Wilkinson v Crane Payment Innovations Pty Ltd
[2024] NSWPICMP 834
•6 December 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Wilkinson v Crane Payment Innovations Pty Ltd [2024] NSWPICMP 834 |
| APPELLANT: | Glenn Wilkinson |
| RESPONDENT: | Crane Payment Innovations Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 6 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Medical Assessor (MA) assessed 9% whole person impairment (WPI) resulting from psychiatric injury; worker appealed on the basis that MA failed to consider adequately his statements and the report of Dr Glen Smith in two psychiatric impairment rating scale categories; Panel reviewed the evidence and were satisfied there was no error in the assessment of social functioning but found error in the assessment on concentration, persistence and pace; however, despite the assessment of class 3 in place of class 2 for concentration, persistence and pace, there was no change to the assessment of WPI; Held – review did not lead to a different result and Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 June 2024 Glenn Wilkinson (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Bradley Ng, Medical Assessor (Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 6 September 2024.
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 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).
RELEVANT FACTUAL BACKGROUND
The appellant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 5 July 2024 in which he claimed 19% whole person impairment (WPI) in respect of a psychiatric and psychological disorder as a result of injury in the course of his employment with Crane Payment Innovations Pty Ltd (the respondent) deemed to have occurred on 16 September 2019.
The matter was referred to the Medical Assessor for assessment.
The Medical Assessor examined the appellant on 6 September 2024.
In the MAC dated 6 September 2024, the Medical Assessor assessed 9% WPI resulting from psychiatric injury deemed to have occurred on 16 September 2019.
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.
The appellant requests a re-examination by a member of the Appeal Panel to ensure a correct medical history is taken. The respondent submits that the appeal can proceed on the papers and there does not need to be a re-examination of the appellant.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for appellant to undergo a further medical examination because there was sufficient information upon 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) Ground 1 – failure to take into account the appellant’s evidence. The Medical Assessor failed to consider adequately, or at all, the evidence of the appellant as contained in his statements dated 10 April 2022 and 2 April 2024.
(b) In his evidence, the appellant has set out in detail his history and difficulties in relation to each category of the Psychiatric Impairment Rating Scale (PIRS). The Medical Assessor has failed to appropriately take into account the appellant’s evidence throughout his report when determining the class range from 1-5 in respect of each PIRS Category. This demonstrates a clear failure to have regard to all the evidence available to the Medical Assessor (Owen v Motor Accidents Authority (NSW) (2012) NSWSC650). A Medical Assessor must consider the appellant’s evidence contained with his statement when determining the PIRS class scale.
(c) There are PIRS two categories where the Medical Assessor has failed to take into account the appellant’s evidence.
(d) Ground 1 (a) social functioning. The appellant’s evidence with regard to social functioning is set out in his statement dated 10 April 2022 paragraphs 113, 118, 119 and 120 and in his statement dated 2 April 2024 in paragraphs 49-61.
(e) Dr Glen Smith recorded in his report dated 30 November 2022:
“Mr Wilkinson said that the relationship with his wife has been strained and they have slept in different rooms, at times, most recently around one year ago. He denied violence but he has a short temper, ‘I can’t handle listening to her problems’. He described the relationship with his daughter as ‘bad, she is seeing a psychologist because of what’s been happening with me’.”
(f) The Medical Assessor has not taken the appellant’s evidence regarding his severely strained relationships with his wife and daughter into account, which is a demonstrable error.
(g) The Medical Assessor has not taken an adequate history in this regard and has ignored the totality of the evidence provided by the applicant in his statement as well as in his account to Dr Smith regarding his severely strained family relationships.
(h) Therefore, the totality of the evidence with regard to social functioning is more consistent with an assessment of Class 3 than Class 2, noting the appellant’s evidence that his relationships with his family are severely strained.
(i) Therefore, there is demonstrable error in the MAC in relation to the assessment of the appellant’s social functioning.
(j) Ground 1 (b) concentration, persistence and pace. The appellant’s evidence with regard to concentration, persistence and pace is set out in his statement dated 10 April 2022 (paragraphs 107 and 121) and in his statement dated 2 April 2024 (paragraphs 62-86, 92, 94 and 95).
(k) Dr Glen Smith recorded in his report dated 8 April 2024:
“Mr Wilkinson reported difficulties with memory and concentration. He said that he reads but he finds it difficult to retain information. He tried to study but was unable to focus on tasks. He has made mistakes at work.”
(l) The appellant reports that during his appointment with the Medical Assessor, he explained about his difficulties with on-the-job training with a software product called “Papercut”. The training had a number of modules which he was required to pass within five attempts. Unfortunately, he failed on four attempts and was only able to pass on the fifth attempt with the assistance of his work colleagues. This was due to his struggles to comprehend and maintain the information he was learning. The Medical Assessor did not include any mention of this information in the MAC.
(m) The appellant’s evidence is that he has difficulties with his concentration, reading and particularly retaining information that he has read, finds it difficult to follow complex and new instructions, and can only watch short videos or 20 minutes of a film.
(n) Therefore, the Medical Assessor’s comments and the evidence of the appellant in regard to concentration, persistence and pace are more consistent with an assessment of Class 3 than Class 2.
(o) Therefore, there is demonstrable error in the MAC in relation to the assessment of the appellant’s concentration, persistence and pace.
(p) The Medical Assessor has utilised the incorrect criteria in conducting his assessment and made demonstrable errors. This included failures to take into account the appellant’s evidence and the evidence of Dr Smith.
(q) To ensure a correct medical history is taken, the appellant should be re-examined by a member of the Panel.
The respondent’s submissions include the following:
(a) Ground 1 – no demonstrable error can be discerned in the ratings ascribed by the Medical Assessor to each of the categories complained about on appeal.
(b) The Medical Assessor has given reasons for each rating and has given a clear and cogent explanation, based on the application of his clinical expertise to justify why his impairment ratings differ from that of Dr Smith in the categories of social functioning and concentration, persistence and pace, and his disagreement on the issue of maximum medical impairment (MMI) with Dr Modem.
(c) The ratings ascribed by the Medical Assessor in each of these categories accord with the criteria for each class and such should not be interfered with absent error by the Medical Assessor.
(d) Social functioning – the respondent notes the appellant’s submissions the Medical Assessor failed to properly address the evidence in respect of the functional impairment caused by the injury on the scale of social functioning, and the Medical Assessor had not taken an adequate history in this regard with respect to his familial relationships, which the appellant has submitted to have constituted “severely strained family relationships”.
(e) The Medical Assessor rated the appellant as Class 2 Mild Impairment. A Moderate Impairment rating does not apply, as a Class 3 impairment rating generally applies when previous relationships are severely strained, evidenced by periods of separation or domestic violence or spouse, relatives or community looking after children.
(f) The appellant, whist having a strained relationship with his partner, did not have reported periods of separation. He has been living with his wife for 28 years, and reported having a reasonable relationship with his daughter and also reported a reasonable relationship with his older and younger brother.
(g) No error can be discerned in the exercise of the Medical Assessor’s clinical judgement in the assessment of mild impairment in the class of social functioning. It accords with the criteria in Table 11.4 and is the best fit in that class nothing the strain on, but not breakdown of, the appellant’s close relationships.
(h) Concentration, persistence and pace – the respondent notes the appellant’s submissions the Medical Assessor failed to properly address the evidence in respect of the functional impairment caused by the injury on the scale of concentration, persistence and pace.
(i) The Medical Assessor rated the appellant as Class 2 Mild Impairment. The respondent refers to decision Wright v Ngroo Education Incorporated [2022] NSWPICMP 106.
(j) Based on the findings of clinical examination recorded by the Medical Assessor at page 5 of the MAC, where he reported no attention problems during the assessment and the PIRS assessment at pages 10 and 11 of the MAC, he correctly assessed the appellant in Class 2 in respect of concentration persistence and pace.
(k) The Medical Assessor assessment is reflective of all the available evidence and he was entitled to place an emphasis on the history obtained; as well as interpret the appellant’s presentation on the day of examination.
(l) The Medical Assessor referred to the medical opinions and documentation submitted by the parties and preferred his own recorded history, analysis and clinical examination findings.
(m) The appellant’s submissions are merely based on a ‘difference of opinion on a subject about which reasonable minds may differ’ – and not on any “demonstrable” error.
(n) Over the years, there have been many decisions dealing with assessment of permanent impairment in respect of psychiatric injuries and the application of the PIRS categories. (See Ferguson v State of New South Wales & Ors [2017] NSWSC 887, Glenn William Parker v Select Civil Pty Limited [2018] NSWSC 140, Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633.)
(o) Although the appellant may not necessarily agree with the opinion and the WPI assessment of the Medical Assessor, ultimately, it was based on the history provided, his clinical examination and all of the evidence submitted by parties and it complied with the terms of the Medical Assessor referral and the assessment was conducted in line with the Guides.
(p) As such, the Medical Assessor’s assessment of Class 2 for both social functioning and concentration, persistence and pace are consistent with the evidence and should not be disrupted on appeal.
(q) The MAC does not contain any demonstrable error.
(r) No grounds of appeal is made out pursuant to s 327(3)(d) of the 1998 Act and the appeal should be dismissed. The Medical Assessor assessment of 9% WPI (psychological injury) in the MAC 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.
Ground 1 – erroneous consideration of supporting medical evidence
The appellant submits that the Medical Assessor failed to take into account the evidence of the appellant as contained in his statements dated 10 April 2022 and 2 April 2024. The appellant argues that this demonstrates a clear failure to have regard to all the evidence available to the Medical Assessor.
The Medical Assessor noted that the ARD and attachments and the Reply and attachments were referred by the Commission for the assessment. The statements of the appellant were attached to the ARD.
The Appeal Panel does not accept that the Medical Assessor failed to take into account the statements of 10 April 2022 and 2 April 2024. There is no requirement that the Medical Assessor refer specifically to statements or refer to every medical report filed by the parties. The Medical Assessor did refer specifically to the report of Dr Glenn Smith dated 8 April 2024. The Appeal Panel noted that in this report Dr Smith quoted large parts of the appellant’s statement of 2 April 2024 including many of the paragraphs referred to in the appellant’s submissions.
Harrison J in Prasad v Workers Compensation Commission [2010] NSWSC 418 said:
“On the other hand, there is support for the proposition that not every matter or thing that is germane or critical to an administrative decision must, or even can, be expected to find a place in the expressed reasons of the tribunal. Nor should too close an examination of those reasons be undertaken in the hope of locating putative error. This might be thought to be all the more forceful in the scheme of legislation such as the Act where the question for consideration has been referred to a specialist tribunal with knowledge and experience of medical matters, which one might expect will relevantly have been brought to account in its deliberations and ultimate consideration of the degree of whole person impairment.”
The Medical Assessor noted that in making the assessment he had taken into account the history as outlined by the appellant, review of mental state examination on the day of assessment, a description of his functioning and review of documentation.
The Appeal Panel is satisfied that the Medical Assessor had taken the appellant’s statements into account in making his assessment but did not feel that he was required to refer specifically to those statements.
Ground 1 (a) social functioning
The appellant submits that the Medical Assessor has not taken into account the appellant’s evidence regarding his severely strained relationships with his wife and daughter, which is a demonstrable error. The appellant argues that the Medical Assessor has not taken an adequate history in this regard and ignored the totality of the evidence provided by the applicant in his statement as well as in his account to Dr Smith regarding his severely strained family relationships.
The Appeal Panel reviewed the evidence.
The examples under Table 11.4 for “Social functioning” in the Guidelines are:
“Table 11.4: Psychiatric impairment rating scale – social functioning:
Class 2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3 Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children”.
In the MAC under “Current symptoms”, the Medical Assessor wrote:
“Mr Wilkinson had very little support, apart from his family. He described his nerves as ‘shot’. He was not a violent man but was highly resentful of his employer and certain people. He alluded to possible violence but had not acted on those issues. There had been no destruction of property. Whenever he became angry with his family, he would remove himself and ‘hide’. This happened every three months or so”.
In the MAC under “Social activities/ADL”, the Medical Assessor wrote:
“Mr Wilkinson was working full-time and he came straight from work today from Alexandria. He came by train and walked to the office. He had a reasonable relationship with his employer. He did travel to Europe with the owner of the company for meetings and to liaise with important clients. Mr Wilkinson was very anxious about that and had a minor role compared to his boss who he described as far more extroverted and social. In order to cope with the two weeks European trip, he was prescribed Clonazepam. It was unpleasant, but not a disaster and there were no setbacks. Mr Wilkinson was asked to perform higher duties by this company about 2 years ago. He was reluctant to do it but did it for a period of time and returned to his usual duties. He was too anxious.
Mr Wilkinson had been living at a rental address in Castle Hill for the last twelve years, since returning from Port Macquarie with his family. He lived with his wife, in her early sixties, and she worked part-time in patient transport. They had been together for twenty eight years. They had a reasonable relationship, but Mr Wilkinson described it as tense at times and they were not intimate. Their only daughter, a twenty two year old, was a university student. He had a reasonable relationship with her. There were no other children. Both his wife and daughter went on an overseas holiday last year. He did not go with them. He felt unable to do so. Mr Wilkinson’s parents were in Port Macquarie and his younger brother was in Taree, New South Wales, and an older brother was in the United Kingdom. He had a reasonable relationship with them.
…
Mr Wilkinson last saw his parents at Easter 2024. He and his family left Sydney at 5am and it was a four hour drive. Mr Wilkinson did all the driving. He felt more in control. He did not want to be a passenger.”
The Medical Assessor made a diagnosis of Major Depressive Disorder with anxiety, chronic. He noted that there also may have been a previous Alcohol Use Disorder, but this is now in remission.
Under “Reasons for Assessment” the Medical Assessor noted that in making the assessment, he had taken into account the following matters: “History, as outlined by Mr Wilkinson and review of mental state examination on the day of assessment, a description of his functioning and review of documentation”.
The Medical Assessor assessed the appellant as Class 2 for social functioning. In the PIRS Rating Form, the Medical Assessor wrote:
“Social functioning – Class 2
Mr Wilkinson is withdrawn from family, especially from his immediate family. He has a good relationship with extended family members. He still has some friends. He keeps to himself. This is consistent with Mild Impairment.”
In his statement dated10 April 2022, the appellant wrote:
“113. I have definitely reduced my socialising and choose to stay home on weekends. If I do go out to a function, I find being around too many people causes me to have lose bowels, so I will take anti-diuretics before I attend.
…
118. My family and friendship relationships have suffered deeply because of my psychological injury. I constantly feel detached from my wife and the relationship is severely strained with both my wife and daughter. Intimacy with my wife is non-existent.
119. I find I cannot trust people anymore, even those closest to me.
120. I am easily irritable and get angry at the smallest things.”
In his statement dated 2 April 2024 the appellant wrote:
“49. Prior to my injury, I had excellent relationships with my wife and daughter. Since my injury, those relationships have significantly deteriorated.
50. I constantly feel detached from my wife and our relationship is severely strained. Intimacy with my wife is non-existent. Our intimate relations were previously regular, but are now rare.
51. When my wife returned home from Mauritius last year, she raised a possible separation. We are currently still together, but it does not feel like we have a strong and united relationship.
52. On occasions I have slept in a different bedroom to my wife.
53. Since my injury, I have felt very distant from my daughter which is disheartening as we were previously very close.
54. My family and friend relationships have suffered deeply because of my psychological injury.
55. For example, after the panic attack at Bundeena mentioned above, my wife told me she was thinking it would be easier for her to step out in front of a car than continue to deal with my issues.
56. I am not easy to live with. I am easily irritable and get angry at the smallest things.
57. I never had dark thoughts of hurting myself until my injury and dealing with the insurer.
58. When family come over, I can only spend a short amount of time with them before I need to retreat upstairs.
59. We used to regularly have family Christmas at our place every second year. Since my injury, I find I need to take a 30 minute break away from everyone every hour whereas prior to my injury, I would host the party without leaving.
60. I find I cannot trust people anymore, even those closest to me.
61. I have lost all of my confidence.”
Dr Glen Smith, in his report dated 30 November 2022 noted:
“Mr Wilkinson said that the relationship with his wife has been strained and they have slept in different rooms, at times, most recently around one year ago. He denied violence but he has a short temper, ‘I can’t handle listening to her problems’. He described the relationship with his daughter as ‘bad, she is seeing a psychologist because of what’s been happening with me’.”
Dr Smith, in his report dated 8 April 2024, quoted paragraphs 9, 13-54, 62-79, 87-97) from appellant’s statement dated 2 April 2024.
Dr Smith assessed class 3 for social functioning. He provided the following reasons:
“Mr Wilkinson said that the relationship with his wife has been markedly strained and they have slept in different rooms, at times. He denied violence but he has a short temper, ‘I can't handle listening to her problems’”.
Dr Karthik Modem in a report dated 15 February 2023 under “Current Social functioning” Dr Modem wrote:
“It is strained these days, because of how I am. I cannot accept listening to other people’s problems, I am having a short fuse, I don’t like to go out of the house. If we do go out as a family, I want to finish soon and get back home. The relationship with my daughter is also strained and she is seeing a psychologist. I retreat to my study after I return from work to pass my time and distract my mind.”
They stopped visiting his family or her family. He recalled a family gathering at Christmas two years ago, where the whole family was home and he was in his bedroom.
Note: There is a high likelihood that the strained relationship that he described with his wife is a consequence of his problematic alcohol consumption.
Dr Modem expressed the opinion that the appellant was not at MMI but agreed with Dr Smith’s assessment in the PIRS category of for social functioning.
The appellant submits that the totality of the evidence with regard to social functioning is more consistent with an assessment of Class 3 than Class 2, noting the appellant’s evidence that his relationships with his family are severely strained.
The Appeal Panel noted that Dr Smith assessed the appellant as Class 3 for social functioning, but that examination took place on 8 April 2024. The Appeal Panel also noted that Dr Modem agreed with the assessment of class 3 for social functioning although he considered that the appellant was not at MMI.
The Appeal Panel accepts that there has been strain in the appellant’s marriage, a lack of intimacy and that he occasionally sleeps in a separate bedroom. The appellant has also lost some friends. However, the appellant has managed to maintain his primary relationships with his wife and daughter. The Medical Assessor noted in his assessment that the appellant had reasonable relationships with his daughter and his brothers and had a good relationship with extended family members. It appears that there has been some improvement in his family relationships since he made the statement on 2 April 2024.
The appellant described the relationship with his wife as severely strained, but there is no actual report of any domestic violence or separation. The Appeal Panel notes that the use of the descriptor ‘severely’ by the appellant does not necessarily have the same meaning as intended in the Guidelines when referring to established relationships being ‘severely strained, evidenced by periods of separation or domestic violence.’
The appellant submitted that the impairment is more appropriately rated as a Class 3 under Table 11.4. On balance, the Appeal Panel is satisfied that the descriptors provided in Table 11.4 by the Medical Assessor are Class 2 descriptors. Therefore, the Appeal Panel is satisfied that the reasoning process for assessing the appellant as Class 2 in this category was able to be made out. The Appeal Panel agrees that the appellant should be rated as Class 2 for social functioning.
The Appeal Panel is satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS category of social functioning.
Ground 1 (b) concentration persistence and pace
The appellant submits that his evidence is that he has difficulties with his concentration, reading and particularly retaining information that he has read, finds it difficult to follow complex and new instructions, and can only watch short videos or 20 minutes of a film. Therefore, the Medical Assessor’s comments and the evidence of the appellant in regard to concentration, persistence and pace are more consistent with an assessment of Class 3 than Class 2.
As noted above, it is not necessary for the Medical Assessor to refer specifically to the appellant’s statements.
The relevant descriptors in this category are at Table 11.5 of the Guides:
“Class 2
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.
Class 3
Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
In Table 11-8 the Medical Assessor assessed Class 2 for concentration, persistence and pace. He provided the following reasons:
“Class 2
Mr Wilkinson can do his job properly and indeed he is the only hardware specialist at his job, and he has not lost his job yet. Therefore he was doing reasonably
well. However, he failed a TAFE course. Hence his high cognitive functioning may be compromised, consistent with Mild Impairment”.
The Medical Assessor in the MAC noted the following with regard to the appellant’s concentration, persistence and pace in his current employment:
“He was a full-time hardware specialist. The company was involved with payment kiosks that operated print / copy & scan machines, usually based in schools, universities and libraries. It was based in the south of Sydney. He noted that his employer was fair. He was the only hardware specialist, while everyone else was a software specialist. He was an expert and was very familiar with coin and note validation equipment.”
The Medical Assessor noted that the appellant’s medications included Modafinil,100mg mane, for concentration and focus. Under “Current symptoms”, the Medical Assessor noted Mr Wilkinson produced documents to describe how he felt. The Medical Assessor noted: “Mr Wilkinson had a foggy brain and would lose track of his train of thought and become forgetful.”
Under “Social activities/ADL” the Medical Assessor noted:
“He might watch You Tube videos or play video games. He did start a Certificate III in IT at TAFE but struggled and dropped out in May 2023. He tried to set up a small business, but it did not start well and has stalled. He is no longer playing music.”
Under “Findings on physical examination”, the Medical Assessor noted that the appellant attended the assessment at the correct time, and a reasonable history was obtained. On examination he noted: “He was able to manage the assessment which lasted 1 hour and 10 minutes”.
In his statement dated 10 April 2022, the appellant wrote:
“107. I had to undertake training modules when I commenced. It took me 5 attempts to do each module as I struggled to comprehend and maintain the information.”
In his statement dated 2 April 2024, the appellant wrote:
“62. Prior to my injury, I used to have a logical, precise mind. I used to be able to type out detailed emails explaining technical issues to client and how to resolve them. I wrote up training notes and guides on how to fix electronic components at work.
63. However, since my injury, I lack focus and concentration. I feel like I constantly have brain fog.
64. I lack all motivation to do anything. I do make plans but that is as far as they go – I do not have the motivation to execute those plans.
65. By way of example, I registered a business with my wife in July 2021 as I had planned to make some plastic parts in my garage, but I have not done anything further. I do not have the motivation or focus to follow through.
66. Last year I started a Tafe course in IT in an attempt to distract myself instead of wasting all my time on YouTube and video games. It was Cert III or IV in Information Technology (General). I had to drop out as I struggled with maintaining focus, especially with the reading material and learning new concepts. I also struggled to complete assessment tasks, which prior to my injury I would have easily completed.
67. I find myself constantly overthinking.
68. I find it hard to deal with anything that is linked with my injury, discussing the events triggers me.
69. My thoughts are muddled. Whereas prior to this injury I could write a whole email from start to finish. Now I jump from thought to thought and need to thoroughly edit documents like emails to ensure they make sense.
70. I have short term memory loss where I lose my train of thought completely, or just stop mid-sentence as I cannot find the right word to say – this happened in a job interview where I just stopped for a whole minute.
71. I have done tasks that I have no recollection doing – e.g. scanning wedding photos or driving – my mind drifts off thinking about issues.
72. I struggle with concentration, which I especially notice at work.
73. I spend my time trying to distract myself from thinking negative thoughts.
74. I have to be on antidepressant medication to function.
75. Daily life is a constant battle to perform basic everyday tasks. A few examples of this are:
a. Thinking clearly is my biggest issue, as well as completing tasks.
b. When experiencing extreme anxiety, I have not been able to simply go into a shop and change an item they incorrectly sent me, or speak with a customer support person on the phone if I have issues with the internet, for example.
c. Going anywhere requires preparation to counteract my anxiety.
d. My energy is easily drained from leaving the house and interacting with people, and the medication makes me constantly tired.
e. My mind is so busy that I need to write things down quickly before they are lost.
f. I feel guilty that my family have had to endure hardships due to my issues.
76. I am disorganised, especially at work, a few examples are:
a. I have been given the task of testing and preparing documentation for a new kiosk being launched in our region. I started this in April 2023 and still have not completed the task, and subsequently we have not sold any of the new kiosks.
b. I have also got dates wrong which led to customer hardware training being cancelled a few hours prior to the pre-arranged time as I had not completed my preparation.
c. I try to stay organised by adding tasks to my to do list, but it is so long now that it is out of control.
d. I have found myself replying to emails and writing the wrong name of the person I am replying to, this has happened on numerous occasions.
77. I tend to get impatient quickly.
78. I sleep during lunch time when working from home and on weekends.
79. I am always tired and unmotivated.
80. My sleep is disturbed. I find that I tend to wake up every morning around 2-4am and have difficulty getting back to sleep as I think about all of these issues, and how they have affected me and my family.
81. I used to read quite a lot. I read technical manuals, which I would then summarise so that others could understand the information. I would also read trade magazines and other detailed documents. Since my injury, I cannot focus. My comprehension skills are significantly reduced. I struggle with new information and concepts and cannot retain information anymore. I tried to teach myself how to use a 3D printer – I now get frustrated when trying to learn new things. I can no longer write things down in logical order to do the steps.
82. I used to like watching TV and films. Now, I might watch a film for 20 minutes at a time and then wander off to something else.
83. I feel like my brain has to be distracted with something all the time, so I am not focusing on what happened at work, but then I find it hard to focus.
84. I have always written a to-do list and taken satisfaction when crossing off tasks. Since my injury I lack motivation to complete tasks, and I have not been able to complete anything.
85. Before my injury I never had negative thoughts of hurting myself, but during depressive states I do feel like it would be better not living through this.
86. My thoughts are not clear, it is constant brain fog with my thoughts all over the place.
…
92. I know I am nowhere near the level of performance I was before my injury. My mind goes blank, and I find it hard to focus on tasks at hand. Luckily, however, I am the only employee that does hardware in the company, and the business has a high turnover of staff leaving.
94. The owner of the business at my current employer has told me to ensure that I proof-read my emails before sending them, as I have sent out emails that make no sense to customers.
95. I used to be able to write an email or technical bulletin from beginning to end in one go, now I need to write all of the points down and rearrange the ideas so they are logical.”
Dr Smith in his report dated 8 April 2024 assessed Class 3 for concentration, persistence and pace, providing the following reasons:
“Mr Wilkinson reported difficulties with memory and concentration. He said that he reads but he finds it difficult to retain information. He tried to study but was unable to focus on tasks. He has made mistakes at work”.
Dr Modem expressed the opinion that the appellant was not at MMI but agreed with Dr Smith’s assessment in the PIRS category of concentration, persistence and pace, that is Class 3.
The assessment of concentration, persistence and pace involves clinical judgment. The Medical Assessor described all that the appellant self-reported and then his clinical observations. The Medical Assessor did report that the appellant could do his job properly, was the only hardware specialist at his job, and that “he has not lost his job yet”. However, the Medical Assessor did not include in his report a history of the various problems at work that the appellant describes in some detail. In particular, the appellant described being disorganised especially at work, not completing tasks such as testing and preparing documentation for a new kiosk, getting dates wrong leading to customer hardware training being cancelled, and making mistakes in emails.
The appellant states that he used to read quite a lot including technical manuals, which he would then summarise so that others could understand the information. He stated that he also read trade magazines and other detailed documents but since his injury he could not focus. He described his comprehension skills as significantly reduced and stated that he struggles with new information and concepts and cannot retain information anymore. The appellant stated that he tried to teach himself how to use a 3D printer but gets frustrated when trying to learn new things. He said that he used to like watching TV and films, but now might watch a film for 20 minutes at a time and then wander off to something else.
The Medical Assessor did report that the appellant had started a TAFE course but dropped out in 2023 because he struggled with the demands.
Dr Smith reported that the appellant reported difficulties with memory and concentration, had tried to study but was unable to focus on tasks and made mistakes at work.
The Medical Assessor’s opinion that the appellant was doing reasonably well in terms of work failed to take into account the histories of him making mistakes at work.
The Appeal Panel was not satisfied that the descriptors provided in Table 11.8 for concentration, persistence and pace by the Medical Assessor accurately reflected the appellant’s functioning in this category. The failure to complete a TAFE course is a Class 3 descriptor as is the inability to watch a film for more than twenty minutes. The Appeal Panel was satisfied that the evidence established that the applicant was unable to follow complex instructions.
Therefore, the Appeal Panel is not satisfied that the reasoning process for assessing the appellant as Class 2 in this category was able to be made out after taking into account the appellant’s evidence. The Appeal Panel assesses the appellant as Class 3 for concentration, persistence and pace.
The Appeal Panel is satisfied that there was a demonstrable error in the MAC in relation to the ratings in the PIRS scale of concentration, persistence and pace as the assessment in this class was not made on the basis of incorrect criteria.
As noted above, the Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS categories of social functioning. The Appeal Panel found that a demonstrable error in respect of the assessment in the category of concentration, persistence and pace.
The Appeal Panel finds that the PIRS scales score 2 2 2 2 3 3, median 2, aggregate 14 so that the final WPI = 7%. The Appeal Panel notes that the Medical Assessor adjusted by 2% WPI to account for treatment effects, leading to a final 9% WPI. This was unchallenged on appeal and the Appeal Panel leave the adjustment undisturbed.
In summary, the assessment of total WPI by the Appeal Panel is the same as that made by the Medical Assessor. In those circumstances, the Appeal Panel will confirm the MAC as the review has not led to a different result and should not be interfered with (Robinson v Riley [1971] 1 NSWLR 403).
For these reasons, the Appeal Panel has determined that the MAC issued on 6 September 2024 should be confirmed.
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