Wallington v Macquarie University Hospital
[2023] NSWPICMP 24
•27 January 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Wallington v Macquarie University Hospital [2023] NSWPICMP 24 |
| APPELLANT: | Kathleen Wallington |
| RESPONDENT: | Macquarie University Hospital |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 27 January 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Psychological injury; Medical Assessor’s use of documents in file; Bojko v ICM Property Service discussed; assessment in Psychiatric Impairment Rating Scale (PIRS) categories; Ferguson v State of NSW, Parker v Select Civil considered; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 October 2022 Kathleen Wallington lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Lam-Po-Tang, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 September 2022.
Ms Wallington 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, and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(d). We conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Dispute Assessment Guidelines 2018 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 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Wallington was employed by Macquarie University Hospital (the Hospital) as an administrative officer. She developed a psychological injury which is deemed to have been suffered on 18 September 2017.
The Medical Assessor assessed 9% whole person impairment (WPI) as a result of the injury. Ms Wallington disputes that he applied the Guidelines correctly in his assessment of four of the categories in the Psychiatric Impairment Rating Scale (PIRS). The Medical Assessor assessed Ms Wallington in Class 2 for Self-Care and Personal Hygiene, Class 2 for Social and Recreational Activities, Class 1 for Travel and Class 2 for Concentration, Persistence and Pace.
Ms Wallington does not dispute the Medical Assessor’s assessments of Class 4 for Social Functioning and Class 5 for Employability.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, we determined that it was not necessary for Ms Wallington to undergo a further medical examination because there is sufficient material in the file to determine the appeal.
EVIDENCE
We have all of the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC 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 we have considered them.
In summary, and in submissions prepared by her solicitor, Ms Bowrey, Ms Wallington submitted that the Medical Assessor had erred in his assessment of Self-Care and Personal Hygiene, Social and Recreational Activities, Travel and Concentration, Persistence and Pace.
With respect to Self-Care and Personal Hygiene, Ms Wallington submitted that the Medical Assessor failed to take into account relevant considerations including suicidal ideation and “self-starvation”. She said that the Medical Assessor failed to inquire about the contradictions between the history he took and the evidence in her statement. She said that failure was both a demonstrable error, in that a failure to afford procedural fairness was a breach of the relevant Code of Conduct, and the failure to consider suicidal ideation and self-starvation as relevant criteria for self-care constituted the application of incorrect criteria.
Ms Wallington said that the Medical Assessor erred in his assessment of Social and Recreational Activities because he did not consider the changes in her activities after the injury in assessing her impairment as mild. She said that he did not consider her statement and failed to ask relevant questions.
With respect to travel, Ms Wallington said that her behaviour in walking long distances was unusual and that she explained in her statement that she did it to avoid the train and to get to places she needed to go without encountering the public. She said that her “unusual behaviour is provided as reason for rating her functioning … as normal.” She said that the Medical Assessor had not disclosed his reasoning for considering that walking long distances was attributable to normal variation in the general population.
Ms Wallington also said that the Medical Assessor failed to provide any reasons for assessing a mild impairment in Concentration, Persistence and Pace and failed to ask her about matters set out in her statement.
In reply, the Hospital submitted that the Medical Assessor had taken a detailed history regarding Ms Wallington’s eating habits and that focussing on only one of the examples in Table 11.1 was insufficient to disclose error, noting that the descriptors in each class are a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected, citing Ferguson v State of New South Wales[1] (Ferguson).
[1] [2017] NSWSC 887, [25].
The Hospital said that the Medical Assessor was required to assess Ms Wallington at the time of the assessment and that there was no specific obligation to compare her functioning with her pre-injury functioning, again citing Ferguson.[2] The Hospital said that the Medical Assessor had appropriately assessed Ms Wallington’s withdrawal from social groups in the appropriate category of Social Functioning.
[2] At [24].
With respect to Travel, the Hospital said that the Medical Assessor’s assessment was appropriate because of Ms Wallington’s ability to travel interstate by herself. The Medical Assessor’s finding that Ms Wallington was able to plan those trips was consistent with a mild impairment for Concentration, Persistence and Pace and that the Medical Assessor balanced her self-reporting with her ability to maintain a Facebook account, use email and the internet and manager her finances.
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[3] the Court of Appeal held that an 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.
[3] [2006] NSWCA 284.
Paragraph 11.12 of the Guidelines describes the application of the PIRS:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
The important part of the description of each class in the PIRS is the level of impairment – eg no deficit, mild impairment, moderate impairment. What follows in each class are examples which demonstrate the level of impairment[4].
[4] Jenkins v Ambulance Service of NSW [2015] NSWSC 633 at [65].
In Ferguson Campbell J said[5]:
“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 Wales [2015] NSWSC 633. 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’…”
[5] At [24] – [25].
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Ltd (Parker) and said[6]:
“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.
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 material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
[6] [2018] NSWSC 140 at [70]-[71].
Medical history
Ms Wallington prepared a statement dated 4 July 2022 with the assistance of her solicitor and structured it by reference to the PIRS, providing information she considered appropriate for assessment under each of the Tables. The statement contains little information about the history of the injury and her subsequent treatment.
There is limited information in the file about Ms Wallington’s treatment. The documents which are in the file show that Ms Wallington first suffered symptoms of her injury in 2013 and was admitted to Northside Clinic between 25 June and 6 July 2013. She was admitted for assessment of anxiety and depression on a background of chronic pain. She began to consult her psychologist, Mr Kearney, during that admission.
The second hospital admission was to Wesley Hospital between 20 September and 7 October 2017 for anxiety and depression as a result of workplace difficulties. Dr George noted in the discharge summary that Ms Wallington had coped maladaptively by increasing her alcohol intake since April 2016 but had voluntarily reduced her alcohol intake since
May 2017.The reports from both of those admissions reveal that Ms Wallington was reluctant to take medication.
Ms Wallington was admitted to Northside Clinic again between 28 November 2018 and 5 December 2018 with a principal diagnosis of alcohol use disorder. She was admitted for detoxification and rehabilitation to achieve abstinence. The discharge summary noted that she had had multiple falls and fractures in the past and that she was wearing a sling as a result of a recent fracture after a fall during a long run. Ms Wallington was discharged against medical advice.
Ms Wallington was admitted to Wesley Hospital again between 4 and 7 February 2019 with a principal diagnosis of alcohol use disorder and an associated diagnosis of generalised anxiety disorder. She decided to terminate her admission against medical advice and again was reluctant to take medication.
Ms Wallington’s most recent admission was to Northside Clinic between 22 May and
11 June 2020 under the care of Prof Mitchell. She was diagnosed with depression and anxiety and co-morbid alcohol use disorder, which was in sustained admission.There are few reports from Ms Wallington’s treating practitioners in the file and there is no report from her current psychiatrist, Dr Green.
She was assessed by Dr Takyar on 15 April 2020 and 24 February 2021 at the request of her solicitor. Ms Wallington saw Dr Bisht on behalf of the Hospital who reported on 15 October 2020, 30 September and 26 October 2021.
Assessment using the PIRS
When examining Ms Wallington and preparing his report, the Medical Assessor was required to use his clinical judgement in determining a diagnosis and making an assessment.[7] He was required to assess her as she presented on the day of the examination[8]. Many of the examples cited by Ms Wallington in her submissions occurred in the past and were therefore not relevant to his consideration.
[7] Guidelines paragraph 1.6b.
[8] Guidelines paragraph 1.6.
A demonstrable error is an error which is readily apparent from the examination of the MAC[9].
[9] Merza v Registrar of the Workers Compensation Commission [2006] NSWSC 939 at [39].
In essence, Ms Wallington submitted that the Medical Assessor made a demonstrable error in the assessment of several of the PIRS categories because he did not specifically contrast the history he obtained with the material in her statement and ask her about the differences. She did not nominate the assessments which should have been made.
A failure to give reasons would be a demonstrable error but we do not accept that the Medical Assessor made that error, as Ms Wallington submitted. He took a detailed and chronological history of the injury and treatment. He described Ms Wallington’s symptoms and her medical history and recorded her social activities and activities of daily living at length. He described the findings of the mental state examination that he undertook and made a diagnosis. The PIRS rating form requires the Medical Assessor to explain why he made each assessment – the relevant column is headed “Reason for Decision”. He did so in summary on that form, extracting from the history set out in the MAC the factors which were most important to the rating given.
At the beginning of the MAC the Medical Assessor listed the documents which had been provided and when setting out his assessment he said:
“In making that assessment I have taken account of the following matters:-
- The history obtained on interview
- Findings on examination
- Information from supplied documents
- A specialist understanding of the nature of the diagnosed condition.”
The presumption of regularity applied to the Medical Assessor as an administrative decision maker[10] so that it is generally to be presumed that the Medical Assessor has done everything necessary in order to make his decision including considering all of the material in the file. There was no need for the Medical Assessor to specifically say that he had considered Ms Wallington’s statement when he said that he had taken account of the documents provided to him.
[10] Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [39].
The Medical Assessor’s description of his mental state examination does not suggest that he had difficulty communicating with Ms Wallington. He said:
“… She wore a mask throughout the interview, which she attended in person. She made good eye contact. No psychomotor agitation or retardation was noted. It was not possible to observe the presence of lanugo hair due to the face mask. She answered most questions.
Ms Wallington’s speech was spontaneous and fluent, with normal volume, rate and rhythm. There were occasional pauses prior to answering questions, and during response to the same. Her affect was restricted and she did not smile, and on a couple of occasions in the interview became tearful, when talking about her situation and work related matters. Her affect was congruent with subject matter. Her mood was dysphoric and anxious. Objectively she was not irritable, elevated or apathetic in mood. Her thought form was logical and sequential with no formal thought disorder. She reported to regular suicidal ideation. She also reported thoughts of hopelessness and guilt. She was alert and oriented with no fluctuation in level of consciousness. She was not drowsy.”
The Medical Assessor Code of Conduct required the Medical Assessor to abide by the principles of procedural fairness including:
“● ensuring the injured person is given an opportunity to provide a history in relation to the injury and any subsequent condition;
· ensuring that the injured person is presented with any inconsistencies noted in supporting material or observed in the course of an examination, and is provided with an opportunity to explain those inconsistencies before drawing any conclusions…”
We do not accept Ms Wallington’s submission that obligation required the Medical Assessor to specifically ask her about each of the matters raised in her own statement which were different from the history he obtained on the day of his examination. We have quoted from the MAC at length to highlight the level of detail recorded by the Medical Assessor.
We have examined the specific arguments made in respect of each of the impugned categories below.
Self-Care and Personal Hygiene
The Medical Assessor assessed Ms Wallington in Class 2 under Table 11.1 and said:
“Ms Wallington has lived independently for many years and continues to do so. She does not require external assistance to live independently.
Ms Wallington consistently misses meals. She reported attending to many activities of personal hygiene less than daily.”
Dr Takyar assessed Ms Wallington in Class 3 under Table 11.1. His assessment was made about 19 months before the date of the MAC. The Medical Assessor noted that the passage of time may account for the difference between Dr Takyar’s assessment and his own. Dr Bisht assessed Ms Wallington in Class 2 when he assessed her roughly a year before the Medical Assessor’s examination.
The examples for Class 2 in the Table are:
“Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.”
The examples for Class 3 are:
“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.”
Ms Wallington argued that the Medical Assessor should have considered self-starvation and frequent suicidal ideation under Table 11.1 and that the Medical Assessor applied incorrect criteria by failing to regard those matters as relevant. She does not nominate the assessment she says should have been made.
We do not agree that the Medical Assessor applied incorrect criteria in making in that assessment. He evaluated the evidence in accordance with the appropriate parts of the PIRS and the Guidelines[11]. He considered Ms Wallington’s weight and dietary habits in the context of Self-Care and recorded her history in detail. He said:
“Ms Wallington estimated her weight in 2021 at 43 kg. She believed she weighed 45 kg when hospitalised in June 2020. She estimated her height at 5ft 4 (162.5cm). Using the higher weight, this generates a body mass index (BMI) of 16.3 kg/m2. Ms Wallington denied believing herself to be overweight. She denied deliberately attempting to lose weight.”
And:
“Ms Wallington stated she attended to bathing every second day. She changes her clothes variably, but less than daily, commenting ‘If I'm going to Northside Clinic I'd like to look clean’ but during the week she may wear the same clothes. Her food intake is highly restricted, as noted. She last had her hair done in late 2021. She reported attendance to dental hygiene, stating she attends to this three times per day.
Ms Wallington reported a markedly restricted caloric intake. On the day of the 10 km fun run (11 September 2022), she stated she had one or more bananas, a cup of coffee and a serving of instant porridge. On the day of the assessment… she had had a cup of coffee and one banana. She stated she typically had coffee with a little dairy. She said she ate vegetables, but when asked when she last did so could not recall. She stated she ate some canned oysters some two months prior to the IME, and a serving of canned fish approximately two months prior to the IME. She could not recall the last time she ate any meat. She stated she did not eat beef, poultry, or dairy, other than a little milk in a coffee.
… When asked to elaborate on the restricted food intake, Ms Wallington said ‘My finances don’t allow it,’ referring to the purchase of food. When I asked her about her current income, she claimed she did not know what goes into her bank accounts. It was not possible to reconcile her statements that her finances precluded her buying more food, whilst simultaneously accepting her assertion that she did not know how much money she received as a periodic workers compensation payment.
When asked about cleaning, Ms Wallington replied that she hasn’t done much cleaning ‘since 2017’. She stated she does her laundry once a week. She stated she does not vacuum. When asked about household chores or cleaning Ms Wallington stated, ‘There's nothing in the house’. She claimed she had not bought any cleaning products since ceasing work in 2017. When asked to elaborate on this, she stated she had stocks of these up until that time and has been using these to date. She claimed not to have gone shopping for food since 2017, including delivery of services or groceries, stating she doesn't like people to enter her home. She claimed not to have cooked for herself since prior to 2017. When asked how she obtained the limited range of food that she reported eating, she stated she went to get coffee at Coles Express, or went to the local fruit shop to buy fruit, and also explained that instant porridge was available at a convenience stores.”
[11] See Pitsonis v Registrar of the Workers Compensation Commission & Anor [2007] NSWSC 50 at [43].
The Medical Assessor recorded a history with respect to Ms Wallington’s alcohol use and diagnosed alcohol use disorder in sustained remission.
The Medical Assessor said when formulating his diagnosis:
“Given Ms Wallington's reported restricted caloric intake, highly restricted diet, very low body mass index, and reports of walking lengthy periods several times per week, as well as regular running, consideration was given as to whether she had an eating disorder, or simply had a very low body weight. Dr Ash Takyar's independent medical examination reports from 2020 and 2021 provide additional information about gradual restriction in dietary intake (see below). In the absence of an actual recent recording of weight, the absence of any mention of either low body weight in discharge summaries, and Ms Wallington denying her eating or weight being a topic of discussion with her treating clinicians, a diagnosis of an eating disorder was deferred.”
The passages we have quoted highlight the way the Medical Assessor dealt with the history he obtained. He noted the reduction in Ms Wallington’s food consumption recorded by Dr Takyar. He considered whether it was relevant to his diagnosis and explained why it was not. The assessment the Medical Assessor made was open to him on the history he obtained and his assessment does not disclose an error.
The only real difference between the history in Ms Wallington’s statement with respect to Self-Care and the history taken by the Medical Assessor is that Ms Wallington sought to explain her motivation for reduced food consumption in that she believes she is starving herself. The Medical Assessor was not required to engage with Ms Wallington’s rationale for her own behaviour; his task was to provide a professional opinion of the level of impairment (not the rationale for such impairment, or her thoughts such as suicidal ideation) based on his own assessment.
Social and Recreational Activities
The Medical Assessor assessed Ms Wallington in Class 2. The examples in Table 11.2 are:
“Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).”
The Medical Assessor said:
“Ms Wallington regularly participates in public runs, including posting photos of these runs on social media, but does not engage with others during these runs, or belong to running groups. She travels to, and participates in, these runs alone.
Ms Wallington reported no other social or recreational interests.”
The Medical Assessor recorded:
“In 2022, Ms Wallington explained she had done a number of fun runs, in various locations, including interstate. When asked to estimate how many fun runs she had done, she said she couldn't recall as there had been many, and she explained that a number had initially been booked one or two years ago, but been delayed due to the COVID pandemic. One or two weeks prior to the IME, Ms Wallington travelled to Melbourne by train overnight, spending the night in accommodation in Melbourne, before undertaking a fun run on a Sunday, returning by train to Sydney overnight. Immediately prior to their present IME, Ms Wallington caught a train on Friday 9 September 2022 to Brisbane overnight arriving on Saturday 10 September 2022. She spent a night in a motel in Brisbane, before running a 10km run on Sunday 11 September 2022, noting she became aggressive with people on the run. She caught a train overnight back to Sydney.
In mid-August 2022, Ms Wallington ran the City to Surf. She explained she is scheduled to run a a 10km run in mid-September 2022 as part of the Blackmores Running Festival. Ms Wallington states she doesn't train between fun runs she just does the runs themselves. She states she doesn't run with a group of people, and doesn't belong to any running groups.
…
Ms Wallington reported an affiliation with the Catholic Church and tries to attend church most Sundays, though it is also noted that she participates in fun runs on many Sundays. She does not belong to any running or social clubs. She commented of running clubs, ‘I got out of them… I don’t feel comfortable around people.
…
Ms Wallington stated she had a Facebook account and posts on running sites including photos that she takes on her runs. She says she has a habit of taking a number of photos along the routes of her fun runs, and will post 12 photos from those taken. She commented that her participation in running groups and her posting of photos gave people impression that she was actually coping better than she really was.
…
Ms Wallington’s main interest includes fun runs and as noted she participates in these on her own rather than as a group. She had difficulty estimating how many she has actually done but in the 2-3 weeks leading up to the IME had participated in at least two fun runs interstate..”
The Table measures a worker’s degree of participation in social and recreational activities.[12] It is clear that Ms Wallington continues to participate in fun runs on a very regular basis, even if she does not participate with a group. She regularly engages in those large group recreational activities without prompting. Inevitably, she is with others when she participates and must interact with the organisers and event staff.
[12] Ballas v Department of Education (State of NSW) [2020] NSWCA 86.
The Medical Assessor’s reasons show that he was aware that she did not run with others and he took account of a change in Ms Wallington’s activities when he noted that she no longer belongs to running clubs. The assessment in Class 2 was open to him.
Travel
The Medical Assessor assessed Ms Wallington in Class 1, as did Dr Takyar and Dr Bisht. He said:
“Ms Wallington is able to use public transport (trains) and walk to various parts of Sydney, and interstate, alone, and on a regular basis.
Ms Wallington has travelled to Melbourne and Brisbane within weeks prior to the IME.”
The example for assessment in Class 1 is “can travel to new environments without supervision”. While the distances which Ms Wallington walks are unusual, the Table measures the impact of a worker’s injury on her ability to leave their residence and travel to new areas. Class 2 is appropriate where a worker “can travel without a support person, but only in a familiar area …”
The assessment in Class 1 was open to the Medical Assessor and he has provided reasons for his assessment. In noting that Ms Wallington does not drive and has never been on a commercial flight, he has shown that he has considered whether the injury has changed Ms Wallington’s ability to travel using the travel modalities she has always used.
Class 1 of each of the Tables in the PIRS is appropriate where there is “[n]o deficit, or minor deficit attributable to normal variation in the general population”. Class 1 contemplates that the general population encompasses a wide range of capacity and behaviour. Assessment in Class 1 does not necessarily connote that Ms Wallington’s walking habits are “normal” nor did the Medical Assessor say that was so. The Medical Assessor stressed Ms Wallington’s ability to travel on interstate trains. We agree that assessment in Class 1 was appropriate.
Concentration, Persistence and Pace
The Medical Assessor assessed Ms Wallington in Class 2 for Concentration, Persistence and Pace and gave the following reasons:
“Ms Wallington is able to plan and execute trips to interstate destinations on a regular basis, without assistance from others. This includes organising accommodation and transport, and organising entry to the runs at the destination.
Ms Wallington reported subjective impairment in attention and concentration, reporting reading material and forgetting it.”
Dr Takyar assessed Ms Wallington in Class 3 and Dr Bisht assessed her in Class 2.
The examples in the Guidelines are:
“Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.”
It is important to remember that the Medical Assessor was not limited to the worker’s physical appearance and the history she provided when assessing Concentration, Persistence and Pace as he was with the other Tables. A Medical Assessor is able to assess the worker’s ability to concentrate and respond during the examination and his findings on his mental state examination are relevant.
The Medical Assessor asked Ms Wallington about her ability to concentrate and recorded:
“Ms Wallington described her attention and concentration as “dreadful, I could read something and I’ve forgotten it in the next couple of minutes. She reported problems with her short-term memory, stating at some stage she forgot about a fun run that she had booked in Melbourne, and did not attend, only remembering this when called by the accommodation she had booked. She could not remember which month this occurred in. When asked about long-term memory Ms Wallington replied, ‘Some of it’s OK, some of it’s not.”
Ms Wallington relied on her failed work trial as evidence of her impaired concentration. The Medical Assessor was aware of the work trial. It took place about three and a half years before the assessment by the Medical Assessor, at a time when she was under active treatment for alcohol use disorder. Difficulties with concentration in 2019 were not so significant in the assessment in 2022.
The Medical Assessor gave his reasons for his assessment in the PIRS Rating Form. The frequency with which Ms Wallington attends running events and the plans she makes for her travel means that the assessment was open to him on the history he obtained. This category is one where the assessor can evaluate the presence of objective difficulties in Concentration, Persistence and Pace over the course of a prolonged interview. The Medical Assessor noted no such impairment but found that Ms Wallington’s speech was “spontaneous and fluent, with normal volume, rate and rhythm” with occasional pauses. Her “thought form was logical and sequential with no formal thought disorder”. She was “alert and oriented with no fluctuation in level of consciousness. She was not drowsy”.
As such the assessment made by the Medical Assessor under Table 11.4 was open to him.
For these reasons, the Appeal Panel has determined that the MAC issued on
29 September 2022 should be confirmed.
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