Apostolovska v State of New South Wales (South Western Sydney Local Health District)

DETERMINATION OF APPEAL PANEL
CITATION:	Apostolovska v State of New South Wales (South Western Sydney Local Health District) [2024] NSWPICMP 547
APPELLANT:	Zora Apostolovska
RESPONDENT:	State of New South Wales (South Western Sydney Local Health District)
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Professor Nicholas Glozier
DATE OF DECISION:	7 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) considered all relevant evidence; whether MA erred in his ratings of appellant’s impairment in social functioning and in concentration, persistence and pace; Held – MA considered all relevant evidence and made no error; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 May 2024 Zora Apostolovska lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 May 2024.
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.
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.
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.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment in 2018 as a hospital assistant with the State of New South Wales, working within the Southwestern Sydney local health district. She was stationed at the Bankstown Hospital. Due to events that occurred within her work in the second half of 2020 she suffered a psychological injury.
On 13 October 2023 the appellant’s solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation for permanent impairment from her injury. The appellant’s solicitors further advised that the appellant relied on a report of psychiatrist
Dr Alyosha Jakobson dated 13 September 2023 to support her claim. Dr Jakobson had examined the appellant on 12 September 2023 and advised that he had assessed she had a permanent impairment from her injury of the order of 19% whole person impairment (WPI).
The respondent’s solicitors then organised for the appellant to be examined by psychiatrist Dr Yajuvendra Bisht on 31 January 2024. In a report dated 13 February 2024 Dr Bisht advised that he assessed the degree of the appellant’s permanent impairment from her injury was 3% WPI.
On 14 March 2024 the insurer wrote to the appellant to notify her in accordance with s 78 of the 1998 Act that it disputed she was entitled to compensation for permanent impairment from her injury. It advised her this was because it believed her permanent impairment did not exceed the threshold of at least 15% permanent impairment imposed by s 65(A)(3) of the Workers Compensation Act 1987 (the 1987 Act) for her to entitled for compensation for permanent impairment under s 66 of the 1987 Act. It advised her that it believed that
Dr Bisht’s assessment of her permanent impairment “is more balanced” and “nuanced” than the assessment Dr Jakobson had made and that it preferred Dr Bisht’s report.
On 26 March 2024 the appellant’s solicitors, on behalf of the appellant, lodged with the Personal Injury Commission (Commission) an Application to Resolve a Dispute seeking determination of the appellant’s claim for compensation for permanent impairment from her injury. The matter found its way before a Commission Member, namely Mr John Turner, who on 2 May 2024 directed, with the consent of the parties, that the matter be remitted to the President of the Commission so that it could be referred to a Medical Assessor to assess the medical dispute between the parties regarding the degree of the appellant’s permanent impairment from her injury.
A delegate of the President duly issued that referral on 2 May 2024, in which the medical dispute that the Medical Assessor was required to assess was described in the following terms:
“ the degree of permanent impairment of the worker as a result of an injury
(s319(c))
 whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion
(s319(d))
 whether impairment is permanent (s319(f))
 whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 23 October 2023 (Deemed) - disease
Body part/s referred: Psychiatric and psychological disorders
Method of assessment: Whole Person Impairment”
The Medical Assessor assessed and certified that the appellant’s impairment is permanent and that the degree of her permanent impairment is fully ascertainable. He also identified that the appellant had a pre-existing condition of generalised anxiety disorder and he assessed that a proportion of the appellant’s permanent impairment from her injury was due to that pre-existing condition and made a deduction for that. He assumed in accordance with s 323(2) of the 1998 Act the deduction was 10%.
The appellant has not raised any issue in her appeal with the Medical Assessor’s findings and assessment relating to these matters.
The Medical Assessor also indicated in the MAC that he assessed the appellant’s impairment by reference to the Psychiatric Impairment Rating Scale (PIRS), which the Appeal Panel notes is detailed in paragraphs 11.11 and 11.12 and Tables 11.1 – 11.6 of the Guidelines.
The Medical Assessor in the rating form within the MAC detailed that he rated the appellant’s impairment in self-care and personal hygiene as Class 2, in social and recreational activities as Class 3, in travel as Class 2, in social functioning as Class 2, in concentration, persistence and pace (CPP) as Class 2, and in employability as Class 5. The Medical Assessor noted that the median of his Class scores is 2 and that the aggregate is 16, which converts to 9% WPI and in accordance with Table 11.7 of the Guidelines. When the Medical Assessor made the deduction of 10% under s 323(1) of the 1998 Act for the proportion of the appellant’s permanent impairment that he considered was due to her pre-existing generalised anxiety disorder, he assessed, and certified, that the degree of the appellant’s permanent impairment from her injury was 8%.
The appellant in her appeal against the medical assessment contends that the Medical Assessor’s rating of her impairment in social functioning and CPP is incorrect.
The Medical Assessor provided the following reasons in the PIRS rating form for his rating of the appellant’s impairment in social functioning:
“She is anxious and socially avoidant, and ceased contact with some of her friends.
She has long-term friendships.
The relationship with her general family and children is good.”
The Medical Assessor also noted within the MAC that the appellant has two adult children. The Medical Assessor noted that one daughter visits her once every fortnight. Further, the Medical Assessor recorded that the appellant’s daughter was with her during his examination of her, which was done by video. The Medical Assessor also noted that the appellant has two sisters. He noted that one of her sisters lives far away and that their relationship is “ok” and that they talk to each other. The Medical Assessor noted that the appellant has not spoken to her other sister for a few years because of a disagreement.
The Medical Assessor noted that the appellant “rarely visits her friends and they had a catch up a couple of months ago and generally they talk on the phone”. The Medical Assessor also noted that the appellant visits her husband’s family and her cousins every few months. The appellant’s husband passed away in 2003.
The Medical Assessor provided the following reasons in the PIRS rating form for his rating of the appellant’s impairment in CPP:
“Ms Apostolovska reported having reduced concentration.
Shaking makes it difficult for her to engage in some activities and her physical injuries are not assessable in the PIRS.
She play [sic] video games on her phone and focussed well during the assessment, and recalled all information well, although could not recall a consistent history relating to her previous psychological symptoms as recorded in her GP records.
Her mental state examination is consistent with 2.”
The Medical Assessor recorded within the body of the MAC that the video games the appellant plays on her phone are card games such as solitaire and “Panda Pop”. The Medical Assessor also recorded that the appellant pays her bills with a credit card using her mobile phone and that the appellant manages her own finances. The Medical Assessor recorded that the appellant can read but not write English and that she has never been a book reader and that she does not usually read newspapers or magazines. The Medical Assessor recorded that the appellant would not be able to read now anyway because of a tremor she has which makes it difficult for her to hold things.
The Appeal Panel observes that there is nothing within the evidence that links the appellant’s tremor to her injury.
The Medical Assessor noted from his examination of the appellant that she spoke spontaneously and was attentive and gave a clear history and that she was able to provide clarification when asked and that she disagreed with some matters in her recorded past history. The Medical Assessor recorded that the appellant was focused throughout the assessment.
The Medical Assessor noted that Dr Jakobson had rated the appellant’s impairment in CPP as Class 3. The Medical Assessor said this was because Dr Jakobson found the appellant did not read, cannot concentrate on movies and struggled to follow conversations. The Medical Assessor said that because of that, Dr Jakobson felt the appellant could not undertake a basic retraining course or focus on intellectually demanding tasks for 30 minutes.
The Medical Assessor also noted that Dr Bisht had rated the appellant’s impairment in CPP as Class 2, which the Medical Assessor said was because Dr Bisht had found the appellant could not read more than a few lines or maintain her concentration during his assessment of her and because he had found the appellant could play card games and other games and manage her finances.
With respect to the assessments Dr Jakobson and Dr Bisht had made, the Medical Assessor commented that the appellant had reported to him that her shaking affects all her daily activities such as knitting. He also noted that the appellant had never been a book reader and cannot write in English but can read and write in Macedonian but does not do that because of her shaking. The Medical Assessor also commented that the appellant plays games on the phone and manages her finances and that she was focused well in his assessment of her and he considered that a Class 2 rating is an accurate rating.

PRELIMINARY REVIEW

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.
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. This is because the Appeal Panel came to the view that the appellant had not established any of the grounds for appeal on which he relied, and consequently there was no reason for the Appeal Panel to examine the appellant.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

EVIDENCE

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

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
Paraphrasing the appellant’s submissions to provide a summary of them, they are that her cessation of contact with more than one friend amounts to some of her established relationships being severely strained such that the Medical Assessor erred by rating her impairment in social functioning as a Class 2.
The appellant referred to paragraph 96 of a statement she signed on 24 January 2024 in which she said that she was quiet and withdrawn and now has only two friends that she sees once a month whereas previously she caught up with her friends regularly. The appellant also said in her statement that she no longer speaks with her relatives besides her daughter. The appellant noted that the Medical Assessor did not refer in the MAC to her statement and consequently did not refer to her no longer speaking with her relatives. The appellant submitted that her not speaking with her relatives contrasted with the Medical Assessor finding that her relationship with her general family and children is good.
With respect to CPP, the appellant submitted that the differentiating feature between the examples provided for a Class 2 rating and those provided for a Class 3 rating is the ability to focus on intellectually demanding tasks, which the appellant submitted are tasks that require an ability to think and an ability to understand complicated ideas. The appellant submitted that her playing video games on her phone does not amount to that. The appellant submitted that mobile phone games are rudimentary and not complex.
The appellant noted that the Medical Assessor did not report the time over which she was able to engage in video games and she submitted it could not be assumed that she did so for 20 minutes at a time.
The appellant submitted that the fact that her daughter was present during the Medical Assessor’s examination of her and assisted with providing part of her history to the Medical Assessor together with the fact that she provided an inconsistent history regarding her past psychiatric symptoms demonstrates her lack of concentration.
The appellant again referred to her statement wherein she said that she finds herself staring at the screen of her phone, and being unable to focus on any information, and spending most of her time sitting on the couch and playing on her phone or just lying down. She also said that she often loses her train of thought during conversations.
The appellant referred to Dr Jakobson’s rating of her impairment in CPP. The appellant referred to a note her psychologist Mr Billel Rababi made wherein she said she had difficulty with concentration and making simple decisions.
The appellant submitted that the Medical Assessor by rating her impairment as Class 2 in CPP has failed to take into account relevant considerations and has taken into account irrelevant considerations.
In reply, the respondent submitted that the MAC is to be read as a whole in terms of determining whether the Medical Assessor adequately explained her reasons. The respondent submitted that the MAC is not to be read with an eye keenly attuned to the perception of error.
The respondent submitted that when the MAC is read as a whole the Medical Assessor’s rating of the appellant’s impairment in social functioning was properly explained. The respondent submitted that based on the Medical Assessor’s clinical examination and the material before him the Medical Assessor’s opinion was open to him to make for the reasons he provided.
The respondent referred to the Medical Assessor’s findings that the appellant was able to stay focused well throughout the examination. The respondent also referred to the Medical Assessor’s conclusion that the appellant was unable to undertake certain activities due to physical symptoms which did not have any bearing on her ability to concentrate.
The respondent highlighted the appellant’s daughter provided information to the Medical Assessor and that the appellant was able to clarify or add to that information. The respondent submitted that the Medical Assessor’s conclusion that the appellant’s history was inconsistent with the GP records was an objective finding and did not indicate a lack of concentration or focus on the part of the appellant and merely indicated that the history she provided was inconsistent with the records. The respondent submitted that the fact that the appellant was able to deny any or all pre-existing conditions despite what she had noted in her statement and what was known from the GP records demonstrated an ability on part of the appellant to stay focused and to concentrate on her perspective at the time.

FINDINGS AND REASONS

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.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
The examples for a Class 2 and Class 3 impairment provided in Table 11.4 of the Guidelines for social functioning are:

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.

The fact that the appellant has ceased contact with some friends does not indicate that there has been a severe strain. This indicates social disengagement rather than a suggestion of conflict or discord. Not seeing some friends is not similar to separation in an intimate relationship or experiencing domestic violence. The appellant is a 76-year-old woman and it is not unusual for people, especially elderly people, to socially disengage and rely more on family at times of being unwell. ‘Loss of some friendships’ is consistent with a class 2 rating in this category.
The Appeal Panel does not accept the appellant’s submission that the only relative with whom she speaks is her daughter. That does not accord with the history the Medical Assessor obtained, which is that she visits her husband’s family and cousins every few months. That necessarily involves her maintaining a relationship with those persons. The Appeal Panel notes from the report of Dr Jakobson that he obtained a history that the appellant she sees three of her four grandchildren. That too involves the appellant maintaining a relationship with those children.
The Medical Assessor also recorded that the appellant speaks with her sister and that their relationship “is ok”. The Medical Assessor recorded that the appellant has not spoken for a few years with her other sister because of a disagreement, but there is no indication that that disagreement has anything to do with the appellant’s work injury.
The Appeal Panel also observes from the report of Dr Jakobson that he obtained a history that the appellant does not see her son. The Medical Assessor’s reasoning for rating the appellant’s impairment in social functioning as Class 2 included that the appellant’s relationships with her general family and children is good. The Medical Assessor did not reveal in the MAC that he questioned the appellant regarding her relationship with her son, and certainly he did not state anything within the MAC regarding the appellant’s relationship with her son. Given the history Dr Jakobson obtained regarding that, the Appeal Panel considers that the Medical Assessor’s reasoning for his rating of the appellant’s impairment in social functioning is not entirely accurate, in that it suggests she maintains a good relationship with all her family. In that regard the Medical Assessor made an error.

However, in correcting that error, the Appeal Panel would still rate the appellant’s impairment in social functioning as Class 2. This is because the evidence reveals that any tension and strain in her relationship with her son commenced before her injury, and there is no evidence to indicate that it was a consequence of her injury or was worsened by her injury. Further, the evidence also indicates that:
(a)    the appellant maintains a relationship with one of her sisters who lives far away but with whom she still speaks;
(b)    her relationship with her other sibling had broken down in the years prior to her injury;
(c)    she still maintains a good relationship with her daughter, who is supportive;
(d)    she maintains a good relationship with her daughter’s children;
(e)    she maintains relationships with her deceased husband’s family, and
(f)    she maintains relationships with some of her long term friends.
Taking all of these matters into consideration, the Panel considers that the appellant’s impairment in social functioning fits a Class 2 rating. The Appeal Panel considers that the Medical Assessor did not make any error with respect to his rating of the appellant’s impairment in CPP.
The Appeal Panel agrees with the appellant that playing video games, in the form of solitaire and panda pop, does not require much by way of intellectual rigour, nevertheless it does require some concentration. But that was only one matter that the Medical Assessor had to weigh when rating the appellant’s impairment in CPP.
The Medical Assessor also took into account the fact that the appellant manages her finances, including paying her bills using a mobile phone. That requires a greater degree of intellectual rigor than playing video games. It involves being able to budget her incomings and outgoings and paying bills when due.
The Medical Assessor also took into account the appellant’s ability to engage during his examination of her. He found that the appellant was able to speak spontaneously and was able to focus well during the examination and could provide a clear history and clarified the history when required. That necessarily required concentration and persistence on her part. The fact that some parts of the history she provided were inconsistent with the records maintained by her treating clinicians does not indicate any impairment in her concentration, persistence or pace. Indeed, it is the opposite. Her being able to discuss and seek to clarify matters recorded in her clinician’s records indicates an ability to focus and concentrate. As the Medical Assessor indicated, the discrepancy between the appellant’s memory and what was recorded in contemporaneous records was likely due to the consequent degradation of the appellant’s memory with the passage of time, and not due to any impairment in her concentration, persistence or pace.
The Appeal Panel does not consider that the presence of the appellant’s daughter during the Medical Assessor’s examination of the appellant and her daughter’s support in assisting the appellant to provide a history indicates any impairment in the appellant’s CPP. The appellant’s daughter’s assistance was, in substance, in the nature of memory aid. It had no relevance to the appellant’s ability to concentrate during the examination.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 May 2024 should be confirmed.

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.

[2024] NSWPICMP 547

7 August 2024