Roberts v State of New South Wales (NSW Police Force)
[2022] NSWPICMP 47
•14 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Roberts v State of New South Wales (NSW Police Force) [2022] NSWPICMP 47 |
| APPELLANT: | Graham Roberts |
| RESPONDENT: | State of New South Wales (NSW Police Force) |
| APPEAL PANEL: | Member John Wynyard Dr Michael Hong Dr Patrick Morris |
| DATE OF DECISION: | 14 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against assessment for psychological injury of 8% whole person impairment; applicant former police officer lodged further statement as fresh evidence; whether fresh evidence admissible; whether challenge to four Psychiatric Impairment Rating Scale categories successful; Held- fresh evidence rejected; no submissions made as to admissibility beyond reference to section 287(3) of the Workplace Injury Management and Workers Compensation Act 1998; Lukacevic applied; fresh statement had no prima facie probative value and badly drafted; substantive submissions rejected; Ferguson, Parker, Jenkins applied; observations regarding applicant’s reliance on opinion rather than submissions; observations on incomplete sentences within submissions; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 September 2021 Graham Roberts, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Nicholas Glozier, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 17 August 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):
· 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,
· 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.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI" is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 29 April 2021 this matter was re-referred for an assessment of WPI caused by a psychological injury which occurred on a deemed date of 17 October 2019.
The MA first considered Mr Roberts’ application on 1 September 2020, when he found that maximum medical improvement had not then been reached.
On 29 April 2021 the matter was referred back to the MA by the delegate of the Registrar.[1]
[1] Appeal papers p 14.
The present MAC was issued on 17 August 2021.
Mr Roberts joined the New South Wales Police Force in 2002, aged 20 and was attested the following year.
He worked in general duties, then within the Public Order and Riots Squad and over the last seven and a half years with the Strike Force Raptor as part of the State Crime Command.
He held the rank of Senior Constable Level 6 when he ceased work.
During his time with the State of New South Wales (NSW Police Force) (the respondent) he was exposed to a series of potentially traumatising events, in common with most first responders and particularly front-line police officers. His years with Strike Force Raptor exposed him to far more frequent threatening incidents and Mr Roberts thought that in 2017 he began to experience clinically significant symptoms.
Mr Roberts’ statement dated 29 November 2019 gave a most comprehensive account of his traumatic experiences with the New South Wales Police Force. The final straw was when he had to deal with the body of a man shot by police during an incident in October 2019, which Mr Roberts marked as the beginning of his panic attacks.
The MA found that Mr Roberts suffered a 7% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant did not request to be re-examined by a member of the Appeal Panel and as no demonstrable error was established, such a re-examination was not required.
Fresh evidence
The relevant legislation in considering applications for fresh evidence is s 328(3) of the 1998 Act. That 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 applies to have admitted a further statement from Mr Roberts, dated 12September 2021. It also contained a photograph of an ulcer in Mr Roberts’ mouth, taken around 1 September 2020. The MAC was issued on 17 August 2021, as indicated, and it is evident that Mr Roberts’ purpose was to address the six categories of the Psychiatric Impairment Ratings Scale (PIRS).
We will address the detail of those categories in due course, but it is relevant to observe from the outset that the admission of additional evidence is not wholly dependent on whether the provisions of s 328(3) have been complied with. The Panel also has a discretion in considering such applications. An applicant has to satisfy the Panel that its discretion should be exercised in his/her favour.
The appellant’s submissions as to why Mr Roberts’ additional evidence should be admitted did not address matters of discretion. The submission simply stated that “we consider” the statement was fresh evidence as it could not be provided prior to the appointment. It was also submitted that the statement could not reasonably have been obtained until the “examination of MA” was completed.
The appellant then addressed the substantive grounds of appeal on the assumption that the statement had been admitted, and his submissions were based to a large extent on the contents of Mr Roberts’ statement.
The respondent objected to the admission of the additional evidence. It submitted that the gatekeeper (i.e., the delegate of the President) should reject it pursuant to s 327(3)(b) of the 1998 Act. It submitted further that the additional evidence did not have probative value. As the issue has been placed before us, the provisions of s 327(3)(b) are not applicable.[2]
[2] See Petrovic v BC Serve No 14 Pty Ltd et Anor [2007] NSWSC 1156 per Hoeben J at [35].
The discretion was discussed in Lukacevic v Coates Hire Operations Pty Ltd,[3] where the Court of Appeal was concerned with fresh evidence that took the form of a statement calling into question the conduct and enquiry of an Approved Medical Specialist (AMS), as MAs were then called.
[3] [2011] NSW CA 112. Lukacevic was recently applied in Windley v Workers Compensation Nominal Insurer [2021] NSWSC 1125.
The majority, Handley JA and Hodgson JA, upheld the Appeal Panel’s decision to reject the statement upon a consideration of the policy of the legislation and its relation to the particular matters raised in a fresh statement.
Hodgson JA at [78] said:
“A dispute by the worker as to the history set out in the Certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. ….., in my opinion it would be reasonable for an AP (Appeal Panel) not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the Certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
Handley JA agreed with Hodgson JA. Handley JA analysed the decision of the Panel and found that its conclusion was a finding of fact and that there was no error at law on the face of the record at [151].
Somewhat curiously, although Mr Roberts’ additional statement contained segments labelled “travel” and “social functioning,” there was no appeal made in the appellant’s substantive grounds that challenged the assessment in these categories.
We had some difficulty in understanding the relevance of much of Mr Roberts’ statement. It does not seem that he had any legal assistance in its drafting. It consisted of a series of comments that did not necessarily relate to either the specific heading under which they were made, or to contradict the findings by the MA. It is convenient to refer to each topic seriatim.
Self-care and personal hygiene
· Mr Roberts said that he wore the same clothes over a number of days – putting them back on after a shower. This was not evidence that had been given before, and was evidence that could have been obtained prior to the assessment with the MA. In the statement that was before the MA, Mr Roberts made no reference to any difficulty with self-care or personal hygiene. No submissions were made in that regard.
· Mr Roberts said that his wife did all the cooking, confirming the finding of the MA.
· Mr Roberts stated that his wife cooked gluten-free food because he suffered coeliac disease, confirming the finding of the MA.
· Mr Roberts asserted that he had to be prompted by his wife to look after the children if she went out in the morning. This was confirmed by the MA, who found that he contributed significantly to the care of his young family (Mr Roberts has four children in his care). Moreover, this evidence was not given earlier and no reason has been given why it had not previously been obtained.
· Mr Roberts said he struggled with motivation to exercise, and avoided public transport, both of which were not germane to the subject. He did not deny the finding by the MA that he played touch football regularly every week, or that he played basketball, also on a regular basis although with more difficulty due to his domestic responsibilities.
Social and recreational
· Mr Roberts agreed with the finding by the MA that he played touch football and basketball. Mr Roberts said that he was encouraged by his wife and “could not care less” if he did not play. He also confirmed by anecdote the finding by the MA that he found it difficult to be social.
· Mr Roberts gave a further anecdote when he described a kindergarten picnic he attended with his three children, as his wife was looking after their new-born baby. He said he left early because “my hypervigilance took a heavy toll on me.” The MA, it was alleged “took no interest in this experience, he asked no clarifying questions and made no notes of this instant”. We would observe firstly that the MA in fact did note that Mr Roberts found it difficult to be social, and secondly that it is improbable that any claimant would be able to recall just what a psychiatrist noted or said during interview. The consultation occurred on 11 August 2021, and Mr Roberts’ statement was made over four weeks later on 12 September 2021. A further difficulty with assertions of this nature is that they are made by a litigant who has a real interest in the outcome of the appeal, and whose recall therefore may well be compromised by a memory that has perhaps innocently reconstructed the events he/she described.
· A further anecdote was given regarding Mr Roberts’ need to relocate a session with an exercise physiologist because a person in the gym “looked like a bikie.” The relevance of this particular event to Mr Roberts’ social and recreational activities was not explained to us, and it does not take the matter any further.
Travel
· As indicated, the assessment for this category was not the subject of Mr Roberts’ appeal. We note that Mr Roberts described an occasion when his son began mimicking his behaviour, which Mr Roberts described to the MA. Mr Roberts said that his son was seeing a psychologist. We assume that, like the Panel, the appellant could not see the relevance of this evidence to this category, and made no submissions about it in the substantive appeal.
· It was also alleged that the MA did not enquire as to why Mr Roberts swayed whilst he was in the shower. Again, the relevance of this evidence escapes us.
Social functioning
· The assessment regarding this category too was not the subject of the substantive appeal. As with the travel category in Mr Roberts statement, the question arises as to why these matters were included in the presentation of this appeal. However, as they have been part of the subject of this application to admit fresh evidence it is necessary to consider this part of the statement.
· Mr Roberts agreed that he told the MA that he had improved, but he then alleged that he did not say he was generally calmer. We do not regard that distinction as being of any significance.
· Mr Roberts said that he had lost friends and disengaged from people. This was evidence that could have been obtained prior to the assessment with the MA.
· Mr Roberts alleged that his communication was minimal with loved ones and that he had a short temper. This too was evidence that could have been obtained prior to the assessment with the MA.
· Mr Roberts said he was “overprotective” of his children, and related an event where he searched the house for an intruder when he saw a teddy bear on his child’s pillow, which he later found had been placed there by his wife. Mr Roberts acknowledged that he had informed the MA about that incident, but complained that no mention of it had been made. We observe that there is no obligation on an MA to record everything he has been told, and in any event, he accepted that Mr Roberts was concerned about his children.
· Mr Roberts asserted that, contrary to the MA’s report, he broke down when he told the MA that it was difficult for him to exercise, as it was “hard for Elizabeth when I left her with the kids.” This allegation was not supported by any other evidence, and has little probative weight when the uncontradicted evidence is that Mr Roberts played touch football every week, and that he in fact took his children to his regular basketball from time to time. We repeat our reservations about accepting assertions of fact from a litigant with a real interest in the outcome of the case.
· Mr Roberts gave an example of an occasion when he became irritable with his children. The MA had found that Mr Roberts was irritable with his children.
Concentration Persistence and Pace
· The MA noted that Mr Roberts had suggested that his sleep disturbance had affected his persistence at cognitive tasks, as we will discuss further later in these reasons. Mr Roberts asserted that his sleeplessness was not because he was attending to his children, but rather because he was suffering nightmares about children being harmed, which he had experienced during his policing career. Moreover, Mr Roberts alleged that he had explained that to the MA. This again raises the question of the reliability of a person in Mr Roberts’ place trying to recall the exact conversation that occurred under the circumstances where that person is aggrieved at the determination by the MA. His allegation is unsupported and of marginal relevance in any event. Whether the cause of his sleep disturbance was his children or his nightmares, there is no allegation that the MA had erred in acknowledging that Mr Roberts had claimed that his sleep was disturbed.
· Mr Roberts claimed that he “specifically said” to the MA that he had “a bad memory, and could not remember things off the top of his head.” That allegation raises the question as to how then he recalled so precisely the exact conversation over four weeks later. This evidence also is unreliable for the same reasons we have explained above.
Mr Roberts then referred to the first assessment on 26 August 2020 when the MA allegedly told his wife that she should not be present as a support person and was asked to leave the room. He then said that he took a photograph of the ulcer after “the assessment”.
The ulcer, Mr Roberts said, had formed in his mouth from the stress endured. He indicated that he often got mouth ulcers and alopecia whilst he was with the police force.
The relevance of the reference to the earlier assessment we are unable to divine. As indicated earlier, it does not appear that the appellant has considered the content of Mr Roberts’ statement in the context of the requirement for it to comply with the test for the admission of fresh evidence.
For the above reasons, the application to admit Mr Roberts statement of 12 September 2021 is rejected. The evidence had no substantial prima facie probative value and as a matter of policy is inadmissible.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the MA 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.
As indicated above, the substantive appeal alleged that the MA fell into error in his assessment of specific categories contained in the PIRS. A curious feature of the appeal is that, as indicated, Mr Roberts did not rely on the categories of “travel” and “social functioning” even though they were both included in the application to admit fresh evidence, which we have now rejected. A further matter for comment is that the appellant has challenged a category in the PIRS that was not specifically included in Mr Roberts’ statement, namely, “employment.” The categories nominated were:
· Self-care and personal hygiene;
· Social and Recreational Activities;
· Concentration, Persistence and Pace, and
· Employability.
It is convenient to now address the principles applicable to the interpretation of the PIRS.
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[4] 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.”
[4] Guides 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11[5].
[5] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides p 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[6] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the 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’.
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’: 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[7]. 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].”
[6] [2017] NSWSC 887 (Ferguson).
[7] [2015] NSWSC 633 (Jenkins).
In Glenn William Parker v Select Civil Pty Ltd,[8] 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])…”
[8] [2018] NSWSC 140 (Parker).
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 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):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated; or
(d) if an unsupportable reasoning process could be made out.
In Ballas v Department of Education[9] the Court (Bell P, Payne JA, Emmett AJA agreeing) held that the conduct assessed must be consigned to the correct category (or scale), and failure to do so would result in appellable error.
[9] [2020] NSWCA 86 at [94].
The MAC
The MA issued a most comprehensive and well considered Certificate. He went to considerable length in describing Mr Roberts’ history, its effect on his activities of daily living, and the results of his mental state examination. His diagnosis, and his comments on the evidence before him were thorough and well explained.
DISCUSSION
Self-care and personal hygiene
The appellant made a submission regarding Mr Roberts’ coeliac disease. He said:
“It would be unreasonable that compliance with a non-negotiable dietary requirement.”
We were unable to comprehend what the appellant meant to submit, as it would appear that he neglected to complete the sentence.
The appellant then referred to the fresh evidence, which we have rejected.
We were referred to a report from Dr Selwyn Smith, Consultant Psychiatrist, dated 14 January 2020, who said, in ascribing a Class 3 value:[10]
“Mr Roberts has become indifferent to how he presents. He was previously fastidious he no longer cares about his personal appearance or hygiene. He has neglected himself. His wife prompts him to maintain his personal appearance and hygiene.”
[10] Appeal papers p. 86
The appellant “consider[ed]” that Dr Smith addressed the criteria of the PIRS scale, and that the MA erred. The appellant was “of the opinion” that a Class 3 value should have been given.
Decision
The Panel is not assisted by hearing what a party’s opinion is, nor what a party considers to be the case. As in any curial proceedings, a party is obliged to make submissions for the consideration of the judicial, or quasi-judicial entity (be it a Court, a tribunal or as in this case, a Medical Appeal Panel) to explain why it had formed its opinion.
In ascribing a Class 1 value to this category the MA said:
“[Mr Roberts] reported no day-to-day difficulties managing his own self-care and contributes significantly to the care of his young family, maintains a healthy diet limiting the impact of the coeliac disease, and focuses on physical activity.”
Table 11.1 of the Guides gives the relevant examples as follows:
“Class 1: No deficit, or minor deficit attributable to the normal variation in the general population.
Class 2: Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3: Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits or should visit two – three times per week to ensure minimum level of hygiene and nutrition.”
The MA noted in his findings on mental state examination that “Mr Roberts looked similar previously, except for a full beard.” This was an allusion to the earlier consultation of 26 August 2020 which led to the issue of the MAC of 1 September 2020, where the MA found maximum medical improvement had not occurred. The MA then described Mr Roberts’ presentation as being “casually dressed, slightly unshaven and apprehensive.” The MA noted on the latest appearance that “there was less apprehension and anxiety than previously.”[11]
[11] Appeal papers p 28.
The MA also recorded as part of his general commentary the full life Mr Roberts lived in sharing the domestic responsibilities for a family of four children. He noted that Mr Roberts enjoyed being with his family and that he regularly played sport and regularly attended mass. Whilst these activities are not directly related to this category, and were not specifically referred to in the MA’s assessment, the Panel would note that an inference was available that it is unlikely that Mr Roberts would be able to partake in them if he had any difficulties managing his self-care. Moreover, there was no suggestion that Mr Roberts sometimes missed a meal in the family environment, and he made no mention of any difficulties with self-care in his earlier statement of 29 November 2019. Although Mr Roberts listed 19 particulars of his disabilities[12], he did not suggest that personal hygiene was an issue.
[12] Appeal papers p 145 [18].
The MA had the benefit of a personal interview, albeit by Zoom, and, as was stated by Campbell J in Ferguson, the pre-eminence of the clinical observations cannot be underrated. The MA was able to observe the appellant and draw his own conclusions as to the appropriate class value. The appellant raised no more than a mere disagreement as to the appropriate value about which minds might differ.
With regard to the opinion of Dr Smith, it is no part of the task of an MA to either choose between competing arguments, or opine on the correctness of other opinions. His/her function is to apply his/her own medical experience and expertise in forming his/her opinion.[13] We note in any event that Dr Smith’s opinion was not based on any recorded observation of Mr Roberts, rather Dr Smith appeared to have been dependent on what he had been told.
[13] Western Sydney Local Health District v Chan [2015] NSWSC 1968 at [13] – citing Wingfoot Australia Pty Ltd v Kocak[2013] HCA 43; (2013) 252 CLR 480,
This ground is rejected.
Social and Recreational Activities
The appellant referred to the MA’s reasons for finding a Class 2 valuation. The appellant made some submissions on the unfounded assumption that Mr Roberts’ application to admit fresh evidence would be granted.
Nonetheless, the appellant submitted:
“Further, MA [sic] comments in the PIRS scale for social and recreational activities makes it sound like the appellant attends basketball games and touch football on a regular basis with no issues.”
The appellant then conceded that Mr Roberts did attend football and basketball, and that the family watched church services online. Reliance was made again on Dr Smith’s report of 14 January 2020, which said:[14]
“Mr Roberts has withdrawn socially. He has lost friends. He prefers to remain socially isolated and withdrawn.”
Decision
[14] Appeal papers p 86.
The MA gave the following reasons for allocating a Class 2 rating for this category:[15]
“He reports weekly attendance at church, basketball games and touch football, as well as ongoing although less intense engagement with his hobby of basketball card collecting. When he does go to these regular events, he noted that he is not as engaged as others and found it difficult to be social.”
[15] Appeal papers p 33.
Table 11.2 of the Guides provides relevantly:
“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 without needing a support person, but does not become actively involved (e.g. dancing, cheering favourite team).
Class 3: moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
Again, we were provided with the appellant’s “opinion” that a Class 3 assessment should be substituted.
In the body of his report, the MA gave more particularity to his above summary. He noted that Mr Roberts played touch football regularly in the lower mountains, and that he also played basketball regularly every Monday. The MA noted that basketball had become more difficult because of calls from the appellant’s wife, and that he now took the children to the game with him, which could interrupt his game. He prioritised these activities because he knew they were beneficial for his health. The MA noted that Mr Roberts has been a life-long churchgoer attending Mass regularly, and that the family attended a weekly online church service due to COVID.[16]
[16] Appeal papers p 28.
The reliance on Dr Smith’s opinion by the appellant was misconceived, as Dr Smith took no history of any of these activities.
As we indicated above, the appropriate assessment cannot be substituted because of a mere difference of opinion. It has to be demonstrated that the MA was unaware of a relevant fact, or had misunderstood the evidence, or that the assessment was glaringly improbable. Other reasonable minds might well consider that a Class 1 assessment was more appropriate in this category, but the Class 2 evaluation was open to the MA.
We are satisfied that a Class 3 assessment has no basis in the face of this evidence. It could not be said that Mr Roberts is not actively involved in his recreational activities, nor that he would not go out without a support person.
This ground is also rejected.
Concentration Persistence and Pace
This ground was based on an assumption that the appellant’s application to admit fresh evidence would be granted, and it depended on the contents of that evidence. We would note that the appellant relied on its unfinished sentence referred to above, that Mr Roberts “has difficulties recalling.” With or without the fresh evidence, this submission must fail.
This ground is also rejected.
Employability
The reasons given by the MA for a Class 4 assessment were:
“Although he is unable to work as a police officer he outlined a range of household activities and care tasks that he does which could potentially be renewable e.g. in care vocations, although his attendance at these would be limited.”
The appellant addressed this ground by saying :
“We do not consider this appropriate to translate household activities and care tasks into potential vocational options. Further, it is uncertain the number of hours that the applicant can do if he was to be employed in care vocations.”
As indicated above, the Panel is not concerned with the applicant’s opinion. What would have assisted us were submissions as to why the appellant had reached that opinion.
A perusal of the definition of a Class 4 assessment in this category would have answered the appellant’s complaint of uncertainty regarding the number of hours he could work. Table 11.6 defines a Class 4 assessment as:
“Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.”
We have already referred to the careful and thorough consideration the MA has given to Mr Roberts’ situation. In view of the activities the MA described, which include regular attendance at sport, Mr Roberts’ continued but reduced participation in his hobby of collecting basketball cards, and his regular attendance at church, including the family participation in online services because of COVID, the finding that Mr Roberts suffers a severe impairment was open to him.
This ground is also rejected.
For these reasons, the Appeal Panel has determined that the MAC issued on 17 August 2021 should be confirmed.
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