Blacktown City Council v Cimino

DETERMINATION OF APPEAL PANEL
CITATION:	Blacktown City Council v Cimino [2024] NSWPICMP 310
APPELLANT:	Blacktown City Council
RESPONDENT:	Rosa Cimino
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Ash Takyar
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	22 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether the Medical Assessor erred with his ratings of the respondent’s impairment in the psychiatric impairment rating scale categories for self-care and personal hygiene, social and recreational activities, and concentration persistence and pace; Appeal Panel found no error; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 9 January 2024 Blacktown City Council, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 December 2023.
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 for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for 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 employed Rosa Cimino, the respondent, as a childcare worker between 2008 and April 2022. Due to interpersonal conflict between the respondent and one of the members of staff of the appellant, the respondent suffered a psychological injury. She claimed compensation from the respondent for permanent impairment from her injury. She relied on a report dated 23 May 2022 of psychiatrist Dr Frank Chew, who had examined the respondent on 5 May 2022 and assessed the degree of her permanent impairment from her injury was 24% whole person impairment (WPI).
The appellant denied liability for the respondent’s claim. It advised the respondent in a notice it issued under s 78 of the 1998 Act on 6 March 2023 that its reason for denying her claim was that her permanent impairment from her injury did not exceed the threshold imposed by s 65A (2) of the Workers’ Compensation Act 1987 (the 1987 Act) of at least 15%. It advised her that it relied on a report of psychiatrist Dr John Albert Roberts dated 9 October 2022, who had examined the respondent on 12 September 2022.
The appellant repeated its denial of liability in a further notice it issued on 2 August 2023. It advanced no further reason for denying liability for her claim.
In August 2023 the respondent initiated proceedings in the Personal Injury Commission (Commission) seeking determination of her claim. The matter was referred to Principal Member, Ms Josephine Bamber, who, with the consent of the parties, remitted the respondent’s claim for compensation for permanent impairment to the President of the Commission so that it could be referred to a Medical Assessor.
A delegate of the President of the Commission duly abided that direction, issuing a referral to the Medical Assessor on 8 November 2023.
The Medical Assessor examined the respondent on 28 November 2023 to conduct his assessment of the respondent’s permanent impairment. As said, he issued the MAC on 14 December 2023. The Medical Assessor provided the following summary of the respondent’s injury and his diagnosis of it:
“In my medical opinion the claimant primary psychological injury using DSM5 psychiatric criteria is Major depressive disorder of moderate severity, DSM5 code 296.32 and Generalized anxiety disorder DSM5 code 300.02.
The claimant had not been able to recover from her primary psychological injury sustained whilst employed with this employer. She had become socially isolated from her friendship circle and her local wildlife support community. She had a depressed mood with an irritable and tearful affect. She had lost her self-esteem and self-confidence. The claimant had not been able to provide the care to her orphan joeys as she had prior to the onset of this primary psychological injury. She felt like she was not a good carer. She had abandoned her care of the baby kangaroos..
The claimant had first experienced depression and anxiety in 2019. The onset of this primary psychological injury was due to the bullying and harassment the claimant endured whilst employed with this employer. She had become increasingly psychologically symptomatic during 2019. The claimant’s depressed mood increased in severity. She was unable to persist with her role during a return-to-work trial in 2021. She left work and had not been able to work in any capacity since.
In my medical opinion the claimant did not have a pre-existing assessable psychiatric condition prior to the onset of this primary psychological injury. There is no deduction for a pre-existing condition.
There is no adjustment for treatment effect as the claimant remained symptomatic and unable to work.”
The Medical Assessor rated the respondent’s permanent impairment from her injury in accordance with the criteria set out in Chapter 11 of the Guidelines. That required the Medical Assessor rate the seriousness of the effects of the respondent’s injury in six areas of activity and conduct that together comprise the Psychiatric Impairment Rating Scale (PIRS).
The appellant in its appeal against the MAC has challenged the Medical Assessor’s rating of the respondent’s impairment in the PIRS for self-care and personal hygiene, social and recreational activities and concentration, persistence and pace. The Medical Assessor assigned a Class 3 rating for each of those scales, that is a moderate impairment.
In the PIRS rating form within the MAC the Medical Assessor provided the following reasons for his rating of the respondent’s impairment in self-care and personal hygiene:
“The claimant reported that she was unable to live independently at the time of this assessment. She reported that she spent most of her days at home. She was not interested in maintaining her self-care or personal hygiene without prompting.
She was dishevelled and her clothes unwashed. She could not cook food and was reliant on her partner to cook and buy groceries.
The claimant had assistance from her adult children to perform cleaning, washing and maintenance of the bathrooms.
The claimant’s partner maintained the garden and outside home maintenance.”
The Medical Assessor’s explanation for his rating of the respondent’s impairment in social and recreational activities were:
“The claimant had stopped participating in her social and recreational groups. She declined invitations. She had stopped her care of orphaned joey kangaroos. She had lost interest in WIRES and supporting her local wildlife. She had no plans for Christmas or the festive season. She preferred to be isolated and avoid social and recreational activities with others.”
The Medical Assessor’s reasons for rating the respondent’s impairment in the category of concentration, persistence and pace were:
“The claimant could not concentrate for more than a few minutes in the assessment. She reported she required frequent breaks. She would wander off topic and required prompting. The claimant reported that she had ceased reading news, social media or other text. She had lost interest in watching television.
The claimant could not concentrate to perform her hobby of diamond art for more than a few minutes before making too many errors and abandoning the complex task. She would become frustrated and no longer enjoy the hobby.”
The Medical Assessor’s rating of the respondent’s impairment in the other PIRS of the travel, social functioning and employability were, respectively, 2, 2 and 5. The Medical Assessor observed that the median of his Class scores was 3 and that the aggregate was 18. In accordance with Table 11.7 of the Guidelines, that converted to 22% WPI, and that is what the Medical Assessor certified was the degree of the respondent’s permanent impairment from her injury.

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 respondent to undergo a further medical examination. This is because the Appeal Panel came to the view that the respondent had not established the ground for appeal on which it relied, and consequently there was no basis 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 have been considered by the Appeal Panel.
Paraphrasing the appellant’s submissions, to provide a summary of them, they are that the Medical Assessor wrongly assigned the respondent’s impairment in the PIRS for self-care and personal hygiene as Class 3. The appellant submitted that the Medical Assessor did not record or question the respondent regarding whether she needs prompting for showering, and whether she can prepare her own meals and misses meals. The appellant’s submitted that there was no evidence that a family member of the respondent needs to ensure minimum levels of hygiene and nutrition for the respondent. The appellant submitted that “a Class 2 is more appropriate based on looking unkempt occasionally and sometimes missing meals”.
The appellant also submitted that the Medical Assessor wrongly rated the respondent’s impairment in social and recreational activities as Class 3. The appellant highlighted that Dr Chow obtained a history that the respondent was able to go shopping with friends and family and that Dr Roberts had obtained a history that the respondent was still in touch with friends.
The appellant also submitted that the Medical Assessor erred by rating the respondent’s impairment in concentration, persistence and pace as Class 3 and that Class 2 was more appropriate. The appellant submitted that the Medical Assessor failed to obtain details to satisfy a Class 3 rating. The appellant submitted that the Medical Assessor appeared to repeat the views of Dr Chow rather than provide details of a lack of concentration.
Paraphrasing the respondent’s submissions to provide a summary of them, they are that the Medical Assessor’s rating of her impairment in each of the PIRS the appellant has challenged accords with the history he obtained and the evidence that was before him.

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 Appeal Panel rejects the appellant submission to the effect that the Medical Assessor did not sufficiently interrogate the respondent to obtain an accurate history by which to classify the seriousness of her impairment in the PIRS for self-care and personal hygiene. It is apparent to the Appeal Panel, from its reading of the MAC, that the Medical Assessor has had regard to all the material that was before him and, indeed, extracted key parts of that material within the MAC.
The Appeal Panel considers that it is apparent from the MAC that in the process of obtaining a history from the respondent the Medical Assessor has had regard to the evidence. The process of obtaining a history involves a Medical Assessor reviewing all relevant medical data and information relating to a worker that is contained within the documentation available to the Medical Assessor, and, having done so, questioning the worker so as to elicit directly from the worker information that the Medical Assessor considers will be relevant to the assessment he or she must undertake.
As indicated the Appeal Panel considers, on its reading of the MAC, that the Medical Assessor has met that task. That is to say, with respect to self-care and personal hygiene, and indeed with respect to all the domains of activity and conduct comprising the PIRS, the Medical Assessor reviewed the material provided to him and elicited from that material and from his interrogation of the respondent the necessary clinical data to rate the seriousness of the respondent’s impairment.
Further, the assessment a Medical Assessor makes of a workers’ permanent impairment is an administrative task. Consequently there is a presumption of regularity that the Medical Assessor has attended to all matters necessary to undertake the task of assessing a workers’ permanent impairment.[2] There is nothing to which the appellant points in its submissions that would rebut that presumption.
[2] Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36]; Jones v The Registrar WCC [2010] NSWCA 481 at [50].
The Appeal Panel further notes that Table 11.1 of the Guidelines, which relates to self-care and personal hygiene, provides the following examples of conduct for a class 2 rating: “Able to live independently; looks after self adequately, although may look unkept occasionally; sometimes misses a meal or relies on take-away food”. The Appeal Panel notes that the examples provided for Class 3 rating are:
“Can’t live independently without regular support. Needs promoting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2 – 3 times per week to ensure minimum level of hygiene and nutrition.”
In the Appeal Panel’s view the matters that the Medical Assessor has detailed in the MAC, specifically the PIRS rating form, to rate the respondent’s impairment in self-care and personal hygiene, is conduct of the respondent that is relevant to this particular scale. In other words, there has been no error by the Medical Assessor to classify that conduct of the respondent within this scale and rate the respondent’s impairment by reference to it.
It is not apparent to the Appeal Panel from the MAC that the Medical Assessor has failed to consider a relevant matter by which to classify the seriousness of the respondent’s impairment in this category. What the Medical Assessor has set out reveals that the respondent would not be able to maintain her self-care and personal hygiene without the assistance of her family, which included their prompting the respondent to undertake certain self-care and personal hygiene tasks. The matters the Medical Assessor set out in the PIRS rating form justify a Class 3 rating. The Appeal Panel discerns no error in the Medical Assessor’s analysis relating to why he rated the respondent’s impairment in this domain as Class 3. It is not apparent from the MAC that the Medical Assessor has incorrectly exercised his clinical judgement when rating the respondent’s impairment.
The Appeal Panel consequently finds no error with respect to the Medical Assessor’s rating of the respondent’s permanent impairment in self-care and personal hygiene nor application by him of incorrect criteria.
Similarly, the Appeal Panel considers there is no error with respect to the history the Medical Assessor obtained to rate the respondent’s impairment in social and recreational activities. The Appeal Panel considers, having regard to the MAC as a whole, that the Medical Assessor composed the history relating to the respondent by having regard to the relevant evidence within the documentation provided to him and from appropriate questioning of the respondent. Again, the appellant has not rebutted the presumption of regulatory that applies to the process of the Medical Assessor obtaining the history.
The fact that other examiners had earlier obtained a history that was slightly different from that which the Medical Assessor obtained, does not render the history the Medical Assessor obtained incorrect. The history that the other examiners obtained were obtained much earlier than the time Medical Assessor interviewed the respondent. That is likely to account for slight differences in the history.
The Appeal Panel observes that the examples provided in Table 11.2 of the Guidelines, which relates to social and recreational activities, for a rating of mild impairment are “occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team)”. The Appeal Panel observes that the examples provided for moderate impairment are:
“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”.
What the Medical Assessor set out in the PIRS rating form relating to the respondent’s social and recreational activities is conduct that is relevant to this scale.
The history the Medical Assessor obtained revealed that the respondent has stopped participating in social and recreational and groups and declines invitations and has stopped caring for orphaned joey kangaroos. The Medical Assessor noted that the respondent prefers to be isolated and avoids social and recreational activities with others. In the Appeal Panel’s view that conduct best correlates with the examples provided for a Class 3 rating.
The Appeal Panel considers that it is not apparent from what the Medical Assessor has set out in the PIRS rating form to explain his rating of the respondent’s impairment in social and recreational activities that he has wrongly exercised his clinical judgement to rate the respondent’s impairment as Class 3. In other words, his classification is not wrong. Further, he has applied the criteria to rate the respondent’s impairment.
The Appeal Panel rejects the appellant’s submission that the Medical Assessor has repeated the view of Dr Chow regarding the assessment of the respondent’s impairment in concentration, persistence and pace. Dr Chow also rated the respondent’s impairment in this PIRS as Class 3 providing these reasons:
“Miss Cimino has poor concentration and focus. She is easily forgetful and distracted. She can read for a few minutes maximum. She tends to leave things behind.”
The Medical Assessor, when rating the respondent’s impairment in concentration, persistence and pace, referred to his findings from his mental state examination of the respondent, which included the respondent being unable to concentrate for more than a few minutes and needing frequent breaks and wondering off topic and requiring prompting. The Medical Assessor also noted that the respondent had ceased reading news, social media and other text and has lost interest in watching television. He recorded that the respondent could not concentrate so as to undertake one of her hobbies for other than a brief time and made errors when doing so and would abandon the task. The Medical Assessor consequently referred to a broader array of matters than what Dr Chow had when considering the respondent’s impairment in this PIRS.

The Appeal Panel considers that the conduct of the respondent that the Medical Assessor has recorded in the PIRS rating form for concentration, persistence and pace relates to concentration, persistence and pace. The Appeal Panel notes that when considering the respondent’s hobby of Diamond Art the Medical Assessor focused on the conduct of the respondent’s concentration in undertaking that activity, rather than her participation in a recreational activity, and hence was correctly considered under concentration, persistence and pace.
The Appeal Panel notes that the examples provided in Table 11.5 for a mild impairment are as followings:
“Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigue or develops headache.”
The examples provided for a Class 3 rating are:
“Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
Having regard to those examples, for the reasons the Medical Assessor provided, the Appeal Panel considers the Medical Assessor made no error in his clinical judgement by rating the respondent’s impairment as Class 3. Based on what the Medical Assessor set out it seems clear to the Appeal Panel that the respondent would be unable to take a basic retraining course and focus on intellectually demanding tasks for up to 30 minutes, whereas she would be unable to follow complex instructions or type long documents or undertake any task that required any concentration beyond a few minutes.
For these reasons, the Appeal Panel has determined that the MAC issued on 14 December 2023 should be confirmed.

[2024] NSWPICMP 310

22 May 2024