Racker v State of NSW (NSW Police Force)

DETERMINATION OF APPEAL PANEL
CITATION:	Racker v State of NSW (NSW Police Force) [2024] NSWPICMP 794
APPELLANT:	Mark Racker
RESPONDENT:	State of NSW (NSW Police Force)
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	25 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against 9% whole person impairment assessment for psychologically injured police officer; whether statements post-Medical Assessment Certificate (MAC) by claimant and wife should be admitted; whether Medical Assessor erred in failing to acknowledge effect of activities and social functioning on claimant’s post-traumatic stress disorder; Held – application to admit fresh evidence rejected; SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed, 1 March 2021 not concerned with motivation for a claimant’s ability to perform social and recreational activity or his/her level of social functioning; substantive submissions did no more than repeat that motivation and reaction to being able to carry out social activities and functions in absence of fresh evidence; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 2 July 2024 Mark Racker, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Cowper Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 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, 4^th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 15 August 2023 a referral was issued to the Medical Assessor. The Medical Assessor initially found that maximum medical improvement had not been reached. On 22 April 2024 an amended referral was made after the matter was restored.
Mr Racker was employed as a police officer and suffered his injuries as a result of his experiences as a first responder, and his witnessing the many traumatic and distressing incidents a police officer encounters.
He was diagnosed as suffering a post-traumatic stress disorder. The Medical Assessor had diagnosed a major depressive disorder in his earlier MAC, but found that he no longer met the criteria for that condition,
The Medical Assessor found 9% WPI.

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. We note that a re-examination was requested in the Form 10 application, and that a detailed application in furtherance of this request was made in Mr Racker’s submissions. The submissions were however based on an erroneous assumption that we would find that that the Medical Assessor had fallen into error.
We note in passing that the Form 10 document limited to the grounds of appeal to an allegation that the MAC contains a demonstrable error. This was inconsistent with the grounds later set out in the appellant’s submissions.

Fresh evidence

Section 328(3) of the 1998 Act provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that 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 by Mr Racker dated 24 June 2024,[1]
(b)    statement by Emma Racker dated 25 June 2024,[2] and
(c)    miscellaneous contemporaneous records.[3]
[1] Appeal papers page 9.
[2] Appeal papers page 12.
[3] Appeal papers page 15.

Mr Racker

Mr Racker’s statement addressed the circumstances of assessment with the Medical Assessor on 28 May 2024. To summarise, Mr Racker said:
·        that the Medical Assessor lacked empathy in the way he conducted his assessment;
·        although he was extremely anxious, at no time did the Medical Assessor check on his welfare, and
·        at no time was Mr Racker asked if he required a break, “even though there were times I felt overwhelmed which I feel should have been picked up by a qualified doctor”.
Mr Racker advised that he had severe post-traumatic stress disorder and that he found it difficult to talk about his experiences. The Medical Assessor focused only on what Mr Racker could do “without asking questions about how it still actually made me feel and how hard it is to do these activities and how it affected me before, during and after.”
Mr Racker criticised the Medical Assessor's method of asking questions. Mr Racker thought that his attempts to explain how his relationship with his wife and children had been strained had been “dismissed.” The Medical Assessor would “move on to the next question” before Mr Racker could elaborate.
Mr Racker addressed the Medical Assessor's findings regarding the Psychiatric Impairment Rating Scale (PIRS) category of social and recreational activities. Mr Racker said:
“I never go out without a support person and even then, it is rare that I do go out.”
Mr Racker said that he went to a local sports club once a month with his wife and children, and explained that it could still cause him “anxiety and issues.” He said that he took his son to a Sydney Swans game, during which his son “picked up” that he was “trigger[ed]” with anxiety and calmed him down enough to watch the game. Mr Racker said that they left during the last quarter to get out before the crowd and avoid the heavy traffic.
With regard to Mr Racker’s ability to travel, he said that the Medical Assessor did not ask about the following:
“Mr Racker’s flying to Queensland, which Mr Racker said he was able to do ‘but not comfortably or without severe anxiety.’
Mr Racker’s driving activities, which ‘was once a relaxing activity, now it makes me feel frustrated, angry, nervous, tired amongst other feelings. I am extremely hypervigilant watching cars passing me in the opposite direction, travelling to close behind me, having trucks travelling around me and driving in wet conditions. Emergency vehicles with their sirens and lights also triggered severe anxiety’.”
Mr Racker then addressed the problems he had been having with his family over the past three years, and that he and Mrs Racker had been undergoing marriage counselling for three years, and that Mrs Racker and their daughter had also been undergoing counselling. Mr Racker emphasised that family relationships were “very strained, we are trying all we can to keep my family together.”
Mr Racker said that he did not have contact with many of his friends because he was not able to go out or socialise. He then said:[4]
“Playing golf in the fresh air with one other mate who also suffers PTSD is something I can do and when there I can enjoy "
[4] Appeal papers page 10.
Mr Racker reported that the Medical Assessor “accused me” of being argumentative and explained the circumstances under which that accusation was made, which related to the reason the Medical Assessor found him not to have reached maximum medical improvement in the first assessment. Mr Racker said:
“I was not being argumentative towards [the Medical Assessor] and this frustrated and confused me even more than I was during the assessment…”

Emma Racker

Mrs Racker advised that she observed Mr Racker during the assessment, which was a virtual appointment. She said she also read the MAC.
Mrs Racker said:
“I am upset by what I felt was arrogance, condescending and patronising way (sic) this Doctor conducted his assessment with Mark.”
“The doctor felt Mark was arguing with him and told him there was no need to be argumentative…”
This referred, it seemed, to the Medical Assessor's decision that Mr Racker had not reached maximum medical improvement.
Mrs Racker said:
“…In no way was Mark being argumentative, …”.
She reported that Mr Racker was anxious prior to the assessment and that if he did not have a support person at home he would have been caused considerable anguish because of the anxiety.
She said:
“Talking someone down from the intense feelings that come with PTSD is not easy, and having a doctor cause these feelings is disgraceful and damaging."
Mrs Racker advised that Mr Racker had protected the community for nearly 20 years “enduring trauma that this doctor will never understand.”
Mrs Racker said:
“Being treated as he was today by a professional in this field is unacceptable”.
Mrs Racker recorded that Mr Racker can go to the local club, take his son to a Swans game and go on holidays “to scatter his father's ashes”, or head to Bunnings.
Ms Racker said
“However, the doctor does not understand the reality behind these activities”.
She then explained when she and Mr Racker were at the club, he would sometimes have different reactions, such as having to get some fresh air or sitting close to an exit because of his condition.
She said that attending one Swans game was “not a fun outing like it should have been”. She described the traffic difficulties and the challenge of entering a stadium full of people, but said that Mr Racker did this for his son.
Ms Racker said that going to Bunnings was “no longer a calm experience.” Mr Racker would sometimes forget what he needed and that sometimes he needed to sit in the car to collect himself.
Ms Racker said that driving as a family exhausted Mr Racker after a short time.
Ms Racker said that her husband becomes agitated by irresponsible traffic and that she insisted that he pulled over “many times due to this agitation”.
Ms Racker said that they “often” slept in different rooms due to a strain in the relationship. She described Mr Racker's nightmares which involved a physical assault on her whilst he was asleep and “him climbing the walls in his sleep.”
She described various events that could cause Mr Racker to “break out in a sweat, feel sick, or have an elevated heartbeat for an extended period”. She said that disclosing his experiences in a Zoom meeting for one to two hours was “a source of anxiety, shame, sadness, and guilt.” She repeated that Mr Racker's injury has caused them to struggle in their relationship and that she had considered leaving on several occasions.
She said their life was full of struggle due to the trauma of Mr Racker's 20 years of service with the police force. As his wife, Mrs Racker opined that these experiences will have Mr Racker requiring ongoing counselling and possible medication.
She was worried about leaving him alone on his low days and she confirmed that they have attended counselling.

Contemporaneous records

An appointments record was lodged showing Mr Racker's attendance on Dr Brent Thomas between January 2020 and 16 May 2024.[5] The medical schedule showed Mr Racker’s attendance on Dr Thomas and Dr Gordana Jovanova between January 2020 and 11 May 2023.[6]
[5] Appeal papers page 15.
[6] Appeal papers page 31.
Further, a documented, headed “list of all appointments”, showed what appeared to be further appointments with Dr Jovanova between 2020 and 19 March 2024 (I think January is actually 2023).[7]
[7] Appeal papers page 19.
A schedule was filed entitled, “dates travelled to”, indicated the appointments with Katja Bulic between 18 April 2023 and 19 March 2024.[8]
[8] Appeal papers page 20.
A further schedule was lodged showing the dates that were travelled to Katja Bulic's appointments, which showed two columns with dates from 4 March 2020 through to 14 March 2023.[9]
[9] Appeal papers page 21.
A further document was a list of Mr Racker’s past appointments with Dr Jovanova and Dr Kwok, working at Old Castle Rooms between 24 January 2023 and 19 February 2024.[10]
[10] Appeal papers page 23.
A five page document entitled “Family Treatment” showing various dates of 2024 for payments for Inside Out Counselling, Radiant Healing, Rachel Bulyk, Jacqueline De Kzr and M & J De Keizer.

Submissions regarding fresh evidence

Appellant

Mr Racker submitted that the fresh evidence was admissible as the allegations of the unprofessional manner of the Medical Assessor led to an inaccurate report. The evidence from Mr and Mrs Racker highlighted discrepancies in that regard.
Further, the Commission would gain an understanding of the circumstances as a result of this evidence, it was submitted.
It was alleged that procedural fairness required the assessment to be conducted in a “professional, fair, thorough and independent manner.” The statements were said to have shown how the interview was conducted.
The statement from Mr and Mrs Racker were also said to “indicate the discrepancies between the report and the actual medical condition and experiences of the appellant.”
Therefore, it was argued the statements were “important to show the errors and the conduct of the Medical Assessor” in the interview, and that the statements should be allowed “in the interests of justice.”

State of NSW (NSW Police Force) (respondent)

Dealing with the appointment records, the respondent objected to their admission, noting that they were available and could reasonably have been obtained prior to the medical assessment on 28 May 2024.
The statements from Mr and Mrs Racker were also objected to on the basis that, to the extent that they described Mr Racker’s ongoing psychological symptoms and disabilities, the evidence could reasonably have been obtained and adduced by Mr Racker prior to the medical assessment. Thus they offended the provisions of s 328(3).
Additionally we were referred to the discretion a Medical Appeal Panel possesses to reject such statements pursuant to Lukacevic v Coates Hire Operations Pty Limited[11] where the evidence was technically admissible pursuant to s 328(3). The proposed fresh evidence, it was submitted, had low probative value and did not provide any new information. Moreover, Mr Racker had ample opportunity to report his ongoing symptoms and disabilities to the medical practitioners consulted by him, and their reports were before the Medical Assessor.
[11] [2011] NSWCA 112.
Insofar as the statements sought to impugn the conduct of the Medical Assessor, we were referred to a Medical Appeal Panel decision of Barry v State of NSW (Northern NSW Local Health District) [2023] NSW PICMP 122 at [28]-[29]. We were also referred to Bustos v Cleaners NSW Pty Ltd (In Liquidation)[12] in furtherance of a submission that the weight placed by the Medical Assessor on certain pieces of information and not others was appropriate and within his clinical judgement.
[12] [2019] NSW WCCMA 32

Discussion

We have reproduced s 328(3) of the 1998 Act above.
The supporting documents consisting of lists of dates and names is rejected for the reason that its relevance was not explained by the appellant. The respondent was correct that those documents were available and could reasonably have been obtained prior to the medical assessment on 28 May 2024, with the exception of two dates listed under “family treatment,” but in any event we are uninformed as to why those documents were tendered.
As to the admission of the statements by Mr and Mrs Racker, the overall purpose of them was designed to demonstrate that the activities mentioned by the Medical Assessor, although in fact being conducted, were not enjoyable and were attended with various symptoms caused by Mr Racker’s injury. Mr and Mrs Racker confirmed that he did go to a local sports club regularly. He conceded he took his son to a Sydney Swans game. He conceded that he regularly played golf and he conceded that he did travel by driving and by air.
As to the criticism made of the conduct of the assessment by the Medical Assessor, we found nothing that was relevant. The Appeal Panel note Mr and Mrs Racker's opinion that the Medical Assessor lacked empathy. We acknowledge the effect described by Mr and Mrs Racker that his psychiatric disorder has had on his life personally, and the life of the family. However the conduct of an independent assessment of an injured party, addressing disputes, where the assessor is not in a treating role, has a more objective and non-advocative basis than interactions with treating clinicians, who are expected to advocate in their patient’s best interests, and where empathy is an important component.
Mr and Mr Racker were quite right to point out that the Medical Assessor only focused on what Mr Racker could still do rather than enquiring as to how it made him feel, how hard it was to do, and how it affected him before and after. This is because the assessment of permanent impairment caused by psychiatric injury is governed by the provisions of Chapter 11 of the Guides, about which we will say more below.
Accordingly, the application to admit the additional evidence is rejected.

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 which have been considered by the Appeal Panel.

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 MAC

The Medical Assessor took a detailed history of the onset of Mr Racker’s injury and treatment he underwent. The Medical Assessor noted that Mr Racker was diagnosed with post-traumatic stress disorder in 2020 and was in fact hospitalized at St John of God in February 2020. He was off work for seven months and he returned in September 2020,[13] eventually returning to full time hours, working restricted duties on inmate DNA testing.
[13] The date given by the Medical Assessor was September “2022”, which was a typographical error.

His last shift was 1 April 2022.
The Medical Assessor noted Mr Raker's present symptoms. He noted Mr Racker's complaints of feeling “flat, down, guilty and frustrated”. The Medical Assessor noted Mr Racker's complaints about his sleep difficulties particularly with his CPAP machine.
The Medical Assessor noted Mr Racker's complaints of intruding traumatic images once or twice a week which were sometimes triggered.
The Medical Assessor recorded that Mr Racker was triggered by hearing sirens and that Mr Racker preferred to drive because he was in control of the car. The Medical Assessor noted that Mr Racker remained hypervigilant particularly in traffic and that he was startled by loud noises.
In considering Mr Racker's social activities the Medical Assessor noted that Mr Racker attended a family occasion in Hamilton Island six weeks prior to the assessment. His wife and children, his brother and his brother's three sons attended at a house that had been hired by his mother for the occasion of the scattering of his father's ashes.
The Medical Assessor noted that Mr Racker was able to relax in the presence of his family and that he did not have any other interstate or overseas trips.
Mr Racker occasionally saw his friends and had a small group with whom two of them also having been in the police force. The Medical Assessor noted that they played golf about every two months at different golf clubs, although they usually played in Richmond, which was close to Mr Racker’s home. They usually played on a weekday and would sometimes stop at the clubhouse for refreshments.
Mr Racker said that he would go with his wife to the local sports club bistro for dinner once a month which was a “low-key and quiet affair.”
The Medical Assessor also noted that Mr Racker took his sons to a Swans game at the Sydney Cricket Ground (SCG). “They arrived early to get a quieter spot and left with ten minutes to go to avoid the crowds."
The Medical Assessor noted that Mr Racker helped to get the children ready for school and that he was active domestically. He would attend his children's sports events and watch them with his wife, although he tried to sit away from crowds whilst doing so.
The Medical Assessor noted that Mr Racker would catch up with his brother in Kellyville occasionally, and that he stayed in contact with his mother who lives in Baulkham Hills. Mr Racker and the family would visit Mrs Racker's parents’ home in Maitland every month, and they went to Kiama in March 2024 in their caravan. They had owned the caravan for about five years but had difficulty getting away because of the children's sport and Mrs Racker’s work.
Mr Racker attends the gym, the Medical Assessor noted, at varying times which were inconsistent. He had been eight times in the last month. He did not socialize at the gym.
He would take the dog for a walk locally and could go to the local Bunnings for hardware.
The Medical Assessor reported that there was a struggle with concentration as Mr Racker was often flustered and forgetting things at the shop.
Mr Racker often fell asleep during movies in the afternoon, but he had taken on some household administration duties such as paying the gas bill and organizing the car registration. Mr Racker was able to read short paragraphs but had problems retaining information. Mr Racker worried about his capacity to study and as he had problems retaining information.
Mr Racker had no plans for employment, stating that he hoped to work again someday but did not know what he was capable of doing. Mr Racker said he had not given much thought about that until the Workcover process was finished and he could not articulate how or why this would change his outlook on work.
The Medical Assessor recorded that Mr Racker’s relationship was stable, but that he was a different person. He used to be fun, outgoing and social but now he is quieter and more withdrawn, a fact that he feels guilty about.
In his findings on physical examination at [5] of the MAC, the Medical Assessor reported that Mr Racker's thought content reflected his dissatisfaction with the workers compensation process and his frustration at delays in the WPI phase. The Medical Assessor noted that Mr Racker described “residual themes consistent with post-traumatic stress disorder, including trauma-related memories and thoughts, changes to his sense of self and periods of hyper arousal.”
In summarising the case as at [7] of the MAC, the Medical Assessor found that Mr Racker met the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) criteria for chronic post-traumatic stress disorder. This was on the basis of Mr Racker's repeated exposure to incidents meeting criterion A for post-traumatic stress disorder. The Medical Assessor found that Mr Racker no longer met the criteria for DSM-V major depressive disorder.
In discussing other medical opinions and material at [10c], the Medical Assessor noted that there had been no new documentation since the issue of his prior MAC finding the maximum medical improvement had not been reached.
The Medical Assessor considered the report of Dr Michael Prior and Dr Prior's assessment of 23% WPI including 1% for treatment.
The Medical Assessor found that the class 3 rating assessed for self-care and personal hygiene was inconsistent with the PIRS descriptors for that category, as was the class 3 rating given by Dr Prior for social functioning.
The Medical Assessor noted two earlier statements by Mr and Mrs Racker and the discharge summary from St John of God Hospital Richmond. He noted there were no inconsistencies in correspondence from Mr Racker’s treating clinician. He referred to the report of Dr Jovanova, a treating psychiatrist, and correspondence with Katja Bulic, Mr Racker's treating psychologist. He noted no inconsistencies in the medical records on the Richmond Marketplace Medical Centre.
The Medical Assessor considered the report of Dr Glen Smith, the medico-legal psychiatrist retained for the respondent. The Medical Assessor noted the ratings given for the PIRS categories by Dr Smith who assessed Mr Racker’s WPI at 8%. The Medical Assessor considered the class 2 for each category by Dr Smith and noted that it was more than 12 months since Mr Racker had been assessed by Dr Smith, and that Mr Racker had improved as he no longer met the criteria for major depressive disorder.
The Medical Assessor stated that he considered Mr Racker totally impaired in the employability category against the class 4 rating given by Dr Smith and that the concentration, persistence and pace rating of class 2 by Dr Smith in fact warranted a class 3, as Mr Racker was easily flustered and fatigued easily, particularly under pressure.

SUBMISSIONS

Mr Racker submitted that the Medical Assessor had fallen into error in his assessment of the categories of social and recreational activities, and social functioning.

Social and recreational activities

With regard to Mr Racker’s social and recreational activities, it was submitted, that he “never or rarely” engaged in social recreational activities without a support person and that even then such outings were quote extremely rare. When he did go out on such occasions as going to the local club with his family once a month it often triggered anxiety.
We were referred to the instant when Mr Racker took his son to a Sydney Swans game. It was submitted that the incident “induced significant anxiety and PTSD triggers,” which were mitigated by his son’s presence. The fact that he had to leave the game early to avoid the crowd and heavy traffic was reflective of his ongoing struggles in such environments, it was submitted. The motive was to strengthen his relationship with his son, which it was submitted had been severely impacted by Mr Racker's condition.
Mr Racker addressed the fact that his travelling could induce severe anxiety on any form including cars, trains and planes. It was submitted that Mr Racker had managed to travel by plane to Queensland, (presumably the Hamilton Island trip), but that he had considerable anxiety and needed constant reassurance from his family.
Whilst the act of driving had once been a relaxing activity, Mr Racker admitted he now experienced feelings of frustration, anger, nervousness and fatigue. “The sight of emergency vehicles with lights and sirens exacerbates his anxiety it is submitted as it triggered concerns about potential emergencies and the well-being of those involved”. Mr Racker submitted:
“None of these critical details were inquired about or addressed by Dr Smith during his assessments of the appellant. Given the applicant’s clarification that his social activities predominantly revolve around family and are rare and not frequent, it would be more accurate to place him in a class 3 than class 2."

Social functioning

As to social functioning, Mr Racker submitted that he and his wife had ongoing marriage counselling intermittently for over three years and both Ms Racker and their 13-year-old daughter also received individual counselling which were annexed to the wife's statement [obviously other statements and documents rejected that they have little probative value, but the evidence as to Ms Racker and her daughter having counselling was evidence that was available prior to the assessment and could reasonably have been obtained.]
It was submitted that the family relationships were significantly strained and notwithstanding the counselling and that Mr Racker's condition had taken a considerable toll on their interactions and cohesion.
The post-traumatic stress disorder suffered by Mr Racker had, it was submitted, drastically altered his ability to engage in social activities. He had lost contact with many friends as a result. Mr Racker then repeated that his condition had placed “immense” strain on his marital relationship and references made again to the contents statements which have been rejected.
There were also submissions made about the reaction of Mr Racker's son.
Accordingly, “given the appellant's clarification, a class 3 rating would be more accurate than the class 2 found by the medical assessor”.

Respondent

As to social and recreational activities, the respondent referred to the class descriptors and submitted that the reasoning given by the Medical Assessor for assigning a class 2 rating in this category, containing as it did references to his Mr Racker’s friends with whom he played golf or caught up, his monthly dinners at the club and his attendance at the Swans game. The socialising with immediate family and regular attendance of children's sporting activities were all factual matters that aligned with a class 2 rating. We were also referred to the fact that Mr Racker said he played soccer and that he went to the gym.
Reference was also made to Mr Racker’s ability to travel in a caravan to Kiama with his family for a holiday.
The respondent submitted:[14]
“Despite the heightened level of anxiety reported to be experienced by the Appellant in the additional statements during the above activities, the Appellant is still able to demonstrate a level of functionality which aligns with the examples for Class 2 impairment."
[14] Appeal papers page 41.
The respondent submitted that the submissions made as to Mr Racker's capacity to travel on a plane or in a car were relevant to the PIRS category of travel which was not raised on the appeal.
As to social functioning, we were again referred to the descriptors for this category and referred to the findings by the Medical Assessor that family relationships were stable, that he had a few friends with whom he maintained regular contact, but that he had lost some friendships.
With regard to his marital situation, the respondent submitted that although the allegation was made that there was a strain in the relationship, nonetheless the evidence showed that Mr Racker was supporting his children in their sporting events and that the family went on holidays to Kiama and also to Hamilton Island for the family gathering.
The respondent noted that the Medical Assessor was aware that Mr Racker had lost contact with some of his friends but nonetheless there remained a small group of friends with whom he played golf. These facts it was submitted aligned more closely with the class 2 rating.
We were referred to Wingfoot Australia Partners Pty Ltd v Kocak[15] and Marina Pitsonis v Registrar Workers Compensation Commission[16] regarding the function of a Medical Assessor and the weight to be given to information that was not recorded on the face of the MAC or in the findings of other medical reports. I'll have to have a look at that.
[15] [2013] HCA 43 at [48].
[16] (2008) NSWCA 88 AT [59].

DISCUSSION

The PIRS

The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12 provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. 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.”
The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11 .
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[17] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Appeal Panel had fallen into jurisdictional error. He said at [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’.”
[17] [2017] NSWSC 887
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.
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”: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[18]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[18] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd[19], another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[19] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Appeal Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
·        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.
In Lancaster v Foxtel Management[20] Basten AJ noted at [88]-[89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[20] [2022] NSWSC 929.
The tension between these descriptors, which we apprehend the authors of the Guides foresaw in the many different possible scenarios within the six categories of the PIRS, is the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples. They give a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allow a wider discretion to be applied than if the descriptors were intended to be strict criteria.
The difficulty with Mr Racker's submissions is that we have rejected the fresh evidence for the reasons given above. We would reiterate however that in assessing the behavioural consequences of a person's psychiatric disorder, the Guides emphasize that the assessment be based on the classes of severity of impairment attaching to each of the six categories. Although there are some instances where a symptom is mentioned as a potential cause of impairment, it is the impairment, not the symptom that is assessed None of the descriptors discuss the motivation a person gives for performing the function, rather the person is rated on their level of ability, or capacity, to perform the function.

Social and recreational activities

Table 11.2 of the Guides provides the following descriptors:
“Class 1 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.
Class 2 Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg 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.”
In his 11.2 PIRS rating form, the Medical Assessor found a class 2. His reasons for doing so were:
“Mr Racker occasionally meets friends to play golf or catches up with a friend. He goes to the local sports club bistro for dinner with his wife once a month. With modifications, he could attend a large-scale football game with his son. He can socialise with his immediate family, enjoys walking the dog, and attends the gym occasionally. He regularly attends his children’s sporting activities with
his wife. He enjoyed a weekend at a house on Hamilton Island with his immediate and extended family, including a lunch outing. He is less outgoing and has reduced the frequency of his social interactions compared to before the injury.”

Mr Racker’s submissions were no more than a disagreement about matters that, about which reasonable minds might differ. Mr Racker’s submissions appear to be based on an assumption that the fresh evidence would be admitted, and the submissions essentially constituted a rehash of that evidence. We were not referred to any case law, guideline or other authority that supported the proposition that a Medical Assessor was obliged to consider a claimant’s motivation for the activities reported, or rate the symptoms experienced whilst doing so. There was no suggestion that the Medical Assessor was unaware of any relevant factual matter, or that he misunderstood Mr Racker’s situation. The Medical Assessor gave a thorough assessment of Mr Racker’s case in his reasons.
As to social functioning, the relevant descriptors are contained in 11.4 of the Guides.
These provide relevantly:
“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.”
The Medical Assessor’s reasons for giving a class 2 rating were:
“His relationships with his family are stable. He has a few friends with whom he has maintained regular contact, but he has lost some friendships. He feels guilty about the impact of the changes in his demeanour on his family since the injury.”
It can be seen that both class 2 and class 3 are concerned with how interpersonal relationships are functioning. From the general terms of the descriptors, there was clearly intended to be a distinction between existing relationships being “strained” as to “severely strained.” We do not find that the description of Mr Racker's existing relationship is “severely strained”, a level which requires periods of separation or domestic violence arising from the psychiatric injury. Mr Racker is clearly involved in looking after his children. The description of the family outing to Hamilton Island and to Kiama show that indeed the family relationships are stable. It may well be that Mr Racker’s psychiatric disorder has caused some tension in the matrimonial home, but on the evidence before us it could not be said that it does any more than simply strain the relationship.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 June 2024 should be confirmed.

[2024] NSWPICMP 794

25 November 2024