Bergado v Insurance Australia Group Services Pty Ltd
[2024] NSWPICMP 560
•12 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bergado v Insurance Australia Group Services Pty Ltd [2024] NSWPICMP 560 |
| APPELLANT: | Rhodora Bergado |
| RESPONDENT: | Insurance Australia Group Services Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | John Lam-Po-Tang |
| DATE OF DECISION: | 12 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment under the psychiatric impairment rating scale (PIRS); Tasevski v Westpac Banking Corporation; Jenkins v Ambulance Service of NSW; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 17 June 2024 Rhodora Bergado lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Surabhi Verma, who issued a Medical Assessment Certificate (MAC) on 20 May 2024.
Ms Bergado relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the MAC contains a demonstrable error. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the 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, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Bergado was employed by Insurance Australia Group Services Pty Limited (IAG) as a CTP claims consultant. She suffered a psychological injury as a result of events in her workplace and interactions with her manager.
Ms Bergado first ceased work as a result of the injury in November 2021. On
7 February 2022 she fell while boarding a bus, hitting her head and injuring her neck and shoulders. She returned to work in a different position in late 2022. She ceased work on 9 December 2022 when she was told that she would have to work with her former manager again.Using the Psychiatric Impairment Rating Scale (PIRS) the Medical Assessor assessed 8% whole person impairment (WPI), placing Ms Bergado in class 2 for each of self care and personal hygiene, social and recreational activities, travel and social functioning. She assessed Ms Bergado in class 3 for concentration, persistence and pace and class 4 for employability.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Ms Bergado to undergo a further medical examination because the MAC does not disclose error.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Ms Bergado submitted that the Medical Assessor erred with respect to her assessments for self care and personal hygiene, social and recreational activities and social functioning. She said that she should have been assessed in class 3 under each of those tables. She said that she is unable to live independently without regular support. She said that the Medical Assessor’s interpretation of phrases in the examples in the PIRS tables were so narrow as to be inconsistent with a beneficial construction.
In reply, IAG submitted that it was open to the Medical Assessor to come to the conclusions she did. It noted that some of Ms Bergado’s restrictions on household duties were a result of a shoulder injury. Where the Medical Assessor’s assessment differed from that of Dr Canaris, IAG noted that there had been some improvement in Ms Bergado’s functioning in the time since his examination. IAG said that it was necessary that there be more than a difference of opinion on a subject about which reasonable minds may differ, citing Parker v Select Civil Pty Ltd[1] (Parker) and Ferguson v State of New South Wales[2] (Ferguson).
[1] [2018] NSWSC 140.
[2] [2017] NSWSC 887.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[3] the Court of Appeal held that an 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 required 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.
[3] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[4] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[4] [2021] NSWCA 304 at [26].
Our task as a Medical Appeal Panel is to determine if the Medical Assessor has made a demonstrable error or applied incorrect criteria. We cannot substitute our own view for that of the Medical Assessor unless she made an error within the meaning of s 327(3) of the 1998 Act.
In Tasevski v Westpac Banking Corporation[5] Schmidt AJ said:[6]
“There are many things in life, medicine and the law which reasonably permit of more than one answer. Assessment of the degree of a person’s impairment is one of them. Inevitably, in a case where it is the impairment of a human being as the result of a psychological injury which is being assessed, consideration must be given to matters of degree and impression, about which reasonable minds may differ.
But that is what this statutory scheme seeks to regulate by its adoption of the applicable Guidelines. They require conclusions to be reached about the severity of an impairment by a determination of which scale particular conduct relates to and the resulting class assignment of that scale, by reference only to that conduct, considered in light of the person's cultural background, age, sex and cultural norms. In this case, that exercise could only result in one conclusion, that the correct class assignment of the self care and personal hygiene scale was either Class 2, a mild impairment or Class 3, a moderate impairment, given the relevant conduct on which that assessment depended.
By confining the assessment of the six scales to the totality of the conduct relevant to each scale, an overall conclusion is arrived at about the injured person’s whole person impairment, as the result of the psychological injury suffered. That is a result not left to an assessor’s discretion. It must be undertaken in accordance with all of the applicable statutory requirements.”
[5] [2024] NSWSC 401.
[6] At [27]-[29].
The Medical Assessor diagnosed adjustment disorder with mixed anxious and depressed mood. She did not consider that the bus accident contributed to Ms Bergado’s mental health symptoms because she was able to return to work afterwards.
Self care and personal hygiene
The Medical Assessor took the following history about Ms Bergado’s present symptoms:
“… Ms Bergado added that she has arthritis and is in pain and hence does not engage in a lot of physical activities.
I asked her specifically about the pain in her head from the accident, to which she said that she still experiences pain and has pin and needle sensations on the right side. She later said that the pain and pins and needles, however, do not impact her much except for the physical activities.
She said that she continues to see a specialist for her shoulder injury as she was ‘told to see one’. She says that she sees Dr Kulkarni every six months, who monitors him for her physical injuries. She is also being monitored by Dr Smith for her fractured shoulder. She said that she is able to use her arms like before and denied having any difficulties with shoulder movement. [sic]
…
Her appetite is ‘not so bad.’ She added that she takes regular meals, but at times, she only relies on fruits. She said that she had lost weight from 108 kg to 92 kg.”
With respect to social activities and activities of daily living, the Medical Assessor recorded:
“Ms Bergado is able to shower on her own at varying frequency from daily to four times a week. She is able to brush her dentures on a daily basis. She said that ‘sometimes she cooks with the help of her partner.’ She is able to ‘wipe the table, wash the dishes and help her partner in doing other household chores’. She, however, avoids doing major household activities as she doesn’t want to aggravate her shoulder.
...
Ms Bergado lives in a granny flat with her partner. Her mother, sister and brother live in the main house.”
Relying on the history reproduced immediately above, the Medical Assessor assessed Ms Bergado in class 2. Ms Bergado said that she should have been assessed in class 3 because some days she eats only fruit, she has lost weight, she sometimes showers four days a week and she cooks with the help of her partner.
It is important to remember that the PIRS recognises that there a variety of conduct which can be described as normal. Assessment in class 1 is appropriate where there is “no deficit or minor deficit attributable to the normal variation in the general population”. The fact that Ms Bergado eats only fruit on some days falls squarely within that normal variation. The Medical Assessor noted that she remained overweight, and the weight recorded in the MAC of 92kg is very similar to the 95kg recorded in the hospital notes at the time of her head injury. There is no evidence that Ms Bergado lives in a granny flat because of her psychiatric injury. The Emergency Department records of February 2022 note she “lives with partner in granny flat”.
The history that Ms Bergado gave the Medical Assessor was that she avoided household activities because she does not want to aggravate her shoulder injury, not because of her psychological injury. While there is information in the file about the injury, there are no recent notes from Ms Bergado’s treating doctors.
When Ms Bergado saw Dr Canaris on 8 December 2022, she was still working, though had resigned. She told him that she had a neck injury, pain in her shoulder and a burning sensation in her foot and that she had tried to go to work to divert herself. Dr Canaris assessed Ms Bergado in class 2 for self care and personal hygiene, based only on her personal care.
In February 2023 she saw Dr Kaplan on behalf of IAG. He noted that Ms Bergado had significant pain and restriction as a result of the shoulder injury and that she was concerned that she may have to have surgery on her neck. In his report dated 31 May 2023 Dr Kaplan considered that Ms Bergado’s primary diagnosis was a pain disorder.
The information that we can glean from the file shows that Ms Bergado has ongoing physical restrictions as a result of the bus injury. The Medical Assessor accepted that the physical injury was the reason that she did little around the house.
Based on the history she obtained, the Medical Assessor was correct to place Ms Bergado in class 2 for the impairment in self care and personal hygiene arising from her psychiatric condition.
Social and recreational activities
When describing Ms Bergado’s symptoms, the Medical Assessor said:
“…She said that she is also socially withdrawn and is a recluse.
She added that she does not find any enjoyment in going out with others. She at times just ‘sits in a corner and doesn’t interact with others.’ She says that she, however, engages with her family members who live in the main house…
… She said that she is a social recluse and withdrawn from others compared to a highly sociable person earlier.
… She added that she feels ‘anxious’ when it is overcrowded. She said that she can stand being in the company of up to 10 people, bit feels overwhelmed in shopping centres and hence does not spend a lot of time there. She said that she prefers Coles of Woolworths when it is less crowded.”
The Medical Assessor assessed Ms Bergado in class 2 because:
“Ms Bergado enjoyed ‘going out for grocery shopping, going out with friends’ earlier, but she reported she goes out occasionally, but does not interact much with others. She said that she goes out when she is invited by friends for parties dinners etc. She also goes out with her partner for shopping on Saturdays and goes to the church irregularly as she is able to see the live telecast on YouTube from her home. She also goes out with her sister and friends. She has been able to go out for ‘movies, shopping and eating out.”
Contrasting her assessment to that of Dr Canaris, the Medical Assessor said:
“I believe that Ms Bergado’s functioning has changed and hence, she has been able to go out with her partner, sister and friends. She has been able to socialise in a bigger social group, although she prefers not to engage much when she is in bigger groups. This warrants mild rather than moderate impairment.”
Ms Bergado did not cavil with the history the Medical Assessor took but said that certain aspects of it warranted assessment in class 3.
Any limitation on social and recreational activities as a result of Ms Bergado’s physical condition must be disregarded. The Medical Assessor noted that pain limits her physical activities.
The important part of the description of each class in the PIRS is the level of impairment – e.g. no deficit, mild impairment, moderate impairment. Rather than providing criteria for assessment, what follows in each class are examples of limitations on activities which are consistent with the level of impairment. In Jenkins v Ambulance Service of NSW[7] Garling J said:
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[7] [2015] NSWSC 633 at [65].
The examples for classes 2 and 3 under table 11.2 are:
“Class 2 - Mild impairment: Occasionally goes 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.”
One point of distinction between those classes are the frequency with which the activity is undertaken. The history taken by the Medical Assessor shows that Ms Bergado is less socially active than she was before the injury but that she does go out ‘occasionally’ to attend dinners and parties when invited and to go[BG1] . The Medical Assessor listed a variety of social activities that Ms Bergado undertakes. We are cognisant that grocery shopping may not be a recreational activity but other forms of shopping may be. The Medical Assessor contrasted the information she obtained with that taken by Dr Canaris and considered that Ms Bergado’s functioning had changed.
The history taken by the Medical Assessor is consistent with occasional rather than rare social activity. A diminution of active involvement is consistent with class 2 and class 3. We consider that the Medical Assessor’s assessment was correct.
Social functioning
The Medical Assessor noted that Ms Bergado is in a relationship and that her family is supportive. She said:
“Ms Bergado lives in a granny flat with her partner. Her mother, sister and brother live in the very supportive been very, very supportive, patient and respectful. She said that they have a stable relationship. She has, however, lost some of her friends.”
In her submissions, Ms Bergado highlighted the impact on her physical relationship with her partner and that she had lost some friends.
The facts on which the Medical Assessor relied fall squarely within class 2 and are consistent with the examples – “existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.” Ms Bergado maintains a close relationship with her family and her relationship with her partner is intact. The Medical Assessor’s assessment was correct.
For these reasons, we have determined that the MAC issued on 20 May 2024 should be confirmed.
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