of this claim), discloses alleged use of his debit card by others having been restricted to ‘shopping activities’ only. The explanation from the respondent indicates that he himself conducted the transactions which took place at the numerous licenced venues and places of entertainment which he frequented (where ‘shopping’ would not have been conducted). The volume and frequency of these transactions at ‘non-shopping’ venues demonstrate frequent activity in public from the respondent, contrary to his statement evidence and his histories to Dr Smith and Dr Bisht.
(f)    The objective evidence of the multiple transactions and attendances at licensed venues and other public locations in the respondent’s bank statements remains seriously at odds with the respondent’s evidence and history that in or around this time he did not socialise or even go out “at all” unless he absolutely had to. It also contradicts the respondent’s evidence that he was “avoidant” of public areas during this period. The MA, only following the reconsideration, discovered that that the respondent was actually capable of travelling interstate alone and attending multiple public venues on weekends while interstate, during periods of time when he specifically alleged that he was largely restricted to his house due to his psychological injury and symptoms and in circumstances where the respondent gave a history to the MA during the initial assessment in April 2023 that over the previous six months or so he had stopped driving outside the local area and when he needed to go long distances, such as to the Gold Coast, either one of his friends or his eldest son would drive him.
(g)    Dr Yajuvendra Bisht, IME psychiatrist, examined the respondent on behalf of the insurer on 6 July 2022. When providing his history to Dr Bisht, the respondent said, “I avoid the public and I avoid people; I don’t really leave the house”. Dr Bisht noted that the respondent only left the house if he had to go shopping or to his appointments. Around this time, Dr Glen Smith also re-examined the respondent on 20 July 2022. At this examination, the respondent gave a history that there was reduced interest and motivation for activities and that he would “avoid social settings due to anxiety”.
(h)    Notwithstanding the respondent having told Dr Smith in late July 2022 that he had reduced interest in activities and avoided social settings and having informed Dr Bisht in early July 2022, “I don’t really leave the house”, the surveillance report dated 19 August 2022 (approximately four to six weeks after these medical appointments) presented a contrasting account. During this surveillance period the respondent was observed engaging in several recreational activities. On 6 August 2022, he travelled to One Mile Beach, changed into a wetsuit at the beach, waxed his surfboard, and surfed for approximately 15 minutes. He also had a brief conversation with an unidentified member of the public. On the following day he drove to Nine Mile Beach and walked his dog while accompanied by an unidentified woman…On 8 August 2022, the respondent again went to Nine Mile Beach with his dog and walked along the beach.
(i)    The respondent was re-examined by Dr Bisht on 14 September 2022. Only upon direct questioning did the respondent elaborate and admit to the activities gleaned from the bank statements and surveillance material (which was evidence that was put before Dr Bisht by the appellant’s insurer). There was an attempt by the respondent to retrospectively justify the outings (including interstate activities), however it was ultimately concluded by Dr Bisht that the account of his day-to-day functioning during a previous appointment, along with the history relayed to Dr Glen Smith (above), differed significantly from the documentary evidence, including the bank statements and the surveillance and desktop investigation reports. Dr Bisht specifically concluded that such behaviour gave rise to ‘considerable concerns that the respondent was overstating or exaggerating his symptoms.’
(j)    Based on the inconsistent histories provided to both Dr Smith and Dr Bisht (discussed above), which are refuted by the surveillance evidence and the evidence of multiple transactions in the respondent’s bank statements, the MA ought to have observed that the respondent has demonstrated a repeated propensity to amplify and embellish his level of symptoms and to seriously understate his level of social and recreational activities, in furtherance of his compensation claim. The MA should have been assisted and influenced by the comments of Dr Bisht on this very issue.
(k)    In his reconsideration MAC-2 at page 3, the MA mentioned that he found the most recent surveillance report dated 17 February 2023 “totally unconvincing”. Importantly, there was no consideration of the earlier surveillance reports contained within the Reply. In arriving at his conclusion, the MA referred and appeared to give weight to the fact that a total of 41 hours of surveillance was performed, however “only” nine minutes of footage of the worker was obtained. With respect, the appellant emphasises that the total amount of footage is immaterial and one must examine the actual activities specifically witnessed. For example, the investigator located the respondent’s car at Nine Mile Beach on 5 February 2023 and “seventeen minutes later … he returned and loaded a surfboard into the boot, retrieved goggles and a snorkel and spoke with a male”. Regardless, of how much actual footage was obtained, the evidence manifestly demonstrated the inconsistent histories. In a rhetorical manner, the appellant highlights a hypothetical scenario to illustrate, for example, a situation in which a worker repeatedly asserts a total inability to operate a motor vehicle. Subsequently, surveillance footage emerges, depicting the same individual driving for a brief duration of say, three minutes each on two occasions. In such a case the total minutes of footage captured is not the key factor; rather, the key factor is whether the surveillance evidence reveals clear inconsistency with the worker’s evidence. In this case, the appellant says it unquestionably did.
(l)    In responding to the question about ‘consistency of presentation’ on page 8 of MAC-1, the MA said: “Mr Cheers’ presentation was consistent with the documentation I reviewed, the history I took and my mental state examination”. With respect, the appellant submits for the MA to come to such conclusion, the “documentation [he] reviewed” could not have been properly engaged with or analysed by way of a comparison of the evidence in the bank statements and surveillance evidence against the contemporaneous histories the respondent gave to Dr Smith and Dr Bisht at the relevant times, close to when these bank transactions and surveillance observations occurred. The MA did not undertake this necessary exercise in any of his reasons contained in MAC-1 or MAC-2 (except possibly in relation to the respondent’s travel to Tweed Heads during the six-month period before the initial assessment by the MA) and this omission amounted to a failure to consider relevant evidence which constituted a demonstrable error.
(m)     In the final paragraph on page 9 and first paragraph on page 10 of MAC-1, the MA said:
“Dr Bisht relates him as having Class 2 for Social and Recreational activities saying that he is able to attend social gatherings on his own although he tends to leave early as he gets anxious. Dr Bisht lists a number of occasions where he had visited various venues. Mr Cheers was very clear with me that he currently only very occasionally attends social gatherings now and never alone and only following strong encouragement from friends. It is quite likely that Mr Cheers’ symptoms and impairment have deteriorated since Dr Bisht’s assessment of him. He is now itinerant and continues to have significant anxiety and depressive symptoms. As well he has ongoing and now chronic Alcohol Abuse Disorder. I am inclined to believe his description that he is unable to attend social or recreational events except with encouragement as this is very consistent with his overall presentation”.
(n)    The appellant draws attention to the fact that the respondent was very clear about his extremely limited social and recreational activities in his supplementary statement and in his history to Dr Smith in April 2021 and in his further histories to Dr Smith and Dr Bisht in July 2022.
(o)    Within the reconsideration MAC-2, the MA explicitly stated that the respondent “misled me regarding his driving capacity.” The use of the word “misled” infers an element of intention to provide false or deceptive information with the intent to deceive for personal gain, to hide the truth or to achieve a specific outcome.
(p)    The inconsistency and unreliability was a more compelling and plausible explanation for the respondent’s presentation and histories to the MA on 20 April 2023 and 24 August 2023 than his symptoms and impairment having deteriorated since Dr Bisht examined him in July and September 2022.
(q)    Based on the above analysis, the appellant has demonstrated the respondent to be an unreliable and inconsistent historian on multiple occasions over a two-year period.
(r)    In light of all the above, and having recognised the respondent’s propensity to “mislead”, the MA was required under clause 1.36 of the Guidelines to consider and assess whether the medical evidence based on the unreliable respondent’s subjective histories (which were repeatedly contradicted by the surveillance evidence and bank statement transactions), along with the respondent’s false history about his ability to travel to Tweed Heads, appeared insufficient to verify that an impairment of a certain magnitude existed, and to then consider modifying the impairment ratings accordingly and describing and explaining the reasons for the modifications in his reasons in MAC-1 or MAC-2. The MA failed to embark on this exercise and therefore failed to apply clause 1.36 of the Guidelines.

The appellant then turned to set out specific submissions in respect of the four categories appealed which we will address shortly.

Discussion

Social and recreational activities.

The MA assessed a Class 3 in this category, and said:
“He has a pet dog to whom he is very attached. He walks him most days. He occasionally goes out with friends to social situations such as a restaurant or a coffee shop although says that this only occurs when they strongly encourage him. He will only stay for a short period of time he says because he becomes increasingly anxious especially if there are too many other people around. If there are crowds, he won’t attend any kind of social event. He previously played guitar professionally and on one occasion over twelve months ago he attempted to play a gig with some friends. This was unsuccessful and caused him considerable anxiety and has not attempted this again. Occasionally however friends will visit his place and he will play music with them together. He remains isolated and avoidant.”
The descriptor for a Class 3 reads:
“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.”
For a Class 2 it reads:
“Mild impairment: Occasionally goes to such events e.g. without needing a support person, but does not become actively involved (e.g. dancing, cheering favourite team).”
Having regard to all the evidence, well documented by the appellant, it is abundantly clear to us that Mr Cheers’ activities do not warrant a Class 3 rating for reasons that follow.
In MAC-2, the MA simply stated:
“I do not believe that the additional evidence presented, however, gives me any reason to think that my other class ratings are incorrect or do not reflect the level of Mr Cheers impairment.”
No particular reasons were provided for this opinion.
The MA had previously stated, as regards the surveillance material:
“I found this report totally unconvincing. The surveillance team undertook a total of 41 hours of surveillance, but only managed to obtain a total of 9 minutes footage of the claimant! This surveillance did not provide any evidence that was previously not available.”
However, as pointed out earlier, the MA seems to have ignored material provided prior to the February 2023 evidence, and as the appellant correctly pointed out, it is not necessarily the duration of the footage that is significant but its content.
In our view, the bank records are the most revealing evidence.
The MA conceded that Mr Cheers had “misled” him as regards the extent of his ability to travel. In MAC-2, the MA said:
“He stated that several other people often did shopping for him, including his mother, [CDA] and Tyler. He said that on these occasions, he would give his debit card to them to pay for the shopping. He said that he often avoided shopping centres because of anxiety, essentially confirming his statements to me in my Medical Assessment. I accepted that this use of the card was likely an accurate statement.”
The MA then went on to say:
“He however did acknowledge, when I pointed out the considerable amount of travelling between Tuncurry and Tweed Heads that he had undertaken in the period covered by the bank transactions, that on occasions, he drove himself between these 2 destinations. I note that this is a distance in excess of 500 km.”
The MA seems to have focussed on the ability to travel rather than the activities carried out particularly in Tweed Heads.
There are numerous transactions in both Tuncurry and Tweed Heads at places such as the Coolangatta Hotel, the Seagulls Club Tweed Heads, the Twin Towns Services Club, and the Tuncurry Bowling Club in a period of about one month in October and November 2022.
We agree with the appellant that this cannot be regarded as “shopping” in shopping centres for groceries or household goods.
We also accept the appellant’s submission that “the majority of the transactions took place on weekend days when larger numbers of patrons are typically in attendance at such establishments.”
The MA said:
“He occasionally goes out with friends to social situations such as a restaurant or a coffee shop although says that this only occurs when they strongly encourage him. He will only stay for a reasonably short period of time he says because he becomes increasingly anxious especially if there are too many other people around. If there are crowds, he won’t attend any kind of social event …”
The appellant submits:
“The respondent gave the Medical Assessor a history that any occasional social outing was primarily limited to restaurants or coffee shops. He did not mention or identify pubs and licensed clubs which have been his more usual destinations based on the bank transaction records. Furthermore, the respondent told the Medical Assessor that he ‘won’t attend any kind of social event [if there are crowds]’. The bank statements demonstrated that the respondent repeatedly attended pubs and clubs on weekend days throughout 2021 and 2022 (when they would have typically been more crowded)…”
We agree with this submission.
It also reinforces our view that a Class 3 rating is inappropriate since it cannot be said that Mr Cheers “rarely goes out to such events” or that he “will not go out without a support person” or that he is “not actively involved, remains quiet and withdrawn” or that he remains “isolated and avoidant” as the MA concluded. The Panel also noted the MA repeatedly wrote Mr Cheers has “occasional” recreational activities, which is a descriptor for Class 2.
Other activities relevant to this category have been identified by the appellant as inconsistent with the evidence and Mr Cheers’ statements to the MA.
For example, the appellant notes:
“Having regard to the respondent’s tendency to overstate or exaggerate his symptoms (as described by Dr Bisht) or even ‘mislead’ (belatedly identified by the Medical Assessor but inexplicably limited to the history about travel), there must be further consideration of the surveillance conducted on 4 February 2023, (only about 9 weeks before the original MAC-1 assessment). The respondent was observed using a tennis racket outside to hit a ball for his dog to chase. On the following day, he was seen at Nine Mile Beach, where he loaded a surfboard into a car and engaged in a conversation with a member of the public. Subsequently, he walked to a netted pool area close to the ‘crowded’ beach and participated in the recreational activity of snorkelling, before returning to his vehicle and driving back to his residence.”
Some of the activities are solitary and undertaken without a support person, but attendance at a crowded beach, given his supposedly “avoidant” behaviour is clearly inconsistent with the MA’s conclusion.
In short, as the appellant points out, “documents together with the evidence that was before the Medical Assessor originally, calls into serious question the veracity of the history provided by the respondent.”
For these reasons, we agree that a Class 2 rating is appropriate in this category.

Social functioning

The MA assessed a Class 3 rating and said:
“Generally, he has maintained good relationships with a couple of long term friends as well as his friend, [CDA]. He has known [CDA] for many years and during 2021 through to 2022 they attempted to engage in a more intimate relationship. Mr Cheers however said that this was not successful because he had serious difficulty trusting her. He said that since his injury he finds it difficult to trust people. As a result the intimate relationship ceased however they remained friends. He continues to have a good relationship with his eldest son although it appears his son takes a carer role to some extent. His youngest son has left home and has had very little contact with Mr Cheers for many months because of his resentment at his illness and the impact that it has had on his personality and behaviour.”
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.”
For a Class 3 it reads:
“Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
At the outset, we note that when considering the PIRS descriptors under Table 11.4, the table measures the worker’s ability to function within society including their ability to form and maintain relationships.
The thrust of the appellant’s submissions in respect of this category is that historically the respondent has had a predisposition or pattern of not being able to maintain healthy intimate relationships.
The appellant submits as follows:
(a)    The respondent was not in any known intimate relationship at the time of his injury with MidCoast Council.
(b)    The MA has not given sufficient weight or consideration to the respondent’s pre-existing troubled past social functioning and predisposition to causing the breakdown of multiple past intimate relationships through problematic, angry and controlling behaviour on his part, when assessing this category.
(c)    The MA confirmed and discussed the history that upon initiating intimate relationships prior to his workplace injury, the respondent discovered a recurring problem of “significant anger”, which he [now] recognised as “unreasonable”. This issue was apparently particularly prominent during his late twenties and thirties. In 2003, his anger led to the breakup of a relationship. Similarly, in 2008, his irritability, anger, and “unreasonably controlling behaviour” caused another relationship to breakdown.
(d)    Within the various clinical notes, the respondent has a history of “sabotaging friendships”, anger directed towards his partner and an admission to yelling and physically restraining his partner in 2015. He also had feelings of jealousy towards his partner.
(e)    The MA repeatedly made reference to the respondent’s significant “trust issues”. In that regard, although considering an arguably general statement, there was no thorough exploration or clarification within the MAC as to what exactly such “trust issues” entailed.
The appellant’s submissions once again are extensive, and demonstrate what might be called seeking error with a fine tooth comb. (See Woolworths Ltd v Howarth [2015] NSWSC1624 ay [50]-[52].)
That is not a criticism per se, since there was an extraordinary amount of material, over 1,500 pages, in our brief.
A MA is able to make a “general statement” of the type referred to by the appellant on matters within his or her area of expertise, and does not need to “thoroughly explore” such matters provided it is clear to the parties the nature of the statement.
Looking at the evidence as a whole, we are of the view that the MA’s assessment in this category was open to him for reasons that follow.
We note that the respondent’s son had “separated” from him, with very little contact for many months, due to his mental state. This was not the case prior to his injury.
When the MA specifically asked Mr Cheers about his relationship with [CDA], he said that he had difficulty “trusting” her, and others as well.
Whilst Mr Cheers’ circumstances do not reflect the descriptor for a Class 3 rating, it must be remembered that they are precisely what they state: a general description or examples of the types of circumstances a person might experience as a consequence of a psychiatric injury.
It must also be remembered that Clause 1.6 of the Guidelines notes that the task of a MA is to assess a claimant as they present on the day of the assessment.
For these reasons, we do not see any error by the MA in this category.

Concentration, persistence and pace.

The MA assessed a Class 3 in this category and said:
“His concentration and memory is impaired. Whilst he was able to maintain reasonable focus through a lengthy interview (just short of two hours) at times his attention wandered, and he certainly had significant difficulties with memory. He has attempted to read light crime literature since his injury but finds that it is impossible as it can only maintain attention for ten to fifteen minutes then forgets what he has read. He occasionally watches television but can only manage to maintain concentration for about thirty minutes with relatively undemanding light entertainment. He said that he has tried to watch movies but has never been able to maintain concentration throughout the movie and has to stop it before it is finished.”
The descriptor for a Class 3 reads:
“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.”
For a Class 2 it 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.”
The appellant submits that the information the respondent gave to the MA was entirely subjective and not reliable.
The appellant added:
(a)    The MA ought to have given greater weight to the actual clinical observations. The respondent claimed that he could not focus on a movie or read for
10-15 minutes. Despite this, it was recorded that there was no formal thought disorder and he was capable of actively participating in what could be described as an intensive examination that lasted almost two hours (without break) with only moments where his attention “wandered”. This was significantly longer than 30 minutes. It is submitted that an assessment where a worker is compelled to recall histories, respond to multiple enquiries and focus and concentrate on the examination conversation could be regarded as a relatively intellectually or cognitively demanding task requiring significant levels of concentration and persistence.
(b)    On page 3 of the report Dr Bisht dated 14 September 2022, the respondent told Dr Bisht that he did “the same thing every day – walked the dog, came home and did housework and watched Netflix and played pool on his phone.” This history suggests the worker watches television more than ‘occasionally’ and for more than 30 minutes given he didn't describe anything else that he does every day apart from spending less than an hour walking his dog, doing some limited house work (given he reportedly struggles to maintain hygiene because of lack of motivation – see the description of the self-care and personal hygiene reasons in the MACs) and playing some pool on his phone.
(c)    The respondent’s demonstrated ability to drive a motor vehicle by himself more than 500km on multiple occasions without any accidents on misadventures, reflects a considerable degree of concentration and persistence – if not also pace.
(d)    Driving a car involves such abilities as control precision (monitoring and changing the controls of the car), problem sensitivity (noticing when something is wrong and adjusting actions), memory retrieval (recalling directions and road rules), information processing/visual processing (change in traffic conditions or detours) and selective attention (being able to pay attention to a task without distraction).
(e)    The appellant relies on all of the earlier submissions in this appeal application in terms of the inconsistency and unreliability of the respondent.
(f)    The MA was required under clause 1.36 of the Guidelines to consider and assess whether the medical evidence based on the unreliable respondent’s subjective histories (which were repeatedly contradicted by the surveillance evidence and bank statement transactions), along with the worker’s false history about his ability to travel to Tweed Heads, appeared insufficient to verify that an impairment of a certain magnitude existed, and to then consider modifying the impairment ratings accordingly.
(g)    The demonstrated ability of this unreliable respondent to remain reasonably focused throughout a two-hour examination, is also objective evidence which more properly supports him being rated in Class 2 for ‘Concentration, Persistence and Pace’.
We agree with the respondent’s submissions and also refer to our earlier comments regarding the unreliability of the respondent and his propensity to mislead examiners.
The MA specifically stated that he had been “misled” by Mr Cheers, albeit in respect of the category of Travel, but as we said earlier, the bank records were of particular significance with respect to other categories such as social and recreational activities.
In addition, the assessment process is of itself cognitively challenging, requiring a considerable degree of concentration. The respondent was able to undertake an assessment of about two hours without much difficulty. It would frankly be unusual for a person’s attention not to “wander” under such circumstances.
This also contradicts his assertion that he could only concentrate on a movie for about 30 minutes.
Whilst we are not bound by the opinions of other doctors, their opinions nevertheless form part of all the evidence. Dr Bisht’s report certainly suggests that Mr Cheers spends quite a bit of time watching television.
We agree with the appellant that a Class 2 rating is appropriate in this category, as he demonstrated an ability to focus on intellectually demanding tasks for up to 30 minutes, if not more.

Employability

The MA assessed a Class 5 and said:
“Mr Cheers has not worked since November 2020. He continues to experience a wide range of depressive and anxiety-based symptoms as well as having developed a significant Substance Abuse Disorder (Alcohol Abuse Disorder). He has substantial difficulties with concentration and memory, he is anxious in crowds and generally avoidant of social situations. For all of these reasons at this time and for the foreseeable future he is not capable of any form of employment.”
The appellant urges the acceptance of the opinion of Dr Bisht who assessed a Class 3 rating and said:
““Paul is able to shop for himself. He is able to manage his own finances and do housework on a regular basis. He is able to drive long distances. Hence, he has some capacity for work. He would only be able to work four hours a day, 4 days a week, in a vocation that requires him to perform simple tasks, and does not require him to have interaction with customers/clients.”
The appellant also relies upon earlier submissions in relation to other categories, particularly social and recreational activities, to suggest the MA erred in his assessment.
The MA said: “He has substantial difficulties with concentration and memory, he is anxious in crowds and generally avoidant of social situations.”
The Panel accepted the appellant’s submissions that much of the evidence contradicted this statement.
Having said that, there are other factors to consider in this category, not just social factors.
It is now three years since Mr Cheers last worked. His skills and abilities would have suffered to the extent that many jobs would not be open to him.
Indeed, even Dr Bisht acknowledged that he could only perform “simple tasks” which suggests to us his employment options are severely restricted.
Mere disagreement with the MA’s assessment in reliance upon another opinion is not a proper basis for appeal.
For these reasons, we do not see any error in the MA’s assessment in this category.

Summary.

Our findings result in the following aggregate scores:
Self-Care & Personal Hygiene: Class 2
Social & Recreational Activities: Class 2
Travel: Class 1
Social Functioning: Class 3
Concentration, Persistence and Pace: Class 2
Employability: Class 5
Based on these ratings the aggregate score is 15 together with a Median Class of 2, making a total WPI of 8%.
For these reasons, the Appeal Panel has determined that the MAC’s issued on 18 May 2023 and 24 August 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

Rosheka Chandra
Dispute Support Officer

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W7862/22 and W3711/23.
Applicant:	Paul Cheers
Respondent:	Midcoast Council

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 Certificates of Medical Assessor Dr Graham Blom 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. Psychological	29/7/22	Chapter 11, Pages 54-60	AMA5 replaced by Chapter 11	8%	0	8%
Total % WPI (the Combined Table values of all sub-totals)					8%

Ms Deborah Moore
Member
Dr Michael Hong

Medical Assessor

Dr Ash Takyar

Medical Assessor

21 December 2023

Rosheka Chandra
Dispute Support Officer

[2024] NSWPICMP 21

15 January 2024