Aslan v Blue Visions Management Pty Ltd

[2023] NSWPICMP 530

DETERMINATION OF APPEAL PANEL
CITATION:	Aslan v Blue Visions Management Pty Ltd [2023] NSWPICMP 530
APPELLANT:	Dina Aslan
RESPONDENT:	Blue Visions Management Pty Limited
APPEAL PANEL
MEMBER:	Richard J Perrignon
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	24 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of whole person impairment (psychological); fresh or additional evidence on appeal; whether the assessor erred in assessing social and recreational activities or social functioning; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. The appellant worker, Ms Aslan, appeals from the Medical Assessment Certificate of Medical Assessor Hong dated 13 April 2023. He examined Ms Aslan on 4 April 2023 by video, and assessed an 8% whole person impairment (psychological) as a result of injury on 27 September 2019 (deemed date).

2. He assessed two of the psychiatric impairment rating scales (PIRS) as follows:

   (a)    Social and recreational activities:              Class 2 impairment, and

   (b)    Social functioning:  Class 2 impairment.

3. The appellant submits that the Medical Assessor took an incorrect history with respect to these assessments, which she seeks to correct in a statutory declaration provided to the Panel dated 9 May 2023. She says that, on the corrected history, the evidence supported a class 3 impairment in each case, and that the assessment of class 2 impairments in the circumstances amounted to demonstrable error.

4. The Appeal Panel conducted a preliminary review of the Medical Assessor’s medical assessment in the absence of the parties and in accordance with the Guidelines.

Submissions

1. The parties made written submissions which have been taken into account. It is unnecessary to repeat them in full. The appellant’s submissions may be summarised briefly as follows:

   (a)    In respect of the statutory declaration:

   (i)The statutory declaration came into existence after 13 April 2023 when the Medical Assessment Certificate was issued. It follows that it was not available to the appellant before the assessment.

   (ii)It could not reasonably have been obtained before the assessment because it deals with factual errors made in the course of the assessment.

   (iii)It is probative because it corrects important errors and impairment would likely have been rated greater if the fact finding had not miscarried.

   (iv)The appellant relies specifically on the following:

   1.She told Medical Assessor Hong that she avoided family funerals and weddings because she is “affected and triggered” after family members “would ghost me” at such events.

   2.Medical Assessor Hong’s history that she visits many friends regularly and enjoys smaller social and recreational activities is incorrect. She and her husband do not have friends in Australia. She rarely socialises. She told the Medical Assessor that she lost all her work friends. On the seldom occasions when she makes plans, she often ends up cancelling them because of mood swings and avoids people.

   3.Medical Assessor Hong’s history that she attends regular social activities with family and friends, and engages in small social gatherings and eating out with some friends, without a support person, is incorrect. She told him she has to be pushed and nagged to attend family gatherings which she has significantly cut back on.

   (b)    In respect of Social and recreational activities, the appellant submits that the history corrected in pars 10(c), (g) and (j) of her statutory declaration (briefly summarised at (1), (2) and (3) above) support a class 3 impairment and justifies examination by a Panel member.

   (c)    In respect of Social functioning, the appellant relies on pars 10(c) and (k) of her statutory declaration (summarised at (1) and (3) above), and submits that the evidence justifies a class 3 impairment and examination by a Panel member.

   (d)    Dr Hong’s description of her new marriage as “good” amounts to demonstrable error, because she is “already having intimacy problems four months after the wedding in December 2022.

2. Blue Visions management Pty Limited (the respondent) submits in brief summary as follows:

   (a)    The statutory declaration should not be admitted on appeal, because:

   (i)it was reasonably open to the appellant to provide an update to her statement dated 29 November 2021 prior to examination by the Medical Assessor, and no explanation for failure to do so is offered, and

   (ii)the effect of the fresh evidence is to cavil with the assessment of the Medical Assessor.

   (b)    With respect to Social and recreational activities:

   (i)The Medical Assessor found that the appellant visits friends regularly and enjoys smaller social and recreational activities, despite avoiding large social gatherings.

   (ii)His assessment accorded with the assessment of Dr Roberts, who found that she did not withdraw from social opportunities for psychiatric reasons, though she was not as comfortable with social engagements as in the past.

   (iii)Dr George assessed class 3 impairment because the worker was socially withdrawn and does not attend family functions on occasions.

   (iv)The appellant now says that she has no friends in Australia, rarely leaves home and often cancels social plans because of mood swings.

   (v)The Medical Assessor provided a clear history and explanation for his conclusions, justifying a class 2 impairment.

   (c)    With respect to Social functioning:

   (i)The Medical Assessor’s assessment of a class 2 impairment was based on a history that the appellant’s previous de facto relationship had ended, that she was now married to a new partner, that there was some strain in relationships though it is overall a good marriage, she has lost some friends but not because of psychological injury.

   (ii)Dr Roberts took a history that the loss of friends was due to malicious gossip regarding her circumstances but her relationships were otherwise intact and assessed a class 1 impairment.

   (iii)The appellant in the statutory declaration concedes that she provided the Medical Assessor with her perception of the state her marriage, though she denies that she described it as “good”.

   (iv)The role of the Medical Assessor was to conduct a clinical assessment of the worker as she presented on the day of assessment, taking into account her medical history and all available medical information, and to determine what weight to give to the documents before him.

   (v)It is presumed that the Medical Assessor took an accurate history and had regard to the evidence.

   (vi)The Medical Assessor is not bound to accept the findings of any doctor qualified by a party, but must form an independent opinion, as the Medical Assessor has done.

   (vii)It was reasonably open to the Medical Assessor to find, as he did, that impairment in respect of Social and recreational activities and Social functioning did not satisfy the criteria for a class 2 impairment.

   (d)    Examination by a Panel member is opposed. The Medical Assessment Certificate should be confirmed.

Fresh or additional evidence

1. Section 328(3) of the Workplace Injury Management and Workers Compensation Act 1998 provides as follows – emphasis added:

   “Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”

2. The appellant’s statutory declaration purports to correct the history recorded by the Medical Assessor in a number of respects. The following aspects are relied on as supporting a greater assessment of Social and recreational activities and Social functioning:

   (a)    She told Dr Hong that she avoids events like funerals and weddings because she has been profoundly hurt by her alienation at the hands of her family, who “would ghost me at weddings, funeral and other important social gatherings”’ – par 10(c).

   (b)    She “told Dr Hong that I have to be pushed and nagged by family to attend family gatherings which I have significantly cut back on” – par 10(j).

   (c)    She never told Dr Hong that she had a good marriage. She told him “that (at least from my perspective) the marriage is miserable”, that the two fight regularly, and that she has “an almost sexless marriage, little motivation and intimacy problems compounded by the medication” – par 10(k).

3. Evidence as to what transpired or not at examination is not evidence that could reasonably have been obtained before examination. However, it is not evidence that is capable of proving demonstrable error, because it is evidence other than that contained in the Medical Assessment Certificate itself and the referral document: Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939.

4. The only ground of appeal relied on is demonstrable error. Evidence contained in the statutory declaration cannot establish demonstrable error, because it does not appear in the Medical Assessment Certificate or the referral document. Even if the material were admitted on appeal, the appeal fails.

5. Even if that were not so, the exercise of the discretion to admit the evidence on appeal requires consideration as to whether it has substantial prima facie probative value, plausibility and/or independent support: Lukacevic v Coates Hire Operations Pty Limited [2011] NSWCA 112 per Hodgson JA (at [78]).

6. There is no independent support for the evidence. The evidence contradicts the report of the Medical Assessor, and is therefore not supported by it. Accordingly, while we are not in a position to dismiss the evidence, we are not in a position to find that it has ‘substantial’ prima facie probative value or plausibility. It does not satisfy the test in Lukacevic. For that reason, we would not be inclined to admit it on appeal in any event.

7. There is also a public interest in the finality of litigation. Admitting this evidence will not serve that interest. In the absence of a reply from the Medical Assessor, issues of procedural fairness arise, which admitting the evidence will not satisfy: Lukacevic at [111].

8. In all the circumstances, we are not persuaded that it should be admitted even if, contrary to our view, it were relevant to the ground of demonstrable error.

9. Even if the material were admitted on appeal, it would not make a difference to the assessment of either of the two scales the subject of appeal, for the reasons which follow.

Social and recreational activities

1. The criteria for rating class 2 and 3 impairment in Social and recreational activities are as follows:

Class 2	Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3	Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.

1. In his PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 2 impairment:

   “She attends regular social recreational activities with her family and friends, and has a large family circle. She engages in small social gatherings and enjoys eating out with some family and friends, but much less than before the subject injury. She does not need a support person in recreational activities.”

2. That summary is entirely consistent with the criteria for a class 2 impairment. The appellant does not suggest otherwise. She says the history was incorrect.

3. The summary was consistent with the following history taken by the Medical Assessor and reproduced under the heading, “Social activities/ADL” – emphasis added:

   “She has a large network of family in Australia comprising of uncles, aunties and many first cousins. Altogether there are probably 150 people. Her siblings and mother are overseas and her father passed away in 2011.

   Ms Aslan reported that her employer is well-connected with the local family and community and after she took out WorkCover, her employer started making claims against her. She explain[ed] her employer and his wife had both developed cancer at a similar time and he subsequently passed away. She said the community became sympathetic with them because of this, and of the 150 people, 70% sided with them and 30% believed her, and there are two camps. She said she was told by her employer to not discuss the work matters with their community and she has not discussed it with the community, but he then told everybody in the community about what happened and then claimed that Ms Aslan lied, that she has a criminal record and no real degree from overseas, and that she tried to backstab them and lied about not being paid. He claimed that she had damaged the company’s reputation. It reached a point where the two camps do not want to talk to each other. She said she does not go to any kind of major social events because when she goes, the people that sided with her employer would walk away, not even talk to her and deliberately avoid her, and she only has contact with the 30% of people who believed her side.

   She said that because of the behaviour of her employer, not only is her visa in jeopardy, but some of her family and friends will not even talk to her.

   …

   Ms Aslan said normally she was a social butterfly and always met her friends at least three times a week. She also enjoyed trekking and travelling but now she is quite different. She does not travel and avoids large social gatherings with her community as she can encounter people from the other camp.

   ... She has regular contact with some local families. This might be every two months. They eat out at a restaurant, and she enjoys visiting them or having visitors. She would to an uncle's place for a meal but generally with only a few people at a time. Sometimes, there might be six people.”

4. This amounts to a history that her ability to attend family events like weddings and funerals has been compromised because of adverse communications about her by her former employer. Her statement of 29 November 2021 indicates that this occurred after she made a claim for workers compensation, which occurred on 15 June 2020, and that other members of his family continued the adverse reporting after his death.

5. However, the remaining history taken by Medical Assessor Hong – that the appellant attends social events at her uncle’s place, and eats out every two months with some local families - is not necessarily inconsistent with the allegation in her statutory declaration that she avoids family gatherings like weddings and funerals, has lost work friends in Australia, that she often ends up cancelling plans to leave home at the last minute because of mood swings, and that she has to be “pushed and nagged to attend family gatherings”, which she has “significantly cut back on”. Even if accepted as true, none of those allegations would cause us to discern an error in the history taken, that she continues to socialise with some local families and to eat with others at her uncle’s house.

6. That is consistent with a class 2 impairment.

7. Even if the material were admitted into evidence on appeal, this ground would fail.

Social functioning

1. The criteria for rating class 2 and 3 impairment in Social functioning are as follows:

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.

1. In his PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 2 impairment:

   “Ms Aslan's relationship with her previous partner ended. She then started another relationship and married in 2022. Her marriage is good overall.

   She lost some friends due to her psychological injury and irritability. She maintains a reasonable relationship with her family locally who believe her and her family overseas.”

2. That summary was consistent with the criteria for a class 2 impairment. On the basis of that summary, it was reasonably open to the Medical Assessor to assess a class 2 impairment. The appellant does not submit otherwise. She submits that the history on which the summary based was incorrect.

3. Under the heading, “Social activities/ADL”, Medical Assessor Hong took the following relevant history:

   “Ms Aslan met her husband about two years ago and they were married in December 2022, however, there is some marital straining and she reported that she was meant to attend to household chores, but she has no motivation to do it and there are also some intimacy problems.”

4. That history is consistent with the reasons provided in the PIRS form for assessing a class 2 impairment.

5. Ms Aslan says that she did not tell the Medical Assessor that her marriage was good, but rather that it was in her view miserable. The Medical Assessor’s opinion that the marriage is “good overall” does not purport to represent the views of Ms Aslan. It is the view of the Medical Assessor. That view was reached having full regard to the “intimacy problems” referred to the in the history, which in turn indicates the assessor was told of such problems by the appellant, and took them into account in making his assessment. The existence of such problems is entirely consistent with the allegations made in that regard by the appellant in her statutory declaration. It was the task of the assessor to take his own view of the state of the marriage, as he did.

6. Similarly, his reference to “straining” indicates that he was told of strains in the relationship by the appellant, and took them into account. In her statutory declaration, she gives evidence of strain in the form of what she calls “fighting” between spouses. That is not inconsistent with the summary made by the Medical Assessor. It does not cause us to discern error, either in the history taken or in the assessment of a class 2 impairment.

7. In context, we interpret “good overall” to mean that, in the Medical Assessor’s view, the marriage is stable, and not that the marriage is without its problems. The appellant in her statutory declaration does not suggest the marriage is not stable.

8. For those reasons, even if the statutory declaration were admitted into evidence on appeal, its contents would not cause us to discern error either in the history taken or the assessment of a class 2 impairment.

Conclusion

1. The Medical Assessment Certificate of Medical Assessor Hong is confirmed.