Prentice v State of New South Wales (NSW Police Force)

DETERMINATION OF APPEAL PANEL
CITATION:	Prentice v State of New South Wales (NSW Police Force) [2022] NSWPICMP 31
APPELLANT:	James Alexander Prentice
RESPONDENT:	State of New South Wales (NSW Police Force)
APPEAL PANEL:	Member Deborah Moore Professor Nicholas Glozier Dr Michael Hong
DATE OF DECISION:	25 February 2022
CATCHWORDS:	WORKERS COMPENSATION- Appellant challenged the MA’s assessment in respect of all 6 Psychiatric Impairment Rating Scale categories; fresh evidence rejected; further statements merely cavilled with the MA’s assessment; Petrovic v BC Serv No 14Pty Limited and Ors considered; Panel confirmed assessment in relation to all categories save for Travel; the Medical Assessor assessed Class 1 but there was, but there was evidence the appellant avoided areas he had attended in the course of his duties; Panel accepted a Class 2 was appropriate, but that change did not alter the overall impairment assessment; Held -Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 10 October 2021 James Alexander Prentice (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Patrick Morris, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 14 September 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
·        the assessment was made on the basis of incorrect criteria;
·        the MAC contains a demonstrable error, and
·        the 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 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine the appeal.

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 appeal was filed on 10 October 2021.
Included in the submissions attached to the appeal were a number of documents which it was stated were “not reasonably available when the [appeal] was filed.” They included:
(a)    further statement of Mr Prentice dated 6 October 2021;
(b)    statement of Ms Sahra Brown dated 6 October 2021, and
(c)    report of Dr Al Griskaitis dated 21 June 2021.
The report of Dr Griskaitis we accept pre-dates the MA’s assessment. It is addressed to the respondent’s insurer. It notes his diagnosis, the appellant’s symptoms and other comments that do not add anything further to the wealth of medical evidence before the MA. In the absence of any explanation by the appellant as to why it was not obtained earlier and included in the documents to be sent to the MA, we reject it.
Ms Brown is Mr Prentice’s partner. Her statement is rejected as is the further statement of
Mr Prentice for reasons that follow.
The Panel has had regard to the comments of Hoeben J in Petrovic v BC Serv No 14Pty Limited and Ors [2007] NSWSC 1156 where he said:
“‘additional relevant information’ contemplated by section 327(3)(b) means: information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment…
It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not ‘additional relevant information’ for the purposes of subs 327(3)(b)…
There is another consideration which I have taken into account. If the function of the Registrar under s327 is to be in reality that of a gatekeeper, then statutory declarations such as were sworn in this case should not be regarded as ‘additional relevant information’ for the purposes of s327(3)(b). If they are, it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal."
The further statements do no more than cavil with the assessment of the MA, and reflect
Mr Prentice’s dissatisfaction with that assessment.
For all these reasons, the “fresh evidence” sought to be admitted by the appellant is rejected.

EVIDENCE

Documentary evidence

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

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant submits that the MA erred in his assessment of all six of the categories in the Psychiatric Impairment Rating Scale (PIRS).
In reply, the respondent submits that no errors were made.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychiatric/psychological injury resulting from a deemed date of injury of 29 June 2016.
The MA obtained the following history:
“Mr Prentice said he was attested as NSW Police Officer on 4 May 2001. He worked in general duties at Miranda Local Area Command from 2001 to 2004-2005. He has worked in the highway patrol since then. He worked as a highway patrol officer at Hurstville from 2005 until 2009 and then in Finley in Southern NSW from 2009 until 2014. He was promoted to sergeant and worked as coordinator of a highway patrol unit in Cootamundra from 2014 until he was transferred to Gundagai in 2018. He worked there until he stopped work in July 2020.
In his work in general duties, Mr Prentice said he attended numerous suicides including one of an indigenous man who hanged himself off soccer goal posts and one of a young Australian Defence Force member who committed suicide by hanging himself in his backyard. He said a particularly traumatic incident occurred in August 2001 soon after he commenced work when he attended a horrific murder scene in which a father had murdered his three children in their home. As a general duties police officer he also attended numerous domestic violence incidents and natural deaths. As a highway patrol officer he attended numerous fatal motor vehicle accidents.
Mr Prentice said in late 2014 or early 2015 he attended a motor vehicle accident in which a child had been killed when the father fell asleep at the wheel. He said that he started experiencing a lot of intrusive traumatic memories, particularly of the incident where he attended the murder of three children in 2001. When news items of children being hurt or killed came on television or radio he became very nauseous and had to turn off the television or radio. News of motor vehicle accidents involving children being killed or injured during the course of his work triggered these intrusive traumatic memories. He felt very anxious, agitated and depressed and was not motivated to go to work or deal with conflict at work.
Mr Prentice went off work because of his psychological symptoms from June 2016 until March 2017. He saw a psychiatrist Dr Adesanya who prescribed him medications. He saw a psychologist, Mr Michael Gilmore, for therapy. He returned to work in March 2017. However soon after his return to work, a fellow sergeant committed suicide with a firearm at work, which triggered for him further psychological symptoms and he went off work again.
In late 2018 Mr Prentice returned to work on non-operational duties and back to full operational duties on 22 August 2019. He was working as supervisor of a highway patrol unit at Gundagai. He said there were a lot of workplace issues which he was not coping with. He was not able to listen to notifications over the radio of fatal motor vehicle accidents, shootings or stabbings as they would trigger intrusive traumatic memories and strong emotions. He also continued to have to attend fatal motor vehicle accidents himself. He reported increasing emotional distress, feeling shaky and nervous, feeling extremely anxious and worried, and hypervigilant. He was very irritable and angry and had a very poor concentration which affected his work. He went off work on a medical certificate on 7 July 2020. He said that he was medically discharged from the NSW Police Force on 18 March 2021 on the basis of his psychological condition.
Mr Prentice said that since 2016 he has continued to see his psychiatrist, Dr Adesanya and later another psychiatrist Dr Griskaitis, and has continued to see his treating psychologist Mr Michael Gilmore. He said that he had had two admissions to South Coast Private Psychiatric Hospital in 2017 and 2018. The first admission was a general admission and the second admission in 2018 was to attend the Posttraumatic Stress Disorder program at the Hospital.
Mr Prentice reported that since stopping work in July 2020 and continuing to have treatment, there has been a significant improvement in his symptoms. He described that his symptoms have improved ‘100%’ over this time. He rated himself as being about 7 ½ out of 10 where zero is the worst he could imagine feeling and 10 was how he was feeling before his work problems began.”
After setting out details of Mr Prentice’s current treatment, the MA then noted current symptoms as follows:
“Mr Prentice reported a significant diminishment of his psychological symptoms since he stopped working. He is no longer having intrusive traumatic memories of his NSW Police Force experiences. He is no longer having nightmares of his police experiences but experiences more bizarre dreams about other topics. He said that he still is very upset when he hears news of children’s deaths and would immediately switch off the television or radio. He said he now has skills to cope much better with his symptoms. He said that when he sees items on social media about children who have been killed, he switches off the computer and uses techniques he has been taught to cope with his symptoms. He still avoids thinking and talking about his traumatic police experiences. He avoids news items and television shows which relate to children’s deaths. He avoids places where he had attended fatal motor vehicle accidents.
Mr Prentice does not have any self-blame or regrets about his police service now. He said he has lost interest in playing golf but has found a number of other interests including motor bike riding and working on the computer, both playing computer games and helping his son with his business. He said he has a new partner who has three young children and has a very good relationship with them. He has a number of friends who he keeps in contact with as well as with his parents. He describes that he has no problems feeling happy, satisfied or having loving feelings. He said he still has some problems with irritability. He said that he still feels tense and on guard at times and never sits with his back to the door. He said he is jumpy at sudden noises. He says his concentration is improved, and he can now work on the computer and design things over lengthy periods of time. He said his sleep is good now.”
In setting out “Details of any previous or subsequent accidents, injuries or conditions” the MA said:
“Mr Prentice said he worked as a volunteer with the Rural Fire Service from 1983 until 2012. In that role he had attended numerous motor vehicle accidents prior to joining the NSW Police Force. He recalled attending the body of an elderly woman who burnt herself to death while she was smoking in bed when he was about 18 years old. However, he reported that he coped well with these traumatic experiences and said that his police work was much more traumatic in nature than his work in the Rural Fire Service.
Mr Prentice said that he separated from his wife in June 2019 because of his psychological symptoms. She subsequently died in October 2020 from a brain aneurysm. He said that he found it difficult to cope at the time because he felt that her sudden death affected his relationship with his two adult children. He said that his relationship with his children has improved recently and he has overcome his grief from his ex-wife’s death.”
The MA then turned to consider the impact of Mr Prentice’s injury on his social activities and activities of daily living (ADL’s) and said:
“Mr Prentice has been with his new partner since mid-2020. He lives in Young in a rented house with his partner, who works as a nurse, and her three children aged 14, 12 and seven. He is currently not working. He said his partner does all the cooking as he tends to burn things if he tries to cook. They share the shopping. They share the house cleaning and he does the clothes washing. He also does the lawn mowing. He enjoys going on motorbike rides with friends. He enjoys going with his family to cafés or out to lunch or going to the club on a Friday for a raffle with his partner. He rides motorbikes from Cootamundra to Young to visit his parents and friends who live there. He designs things on the computer for his son’s business. He also goes on flight simulators and rail simulators on the computer. He said he gets on very well with his partner and her three children. He showers and changes his clothes without prompting on a daily basis.”
Findings on examination were reported as follows:
“(N.B. It took about 15 minutes to establish a good video and audio connection, but the assessment was able to proceed without problem after that.)
Mr Prentice was… initially tense in the interview following the trouble connecting online, but after that was relaxed and cooperative. His speech was of normal rate and flow. His mood was euthymic, and his affect was appropriate and reactive. There was no formal thought disorder and no psychotic symptoms.
Mr Prentice was alert and orientated. There were no impairments in attention, concentration, short term memory or general knowledge on testing at the assessment. He remembered 3 out of 3 words at two-minute recall, he could spell the word WORLD correctly backwards and could do serial 3 subtractions from 20 accurately.”
In summarising the injuries and diagnoses, the MA said:
“In my opinion Mr Prentice currently has the psychiatric condition of Adjustment Disorder with Anxiety as a result of the numerous traumatic experiences he went through in the NSW Police Force during his service from 2001 until 2020. In the past Mr Prentice clearly fulfilled diagnostic criteria for the psychiatric condition of Posttraumatic Stress Disorder. However, since stopping work in July 2020 and having further psychiatric and psychological treatment, including appropriate medications, his psychiatric condition has improved significantly and he does not fulfil diagnostic criteria for this condition now. He does however fulfil diagnostic criteria for the less severe condition of Adjustment Disorder with Anxiety.”
The MA assessed 4% WPI. He explained his reasons as follows:
“I have given Mr Prentice a final whole person impairment rating of 4%. This includes a 1% rating from the attached PIRS rating form. I believe there has been apparent substantial elimination of Mr Prentice’s permanent impairment as a result of his long term psychiatric and psychological treatment. I believe that Mr Prentice is likely to revert to his original level of impairment if treatment were withdrawn. As a result, I have increased the percentage of whole person impairment by 3% to give him a final whole person impairment rating of 4%.”
The MA then turned to consider the other medical opinions, stating:
“I note a report on Mr Prentice by Dr Michael Prior, psychiatrist on 25 August 2016.
Dr Prior made diagnoses of Chronic Posttraumatic Stress Disorder and Co-morbid Major Depressive Disorder of mild severity.
I note a further report on Mr Prentice by Dr Michael Prior, psychiatrist, dated 2 March 2021. Dr Prior made diagnoses of Chronic Posttraumatic Stress Disorder and Co-morbid Persistent Depressive Disorder in Mr Prentice, whereas I have made the diagnosis of Chronic Adjustment Disorder with Anxiety. I do not believe that
Mr Prentice’s symptoms currently meet diagnostic criteria for the diagnoses of Posttraumatic Stress Disorder or Major Depressive Disorder according to DSM-5 diagnostic criteria.
In his report dated 2 March 2021, Dr Prior noted that he did not believe Mr Prentice had reached maximum medical improvement because of a recent exacerbation after his wife’s death in October 2020 and because his Lexapro dosage had recently been increased from 10mg to 15mg daily. Mr Prentice had told me that his symptoms have significantly improved since the beginning of 2021. He said that he no longer has any grief concerning his ex-wife’s death and his relationship with his two adult children has improved, and that his symptoms are now stable. I therefore believe Mr Prentice’s condition is now well-stabilized and is unlikely to change substantially in the next 12 months with further medical treatment, and that he has reached maximum medical improvement.
I note a report on Mr Prentice by Dr Martin Allan, psychiatrist dated 22 September 2020. Dr Allan made the diagnoses of Posttraumatic Sress Disorder and Major Depressive Disorder in Mr Prentice, whereas I have made the diagnosis of Adjustment Disorder with Anxiety in Mr Prentice. I do not believe his symptoms currently meet diagnostic criteria for the diagnoses of Posttraumatic Stress Disorder or Major Depressive Disorder.
In his report dated 22 September 2020, Dr Allan gave Mr Prentice a Whole Person Impairment rating of 22%. This is significantly higher than my rating of 4%. I believe that Mr Prentice’s psychiatric condition has significantly improved in the 11 months since he was assessed by Dr Allan and this is reflected in the lower WPI score detailed in the PIRS rating form attached.
I note a letter from Mr Prentice’s then treating psychiatrist, Dr Adesanya to his GP,
Dr Fry dated 12 September 2016. Dr Adesanya gave Mr Prentice the diagnosis of Posttraumatic Stress Disorder (PTSD) and planned to wean him off the Mirtazapine medication he was then taking and to commence him on Fluoxetine and Clonazepam.
The last letter from Dr Adesanya to Dr Fry regarding Mr Prentice in the documentation provided was dated 18 March 2019. Dr Adesanya documented that Mr Prentice’s medication regime at that time was Valdoxen 50mg at night, Escitalopram 10mg in the morning, Clonidine 100mcg at night, Quetiapine 25mg at night and Duromine 40mg daily. Dr Adesanya also noted that Mr Prentice was at that time having psychological therapy every 2- 3 weeks.
I note a letter from Mr Prentice’s current treating psychiatrist, Dr Griskaitis to his GP,
Dr Fry, dated 30 July 2019. Dr Griskaitis noted that Mr Prentice’s treatment regime at that time was Quetiapine 25mg daily, Duromine 40mg in the morning, Escitalopram 10mg daily and that he had reduced Mr Prentice’s Valdoxen dosage from 50mg to 25mg at night.”

Dealing firstly with the assessment of self-care and personal hygiene, the MA assessed a Class 1, stating:
“Mr Prentice shares the household chores with his partner. They share the shopping and house cleaning and he does the clothes washing. His partner does the cooking and he mows the lawn. He eats regularly. He showers and changes his clothes without prompting on a daily basis. He is able to live independently.”
The descriptor for a Class 1 rating reads:
“No deficit, or minor deficit attributable to the normal variation in the general population.”
The appellant submits as follows:
“In the appellant’s statement dated 6 October 2021, he states:
‘I do not take care of myself as what I see a normal man would do, I do not shower every day as most days I do not leave the house, I do not shave everyday as I did when I was a police officer for 20 years. If a meal is not prepared for me due to my partner being at work, I will just either have a cup of tea and biscuits or skip lunch or just not eat what has been prepared as I do not have an appetite. I have to be reminded to get a haircut and probably change clothes sometimes.’
The comments of the appellant suggest Class 2. We, therefore, state that the appellant [sic] erred in their assessment and should be revoked and changed to class 2.”
For reasons given earlier, the statement dated 6 October 2021 was rejected.
The MA noted:
“He said his partner does all the cooking as he tends to burn things if he tries to cook… He showers and changes his clothes without prompting on a daily basis.”
It defies logic and common sense that barely four weeks after his assessment, the appellant now suggests that the MA’s assessment was totally wrong.
We accept the MA’s assessment on 3 September 2021. His Class 1 rating was entirely consistent with the information he obtained at that time.
Accordingly, this ground of appeal fails.
Turning now to the category of social and recreational activities, the MA assessed a Class 1, adding:
“Mr Prentice has an active social life. He rides motorbikes with friends. He goes out with his family for meals or coffees. He rides his motorbike to another town to visit his parents and friends who live there. He enjoys going on the computer to design things for his son’s business and to go on flight and rail simulators. He keeps in touch with friends by phone and on Facebook.”
The descriptor for a Class 1 reads:
“No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.”
The appellant submits as follows:
“In the appellant’s statement dated 6 October 2021, he states: ‘I do not socialise like
Dr Morris as stated, I will go down the street with my partner and help here with the shopping, we may go for a coffee or something to eat but that’s not every day. Most of the time I will wait in the car whilst she does the shopping as crowds make me feel anxiety, I get flustered so it is just easier to wait in the car. As far as riding my bike as stated early it gets me out and allows me to clear my head, yes, I may ride with others but that’s for two reasons, safety and stability. The friends I ride with which is only once or twice a month are also people that I can trust to have around me and understand my circumstances.’
His partner states in her statement dated 6 October 2021 ‘When James is with groups of people be it my family and friends and even his friends or new people, he becomes withdrawn, sits away from everyone, is polite but minimises interaction and conversation and would prefer to be on his own in a quiet room or in room watching tv.’
From the statements provided by the appellant and his partner, the AMS erred in their assessment of Class 1 and should be changed to Class 3”
We make exactly the same comments referred to in relation to the category of self-care and personal hygiene.
The MA’s assessment was consistent with the information he obtained at the time of his assessment.
Turning next to the category of Travel, the MA assessed a Class 1, adding:
“No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.”
In our view, this assessment is inconsistent with the MA’s observations that: “He avoids places where he had attended fatal motor vehicle accidents…”.
It is true that Mr Prentice rides his motorbike regularly with friends, and is able to travel lengthy distances.
However, in our view his avoidance of places he attended in the course of his duties suggests that his circumstances are not “attributable to the normal variation in the general population”.
The Panel considered Mr Prentice had served for almost 20 years and he would have attended many traumatic and potentially triggering accidents in many locations.
This category can sometimes be blurred with that of social and recreational activities. In that category, we agreed that the Class 1 rating was entirely consistent with the evidence.
In this category however, we agree that the correct rating should be Class 2 where the descriptor reads: “Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour”.
Chapter 11.12 of the Guidelines states:
“Impairment in each area is rated using class descriptors… The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
Now clearly the descriptor for a Class 2 does not describe the limitations Mr Prentice experiences, but in our view it most accurately reflects the impairment in this category recorded by the MA in his MAC.
This is also consistent with the appellant’s submissions.
Turning next to the category of social functioning, the MA assessed a Class 1, adding:
“Mr Prentice reports having a very good relationship with his partner and her three children. He has a good relationship with his parents and friends. His relationship with his children from his first marriage has improved.”
The MA also observed: “He describes that he has no problems feeling happy, satisfied or having loving feelings”.
The appellant submits as follows:
“The AMS erred in his assessment for social functioning. The AMS has stated the appellant ‘reports having a very good relationship with his partner and her three children. He has a good relationship with his parents and friends. His relationship with his children from his first marriage has improved.’
The AMS then assessed the appellant as Class 1.
Class 3 PIRS – Social Function states: ‘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 above impairment category, it states, ‘previous established relationships severely strained’. The appellant has separated from his previous partner due to his psychological injury, which the AMS has noted. Furthermore, in his statement dated 6 October 2021, he asserts that his relationship with his children is still strained.
Therefore, we are of the opinion that the AMS assessment regarding social functioning should be revoked and changed to Class 3.”
This submission is misconceived.
The MA is required to make an assessment on the day of examination. It is the claimant’s current circumstances that are relevant to the assessment of impairment rating.
The MA noted:
“Mr Prentice said that he separated from his wife in June 2019 because of his psychological symptoms. She subsequently died in October 2020 from a brain aneurysm. He said that he found it difficult to cope at the time because he felt that her sudden death affected his relationship with his two adult children. He said that his relationship with his children has improved recently and he has overcome his grief from his ex-wife’s death.”
We accept Mr Prentice’s statement that he separated from his former wife due to his psychological symptoms. But as he clearly said, he has improved “100%”, overcome his grief and now has a much better relationship with his children, and also with his partner’s children.
The reference to “previously established relationships” we interpret as meaning an established relationship, such as Mr Prentice currently enjoys, is strained.
There is no suggestion of periods of separation from his current relationship with Ms Brown, nor of any domestic violence or requirement for social services to intervene in the care of
Ms Brown’s children, in line with the descriptor for a Class 3 rating.
The descriptor for a Class 1 rating reads:
“No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).”
There may still be an element of strain in Mr Prentice’s relationship with his children from his first marriage, but in our view, this is consistent with a “minor deficit” as referred to in the Class 1 rating.
Mr Prentice does not even fit with a Class 2 rating which reads: “Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships”.
There is no evidence of any tension or arguments with Ms Brown, nor of any loss of friendships. He seems to have a close relationship with his motorbike riding friends, and visits family and friends in Cootamundra.
For these reasons, we are satisfied that the assessment of a Class 1 rating in this category was correct, and consistent with all the evidence.
Dealing next with the category of concentration, persistence and pace (cpp), the MA again assessed a Class 1 rating, stating:
“Mr Prentice reports no problems with his concentration. He is able to ride his motorbike for about an hour and a half without stopping. He is able to spend lengthy periods of time on the computer designing things for his son’s business and going on flight and rail simulators, and playing computer games. There were no cognitive impairments on testing in the assessment.”
The appellant submits as follows:
“The AMS failed to enquire about the mechanics of the ‘flight simulator’ and ‘rail simulator’. The nature of these types of computers games are not complex and require little interaction to operate. Furthermore, whilst these games may be simulations, the games are typically for all ages; hence they do not require significant concentration, persistence, and pace.
Furthermore, the AMS referred the appellant’s son’s business. The appellant’s statement states that he designed a ‘business logo’ on the computer. The AMS failed to make enquiries about the appellant’s participation in his son’s business, which is evident when he uses the term ‘design things’.
We therefore are of the opinion that the AMS assessment in respect to concentration, persistence and pace should be revoked and changed to Class 3.”
The descriptor for a Class 1 rating reads:
“No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.”
It must be remembered that the Class 1 descriptors generally refer to either “no deficit” or “minor deficit attributable to the normal variation in the general population”.
In other words, some deficit, albeit minor, will still only attract a Class 1 rating.
The descriptor for a Class 3 rating reads:
“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 evidence simply does not support a finding of a Class 3.
Irrespective of the complexities or otherwise of simulators, they must require an element of cpp.
It is not the task of an MA to “enquire” about matters if he or she is satisfied with the information provided.
For example, in this case the MA noted:
“he has found a number of other interests including motor bike riding and working on the computer, both playing computer games and helping his son with his business… he can now work on the computer and design things over lengthy periods of time.”
This ability is in our view entirely consistent with a Class 1 rating.
Once again, the appellant’s submissions with regard to this category are essentially based upon Mr Prentice’s statement dated 6 October 2021 which we rejected. That statement describes what we can only describe as an extensive change in Mr Prentice’s condition a little over a month after he saw the MA which as we said, defies logic and common sense.
For these reasons, the appeal with respect to this category fails.
Finally, the appellant submits that the MA erred in his assessment with respect to employability.
The MA assessed a Class 3 rating, adding:
“Moderate impairment. Mr Prentice will not be able to return to work as a police officer. I believe that he would be able to work part-time for less than 20 hours per week in a position which is qualitatively different and less stressful and demanding than his previous work as a police officer.”
The appellant submits:
“The AMS erred in his assessment for employability. The AMS noted that the appellant has moderate impairment, but failed to indicate what occupations he would be capable of conducting despite his psychological symptoms. In light of the symptoms identified, we are of the opinion that the AMS erred in their assessment and should be changed to Class 5.”
It is not the task of an MA to indicate what types of work a claimant may be capable of performing. An MA is required to assess “impairment” and how that may translate into an ability to undertake employment.
The panel noted Mr Prentice’s relatively mild symptoms as recorded by the MA. He is generally active, able to engage in various regular activities, able to interact with people in different settings, perform tasks on the computer and help in his son’s business.
This suggests that he has some skills which may be utilised in some sort of employment opportunity.
It must be remembered that at the outset, Mr Prentice informed the MA that:
“since stopping work in July 2020 and continuing to have treatment, there has been a significant improvement in his symptoms. He described that his symptoms have improved ‘100%’ over this time.”
In our view, the MA’s assessment in this category was consistent with all the evidence, and we see no error in his assessment in this category.
We remind the appellant of the task of an Appeal panel as stated in Ferguson v Stateof New South Wales [2017] NSWSC 887 where Campbell J said:
“[23] By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS: ‘... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’(our emphasis).
[24] The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
[25] The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’…
[37] The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’…”
We do not accept that the assessments made by the MA were “glaringly improbable” or that the MA “was unaware of significant factual matters”.
The MAC was both comprehensive and well-reasoned, as one would expect from an MA with an extensive clinical practice dealing with PTSD and first responders.
With the exception of the category of Travel the appeal with respect to all other categories fails.
This then means that the Aggregate Score Impairment will be 1,1,2,1,1,3, a total of 9, resulting still in a total WPI of 1%. To this is added 3% for the effects of treatment leaving a total WPI of 4%.
Since the WPI remains the same, the MAC issued on 14 September 2021 should be confirmed.

[2022] NSWPICMP 31

25 February 2022