Nash v State of New South Wales (NSW Police Force)
[2024] NSWPICMP 625
•4 September 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Nash v State of New South Wales (NSW Police Force) [2024] NSWPICMP 625 |
| APPELLANT: | Benjamin Leighton Nash |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 4 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant sustained a psychiatric injury; Medical Assessor (MA) assessed 7% whole person impairment (WPI); appeal on the decision on the basis of availability of additional relevant information; whether the assessment was made on the basis of incorrect criteria; fresh evidence not admitted; assessment in the psychiatric impairment rating scale (PIRS) categories of self-care and personal hygiene, social and recreational activities, social functioning, and concentration, persistence and pace; Held – error in the assessment of concentration, persistence and pace but the total assessment of WPI remained the same as that made by the MA; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 July 2024 Benjamin Leighton Nash (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerard Walsh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 June 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act): availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against):
· 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 suffered a psychological injury in the course of his employment with the State of New South Wales (NSW Police Force) (the respondent) deemed to have occurred on 24 March 2023.
The appellant commenced proceedings in the Personal Injury Commission (Commission) on 11 April 2024 claiming 19% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a psychiatric and psychological disorder injury deemed to have occurred on 24 March 2023.
The Medical Assessor examined the appellant on 3 June 2024. The Medical Assessor assessed 7% WPI as a result of the injury deemed to have occurred on 24 March 2023.
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 determines that it was unnecessary for the appellant to undergo a further medical examination because there is sufficient evidence on which to make a determination.
EVIDENCE
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) statement of the appellant dated 1 July 2024;
(b) statement of Deann Nash dated 1 July 2024;
(c) statement of Jenna Gissane dated 3 July 2024, and
(d) satement of Benjamin Anderson dated 1 July 2024.
The appellant’s fresh evidence comprises a statement regarding his assessment and the alleged errors in the assessment, a statement from his ex-wife Ms Jenna Gissane, a statement from a colleague Mr Benjamin Anderson, and a statement from his mother, Deanne Nash. The appellant submits this fresh evidence should be allowed as (a) it would enable the Commission to gain an understanding of the circumstances, (b) these statements indicate the discrepancies between the report and the actual medical condition and experiences of the appellant, and (c) there are omissions of critical information. The appellant argues that these statements are therefore important to show the errors of the Medical Assessor’s report and allowing these statements into evidence is in the interest of justice.
The respondent objects to the admission of the new evidence. The respondent submits that there is no evidence that the statements of the appellant, Ms Deann Nash, Ms Jenna Gissane and Mr Benjamin Anderson were not available to, or could not have reasonably been obtained by, the appellant before the examination by the Medical Assessor on 3 June 2024.
The respondent submits that the statements cannot be relied upon as fresh evidence to the appeal. The respondent noted that the statements have been obtained after the MAC was issued and that three of the statements provide third party accounts of the appellant’s mental state and capabilities as at the time the statements were provided. The respondent submits that the appellant has provided no explanation or reasoning in their submissions as to why these statements were not obtained and provided in the Application to Resolve a Dispute. On this basis, the statements provided by the appellant cannot be relied upon for the appeal.
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by an Appeal Panel.
In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of “substantive prima facie probative value”. In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:
“…in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
In State of New South Wales v Ali [2018] NSWSC 1783 (Ali), it was noted by his Honour Harrison J that s 327(3)(b) limited that right of appeal to circumstances where additional relevant information was available, but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment. His Honour relevantly stated:
“…section 327(3)(b) cannot be read in any other way: it deals with the circumstances in which an appeal will lie from an assessment that was allegedly made without the benefit of information that existed at the time. It is not concerned with offering an aggrieved party the chance to run the assessment again because circumstances have since changed. It may be contrasted with s 327(3)(a), which contemplates an appeal when circumstances have actually changed, although limited to cases of an increase in the degree of permanent impairment and not the opposite...”
The Appeal Panel noted that the appellant did not provide any explanation or reasoning in their submissions as to why these statements were not obtained and provided in the Application to Resolve a Dispute or even before the date of the medical examination by the Medical Assessor. While the appellant’s statement addressed, in part, events that had taken place during the examination by the Medical Assessor, the statement also addressed other matters that could have been included in the statement dated 8 August 2023 or even a supplementary statement filed before the examination by the Medical Assessor. It appears that the appellant made no complaint about the manner in which the examination by the Medical Assessor had been conducted before the MAC was issued. The Appeal Panel accepts that the part of the appellant’s statement that addressed the manner in which the examination by the Medical Assessor was conducted and was not information available to the appellant before the medical assessment. However, the Appeal Panel considers that those parts of his statement addressing the examination by the Medical Assessor have little probative value.
The Appeal Panel accepts that the statements of Mrs Nash, Ms Gissane and Mr Anderson could reasonably have been obtained by the appellant before that medical assessment and should not be received on appeal. These statements should not be allowed to be admitted as it goes against the underlying principle of the need for finality in litigation.
The Appeal Panel determines that the following evidence, should not be received on the appeal:
(a) statement of the appellant dated 1 July 2024;
(b) statement of Deann Nash dated 1 July 2024;
(c) statement of Jenna Gissane dated 3 July 2024, and
(d) statement of Benjamin Anderson dated 1 July 2024.
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) errors within the Medical Assessor assessments – Self-care and personal hygiene – the appellant does not cook for himself, he will buy a cooked BBQ chicken and heat microwave vegetables. He is prompted by his family to shower daily, he developed a skin condition at the time of his breakdown which he is now being treated from. His mother frequently attends his house to ensure there is appropriate food, bring homecooked balanced meals for him and his children. His mother also does his washing. Given the appellant’s clarification, it would be more accurate to place him in Class 3 rather than Class 2.
(b) Social and Recreational Activities – the appellant never or rarely engages in social or recreational activities without a support person and, even then, these outings are extremely rare. When he does venture out, such as going to the local pub, or to the gym he will only do so with the support of a close friend. The appellant does not initiate these outings, his friends will prompt him. He attends the gym on the suggestion of his treating team and will only go to the gym where his close friend works for support. He would not be able to attend these without his support network. The Medical Assessor has misunderstood the appellant, in his statement that he is able to socialise. He is only able to socialise with those who are close to him, he will not go out to any of these public spaces if they do not push him to and if they do not go with him. When he is out he struggles to remain engaged and does not have much involvement in their conversations and activities. Given the appellant’s clarification that his social activities predominantly revolve around his very close friend group and are rare not frequent, it would be more accurate to place him in Class 3 rather than Class 2. The appellant never goes out to such social events without a support person.
(c) Social Functioning – eue to the appellant’s severe post-traumatic stress disorder, most if not all, of the relationships in his life have been affected. Due to his condition his marriage fell apart, they are now divorced. His relationship with his children is strained, his mother is at times concerned about his mood towards his children and as such she often cares for them and has set up a children’s room at her house for them to stay when he disconnects. His relationship with his parents is now strained, he is short tempered towards his mother who is working full time and assuming a parental role to assist with his children which he struggles to do due to his injury. He will at times go days without speaking to his mother due to his temper and lack of empathy. Given the appellant’s clarification, it would be more accurate to place him in Class 3 rather than Class 2. On regular occurrences he is unable to care for his children and his mother looks after them he separated and then divorced his wife, and has a strained relationship with his parents.
(d) Concentration, persistence and pace – the appellant was advised by his treating professionals to attempt to read as a treatment strategy. This has been a failure as he found he was unable to recall more then a couple of lines that he had just read. The appellant also spoke to the Medical Assessor about a car accident he had been involved in, where he was in a daze and was unable to explain how it occurred. This was not recorded in the report. Given the appellant’s clarification, it would be more accurate to place him in Class 3 rather than Class 2.
(e) In conclusion, the appellant has appealed their psychiatric impairment rating under the 1998 Act on the basis of incorrect criteria and a demonstrable error in the MAC. The appellant seeks a correction to their impairment rating. 2, 3, 3, 3, 3, 3 = 3 / aggregate score of 17 which equals 19%.
The respondent’s submissions include the following:
(a) the appellant’s submissions merely amount to a difference of opinion to that of the Medical Assessor, which does not amount to a demonstrable error. The Medical Assessor clearly considered all of the material filed in the proceedings and applied a clinical judgement to his assessment of whole person impairment (WPI) and therefore did not make a demonstrable error.
(b) Psychiatric Impairment Rating Scale (PIRS) ratings – the MAC contained summaries of the evidence provided to the Medical Assessor and it is clear that the Medical Assessor has considered that evidence in providing his assessment of impairment.
(c) The appellant’s submissions merely cavil with the findings of the Medical Assessor, rather than provide a basis for which a demonstrable error was made. The Medical Assessor cannot be said to have made a demonstrable error as he applied a clinical judgement and clearly considered all available material. This is demonstrated by the summary of Dr Anand’s report and the reasoning for his conclusions. While a Medical Assessor may have regard to other medical opinions, he is not bound by them and is entitled to rely on his own assessments (Pitsonis v Registrar of WCC & Anor (2008) NSWCA 88). The appellant’s submissions are largely based on retrospective considerations of what the appellant believes they ought to have said, which is supported by the statements obtained following the medical assessment.
(d) Self-care and personal hygiene – the appellant’s submissions for self-care and personal hygiene do not adequately support a Class 3 rating. The evidence available shows that the appellant cooks for himself and occasionally relies on take-away (even if the meal consists of Red Rooster BBQ chicken and microwavable vegetables). Further, in the report of Dr Anand, the appellant states that he can do chores around the house and that he can self-care independently. The Medical Assessor correctly assessed a Class 2 rating for self-care and personal hygiene and provided a detailed explanation for his rating of Class 2, which is consistent with his clinical findings.
(e) Social and recreational activities – the appellant submitted that the Medical Assessor’s rating for social and recreational activities is incorrect and that a Class 3 rating should have been applied. The appellant submits that his attendance at social or recreational events is only with a support person and can only socialise with those that are close to him.
(f) The Medical Assessor has correctly assessed a Class 2 rating for social and recreational activities. The Medical Assessor has provided a detailed explanation for his rating for Class 2 in the MAC, and which is consistent with his clinical findings.
(g) Social functioning – the appellant has submitted that the Medical Assessor incorrectly assessed social functioning as a Class 2 rating, and a Class 3 rating should be applied. A Class 2 rating allows for strained existing relationships and loss of some friendships.
(h) The Medical Assessor reported that the appellant would have arguments with his partner but there were no episodes of separation and that he had been angry at his children two or three times. The appellant reported that he has a good group of school and police friends who are very supportive and that he has only stopped talking to a few friends. There is no evidence available to suggest that the appellant has any severely strained relationships or inability to care for his children as required by Class 3.
(i) The Medical Assessor correctly assessed a Class 2 rating for social functioning.
(j) Concentration persistence and pace – the appellant has submitted that a Class 3 rating should have been applied. Dr Anand noted that the appellant was not able to read as much as before due to his poor concentration, however, there is no evidence available to determine how often or how much the appellant was reading prior to his injury. The Medical Assessor noted that the appellant could read four or five pages but has had to decrease the complexity of the content.
(k) The respondent respectfully submits that the Medical Assessor has correctly assessed a Class 2 rating for concentration, persistence and pace.
(l) The appeal should be dismissed and the MAC confirmed.
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.
Self care and personal hygiene
The appellant submits that he should have been placed into Class 3 on the basis of the clarification provided in the fresh evidence. However, the Appeal Panel has determined that the evidence should not be received on the appeal.
The examples under Table 11.1 for “Self care and personal hygiene” in the Guidelines are:
“Class 2 Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3 Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes.
Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition”.
The Medical Assessor assessed the appellant as Class 2 for self care and personal hygiene. In the PIRS Rating Form, the Medical Assessor wrote:
“Self care and personal hygiene- Class 2
Class 2 and not Class 1 was selected because he can look after himself with some support.
He has mild impairment.
Bathing: He said he is independent and showers every day.
Cooking: The Claimant said he cooks once a week. He gets takeaways 5 times a week as he could not be bothered to cook.
Household chores: He reported that his mother does some of the housework. He does not keep up with even minor repairs around the house. He said he would pack the dishwasher but does not do much of the household chores.
Shopping: He stated that twice a week, he goes shopping. He goes early in the morning to avoid people.
He stated that before the injury, he was completely independent in bathing, grooming, household chores and shopping. He said he used to do most of the cooking and the cleaning. He used to go shopping at any time of the day.”
Under “Findings on physical examination” the Medical Assessor noted that the appellant was reasonably groomed.
In a statement dated 8 August 2023, the applicant stated: “I struggle to get on top of my personal hygiene, such as bathing, attending to my hair and grooming”.
Dr Ashwinder Anand, consultant psychiatrist, in his report dated 26 September 2023, assessed a Class 2 providing the following reasons:
“In a typical day, he gets up in the morning, goes to exercise at the gym for two to three hours and takes his dog for a walk and then goes for a run. He can self-care independently but stated that at times he needs to be prompted and at times he has let himself go. He can do chores around the house.”
Both the Medical Assessor and Dr Anand assessed a Class 2 impairment for self care and personal hygiene.
The appellant submits that a key difference between a Class 2 and a Class 3 impairment is the ability to live independently without support. However, the appellant has described independent functioning being able to self care, do chores around the home, go shopping, cook once a week and buy take away food on other nights.
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’s assessment of Class 2 for self care and personal hygiene.
The Appeal Panel is satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS category of self care and personal hygiene and the assessment in this class is not made on the basis of correct criteria. The categorisation of Class 2 for self care and personal hygiene was not glaringly improbable; the Medical Assessor was not unaware of significant factual matters, there was no clear misunderstanding by the Medical Assessor and his reasoning process was sufficiently clear.
Social and recreational activities
The appellant submitted that he should have been placed into Class 3 on the basis of the clarification provided in the fresh evidence. However, the Appeal Panel has determined that the evidence should not be received on the appeal.
The examples under Table 11.2 for “Social and recreational activities” in the Guidelines are:
“Class 2: Mild impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved (e.g. dancing, cheering favourite team).
Class 3: Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
The Medical Assessor assessed the appellant as Class 2 for social and recreational activities. In the PIRS Rating Form, the Medical Assessor wrote:
“Social and recreational activities - Class 2
Class 2 and not Class 1 was selected because he is able to socialise. He has not been able to get back to his usual physical activities.
He has mild impairment.
Hobbies: He said he does not have any hobbies.
Exercise: He stated that he does his home gym 4 times a week with his friend. He goes to another gym 10 times a month.
Frequency of socialising: He said he goes out 4 or 5 times a month for dinner, coffee, or to the pub with friends He said he cannot handle people nowadays and gets easily angered.
Involvement when out: He reported being involved when out, but sometimes ‘zones out’.
The Claimant said a support person is not needed to go out.
He stated that before the injury, he used to play football, cricket, and golf and was involved in committees. He stopped playing football 5 years ago when he abused the referee and felt he lost control. He used to go to a public gym 45 [sic] times per month.
He said he used to go out every day for coffee or to the pub with friends.”
Dr Anand, in his report dated 26 September 2023, noted the following:
“In a typical day, he gets up in the morning, goes to exercise at the gym for two to three hours and takes his dog for a walk and then goes for a run. On some days he can go to the local café to get a coffee”.
Dr Anand assessed a Class 3 providing the following reasons:
“He has become reclusive and socially withdrawn. On some days he can go to the local café to get a coffee. He used to play a lot of footie and cricket, but he does not do any of this anymore.”
The appellant submitted that Class 3 would be more appropriate, as he never or rarely engages in social or recreational activities without a support person and, even then, these outings are extremely rare.
A Class 2 rating allows for occasional outings “without needing a support person but does not become actively involved”. Dr Anand noted that the appellant would exercise at the gym for two to three hours and then take his dog for a walk or go for a run and could go to the local cafe to get a coffee. There is no indication in Dr Anand’s report that the appellant required a support person whilst undertaking these activities. Similarly, the appellant told the Medical Assessor that he goes to dinner, coffee or to the pub with friends four or five times a month and that a support person is not needed for him to go out. The appellant also reported being involved when out but that he sometimes “zones out”.
The Appeal Panel notes that the appellant had stopped playing football and cricket. However, the Medical Assessor noted that the appellant can go to the gym 10 times a month and goes out four or five times a month for dinner, coffee, or to the pub with friends. The Appeal Panel considers that the descriptors provided in Table 11.8 by the Medical Assessor were Class 2 descriptors. The activities described by the Medical Assessor in this scale were not consistent with a moderate impairment. Dr Anand’s reasons in this scale lacked detail but he did state that the appellant on some days could go to the local café to get a coffee and he would walk his dog and exercise at the gym.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considers that the Medical Assessor assessment of Class 2 for social and recreational activities was appropriate.
The Appeal Panel is satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS category of social and recreational activities and the assessment in this class is not made on the basis of correct criteria. The categorisation of Class 2 for social and recreational activities was not glaringly improbable; the Medical Assessor was not unaware of significant factual matters, there was no clear misunderstanding by the Medical Assessor and his reasoning process was sufficiently clear.
Social functioning
The appellant submits that he should have been placed into Class 3 on the basis of the clarification provided in the fresh evidence. However, the Appeal Panel has determined that the evidence should not be received on the appeal.
The examples under Table 11.4 for “Social functioning” in the Guidelines are:
“Table 11.4: Psychiatric impairment rating scale – social functioning:
Class 2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3 Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children”.
In the MAC under “Social activities/ADL”, the Medical Assessor wrote:
“The Claimant lives with his partner. They have been together for 18 months. His 2 children are with him for a week every second week.”
The Medical Assessor assessed the appellant as Class 2 for social functioning. In the PIRS Rating Form, the Medical Assessor wrote:
“Social functioning – Class 2
Class 2 and not Class 1 was selected because he has some arguments with his partner and mother.
He has mild impairment.
Relationship with his partner: He said they have arguments. She is a police officer, and he becomes angry when she wants to talk about work. There were no episodes of separation, but 6 or 7 times in the past year they slept separately for 2 or 3 days. There has been no domestic violence.
Relationship with children: He stated that he has a 9-year-old son and a 7-year-old daughter. Over the last 18 months, he has been uncharacteristically angry at his children 2 or 3 times and regretted it.
Relationship with parents: He reported that his mother is a good support. He said he sometimes argues with her because he does not want to talk. He has never had any contact with his father.
Relationship with friends: He stated that he has a good group of school and police friends who are very supportive. He has stopped talking to some friends after the accident though.
He stated that he was very social and would organise events before the injury. He was the Team Manager and social coordinator when working.”
In his statement dated 8 August 2923, the appellant wrote:
“Due to my injury, I have lost friendships which I valued because I am emotionally numb towards people and have little motivation to maintain these relationships. The limited relationships that I do maintain with friends have been affected and I struggle to socialise with them.
I experience irritability on a regular basis which is generally directed towards family and friends; this has affected my interpersonal relationships”.
Dr Anand, in a report dated 26 September 2023, assessed a Class 3 for social functioning providing the following reasons:
“His relationship with Tina has been quite testing he stated. He stated that he is trying to mend his relationship with his children and his mother. He has
distanced himself from most of his friends. He stated that his relationship broke down three years ago because he gave everything to his work, and he never
left enough time for his own family. He felt that he alienated his family members, and his ex-wife was just not able to talk to him”.
Dr Anand noted that: “Mr Nash is a 34-year-old male in a relationship with Tina. He was divorced from his ex-wife about three years ago in 2020 and he has two children from a previous relationship aged 6 and 8”.
The Appeal Panel noted that Dr Anand assessed the appellant as Class 3 for social functioning, but that examination took nearly a year ago. Since that examination, the appellant has remained in his relationship with his partner, Tina. This relationship, even if it is unsettled from time to time, can be described as stable and there is no report of any violence, separation or severe stain in that relationship.
The appellant submitted that on regular occurrence he is unable to care for his children, his mother looks after them instead, that he separated and then divorced his wife, and has strained relationship with his parents.
The Appeal Panel accepts that there may be some strain in his relationship with his mother, however, the Medical Assessor noted that his mother was a good support. The appellant appears to have no problems in his relationship with his children apart from being uncharacteristically angry at his children two or three times in the last 18 months. There is no reference in the appellant’s statement dated 8 August 2023 or in Dr Anand’s report to the appellant being unable to care for his children. The separation and divorce from his wife occurred in 2020, and Dr Anand reported that the relationship broke down three years ago because he “gave everything to his work, and he never left enough time for his own family”. Dr Anand’s report does not suggest that the marriage failed because of the work injury.
The Appeal Panel considered that impairment is to be assessed at the time of examination. The Guidelines at 1.6 provide that assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking into account the claimant’s relevant medical history and all available relevant information. The appellant has formed a new stable relationship with his partner, Tina.
The Appeal Panel accepts that the appellant separated from and then divorced his ex-wife, Jenna. However, he has formed a new stable relationship with Tina. The Appeal Panel does not accept that the appellant requires assistance to look after his children. He is close to, and has fairly frequent contact, with his mother and see a number of his friends, even if other friendships have been lost.
The appellant submitted that the impairment is more appropriately rated as a Class 3 under Table 11.4. On balance, the Appeal Panel is satisfied that the descriptors provided in Table 11.4 by the Medical Assessor are Class 2 descriptors. Therefore, the Appeal Panel is satisfied that the reasoning process for assessing the appellant as Class 2 in this category was able to be made out. The Appeal Panel agrees that the appellant should be rated as Class 2 for social functioning.
The Appeal Panel is satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS category of social functioning and the assessment in this class is not made on the basis of correct criteria. The categorisation of Class 2 for social functioning was not glaringly improbable; the Medical Assessor was not unaware of significant factual matters, there was no clear misunderstanding by the Medical Assessor and his reasoning process was sufficiently clear.
Concentration persistence and pace
The appellant submits that he should have been placed into Class 3 on the basis of the clarification provided in the fresh evidence. However, the Appeal Panel has determined that the evidence should not be received on the appeal.
The relevant descriptors in this category are at Table 11.5 of the Guides:
“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 (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
In Table 11-8 the Medical Assessor assessed Class 2 for concentration, persistence and pace. He provided the following reasons:
“Class 2 and not Class 1 was selected because he still has difficulties with his concentration.
He has mild impairment.
He said was He said his concentration was better than it had been. He has tried reading books but has had to decrease the complexity of the content. He can read 4 or 5 pages but does not retain the information. This makes him angry and frustrated. He paid someone $11k to complete his CPD form and said normally he would be able to cognitively do this himself”.
In the MAC, under “Findings on physical examination”, the Medical Assessor noted that the appellant attended the assessment at the correct time, and a treasonable history was obtained. On examination he noted: “He was able to manage the assessment which lasted 1 hour and 10 minutes”.
In his statement dated 8 August 2023, the appellant wrote:
“I have an impaired memory and struggle to recall the simplest things.
I struggle with concentration, and this has affected my ability to conduct daily tasks and engaging in activities that I once enjoyed such as reading books, watching TV and communicating with others.”
Dr Anand, in his report dated 26 September 2023, assessed Class 3 for concentration, persistence and pace. He provided the following reasons: “He used to love reading but he struggles because of his poor concentration.”
The assessment of concentration, persistence and pace involves clinical judgment. The Medical Assessor described all that the appellant self-reported and then his clinical observations. The Medical Assessor did report that the appellant said that his concentration was better than it had been. However, the Medical Assessor reported that the appellant said he could only read four or five pages of a book and does not retain the information. The appellant said that he also had to decrease the complexity of the content. In addition, the appellant paid someone to complete his “CPD” form and said that he would normally be able to do that himself. The Appeal Panel note that “CPD” is a term that usually refers to continuing professional education and we assume that what was actually referred to is “TPD”, which is total and permanent disability insurance, and the form was an insurance form.
The Appeal Panel was not satisfied that the descriptors provided in Table 11.8 for concentration, persistence and pace by the Medical Assessor are Class 2 descriptors. The appellant was not able to fill out an insurance claim form and had to pay for that to be done, he was not able to read more than four or five pages of a book and was unable to retain the information that he had read. These descriptors are Class 3 descriptors.
Therefore, the Appeal Panel is not satisfied that the reasoning process for assessing the appellant as Class 2 in this category was able to be made out. The Appeal Panel assesses the appellant as Class 2 for concentration, persistence and pace.
The Appeal Panel is satisfied that there was a demonstrable error in the MAC in relation to the ratings in the PIRS scale of concentration, persistence and pace and that the assessment in this class was made on the basis of incorrect criteria.
As noted above, the Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS categories of self care and personal hygiene, social and recreational activities and social functioning.
The Appeal Panel finds that the PIRS scales score 2 2 2 2 3 3, median 2, aggregate 14 so that the final WPI = 7%. The Appeal Panel notes that the Medical Assessor assessed 7% WPI in the MAC.
In summary, the assessment of total WPI by the Appeal Panel is the same as that made by the Medical Assessor. In those circumstances the Appeal Panel will confirm the MAC as the review has not led to a different result and should not be interfered with (Robinson v Riley [1971] 1 NSWLR 403).
For these reasons, the Appeal Panel has determined that the MAC issued on 12 June 2024 should be confirmed.
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