DETERMINATION OF APPEAL PANEL	
	
CITATION:	Issenmann v Secretary, Department of Communities and Justice [2021] NSWPICMP 182 	
		
APPELLANT:	Kurt Issenmann	
		
RESPONDENT:	Secretary, Department of Communities and Justice	
		
Appeal Panel:	Member Brett Batchelor
Dr Julian Parmegiani
Dr Michael Hong	
		
DATE OF DECISION:	28 September 2021	
		
CATCHWORDS: 	wORKERS cOMPENSATION-    Appeal against Medical Assessment Certificate (MAC) in respect of psychiatric injury suffered by the appellant worker; worker alleges MAC contains demonstrable errors as a result of the Medical Assessor (MA) classing him incorrectly in respect of concentration, persistence and pace (psychiatric impairment rating scale (PIRS) Table 11.5), and employability (PIRS Table 11.6); Held - finding of no demonstrable errors in the MAC as a result of the MA placing the appellant worker in Class 2 for concentration, persistence and pace and in Class 4 for employability; Ferguson v State of New South Wales, Glenn William Parker v Select Civil Pty Limited and Ballas v Department of Education (State of New South Wales) referred to; finding of no error on the part of the MA in his assessments; MAC confirmed.	

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 10 June 2021 Kurt Issenmann (the appellant/Mr Issenmann) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 May 2021, and an Amended MAC on 18 May 2021 hereinafter referred to as “the MAC”.
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 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.	The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
5.	The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed reissued I March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). 
RELEVANT FACTUAL BACKGROUND
6.	The appellant worker commenced work with the respondent employer, Department of Communities and Justice, in 2000. Prior to that he was a member of the NSW Police Force between 1988 and 1996, rising to the rank of Senior Constable. In 1995 he suffered from a major depressive disorder and resigned from the Police Force in 1996. The appellant was off work for approximately 12 months then worked as a subcontract courier for about 18 months until he commenced work with Corrective Services (Department of Communities and Justice) (the respondent) as an administration assistant in the records department where he remained for two years.
7.	Mr Issenmann experienced a number of difficulties in his employment with the respondent thereafter. During his time working at the head office Mr Issenmann witnessed a suicide from his office building window when a female person fell from a building across the road. Early in his employment he was referred to in derogatory personal terms, and later comments were made about his physical appearance. 
8.	From 2005 the appellant worked with the Community Service Team at the Bankstown office. His supervisor was investigated by the ICAC for corrupt conduct, and the whole office came under surveillance and scrutiny. Employees’ work and mobile telephones were monitored and staff were followed outside work hours. Staff were also subject to covert video surveillance whilst in the workplace. This was a very difficult and stressful time according to the appellant. Apart from the ICAC investigation, the respondent conducted its own internal investigation.
9.	Mr Issenmann was disciplined for backdating a case note in accordance with his supervisor’s instructions. He was told that he should have questioned the supervisor’s instructions. He regarded this as unfair. He was denied access to a report on the matter to which he believed he was entitled.
10.	Between 2007 and 2011 Mr Issenmann applied for promotions and other jobs without success. He was told that the reason for this was the disciplinary letter on his file. In December 2013 he commenced work as a Community Corrections officer at Bankstown.
11.	The appellant continued to attend work, and later had a short time off work because of upset over the ICAC investigation, and also because of the death of a brother of one of his colleagues who was murdered. On his return to work, Mr Issenmann went into a general administration role. He experienced problems with his new manager who frequently asked him as to whether he wanted a transfer out of the job. The appellant declined these requests and felt that he was being targeted
12.	The appellant continued to work for the respondent, but by November 2017 felt that he was unable to continue in his role due to the anxiety attacks he was experiencing. He consulted his general practitioner who referred him to a psychologist for treatment. Mr Issenmann was later referred to a psychiatrist for treatment. He suffered a primary psychiatric injury, ceased work on or about 31 July 2018 and was medically discharged thereafter.
13.	Mr Issenmann currently receives treatment from his general practitioner and sees his psychologist every two to three weeks.
PRELIMINARY REVIEW
14.	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.
15.	As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because, although he requested re-examination by a Medical Assessor who is a member of the Appeal Panel, no submissions were made in support of such request. The respondent did not request re-examination. The Panel is of the view that there is sufficient material in the appeal papers on which to base its decision.
EVIDENCE
Documentary evidence
16.	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
17.	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 
18.	Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel. 
Appellant
19.	In summary, the appellant submits that the MAC issued by the Medical Assessor, Dr Andrews, on 18 May 2021 contains demonstrable errors because of the failure of Dr Andrews to assess him in Class 3 in respect of “concentration, persistence and pace” in accordance with the psychiatric impairment rating scale (PIRS) in Chapter 11 of the Guidelines, and in Class 5 in respect of “employability”. The appellant notes that Dr Andrews assessed him as falling into Class 2 for concentration, persistence and pace and Class 4 for employability.
20.	The appellant submits that in placing him in Class 2 for concentration, persistence and pace Dr Andrews did not take into account that he cannot focus for more than five minutes at a time and that a few hours work takes him 18-20 hours. He refers to evidence to this effect in his statement. The appellant submits that the fact that he has a poor memory and concentration, cannot do normal work tasks, or lead a normal life in any sense of the word, is confirmed by the assessment of Dr Rastogi, the independent medical examiner who assessed him on, and produced a report dated, 22 May 2020. 
21.	The appellant submits that a Class 3 for concentration, persistence and pace would be a ‘better fit’ having regard to his inability to attend to any task for a sustained period, or it would seem, to attend to many tasks in a day. He ends to “zone out” when watching movies.
22.	The appellant submits that he has moderate impairment as envisaged in Table [11.5] of PIRS. His inability to watch a movie or concentrate for any longer than five minutes would correlate with the inability to read a newspaper article. A Class 2 level of disability would allow Mr Issenmann to attend a course for job retraining, which clearly, he is incapable of doing.
23.	In respect of employability the appellant submits that the comment of the Medical Assessor that he is able to undertake “Work like activities…but is unable to work” [sic, “work-like activity…probably not obtain employment as a trader”] means that he should have been placed in Class 5 for employability rather than Class 4. Mr Issenmann submits that on all the evidence he cannot work more than four to six hours a fortnight in the most favourable work environment. He should be placed in Class 5, that is he is unable to work.
Respondent
24.	In reply the respondent recites the findings of the Medical Assessor and refers to his reasons for placing the appellant in Classes 2 for concentration, persistence and pace, and Class 4 for employability. 
25.	The respondent notes that Dr Andrews noted that his assessment differed from that of Dr Rastogi in respect of concentration, persistence and pace, and employability. Dr Andrews explained the reason for this difference.
26.	The respondent draws attention to [11.12] of the Guidelines, noting that the assessing psychiatrist should take account of the person’s cultural background, and consider activities that are usual for the person’s age, sex and cultural norms.
27.	The respondent refers to the decision of a Medical Appeal Panel in the matter of NSW Police Force v Wark in which at [32] the Panel said:
“The question of the classification under the PIRS scale is very much one for the AMS after a balancing of all the information before him. There can be some grey areas in which other minds might ascribe a higher or lower rating, but unless a glaringly improbable categorisation has been made, or it can be demonstrated that the AMS was unaware of significant factual matters, the assessment is very much a matter for him/her based upon clinical experience and the assessment of all the material before him.”
28.	The respondent submits that it was open to Dr Andrews to arrive at his assessment and ultimate conclusion based on the examination carried out on the day, and that he was not obliged to accept or follow the assessment of Dr Rastogi. This was especially so as Dr Rastogi’s assessment took place over 12 months before Dr Andrews saw Mr Issenmann. Dr Andrews has provided sufficient and substantial reasoning for assessing the appellant under Class 2 for concentration, persistence and pace.
29.	In respect of employability, the respondent takes issue with the appellant’s submission that no employer would allow an employee to do two to three hours of work over an 18 to 20 hour period on a computer at home, and present the way that the appellant does. There is no evidence to support such a submission and it therefore carries no weight.
30.	The respondent submits that the only medical evidence relied upon by the appellant in making the submission that he could not work for more than four to six hours a fortnight in the most favourable work environment is that of Dr Rastogi. A Class 5 level of impairment for employability means that the worker suffers total impairment and cannot work at all. Such a finding is inconsistent with the detailed history recorded by Dr Andrews of current functioning.
31.	Dr Andrews again acknowledges the difference in his assessment of employability from that of Dr Rastogi and justifies his own conclusion. A Class 4 level of impairment for employability is consistent with the history recorded by the Medical Assessor at the time of his assessment, and his findings on examination. The respondent draws attention to [1.6] of the Guidelines.
32.	The respondent submits that there is no demonstrable error in the MAC as a result of the classification of the appellant in Class 4 for employability.
FINDINGS AND REASONS 
33.	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. An Appeal Panel is limited to determining error as alleged by the appellant but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. Relevant case law includes Siddik v Workcover Authority of NSW and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales.
34.	In Campbelltown City Council v Vegan 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.
35.	Paragraph [1.6] of the Guidelines contains the following statement:
“Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account of the claimant’s relevant medical history and all available relevant medical information…”
36.	Paragraph [11.11] of Chapter 11 of the Guidelines (Psychiatric and psychological disorders) in its reference to the PIRS notes that behavioural consequences of psychiatric disorder are assessed in six scales, each of which evaluates an area of functional impairment. They are
(a)	Self care and personal hygiene (Table 11.1);
(b)	Social and recreational activities (Table 11.2);
(c)	Travel (Table 11.3);
(d)	Social functioning (relationships) (Table 11.4);
(e)	Concentration, persistence and pace (Table 11.6), and
(f)	Employability Table 11.6).
37.	Paragraph [11.12] is as follows:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
38.	The appellant takes issue with the assessment of the Medical Assessor in respect of concentration, persistence and pace, and employability.
Concentration, persistence and pace
39.	Class 2 of Table 11.5 of the Guidelines provides:
“Mild impairment: can undertake a basic training course, or a standard course at a slower pace. Can focus om intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.”
40.	Class 3 of Table 11.5 of the Guidelines provides:
“Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
41.	 Dr Andrews notes under “Social activities/ADL” on p 4 of the MAC:
“He has subjective difficulties with memory and attention. However, he researches investment strategies and opportunities and indicated that he was a successful trader. He tends to ‘zone out’ watching movies.
He has looked for work often over the last twelve months. He described himself as a ‘loose cannon’ indicating that he would struggle to work with others. He spends many hours a week managing to his investments, a work-like activity.”
42.	In his brief comments regarding other medical opinions and findings submitted by the parties, Dr Andrews comments on his different finding from that of Dr Rastogi in respect of concentration, persistence and pace, and employability as follows:
“…Mr Issenmann is successfully trading on the cryptocurrency market, researching strategy and opportunities. He spends many hours each week doing so. These activities require new learning and attention to detail.
Trading is a work-like activity, although Mr Issenmann would probably not obtain employment as a trader. Likely, he could do some work at a reduced pace in an area where he needn’t have much interaction with others. He has a severe but not total impairment.”
43.	The appellant submits that, as he says in his statement dated 10 November 2020, he cannot focus for more than five minutes at a time and that a few hours work takes him 18 to 20 hours. He says that this is confirmed by Dr Rastogi in her report dated 22 May 2020. Dr Rastogi’s assessment in placing Mr Issenmann in Class 3 is as follows:
“Moderate impairment as feels tired and exhausted and has limited attention span and poor retention and recall struggling to do day-to-day tasks, poor working memory and forgetful and poor ability to do complex tasks.”
44.	This contrasts with the assessment of Dr Bisht in his report dated 6 August 2020 for concentration, persistence and pace:
“Kurt is able to sustain concentration on demanding tasks like stock market trading for 3 to 4 hours each day.”
45.	Dr Andrews’ reasons for his decision to place Mr Issenmann in Class 2 for concentration, persistence and pace are expressed according to this PIRS category as follows:
“He has subjective difficulties in this domain. He researches investment strategies and opportunities on the internet and is successful in his trading. He manages his investments and described a coherent strategy for knowing when to buy and sell.”
This reason is based on the history he recorded earlier in the MAC, noted above at [41], that:

“He has subjective difficulties with memory and attention. However, he researches investment strategies and opportunities and indicated that he was successful  trader. He tends to ‘zone out’ watching movies.” 

On that same page of the MAC Dr Andrews’ findings on physical examination are recorded as follows:

“I assessed Mr Issenmann by video. The quality of the connection was excellent, and I was able to do a comprehensive assessment.
He appeared casually attired and mildly unkempt.
He was anxious and acknowledged his depression. During the interview, he was irritable and, at times, teary.
He showed no sign of disorder of thought-form or perception.
He has thoughts of suicide without intent.”
46.	The Panel does not accept that the report of Dr Rastogi corroborates the appellant’s evidence that he cannot focus for more than five minutes at a time and that a few hours work takes him 18 to 20 hours. That is not stated by Dr Rastogi. She does find a limited attention span and poor retention, poor working memory, forgetfulness and poor ability to do complex tasks. This contrasts with Dr Andrews’ finding that Mr Issenmann is successfully trading on the cryptocurrency market, researching strategy and opportunities.
47.	In Glenn William Parker v Select Civil Pty Limited, Harrison AsJ at [19] referred to the PIRS rating scale and as that scale was explained by Campbell J at [14] in Ferguson v State of New South Wales & Ors. In Ferguson, Campbell J quoted [11.12] of the Guidelines (then numbered [11.13]) and said:
“The indicia contained within the PIRS examples in Chapter 11 therefore are not intended to be exclusive, and are subject to the variabilities that accompany a person seeking psychiatric help, such as those matters mentioned – age, sex and cultural norms.”
48.	At [65] in Parker, her Honour again referred to Ferguson, and also to Wark, in the following terms:
“In Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 36 (‘Wark’), where it is stated at [33]:
‘’..the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face. ...’”
49.	The Court of Appeal (Bell p, Payne JA and Emmett AJA) in Ballas v Department of Education (State of NSW), said the following in respect of the PIRS at [94]:
“Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel,’ ‘social functioning (relationships)’, ‘concentration, persistence and pace‘ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”
50.	In assessing concentration, persistence and pace, Dr Andrews used as a guide the appellant’s successful trading on the cryptocurrency market, researching strategy and opportunities to assist him in making his assessment. This activity is also used by Dr Bisht in his assessment of concentration, persistence and pace. Dr Andrews was also able to do a comprehensive assessment by video.
51.	The Panel is of the view that Dr Andrews was in the best position to assess the appellant and has made a correct assessment in placing the appellant in Class 2 for concentration, persistence and pace. That was a finding that was open to him on the evidence and he gave his reasons for assessment. He gave reasons why his assessment differs from that of Dr Rastogi.
Employability
52.	Dr Andrews notes of Mr Issenmann:
“He has looked for work often over the last twelve months. He described himself as a ‘loose cannon’ indicating that he would struggle to work with others. He spends many hours a week managing to his investments, a work-like activity.”
53.	Dr Andrews’ reason for his decision to place Mr Issenmann in Class 4 for employability are expressed according to this PIRS category as follows:
“Although trading is a work-like activity, it is unlikely that Mr Issenmann could do this professionally. Likely, he has some capacity to work a few hours each week in a less demanding role and does not require regular interaction with others.”
54.	Dr Andrews eschews using the reasons he placed Mr Issenmann in Class 2 for concentration, persistence and pace when choosing Class 4 for employability. Rather, he says that is unlikely that he could do trading on the cryptocurrency market professionally. He does however say that the appellant has some capacity to work a few hours each week in a less demanding role which does not require regular interaction with others. The fact that Mr Issenmann can trade on the cryptocurrency market, along with the assessment made by Dr Andrews of him, is indicative of a capacity to engage in work for a few hours each week. Class 5 means that a worker is totally impaired and cannot work at all. Class 4 means that Mr Issenmann has:
“Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.”
55.	What Dr Andrews is in effect saying is that, based on the history that he received from and his clinical assessment of the appellant, he could spend a number of hours each week working in an occupation that was less demanding than cryptocurrency trading. The Appeal Panel cannot find error with the assessment of Dr Andrews that Mr Issenmann is severely impaired in respect of employability but not totally impaired. That was a finding that was open on the evidence and Dr Andrews has given his reasons for such finding.
56.	For these reasons, the Appeal Panel has determined that the MAC issued on 18 May 2021 should be confirmed.