Tasevski v Westpac Banking Corporation

DETERMINATION OF APPEAL PANEL
CITATION:	Tasevski v Westpac Banking Corporation [2023] NSWPICMP 218
APPELLANT:	Mirjana Tasevski
RESPONDENT:	Westpac Banking Corporation
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	23 May 2023
CATCHWORDS:	WORKERS COMPENSATION - Impairment resulting from primary psychological injury; worker appealed self-care and personal hygiene in the Psychiatric Impairment Rating Scale (PIRS) categories; Panel satisfied that there was no error or application of incorrect criteria in that PIRS category, and it was open to the Medical Assessor to make an assessment of class 2 for self-care and personal hygiene; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 March 2023 Mirjana Tasevski (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, who issued a Medical Assessment Certificate (MAC) on 28 February 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant sustained a primary psychological injury in the course of her employment with Westpac Banking Corporation (the respondent) as a head teller.
The appellant commenced proceedings in the Personal Injury Commission (the Commission) on 31 August 2022 claiming 20% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 15 October 2021.
The Medical Assessor examined the appellant on 17 February 2023 through video link. The Medical Assessor assessed 9% WPI and added 1% WPI for treatment uplift which resulted in a total WPI of 10% as a result of the injury deemed to have occurred on
15 October 2021.

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.
The appellant did not request that she be re-examined by a Medical Assessor who is a member of the Appeal Panel
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for the appellant to undergo a further medical examination because there was sufficient evidence on which to make a determination.

EVIDENCE

Documentary evidence

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

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    the grounds for the appeal relate to the assessment for the psychiatric impairment rating scale (PIRS) category self care and personal hygiene for which the Medical Assessor assessed class 2, "Mild impairment". The Medical Assessor assessed identical PIRS scale ratings for the other five categories as the appellant worker's Independent Medical Examiner (IME), Dr Martin Allan;
(b)    the PIRS category of self care and personal hygiene was assessed as class 2 by the Medical Assessor. There was a demonstrable error and application of incorrect criteria in the Medical Assessor’s rating of class 2 for self care and personal hygiene. The appropriate rating in conformity with the evidence in the matter ought to have been class 3;
(c)    the Medical Assessor’s history recorded on page 4 that the appellant's was broadly consistent with the worker's evidence on page 15 of her witness statement dated 15 August 2022. She was a 62-year-old married woman with two adult sons. Her statement dated 15 August 2022, set out the severe effects of the psychiatric illness including an increase in weight, her husband taking over most of the cooking, shopping and cleaning duties, showering at most twice per week and having no motivation to attend to her self-care;
(d)    the household duties, such as cooking, shopping and cleaning, that her husband now did as a result of the worker's psychiatric illness, were the type of activities that in a long married couple in their early sixties from a foreign cultural background one would expect the wife to mainly undertake. An assessment of "Mild" rather than "Moderate" impairment of self care was demonstrative of error and lack of consideration of the activities that were usual for the worker's age, sex and cultural norms (cl 11.12 of the Guidelines);
(e)    further, given the appellant's statement evidence as to her lack of motivation for self care and that she showered now at most twice a week, the Medical Assessor’s statement on page 7 as to his finding as to the worker's independence in all self care activities was erroneous. On page 4 of his report the Medical Assessor stated: "She said she only showers when she has to go out and averages once or twice a week only";
(f)    for the personal hygiene part of the “self care and personal hygiene” scale, the Medical Assessor erred in that his assessment of her as independent and initiating all self care activities without prompting. Clearly on the history taken, the appellant only showered once or twice a week when she had to go out. That she had to leave the house, in circumstances where her husband had taken over most of the shopping and the appellant was very avoidant of going out, was surely a prompt for her to shower, and thus the Medical Assessor’s assessment that these irregular showers were "without prompting" was misconstrued and erroneous;
(g)    further, the Medical Assessor’s statement " ...she is independent and initiates all self-care activities without prompting ..." was erroneous as her evidence was that her husband now did most of the cooking, shopping and cleaning, and there was tension in her marriage as her husband did not fully understand her illness. Such matters and heavy reliance upon her husband were the opposite of independence;
(h)    further, the Medical Assessor placed some reliance on the fact that the appellant was engaged in intermittent fasting to lose weight without much success, as evidence of her independence and ability to undertake self care or hygiene tasks unprompted. The material attached to the Application to Resolve a Dispute (ARD) indicated the appellant's general practitioner (GP) prescribed weight loss Duromine tablets. The notes indicated she has been advised by her GP and her treating psychiatrist, Dr Goran Stevans, to lose weight. The history indicated the appellant was diagnosed with pre- diabetes (Impaired fasting Glycaemia) in 2019 and was prescribed Duromine;
(i)     the appellant's efforts at fasting and her unsuccessful weight loss attempts therefore ought not be construed as evidence of unprompted independence in self care, but instead an attempt by the appellant to comply with medical directions and recommendations by her treating providers. This history was referenced within the clinical records provided to the Medical Assessor. The Medical Assessor’s comments that the appellant engaged in intermittent fasting to lose weight have been misconstrued;
(j)     the above matters were inconsistent with a finding that the appellant was independent in self care and did not need prompting with self care and/or hygiene. A finding of class 2 of "Mild impairment" was erroneous and ignored or dismissed the husband’s now performance of most of the cooking, cleaning and shopping tasks for their household, something that would appear unusual given the appellant's age, sex, and cultural and long term marital status;
(k)    a class 3 rating of "Moderate impairment" ought to have been assessed by the Medical Assessor for self care and personal hygiene, and
(l)     in the circumstances the appeal should be allowed.
The respondent’s submissions included the following:
(a)    the appeal must fail as the submissions were, in effect, a complaint that related to merely a difference of opinion which is not a ground of appeal (see Ferguson v State of NSW & Ors [2017] NSWSC887);
(b)    a Medical Assessor was not required to accept any expert before him/her, and the Medical Assessor in this case provided reasons as to why he did not agree with Dr Allan's classification of the appellant as a Class 3 for self care and personal hygiene;
(c)    a class 2 value was not glaring improbable, and it had not been demonstrated that the Medical Assessor was unaware of significant factual matters. It also had not been suggested that there had been a clear misunderstanding on his behalf. There had also been no suggestion that the Medical Assessor had an unsupportable error in his reasoning process. The appellant's submissions did no more than cavil with the MAC;
(d)    the assessment of permanent impairment was a matter for each doctor based on their clinical experience and assessment of the evidence before them. There was no evidence to suggest that the Medical Assessor did not undertake a clinical evaluation of the impairment of the appellant that was in accordance with the Guidelines. The Medical Assessor's finding of a Class 2 for self care and personal hygiene was open to him on the evidence and in keeping with the criteria for assessment of psychological injury set out in the Guidelines;
(e)    the Court of Appeal in Campbelltown City Council v Vegan [2006] NSWCA 284 said [121]:
“Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, 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. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the Appellant’s condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel”;
(f)    in Campbelltown City Council v Vegan [2004] NSWSC 1229 Wood CJ at CL defined the ground of appeal of "incorrect criteria" as follows:
“… [The Minister for Police's second reading speech (NSW Legislative Assembly, Hansard, 19 June 2001, p 14772)] tends to suggest that the “criteria” upon which assessment is to be based are to be found in any relevant guides, including guides issued by WorkCover which have been issued for the assessment of impairment and that appeal lies where they have been incorrectly applied”;
(g)    Malpass AJ in Mahenthirarasa v State Rail Authority of New South Wales & Ors [2007] NSWSC 22, in considering the statutory construction of the term "demonstrable error", stated: "The words are not defined in the Act. It may be said that the proper meaning to be given to these words in their statutory context remains at large (sub-section (3)(d) requires that the certificate contain such an error). A dictionary meaning given to ‘demonstrable’ is “capable of being shown or logically proved”. It would appear not to be intended to include “obvious error” which the Registrar has power to correct (s325(3)). In Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939, Hoeben J said that it was sufficient for the purposes of determining that case to conclude that such an error is an error that is readily apparent from an examination of the medical assessment certificate and the document referring the matter for assessment. He also observed that error alone was not sufficient. The second reading speech contains the following concerning “demonstrable error”:- “A demonstrable error would essentially be an error for which there is no information or material to support the finding made- rather than a difference of opinion.” "In conclusion, it suffices to say that the plaintiff bears the onus of demonstrating an entitlement to relief and I do not consider that such task has been discharged”;
(h)    the submissions above are repeated under the heading "Incorrect Criteria";
(i)     the appellant failed to show any demonstrable error on the part of the Medical Assessor within the meaning of that term as described in the decision of Mahenthirarasa. There was no demonstrable error or application of incorrect criteria. Rather the appellant's basis for appeal was based on her subjective dissatisfaction with the assessment of the Medical Assessor. The appellant's submission must therefore fail as it was, in effect, a complaint that related to merely a difference of opinion which was not a ground of appeal (see Ferguson v State of NSW & Ors [2017] NSWSC887 among others), and
(j)     the MAC dated 28 February 2023 should be confirmed.

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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
In the MAC, under “Social Activities / ADL” the Medical Assessor wrote:
“Ms Taveski is 62 and lives with her husband. She has two adult children, not living with her anymore.
Ms Tasevski's husband does most of the cooking and shopping and complains she does not do the washing up like she used to. She said she only goes to the shop when she has to, maybe every couple of weeks. She has been trying to manage her weight better and does intermittent fasting and avoids carbohydrates, but has not been successful. She said she only showers when she has to go out and averages once or twice a week only”.
The Medical Assessor made a diagnosis of chronic post-traumatic stress disorder and major depressive disorder.
Under “Reasons for Assessment” the Medical Assessor wrote:
“Dr Martin Allan, IME psychiatrist reported on 20 November 2020, there was no problem before 1995. He noted Ms Tasevski reported having been in three robberies with her mental health further impacted by a difficult interaction with a colleague in 2019, shortly before she stopped work. He concluded she developed PTSD in 1995, which was exacerbated in 2017, with some improvement in 2018 but due to a stressful work situation in 2019, she then stopped work. He diagnosed PTSD and major depressive disorder.
Dr Allan, 14 Sept 2021, reassessed Ms Tasevski and made the same diagnosis and provided WPI.
Comment:
In terms of self-care, Dr Allan rated 3 and noted that it is mainly Ms Tasevski's husband who does the cooking. She may assist him in doing basic things. Her husband generally does the shopping, she does it occasionally on her own. Her self-care is poor and she would shower at most twice a week. In my assessment, I took a history that she is independent and initiates all self-care activity without prompting. She is also engaged in intermittent fasting to lose weight, although without much success, and I rated it 2.
Dr John Roberts, IME psychiatrist provided a report dated 21 November 2021, took a history that her symptoms are not consistent with PTSD or an aggravation, and the previous PTSD was no longer operative at the time of the altercation with her and the co-worker. He also recommended forensic psychological testing.
Comment: I took a history her post traumatic stress disorder has been aggravated and this aggravation has not ceased”.
The appellant alleged error in respect of the assessment of the PIRS categories of self care and personal hygiene.

PIRS Categories

The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
In Jenkins v Ambulance Service of NSW [2015] NSWSC 633 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.”

27. In Ferguson v State of New South Wales (2017) NSWSC 887 (Ferguson), Campbell J in dealing with whether there was error in the application of the categories and classes of the PIRS 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’.
The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales2. 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].”

In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“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…
70.    To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
71.    The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error…”
The Medical Assessor was required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Self care and personal hygiene

Clause 11.12 of the Guidelines for the evaluation of permanent impairment states:
"The examples of activities are examples only. The assessing psychiatrist should take account of the person's cultural background. Consider activities that are usual for the person's age, sex and cultural norms."
The examples under Table 11. 1 for “self care and personal hygiene” in the Guidelines are:
“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) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
The Medical Assessor assessed the appellant as class 2 for self care and personal hygiene. In the PIRS Rating Form, the Medical Assessor wrote:
“Self-care and personal hygiene - Class 2
Ms Tasevski said she only showers 1 to 2 times per\ week and eats 1 to 2 meals a day, and engages in intermittent fasting.
She does a small amount of shopping and cooking. She is capable of independent living without regular support, and does not need prompting with self-care.”
Under “Social activities/ADL” the Medical Assessor noted:
“Ms Tasevski's husband does most of the cooking and shopping and complains she does not do the washing up like she used to. She said she only goes to the shop when she has to, maybe every couple of weeks. She has been trying to manage her weight better and does intermittent fasting and avoids carbohydrates, but has not been successful. She said she only showers when she has to go out and averages once or twice a week only.”
The Medical Assessor made a diagnosis of chronic post-traumatic stress disorder and major depressive disorder.
Under the heading “Reasons for Assessment” the Medical Assessor wrote:
“In terms of self-care, Dr Allan rated 3 and noted that it is mainly Ms Tasevski's husband who does the cooking. She may assist him in doing basic things. Her husband generally does the shopping, she does it occasionally on her own. Her self-care is poor and she would shower at most twice a week. In my assessment, I took a history that she is independent and initiates all self-care activity without prompting. She is also engaged in intermittent fasting to lose weight, although without much success, and I rated it 2.”
In her submissions the appellant relied on the following paragraphs from her statement dated 15 August 2022:
“15. My husband does most of the cooking now. I may help him once per week with basic things. I have no motivation to attend to my self-care because it's not like I'm going anywhere. I shower at most around twice per week. My husband will also do most of the shopping and cleaning.
…
19. There is tension in my relationship because my husband does not fully understand my injury...”
In a report dated 13 August 2021, Dr Goran Stevans, treating psychiatrist, noted that the appellant said she tried to do some housework “but gets overwhelmed as she needs a rest. She isn’t motivated to do any cooking and her husband has been pressuring her to cook”.
Dr Allan, in a report dated 14 September 2021, noted that medications included Duromine. He noted that the appellant reported that Duromine had been commenced by her treating doctor, to assist with weight loss, but she clearly described a worsening effect on her sleep patterns which became increasingly disrupted when she has used it.
Dr Allan made a diagnosis of a major depressive disorder and post-traumatic stress disorder. He assessed the appellant as Class 3 for self care and personal hygiene providing the following reasons:
“Ms Tasevski reports that it is mainly her husband who does the cooking. She may assist him in cooking once per week doing what she describes as "basic things". She has no motivation to attend to this task. Otherwise, she reports her husband generally does the shopping but she is occasionally able to do this on her own and was doing it occasionally prior to current lockdown restrictions. Cleaning is carried out by her husband. Her selfcare is poor with her stating that she will shower at most around twice per week. She has no motivation to attend to personal care and states, "it's not like I'm going anywhere". She scores 3.”
Dr Roberts, in a report dated 21 November 2021, noted:
“When questioned as to whether she had any personal, domestic, financial, marital, sexual or other problems Mrs Tasevski stated that she fights with her husband; that he does not understand – she referred to fighting with him in regard to cooking and cleaning.”
Dr Roberts considered that a definitive diagnosis could not be arrived at and an assessment of permanent impairment could not be undertaken.
In a report dated 24 June 2022, Dr Roberts expressed the opinion that a previous diagnosis of post-traumatic stress disorder if assumed, had remitted and there was no evidence of a major depressive disorder.
The Earning Capacity Assessment Report by Ms Jemima Doley, psychological consultant and Mr Andrew Hook, vocational consultant, dated 16 November 2021 noted: “She reports difficulty completing housework. Her husband has taken over the majority of the housework which has placed strain on the marriage”.
The appellant submitted that the evidence was inconsistent with a finding that the appellant was independent in self care and did not need prompting with self care and/or hygiene. The appellant submitted that a Class 3 score would be more appropriate taking into account age, sex, culture and long term marital status.
The appellant in her statement said that her husband did most of the cooking and she may help him once per week with basic things. She stated that she had no motivation to attend to her self-care and showered at most around twice per week. Her husband also did most of the shopping and cleaning.
The Medical Assessor reported that the appellant might assist her husband in cooking but it was mainly her husband that did the cooking and he generally did the shopping. The Medical Assessor noted that the appellant occasionally did the shopping on her own. He noted that her self care was poor and she would shower at most twice a week.
The Medical Assessor considered, taking into account this history, that the appellant was independent and initiated all self-care without prompting. He also commented that she was engaged in intermittent fasting to lose weight.
The Medical Assessor noted that Dr Allan assessed the appellant as Class 3 for self care and personal hygiene and commented on Dr Allan’s assessment. The Medical Assessor was clearly aware that his assessment differed from that of Dr Allan and he provided clear reasons for the difference in assessment.
The Appeal Panel considered that the Medical Assessor was aware of the appellant’s age, sex, culture and long term marital status. The Medical Assessor noted that the appellant showered when going out. The appellant submitted that showering when going out amounted to the appellant being prompted to shower but the Appeal Panel considered that there was a distinction between being actually prompted to shower by another person and the appellant realising that she had to go out and showering before she went out.
The appellant submitted that her fasting and weight loss attempts were the result of her being prompted to lose weight by her doctors and were not evidence of her being able to undertake self care unprompted. The Appeal Panel considered that even though the appellant was advised by her doctors to lose weight, her fasting was still an indication that she was able to adhere to this advice independently.
The Appeal Panel considered that this was a case where the question of whether the findings fell into Class 2 or Class 3 for self care and personal hygiene amounted to a “difference of opinion about which reasonable minds may differ”. The Appeal Panel was not satisfied that the categorisation by the Medical Assessor was glaringly improbable, or that it had been demonstrated that the Medical Assessor was unaware of significant factual matters. There was no evidence of a clear misunderstanding and the reasoning process had been clearly expressed.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of Class 2 for self care and personal hygiene. The Appeal Panel was satisfied that the rating of Class 2 for self care and personal hygiene was not in error and the assessment was not made on the basis of incorrect criteria.
For these reasons, the Appeal Panel has determined that the MAC issued on
28 February 2023 should be confirmed.

[2023] NSWPICMP 218

23 May 2023