Bajraszewski v Kim Meller Imports Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Bajraszewski v Kim Meller Imports Pty Ltd [2022] NSWPICMP 396
APPELLANT:	Laura Bajraszewski
RESPONDENT:	Kim Meller Imports Pty Ltd
Appeal Panel
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Dr Patrick Morris
MEDICAL ASSESSOR:	Dr Nicholas Glozier
DATE OF DECISION:	12 October 2022
CATCHWORDS:	wORKERS cOMPENSATION - Psychological Injury; appellant alleged error in the assessment under four categories under the Psychiatric Impairment Rating Scale (PIRS) namely, self-care and personal hygiene, travel, social functioning, and employability; assessments made against the criteria in the PIRS categories; they must not be based on self-report alone; they must necessarily involve an exercise of the Medical Assessor’s (MA) clinical judgment; they must also be consistent with the available evidence that is before the MA; Held – the assessment by the MA of a moderate impairment for employability was not consistent with the evidence before the MA; in the circumstances of error being found a re-examination was required; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 May 2022 Ms Laura Bajraszewski (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Michael Hong, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 27 April 2022.
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.
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.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

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 WorkCover Medical Assessment Guidelines 2006.
The appellant requested a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination because the Appeal Panel found error.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) Certificate of capacity dated 19 July 2022.
The respondent consents to the admission of the above evidence.
The Appeal Panel determines that the following evidence should be received on the appeal:
(a) Certificate of capacity dated 19 July 2022.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

Further medical examination

Medical Assessor Patrick Morris of the Appeal Panel conducted an examination of the worker on 24 August 2022 and reported to the Appeal Panel.

Medical Assessment Certificate

The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

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. 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.
The matter was referred to the MA for assessment as follows:
The following matters have been referred for assessment (s 319 of the 1998 Act):
“●      Date of injury: 26/7/2017 (deemed)
·        Body parts/systems referred: Psychiatric/Psychological disorder
·        Method of assessment: Whole Person Impairment”
The MA issued a MAC certifying as follows:

Body Part or system

Date of Injury

Chapter,

page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA5 Guides

% WPI

WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)

Sub-total/s % WPI (after any deductions in column 6)

1. Psycho-logical

26/7/2017 (DEEMED)

11

page 55-60

14

17

0

17

Total % WPI (the Combined Table values of all sub-totals)

17%

The assessment was based on his assessment under the Permanent Impairment Rating Scale (PIRS) as required by the Guides as follows:

Table 11.8: PIRS Rating Form

Name	Laura Bajraszewski	Claim reference number (if known)	W6440/21
DOB	26/3/1991	Age at time of injury	27-year-old
Date of Injury	26/7/2017 (DEEMED)	Occupation at time of injury	Senso t/as Kim Meller Imports Pty Ltd
Date of Assessment	12/4/2022	Marital Status before injury	Never married, de facto

Psychiatric diagnoses

1. Adjustment disorder

2.

3.

4.

Psychiatric treatment

Psychologist

Psychiatrist

Medications

No psychiatric admission

Is impairment permanent?

Yes

PIRS Category

Class

Reason for Decision

Self-care and personal hygiene

2

Ms Bajraszewski reported neglecting her self-care. She said she does not shower regularly. She eats regularly and does not need prompting with her showering or eating now. She is capable of independent living without regular support.

Social and recreational activities

3

She used to have an active social life and went out with her friends regularly.

She can tolerate one-on-one social contact now and rarely attends large social gatherings, and remains quiet and withdrawn in social gatherings with more than one person.

Her recreational activities have not improved with eased COVID-19 restrictions.

Travel

2

Ms Bajraszewski is anxious and avoids crowded places.

Social functioning

3

Ms Bajraszewski's relationship with her partner ended as a result of her anxiety and depressive symptoms, and because he was not supportive.

She is anxious and socially avoidant, and no longer has contact with some of her friends.

She is able to maintain a few long-term friendships.

The relationship with her family is good and they are close.

Concentration, persistence and pace

3

Ms Bajraszewski described having poor concentration.

She cannot engage in complex tasks and struggles to read books for 20 minutes.

Her mental state examination is consistent with 3.

Employability and Adaptation

3

Ms Bajraszewski has not worked since the subject injury and her anxieties impact on her capacity to work.

She can no longer manage her pre-injury duties. She cannot perform full-time work in another environment. She can manage lower stress employment at around 20 hours per week in a different workplace.

Score

Median Class

2

3

=3

Aggregate Score Impairment

Total

%

+

16

17

Pre-existing injury

0

Treatment effects

No substantial or total elimination of impairment with treatment, and therefore no treatment uplift.

0

Final WPI

17

The worker appealed.
The worker appealed against the assessments under the PIRS categories of self-care and personal hygiene, travel, social functioning and employability.
In summary, Kim Meller Imports Pty Ltd (the respondent) submitted that the MA did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the MA is to conduct an independent assessment on the day of examination. The MA is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the MA. The MA must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
However, assessments made against the criteria in the PIRS categories, whilst they must not be based on self report alone and they involve, of necessity, an exercise of the MA’s clinical judgment, must also be consistent with the available evidence that is before the MA. Here the assessment by the MA of a moderate impairment for employability was not consistent with the evidence before the MA. There was no evidence of her doing any vocational productive activities either within employment or day to day, nor evidence in the MAC to support the MA’s reasoning she could work part time.
In these circumstance, the Appeal Panel was satisfied that the MA erred and required a
re-examination by a MA member of the Appeal Panel. Medical Assessor Patrick Morris was appointed to conduct the re-examination which he did on 24 August 2022 and he reported to the Appeal Panel as follows:
“PERSONAL INJURY COMMISSION
RE-ASSESSMENT FOR MEDICAL APPEAL PANEL
Matter Number:              M1-W6440/21
Applicant worker:            Laura Bajraszewski
Date of Injury:                  26 July 2017 (deemed)
Date of Re-assessment: 24 August 2022 (via Microsoft Teams video-      link)
I interviewed Ms Bajraszewski for the purpose of this re-assessment for a Medical Appeal Panel Matter via Microsoft Teams video-link on 24 August 2022.
In this re-assessment I focussed upon the interval from when she was last assessed by Dr Michael Hong, Medical Assessor on 12 April 2022 for a Medical Assessment Certificate.
Ms Bajraszewski said that she has continued to see her treating psychologist,
Ms Sharon Draper on a weekly to fortnightly basis. She does not take any medications for her psychiatric condition because of side-effects she experienced from previous trials on medication. She reported no significant change in symptoms over the past four months but said they vary from day to day.
I reviewed the symptoms that Ms Bajraszewski had when she was last assessed by
Dr Hong on 12 April 2022. She said that she continues to have a disrupted and unrestful sleep with frequent vivid dreams relating to her work experiences. She has a pervasively depressed mood with little pleasure or enjoyment in her life. Her motivation is very low. She reported reduced concentration. She said she has low energy through the day. Her weight is stable. She said she feels anxious in the evenings particularly before bed when she worries about having vivid and unpleasant dreams. She still experiences panic symptoms associated with physical sensations of nausea, chest tightness and pain in her jaw and hands. She avoids social situations because of her anxiety and remains very socially withdrawn. She feels hopeless but does not have suicidal thoughts now that she is living with the support of her parents.
Ms Bajraszewski continues to live with her parents and an older brother in her parents’ home in Adelaide. Her father is retired, and her mother is on long service leave.
On mental state examination Ms Bajraszewski was a well-groomed woman wearing appropriate makeup and with her hair neatly tied back. She was pleasant and cooperative in the interview. Her speech was of normal rate and flow. Her mood was pervasively depressed, and she was frequently tearful in the interview.   Her affect was appropriate to her mood and non-reactive. There was no formal thought disorder and no psychotic symptoms. She was alert and orientated.
Considering the length of time Ms Bajraszewski has had her psychological
symptoms, I believe that she has the psychiatric diagnosis of Persistent
Depressive Disorder with anxious distress, with persistent major depressive episode according to DSM-5 diagnostic criteria.
As requested I only reviewed Ms Bajraszewski’s functioning in the PIRS categories that were disputed. I shall go through these below:
Self Care and Personal Hygiene:
Ms Bajraszewski said her parents are now doing all the cooking. However, she does make toast for herself and eats fruit and cereal and yoghurt each day as part of a diet that she needs to follow for medical reasons. She said her parents are now doing the house cleaning and her clothes washing. She said that she sometimes skips meals because of nausea but her weight remains stable. She showers every two days without prompting but changes her clothes less often as she said she does not leave her home very often. She was well-groomed at the assessment. I believe that a Class 2 – Mild impairment is the appropriate rating in this category.
Travel:
Ms Bajraszewski said that she mostly leaves the home accompanied by her father because of her anxiety. However if her father cannot take her, she is able to drive by herself short distances to her GP or to the chemist. As she is able to drive short distances by herself I believe a Class 2 – Mild impairment is the appropriate rating in this category.
Social Functioning:
Ms Bajraszewski said her relationship with her partner broke up in 2019 because of the stress of her psychological symptoms and she has not formed a new relationship since then. However, she has a generally good relationship with her parents and brother, although there is some increase in tension recently due to her psychological symptoms. She keeps in contact with some friends over the telephone. In my opinion, the fact that she has good relationships with her family whom she lives with makes Class 3 – Moderate impairment the appropriate rating in this category.
Employability:
Ms Bajraszewski has not worked at all since August 2017 and has not engaged in any work rehabilitation for several years. In my opinion she is not able to work at all because of the severity of her depressive symptoms including her reduced concentration, reduced energy, low motivation levels and social withdrawal and her marked anxiety symptoms of agitation, frequent panic attacks and social avoidance. A Class 5 -Totally impaired is the appropriate rating in this category.
Therefore, I have agreed with the ratings of Dr Hong for Self Care and Personal Hygiene of Class 2, for Travel of Class 2 and Social Functioning of Class 3, but I differ with his rating of Employability where he rated Ms Bajraszewski a Class 3 whereas I have rated her a Class 5.
Therefore, the ratings in ascending order are as follows:
2, 2, 3, 3, 3, 5
Median = 3
Aggregate score = 18
Final Impairment (%WPI) = 22%
Dr Patrick Morris
Medical Assessor
Personal Injury Commission”
The Appeal Panel adopts the report and findings of Medical Assessor Morris.
Accordingly, the Appeal Panel will revoke the MAC and issue a new certificate certifying 22% WPI as a result of the injured deemed to have occurred on 26 July 2017.
For these reasons, the Appeal Panel has determined that the MAC issued on 27 April 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W6440/21
Applicant:	Laura Bajraszewski
Respondent:	Kim Meller Imports Pty Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Michael Hong and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psycho-logical	26/7/2017 (DEEMED)	11 page 55-60	14	22	0	22
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					22%

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Citations

Bajraszewski v Kim Meller Imports Pty Ltd [2022] NSWPICMP 396

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

0

Campbelltown City Council v Vegan [2006] NSWCA 284

[2022] NSWPICMP 396

12 October 2022