Paea v JB Hi-Fi Group Pty Ltd
[2024] NSWPICMP 777
•20 November 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Paea v JB Hi-Fi Group Pty Ltd [2024] NSWPICMP 777 |
| APPELLANT: | Lydia Maxwell Paea |
| RESPONDENT: | JB Hi-Fi Group Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | John Lam-Po-Tang |
| DATE OF DECISION: | 20 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; medical appeal; assessment of psychiatric injury; allegation of breach of procedural fairness; no deduction made by either independent medical examiner; whether Medical Assessor (MA) provided adequate reasons; whether MA adequately engaged with the evidence provided; Held: Medical Appeal Panel not satisfied any ground of appeal made out; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 September 2024, Lydia Maxwell Paea (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Steven Yeates, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 August 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):
· 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. It is noted that the delegate’s decision refers to a MAC dated 6 August 2024 and an amended MAC dated 9 September 2024. This was not, in fact, issued.
It is noted a separate application was made to correct a calculation error (the Medical Assessor has rounded the impairment following a deduction up instead of down). The calculation error appears at 10(b) of the MAC on page 6, as well as in the certificate. As of the date of this decision, that application remains extant and has not been determined. It is not a matter that is before the Appeal Panel, however.
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).
RELEVANT FACTUAL BACKGROUND
Ms Maxwell Paea was employed at the Macarthur Square store of JB Hi-Fi Group Pty Ltd (the respondent). Here she suffered a psychological injury due to exposure to sexual innuendo and inappropriate behaviour that made her feel uncomfortable at work. She was groped while bending over at her work. She reported issues to Human Resources (HR), and was dissatisfied with their response.
An allegation was made about Ms Maxwell Paea’s conduct, and she was ultimately suspended. Her mental health deteriorated. Following her cessation of work, she lost a significant amount of weight due to deliberate starvation. She has been admitted to psychiatric care on a number of occasions.
She brought a claim in the Personal Injury Commission (Commission) for lump sum compensation with a date of injury of 28 June 2021. She was referred for a medical assessment which took place on 29 July 2024. A MAC was issued. Ms Maxwell Paea appeals against that assessment.
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. The appellant in her Application to Appeal sought that she be re-examined. The appellant’s submissions conclude with the following: “The Applicant asserts that a re-examination is required”. No submissions are provided in support of that assertion.
Having considered the MAC as a whole, as well as the appellant and respondent’s submissions, the Appeal Panel are satisfied that the matter can be determined on the papers. As will be explained below, the Appeal Panel do not accept any of the grounds as set out in the appellant’s submissions and accordingly there is no error in the MAC. On that basis, there is no jurisdiction to undertake a re-examination (New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792), and in any event, there is sufficient material available before the Appeal Panel to determine the issues in dispute.
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.
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 are, at times, somewhat confusing. The submissions refer to an error in relation to the assessment of the digestive system. This was not assessed, nor referred for assessment. It appears that this has been inadvertently included and likely is a submission made in a different matter. The appellant goes on to suggest that the appeal is made “on the basis of two broad grounds”, going on to identify three grounds. The appellant then goes on to set out five specific grounds. The Appeal Panel take those specific grounds, made under separate headings, as the scope of the appeal. In summary, the appellant submits:
(a) she was denied procedural fairness, as neither independent medical expert relied upon by the parties (Drs Sidorov and Rastogi) identified a pre-existing borderline personality disorder, or made a deduction pursuant to s 323;
(b) the MAC contains inadequate reasons in relation to the deduction made, with a further submission that it was not explained how the Medical Assessor reached the conclusion that a borderline personality disorder existed when there was insufficient information to form a conclusion;
(c) the Medical Assessor approached the question of a deduction by asserting that the presence of the pre-existing condition rendered the appellant more susceptible to injury. This ignores the fundamental principle that an employer takes employees as they find them;
(d) the Medical Assessor failed to engage with evidence, being admissions to hospital, general practitioner notes, and hospital notes of the Ramsay clinic, which demonstrate clear and significant impairments across the Psychiatric Impairment Rating Scale (PIRS) categories. The evidence of contemporaneous treatment is relevant to the PIRS categories, and
(e) the Medical Assessor made a deduction for pre-existing condition in his findings, but also proceeded to introduce the purported pre-existing condition into his assessment of impairment with respect to travel.
In reply, the respondent submits that the appellant’s past history of psychiatric illness was evident in the material before the Medical Assessor. Both Drs Sidorov and Rastogi record a known history of adolescent depression with psychotic symptoms. The respondent submits that even if a diagnosis of underlying borderline personality disorder had not been made, a one-tenth deduction could have been applied based on the history taken by the Medical Assessor. The respondent also submits that the reference to “insufficient information” is in relation to the inconsistency in the appellant’s presentation, and her mental health episode in Year 12.
In respect of the clinical records, the respondent submits that he had before him over 600 pages of documents, and acknowledged the records and noted their contents, but it would have been impossible for the Medical Assessor to have to list or outline the contents of all documents referred to or relied upon by him in assessing impairment.
The respondent notes that the only ground of appeal that specifically cavils with the Medical Assessor’s assessment in the PIRS is in respect of travel. The respondent submits that the Medical Assessor addressed the relevant criteria and an assessment of class 2 is consistent with the Guidelines.
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. The appeal concerns the application of s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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.
As discussed above, the appellant has variably suggested that there are two, three or five grounds of appeal. The Appeal Panel will deal with each ground as provided in the headings in submissions, that is each of the five grounds suggested. Where there is some overlap, which the respondent suggests has occurred, commentary will be made to that effect.
Ground one – denial of procedural fairness
Grounds one to three all relate to the deduction made by the Medical Assessor pursuant to s 323 of the 1998 Act, but attack that deduction in different ways. Under this ground, the appellant submits that she was denied procedural fairness as neither independent medical examiner had identified the existence of a pre-existing borderline personality disorder, or made a deduction pursuant to s 323 of the 1998 Act. It is submitted, with reference to Skates v Hill Industries Ltd [2021] NSWCA 142 (Skates), that that “framed the dispute between the parties”.
There are a number of incorrect assertions and misunderstandings in the appellant’s representations under this ground.
The first is that the Medical Assessor is not bound by the assessments made by the parties’ medical experts. Those assessments provide evidence for consideration before the Medical Assessor, but are not binding on him or her.
The second is that Skates concerned the framing of the assessment in accordance with the referral, relevant to the body parts to be assessed by the Medical Assessor. It does not comment upon the statutory considerations for determining a medical dispute, which includes s 323 of the 1998 Act. To interpret Skates as to limit a Medical Assessor’s consideration of the statutory question raised in the consideration of a medical dispute would take that decision to far.
Third, s 323 must be considered as part of every assessment, by nature of the section itself. It is a mandatory consideration. In any event, it formed part of the referral for assessment, issued by a delegate of the President on 8 July 2024.
Finally, the medical evidence in this case extends beyond the assessments of impairment made by Drs Rastogi and Sidorov. Both doctors take a history of psychological problems in the past. Dr Rastogi takes a similar history of psychiatric problems in Year 12 to that recorded by the Medical Assessor:
“There is known previous history of adolescent depression with psychotic symptoms with auditory hallucinations in year 12 and she was treated with Quetiapine and Lovan that she took for 6 months prescribed by her psychiatrist. The triggers were pressures of study in year 12. She made full recovery and did not relapse.”
Meanwhile Dr Sidorov records:
“Ms Maxwell described that she initially experienced problems with her mental health at the age of 17 whilst in Year 12 at high school. She stated that initially she had depression and then developed psychotic symptoms specifically auditory hallucinations and depersonalisation experiences. She saw a psychiatrist at the time and was treated with an antidepressant medication called sertraline as well as quetiapine, an antipsychotic medication. She also described being paranoid at the time and that there were knives under her pillow, and she was worried about her family being hurt. She took medication for about six months and then her symptoms resolved.
There has been no further recurrence of psychotic symptoms. She stopped taking quetiapine and sertraline after about six months. She had suicidal ideation but no attempt at that age. She has had no problems with her mental health until recently since that time.”
The appellant’s statement also refers to a diagnosis of psychosis in Year 12.
The fact that neither doctor made a deduction does not mean that the Medical Assessor was not entitled to do so.
The role of the Medical Assessor in assessing impairment is to reach his or her own conclusion. It is not to choose between competing opinions put forward by the parties. In State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 (Kaur), discussing Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (Wingfoot), Campbell J said this about the role of an approved medical specialist (now Medical Assessor):
“In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise.” (at [26])
The appellant’s submissions suggest that there has been a denial of procedural fairness in some way. It is not fully articulated how that might be the case, but is suggested that the finding of a pre-existing condition was made without notice to the parties, or giving an opportunity to be heard on the issue.
The Appeal Panel does not accept that there was a denial of procedural fairness. The question of whether a deduction applied is specifically contemplated by the legislation (s 323 of the 1998 Act) and is part of the matters certified to be conclusively presumed to be correct under s 326. There was evidence of the existence of a pre-existing condition contained in the material provided by the parties, which I have set out above. The parties had an opportunity to be heard on that issue by providing the material that went to the Medical Assessor for his consideration.
In any event, the Medical Assessor drew the issues of her previous history, and inconsistencies in such reporting, to Ms Maxwell Paea during the examination. This is set out under the heading “consistency of presentation” and appears on page 5 of the MAC.
The appellant’s submissions also raise reasons under this heading. There is no role for procedural fairness in the provision of reasons (see Sawaneh v Flintwood Disability Services Ltd [2024] NSWCA 178 at [4]-[5]), which is sufficient to discharge any suggestion that the provision of adequate reasons (which is not particularly suggested in the appellant’s submissions) amounts to a denial of procedural fairness.
Ground 2 – reasons for pre-existing condition
The appellant’s submissions commence by suggesting that any ambiguity in reasoning in the MAC should not necessary be resolved in favour of the Medical Assessor, and that there is no discernible justification of the Medical Assessor’s decision. The appellant goes on to refer to a failure to refer to or properly evaluate evidence that may support an assessment in the PIRS, with reference to various material including the appellant’s statement and select clinical notes; and a failure to explain how the borderline personality disorder condition existed when the Medical Assessor had concluded there was insufficient information to form a clear conclusion.
The leading authority on the requirement to provide reasons in the present context is Wingfoot. As discussed above, Campbell J in Kaur discussed the role of the Medical Assessor in determining a medical dispute, and then referred to [55] of Wingfoot:
“It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
It is trite law that a decision maker does not need to refer to every piece of evidence, but expose a consideration of the evidence (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430). Reasons must be read as a whole and fairly. It is also accepted, as the appellant submits, that the requirement to given reasons can vary depending on the nature of the dispute itself.
The reasons in relation to the identified pre-existing condition appear throughout the MAC. On page 3, the Medical Assessor sets out the relevant history (including other events and Ms Maxwell Paea’s family history):
“Ms Maxwell Paea had a significant mental health episode where she was treated by the community mental health team in Campbelltown with quetiapine in her final year of high school. She was initially taken to her general practitioner, who referred her to a public community mental health service. Ms Maxwell Paea described this as a period of intense ‘stress’ but did not elaborate on it despite inquiry. In the documentation provided, this episode has been referred to as a psychotic episode.”
In discussing the diagnosis, the Medical Assessor records the following:
“She describes developing self-harm and associated psychosocial dysfunction with chronic suicidality after this meeting. She subsequently developed features consistent with an obsessive-compulsive disorder with prominent paedophilic and contamination themes that created compulsion rituals of cleansing and prayer. This occurs on the background of a likely serious psychiatric episode in Ms Maxwell Paea's final year of high school, where she was treated with antipsychotic medication. The details of this syndrome are unclear and inconsistently presented, as outlined below. There is also an account of a sexual assault taking place outside the workplace. The impact of this single event was not determined with precision, but it is unlikely to be zero on the final presentation.”
The section of the MAC dealing with diagnosis is comprehensive, identifying several probable diagnoses. The Medical Assessor then discusses inconsistencies on page 5 of the MAC, particularly identifying the Year 12 mental health episode, as well as self-harm occurring in adolescence. The appellant’s submissions identify this particular paragraph as a failure:
“The provided documentation describes Ms Maxwell Paea’s year 12 mental health episode as a psychosis. Ms Maxwell Paea minimised the significance of this episode and described it as ‘stress.’ I presented the inconsistency to Ms Maxwell Paea, who then elaborated on the episode as being a major depressive episode. She later elaborated that she was treated at the community mental health service in Campbelltown with anti-psychotic medication. There is insufficient information to form a clear conclusion, but the episode was of sufficient severity to warrant an atypical antipsychotic prescription.”
The Medical Assessor then goes on to identify two pre-existing conditions:
“(i) Previous significant psychiatric episode requiring treatment with antipsychotic medication under the care of a community mental health team.
(ii) Ms Maxwell Paea has features suggestive of an underlying borderline personality disorder, which is not likely to be solely due to the work injury. As exemplified by the presence of a serious psychiatric presentation at age 18.”
The Medical Assessor then goes on to deal with how those identified pre-existing conditions contributed to impairment:
“The evidence is that the episode in late adolescence was dissociative and at least moderately serious. It also confirms that mental health symptoms predated workplace injury. The features prompted the prescription of antipsychotic treatment in a public mental health service. The clinical features present are suggestive of an evolving borderline personality disorder, namely stress-related risks of exacerbation of self-harm, parasuicidal behaviour (including self-starvation), dissociation and non-epileptic seizures, which are likely to be contiguous with the first episode in late adolescence. The first episode was not likely to be a discrete and self-limiting event terminated by treatment. Rather, the probability of an exacerbation of the index episode at some point was high, given the substrate of affect dysregulation and probable self-harm behaviour (cutting), especially in the absence of ongoing treatment (Ms Maxwell Paea reported self-ceasing quetiapine). A deduction arises out of the specialist knowledge of the condition (borderline personality disorder) that makes exacerbations during times of stress (such as arising out of workplace injury) probable and likely to lead to more substantial impairments in function and mental state than would be predicted from the workplace injury alone. Nevertheless, the extent to which this impairment contributed to, or was exacerbated by, the workplace injury is difficult to ascertain precisely. As such, the deductible proportion can be applied as 1/10th.”
It is the Appeal Panel’s view that these reasons are far from inadequate. They are comprehensive and deal with the inconsistency that was previously identified and put to Ms Maxwell Paea during the examination.
The appellant refers to the worker’s statement evidence. The Medical Assessor had the benefit of all of the material provided by the parties as set out in the referral, which included the appellant’s four statements attached to the Application to Resolve a Dispute. A failure to refer to specific documents, whether they be statements or clinical notes (contained within hundreds of pages of material), is not of itself a failure to provide adequate reasons. The context in which a medical dispute is determined is important. The Medical Assessor had the benefit of speaking to the appellant for an extended period and taking a history from her in her own words. Further, the consideration of functioning per the PIRS tables involves clinical assessment on the day of examination. In that regard a Medical Assessor has to apply a degree of expertise to consider the material available in the context of the answers given. A Medical Assessor, in reaching a conclusion, is entitled to rely on the history taken during the examination, so long as procedural fairness is afforded to a worker.
In terms of the Medical Assessor’s conclusion that there was “insufficient information to form a clear conclusion”, it is the Appeal Panel’s view that this submission engages in overzealous scrutiny of the Medical Assessor’s reasons, which must be read as a whole and fairly (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6). The Medical Assessor explained his conclusion on s 323 clearly and in various places throughout the MAC. It is also noted that the Medical Assessor’s ultimate conclusion on s 323, provided at page 8 of the MAC, identified two conditions as contributing. The first was a “significant psychiatric episode” and the second were “features suggestive of an underlying borderline personality disorder”, which resulted in a serious psychiatric presentation at a young age. The explanation for how those conditions contribute to the current degree of impairment is extensive.
The Appeal Panel is of the view that the Medical Assessor has provided adequate reasons and this ground of appeal is not made out.
Ground 3 – errors in the s 323 approach
Under this ground the appellant asserts that the Medical Assessor has erred in his approach to the causation question asked by s 323 of the 1998 Act. The appellant submits that the Medical Assessor confused the issue by determining the pre-existing issue rendered the applicant susceptible to an injury, rather than whether any proportion of impairment present after the work injury was due to some earlier condition or abnormality.
The construction of s 323 as asserted by the appellant is generally correct. A respondent takes a worker as they find them – the egg-shell skull or egg-shell psyche principle. A mere vulnerability is insufficient to constitute a valid basis for a deduction (Fire and Rescue New South Wales v Clinen [2013] NSWSC 629); a medical condition must exist.
When considering whether the Medical Assessor has validly identified a medical condition and answered the causation question contemplated by s 323 of the 1998 Act in accordance with the legislation, close attention must be paid to the reasons provided. The Appeal Panel have set those reasons out above and are satisfied that they are adequate.
As said, the Medical Assessor identified two pre-existing conditions or abnormalities. Both of those were relied upon in making a deduction. It is the Appeal Panel’s view that they are more than mere vulnerabilities and the Medical Assessor has adequately explained why that is the case.
Those reasons do refer to Ms Maxwell Paea’s identified pre-existing conditions making her more likely to have exacerbations: “Rather, the probability of an exacerbation of the index episode at some point was high”, and “the condition (borderline personality disorder) that makes exacerbations during times of stress (such as arising out of workplace injury) probable and likely to lead to more substantial impairments in function and mental state than would be predicted from the workplace injury alone”.
It is the Appeal Panel’s view that not only was the Medical Assessor’s conclusion open to him in the circumstances, his explanation of why a deduction as required is correct. It is the clinical opinion of the medical members of the Appeal Panel that:
(a) Ms Maxwell Paea had a significant psychiatric episode in Year 12;
(b) that episode can be characterised in a number of ways, but included a requirement for antipsychotic medication and the assistance of a community mental health team, which are significant interventions;
(c) that episode led Ms Maxwell Paea to be more likely to have further psychiatric episodes, and
(d) when those psychiatric episodes occurred, they would be more significant.
The last point is what the application of s 323 requires in determining both the causative question (i.e. whether the pre-existing contributed to impairment, by making it worse) and the apportionment question. In the present circumstances, the Medical Assessor has answered both questions satisfactorily, and in doing so has applied the correct criteria as set out in s 323.
Accordingly, the Appeal Panel is not satisfied that this ground of appeal is made out.
Ground four – failure to engage with evidence
This ground goes to evidence around the appellant being admitted to hospital, including clinical records relating to those admissions and ongoing treatment. The appellant submits that the general practitioner’s notes and hospital notes demonstrate clear and significant impairments across the PIRS that were not addressed or recorded in the PIRS assessment. The appellant refers to some specific notes.
This ground is similar to ground two, which also concerned reasons in the context of the deduction made by the Medical Assessor. The general principles that are outlined there are relevant, including that reasons are to be read as a whole and there is no requirement to refer to every piece of evidence. That is particularly so in the present case where there was around 630 pages of clinical notes placed before the Medical Assessor. Further, an assessment in accordance with the PIRS occurs on the day of examination, so references to clinical notes (particularly clinical notes where the worker was admitted to hospital due to her psychiatric state) are of limited relevance to a consideration of the worker’s present functioning.
It is also clear that the Medical Assessor considered that material. This is recorded in the MAC on page 7, where he states:
“I have reviewed a number of clinical records by Ms Fiona Reizner from Acacia Psychology between 14 October 2021 and 29 April 2022 detailing the psychological treatment and support provided to Ms Maxwell Paea.
I have also reviewed extensive notes relating to private psychiatric inpatient admissions dated February 2023, May 2023, and February 2024.”
Further, as the respondent submits, the appellant has not explained how those records would reflect a different assessment, or connected those records to a specific PIRS category. The appellant submits that the records relate to a “significant matter of dispute between the parties” but do not explain what that matter is.
To require a Medical Assessor to comment on particular clinical notes, when it is clear, either directly or through reasonable inference, that he has considered them, would be entirely impractical. Reasons are meant to inform, and a decision maker does not need to provide an explanation for conclusions that were not reached.
The Appeal Panel does not accept that there has been an error as asserted by the appellant. The Medical Assessor has adequately engaged with the evidence provided and his reasons sufficiently explain the path he took in reaching his conclusion.
Ground five – misapplication of the Guidelines
It is noted that this ground is the only submission that refers to a specific PIRS table under the Guidelines.
The appellant submits that the Medical Assessor made a deduction for pre-existing condition in the MAC, but also introduced that purported condition into his consideration of the criteria under the PIRS of travel. The appellant submits that the effect of this is to “reintroduce a deduction into the PIRS assessment”.
The Medical Assessor’s conclusion on travel in the PIRS table is as follows:
“Ms Maxwell Paea can leave the house for appointments and to attend church and horse-riding. Her psychological symptoms impair her travel to the extent that she prefers to stay indoors but still attends multiple activities as outlined, the history was not sufficient to warrant a moderate impairment. She can leave the house without a support person. Driving is impaired by dissociative symptoms, which are in part pre-existing, but the degree of travel remains of mild impairment.”
The last sentence represents the real crux of the appellant’s submission.
Whilst there is some suggestion to support the submission made by the appellant, when the reasons are considered closely then it is clear that the Medical Assessor has not based his conclusion on this PIRS on the pre-existing condition, causing dissociative symptoms. He refers to those symptoms which “are in part pre-existing” (i.e. partly caused by work, which means they can form part of the assessment), and goes on to conclude that “but the degree of travel remains mild impairment”. It is clear that even those symptoms, which contribute to an impairment in Ms Maxwell Paea’s driving, do not elevate the impairment beyond mild, that is class 2.
In other words, the Medical Assessor has not impermissibly made a deduction due to symptoms not caused by the work-related injury. He has identified a contributing factor to Ms Maxwell Paea’s difficulty with driving, but has not used that factor to reduce the assessment in this PIRS.
Ultimately, the Appeal Panel is satisfied that the correct assessment of impairment in travel is class 2, as assessed by the Medical Assessor.
This ground of appeal is not made out.
Conclusion
Based on the Appeal Panel’s consideration of the MAC and the appellant’s submissions, the Appeal Panel is not satisfied that the assessment was based on incorrect criteria or that the MAC contains a demonstrable error.
Accordingly, the Appeal Panel has determined that the MAC issued on 6 August 2024 should be confirmed.
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