DETERMINATION OF APPEAL PANEL	
	
CITATION:	Partridge v Newcastle City Council [2023] NSWPICMP 229	
		
APPELLANT:	Andrew Partridge	
		
RESPONDENT:	Newcastle City Council	
		
Appeal Panel		
		
MEMBER:	Jane Peacock	
		
MEDICAL ASSESSOR:	Michael Hong	
		
MEDICAL ASSESSOR:	Graham Blom	
		
DATE OF DECISION:	30 May 2023	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Psychological Injury; appellant alleged error by reason of inadequate reasoning; Panel agreed and a re-examination was found to be necessary; Held – Medical Assessment Certificate revoked.   	

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 1 March 2023 Mr Andrew Partridge (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by 
Dr Gerald Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 February 2023.
2.	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.
3.	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 grounds of appeal on which the appeal is made. 
4.	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.
5.	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
6.	The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
7.	The appellant requested a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error,
EVIDENCE
Documentary evidence
8.	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. 
Further medical examination
9.	Dr Michael Hong of the Appeal Panel conducted an examination of the worker and reported to the Appeal Panel.
Medical Assessment Certificate
10.	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 
11.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
FINDINGS AND REASONS 
12.	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. 
13.	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.
14.	The matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act): 
•	Date of injury: 			7 March 22
•	Body parts/systems referred: 	Psychological
•	Method of assessment: 		Whole Person Impairment” 
15.	The Medical Assessor issued a MAC certifying 8% whole person impairment as a result of injury on 7 March 2022.
16.	The assessment was based on his assessment under the permanent impairment rating scale (PIRS) as required by the Guidelines as follows:
Table 11.8: PIRS Rating Form
Name	ANDREW PARTRIDGE	Claim reference number (if known)		
DOB	16/7/69	Age at time of injury		
Date of Injury	7/3/22	Occupation at time of injury		
Date of Assessment	9/2/23	Marital Status before injury		

Psychiatric diagnoses	1.PDD	2.	
	3.	4.	
Psychiatric treatment	MEDICATION, PSYCHOLOGY		
Is impairment permanent?	Yes			

PIRS Category	Class	Reason for Decision	
Self Care and personal hygiene	2	Decrease in motivation for personal care.	

			
Social and recreational activities	3	Enjoys gardening and pets. Limited social or recreational activities.	

			
Travel	2	Able to drive independently when able but avoids.	

			
Social functioning	2	Has regular support of parents, housemates and a good friend.	

Concentration, persistence and pace	2	Has some subjective difficulties concentrating. Was able to engage for the interview.	

			
Employability	4	Struggled to rejoin the workforce in early 2021. He is very impaired and can only work in simple tasks for limited hours currently	

Score	Median Class	
2	2	2	2	3	4		2	
Aggregate Score Impairment	Total	%	
+	+	+	+	+		15	8%	
17.	The worker appealed. 
18.	In summary, the appellant submitted that the Medical Assessor erred because his reasoning was inadequate such that the path of reasoning could not be understood for the impairment ratings in the categories of Self-Care and Personal Hygiene, Social and Recreational Activities, Travel, Social Functioning and Concentration, Persistence and Pace. 
19.	In summary, the Newcastle City Council (the respondent) submitted that the path of reasoning of the Medical Assessor was adequate and Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed. 
20.	The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
21.	The Medical Assessor recorded a brief history with limited detail about effect on ADLS as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: Andrew is a 53 year old man who live in a share house with a housemate in Mayfield. He is not in a relationship and has no dependent children.
He started working for Council in 2018. He has supportive parents. He does not have much contact with his 2 brothers and 1 sister. There is no family psychiatric history.
He described the incident where his manager shouted at him for an hour when she found out he had a disability parking permit. He complained about this incident and his complaint was upheld. His manager resigned. She was given a glowing commendation and he was upset about this. He said that the whole process was stressful and unsupported. He took sick leave and left work.
He said that after the incident he felt shocked, depressed and anxious. He reports low mood, poor energy, some anhedonia, poor motivation and low self esteem. He saw his GP who referred him to a psychologist who he saw weekly in 2020. In 2021 he was referred to psychiatrist Dr Bench. Dr Bench prescribed Cymbalta which was gradually increased to his current dose of 90mg. He also prescribed melatonin for sleep.
He has been prescribed endep 20mg to help with pain.
He began working for Phoenix Health Insurance in November 2020 but found that he struggled in the role. He stopped in June 2021 and has not worked since.
•	Present treatment: he sees his psychologist Bonnie weekly. He continues to take antidepressant medication.
•	Present symptoms: He said that after the incident he felt shocked, depressed and anxious. He reports low mood, poor energy, some anhedonia, poor motivation and low self esteem. 
•	Details of any previous or subsequent accidents, injuries or condition: he described an increase in pain after seeing an exercise physiologist in the course of treatment for his workplace injury. He reported pain from pre-existing scoliosis, heel spur and plantar fasciitis. 
•	General health: he had scoliosis surgery age 19. He has obstructive sleep apnoea and wears CPAP every night.
•	Work history including previous work history if relevant: he is not currently working.
•	Social activities/ADL: He enjoys his pets- caring for his bird and his dog. He attends to his garden everyday. He cooks simple food and eats a lot of takeaway. He has a car and is able to travel independently when necessary. He reports reduced concentration for activities. He has regular contact with his housemate. He has a friend who visits twice a week. His father visits weekly.”
22.	The Medical assessor record his findings on mental state examination as follows:
“On mental state examination he appeared his stated age. He had no abnormal psychomotor activity. His affect was dysphoric. He reported his mood as depressed. He had no suicidality. There was no psychosis. There were no thoughts of self harm. He was oriented to time, place and person.”
23.	The Medical Assessor diagnosed Persistent Depressive Disorder.
24.	He made brief comment on the opinions as to the other experts whose reports were in evidence as follows:
“Dr Sam Roberts diagnosed persistent depressive disorder with WPI 8%
Dr Glen Smith diagnosed major depression with WPI 24%
I largely agree with Dr Roberts assessment.”
25.	There is no explanation provided as to why his opinion differs in respect of the class ratings. 
26.	The PIRS table as set out above gives an explanation for each class that is insufficient in its brevity even when the MAC is read as a whole, except in travel. The Medical Assessor noted Mr Partridge avoids driving but is capable of independent travel when necessary, and an error is not made out in this appealed category.
27.	The Appeal Panel was satisfied as to error because the path of reasoning of the Medical Assessor was inadequate and the reasons given for the ratings across the impairment categories complained about, with the exception of travel, were insufficient to enable the ratings to be considered justifiable. 
28.	In these circumstances, the Appeal Panel considered that a re-examination was necessary and appointed Dr Michael Hong, a Medical Assessor of the Panel, to undertake the re-examination. Dr Hong re-examined the appellant and reported to the Appeal Panel as follows:
“1. Updated History
Mr Partridge joined the council in 2008 and ceased work at the council in 2020. He then worked at Phoenix Health for a few months at 15 hours a week, but he felt confused with the work and was making mistakes, and could not continue. He has not worked since 2021. His employment with the council had been terminated by April 2021. 
Physically, there have been no major changes after Dr Chew’s MAC assessment. He reported that his ankle is stable. He did not have the PRP injection, and he has had a cortisone injection to the back. He finds it hard to do things physically because his back will become painful. He takes opioid analgesic medications regularly to cope with the pain.
Psychologically, Mr Partridge reported that he has not felt significantly different in the past few months or after Dr Chew's assessment.
There has been no new life stressors or new psychological injury after Dr Chew's assessment.
In terms of alcohol, Mr Partridge said he was drinking one or two drinks, three or four times a week, but it became too expensive and so he stopped drinking a month ago.
There have been no new medical problems. He suffers from scoliosis and uses a CPAP machine. 
He said ‘I think about everything that happened at work all the time’, and he thinks about how horrible he was treated, and explained he does not trust people and cannot handle social interaction. He said he became frightened of people and avoids everybody and that ‘I don’t have an easy life’. 
He spoke about issues at work as a parking officer, predominantly related to the manager who screamed at him and abused him, and claimed that his use of a mobility pass for parking was fraudulent, that he should not have a parking permit as a parking officer. He reported she had breached his privacy and that everybody at work knew about the issue and they breached his trust. When she was investigated, she elected to leave and the CEO gave her a glowing review. 
Mr Partridge is living on his own and his housemate is doing home renovations and will come and stay maybe one or two days a week with him. He has been living in his house since 1998.
He spends most of the time at home and says he is very forgetful. He goes to a room and forgets what he was meant to do there. 
His housemate makes the food most of the time and then he will heat it to eat - he explained this is more economical, he does not have much money and it is cheaper to pay his friend to make food for him. He said he struggles to go out to the shops. Mr Partridge does not like to go to places with a lot of people as he does not feel safe. His father often comes to help. 
Mr Partridge looks after his dog and he will sometimes take the dog to the local oval and take her out for regular walks. He can go out on his own. He watches television but does not pay attention. He will leave Master Chef on and then do something else. 
He spends a bit of time in the sun just looking at the trees, and sometimes he will do a bit of gardening - he stated he cannot do much because it will aggravate his back pain.
Mr Partridge was a beekeeper and had done that for maybe seven years. He does not have any bees anymore and does not go to any Beekeeper Association meetings.
He has never been a book reader. He said he might glance at things online and Google things, but does not do anything that requires much focus.
He avoids driving. He said that normally he has a disability parking permit, but when he tried to drive the last time, he felt everything was ‘very fast and unpredictable’ and since then, he does not drive on his own. Either a friend or his father will come with him if he has to drive. 
Mr Partridge said he only showers every few days as there is no need to shower more regularly. He does the washing at home. His father visits him regularly. His mother visits him less regularly and they often speak on the phone. Aside from his family, he has no other visitors. He has siblings in Melbourne and Queensland and a sister lives locally, but she has special needs children and he explained that he has no children and they grew apart, so they do not really talk. He has a couple of friends and usually talks to them or texts them, but he does not see them or do things together in person. 
He has never been married. He last had a partner who was 31. 
Mr Partridge normally enjoyed gardening, cooking and beekeeping. He said he was a very sociable and outgoing person, but now he does not want to go anywhere. He struggles to ‘keep my head above water’ and struggles to interact with anybody.
•	Present treatment: 
Mr Partridge is taking:
•	Cymbalta 90 mg
•	Melatonin 
•	Panadeine forte, less than 50 tablets per fortnight
•	Endep 20 mg
•	He said he is not sure if treatment has helped.
He consulted Dr Christopher Bench, psychiatrist and has not had a review for more than 12 months. He consults Anne-Marie Da Cruz, psychologist, recently every 2 weeks. He said Bonnie is his dog and not a psychologist.
•	Present symptoms: 
He described chronic anxiety and depressive symptoms, which have not changed in the past 12 months. His concentration and memory are poor and he writes everything down. He does not have suicidal ideation and reported with medication, his sleep is ‘on-and-off’. He gained weight, he thinks from medication and junk food, and his weight has not changed in the past 6 months. He remains quiet and withdrawn and has panic attack-like symptoms when out. He does not have anger or irritability problems. 
2.	FINDINGS ON PHYSICAL EXAMINATION
Mr Partridge was assessed by video. He was at home on his own during the assessment. 
He wore glasses and had short greying hair and a full beard. He engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements. 
He was generally restricted in his affect range and reactivity. He spoke spontaneously and was slow all through the assessment, and struggled with word-finding at times. He was not thought disordered but presented as disorganized. 
3.	SUMMARY
•	summary of injuries and diagnoses: 
Mr Partridge had no prior psychiatric difficulty. He described having chronic depression and anxiety symptoms which have fluctuated over time but never remitted, and this is consistent with a chronic Major depressive disorder, caused by his employment. His psychological health has not changed significantly after Dr Chew’s assessment and his treatment remains unchanged.
In terms of the WPI rating, the Panel has reviewed Dr Chew's certificate and assessments from Dr Roberts and Dr Smith. 
Dr Smith had rated Mr Partridge's self-care as a 3 and noted he showers three days a week due to low motivation and his housemate performs most of the meal preparation and cleaning. Dr Roberts rated 2. The Panel noted that Mr Partridge can prepare simple foods, but predominantly will heat food that he pays his friend to make as it is more economical. He neglects his showering but is nevertheless able to do it without prompting or assistance, and is capable of independent living, and therefore a 2 is more accurate.
In terms of social functioning, Dr Smith rated 3 as Mr Partridge is socially isolated and has lost friends and does not like inviting people to his house as it is very untidy. Dr Roberts rated a 2. The Panel noted that he generally only talks or texts with his friends, but does not see them in person and he has lost friendships. There has been no domestic violence and he has a reasonable relationship with his family, and this is consistent with a 2. 
In terms of concentration, persistence and pace, Dr Smith rated a 3 and Dr Roberts rated a 2 and explained that he engages in minimal activities that demand persistence and pace. His engagement in the interview did not indicate overt impairment. The Panel noted that he provided a consistent history where he struggled with concentration in in day to day tasks and household chores, and he also presented with impairment during the assessment with Dr Hong, and a 3 is more accurate.
•	consistency of presentation
There is no inconsistency in Mr Partridge's presentation. 
Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides
	% WPI 	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)	
1. Psycho-logical 	7/3/2022	11
page 55-60	14	17	0
	17	
Total % WPI (the Combined Table values of all sub-totals)	 17%
	
PERSONAL INJURY COMMISSION
Psychiatric diagnoses	1. Major depressive disorder 	2. 	
	3. 	4. 	
Psychiatric treatment	Psychologist
Psychiatrist 
Medications 
No psychiatric admission 		
Is impairment permanent?	Yes

PIRS Category	Class	Reason for Decision	
Self-care and personal hygiene
	2	Mr Partridge has been neglecting his self-care. He has a stable weight but eats junk food, and tends to rely on premade meals. He can do minor food preparation. He showers every few days. Sometimes his father prompts him, and without prompting he can still maintain basic nutrition and hygiene.

			
			
Social and recreational activities
	3	He avoids all social and recreational activities and relinquished all previous recreational activities. 
His parents visit him and he does not want his friends to visit.

			

Travel
	2	From Assessor Chew

			
			
Social functioning
	2	Mr Partridge is anxious and socially avoidant and noted he lost many friends. He maintains a few friendships and his relationship with his family is reasonable overall, as they are generally supportive.

			
			
Concentration, persistence and pace
	3	Mr Partridge described having poor concentration and struggles with daily activities, and described making mistakes. His mental state examination is consistent with 3. 

			

Employability 

	4	From Assessor Chew	

			
Score	Median Class	
2	2	2	3	3	4		=3	
Aggregate Score Impairment	Total	%	
+	+	+	+	+		16	17	

29.	The Appeal Panel adopts the findings and report of Dr Hong, noting employability was not complained about on appeal and remains as assessed by the Medical Assessor at Class 4 and Travel remains as assessed at Class 2. 
30.	On this basis the Appeal Panel will revoke the MAC an issue a new MAC.
31.	For these reasons, the Appeal Panel has determined that the MAC issued on 17 February 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002

Matter number:	W6034/22	
Applicant:	Andrew Partridge	
Respondent:	Newcastle City Council	
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Gerald Chew and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI) 
Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides
	% WPI 	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)	
1. Psycho-logical 	7/3/2022	11
page 55-60	14	17	0
	17	
Total % WPI (the Combined Table values of all sub-totals)	 17%