Tonkin v Secretary, Department of Education
[2024] NSWPICMP 117
•4 March 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tonkin v Secretary, Department of Education [2024] NSWPICMP 117 |
| APPELLANT: | Lisa Tonkin |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 4 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submitted that the Medical Assessor (MA) erred with respect to four of the categories in the Psychiatric Impairment Rating Scale, namely social and recreational activities, social functioning, concentration, persistence and pace and employability; Panel found no errors; the MA’s assessments were consistent with all the evidence; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 December 2023 Lisa Tonkin (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 6 November 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, 4th ed
1 March 2021 (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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal for reasons that will become apparent in due course.
In seeking a re-examination, the appellant submitted:
“When it comes to a re-examination, the Appeal Panel is urged to have a look at the cocktail of medication which the Worker takes including Quetiapine, which is an antipsychotic. The Appeal Panel is also asked to note that the Worker is on the maximum safe dosage of 200mgs for Zoloft (ie Sertraline). For details of her medication regime see [23] of her statement dated 24 July 2023…”
The Appeal Panel has noted this submission however, we do not think that it alters our view regarding any re-examination for reasons that will become apparent in the body of this determination.
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 with respect to four of the categories in the Psychiatric Impairment Rating Scale (PIRS) namely Social and recreational activities, social functioning, concentration, persistence and pace (cpp) and employability.
In reply, Secretary, Department of Education (the respondent) submits that no errors were made by the Medical Assessor in his assessment of the categories the subject of this appeal.
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 on 10 September 2021.
The MA set out the history he obtained as follows:
“Ms Tonkin joined the Department of Education in 1992, initially as a classroom teacher. She performed different work over time including the head teacher role, writing learning material, being an editor, and as an HSC strategy coordinator. She said that her substantive role was the head teacher in Distance Education in Ballina, and her last role was the HSC coordinator based in Sydney, which should have been a two-year contract. She last performed work in September 2021.
She reported that in November 2020, she became the HSC coordinator and was working from home, with very long hours, sometimes 16 hours a day, and she recalled it was horrendous. She then moved to Sydney in April 2021, but the Department would not pay for the move. She decided that if she was going to have a contract in Sydney for two and a half years, it would be financially viable and she paid for the move herself. She also felt that working in Sydney meant she would have more control over her work hours and workload. She reported that this was around the time of COVID lockdowns.
Ms Tonkin reported that she started feeling stressed due to her work in 2020 and felt that the way the management dealt with her was not fair. She stated she was targeted for being a single woman. She noted when she was in Ballina in 2020, she had an ergonomic desk that was broken and her ergonomic chair disappeared, and she was told had to do her stretches in the staff room, which was not appropriate.
She said that her psychological health significantly declined in early 2021 after she decided to move to Sydney, and by September 2021 she had had a nervous breakdown after a conference with the supervisor, where she felt further targeted. At that time, she stated she was asked to do a video call to a woman to apologise, even though she had never met the woman that she had to apologise to. She was the only one told to do it and she said that this was on top of everything else that had happened.
She submitted an injury notification and the acting director contacted her and offered support. She stated by that time, she had already requested support three or four times. The director advised Ms Tonkin, that she would talk to the manager to help Ms Tonkin. However, a week and a half later, she called and told Ms Tonkin that there was no more funding for her position and her contract would not be extended. Ms Tonkin said she realised that this was simply not possible because there were two people in the same position, but only her contract was not extended and there was no consultation involved.
Ms Tonkin stopped working, and then in October 2020 she was certified fit for two days per week, however, she said they kept changing the OH&S person and the department never offered her any work. A couple of months ago, they had another case conference and told her there was nothing available in the entire Department for her. Her GP therefore changed her capacity to having no work capacity in the last two months.”
Present treatment was noted as:
“Ms Tonkin is taking:
• Sertraline 200 mg
• Quetiapine 75 mg
• Panadeine forte as needed for pain
• Lyrica as needed for pain
She has never consulted a psychiatrist.
She has been consulting Dean Harrison, psychologist for around 2 years, since she ceased work.”
Present symptoms were described as follows:
“Ms Tonkin reported that she feels stuck and the Department will not give her suitable duties, even though she feels she can work. We discussed the potential work options and about working in the private sector. She said she does not believe in private education and will only consider work in the public sector. She said that she can do work such as writing, design work and online work, and work from home initially, and once she builds up her confidence, she could do other work, interacting with people as well.
She reported having chronic fluctuating and depressed moods. She has reduced enjoyment and motivation. She described having reduced concentration and memory overall. She felt she had lost confidence. She lost 14kg with stress, and reported her weight has not changed since Dr Martin Allan’s IME assessment (he noted she lost 14kg). She reported having chronic sleep difficulties and does not have nightmares. She feels anxious. She reported having a low tolerance for frustration and is not angry. She has reduced social activities.”
When asked to provide “Details of any previous or subsequent accidents, injuries or condition” the MA said:
“In terms of past psychiatric history, she reported that she suffered a back injury in 2007 at work and the return to work was hampered by the head teacher. She continued to suffer from L3-4, L4-5 and L5-S1 disc bulging problems and she has hypermobility. She said because of the back injury, she developed depression and anxiety and has had several aggravations of her back causing several episodes of depression. She said she had no psychiatric problems before the physical injury in 2007.
She said in 2009, she was in Bali and her boat was hit by another boat. She was comatose and had her spleen removed, and there was no psychiatric problem arising from that.
She said she took some antidepressants and saw Mr Du Sautoy, Psychologist, in 2011 and had no further treatment since then until this current episode.
She said that between 2011 and 2018, she was very happy and had lots of friends and a couple of partners over time. There was a long-term relationship between 2011 and 2014. After they separated they remained good friends. Her next partner was when she was in Sydney between 2016 and 2018. She said that when she moved back to Ballina in 2018, that relationship ended and it was a mutual decision, because he came from a different culture and was expected to have a baby, but because she could not have a child, they decided to separate. She also said that was not really a long-term relationship. She has not had another partner since.
She gave me the history that she had given Dr Allan, that between 2011 and 2019 when the work stress started, there was no further psychiatric problem and she did not have any treatment during that time.
I discussed with Ms Tonkin, that her file indicated several other episodes, including in 2015, 2016 and then 2019, and that in 2016 she was given olanzapine and Risperdal, as well as antidepressants. She attributed this to her back injury and feeling angry and frustrated. She said that all the treatment came from Dr Kelly, her GP.
I also noted to her, she was treated for depression before 2007 as well
There is no subsequent psychological injury identified…”
The MA then turned to consider the impact of Ms Tonkin’s injury on her social activities and her activities of daily living (ADL’s) and said:
“Ms Tonkin normally lives on her own in an apartment. She has no dependents. Currently, she is living in a hotel on the Gold Coast because her mother has gone into palliative care and she is temporarily there to provide more support.
She normally had many friends, around 10 people, but over time she has lost some friends and only has contact with about six people, and regular contact with three or four people, mostly by text.
She reported taking walks with one friend in recent times. She has two other close friends who are travelling around Australia, and so they have not been meeting up. She said she probably meets up with her close friends once every few months.
Ms Tonkin does not go to any large parties and finds it hard to talk to strangers, but she will go out to eat with her friends at restaurants.
In terms of her usual hobbies, she said that she is quite happy doing things by herself and being single. She would go to a local Mexican restaurant, eat a meal and read a book by herself, or would go to restaurants with her friends. More recently, she prefers to go to a café and sometimes she will read there by herself but does not like people talking to her there. She will watch a movie in a cinema on her own, particularly when there is a special with cheap tickets and she may go once a month when there is a good movie on.
She said she does not want to do too many things in one week, for example she caught up with her mother and then went out to dinner with her father at a club, and she felt it was too much and it was overwhelming, because it happened all in the same week.
Ms Tonkin spoke about not having done her taxes for several years and has been working through it and her ex-partner helped. She said she recently finished her taxes for 2021/2022/2023 and she has caught up on her taxes. She used spreadsheets and checked her calendar and her credit card statements and receipts, and gave all the required information to the taxation office. She said that in early October 2023, ie a couple of weeks ago, she would spend a few hours every day over several days to do her taxes, and sometimes with her ex-partner's help. She said she is very particular and has to make sure that all the dates and the receipts are right.
Ms Tonkin reported that it took a long time before she had finished her teaching accreditation and she submitted all requirements in late 2022.
She reads books or listens to audiobooks. She said she has to reread and finds it easier to rewind on the audiobooks. In recent times, she finished a book which should only take six hours, but it took her 11 hours, or around twice as long. She said that when she reads, she can read for a few hours.
She said that yesterday, she went to her mother's place to do her laundry and then saw her mother in the hospital, and her mother is having an ACAT (Aged care) assessment. She went to a psychologist appointment and watched television. When Ms Tonkin was living in her own apartment, she often would buy takeaway food because she is close to Chinatown with many options.
She said that she is well, normally she likes to eat out, either by herself or with her friends and likes walking as well.”
Findings on examination were reported as follows:
“Ms Tonkin was assessed by video. She was in her hotel room during the assessment. I assessed her from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the assessment. The assessment took 1 hour 15 minutes.
Ms Tonkin had long light-coloured hair and was generally talkative and gestured frequently. There was no psychomotor slowing. She was not restricted in her affect range and reactivity. She smiled and laughed intermittently. She spoke spontaneously and tends to give long answers. She was not thought disordered.
Ms Tonkin gave a clear history and provided clarification. She was consistently focused throughout the assessment. She spoke fast at times and was easy to interrupt. At the end of the assessment, I asked Ms Tonkin for additional information that she thought may be relevant and she discussed the department did not fulfil their duty of care to her.”
The MA then summarised the injuries and diagnoses as follows:
“Ms Tonkin has a past psychiatric history and then suffered a back injury from work. She developed an aggravation of her anxiety and depressive symptoms as a result of her back injury and has had several aggravations over the years. She described significant work stress from 2021 and suffered a further psychological decline. She has had regular psychologist since she ceased working, and her psychological injury has improved and stabilized. Her symptoms are consistent with recurrent Major depressive disorder with anxieties.”
He added: “Ms Tonkin's provided history, especially related to her past psychiatric history, is not consistent with her treatment records and I have discussed these with her.”
The MA assessed 7% WPI from which he deducted one-tenth for Ms Tonkin’s pre-existing condition, but added 1% for the effects of treatment, leaving a total WPI of 7%.
He then turned to consider the other medical opinions and documents before him and said:
“Ms Tonkin's statement noted a prior history of mental health treatment following a back injury in 2007. She currently has a reduced capacity for two days per week in an admin project role. She discussed problems with poor appetite and missing meals and not putting on the weight she had previously lost. Normally, she was very organised and now she is withdrawn and isolated and has exciting attacks. She flew to Ballina and worried about running into people she knows. She tried to take walks daily and does her shopping. She finds reading and comprehension difficult and loses focus and is several years behind in her taxes. She discussed Dr Clayton Smith's report, who recommended a psychiatrist. She said that she does not want to see a psychiatrist and she learned that she could not be made to see a psychiatrist she did not want to see .
Dr Martin Allan, IME psychiatrist reported on 14 October 2022, noted that due to workplace problems Ms Tonkin had developed depression and anxiety and had been single since 2019. She has suffered psychological and physical health problems since 2007 with no treatment between 2011 and 2019 (Comment: the history he took, is inconsistent with her treating team's records). She experienced undermining, micromanagement, excessive tasks and long work hours and had no work capacity since September 2021. It appears she had a pre-existing major depressive disorder that resolved, but was exacerbated by work from 2019 onwards, and he did not make a deduction. Work was the main contributing factor. He provided a WPI and the ratings came to 19%.
Mr Du Sautoy, psychologist reported on 12 March 2011, noted bullying and harassment and workplace problems from 2007 and in 2010 with a grand mal seizure at work and development of a major depressive disorder due to bullying and harassment.
Dr Smail, GP records noted 5 May 2023, noted background of depression and anxiety, worsened by work trouble.
GP records from Dr Kelly noted:
• 26 May 2021, having regular consultations for pain management, intermittent opioid prescription as well. There was an entry relating to work stress.
• 28 July 2020, a long discussion about workplace problem.
• 5 March 2020, hyperactivity, long-term insomnia has had it all her life, probably would have been diagnosed with ADHD if she was born 20 years earlier (comment: she has never been diagnosed with ADHD), not manic, suggested psychiatric review and referred to Dr Spencer Duke. Prescribed Seroquel. Reason for contact was hyperactivity disorder. Also given Valium and Endone.
• 2 December 2019, noted pain exacerbated by stress and work-related stressors.
• 4 July 2019, further stress at work. Being prescribed Lexapro at this point.
• 24 November 2015, noted difficulty with principal and workload, prescribed risperidone, olanzapine ceased.
• 20 October 2015, low dose olanzapine, sleeps better, less overwhelmed, more in control.
• 3 June 2015, episodes of depression, not coping, compounding back chronic pain, but no treatment written.
• 18 June 2009, chronic condition, chronic back pain, splenectomy, depression.
• 27 April 2009, involved in a boating accident in Bali with ruptured spleen and liver injury.
• 6 April 2009, exacerbation of low back pain, doing household chores, better mentally, and less depression. Seeing Michael Du Sautoy, psychologist.
• 18 December 2007, feeling a bit better since increasing the antidepressant and school is out.
• 29 November 2007, has seen a psychologist.
• 10 March 2006, Luvox, antidepressant but no reason given.
• 7 May 2006, Aropax, antidepressant.
• 22 June 2006, Avanza, antidepressant.
• 30 July 2002, rheumatoid arthritis.
Handwritten notes from psychologist, noted a family history, mother very critical, dad remarried with new wife. The patient has to take care of the household from a young age as a child. Family pressure to take over responsibility.
Dr Clayton Smith, IME psychiatrist provided a report dated 15 February 2022, noted issues in September 2021 at work. She was eating normally and attends to basic self-care. Saw a friend two weeks ago and goes to a café by herself to read a book. She started reading again. She was in a bad boat accident in Bali and had a work-related back injury in 2007 and later treated for depression. A nephew has OCD and social anxiety, there was no developmental trauma.
Dr Smith, 11 April 2023, noted Ms Tonkin was isolating herself, supposed to organise a party for her mother who turned 80, but could not do it. She does not enjoy being around people. She had contact with ex-partner as required and has about 10 friends that she will answer texts or phone calls, but less frequent over time. Her father took her out for her birthday and he stayed for two nights and they went to dinner at a pub the first night. Ms Tonkin watched the first episode of series and listens to audiobooks but was not reading or dating at that point. She enjoyed going to the movies, swimming and he said she had not reached MMI and had suffered a major depressive disorder.
Dr Smith, 3 September 2023, advised Ms Tonkin had reached MMI and provided a WPI which came to 17%. He had deducted one tenth for a pre-existing condition and one tenth for the effects of chronic pain, which came to 13%.
In terms of the WPI rating, Dr Smith and Dr Martin Allan both rated social recreation as a 3. In my assessment, I noted that some friends are quite far away. She still takes walks with a friend and enjoys going on social activities, and enjoys some solitary recreational activities, going to the cinema, reading at a café or a restaurant, and she enjoys eating out with her family and friends, but does not go to large social gatherings. She goes out to occasional activities rather than rarely, and does not need prompting or a support person, therefore, I rated a 2.
In terms of social functioning, Dr Allan rated a 4 and Dr Smith rated a 2. Dr Allan advised that Ms Tonkin had a relationship in 2019 and had moved to Ballina and that relationship broke up. I noted the relationship ended but this is unrelated to her psychiatric injury and in my assessment, she gave a similar history that they had separated by mutual agreement over having children. She maintains a good relationship with an ex-partner and maintains several friendships and has a good relationship with the family and therefore I rated a 2.
In terms of concentration, persistence and pace, Dr Allan and Dr Smith both rated a 3. She has clearly improved because she caught up on her taxes with her ex-partner's help. She completed her accreditation on her own. She is reading books for a few hours at a time now, but not every day, and listens to audiobooks. This is not consistent with 3, and is consistent with 2.
I also assessed her work capacity as greater, as she has been certified as having some work capacity until recently and she wants to work, and believes she could work with some modifications, and she has improved with treatment.
In terms of pre-existing injury contribution, Ms Tonkin has a history of being treated with antidepressants and having depression before her first back injury in 2007 from her work, and she has had several aggravations and work stress from 2020 caused further mental health decline, and therefore I deducted one-tenth.
Ms Tonkin's pre-existing condition contributed to her current impairment, because she has the same psychological condition and took similar antidepressants, not long before her first work injury and back injury, causing recurrent Major depressive disorder since then.”
Discussion
Dealing firstly with the category of Social and recreational activities, the appellant submits as follows:
(a) the appellant’s statement dated 24 July 2023 sets out details of her limited social and recreational activities.
(b) The appellant’s statement is a crucial document in all proceedings in the Personal Injury Commission. Not only is it the appellant’s direct written version of events, but it is also her evidence. It is the version she has adopted as evidenced by her signature. It is the main version she is subject to cross-examination on. Statements are also important because they are not subject to misinterpretation by third parties, for example, medical practitioners. The statement is the unadulterated version of events agreed to by the worker.
(c) Dr Martin Allan assessed the appellant in October 2022… He said:
“She reports no social life. She speaks to only a small group of people and sees family members. She avoids any group activities. She will go walking on her own. She is avoidant and reclusive in a general sense. She avoids taking phone calls when people try to contact her.”
(d) When Dr Clayton Smith addressed the PIRS Table on 3 September 2023, he recorded the following in this PIRS Category:
“Ms Tonkin rarely goes to social events. She is socially withdrawn. She socializes with her immediate family occasionally. She has solitary recreational activities. She swims regularly in the apartment complex and was going to the movies alone once or twice a month.”
(e) Quite clearly the appellant has become a loner since the injury. The history from [12]-[16] of the appellant’s statement dated 24 July 2023 is clearly consistent with a Class 3 rating for this PIRS Category. Indeed both Dr Martin Allan and Dr Clayton Smith rated the appellant as being a Class 3 for this category.
(f) Clearly the appellant is doing almost all outside activities by herself. Dr Hong himself took a history that the appellant felt overwhelmed by catching up separately with her own mother and own father in the space of one week. This is the picture of someone who is moderately and not mildly socially impaired.
(g) If Dr Hong was concerned about any inconsistency between his own history and the history in the appellant’s statement…then he ought to have put his concerns to her and afforded her the opportunity to respond during the interview. The failure by Dr Hong to follow this course gives rise to a denial of procedural fairness… a denial of procedural fairness gives rise to an error of law.
Chapter 1.6 of the Guidelines provides: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment…” (our emphasis).
The appellant’s statement is of course a relevant document, but the Guidelines make it clear that the assessment is made on the basis of the history and other evidence obtained on the day of the assessment.
Moreover, it is not open to the appellant to complain about facts recorded by the MA, which are presumed to have been correct. Alleged errors in the history taken by the MA are not a proper basis for an appeal and do not found an incorrect criteria or demonstrable error. (Lukasevic v Coates Hire Operations PtyLimited [2011] NSWCA 112; Petrovic v BC Serv No 14 Pty Limited and Ors [2007] NSWSC.)
In making a Class 2 rating, the MA said: “She has occasional social and recreational activities which she does on her own and with people. She actively engages in recreational activities. She does not need a support person or prompting because she initiates and goes on her own.”
The MA conducted a thorough assessment, and explained why he disagreed with the assessments made by Drs Allan and Smith.
He also discussed with the appellant inconsistencies he noted, contrary to the appellant’s submission.
The history he obtained and his findings on assessment are entirely consistent with a Class 2 rating.
It is perhaps timely at this point to set out the task of an Appeal Panel as stated in 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’ (our emphasis).
[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’…”
In our view, there is nothing “glaringly improbable” about the MA’s assessment, nor is his reasoning process flawed.
For these reasons, we cannot see any error by the MA in respect of this category.
Turning next to the category of social functioning, the appellant submits as follows:
(a) Dr Martin Allan gave a rating of 4 while Dr Clayton Smith and Dr Hong gave a rating of 2 for this PIRS Category. Dr Martin Allan did not have the benefit of the appellant’s statement dated 24 July 2023 but Dr Clayton Smith and Dr Hong did.
(b) The appellant’s statement dated 24 July 2023 has important things to say about this aspect of her daily function. For example, at [16] she says:
“I feel pressured to engage with family but prefer to remain isolated, avoiding many social events. My relationships with family and close friends have become strained and I have lost many friendships and collegial relationships due to my isolation and inability to communicate.”
(c) Dr Hong did not take this crucial evidence into account. In particular, the part where the appellant says that her relationships with family and close friends have become strained is very important evidence from the appellant.
(d) It is trite law that a failure to take into account a relevant consideration gives rise to an error of law. Accordingly, the MAC must be quashed for this reason alone and the appellant must be re-examined so that the appellant’s evidence can properly be taken into account.
(e) A factor which Dr Martin Allan took into account which Dr Hong did not take into account is the appellant’s inability to form or maintain new relationships. This is an important consideration.
(f) It is respectfully submitted that all three Medical Assessors got it wrong and that Class 3 is the best fit
In assessing a Class 2 rating, the MA said: “She is anxious and [has] lost some friends. She has maintained a few long- term friendships. She has not lost a partnership as a result of psychological injury. The relationship with her general family is good and they are close.”
The MA further explained why his rating of 2 differed from Dr Allan at page 9 of the MAC noting that he had obtained a history from the appellant that the cause of her relationship ending was unrelated to her psychiatric injury and they had separated by mutual agreement over having children. He said: “She maintains a good relationship with an ex-partner and maintains several friendships and has a good relationship with the family.”
It is noted that Dr Smith also rated a Class 2 and said:
“Her social functioning is more consistent with a class 2, mild impairment. She has maintained enduring relationships with her immediate family. She flew to Queensland, collected her mother and drove her to Noosaville, spending the weekend in an apartment with her family. She visited family on the Central Coast. Her father recently visited, and although she resented his presence at times, the relationship is enduring.”
Although not bound by the opinions of other doctors, Dr Smith’s comments nonetheless also form part of the evidence before the MA which he clearly noted.
We repeat our earlier comments about the task of an MA.
Again, in our view, the MA’s assessment was consistent with the history he obtained and his findings on examination, and we cannot see any error he made with respect to this category.
Turning next to the category of cpp the appellant submits:
(a) Applying the correct criteria the PIRS assessment for cpp ought to have been assessed as “moderate” class 3 under the Guidelines.
(b) The appellant tells us at [11] of her statement dated 24 July 2023:
“I used to be very organised and efficient but now simple tasks can take me a long time to complete. I am very easily distracted and forget what I’m doing. Writing emails or other tasks take forever. I don’t know where the time goes. I used to tidy up every night before bed, change my bedding weekly and iron regularly. I now pay much less attention to tiding, cleaning and laundry – often forgetting how long since I changed bedding or towels.
Often, I find reading and comprehending difficult as I lose focus. I have tried using audiobooks or podcasts instead as it’s easier to replay sections than to find the place in a book where I lost focus. I still need to repeatedly replay sections of audio as I struggle to follow the story or discussion. I have been told that I ramble in my speech and that I don’t directly answer questions. I easily get confused and struggle to respond to questions asked orally.
I am now several years behind on my tax returns for the Australian Tax Office (ATO). I struggle to keep track of my expenses. I have missed credit card bills, other bills and also paid bills twice. My ex-partner has set up direct debits to avoid this…”
(c) Dr Hong makes only passing reference to the important content of the above paragraphs.
(d) Unfortunately, Dr Hong also overlooked a crucial piece of evidence which is found on p 7 of Dr Clayton Smith’s report dated 11 April 2023 where he says: “Ms Tonkin overestimates, not underestimates, her capacity”. Dr Clayton Smith had the insight to see through some of the appellant’s overconfidence in her abilities. Regrettably, Dr Hong has become caught up in Ms Tonkin’s overconfidence.
(e) The MA has overlooked crucial evidence. Had he considered that evidence, he might well have come to a different conclusion… the appellant is entitled to [know the] actual path of reasoning.
(f) The MA ought to have discussed her statement with her.
(g) The appellant is on a cocktail of medications.
Once again, the appellant’s submissions focus on the contents of her statement.
We again repeat our earlier comments regarding the task of an MA, in particular Chapter 1.6 of the Guidelines.
It is clear from the information obtained by the MA at the time of his assessment that Ms Tonkin had improved significantly since her statement was made.
For example, the MA noted:
“She has clearly improved because she caught up on her taxes with her ex-partner’s help. She completed her accreditation on her own. She is reading books for a few hours at a time now, but not every day, and listens to audio books. This is not consistent with 3, and is consistent with 2.”
In addition, as the respondent points out:
“There is also evidence within the supporting documents consistent with the MA’s class 2 impairment as follows:
(a) ARD page 293 clinical records Dr Au: ‘Sorted out her mother’s property purchase.’
(b) ARD page 298 clinical records Dr Au: ‘Thinking of new projects she to test her own function - non work project given dept is not agreeing to a partial return to work….Has read the new syllabus for history - Realised she is not digesting the info as easily as she previously would have - Will explore these gaps in her thing [sic] /process – ie, probing limits of her mental capacity.
(c) ARD page 278 clinical records Dr Au: ‘Going Malaysia’
(d) ARD page 278, 279 clinical records Dr Au: ‘Catch up of events over Christmas/End of yr.1. Feeling better whilst away and was anxiety free by end of holiday but had a panic attack writing occupation card on flight. …’
(e) Reply page 30 Dr Clayton Smith - ‘She can enjoy going to a movie, which is distracting. She can enjoy walking, listening to an audiobook, swimming and practising mindfulness.’”
The observation by Dr Smith that the appellant “overestimates, not underestimates, her capacity” was no more than that, and undoubtedly reflected his assessment at the time of his consultation.
As we said, since then the appellant has undertaken a number of activities which we consider are consistent with the Class 2 rating assigned by the MA, and we see no error in respect of this category.
Finally, turning to the category of Employability, the MA assessed a Class 4 rating and said:
“Ms Tonkin wants to work and is frustrated no work has been offered. She can perform a low stress role, less than 20 hours per fortnight with erratic attendance and pace.”
At page 2 of the MAC, the MA reported:
“Ms Tonkin stopped working, then in October 2020 she was certified fit for two days per week, however, she said they kept changing the OH&S person and the department never offered her any work. A couple of months ago, they had another case conference and told her there was nothing available in the entire Department for her. Her GP therefore changed her capacity to having no work capacity in the last two months.”
When noting present symptoms, the MA said:
“Ms Tonkin reported that she feels stuck and the Department will not give her suitable duties even though she feels she can work. We discussed the potential work options and about working in the private sector. She said that she does not believe in private education and will only consider work in the public sector. She said that she can do work such as writing, design work and online work, and work from home initially, and once she builds up her confidence, she could do other work, interaction with people as well.”
As the respondent correctly points out:
“An explanation was provided as to why the appellant’s certificate of capacity was changed to having no capacity for work which was that the department was unable to offer any suitable duties, not because the appellant’s capacity had altered, particularly as she had been certified by her doctor as being fit for suitable duties since October 2020.”
The appellant once again focusses on the medical evidence in support of a higher rating, in particular the report of Dr Clayton-Smith who assessed a Class 5 in this category.
The MA clearly explained why he disagreed with that assessment and said:
“I also assessed her work capacity as greater, as she has been certified as having some work capacity until recently and she wants to work, and believes she could work with some modifications, and she has improved with treatment.”
Mere disagreement with the MA’s assessment is not a proper basis for appeal. See (Mahenthirarasa v State Rail Authority of NSW [2007] NSWSC 22).
In this case, the appellant simply complains that the MA’s assessments in various categories should have been higher based on various (and competing) reports to suit her argument.
In respect of the “cocktail of medications” the appellant constantly references, the MA clearly noted this and indeed, added 1% to his total WPI assessment to reflect that. The appellant’s submission that this medication somehow impairs Ms Tonkin’s functioning is simply not borne out by the evidence.
The MA’s assessment was both thorough and detailed, and consistent with his findings on the day of his examination. He clearly explained his path of reasoning as is required of him.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 November 2023 should be confirmed.
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