DETERMINATION OF APPEAL PANEL	
	
CITATION:	Ellis v State of New South Wales (NSW Police Force) [2024] NSWPICMP 184	
		
APPELLANT:	Glen Ellis	
		
RESPONDENT:	State of New South Wales (NSW Police Force)	
		
Appeal Panel		
		
MEMBER:	Marshal Douglas	
		
MEDICAL ASSESSOR:	Michael Hong	
		
MEDICAL ASSESSOR:	Douglas Andrews	
		
DATE OF DECISION:	28 March 2024	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Whether Medical Assessor (MA) took into account all relevant matters when rating appellant’s impairment in the psychiatric impairment rating scale for travel and for social functioning; Appeal Panel found that MA took into account all relevant matters, that MA had applied correct criteria to assess appellant’s permanent impairment and that there was no demonstrable error in the Medical Assessment Certificate (MAC); Held – MAC upheld.

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 4 December 2023 Glenn Ellis, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 December 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 (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 ground(s) of appeal on which the appeal is made. 
4.	Rule 128 of the Personal Injury Commission Rules 2021 (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).
RELEVANT FACTUAL BACKGROUND
6.	The appellant suffered a psychological injury due to numerous incidents that occurred over the course of 29 years in his employment as a police officer with the State of New South Wales (NSW Police Force), the respondent. He claimed compensation from the respondent for 19% whole person impairment (WPI) which he said resulted from his injury and also compensation for pain and suffering. He relied on a report of consultant psychiatrist Dr Graham George dated 23 May 2022. 
7.	The respondent’s insurer denied the respondent was liable to pay compensation to the appellant. It relied on a report of psychiatrist Dr Alice Neale dated 13 September 2022, who assessed the appellant had 7% WPI from his injury. Section 65A(3) of the Workers Compensation Act 1987 requires that the degree of permanent impairment of a worker from a psychological injury must be at least 15% in order for the worker to be entitled to compensation under s66 for permanent impairment.
8.	Following the insurer denying liability for the appellant’s claim, the appellant instituted proceedings in the Personal Injury Commission (Commission) seeking the Commission determine his claim for compensation. On 10 October 2023 the Commission referred the matter to the Medical Assessor, who examined the appellant on 20 October 2023. As said, she issued a MAC on 14 November 2023. In that she certified the appellant had 8% WPI from his injury. 
9.	The assessment the Medical Assessor made of the appellant’s permanent impairment was in accordance with the criteria of Chapter 11 of the Guidelines, which required the Medical Assessor to determine the seriousness of the effect of the appellant’s injury in six areas of activity and conduct, termed the psychiatric impairment rating scale (PIRS). The appellant’s appeal against the MAC relates to the Medical Assessor’s rating of his impairment in the PIRS for travel and for social functioning. The Medical Assessor rated the appellant’s impairment in those PIRS respectively as Class 1 and Class 2 and in the PIRS rating form within the MAC provided the following explanation for her ratings:
Travel	1	Mr Ellis is able to drive motorbike without any difficulties and can go on long drives up to two hours at a time. He, however, finds it difficult to ride his car and dislikes driving it.	
Social functioning	2	He said that he has been in a relationship with his current partner for about nine years now and said that his relationship with his partner is generally 'all right'.
He, however, has lost few friendships and no more socialises with them as previously.	
10.	The Medical Assessor also detailed the following within the history she obtained relating to the travelling the appellant does:
“Mr Ellis reported that he enjoyed riding motorbikes and used to go for rides, which he found very relaxing. He continues to go for long drives for about two hours to Bathurst to relax. He reported feeling comfortable when doing these activities.
Mr Ellis is able to drive motorbike without any difficulties and can go on long drives up to two hours at a time. He, however, finds it difficult to ride his car and dislikes driving it.”
11.	The Medical Assessor also detailed the following within the history she obtained relating to the appellant’s relationships:
“Mr Ellis stated that he was married for 25 years and separated approximately 9 to 10 years back. He has two daughters from that marriage, 32 and 27 years old, respectively. He said that his kids have been estranged since the divorce, as they blamed him for the breakdown of the marriage. Mr Ellis stated that he currently lives with his partner and has been in a relationship with her for the last nine years. He described having a good relationship with her……
Mr Ellis describes a good relationship with his partner; however, they experience some tension and arguments. He reports he has lost some friendships.”
12.	The Medical Assessor compared her assessment with the assessment Dr George made of the appellant’s permanent impairment. The Medical Assessor noted that her rating of the appellant’s function in travel differed from the rating Dr George made. The Medical Assessor said that the appellant “clearly stated that finds riding on his motor bike quite distracting and relaxing and, in fact, enjoys that”. The Medical Assessor said that this indicated a Class 1 impairment. The Medical Assessor also noted Dr George rated the appellant’s impairment in social functioning as Class 3, but the Medical Assessor highlighted that the appellant had said that the reasons for his separation from his first wife were that things were not working out and that the appellant did not attribute his separation from his wife to his mental health status.
PRELIMINARY REVIEW
13.	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.
14.	As a result of that preliminary review, the Appeal Panel determined that it did not require the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel would be confirming the MAC and did not need to re-assess any part of the medical dispute that had been referred for assessment. Moreover, absent the Appeal Panel finding error in the MAC, the Appeal Panel has no power to examine the appellant.
EVIDENCE
15.	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. 
SUBMISSIONS 
16.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
17.	In summary, the appellant submitted that the Medical Assessor was wrong not to rate his impairment in the PIRS for travel as Class 2. The appellant disputed that he is able to make a road trip lasting one to two hours but also submitted that this is “an infrequent occurrence rather than a regular activity”. The appellant said that he had only taken a trip to Bathurst two times in the last four years and had not done so for a considerable time. The appellant submitted that he refrains from using public transportation due to hypervigilance and avoids driving a car.
18.	The appellant submitted that the Medical Assessor ought to have rated his impairment in the PIRS for social functioning as Class 3. The appellant highlighted that his previous marriage ended in divorce and submitted that the symptoms from his work injury played a significant part in his difficulties with that marriage. The appellant highlighted that he is estranged from his two daughters. The appellant submitted that his relationship with his current partner is strained because of arguments due to his moods. The appellant said that he and his partner had separated twice but resumed their relationship.
19.	In reply, the respondent submitted that based on the history the Medical Assessor obtained and also the history Dr Neale obtained the appellant failed to meet the criteria for a Class 2 impairment in travel. The respondent highlighted that the Medical Assessor reported that the appellant could ride his motor bike without difficulty and went on long trips for up to two hours at a time and that he rode his motor bike to Bathurst to relax.
20.	With respect to social functioning, the respondent noted that Dr Neale had reported that the appellant said that his first marriage broke down because of marital discord for many years and did not attribute that to his mental health symptoms. The respondent also highlighted that the Medical Assessor reported the appellant describing he had a stable and good relationship with his partner despite experiencing tension and arguments occasionally. The respondent submitted that this accorded with a Class 2 impairment in social functioning. 
FINDINGS AND REASONS 
21.	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. 
22.	In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. 
23.	Paragraph 1.6 of the Guidelines requires a Medical Assessor to rate a worker’s impairment at the time when the assessment is done. The assessment must be based on all relevant information available to the Medical Assessor, which includes the history the Medical Assessor has obtained at the time of the assessment and also the clinical observations the Medical Assessor makes of the worker during the Medical Assessor’s mental state examination of the worker. The Medical Assessor is entitled to give pre-eminence to his or her clinical observations when rating the worker’s impairment. 
24.	To establish that a Medical Assessor has rated a worker’s impairment incorrectly in any of the PIRS there must be more than a difference of opinion on the subject matter about which reasonable minds might differ.
25.	The history the Medical Assessor obtained relating to the appellant’s ability to travel was that the appellant goes for long rides on his motor bike, including rides for two hours at a time to Bathurst and does so without difficulty. The Medical Assessor noted that the appellant finds it difficult to drive his car and dislikes driving it. There is no evidence within the material that the appellant’s trips to Bathurst have been restricted to two trips over the last four years. There is no evidence that he refrains from using public transportation. 
26.	As indicated, the Medical Assessor was entitled to give pre-eminence to the history she obtained. In the Appeal Panel’s view her rating of the appellant’s impairment in travel as Class 1 accords with that history. In the Appeal Panel’s view what the Medical Assessor has described in her explanation for rating the appellant’s impairment as Class 1 accords with a minor deficit in travel within a normal variation in the general population. This is because the appellant is able to travel and travel long distances on his own and without supervision on his motor bike. 
27.	In the Appeal Panel’s view the Medical Assessor has considered all the information available to her. It cannot be demonstrated that she has misunderstood any of the information or that her reasoning process for the assessment she provided is not supported by the factual matters she highlighted. Her assessment is not glaringly improbable. It does not matter that Dr George rated the appellant’s impairment in travel differently, as all that represents, in the Appeal Panel’s view, is a difference of opinion between Dr George and the Medical Assessor with respect to a subject about which reasonable minds might differ. That is not sufficient to establish error. 
28.	The Appeal Panel finds that the Medical Assessor applied the correct criteria to assess the appellant’s impairment in travel, and that is because she assessed his impairment by reference to the criteria in chapter 11 of the Guidelines.
29.	The Appeal Panel also considers that the Medical Assessor has not erred with respect to her rating the appellant’s impairment in social functioning as Class 2. Again, the Medical Assessor has considered all the relevant information. She was aware of the appellant’s divorce from his wife some nine years ago and that he had been estranged from his two children from that relationship since then. The Medical Assessor noted that the appellant had a good relationship with his partner although it was beset with tension and arguments at times. The Medical Assessor noted that the appellant had lost some friendships. 
30.	The Appeal Panel considers the evidence does not support the appellant’s submission that there have been two periods of separation between him and his partner. The only evidence relating to that matter is contained within the history Dr George obtained which is that on occasion his partner goes away with a few friends on a bike ride. Dr George described that as an “enforced separation”. The Appeal Panel does not consider that the appellant’s partner going on trips with friends indicates any impairment in the appellant’s ability to maintain a relationship with his partner.
31.	Again, the Medical Assessor was entitled to rely upon the history she obtained at the time of examination. That history differed slightly from the history Dr George obtained. The Appeal Panel considers that based on the history the Medical Assessor obtained it cannot be demonstrated that she has misunderstood any matter or that her explanation for assessing the appellant’s impairment as Class 2 is unsupported by the matters on which she relied.
32.	Further, the Appeal Panel again finds that the Medical Assessor has applied the correct criteria to assess the appellant’s impairment and this is again because she assessed his impairment by reference to the criteria of Chapter 11 of the Guidelines.
33.	For these reasons, the Appeal Panel has determined that the MAC issued on 14 November 2023 should be confirmed.