Robinson v State of NSW (NSW Police Force)
[2023] NSWPICMP 39
•8 February 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Robinson v State of NSW (NSW Police Force) [2023] NSWPICMP 39 |
| APPELLANT: | Adam Robinson |
| RESPONDENT: | State of NSW (NSW Police Force) |
| Appeal Panel | |
| MEMBER: | Ms Deborah Moore |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 8 February 2023 |
| DATE OF AMENDMENT: | 9 February 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - The appellant submitted that the Medical Assessor erred in his assessment with respect to the Psychiatric Impairment Rating Scale (PIRS) in the categories of self-care and personal hygiene, social and recreational activities and social functioning; Held – Panel found no error with the first two categories, but error in social functioning because of the degree of family breakdowns and domestic violence; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 23 September 2022 Adam Robinson (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 1 September 2022.
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): deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
· the assessment was made on the basis of incorrect criteria; and
· the medical assessment certificate 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 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, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th 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 although one was requested, no specific reasons were provided as to why this was necessary, and in any event, we consider that we have sufficient evidence before us to enable us to determine this appeal.
In addition, the Panel notes that the parties agree that the correct date of injury should read 14 March 2018, not 14 March 2008 as recorded by the MA. We will amend our decision accordingly.
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.
In summary, the appellant submits that the MA erred in finding there was a class 2 in the Psychiatric Impairment Rating Scale (PIRS) in the categories of self-care and personal hygiene, social and recreational activities and social functioning when there should have been a finding of a class 3 impairment in all categories.
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 14 March 2018.
The MA obtained the following history:
“The date in my previous MAC was incorrect and should be 14/3/2008 (deemed). (Incorrect as noted above).
I reviewed my last Certificate with Mr Robinson and there was no inaccuracy identified in the history:
Mr Robinson had not experienced psychiatric difficulties before his police employment. The first episode occurred around 2006. At the time he had suffered pleurisy and had a conflict with his work supervisor. Over the years Mr Robinson has suffered intermittent bouts of anxiety and depressive symptoms as a result of various encounters at work, and those episodes were generally short lasting. He reported that over time he has struggled more and more, and he thought that in the 1½ to 2 years before he stopped working he could not cope any more.
Mr Robinson recalled that he would be at work, staring at the computer for a long time with an overwhelmed feeling that he could not handle it anymore, and that his body and brain simply shut down, and he had an urge that he needs to get away.
Mr Robinson related his psychiatric condition to the accumulation of 17 years of attending to violent offenders, domestic violence, car accidents and being constantly hypervigilant and on guard. He also described having to attend to prisoners who often screamed at him and banged on the door when they were being incarcerated. He developed anxiety and depressive symptoms and re-experiencing symptoms related to various jobs he attended.
Mr Robinson recalled he started to drink alcohol in greater amounts when he worked at Wagga Wagga in 2006, and progressively became reliant on it. By the time he stopped working, he recalled that he would be drinking about 6 to 7 beers a session around 5 or 6 times a week. He reported that he has cut down his alcohol somewhat. He is still drinking a similar amount of 5 or 6 beers a session, and about 3 to 4 days a week. He tends to drink at home by himself or with his wife now.”
After documenting Mr Robinson’s current treatment, the MA then set out present symptoms as follows:
“Mr Robinson has not felt substantially different after my last assessment.
He remains irritable and stated that he had punched the wall and damaged the wall and broke an iPad because his son would not give iPad when he asked him to.
He is still having bad dreams and would lash out in his sleep and punch the bed head. The dreams come intermittently, sometimes there will be nothing for a couple of weeks. In the dreams, he said that people would laugh at him and he feels helpless.
Previously, he was 87 kg but now he is 92 kg, and said that he binge-eats sometimes and has gained weight in the last few years.
He spontaneously discussed problems with his libido.
In terms of his alcohol intake, he said his alcohol has increased after my last assessment. He would drink 60 beers in a week, around nine to ten beers every day.
He reported:
• Dysregulated emotions with elements of anxiety, depression and often daily anger.
• Poor concentration and short-term memory
• Ongoing weight problem and possibly some weight gain in the past 6 months.
• Flashbacks
• Disturbed sleep and nightmares, which come on daily for a few days, then subside for the next few days. He thrashes about and has hit out at his wife in his sleep.
• Panic attack-like symptoms.
• Being hypervigilant.
• He avoids social situations due to his anxieties.
• He denied ever having experienced symptoms of psychosis.”
After noting Mr Robinson’s general health and work history, the MA then set out details of the impact of his injury on his social activities and activities of daily living (ADL’s) as follows:
“Mr Robinson is living with his wife who is a full-time personal assistant at a school. They have three children, and the two sons are at home.
He confirmed he was married in 2003, then they separated in the context of his psychiatric injury. They are back together, but he said the relationship has not been good. They sleep in different rooms. He said that she complains he does not help with the housework, cooking or looking after the boys. They spoke about separation a number of times.
He said that their eldest daughter moved out six months ago to live with the parents-in-law in Newcastle because she could not put up with him.
They have a cleaner that comes to the house once a week.
When he is hungry, he might have cereal, toast or biscuit. His wife does the cooking. When he is driving, he said sometimes he will have flashbacks.
When he sees a jogger, he will be reminded about a jogger who had an accident, he was one of the first responders to attend it. He is always on high alert and when there are trucks around he becomes anxious because it reminds him of fatal accidents he attended.
He can drive about two hours to Tweed Heads to see his psychologist, and would take a break midway. He avoids going to pubs and places where he thinks there would be criminals in the local area.
He said he only maintains contact with a couple of friends. He might see them once every fortnight. They visit each other, generally at home to drink coffee and to talk. Occasionally, he said they would go out to the café. He would eat out with family and friends maybe every six weeks, and get takeaway food maybe every two weeks.
He said that his wife wants him to go out and do things, but he does not sometimes and sometimes he would go with her to her work functions. He stated he does not care about his appearance, and she feels embarrassed by the way he looks when he goes to work functions.
He might accompany his wife to work functions once a month. They would go to a restaurant and maybe one of the colleagues’ house, there might be 20-30 people that attend, and he would stay for couple of hours. He said he would drink alcohol to make himself happy and sociable and to talk to people.
Sometimes he would refuse to go to function, for example, a wedding last weekend.
He goes to barbeque at friend’s house or at home. During 2022, he said he had one barbeque at home and his friend came over, and he went to two friends’ barbeques.
He used to do the school pickup, but somebody there told him he was parking in the wrong place, he felt picked on and now he parks further away and waits for his son to walk to meet him, and will not pick up at the usual place.”
Findings on examination were reported as follows:
“Mr Robinson was assessed by videolink. Mr Robinson was assessed alone and was at home during the assessment. I assessed Mr Robinson from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audiovisual recording of the assessment. Mr Robinson had receding hair and a light beard, and had one ear stud. There was no psychomotor slowing or abnormal movements. He smiled appropriately and laughed. He was mildly restricted in his affect range and reactivity. He gesticulated freely, and spoke spontaneously and readily. There was no overt cognitive impairment or deficiency in concentration or pace.”
The MA summarised the injuries and diagnoses as follows:
“Mr Robinson developed Post-traumatic stress disorder and Alcohol use disorder as a result of his employment with the police. He has had regular treatment, including psychologist, psychiatrist, psychotropic medications and day program and alcohol related management. However, his symptoms and alcohol consumption have not significantly improved.
Given the amount of time that has passed, that his treating team have not proceeded with other treatment and according to him they do intend to, my view is that MMI has been reached.”
The MA assessed 9% WPI.
He then turned to consider the other medical opinions and evidence and said:
“The additional evidence essentially reiterated that he had reached MMI.
Mr Robinson's medical record has been noted including entry on 20 February 2020.
Mr Robinson’s statement has been noted. He used to enjoy paddle boarding, play winter touch football with his daughter, and in October 2019 he went to a four day residential program Quest for Life and found this slightly helpful. As a family they made plans, but they had abandoned their plans because of the way he is. Mr Robinson listed his disabilities and impact on his functioning according to the PIRS categories.
Tim Loughnan, treating psychologist, provided a report and advised Mr Robinson has suffered Post Traumatic Stress Disorder. He could not return to work as a police officer.
Dr Mark Scurrah, treating psychiatrist, provided a report dated 19 September 2019 and diagnosed Post Traumatic Stress Disorder, Chronic Depressive Disorder, Alcohol Abuse. Mr Robinson had not totally abstained from alcohol during the time he had consulted him. In terms of treatment Mr Robinson had taken anti-depressant medication and treatment at a specialist Post Traumatic Stress Disorder unit. Dr Scurrah provided a WPI and noted Mr Robinson was taking Fluoxetine 20 mg daily and the overall rating was 22% with 1% addition for treatment effects.
Comment: I have found Mr Robinson less impaired as I have taken an additional history that he can engage in various social and recreational activities.
In the medical records I can see Lexapro had been prescribed at one point.
Pro-Care 17 October 2018 noted Mr Robinson's psychiatric condition and that there was no issue in relation to showering, planning daily activities, cooking, yard maintenance, shopping, childcare, transportation. He has a problem with cleaning.
Dr Mark Kneebone, IME psychiatrist, 24 March 2020 advised Mr Robinson had been seeing Tim Loughnan since 2018 principally having supportive psychotherapy but not trauma focused CBT or EMDR. He has a regular review with Dr Scurrah with trials of antidepressant medication currently taking Fluoxetine 40 mg. He occasionally cooks a meal on the barbeque. Mr Robinson has not engaged in overseas travel since March 2018. He has lost friends and his wife and him have talked about separating in the past. Mr Robinson has poor concentration and quickly loses focus. He skims over magazines and articles on the internet. Dr Kneebone diagnosed Post Traumatic Stress Disorder, Major Depressive Disorder and Alcohol Use Disorder. He advised that it is possible that Mr Robinson does not accept that Maximal Medical Improvement has been reached, until efforts are made to engage him in efficacious treatment for Post Traumatic Stress Disorder, such as trauma focused CBT or EMDR or efforts identifies suitable alternative work roles. Dr Kneebone had rated Mr Robinson's PIRS without calculating the WPI, and his impairment was described as much less impaired than Dr Scurrah’s assessment.
Mr Robinson's treatment record has been noted:
• 19 December 2019, skipping meals, excessive alcohol intake at social outings, feel good to chat with individuals, looking to connect again next month.
• 12 December 2019 had been concreting last few days, feels very sore and flat.
• 3 October 2019 not having as many alcohol free days, mostly drinking in the company of others.”
The MA assessed a class 2 for self-care and personal hygiene, stating:
“Mr Robinson does not shower regularly. He will shower without prompting. He would shower most days, and occasionally his wife prompts him and said he smells. He skips meals and reported having premade meals or biscuits when his wife does not prepare food, and does not need prompting to eat. He is capable of independent living without regular support.”
He assessed a class 2 for Social and recreational activities and said:
“He attends regular social recreational activities with his family and friends. Overall, he has been attending less since his injury. He socializes and attends BBQ or eats out with his family and friends, but has been going less over time. He is actively engaged and does not need a support person. These social and recreational activities can be every few weeks to every 2 months recently.”
In assessing a class 2 for Social functioning the MA said:
“Mr Robinson's relationship with his wife has deteriorated and they separated once. The relationship improved but remains strained. He is anxious and socially avoidant, and no longer has contact with some of his friends. He is able to maintain a few long-term friendships. The relationship with his general family and children has deteriorated as well.”
Dealing firstly with the category of self-care and personal hygiene, the appellant submits that he should be assessed as a class 3, and makes the following submissions:
(a) His wife “complains he does not help with the housework, cooking or looking after the boys".
(b) "They have a cleaner that comes to the house once a week".
(c) "When he is hungry, he might have cereal, toast or biscuit. His wife does the cooking."
(d) He "does not care about his appearance, and she feels embarrassed by the way he looks when he goes to work functions."
(e) The assessor concluded that class 2 was appropriate. His reasons for doing this were given at page 10 of the MAC as:
"Mr Robinson does not shower regularly. He will shower without prompting. He would shower most days, and occasionally his wife prompts him and said he smells. He skips meals and reported having premade meals or biscuits when his wife does not prepare food, and does not need prompting to eat. He is capable of independent living without regular support."
(f) Table 11.1 describes that for class 2 to be potentially applicable that a person has to look after themselves "adequately" albeit they may look "unkept occasionally". It is submitted that not preparing food and not washing regularly and smelling and not cleaning a residence - falls far short of looking after oneself "adequately". Similarly, not caring about his appearance is far worse than looking "unkept occasionally".
(g) It is submitted the above accepted descriptions required a class 3 assessment. This is because the appellant obviously needs prompting to "shower daily and wear clean clothes" and he "does not prepare (his) own meals". (It is submitted that merely eating biscuits etc. and consuming pre-packaged meals does not amount to meal preparation - which connotes the preparation and combination of fresh and other ingredients.) In addition, it is apparent his wife is endeavouring to ensure minimum levels of hygiene and nutrition by preparing proper meals and encouraging him to wash, not smell and dress appropriately. In doing this it is submitted she is acting as the equivalent of a visiting "family member" (as described in Table 11.1 for class 3).
(h) It is submitted the accepted and described symptoms and their practical consequences need to be applied to the class descriptors. It is further submitted that the task of doing this is more than an exercise in clinical judgement. The application of accepted facts to the class descriptors is a matter of applying the guidelines correctly and it is submitted that failing to do so correctly involves demonstrable error and the use of incorrect criteria (in the sense that the wrong class descriptor is being applied to the found facts).
(i) Hence it is submitted the MA has made a demonstrable error by assessing the appellant as class 2 for this scale item. It is also submitted this involves the use of incorrect criteria in the sense that class 3 should have been applied in lieu of class 2.
The descriptor for a class 2 reads:
“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.”
The descriptor for a class 3 reads:
“Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit)
2–3 times per week to ensure minimum level of hygiene and nutrition.”In our view, the assessment made by the MA in this category was open to him on all the evidence for reasons that follow.
To begin with, we note that the appellant’s treating psychiatrist, Dr Scurrah, also assessed a class 2 in this category, stating: “He will frequently skip meals due to mood symptoms and at times his wife will prompt him to have a shave due to his loss of interest with his mood symptoms.”
We acknowledge that Dr Scurrah’s report is dated 19 September 2019, some considerable time before the MA’s assessment, however, the appellant’s presentation then was similar to that observed by the MA over two assessments. Although of course an MA is not bound to accept the assessments given by any other medical assessors, the appellant relied upon the WPI assessment of Dr Scurrah which was 22%, such that in our view some weight should be given to his opinion.
The appellant told the MA that he could shower without prompting, that he showered most days, and occasionally (our emphasis) his wife prompts him.
It must be remembered that Chapter 1.6 of the Guidelines states: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment…” (our emphasis).
The appellant also said that he “does not need prompting to eat.” Although he also said that he “skips meals” he seems to do this when his wife has not prepared a meal. Having pre-made meals in this day and age is not uncommon, and there is no suggestion that his level of health and nutrition has been significantly compromised.
In addition, as the respondent correctly points out,
“the Procare report dated 17 October 2018 indicates that the appellant’s wife completed the cooking and meal preparation and laundry prior to the injury… the appellant cannot therefore assert that his lack of involvement in cooking, meal preparation and laundry is injury-related.”
The respondent adds:
“the appellant is asking the MA to make assumptions about his pre-injury activity which are not available on the evidence. For example, the appellant seeks to rely upon the fact that he avoids some household chores, when there is no evidence that he was responsible for those activities prior to the injury. Despite mentioning numerous other areas of pre-injury functioning in his statement, the Appellant does not describe his pre-injury participation in household activities.”
We agree with the thrust of the respondent’s submissions.
In summary, the evidence in our view supports a finding that Mr Robinson is indeed “able to live independently.” He also is able to look after himself “adequately” when his wife has not prepared meals or “prompted him” to bathe, and any reliance on either take-away food or pre-prepared meals is consistent with a class 2 rating.
There is no convincing evidence, on the history obtained by the MA, that Mr Robinson is unable to “live independently without regular support”, or that he does not prepare his own meals (albeit simple) let alone requires a “Family member or community nurse” to visit
“2–3 times per week to ensure minimum level (our emphasis) of hygiene and nutrition.”For these reasons, we do not consider that the MA has erred in his assessment in this category.
Turning next to the category of social and recreational activities, the appellant makes the following submissions:
(a) Table 11.2 describes that for class 2 to be potentially applicable that a person has to "occasionally go out to (social) events without needing a support person, but does not become actively involved (eg dancing, cheering favourite team)". In contrast Table 11.2 describes that for class 3 to be potentially applicable that a person "rarely goes out to such (social) 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."
(b) The appellant describes avoiding social situations due to anxiety and only has a couple of friends who he sees no more than every fortnight. The accepted details are also describing that he is only making rare forays to modest venues like a cafe with one of his few close friends. This is effectively the same thing as requiring a support person. He won't even park his car in the usual school pick-up place.
(c) The accepted details are not describing a class 2 type situation of going to some events without a support person. It is describing a class 3 type situation of relatively rare visits with a support person in the form of a friend or his wife.
In support of these submissions, the appellant has set out various comments made by the MA in respect to this category.
For example, the MA said:
“He avoids social situations due to his anxieties". Page 3 of the MAC.
"He avoids going to pubs and places where he thinks there would be criminals".
Page 4 of the MAC."He said he only maintains contact with a couple of friends. He might see them once every fortnight. They visit each other, generally at home to drink coffee and to talk. Occasionally, he said they would go out to the café." Page 4 of the MAC.
"He would eat out with family and friends maybe every six weeks, and get takeaway food maybe every two weeks." Page 4 of the MAC.
"He said that his wife wants him to go out and do things, but he does not sometimes and sometimes he would go with her to her work functions. He stated he does not care about his appearance, and she feels embarrassed by the way he looks when he goes to work functions. He might accompany his wife to work functions once a month."
Page 4 of the MAC."Sometimes he would refuse to go to function, for example, a wedding last weekend." Page 4 of the MAC.
"During 2022, he said he had one barbeque at home and his friend came over, and he went to two friends’ barbeques." Page 4 of the MAC.
The descriptor for a class 2 reads: “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).”
For a class 3 it reads: “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 assessing a class 2, the MA said:
“He attends regular social recreational activities with his family and friends. Overall, he has been attending less since his injury. He socializes and attends BBQ or eats out with his family and friends, but has been going less over time. He is actively engaged and does not need a support person. These social and recreational activities can be every few weeks to every 2 months recently.”
Again, this assessment was as a result of the MA’s examination on 19 August 2022.
There is no evidence to suggest that Mr Robinson is unable to go out without a support person. He attends social functions “regularly” with his family and friends albeit less than previously. As the MA noted, he is “actively engaged “in such activities.
The examples provided by the appellant are consistent with a class 2 rating.
Even if the appellant has lost some friends because of strain or his social disengagement due to his work injury, this would not be a sufficient reason to find a class 3 impairment in this case and the quality of such friendships is assessed under Social Functioning.
Once again, we note that Chapter 1.6 of the Guidelines makes it clear that “assessing permanent impairment involves clinical assessment of the claimant as they present on the day…”.
Sometimes the evidence can suggest that a person is on the cusp of a particular class in a particular category. But that does not of itself demonstrate error, as long as the evidence confirms that the findings were open to an MA.
In this case we are satisfied that it was open to the MA to assess a class 2 rating, and we cannot see any error by the MA in his assessment in this category.
Turning finally to the category of social functioning, the appellant submits as follows:
In his MAC the assessor relevantly recorded:
(a) "He remains irritable and stated that he had punched the wall and damaged the wall and broke an iPad because his son would not give iPad when he asked him to". Page 3 of the MAC.
(b) "He is still having bad dreams and would lash out in his sleep and punch the bed head." Page 3 of the MAC.
(c) "He confirmed he was married in 2003, then they separated in the context of his psychiatric injury. They are back together, but he said the relationship has not been good. They sleep in different rooms. He said that she complains he does not help with the housework, cooking or looking after the boys. They spoke about separation a number of times." Page 4 of the MAC.
(d) "He said that their eldest daughter moved out six months ago to live with the parents-in-law in Newcastle because she could not put up with him." Page 4 of the MAC.
The assessor concluded that class 2 was appropriate. His reasons for doing this were:
"Mr Robinson's relationship with his wife has deteriorated and they separated once. The relationship improved but remains strained. He is anxious and socially avoidant, and no longer has contact with some of his friends. He is able to maintain a few long-term friendships. The relationship with his general family and children has deteriorated as well.”
It is submitted the accepted details are not describing a class 2 type situation of a "mild impairment" with simply "strained" relationships and "tension" and "arguments". His daughter has left the family home. That is far more serious than a strained relationship. Similarly punching walls and bedheads and breaking computers is far more serious than a mere argument. It is submitted that sadly such matters come withing the class 3 descriptors of "severely strained relationships" as "evidenced by periods of separation" and "domestic violence".
In this instance, we agree with the thrust of the appellant’s submissions for reasons that follow.
In assessing a class 2, the MA said:
“Mr Robinson's relationship with his wife has deteriorated and they separated once. The relationship improved but remains strained. He is anxious and socially avoidant, and no longer has contact with some of his friends. He is able to maintain a few long-term friendships. The relationship with his general family and children has deteriorated as well.”
The descriptor for a class 2 reads: “Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
For a class 3 it reads: “Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The evidence set out by the appellant above reflects a good description of a class 3 rating.
Mr Robinson and his wife sleep in separate rooms, and had separated for a period. Their daughter has moved out “to live with the parents-in-law in Newcastle because she could not put up with him." Whilst it is true that many teenagers do move out of the family home, in this instance it was not to share accommodation with other teenage friends but as the MA specifically noted, she went to live with her grandparents “because she could not put up with him."
There is clear evidence of episodes of domestic violence as described by the appellant.
It is acknowledged by the MA that “He is anxious and socially avoidant, and no longer has contact with some of his friends. He is able to maintain a few long-term friendships.”
All these factors in our view clearly support a class 3 rating.
The Aggregate Score Impairment is thus altered such that the final WPI is 19%.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 September 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | 3980/20 |
Applicant: | Adam Robinson |
Respondent: | State of NSW (NSW Police Force) |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Michael Hong and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychological | 14/3/2018 - deemed | 11, pages 55-60 | 14 | 19% | 0 | 19% |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
0