Simpson v Mammoet Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Simpson v Mammoet Pty Ltd [2021] NSWPICMP 162
APPELLANT:	Michael Simpson
RESPONDENT:	Mammoet Pty Ltd
APPEAL PANEL:	Ms Deborah Moore Professor Nicholas Glozier Dr Michael Hong
DATE OF DECISION:	7 September 2021
CATCHWORDS:	WORKERS COMPENSATION- Appellant submitted that the Medical Assessor (MA) erred in his assessments with respect to all the Psychiatric Impairment Rating Scale categories except self-care and personal hygiene; the Panel agreed that the MA erred with respect to social and recreational activities and travel having regard to Ballas v Department of Education; the balance of the MA’s assessments was open to him on the evidence; Held - Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 3 June 2021 Michael Simpson (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor (MA) who issued a Medical Assessment Certificate (MAC) on 13 May 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

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

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant submits that the MA erred in his assessments with respect to all of the Psychiatric Impairment Rating Scale (PIRS) except for self-care and personal hygiene.
In reply, Mammoet Pty Ltd (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 psychological injury resulting from a deemed date of injury of 24 July 2018.
The MA obtained the following history:
“Mr Simpson said he commenced working for Mammoet Pty Ltd in February 2018, working on a contract installing wind farms… The construction manager…was named ‘Chaz’. Mr Simpson described him as a ‘patched up Rebels bikie’. Mr Simpson raised safety concerns with ‘Chaz’ as there had been a lot of work accidents on the site he was working at. Mr Simpson said that his life was threatened by this man and as he was a Rebels bikie he had serious concerns for his safety. He said that this man threatened to kill him. He felt extremely fearful and anxious about this for a number of months. He wrote a statement to the head of Mammoet about the threats and also told WorkCover and the union organiser, but nothing was done about this man. Mr Simpson described having a ‘breakdown’ at work where he was stuttering, shaking, had diarrhoea and was extremely anxious… He was seen by his GP, Dr Kemper and was put off work on a medical certificate on 15 September 2018 and has not returned to work since then. He has continued to feel very anxious and depressed since leaving work.”
The MA added:
“Mr Simpson said his GP referred him to a psychologist and later to another psychologist, Ms Melanie Forster in late 2018 and he has continued to see her on a weekly to fortnightly basis. Mr Simpson said Dr Kemper started him on the antidepressant medication Paroxetine at a dose of 20mg two tablets daily. He was referred to a psychiatrist, Dr Lal in March 2019 and was admitted to South Coast Private Hospital on two occasions in 2019. His medication was changed to Lyrica and Dothiepin. He was then admitted to the Northside Hospital at Campbelltown under another psychiatrist Dr Modem in August 2019. His medication was changed to Prozac 20mg three tablets in the morning, Prazosin 4mg at night and Phenergan 25mg at night. He was also prescribed Valium 5mg at night to help with sleep. He was readmitted to Northside Hospital in Campbelltown in mid-2020 for about six weeks. After his discharge Mr Simpson attempted to hang himself and was admitted briefly to the Royal Prince Alfred Hospital Psychiatric Unit for about three days before being discharged.
Mr Simpson reports his symptoms as having been relatively stable since the suicide attempt in September 2020.”
After documenting Mr Simpson’s present treatment, the MA noted present symptoms as follows:
“Mr Simpson reports feeling very anxious and is still fearful for his safety. He complains of poor memory and concentration. He said he has had a severe stutter when he is anxious since stopping work. He also suffers with diarrhoea when he is anxious. He still has violent nightmares relating to the confrontation with the bikie at work. He said there has been a reduction in the frequency of these nightmares with the Prazosin medication that he takes. He still has frequent intrusive traumatic memories of the bikie threatening him at work. He said these memories are associated with severe anxiety and physical sensations of shaking, sweaty palms, hot flushes and an increased heart rate. He generally tries to avoid thinking and talking about those traumatic experiences in the workplace. He avoids building sites, cranes, and being with ex-workmates as these would trigger traumatic memories. He describes seeing Australia as a very dangerous place for himself. He said he has lost interest in watching soccer, ice-hockey and car racing, and playing complex computer games. He has started back playing the guitar and going back to the gym regularly. He said he generally prefers to be alone by himself. He said he does not want to be close to people. He said he finds it difficult to feel happy and to have loving feelings. He reports that his sleep is still not good despite the medication that he is taking. He reports problems with irritability and anger outbursts. He is hypervigilant and on the lookout for danger and will not sit with his back to the door. He is very jumpy at sudden noises. His appetite has increased and he has gained weight.
Mr Simpson reports feeling depressed and sad. He feels hopeless and that life is not worth living. He has had suicidal thoughts and tried to hang himself in September 2020 and subsequently had had a brief admission to a public psychiatric unit.”
Social activities and activities of daily living (ADL’s) were reported as follows:
“Mr Simpson lives with his elderly parents in their home in Stanwell Park. He said his father does the shopping and most of the cooking. Mr Simpson said he cooks one day a week. He said his mother does the clothes washing and house cleaning. He showers and changes his clothes every day.
Mr Simpson said he goes to the gym about five days per week to work out. He goes to his guitar teacher one day a week for guitar lessons at his guitar teacher’s home. He said about every two or three months he would go by himself to visit a friend in Sydney. He is able to visit the gym and his music teacher by himself, and said that he is able to drive wherever he needs to go unless he is very anxious.”
Findings on mental state examination were reported as follows:
“Mr Simpson was a well-groomed, balding man. He was initially extremely tense and agitated and spoke with a marked stutter, but this dissipated over time in the interview. His mood was generally extremely anxious, and he was tearful at times when he talked about his experiences of being threatened by the bikie at work. His affect was appropriate to his mood. There was no formal thought disorder and no psychotic symptoms. Mr Simpson was alert and orientated. There were no impairments in immediate or short-term memory. His attention and concentration and general knowledge were unimpaired on testing.”
The MA summarised the injuries and diagnoses as follows:
“In my opinion Mr Simpson has the psychiatric conditions of Post-traumatic Stress Disorder and Major Depressive Disorder according to DSM-5 diagnostic criteria. These conditions emerged as a result of work-related stressors that Mr Simpson experienced whilst working for Mammoet Pty Ltd in 2018, where he related that his life was threatened by the construction manager (who he identified as a bikie) after Mr Simpson raised concerns about work safety issues. Despite stopping work and having appropriate and intensive psychiatric and psychological treatment, including four inpatient hospital admissions, Mr Simpson’s symptoms remain clinically significant.
Mr Simpson was consistent in his presentation of his history and symptoms. He did not appear to be exaggerating or minimising his clinical condition.”
The MA explained his assessment as follows:
“I have given Mr Simpson a whole person impairment rating of 9%. This is based on a 7% rating from the PIRS rating form. I have added a 2% adjustment for the effects of treatment to take into consideration the greater than two-year psychiatric and psychological treatment that Mr Simpson has been receiving, which has resulted in an apparent substantial elimination of his permanent impairment.”
The MA then turned to consider the other medical opinions noting as follows:
“I note a report on Mr Simpson by Dr Y Bisht, psychiatrist dated 15 August 2020. Dr Bisht made a diagnosis of Major Depressive Disorder in Mr Simpson, whereas I have made the diagnoses of Posttraumatic Stress Disorder and Major Depressive Disorder. I believe that Mr Simpson does have Posttraumatic Stress Disorder as he did have genuine concerns for his personal safety when he said his life was threatened by the bikie who was the supervisor at the construction site he was working at.
Dr Bisht gave Mr Simpson a whole person impairment rating of 22%. Where Dr Bisht differed from me were in his ratings for Social and Recreational Activities. Dr Bisht rated Mr Simpson a Class 3 whereas I rated him a Class 2. I rated Mr Simpson a Class 2 as he goes to the gym by himself (our emphasis) about five days a week and also goes to his music teacher’s home to have guitar lessons on a weekly basis. He will also very occasionally go and visit a friend in Sydney by himself. In my opinion for Mr Simpson to be a Class 3 in this category he would not be able to leave the home alone at all for any of these activities. (our emphasis) Dr Bisht rated Mr Simpson a Class 2 for Travel whereas I rated him a Class 1. I rated Mr Simpson a Class 1 as he reports no problems with driving by himself unless he is extremely anxious.(our emphasis) He is able to drive himself to see his therapists, to go to the gym and to his music teacher’s place and also at times to visit friends in Sydney. Dr Bisht rated Mr Simpson a Class 3 for Social Functioning whereas I rated him a Class 2. I rated Mr Simpson a Class 2 as he had not been in a relationship prior to his work problems beginning. He reports having relatively good relationships with his parents whom he lives with and has kept up with a number of friendships but said that he has lost other friendships due to his social withdrawal. Dr Bisht rated Mr Simpson a Class 3 for Concentration Persistence and Pace whereas I rated him a Class 2. I rated Mr Simpson a Class 2 as he said that he is able to drive up to an hour and a half in light traffic or on country roads by himself before losing concentration and having to stop. There were also no short-term memory or concentration impairments present on testing at the assessment. Dr Bisht rated Mr Simpson a Class 5 for Employability whereas I rated him a Class 4. I rated Mr Simpson a Class 4 as I believe that although his anxiety and depressive symptoms would severely impact upon his employability, I believe that he would be able to work for less than 20 hours per week in a less stressful position than his previous work, for one to two days at a time with likely reduced pace and erratic attendance. I note that he attends the gym five days a week, has good levels of personal grooming and is able to drive generally quite freely. I do not believe he is totally impaired with regards to employability.
I note a report on Mr Simpson by Dr Deepi Miller, psychiatrist dated 2 November 2020. Dr Miller gave Mr Simpson the diagnosis of Narcissistic Personality Disorder. I did not find evidence of this psychiatric condition in Mr Simpson and have made diagnoses of Post-traumatic Stress Disorder and Major Depressive Disorder. Dr Miller gave Mr Simpson a final whole person impairment rating of 3% due to his diagnosed condition of Narcissistic Personality Disorder which Dr Miller did not think was a work-related psychiatric injury. My own impairment ratings for Mr Simpson are detailed in the attached PIRS rating form…”
The balance of the MA’s documentation on this point dealt with earlier reports, and symptoms and findings by various treating practitioners to which we will refer more fully below where relevant.
At the outset, both parties have referred to several authorities relating to the task of an Appeal Panel.
The respondent cites Ferguson v Stateof New South Wales [2017] NSWSC 887 where Campbell J said:
“[23] By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS: ‘... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
[24] The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
[25] The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’…
[37] The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’…”
The appellant makes reference to Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (6 May 2020) (Ballas) and Nambucca Heads Bowling &Recreation Club Ltd v Pollard [2021] NSWWCCMA 41 (Pollard).
In Ballas, the court held that events described as either solitary, that is, that do not involve interactions with other people or shared with a single trusted person only could not be described as ‘social’ within the PIRS category of social and recreational activities.
In addition, social and recreational activities are not travel and are not social functioning. It is apparent from a reading of the table that social and recreational activities is directed to the kind of activities that involve interactions with other people.
The thrust of the appellant’s submissions is that the evidence before the MA concerning his assessments “is more than that upon which reasonable minds might differ or merely disagree.”
By contrast, the respondent submits that the MA’s assessments do no more than reflect “a mere difference of opinion on a subject about which reasonable minds may differ…”
The respondent adds:
“The Appellant has not established that the categorisation made by Dr Morris in respect of any of the factors referred to in the PIRS assessment was glaringly improbable; the Appellant has not established that Dr Morris was unaware of significant factual matters; the Appellant has proven that there has been a clear misunderstanding; or that there was an unsupportable reasoning process. On that basis, we say that intervention with Dr Morris’ assessment cannot be justified.”
Turning firstly to the category of Social and recreational activities, the appellant submits as follows:
·        Dr Morris applied incorrect criteria in classifying Mr Simpson’s attendance at gym and taking guitar lessons as social or recreational events rather than therapeutic exercises. (see Melanie Foerster Capacity Table / Community at page 2 of the Reply).
·        The events described are solitary or shared with a single trusted person only and could not be described as “social”. (see Ballas)
·        Dr Morris failed to consider and properly apply the evidence of the appellant recorded by him that: “He said he generally prefers to be alone by himself. He said he does not want to be close to people.”
·        Dr Morris has given no weight to the social and recreational activities foregone by the appellant as recorded by him: “he has lost interest in watching soccer, ice-hockey and car racing, and playing complex computer games”.
·        Dr Morris has noted that the appellant participates in activities by himself, such as driving, and drawn the erroneous conclusion that the solitary nature of the appellant’s activities are consistent with a lower PIRS assessment rather than the higher assessment that should have been made in accordance with the equally valid conclusion that he isolates and has no friends with which to share those activities.
·        Dr Morris’ description that the appellant “would not be able to leave the home alone at all for any of these activities” would be more consistent with Class 4 and a higher standard than Class 3.
·        Dr Morris has placed undue emphasis on the influence of support persons in Classes 3 and 4 without giving consideration to the appellant’s reluctance to engage with others, the consequent unavailability of such a support person and the role played by his guitar teacher and the friend he visited as support persons rather than social engagements.
·        Dr Morris failed to consider the impact of the appellant’s physical responses to his psychological condition recorded by him, namely stutter and diarrhoea when anxious.

The MA assessed a Class 2 stating:
“Mild impairment. Mr Simpson goes by himself to the gym to lift weights and do cardio training about five days per week. He also goes by himself to have a guitar lesson at his guitar teacher’s home once a week. He goes by himself to visit a friend in Sydney every two or three months. Otherwise he has little social or recreational activities.”
We note that in the hospital records in 2019 Mr Simpson “also reported that intentionally making time to play guitar has been helpful for his recovery, as it eases his anxious arousal.”
Ms Foerster recorded: “Mr Simpson went back to regular exercise at the gym, and he takes guitar lessons, which help him relax and calm his nervous system, which is an important step in the recovery from PTSD.”
This evidence suggests to us that this activity was indeed more therapeutic than enjoyable, and either solitary or with one trusted individual.
We also note that the MA reported that Mr Simpson always goes by himself to the gym and to have his guitar lesson. Dr Bisht in his report of 15 August 2020 noted that he does not stay in the gym if someone else enters.
The solitary nature of Mr Simpson’s activities is noted throughout the MAC. Mr Simpson also made it clear that his various symptoms have not abated to any major extent. For example, he said that he is “hypervigilant and on the lookout for danger and will not sit with his back to the door. He is very jumpy at sudden noises.”
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).”
We agree with the appellant’s submission that Mr Simpson’s impairment is indeed greater than this.
The MA said: “In my opinion for Mr Simpson to be a Class 3 in this category he would not be able to leave the home alone at all for any of these activities.”
The descriptor for a Class 3 reads: “Moderate impairment: rarely goes out to such events…” whereas the Class 4 descriptor reads: “Severe impairment: never leaves place of residence…”
It may be that the MA misread the descriptors when he made the comment referred to above as part of his reasoning for why a Class 3 is erroneous.
In any event, we do not consider that Mr Simpson warrants a Class 4 rating based on his description of his activities, but having regard to the whole of the evidence we are of the view that the MA has made an error, possibly based upon a misreading of the descriptors, and the worker falls into a Class 3 for the reasons stated above.
The appellant next challenges the assessment with regard to Travel.
The MA assessed a Class 1, adding:
“Mr Simpson reports that he generally has no problem with driving by himself unless he is extremely anxious. He is able to drive around the Illawarra area to go to his gym, for guitar lessons and to see his treating clinicians. He is also able to drive by himself to parts of Sydney to visit friends.”
The descriptor for a Class 1 reads: “No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.”
In our view there is an internal error in the MAC with regards to this category.
Mr Simpson conceded that he had little difficulty driving by himself most of the time “unless he is extremely anxious.”
Mr Simpson said that when he was particularly anxious he may stutter or experience diarrhoea, the latter being a restriction in his ability to travel. He also said that his memories of being threatened at work “are associated with severe anxiety and physical sensations of shaking, sweaty palms, hot flushes and an increased heart rate.”
In other words, there are some limitations in his ability to travel which we regard as outside “the normal variation in the general population.”
He also said that he avoids certain places such as building sites and cranes, which again we see as a restriction in his ability to travel which is outside the normal range.
In our view, Mr Simpson falls into a Class 2 rating given the limitations to which we have referred.
Turning now to the category of social functioning, the MA assessed a Class 2 adding:
“Mild impairment. Mr Simpson was not in a relationship with a woman before his work problems began. He reports having a good relationship with his elderly parents with whom he lives. He said he has kept up some friendships but has lost other friendships due to his social withdrawal.”
The appellant submits as follows:
·        The history narrated by Dr Morris in this category is demonstrably wrong in that the evidence discloses that the appellant does not have a good relationship with his parents and he has given up all friendships but one.
·        Dr Morris has not given any weight, or insufficient weight to reliable reports that the relationship with his parents is strained, that he shares his living arrangements with a friend (also strained) and his feelings of estrangement from friends and family. (Melanie Foerster at page 2 of the Reply).
·        As with social and recreational activities, Dr Morris has failed to consider the physical complaints of stuttering and diarrhoea.
·        The conclusion drawn by Dr Morris is inconsistent with the symptoms he has recorded.
The report of Ms Foerster is dated 22 June 2020. She recorded Mr Simpson’s pre-injury capacity as: “Lived independently and was able to care for himself and spend time with his family/friends…”
His capacity at the time of his initial assessment was described as: “Was able to care for himself but social withdrawal. He used to live with his parents who were a major source of frustration…”
Current capacity was described as: “Mr Simpson has moved in with a friend however, he increasingly gets frustrated with him as well, showing his current interpersonal issues. Spends most of his time alone.”
We note that Mr Simpson was readmitted to Northside Hospital in Campbelltown in mid-2020 for about six weeks. After his discharge Mr Simpson attempted to hang himself and was admitted briefly to the Royal Prince Alfred Hospital Psychiatric Unit for about three days before being discharged.
Ms Foerster’s assessment occurred at about this time when it is fair to say that Mr Simpson was seriously ill, but the task of the MA in accordance with the Guidelines is to make an assessment on the day of the examination, in this case on 30 April 2021, almost a year after Mr Simpson’s more recent hospital admissions.
We make the same observations about the report of Dr Bisht dated 15 August 2020 who also saw the appellant at a time when he had been recently discharged from hospital.
The MA observed that Mr Simpson had been “relatively stable since the suicide attempt in September 2020” which was after the assessment by Dr Bisht.
The appellant does not suggest that the history taken by the MA was incorrect in any way, but rather that the MA did not have due regard to all the evidence.
Notwithstanding Mr Simpson’s physical symptoms he experiences from time to time, the description he gave to the MA of his social functioning was consistent with the Class 2 rating he ascribed, and we cannot see that he erred with respect to his assessment in this category.
The appellant next challenges the assessment with respect to concentration, persistence and pace (CPP).
The MA assessed a Class 2 adding:
“Mild impairment. Mr Simpson complains of a reduced concentration. He said that he is able to drive up to an hour and a half in light traffic without stopping before needing to take a break. He said he is able to read a specialist news service which comes onto his computer on a daily basis. There were no concentration or short-term memory impairments present on testing at the assessment.”
He explained his reasons in the MAC where he said:
“Dr Bisht rated Mr Simpson a Class 3 for CPP whereas I rated him a Class 2. I rated Mr Simpson a Class 2 as he said that he is able to drive up to an hour and a half in light traffic or on country roads by himself before losing concentration and having to stop. There were also no short-term memory or concentration impairments present on testing at the assessment.”
The appellant submits as follows:
·        The history narrated by Dr Morris in this category is demonstrably wrong in that there is no evidence to suggest that the appellant ‘’is able to drive up to an hour and a half in light traffic or on country roads by himself before losing concentration.”
·        The reasoning behind the classification is inadequately expressed as Dr Morris relies “on testing at the assessment” without explanation as to the nature of the testing here or in the body of his report.
·        As the assessment is inconsistent (apart from the response to testing) with the symptoms he recorded and the symptoms recorded elsewhere it is necessary for Dr Morris to explain the testing that provides his assessment and he has not done so.
·        The MA failed to consider the following relevant and probative information: “The severity of the symptoms is such that Mr Simpson finds it extremely hard to focus and concentrate on tasks impacting on his social and occupational functioning” (Dr Modem at pages 93 and 95 of the Application) “…severe problems with information retention…” (Ms Foerster at page 2 of the Reply).
·        Two Independent Medical Examiners opinions, Dr Bisht and Dr Miller, placed Mr Simpson in Class 3 following separate examinations and Dr Morris failed to explain why he came to a different conclusion:
“It is well accepted that an AMS is not required to accept any expert before him/her, however it is also well accepted that it is incumbent for reasons to be given where there is such unanimity. We were not addressed as to any reasons why the AMS should have ignored the unanimous view of both experts, beyond the factual matters it referred to.” (see Pollard)
Some of these submissions are in our view disingenuous. For example, as regards the first point, the MA obtained the history directly from Mr Simpson that “he is able to drive up to an hour and a half in light traffic or on country roads by himself before losing concentration.”
It matters not that there is no other as it were corroborative evidence regarding his concentration with driving.
The same must be said about the “nature of the testing.” As the respondent correctly points out:
“In Painter v Bi-Lo Pty Ltd [2009] NSW WCC MA351 it was established that: ‘The assessment of the worker by the AMS is a matter for his expertise. His conclusions, his diagnoses, the accuracy of measurements taken, and the interpretation of findings on examination, are all matters within the domain of the AMS’”.
The respondent also submits that:
“the assessment of the Appellant’s short term memory and concentration by Dr Morris was a matter for his expertise. The interpretation of his findings on examination were a matter for him. A Medical Assessor is entitled to draw his own conclusions in any manner he thinks fit provided that he applies the appropriate criteria and does not make a demonstrable error: Stramit Corporation Pty Ltd t/as Stramit Building Products v Holl [2009] NSW WCC MA32.”
We agree with the respondent’s submissions.
As we said earlier, the medical evidence referred to by the appellant was obtained at a time when Mr Simpson was either having active treatment or had recently been discharged from hospital and his circumstances at the time of the MA’s assessment were clearly different to those documented in 2020.
For these reasons, we are not persuaded that the MA erred in his assessment with regard to CPP.
Finally, the appellant challenges the assessment with respect to employability.
The MA assessed a Class 4 adding:
“Severe impairment. Mr Simpson’s severe anxiety and depressed mood would severely limit his employability. He would likely only be able to work one to two days at a time, less than 20 hours per fortnight, at a likely reduced pace and erratic attendance.”
He explained his reasons as follows:
“Dr Bisht rated Mr Simpson a Class 5 for Employability whereas I rated him a Class 4. I rated Mr Simpson a Class 4 as I believe that although his anxiety and depressive symptoms would severely impact upon his employability, I believe that he would be able to work for less than 20 hours per week in a less stressful position than his previous work, for one to two days at a time with likely reduced pace and erratic attendance. I note that he attends the gym five days a week, has good levels of personal grooming and is able to drive generally quite freely. I do not believe he is totally impaired with regards to employability.”
The appellant submits:
·        Dr Morris has applied incorrect criteria in that he has failed to appreciate that it would be impossible to obtain employment within his restrictions.
·        The assertion that the appellant is able to drive generally quite freely is inconsistent with the evidence Dr Morris recorded himself and the restrictions noted elsewhere.
·        Dr Morris has misunderstood the nature of, and / or given undue weight to, the appellant’s attendance at gym.
In our view, these submissions reflect no more than a difference of opinion regarding the assessment.
The MA is not required to consider particular types of employment. His or her task is to assess an ability to engage in employment of some sort having regard to the extent of the impairment.
Mr Simpson’s ability to drive and his regular attendance at a gym (albeit with restrictions as we said above) are simply factors the MA noted when considering Mr Simpson’s capacity for employment.
Mr Simpson’s presentation on the day of his assessment in our view is consistent with a Class 4 rating, and we cannot see that the MA erred in this category.
Our calculations are thus as follows:
Classes in Ascending Order:
Median Class: 2,2,2,2,3,4   = 2
Aggregate Score Impairment: 2,4,6,8,11,15   = 8%
The MA provided reasons for adding 2% for the effects of treatment which were not the subject of appeal and with which the Panel agree.
For these reasons, the Appeal Panel has determined that the MAC issued on 13 May 2021 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

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 Patrick Morris 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. 1. Psychological /Psychiatric	24 July 2018 (deemed)	Chapter 11, Work Cover Guides	N/A	10%	10%
Total % WPI (the Combined Table values of all sub-totals)					10%

Deborah Moore
Member

Professor Nicholas Glozier
Medical Assessor

Dr Michael Hong
Medical Assessor

[2021] NSWPICMP 162

7 September 2021