Airline Cleaning Services Pty Limited v Huang
[2022] NSWPICMP 56
•22 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Airline Cleaning Services Pty Limited v Huang [2022] NSWPICMP 56 |
| APPELLANT: | Airline Cleaning Services Pty Limited |
| RESPONDENT: | Ding Yi Huang |
| APPEAL PANEL: | Member R J Perrignon Dr Michael Hong Dr Julian Parmegiani |
| DATE OF DECISION: | 22 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal from assessment of 15% whole person impairment (psychological); whether assessor erred in assessing impairment in respect of Travel; whether assessor erred in assessing impairment in respect of Employability; Held- Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant employer appeals from the Medical Assessment Certificate of Medical Assessor Dr Takyar dated 11 November 2021.
Dr Takyar assessed a 15% whole person impairment as a result of psychological injury on 20 October 2018, when the worker was employed as a cleaner. In doing so, he assessed a class 2 impairment in respect of the PIRS scale, Travel, and a class 3 impairment in respect of Adaption.
The appellant says that the assessment of these two rating scales demonstrates error and the application of incorrect criteria. It says the evidence justified assessments of Class 1 impairment and Class 2 impairment respectively.
The Appeal Panel conducted a preliminary review of Dr Takyar’s medical assessment in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).
Submissions
In brief summary, the appellant employer submits as follows:
(a) with respect to Travel, Dr Takyar took a history that the worker drove herself to work, and did not regularly drive to new places, from which it should be inferred that she is able to do so, but not regularly. She has apparently recommenced driving since Dr Prior’s assessment of 2 November 2020, when she said would be driving but for a traffic infringement. This history justifies an assessment of class 1 impairment, and
(b) with respect to Adaption, Dr Takyar took a history that she had been working 5 hours per day for 11 months, and no employment difficulties were described. This justifies an assessment of class 2 impairment.
The respondent worker submits that the original assessment of Dr Takyar should not be disturbed, for the following reasons:
(a) with respect to Travel, a class 2 impairment was supported by the evidence, which establishes that she could travel without a support person, but only in a familiar area, and
(b) with respect to Adaption, a class 3 impairment was supported by the evidence, which does not establish that she is fit for more than 15 hours work per week, and does establish that she remains on Citalopram and is not fit for work in her previous position.
Travel
The Guidelines provide the following criteria for class 1 and 2 impairment in respect of Travel:
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision. |
| Class 2 | Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour. |
In the PIRS form, Dr Takyar gave the following reasons for assessing a class 2 impairment:
“Ms Huang can travel within her local domain to her GP or supermarket but prefers to have her neighbour take her or accompany her. She can drive herself to work but does not travel to new places on a regular basis.”
That is consistent with the history recorded at [4] of the certificate.
Even if, as the appellant suggests, this means that the worker can travel to new environments on occasion, it does not suggest that she can do so without supervision. It does not satisfy the criterion in Class 1. Dr Prior took a history that she had a panic attack at least once when driving, which also supports Dr Takyar’s assessment of mild impairment with respect to travel.
In our view, the history taken by and evidence before the assessor was more consistent with the criteria in class 2. That assessment was reasonably open to him.
We can identify neither error nor the application of incorrect criteria. This ground fails.
Employability
The Guidelines provide the following criteria for class 1 and 2 impairment in respect of Employability:
| Class 2 | Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required). |
| Class 3 | Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful). |
In the PIRS form, Dr Takyar gave the following reasons for assessing a class 3 impairment. Though he used the heading, ‘Adaptation’, we are satisfied he was referring to the ‘Employability’ scale:
“Ms Huang stated that she works from 12 to 5pm at TK Pacific Marketing as a marketing assistant, with her duties in English. She has worked there for 11 months. She is able to travel there herself. She did not describe any particular problems at her employment.”
Dr Takyar did not elicit from the worker how many days per week she was working. In her submissions, she says there is no evidence that she was working five days per week. She points to the history taken by treating psychiatrists Dr Khan in his report of 2 February 2021, which describes her working five hours per day, three days per week. This is consistent with the subsequent report of rehabilitation consultant Ms Lam that, at a case conference on 23 February 2021, the nominated treating doctor verbally certified the worker fit for employment for 15 hours per week. She was by then working as an administrative assistant at TK Pacific Marketing.
In the absence of any indication from Dr Takyar as to how many days per week the respondent was working, we are reliant on the other evidence, and accept that in all likelihood she was working five hours per day for three days per week as an administrative assistant in a marketing firm. That amounts to a 15 hour week.
To qualify for a class 2 impairment, a worker must be able to work full time, in a different environment from her pre-injury employment, though requiring comparable skill and intellect or alternatively, to work in the same position as before for up to 20 hours per week.
The Assessor made no finding that the worker was capable of full time work in any capacity. In view of the ongoing symptoms that he described, such a finding was not open to him.
She is not working in the same position as before. She was previously a cleaner, in a situation that she found so stressful it caused psychiatric injury. She has changed employment by becoming an administrative assistant, and reports no such difficulties in her current employment. Those circumstances do no satisfy the alternative criterion for class 2, namely that she can work in the same position as before, with different persons or in a different location. Her current position is entirely different from her previous position as a cleaner.
In our view, the evidence justifies a finding that the worker can work for up to 20 hours per week in a position that is qualitatively different, and is less stressful. Whereas her previous position was so stressful that it caused psychological injury, no difficulties are reported in respect of the current position. That is consistent with a class 3 impairment.
Even if the worker has been working 25 hours per week, which we do not accept, the rating of 3 is still open to the Medical Assessor. Descriptors are a guide only. Some people will fulfil some of the criteria for class 2 and some for class 3. On the evidence, the respondent is not working full-time and not working more than 25 hours in the same position as she was before the injury. It follows, in our view, that a class 3 assessment was reasonably open to the Medical Assessor. A class 2 impairment is not indicated because the evidence supports
Dr Takyar’s finding that, due to her current psychiatric symptoms, the worker would not be ‘fit for fulltime employment with similar duties but in a different environment’.We can identify neither error nor the application of incorrect criteria. This ground fails.
Conclusion
For the reasons given, the appeal is dismissed, and the Medical Assessment Certificate of
Dr Takyar is confirmed.
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