DETERMINATION OF APPEAL PANEL	
	
CITATION:	Wallace v Bre Three Pty Ltd [2024] NSWPICMP 556	
		
APPELLANT:	Emma Wallace	
		
RESPONDENT:	Bre Three Pty Ltd	
		
Appeal Panel		
		
MEMBER:	Carolyn Rimmer	
		
MEDICAL ASSESSOR:	Douglas Andrews	
		
MEDICAL ASSESSOR:	Professor Nicholas Glozier	
		
DATE OF DECISION:	9 August 2024	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Claim for primary psychiatric injury; worker appealed assessment in the psychiatric impairment rating scale (PIRS) category of social functioning; no demonstrable error found in the Medical Assessment Certificate (MAC) in relation to the PIRS scale of social functioning; Held – the assessment in this class was not made on the basis of incorrect criteria; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 5 June 2024 Emma Wallace lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Cowper Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 May 2024.
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 ground(s) 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). 
RELEVANT FACTUAL BACKGROUND
6.	Emma Wallace (the appellant) lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 8 September 2022 in which she claimed 17% whole person impairment (WPI) in respect of a psychological disorder on 
21 August 2000. The appellant also made a claim for 12% WPI of the left upper extremity as a result of a result of the physical injury on 21 August 2000.  
7.	The matter was referred to Medical Assessor Clayton Cowper Smith (the Medical Assessor), for assessment. 
8.	The Medical Assessor examined the appellant on 8 December 2022.
9.	In a MAC dated 20 December 2022, the Medical Assessor found that the degree of permanent impairment resulting from psychological injury on 21 August 2020 is not fully ascertainable.
10.	In an amended Referral for Assessment of Permanent Impairment dated 13 March 2024, the Medical Assessor was requested to assess the appellant. 
11.	The Medical Assessor examined the appellant on 23 April 2024 and assessed 7% WPI in respect of the psychological condition. He added 1% WPI for effects of treatment which resulted in a total of 8% WPI as a result of the injury on 21 August 2000. 
PRELIMINARY REVIEW
12.	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.
13.	The appellant submitted that re-examination by a Medical Assessor, who is also a member of the Appeal Panel, may be appropriate in this case.
14.	As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination because there was sufficient evidence to make a determination.
EVIDENCE
Documentary 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.  
Medical Assessment Certificate
16.	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 
17.	Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel. 
18.	The appellant’s submissions include the following:
(a)	the Medical Assessor based his assessment on incorrect criteria with respect of the assessment of a Class 2 rating on a social functioning. The Medical Assessor used incorrect criteria because he has applied the wrong category of impairment in the Psychiatric Rating Impairment Scales (PIRS);
(b)	the Medical Assessor’s assessment of Class 2 for social functioning is inconsistent with his own examination findings. There is clear information to demonstrate that the appropriate category for social functioning is a Class 3. The appellant’s relationship has previously broken down. She and her partner had separated. Her other relationships were at least strained, and she has had assistance to help her look after her children;
(c)	the impairment is more appropriately rated as a Class 3 under Table 11.4;
(d)	the Medical Assessor made a demonstrable error in categorising the appellant worker as Class 2 social functioning, as the Medical Assessor and overlooked details readily apparent from a reading of the history he had recorded;
(e)	based on his examination and the history taken and the proper interpretation of social functioning, the Medical Assessor ought to have assessed a Class 3, moderate impairment for social functioning;
(f)	the MAC should be revoked and that a new assessment under the PIRS be substituted in its place, maintaining the ratings for all of the other PIRS categories except amending the assessment with respect to social functioning to be increased from the Class 2 to a Class 3, and
(g)	alternatively, the appropriate course is for the Medical Appeal Panel to re-examine the appellant.
19.	The respondent’s submissions include the following:
(a)	the Medical Assessor noted that the appellant had reconciled with her de facto partner, who moved back to their rental home. The Medical Assessor noted the appellant’s friendships had been strained because she is avoidant;
(b)	in a medical report dated 16 March 2022, Dr Khan thought she satisfied class 3 on the basis relationships with her family and friends had been strained and her depressed mood, agitation, irritability and social withdrawal led to her relationship of two years ending in 2021. Dr Khan noted she had not been able to enter any new intimate relationships, remained withdrawn from her friends but is able to care for her children;
(c)	in a medical report dated 19 July 2022, Dr Bisht thought the appellant satisfied class 3 on the basis she separated from her partner of three years last year;
(d)	the respondent does not agree that Medical Assessor took an incorrect history or did not take into account all the history obtained from the appellant. The Medical Assessor stated within the MAC that in making his assessment of the appellant’s permanent impairment, he took into account the information he obtained from his assessment and his observations of the appellant as well as information from relevant documents, in regard to which he provided summaries within the MAC;
(e)	there is nothing within the documentary evidence that conflicts with the history he obtained. The Medical Assessor only partly based his assessment on the fact the appellant and her partner had reconciled;
(f)	the Guidelines state that the Guidelines are not meant to provide a "recipe approach" to the assessment of permanent impairment and that clinical judgment remains very important. The examples given of the activities falling under the various PIRS categories are precisely that, examples only;
(g)	the appellant maintains good relations with her children and has regular contact with her father and grandmother. Those additional matters do not support a rating of Class 3 in the category of social functioning, and
(h)	in conclusion, the assessments made by the Medical Assessor are correct and in accordance with the evidence and the clinical judgement and evaluation of the Medical Assessor on the day of assessment and the MAC should be confirmed by the Medical Appeal Panel.
FINDINGS AND REASONS 
20.	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. 
21.	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.
22.	Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 the form of the words used in s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
23.	The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence in the matter.
Social functioning 
24.	The appellant submitted that the Medical Assessor used incorrect criteria because he has applied the wrong category of impairment in the PIRS. The appellant argued that the Medical Assessor’s assessment of Class 2 for social functioning is inconsistent with his own examination findings and there is clear information to demonstrate that the appropriate category for social functioning is a Class 3. 
25.	In the MAC under “Social activities/ADL”, the Medical Assessor wrote: 
“Her friendships have been strained because she is avoidant. She said she has become a homebody and does not like going out for dinner with her girlfriends. A girlfriend drops in for coffee occasionally. She does not attend social activities outside the home much. She has a takeaway coffee from the McDonald's drive-thru. She likes to make breakfast on weekends because she is comfortable at home. She has no hobbies other than walking on the beach.
She will sit in the car, watch her socialising friends' mothers, but they do not
socialise together. The children occasionally have play dates. Before the injury, she used to go to raffles with her sister-in-law for dinners at least every fortnight.
Her relationship with her mother is strained, but this was pre-existing. She is close to her father. He continues to come once a week, bringing the children lunch and spending time with them. He is also financially helping.
…
Her grandmother visits every three to four weeks, and either her sister-in-law or grandmother takes care of the children when needed. Her sister-in-law lives nearby, and they visit occasionally for birthdays and celebrations. They are also available if needed.”
26.	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
Mrs Wallace’s existing relationships have been strained, but she has reconciled with her partner and has enduring relationships with her immediate family. She has neglected friendships.”
27.	The examples under Table 11.4 for “Social functioning” in the Guidelines are: 
“Table 11.4: Psychiatric impairment rating scale – social functioning:
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (e.g. a partner, close friendships lasting years).
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.
Class 4 Severe impairment: unable to form or sustain long term relationships.
Pre-existing relationships ended (e.g. lost partner, close friends). Unable to care for dependants (e.g. own children, elderly parent).
Class 5 Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.”
28.	The appellant argued that her relationship with her partner had previously broken down and they had separated. The Appeal Panel accepted that the relationship with her partner had broken down in October 2021, some 10 months after the injury, however, the Medical Assessor reported she had since reconciled with her partner. 
29.	Dr Ashwinder Anand, neuropsychiatrist, in a report dated 8 March 2024, noted that the appellant was in a de facto relationship and they have been in a relationship for four years, with a temporary split occurring, lasting six months, in late 2021. He wrote: 
“… Ms Wallace feels that she has improved now in terms of her psychological symptoms because they have reduced in frequency and intensity. Her motivation also appears to have improved and she stated that, ‘Now I'm able to look after my kids alone, whereas previously I couldn't’.”
30.	Dr Anand noted that the appellant feels that her relationship with Troy has improved as well. He wrote: “About nine weeks after her second daughter was born, they separated for about six months between October 2021 and February 2022 because he could not cope with her mental health issues”.
31.	Dr Anand noted that the appellant said that she goes fishing with Troy at least once a month. She said that the separation was prompted because of her mood swings, anger issues and low frustration tolerance following the injury.
32.	Dr Abdal Khan, consultant psychiatrist, in a report dated 16 March 2022 assessed Class 3 for social functioning providing the following reasons: 
“Ms Wallace’s relationships with her family and friends have been strained. Her depressed mood, agitation, irritability and social withdrawal led to her relationship of two years ending in 2021. Ms Wallace has not been able to enter any new intimate
relationships. She remains withdrawn from her friends. Ms Wallace is able to care for her children.”
33.	Dr Yajuvendra Bisht, consultant psychiatrist, in a report dated 19 July 2022 assessed Class 3 for social functioning providing the following reasons: “Emma separated from her partner of 3 years last year. She said that the separation was due to her mood swings”.
34.	Dr Bisht reported the following history: 
“She said that the symptoms have been fluctuating in intensity over the last 2 years.
She told me - ‘My relationship broke down due to my mood swings. It broke down last year in October.’
‘I do have some close friends, but I have withdrawn myself; I don’t like going out and doing anything; I used to go away in the caravan camping, taking the kids to the park and have lunch at the park. I used to go travelling. My friends and I used to go to Queensland in the caravan. We would take the kids in the school holidays. When I leave the house, I sit in the car for a while before I go to the doctors. I get super
nauseous because of anxiety.’
She said that her children are well looked after – ‘Sometimes I get scared to cook
dinner. Because the pot is heavy. Sometimes I resort to cooking frozen meals.
They are always fed and bathed and well looked after.’
‘Till October I wasn’t doing it on my own and then when he left it back very hard.
I not only just lost my partner but also someone who was a big help.’
She described that she has not been attending social gatherings as often as before and has been making excuses for not attending them.
….
She doesn’t have any help with looking after the children – ‘My mum lives 15 minutes away, my dad is always working. They are not living together anymore’.”
35.	The Appeal Panel considered that impairment is to be assessed at the time of examination. The Guidelines at 1.6 provide that assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking into account the claimant’s relevant medical history and all available relevant information.
36.	The Appeal Panel noted that Drs Khan and Bisht assessed the appellant as Class 3 for social functioning, but those examinations took place in 2022 during the six month or so period when the appellant was separated from her partner. Since those examinations, the appellant has reconciled with her partner, and from the dates in the evidence this reconciliation has last over 18 months at least. Further she told Dr Anand that her relationship with her partner has improved. 
37.	The appellant argued that her other relationships were at least strained, and she has had assistance to help her look after her children. The Appeal Panel accepts that other relationship are strained although the appellant appears to have a good relationship with her father and has maintained some friendships with a girlfriend, who drops in for coffee occasionally, and with her sister in-law. 
38.	The Appeal Panel does not accept that the appellant requires assistance to look after her children. The appellant told Dr Anand that she was able to look after her children alone, whereas previously she could not. She also told Dr Bisht that her children were always fed and bathed and well looked after and that she did not have any help with looking after the children. Dr Khan noted that the appellant was able to care for her children. At the time of examination by the Medical Assessor she looked after her children without help and indeed described a good relationship with her children, enjoying time with her children. 
39.	The Appeal Panel accepts that there had been a period of separation in her relationship with her de facto and that relationship had been severely strained at that time. However, there was a reconciliation and the relationship has improved. The appellant is able to look after her children. She is close to, and has fairly frequent contact with many members of her family.
40.	The appellant submitted that the impairment is more appropriately rated as a Class 3 under Table 11.4.
41.	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.
42.	The Appeal Panel is satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS scale of social functioning and that the assessment in this class was not made on the basis of incorrect criteria.
43.	For these reasons, the Appeal Panel has determined that the MAC issued on 9 May 2024 should be confirmed.