Mullick v Serendipity (WA) Pty Ltd t/as Advanced Personnel Management (APM)
[2023] NSWPICMP 155
•26 April 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mullick v Serendipity (WA) Pty Ltd t/as Advanced Personnel Management (APM) [2023] NSWPICMP 155 |
| APPELLANT: | Arjun Mullick |
| RESPONDENT: | Serendipity (WA) Pty Ltd t/as Advanced Personnel Management (APM) |
| Appeal Panel | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 26 April 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Impairment resulting from primary psychological injury; worker appealed two of the psychiatric impairment rating scale (PIRS) categories; travel and concentration persistence and pace; Appeal Panel satisfied that there was no error or application of incorrect criteria in the two PIRS categories; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 March 2023 Arjun Mullick (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 February 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant sustained a primary psychological injury in the course of his employment with Serendipity (WA) Pty Ltd t/as Advanced Personnel Management (APM) (the respondent) as an employment consultant.
The appellant commenced proceedings in the Personal Injury Commission (the Commission) on 23 September 2022 claiming 22% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury on 20 February 2020.
The Medical Assessor examined the appellant on 23 January 2023 through video link. The Medical Assessor assessed 9% WPI and added 2% for treatment uplift, which resulted in a total % WPI of 11% as a result of the injury on 20 February 2020.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that he be re-examined by a Medical Assessor who is a member of the Appeal Panel
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for the appellant to undergo a further medical examination because there was sufficient evidence on which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) Ground 1 – error in categorising the appellant as Class 2 for “travel”. In the MAC the Medical Assessor recorded that:
(i)His wife “does most of the shopping; sometimes he will go with her, maybe once every couple of weeks, but he is always anxious and is always watching people when he is in the shops".
(ii)"When he goes out, he doesn’t like to drive and prefers his wife to drive. He said he has probably driven maybe 4-5km just to the shops."
(iii)“He takes walks with his wife sometimes, for about half an hour to an hour. When he is out, he has to watch people and make sure there is no one that can attack him”.
(iv)“Dr Khan rated travel as a 3 and noted Mr Mullick rarely leaves home on his own and predominantly relies on his wife as a support person.”
(v)“Dr Graham Vickery, noted Mr Mullick has disturbed sleep, not going for walks or to the shop on his own as he is worried about being attacked and avoids socialising.”
(vi)“Mr Mullick is anxious and is avoidant of crowded places, and does not like to be out”.
(b) The Medical Assessor concluded that class 2 was appropriate.
(c) The Medical Assessor further noted at page 10 of the MAC: “Mr Mullick is anxious and is avoidant of crowded places and does not like to be out. He is independent in travel around familiar area.”
(d) Table 11.3 describes that for class 2 to be potentially applicable that a person “Can travel without a support person but only in a familiar area such as local shops, visiting a neighbour”. Driving with the assistance of a support person, or completing a walk with a support person, was far short of being “independent in travel around familiar area” or being “independent” when out.
(e) The above accepted descriptions required a class 3 assessment. This was because the appellant obviously required his wife to travel with him when he leaves the house, including when he has "driven maybe 4-5km just to the shops". The Medical Assessor mistakenly considered, without confirmation from the appellant, that the appellant’s very infrequent driving was undertaken alone and without the assistance of his wife. In addition, it was apparent the appellant’s wife was completing most of the driving and was always present when the appellant left the house to go on walks or to go to the shops every couple of weeks. Therefore, whether driving with his wife or accompanying his wife on a drive, the appellant clearly “Cannot travel away from own residence without support person” (as described in Table 11.3 for class 3).
(f) The accepted and described symptoms and their practical consequences needed to be applied to the class descriptors. The task of doing this was more than an exercise in clinical judgement. The application of accepted facts to the class descriptors was a matter of applying the Guidelines correctly and failing to do so correctly involved demonstrable error and the use of incorrect criteria (in the sense that the wrong class descriptor was being applied to the found facts).
(g) The Medical Assessor made a demonstrable error by assessing the appellant as class 2 for Travel. This involves the use of incorrect criteria in the sense that class 3 should have been applied in lieu of class 2.
(h) Ground 2 – error in categorising the appellant as class 2 for “concentration, persistence and pace”. In the MAC, the Medical Assessor relevantly recorded:
(i)"He used to love reading, but finds that he has to re-read things and his concentration is not good, and sometimes he will lose which line he is reading".
(ii)“He still reads every day, predominantly reading the Sydney Morning Herald newspaper. He might read half an hour to an hour. He will read in the morning and sometimes in the afternoon".
(iii)"He listed his disability, including chronic fatigue, mood swing, loss of concentration."
(iv)"In the past he could easily concentrate and enjoyed reading, watching movies regularly and was good at holding conversation, but now he cannot hold concentration for more than a few minutes”.
(i) The Medical Assessor concluded that class 2 was appropriate. His reasons for doing this were:
"Mr Mullick described having problems with his concentration. He can read Sydney Morning Herald, 30 to 60 minutes, and generally reads daily. He can focus on making curry dishes from memory, intermittently checking the cooking for 60 to 90 minutes, but the curry does not always turn out as he likes. His mental state examination is consistent with 2."
(j) It was notable the appellant described reading only a newspaper, a loss of concentration and an inability to hold concentration for more than a few minutes. These accepted details did not describe a class 2 type situation of an ability to undertake retraining or focussing on intellectually demanding tasks for a period of up to 30 minutes but a class 3 type situation of an inability to read more than newspaper articles, make significant repairs to motor vehicle, difficulty to follow complex instructions or type long documents.
(k) The Medical Assessor made a demonstrable error by assessing the appellant as class 2 for this scale item and this involved the use of incorrect criteria.
(l) The appeal should be allowed and the MAC dated 6 February 2023 should be revoked.
The respondent ‘s submissions include the following:
(a) The Medical Assessor took a history concerning the incident on 20 February 2020, carried out an examination and made a diagnosis of chronic Post Traumatic Stress Disorder (PTSD) with Major depressive disorder.
(b) In relation to “Travel”, on the history taken by the Medical Assessor, the appellant 'prefers' his wife to drive and drives maybe 4-5km just to the shops.
(c) The rating of class 2 for the category of Travel was open to the Medical Assessor in accordance with the correct application of the criteria in the Guidelines. The Medical Assessor gave a clear and reasoned explanation for his rating of same, having exercised his clinical judgment in respect of his findings on the day of assessment, and having due regard to the other evidence that was before him.
(d) The assessment of the category cannot be based on assumptions as set out by the appellant after the assessment, but rather was to be based on the examination on the day, and the comments made by the appellant during the examination. The Medical Assessor was not required to confirm his clinical judgment and findings with the appellant.
(e) The appellant cannot fall within class 3 for the category of Travel, as set out in the Guidelines as the history taken by the Medical Assessor, demonstrates he is able to travel away from his own residence without a support person, when he drives to the shops.
(f) There was no demonstrable error or application of incorrect criteria, rather the appellant's basis for appeal is based on his subjective dissatisfaction with the assessment of the Medical Assessor.
(g) The appellant's submission must fail as it is, in effect, a complaint that there was a difference of opinion. A difference of opinion is not a ground of appeal (see Ferguson v State of NSW & Ors [2017] NSWSC887 among others).
(h) In respect of the category of Concentration, Persistence and Pace, on the history taken by the Medical Assessor, the appellant watches television and reads the newspaper daily for 30 to 60 minutes, sometimes in the morning and afternoon; watches cricket on television, does some of the cooking (once or twice a week) making fish dishes and curry dishes from memory which may take one to one-and-half hours. The Medical Assessor noted the appellant stated sometimes the dishes he cooks do not turn out well maybe he added too much salt or not enough curry powder.
(i) The Medical Assessor further recorded the appellant's three children, and four grandchildren may come and visit once a week; sometimes there can be 10 people, including the children and they stay for coffee, biscuit or bring cake or some food, sometimes dinner.
(j) The rating of class 2 for the category of Concentration, Persistence and Pace was open to the Medical Assessor in accordance with the correct application of the criteria in the Guidelines. The Medical Assessor gave a clear and reasoned explanation for his rating of same, having exercised his clinical judgment in respect of his findings on the day of assessment, and having due regard to the other evidence that was before him.
(k) The assessment of the category cannot be based solely on the statement that the appellant can read a newspaper. Rather the assessment of the applicable class was based on the examination on the day and the entirety of the reported abilities.
(l) In this regard, the appellant was able to watch television (including cricket), read the newspaper daily 30 to 60 minutes, sometimes in the morning and afternoon; cook dishes from memory that can take up to one-and-half hours and engage in visits from up to 10 family members at time.
(m) These abilities were representative of at least class 2 as the appellant could clearly focus on intellectually demanding tasks for periods of up to at least 30 minutes.
(n) The appellant cannot fall within class 3 for the category of Concentration, Persistence and Pace, as set out in the Guidelines as the history taken by the Medical Assessor, demonstrates he is able to read more than newspaper articles and can easily follow complex instructions or a pattern (i.e. cooking).
(o) There was no demonstrable error or application of incorrect criteria. Rather the appellant's basis for appeal was based on his subjective dissatisfaction with the assessment of the Medical Assessor.
(p) The appellant's submission must fail as it is, in effect, a complaint that there was a difference of opinion (see Ferguson v State of NSW & Ors [2017] NSWSC887 among others).
(q) For these reasons the Medical Assessor has not made a demonstrable error in the MAC of 6 February 2023. On the basis of the above reasons, there has therefore been no incorrect application of the criteria identified.
(r) Accordingly, any appeal of the MAC of 6 February 2023 should be disallowed.
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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] the form of the words used in
s 328(2) of the 1998 Act being,] SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The MAC
In the MAC, under “Social Activities / ADL” the Medical Assessor wrote:
“Mr Mullick is 74. He is living with his wife.
He said he gets up in the morning and has breakfast, but he has no appetite and his wife insists he eats breakfast. He said sometimes he eats lunch and dinner, but he does not feel like eating it.
He watches television and reads the newspaper. He takes walks with his wife sometimes, for about half an hour to an hour. When he is out he has to watch people and make sure there is no one that can attack him.
Mr Mullick's wife does most of the shopping; sometimes he will go with her, maybe once every couple of weeks, but he is always anxious and is always watching people when he is in the shops. His wife does the laundry; he stated there is only two of them and he said there is not too much to do. He doesn’t like to do the vacuuming or the housework.
In the past Mr Mullick said he likes cricket and used to go and watch the game in person but has not done this in the past two years, and the last time he went was ‘a long time ago’. He still watches cricket on television now.
He does some of the cooking and estimates he may cook once or twice a week. He makes fish dishes and curry dishes. He can make them from memory and described he would fry onions and add tomato, add salt and pepper, curry powder, and add meat or fish. The entire process may take one to one-and-half hours. He said he will come back and check on the stove every so often. I asked about the result, he stated sometimes it turns out fine, sometimes it doesn’t turn out well and he said maybe he added too much salt or not enough curry powder.
His three children and four grandchildren may come and visit once a week; not everybody will come. Sometimes there can be ten people, including the children. They stay for coffee, biscuit or bring cake or some food, sometimes they stay for dinner. They will make the rice at home. He said he has not eaten out at restaurants for a couple of years now.
Mr Mullick said they don’t really have much contact with the in-laws.
When he goes out, he doesn’t like to drive and prefers his wife to drive. He said he has probably driven maybe 4-5km just to the shops.
He used to love reading, but finds that he has to re-read things and his concentration is not good, and sometimes he will lose which line he is reading. He still reads every day, predominantly reading the Sydney Morning Herald newspaper. He might read half an hour to an hour. He will read in the morning and sometimes in the afternoon.
Mr Mullick has a few friends and said he has less contact with them. He doesn’t go out to do anything with them. In the past they would visit each other, but now he is too embarrassed to do it. He predominantly has phone contact with them, for example around Christmas time recently.
Normally he said he likes to get together with friends, go to the cinema or have dinner out.
Mr Mullick has been married 42 years. He stated his relationship with his wife is very good. He has a good relationship with his children and grandchildren”.
Under Reasons for Assessment the Medical Assessor wrote:
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs Mr Mullick’s statement noted his general medical history and employment.
He discussed the JobSeeker requirement to be compliant and frequently the clients can attend under the influence of alcohol or drugs and the consultant has no control to protect themselves against physical attack. On this particular day, a JobSeeker came closer and closer to him and there was no space for him to move the chair to create any gap from the attacking JobSeeker. Mr Mullick felt petrified. The act of violence continually lingers in his mind and haunts him. He panics at the smallest of noises. The JobSeeker returned twice to the room shortly after the attack on him, for very brief periods to abuse the other consultants. He described his treatment since he stopped working. His symptoms including panic attacks. He took medication without much benefit. He listed his disability, including chronic fatigue, mood swing, loss of concentration, stressful relationship with spouse. Mr Mullick discussed psychiatric difficulties in relation to the PIRS categories. In the past he could easily concentrate and enjoyed reading, watching movies regularly and was good at holding conversation, but now he cannot hold concentration for more than a few minutes. He has to read over the same line multiple times and has given up something he used to love.
Comment:
I noted that since his statement he has improved because he has been focused on reading and reads once or twice a day, usually for more than an hour.
Dr Abdal Khan, IME psychiatrist reported on 29 December 2021, noted there was no prior psychiatric problems and after being threatened by the Job Active client, Mr Mullick started having avoidant behaviour and trauma-related reminders and weight loss exceeding 6kg. He was on Paroxetine 5mg at this time (Comment: this is a very small dose, and it is likely Mr Mullick improved after that assessment as his antidepressant medication was then increased). He diagnosed PTSD, major depression and provided WPI.
Comment:
Dr Khan rated travel as a 3 and noted Mr Mullick rarely leaves home on his own and
predominantly relies on his wife as a support person. In my assessment, I noted he doesn’t like to be near crowded places or to leave home and he is capable of going out on his own and does go out regularly, sometimes taking walks and occasionally going to the shops with his wife. He is independent when he is out and does not need a support person, therefore, I rated 2.
Dr Khan rated Mr Mullick's concentration, persistence and pace as a 3 and noted that he struggled to maintain concentration. His memory has become impaired and he cannot focus on cognitively challenging tasks, such as reading, and cannot retain information. I noted since that assessment, his concentration is described as being improved and he can focus on different tasks now. He is also reading regularly.
Multiple Certificates of capacity noted a similar history with PTSD and secondary depression.
Dr Charles Chan, Treating Psychiatrist, has also recorded a similar history and noted that he took a number of medications, including Lexapro, causing sedation.
Handwritten notes from Mr Mullick's psychologist provided treatment for PTSD, including 18 August 2020 having Eye movement desensitization and reprocessing treatment. Handwritten notes 13 March 2020 noted sleep erratic, eating a bit less, keep seeing the incident, wake up often, hard to take things in, like reading but have to keep re-reading, still enjoyed going for a drive.
Dr Graham Vickery, IME psychiatrist report 12 July 2022, noted Mr Mullick has disturbed sleep, not going for walks or to the shop on his own as he is worried about being attacked and avoids socialising, no longer enjoyed driving. He is now driving, he reads the newspaper or watches the news and current affairs on tv. There is no psychological restriction in hygiene or grooming. Mr Mullick has to re-read and reading is limited to 20 minutes. At this point there are no recreational activities. He advised Mr Mullick is not fit for work due to PTSD. Dr Vickery discussed different treatment for PTSD, such as CBT, EMDR. Dr Vickery declined to provide a WPI assessment as he has not obtained appropriate treatment and has not reached MMI.”
The appellant alleged error in respect of the assessment of the Psychiatric Impairment Rating Scales (PIRS) categories of Travel and Concentration, Persistence and Pace.
PIRS Categories
The appellant alleged error in respect of the assessment of the PIRS categories of Travel and Concentration, Persistence and Pace.
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
In Jenkins v Ambulance Service of NSW [2015] NSWSC 633 Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
In Ferguson v State of New South Wales (2017) NSWSC 857 (Ferguson), Campbell J in dealing with whether there was error in the application of the categories and classes of the PIRS identified the following as relevant:
(a) was the categorisation glaringly improbable;
(b) was the Approved Medical Specialist (AMS) unaware of significant factual matters;
(c) was there a clear misunderstanding by the AMS, and
(d) was the AMS’s reason process unable to be made out?
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“66. In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense…
70. To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
71. The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error…”
The Medical Assessor is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Travel
The appellant submitted that the descriptions accepted by the Medical Assessor required a class 3 assessment. The appellant noted that he required his wife to travel with him when he left the house including when he has driven 4-5km to the shops and that the Medical Assessor mistakenly considered that the appellant’s very infrequent driving was undertaken alone and without the assistance of his wife. The appellant noted that it was his wife who completed most of the driving and was always present when he left the house to go on walks or to the shops. The appellant submitted that when driving or walking he could not travel away from his own residence without a support person and should be categorised as a Class 3 for Travel.
The examples under Table 11. 3 for “Travel” in the Guidelines are:
“Class 2: Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3: Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”
Clause 11.11 of the Guidelines classifies Travel as an activity of daily living.
The Medical Assessor assessed the appellant as class 2 for Travel. In the PIRS Rating Form, the Medical Assessor wrote:
“Travel - Class 2
Mr Mullick is anxious and is avoidant of crowded places, and does not like to be out.
He is independent in travel around familiar area.”
In the MAC, under “Social Activities / ADL” the Medical Assessor wrote:
“Mr Mullick is 74. He is living with his wife.
…
He takes walks with his wife sometimes, for about half an hour to an hour. When he is out he has to watch people and make sure there is no one that can attack him.
Mr Mullick's wife does most of the shopping; sometimes he will go with her, maybe once every couple of weeks, but he is always anxious and is always watching people when he is in the shops.
When he goes out, he doesn’t like to drive and prefers his wife to drive. He said he has probably driven maybe 4-5km just to the shops…”
The appellant in his statement dated 9 September 2022 under “Travel” wrote:
“119. Prior to my psychological injury, I never struggled with going out in public or being around crowded places and I had no issue with travelling to places independently. I looked forward to the weekend and going for an unplanned drive to new places. Furthermore, I did not get anxious when leaving the house and could do everything independently.
120. Since enduring my psychological injury, I now find it daunting to travel anywhere on my own. I do not like being around other people, in crowded places or going to unknown destinations as this heightens my anxiety. I now prefer to spend my time at home, and I rarely leave my house. I actively avoid leaving unless it is absolutely necessary. When I do so, I prefer to be accompanied by my wife. Further, I have lost any interest or motivation to explore new places”.
Dr Abdal Khan, consultant psychiatrist, in a report dated 29 December 2021, made a diagnosis of post-traumatic stress disorder and major depressive disorder and assessed the appellant as class 3 in the category of Travel providing the following reasons:
“Mr Mullick rarely leaves his home on his own and when he does, he only walks locally. He predominantly relies on his wife as a support person when he needs to leave his home due to his debilitating anxiety, panic and hypervigilance”.
Dr Graham Vickery, in a report dated 12 July 2022, noted that the appellant was not driving. Dr Vickery wrote:
“Mr Mullick is not going for walks or to the shops on his own as ‘ keep thinking someone is going to come up behind me and attack me, so I just stay at home. I will go for a walk with my wife, but I don’t enjoy it and I don’t want to go and going shopping with her is traumatic and very, very stressful for me’.
….
Mr Mullick no longer enjoys driving as ‘I see the faces of the people in the cars at the stop lights and it makes me very nervous, and I don’t want to drive now and my wife will drive me.’ ”
In his report dated 12 July 2022, Dr Vickery expressed the view that the appellant was not at maximum medical improvement.
The appellant submitted that the application of accepted facts to the class descriptors was a matter of applying the Guidelines correctly and that failing to do so correctly involved demonstrable error and the use of incorrect criteria (in the sense that the wrong class descriptor was being applied to the found facts).
The Medical Assessor noted that Dr Khan rated Travel as a class 3 on the basis the appellant rarely left home on his own and predominantly relied on his wife as a support person. The Medical Assessor, in his assessment, noted that the appellant did not like to be near crowded places or to leave home and he was capable of going out on his own and did so regularly, sometimes taking walks and occasionally going to the shops with his wife. The Medical Assessor wrote: “He is independent when he is out and does not need a support person, therefore, I rated 2”.
The Appeal Panel noted that the appellant in his statement dated 9 September 2022 said that since the injury he found it daunting to travel anywhere on his own and when he left his home he preferred to be accompanied by his wife. The appellant did not say that he could not leave his home without a support person. Dr Khan noted that the appellant rarely left home on his own and when he did so, only walked locally.
Dr Khan assessed the appellant as class 3 for Travel. The fact that the appellant did not like to leave home and rarely left his home by himself did not detract from the fact that he was capable of going out on his own and did so in his local area.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel agreed with the Medical Assessor that it was open on the evidence for the Medical Assessor to make an assessment of class 2 for Travel. The Appeal Panel was satisfied that the rating of class 2 for Travel was not in error and the assessment was not made on the basis of incorrect criteria.
Concentration, Persistence and Pace
The appellant submitted that he described reading “only a newspaper, a loss of concentration and an inability to hold concentration for more than a few minute” and these accepted details were not describing a class 2 type situation of an ability to undertake retraining or focussing on intellectually demanding tasks for a period of up to 30 minutes, but rather a class 3 type situation. The appellant submitted that the Medical Assessor had made a demonstrable error by assessing the appellant as class 2 in this scale and this involved the use of incorrect criteria.
The examples under Table 11.5 for “Concentration, persistence and pace” in the Guidelines are:
“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.
Class 3: Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The Medical Assessor assessed class 2 in relation to Concentration, Persistence and Pace noting:
"Mr Mullick described having problems with his concentration. He can read Sydney Morning Herald, 30 to 60 minutes, and generally reads daily. He can focus on making curry dishes from memory, intermittently checking the cooking for 60 to 90 minutes, but the curry does not always turn out as he likes. His mental state examination is consistent with 2...”
On mental health examination, the Medical Assessor noted:
“…Mr Mullick was bespectacled and wore a collared shirt. He had dark colour hair and was cleanshaven. He engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements. He was mildly restricted in his affect range and smiled appropriately. He spoke spontaneously and gave long description, and generally spoke without interruption. He was not thought disordered.
Mr Mullick provided a detailed history. He remained attentive during the assessment and was not distracted. He maintained a normal pace and speed for 60 minutes.
At the end of the assessment, I asked Mr Mullick for additional information that he thought may be relevant and he discussed he just wants the flashbacks to be gone, he wishes he can wake up and flashbacks are not there anymore.”
In the MAC, the Medical Assessor noted the appellant listed his disability as including chronic fatigue, mood swing, loss of concentration, stressful relationship with spouse. The Medical Assessor noted that in the past the appellant could easily concentrate and enjoyed reading, watching movies regularly and was good at holding conversation, but now cannot hold concentration for more than a few minutes. The Medical Assessor noted that the appellant had to read over the same line multiple times and has given up something he used to love. The Medical Assessor went on the comment that since the appellant provided his statement, he had improved because he has been focused on reading and reads once or twice a day, usually for more than an hour.
The Medical Assessor noted that Dr Khan rated Mr Mullick's concentration, persistence and pace as a class 3 and noted that he struggled to maintain concentration. The Medical Assessor considered that since the assessment by Dr Khan, the appellant’s concentration was described as being improved and he could focus on different tasks now and was reading regularly. The Medical Assessor noted that when Dr Khan wrote his report on 29 December 2021, the appellant was on Paroxetine 5mg, which was a very small dose. The Medical Assessor noted that after the assessment by Dr Khan the appellant’s antidepressant medication was then increased and it was likely that the appellant improved after that assessment.
The appellant in his statement dated 9 September 2022 under “Concentration” wrote:
“123. Prior to my psychological injury, I was able to easily concentrate throughout the day. As such, I enjoyed reading and watching movies on a regular basis and would have no trouble keeping up with the length of a storyline or course of an article. Continually, I was good at holding a conversation and would never get overwhelmed or forget my train of thought mid-sentence. Similarly, my role included liaising with clients, I had no issues with the important demands of my job.
124. Since enduring my psychological injury, I now struggle to keep focused on anything for extended periods of time and I cannot hold my concentration for more than a few minutes. I used to enjoy reading and found it to be something that was quite relaxing. I can no longer maintain my concentration, so much so that I have to read over the same line multiple times and have now given up something I used to love. My mind is always ruminating over my circumstances. Due to my difficulties sleeping, I am extremely fatigued throughout the day, leaving my brain extremely foggy and making it impossible to concentrate. I am frequently distracted from the task at hand due to my constant stress, intrusive thoughts, and sadness. I constantly experience mind blurs and have become easily forgetful and suffer from short term memory retention”.
Dr Khan, in his report dated 29 December 2021, under mental state examination, noted that Mr Mullick’s cognition had evidence of impairment in attention, concentration and memory. Dr Khan assessed the appellant as class 3 in the category of Concentration, Persistence and Pace providing the following reasons:
“Mr Mullick struggles to maintain attention and concentration. His memory is impaired. Mr Mullick cannot focus on cognitively challenging tasks such as reading as he becomes easily distracted and cannot retain information”.
Dr Graham Vickery, in a report dated 12 July 2022, noted that the appellant read the newspaper on his phone, or he watched the news and current affairs on television. Dr Vickery wrote:
“Mr Mullick reported that no one has complained to him about his memory. He will have to re-read lines sometimes and reading is limited to twenty minutes.”
Under “Mental State Examination”, Dr Vickery wrote:
“Mr Mullick’s affect range was not restricted while his behaviour and mood were appropriate to the topic being discussed. His history and presentation were consistent. He was able to relate a coherent and chronological history.
Mr Mullick was particularly frustrated when discussing his current situation.
There was no apparent melancholic depression, paranoid delusional ideation or formal thought disorder. There was no apparent incapacitating cognitive impairment”.
The appellant submitted that in his statement he described reading only a newspaper, a loss of concentration and an inability to hold concentration for more than a few minutes and these details did not describe a class 2 situation but a class 3 situation.
The Appeal Panel was satisfied that the Medical Assessor did undertake a comprehensive and probative examination of the appellant and appropriate testing of the descriptors relating to Concentration, Persistence and Pace. The Medical Assessor did not merely refer the appellant’s statement and medical reports filed by the parties, but to the history obtained during his examination. The Medical Assessor also carried out a mental health examination and noted that the appellant spoke spontaneously and gave long descriptions, and generally spoke without interruption. The Medical Assessor noted that the appellant was not thought disordered and provided a detailed history. The Medical Assessor wrote: “He remained attentive during the assessment and was not distracted. He maintained a normal pace and speed for 60 minutes.”
Dr Khan assessed the appellant as class 3. The Medical Assessor was of the view that there was likely improvement in the appellant’s mental state due to the escalation of treatment since his assessment by Dr Khan on 23 December 2021. The Medical Assessor noted that since Dr Khan’s assessment, the appellant’s concentration was described as being improved and he could focus on different tasks now and was reading regularly. The MA’s objective observation of the appellant’s concentration, persistence and pace within the assessment was consistent with an improvement compared to that obtained by Dr Khan a year previously when on a subtherapeutic dose of an antidepressant.
The Medical Assessor noted that the appellant described having problems with his concentration but could read Sydney Morning Herald for 30 to 60 minutes, and generally read daily. The Medical Assessor also noted that the appellant could focus on making curry dishes from memory, intermittently checking the cooking for 60 to 90 minutes.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of class 2 for Concentration, Persistence and Pace. The Appeal Panel was satisfied that the rating of class 2 for Concentration, Persistence and Pace was not in error and the assessment was not made on the basis of incorrect criteria.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 February 2023 should be confirmed.
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