Boga v A La Turko (Retailers & Wholesalers) Pty Limited
[2022] NSWPICMP 499
•7 December 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Boga v A La Turko (Retailers & Wholesalers) Pty Limited [2022] NSWPICMP 499 |
| APPELLANT: | David Boga |
| RESPONDENT: | A La Turko (Retailers & Wholesalers) Pty Limited |
| Appeal Panel | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 7 December 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Worker alleges demonstrable error in assignment of classes for Permanent Impairment Rating Scale (PIRS) categories of social and recreational activities and concentration, persistence and pace and in the making a deduction of 1/10th pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 for a pre-existing condition; Held – that the history recorded and accepted by the Medical Assessor (MA) was not compatible with assignment of class 2 for Social and recreational activities; Medical Assessment Certificate (MAC) did not demonstrate the actual path of MA’s reasons in accordance with Wingfoot Australia Partners Pty Ltd v Kocak; demonstrable error not proven in respect of assignment of class 2 for concentration or in respect of the deduction for a pre-existing condition; social and recreational activities reassessed as class 3; MAC revoked and new MAC issued. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 7 December 2022 David Boga (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 (MA), who issued a Medical Assessment Certificate (MAC) on 11 August 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
· the assessment was made on the basis of incorrect criteria,
· 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 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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
David Boga (the appellant) was the proprietor and an employee of A La Turko (Retailers & Wholesalers) Pty Limited (the respondent), a chain of Turkish food shops. In 2014, he took over the management of a retail outlet of the business at the Myer Centre in George Street Sydney. The appellant states:
“From the moment I took over the management of the franchise, I started noticing rats in and around the shop. Initially, I noticed rat droppings in the shop and I would regularly suffer from a breakdown of my electrical equipment.”
Over time the problem became more severe. The appellant states:
“I recall having them jumping on my head, my face and on my back as I was trying to clean the shelving and storage areas.”
The appellant states that the rats were “quite large and almost as big as small cats”. He says that he was affected psychologically by the presence of rats and he felt it difficult to retain staff and customers.
Following an extermination program implemented by the centre management, the appellant was told by a cleaner that he had “seen 3 skip bins full of dead rats”. He says he became sick at this time. He states that since 2019, he experienced severe problems sleeping and “getting myself to work”. He also suffered significant losses in his business.
In early 2020, he came under the care of a general practitioner, Dr Lim who apparently diagnosed post-traumatic stress disorder. He was referred to a psychologist, Mr Matek, and a psychiatrist, Dr St George. Recently, he has seen another psychiatrist, Dr Bisht.
On 11 March 2020, the appellant saw Dr Synnott, a psychiatrist at the request of the respondent. Dr Synnott expressed the opinion that the appellant suffered an adjustment disorder as a result of exposure to the rat infestation in the course of his employment. He doubted whether further medical treatment would benefit the appellant. He expressed the opinion that he should return to work, initially on a part-time basis, at a location other than the Myer food court.
On 25 May 2021, the appellant saw Dr Richa Rastogi, a psychiatrist, at the request of his solicitor. The doctor recorded a previous history of depression six years ago “associated with work difficulties”. She diagnosed a major depressive disorder. She assessed 17% whole person impairment (WPI) in accordance with the psychiatric injury rating scale (PIRS) in chapter 11of the Guidelines.
By these proceedings, the appellant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The respondent accepts that the appellant suffered a psychological injury arising out of and in the course of his employment. As the question of the extent of the appellant’s WPI as a result of the injury is a “medical dispute”, as that term is defined in s 319 of the 1998 Act, a delegate of the President referred it to Dr Baker for assessment. It is from his MAC that the appellant brings this appeal.
PRELIMINARY REVIEW
The appeal panel conducted a preliminary review of the original medical assessment in the absence of the parties.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for the worker to undergo a further medical examination. The panel noted that neither party sought a re-examination of the worker. It concluded that a further examination would not assist the deliberation of the panel in respect of the issues in dispute.
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 clinical records, including the serial reports of treating specialists, produced by the appellant’s doctors, Workers Doctors, on 17 August 2022. He submits that, as these documents were first produced “under subpoena in other proceedings” on 17 August 2022, they constitute “fresh evidence”. In particular, he presses a report of Dr Bisht, his most recent treating psychiatrist, dated 8 August 2022. The appellant continues:
“The records should be admitted as it has substantial probative value insofar as it provides evidence of a deterioration in his condition and also evidence, as to the plaintiff’s prior diagnosis of a psychological injury. The evidence, also provides further insight for the AMS in determining the correct class when providing an assessment of whole person impairment.”
The respondent objected to the panel receiving fresh evidence. It submitted that the entirety of the clinical record, other than the notes and reports brought into existence between 18 July 2022 and 17 August 2022 were available to the appellant on request prior to the medical assessment. It objected to the report of Dr Bisht on the grounds of relevance. It did not contain a relevant history of the appellant’s pre-existing condition and had not addressed the PIRS categories. It relied on the decision of the Supreme Court in CSR Limited v Ewins[1].
[1] [2020] NSWSC 511 at [22]-[26].
The panel addresses these arguments in its reasons below.
Evidence
The appeal panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the MAC given by the MA which are relevant to the appeal are set out 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. In summary, the appellant alleged three errors.
First, he alleged that the MA erred in assigning class 2 in the PIRS category of Social and recreational activities. Secondly, the MA erred in assigning class 2 for the PIRS category of Concentration, persistence, and pace. Thirdly, by reference to the fresh evidence it sought to be admitted, the appellant submitted that the MA erred in making a deduction of one tenth for a pre-existing psychological condition.
In respect of Social and recreational activities, the appellant recited the history recorded by the MA of his engagement in these activities. He submitted that:
“Based on the history taken by Dr Baker … he has erred in applying the correct class rating in this category”.
The appellant also referred to his statement evidence and the report of Dr Rastogi, who had expressed the opinion that the appellant fell within class 3 in respect of social and recreational activities. The appellant continued:
“The assessment by the AMS of class 2 for social and recreational activities is incongruent with the evidence that he himself recorded and accepted. The reasons provided in the Table are not consistent with the evidence he recorded in the MAC. It is respectfully submitted that the appropriate class is 3 and not class 2.”
In respect of Concentration, persistence and pace, the appellant again pointed to the discrepancy between the history and complaints the MA recorded in the MAC and his assignment of class 2. He continues:
“The AMS has not taken any history, as to whether the appellant is performing ‘intellectually demanding tasks’ when concentrating for up to 30 minutes. Further, the AMS provides a mixed opinion noting that the appellant is less interested in such tasks and that he is easily frustrated and agitated.
There is no evidence to suggest that the AMS was referred to tasks that would be considered to be ‘intellectually demanding’ but instead refers to the fact that the appellant has lost interest in even reading the newspaper.”
The appellant also refers to aspects of his statement and the reports of Dr Bisht and Dr Rastogi. The latter expressed the opinion that the appellant suffered a moderate impairment in this category and fell within class 3. He concluded thus:
“The assessment by the AMS of class 2 for concentration, persistence and pace is incongruent with the evidence that he himself recorded and accepted. The reasons provided in the Table are not consistent with the evidence he recorded in the MAC. It is respectfully submitted that the appropriate class is 3 and not class 2.”
In respect of the deduction made by the MA for a pre-existing condition pursuant to s 323(2) of the 1998 Act, the appellant canvasses at length the clinical evidence produced by the worker’s doctors. He continues:
“In our submission, based on the fresh evidence outlined above, it is evident that any pre-existing condition had resolved and that at the time of the injury the appellant was functioning in full capacity and there was no evidence of any impairment or need for appropriation (sic) pursuant to s 323 of the 1998 (Act).”
Finally, the appellant notes by way of additional information that the assessment was conducted by telephone as the MA’s camera was not working. He does not suggest that anything flows from this “information”. The panel notes that this “information” is not borne out by the MAC.
In response to the appeal against the PIRS classifications, the respondent submitted that the MA had taken a comprehensive history and reviewed the treating medical evidence. It submitted that his reasons should be “considered in totality and not with an eye finely tuned for error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[2]
[2] (1996) 185 CLR 259 (at [291]).
The respondent also relied upon Dr Synnott’s conclusions that the appellant was able to recall details, maintain focus, respond to questions, and was “thoughtful and articulate” during his assessment.
It submitted that Ch 11.12 of the SIRA Guidelines was not prescriptive and was not to “usurp the MA’s judgment, expertise and experience”.
Finally, the respondent submitted that the fact that the appellant was “less interested” in writing poetry and columns for the newspaper did not constitute an “inability to engage in intellectually demanding tasks”.
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[3]. The Judge considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in her application.
[3] [2013] SC 1792 (11 December 2013).
In Campbelltown City Council v Vegan[4], 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.
[4] [2006] NSWCA 284 (Vegan).
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW[5]. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
[5] [2008] NSWCA 116.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia partners Pty Ltd v Kocak[6] that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[6] [2013] 252 CLR 80.
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example, El Masri v Woolworths Ltd[7].
[7] [2014] NSWSC 1344 (26 September 2014).
Fresh evidence and deterioration
The panel concluded that the clinical notes of the Workers Doctors should not be admitted into evidence. The appellant had not established that these notes could not reasonably have been obtained by his solicitor before the medical assessment. The appellant must have known that these documents were potentially relevant to the outcome of the medical dispute. They were the notes of his treating doctor and could be readily obtained by application or by the issue of a Direction prior to the assessment. The appellant’s solicitors clearly made a conscious decision to permit the matter to proceed to an assessment by the MA without those notes.
It is arguable that the report of Dr Bisht, who the appellant saw on 11 August, almost a month after the medical assessment and three days before the MAC was issued, is in a different category. That report, however, is extremely brief. It contains little relevant history. It does not address the PIRS categories which are at issue in these proceedings in detail. Assuming the report constituted fresh evidence, the panel took the view that it did not assist in the consideration of the issues in dispute.
The report of Dr Bisht does not suggest deterioration. Given the nature of his psychological condition and its longevity, it would be surprising if the appellant’s condition deteriorated following the medical assessment. As there is no compelling evidence of deterioration, the panel does not intend to further consider this ground of appeal.
Social and recreational activities
Table 11.2 of the Guidelines sets out the descriptors for the category of Social and recreational activities. In respect of class 2, the following appears:
“Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).”
In respect of class 3, the following appears:
“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.”
In respect of the appellant’s social and recreational activities the MA recorded the following history:
“Mr Boga reported that he had stopped attending his Chamber of Commerce. He reported that he had stopped attending or visiting old friends. He would watch television. He had lost interest in socialising with his extended family or celebrating family events. He preferred to remain isolated and spend most of his time at home and not within the community where he was well-known. He reported that the family friend Rosa would attend his home to visit and socialise with him. He would attend his wife’s café to support and assist sometimes.
Mr Boga was not able to leave the family home alone without assistance of either his wife or his friend Rosa. He reported he would become anxious and agitated when in the community.”
The MA reiterated this history, which he undoubtedly accepted as a reliable account of the appellant’s engagement in social and recreational activities, in giving his reasons for classification in the PIRS Rating Form. The reliability of the history is not challenged by the respondent.
It is true, as the respondent submits that the descriptors set out in Table 11.2 are but examples for the assistance of the MA in reaching a determination of the correct class. It is also true that the reasons of an MA when assigning a class should be read as a whole and not scrutinised with a view to finding error. It is necessary, however, for the MA to provide short reasons for assignment of a category. These must expose the actual path by which he reached the classification in accordance with the instruction in Wingfoot. In the opinion of the panel, the reasons in the MAC do not demonstrate the path by which the MA assigned class 2 in the PIRS category of Social and recreational activities.
As the appellant argues, the history recorded by the MA for the reasons that he has provided does not support an assignment of class 2 in this category. The panel particularly notes the following history:
“Mr Boga was not able to leave the family home alone without assistance of either his wife or his friend Rosa. He reported he would become anxious and agitated when in the community.”
The history relevant to this issue recorded by the MA is consistent with the appellant’s statement and the reasons recorded by Dr Rastogi for assigning a moderate impairment or class 3 in respect of Social and recreational activities. It was open to the MA to conclude after examining the appellant that he did not accept his evidence on the issue because it was unreliable or by reason of its inconsistency with other evidence. He has not done so.
As the MA has erred, either in failing to demonstrate the path by which he assigned class 2 in respect of this category or because there was no evidence which permitted him to assign class 2, it is necessary for the panel to reassess the classification in this category.
In the opinion of the panel the evidence recorded by the MA is entirely consistent with the class descriptors for class 3. The evidence that the appellant was not able to leave the family home alone without the assistance of his spouse or close friend, prefers to stay at home, and becomes anxious in the community is only consistent with class 3. There is no suggestion that he occasionally goes to events without a support person. The totality of his complaints on this issue is almost identical with the class 3 descriptors.
In those circumstances, for the same reasons recorded by the MA in the MAC, the panel assigns class 3 in respect of social and recreational activities.
Concentration persistence and pace
The descriptors in Table 11.5 of the Guidelines for class 2 in this category are as follows:
“Mild impairment: 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 fatigued or develops headache.”
The descriptors for class 3 are as follows:
“Moderate impairment: 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.”
By the MAC, the MA gave the following reasons for assigning class 2 in this category:
“Mr Boga reports that he becomes frustrated and agitated easily. He reported that he was able to concentrate up to 30 minutes. He was less interested in intellectually demanding tasks such as writing poetry or columns for the Turkish newspaper as he had prior to the onset of this work-related injury.”
In assigning a classification under this category however, the MA was entitled to consider the entirety of the evidence including his findings on mental state examination. He recorded the following:
“His speech was normal in rate. His volume of speech was at times increased when he became agitated. He was able to concentration [sic] for the duration of this assessment. He did not require prompting to remain on topic. He described a depressed mood with mixed anxiety. He felt he had lost his self-esteem and standing in his family as he was unable to work in his business. Mr Boga did not describe any delusional ideas or psychotic symptoms. He did not describe intrusive thoughts involving themes of self-harm, death and dying. He was insightful into his condition. His judgement was fair.”
While aspects of the history and of the mental state examination might suggest class 3, the panel is of the opinion that the evidence does not lead inexorably to that conclusion. Aspects of the mental state examination also suggest class 2. The fact that the applicant could concentrate for the duration of the assessment and that he did not require prompting to remain on topic are examples of the latter. It was necessary for the MA to weigh these objective matters against the subjective history provided by the appellant. That involved the clinical judgement of the MA.
In the opinion of panel, the appellant has not demonstrated demonstrable error or the application of the correct criteria in the methodology employed by the MA in this category. It was open to him to assign class 2.
Section 323
The MA dealt with the issue of a deduction for a pre-existing condition as follows:
“Mr Boga did have a pre-existing psychiatric condition related to the 2015 claim. He was referred to Dr Chaudhary (retired) in 2012 for severe depression. He was in treatment with his psychologist Ms Goktepe, and Dr Chaudhary (retired) before commencing his role as the manager of Sydney CBD shop in 2015. He had continued to attend Dr Chaudhary (retired) and Ms Goktepe regularly in 2016.
Mr Boga’s self-report K10 score remained high on 17 July 2017. That was the last documented assessment of his treatment as recorded in the medical file relating to the 2015 psychological injury claim. From the medical record and Mr Boga’s self-report he is still suffering from his major depressive disorder that commenced while he was at the Stockland’s shop. His major depressive disorder was in partial remission at the time he was working in the Sydney CBD shop from 2016 until the condition ceased in about 2018.”
It is quite clear that the appellant contracted a very significant pre-existing psychological condition in 2012. He was referred for psychiatric and psychological treatment. His medical treatment persisted over a period of, at least, five years. He continued to receive treatment from a psychiatrist, Dr Chaudhary until 2017. The MA recorded that the condition persisted after that time and only abated shortly before the events which caused the present psychological condition. He recorded, however, that the appellant was asymptomatic at the time of the onset of his present illness.
It is also quite clear, that the MA formed the opinion that the pre-existing condition contributed to his current impairment. In the opinion of the panel, that conclusion was almost inevitable given the duration of the pre-existing psychological condition and its close association in time with the present condition. It would be surprising if such a long standing psychological illness was not a contributing factor to the present illness. Equally, it would be surprising if such a long-standing psychological illness did not impact on the level of the appellant’s impairment.
As the respondent has argued, it was open to the MA to make a deduction even where the condition was asymptomatic prior to the psychological injury. In the opinion of the panel the MA did not err in making a deduction pursuant to s 323(2) for the previous condition. A 1/10th deduction is consistent with the evidence elicited by the MA in his history. It is not suggested that a greater deduction should be made.
As the panel has found class 3 for Social and recreational activities, the median class determined in accordance with Ch 11.14 of the Guidelines is class 3 and the aggregate score of the classifications is 16. Applying the conversion Table 11.7 results in an assessment of 17% WPI. From this 1/10th must be deducted to reflect the contribution of the pre-existing psychological condition.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 August 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: | W6310/21 |
Applicant: | David Boga |
Respondent: | A La Turko (Retailers & Wholesalers) Pty Limited |
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 Baker and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological injury | 2 February2020 | Ch 11, pp 60-68 | Ch 14 | 17% | 1/10th | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
6
0