BRN v The Intermedia Group Pty Ltd
[2024] NSWPICMP 256
•1 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | BRN v The Intermedia Group Pty Ltd [2024] NSWPICMP 256 |
| APPELLANT: | BRN |
| RESPONDENT: | The Intermedia Group Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 1 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether additional information would change the outcome; whether Medical Assessor (MA) afforded procedural fairness to the appellant; whether MA’s ratings of appellant’s impairment in self-care and personal hygiene and in travel are correct based on the history the MA obtained; Appeal Panel held the additional information would not change the outcome and section 327(3)(b) not established; Appeal Panel found MA afforded the appellant procedural fairness; Appeal Panel found the MA’s rating of appellant’s impairment in travel involved no error but there was error with respect to MA’s rating of appellant’s impairment in self-care and personal hygiene; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 February 2024 BRN, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 12 January 2024.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):
· 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, 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, 4th ed
1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
The appellant was employed by The Intermedia Group Pty Ltd, the respondent, between November 2015 and September 2019. Due to events that occurred in his workplace between approximately 2012 and October 2018 he suffered a psychological injury. A medical dispute has arisen between the parties regarding whether the degree of the appellant’s permanent impairment from that injury is more than 20%. The appellant has initiated proceedings in the Personal Injury Commission (Commission) seeking that dispute be assessed by a Medical Assessor.
A delegate of the President of the Commission referred the matter to the Medical Assessor by means of an amended referral dated 15 November 2023. The Medical Assessor examined the appellant on 15 November 2023 from approximately 10am to conduct that assessment. The examination was done by an audiovisual link.
The Medical Assessor set out in the MAC a detailed history relating to the appellant’s injury. It is apparent to the Appeal Panel, having regard to the MAC as a whole, that the Medical Assessor composed that history by reference to the documents the Commission had provided her with the referral and also by reference to her interview of the appellant. The history the Medical Assessor set out included the circumstances relating to the onset of the appellant’s psychiatric illness constituting his injury, his treatment of his illness, the symptoms he suffered in the past and those he currently suffers, and also the effect of the appellant’s illness currently on his social activities and activities of daily living.
The Medical Assessor set out her findings from her examination of the appellant. They were:
“I reviewed BRN via video. BRN was cooperative and rapport was established. He was oriented to time, place and person and had clear sensorium. His speech was coherent and relevant. He described his mood as depressed and frustrated. His effect was congruent to the mood described, and there were pervasive feelings of helplessness, hopelessness, and worthlessness with prominent anxiety symptoms. He denied having any psychotic symptoms or any perceptual disturbances, and there was no evidence of any thoughts of harming, suicidal ideas, plans or intent. His judgement and insight were normal.”
The Medical Assessor made a diagnosis of the appellant’s injury of persistent depressive disorder with anxiety symptoms. The Medical Assessor remarked that the appellant’s presentation during her assessment was consistent with the history she obtained during her clinical interview with him and the documentation she had received and her mental state examination of him. The Medical Assessor stated that she based her assessment of the degree of the appellant’s permanent impairment on those matters.
The Medical Assessor rated the appellant’s permanent impairment in accordance with the criteria set out in Chapter 11 of the Guidelines. That required the Medical Assessor to rate the seriousness of the effect the appellant’s injury had in six areas of his activity and conduct. These are termed the psychiatric impairment rating scale (PIRS).
The median of the scores of the Medical Assessor’s ratings of the appellant’s impairment in the several PIRS was 3 and the aggregate of her scores was 17, which, in accordance with Table 11.7 of the Guidelines, converts to 19% WPI. The Medical Assessor certified that was the degree of the appellant’s permanent impairment from his injury.
The appellant in his appeal against the MAC has challenged, amongst other things, the Medical Assessor’s classification of his impairment in the PIRS categories of self-care and personal hygiene and travel, which the Medical Assessor rated as 2 for both. The Medical Assessor’s reasons for her rating of the appellant’s impairment in self-care and personal hygiene were as follows:
“BRN reported that his self-care is “poor” and does not care about his appearance. He only showers and changes into clean clothes when his mum insists.
He reported that he gets UTI, balanitis, eye infections due to not changing his contact lens. He reported that he does not cook at all and his mum cooks and drops
off the dinner. He feels less energetic and does not even reheat the food. His weight has been fluctuating in the last couple of years because of his erratic eating
habits. However, objectively he did not look overly dishevelled during the appointment.”
The Medical Assessor’s reasons for rating the appellant’s impairment in travel as Class 2 were as follows:
“BRN is able to drive to familiar areas like for his endocrinologist appointment and doctor's appointment. He denied having any near misses or accidents. He
said he does not feel safe when driving in unfamiliar areas.”
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 worker to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient to enable the Appeal Panel to deal with the appeal.
EVIDENCE
The Appeal Panel has before it and taken into account in making this determination all the documents that were sent to the Medical Assessor for the original medical assessment. In addition to that evidence, the Appeal Panel also has taken into account an email the appellant sent the Commission on 15 November 2023. The Appeal Panel has provided brief reasons under the heading “Findings and Reasons” below for why it received this email into evidence.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that additional information he seeks the Appeal Panel receive into evidence revealed the examination the Medical Assessor undertook was unsatisfactory and did not afford him procedural fairness. He submitted that it establishes that some of the conclusions the Medical Assessor reached relating to his impairment in self-care and personal hygiene and travel were incorrect.
The additional information that the appellant seeks the Appeal Panel receives into evidence is an email he forwarded to the Commission at 3:44pm on 15 November 2023 and a statement he signed on 2 February 2024.
The appellant submitted that there were problems with the audiovisual link by which the Medical Assessor conducted her examination of him which caused him a “practical injustice”.
The appellant submitted that the Medical Assessor’s rating of his impairment in self-care and personal hygiene of Class 2 is a demonstrable error given the deficit he has in his function in this domain. The appellant submitted that the Medical Assessor’s rating of his impairment in travel as Class 2 is a demonstrable error because he rarely leaves his home.
In reply, the respondent conceded that the email the appellant forwarded the Commission on 15 November 2023, which the appellant seeks the Appeal Panel receive into evidence, contains additional information that was not available and could not have reasonably been obtained by the appellant before the medical assessment. The respondent also conceded that paragraphs 3 and 4 of the appellant’s statement dated 2 February 2024 contains additional relevant information that was not available and could not have reasonably been obtained before the medical assessment. The respondent submitted that the balance of the appellant’s statement of 2 February 2024 was available to the appellant prior to the assessment because it relates to the appellant’s function in the several PIRS domains. The respondent further submitted that the content of the appellant’s statement, other than paragraphs 3 and 4 seeks to cavil with the findings and observations of the Medical Assessor.
The respondent highlighted that the Medical Assessor did not in the MAC report any difficulties in conducting the assessment, including any difficulties hearing or seeing the appellant. The respondent submitted that the appellant did not address how the fresh evidence upon which he seeks to rely would lead to a different result. The respondent submitted that the appellant’s appeal based on the ground of the availability of additional information should fail.
The respondent submitted that the Medical Assessor obtained a relevant history relating to the appellant’s ability with self-care and personal hygiene. The respondent highlighted that the Medical Assessor’s rating of the appellant’s impairment in self-care and personal hygiene was consistent with the assessment of Dr Ashwinder Anand, whom the respondent qualified to provide an assessment of the appellant’s impairment. The respondent submitted that the appellant has failed to establish that the Medical Assessor’s rating of his impairment in self-care and personal hygiene is more than just a difference of opinion on a subject about which reasonable minds might differ.
The respondent highlighted that the history the Medical Assessor obtained included the appellant’s two sisters, who live in Cabramatta and Campbelltown, being support persons. The respondent highlighted that the history included that the appellant did not eat on some days and on other days binged on unhealthy snacks. The respondent highlighted the history included the appellant’s mother doing the appellant’s household chores and leaving food for him and being his main support person. The respondent highlighted that the history included the appellant’s self-report of poor self-care and lack of concern about his appearance, and showering and changing his clothes only when his mother insists. The respondent highlighted the history included the appellant having infections with UTI, balanitis, eye infections and fluctuating weight. The respondent highlighted that the Medical Assessor found the appellant did not look overly dishevelled during examination. The respondent highlighted that the Medical Assessor provided specific reasons for not rating the appellant’s impairment as Class 3 in self care and personal hygiene and that she said that there was no objective evidence to establish a Class 3 rating.
The respondent highlighted that the history the Medical Assessor obtained relating to the appellant’s function in travel included the appellant only leaving his house for appointments and treatment and being able to drive to familiar areas such as the premises of his endocrinologist and doctor, but feeling unsafe when driving to unfamiliar areas. The respondent highlighted that the Medical Assessor’s rating of the appellant’s impairment in travel was consistent with the assessment of Dr Anand and also consistent with the assessment of Dr Richa Rastogi, who is a psychiatrist whom the appellant qualified to provide a report.
The respondent submitted that the appellant has failed to establish that the determination of the Medical Assessor in travel was more than just a difference of opinion on a subject about which reasonable minds might differ.
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.
Additional evidence
Section 327(3)(b) of the 1998 Act allows as a ground for appeal against a medical assessment the “availability of additional relevant information (but only if the additional information was not available to, and could not have reasonably been obtained by, the appellant before the medical assessment appealed against”.
The “additional information” the appellant relies upon to support this ground for appeal is the content of his email he sent to the Commission on 15 November 2023 at 3:44pm and the content of his statement on 2 February 2024. The respondent concedes the content of the email and paragraphs 3 and 4 of his statement is additional information. The Appeal Panel agrees. That information relates to issues that occurred with the audiovisual link during the Medical Assessor’s examination of the appellant. In the appellant’s email the appellant noted that the Medical Assessor’s “sound often dropped out every few minutes, with her unable to hear me and then my mic disconnected every few minutes also”. The appellant stated his impression was that the assessment was rushed during the times when he and the Medical Assessor could hear each other. The appellant also said that he “wasn’t able to go into everything that caused my psychological injury”. The appellant said that examination left him “feeling very frazzled and disheartened”. The appellant said that this “increased my anxiety and forgetfulness, and prevented me from discussing everything that I wanted to say”.
In paragraphs 3 and 4 of his statement of 2 February 2024 the appellant noted the issues with the respect to sound and video experienced during the assessment. He said it made it “difficult to both see and hear each other”. The appellant said that the attempt to resolve the audiovisual issues wasted 15 minutes of the assessment time.
The other parts of the appellant’s statement related to matters relevant to his function in self-care and personal hygiene, concentration, travel and various things he says he told the Medical Assessor relating to these matters.
The Appeal Panel agrees with the respondent’s submission that, other than paragraphs 3 and 4 of the appellant’s statement, the content of his statement is not additional information that was not available to the appellant before the medical assessment. Any information relevant to the appellant’s conduct or activity in the domains of self-care and personal hygiene and travel was obviously known to the appellant prior to the Medical Assessor’s assessment of his permanent impairment and could have been detailed by the appellant in a written statement prior to the assessment. Indeed, the appellant indicates in his statement that he had prepared notes before his assessment regarding these matters. That information therefore cannot substantiate the ground for appeal provided in s 327(3)(b) of the 1998 Act.
Moreover, the Appeal Panel would not be able to receive into evidence his statement, other than paragraphs 3 and 4, under s 328(3) of the 1998 Act because the evidence was available to the appellant and could have reasonably been obtained by him before the medical assessment.
The appellant’s email and paragraphs 3 and 4 of his statement relate to issues that occurred regarding the audiovisual connection during the Medical Assessor’s examination of the appellant. The appellant’s recount of that was obviously not available to him prior to the medical assessment. Because his recount of these matters relates to the manner in which the Medical Assessor conducted her examination of him, it is relevant to the assessment of his permanent impairment and, for that reason, the Appeal Panel receives that material into evidence pursuant to s 328(3) of the 1998 Act.
The issue the Appeal Panel must address in considering whether ground for appeal provided in s 327(3)(b) of the 1998 Act is established is whether that additional information would lead the Appeal Panel to a different conclusion from that reached by the Medical Assessor.[1] The answer is no.
[1] Lancaster v Foxtel Management Pty Ltd [2022] NSWC 929 at [13].
The Medical Assessor did not indicate in the MAC that disruptive issues experienced with the audiovisual link affected her ability to compose a clinical history sufficient to enable her to conduct her assessment of the appellant’s permanent impairment from her injury. In the Appeal Panel’s view the history the Medical Assessor obtained is thorough. She has set out all the relevant circumstances that precipitated the onset of the appellant’s psychiatric illness constituting his injury. She was able to detail the treatment the appellant has received including his current treatment. She was able to detail his symptoms including his current symptoms. She was able to observe and make findings of the appellant’s demeanour and affect during examination. She was able to make findings with respect to his cognitive capacity and his exhibition of symptoms during examination.
The Medical Assessor is a psychiatrist. She has experience in clinical practice. It can be inferred she has skill and experience in how a clinical examination must be conducted to enable a diagnosis and also to make an assessment of permanent impairment of a worker. There is no evidence whatsoever to indicate the appellant has any clinical experience and indeed it can be reliably assumed he does not. Insofar as the additional information contains his impressions of the effect on Medical Assessor’s ability to conduct an assessment, given the audiovisual issues experienced during the examination, or his impression regarding the Medical Assessor’s conclusions, it has no weight.
In all, the additional information does not lead the Appeal Panel to come to different conclusion from that reached by the Medical Assessor, because the additional information does not establish that the history the Medical Assessor obtained and her findings from her mental state examination of the appellant was deficient in any way. Consequently this ground for appeal is not established.
Procedural fairness
It is the case, as the appellant has submitted, that the Medical Assessor was required to afford procedural fairness to him when the Medical Assessor was conducting his examination and assessing his permanent impairment.[2]
[2] Hutchison v Wyong Race Club Ltd [2020] NSWSC 1592 at [74]-[78] and the cases cited therein.
The appellant’s submission with respect to this matter is that due to the issues experienced with the audiovisual link the Medical Assessor did not hear him properly and consequently did not afford him procedural fairness. The Appeal Panel does not accept that submission. As the Appeal Panel discussed above, the issues that were experienced during the examination process with the audiovisual link did not prevent the Medical Assessor obtaining a history or making findings from her examination sufficient to enable her to conduct the assessment of the appellant’s permanent impairment. The appellant has not suffered any practical injustice as a consequence of those issues and hence he was not denied procedural fairness.
Self care and personal hygiene
The Appeal Panel accepts the appellant’s submission to the effect that the Medical Assessor erred by rating his impairment in self-care and personal hygiene as Class 2. That error was material to the outcome of this matter, such that it is a demonstrable error.
The examples provided in Table 11.1 of the Guidelines for a Class 2 impairment are “able to live independently; looks after self adequately, although may look unkept occasionally; sometimes misses a meal or relies on takeaway food”. The descriptors provided for a Class 3 are:
“Can’t live independently without regular support. Needs prompting 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.”
The Medical Assessor’s explanation for her rating of the appellant’s impairment in this PIRS was that he showers and changes into clean clothes only when his mother insists and that he does not cook and that his mother prepares meals for him and drops them to his place, that he does not sometimes reheat the food that his mother has provided, and that his weight has been erratic over the years due to his erratic eating habits. The Medical Assessor also recorded the appellant gets UTI and balanitis and also eye infections because he does not change his contact lens. The Medical Assessor recorded the appellant had reported he does not care about his appearance but the Medical Assessor noted that the appellant did not look “overly dishevelled” during her examination of him.
In the Appeal Panel’s view based on what the Medical Assessor recorded the function of the appellant in self-care and personal hygiene best correlates with the examples provided for a Class 3 impairment in Table 11.1. What the Medical Assessor recorded does not correlate at all with the examples provided for a Class 2 impairment. What the Medical Assessor has set out in the MAC reveals the appellant would not be able to live independently without the support of his mother. The fact that he did not appear “overly unkept” during the examination does not detract from his report that he has no care in his appearance. It would not be unusual for someone in the appellant’s position to attempt to tidy their ordinary appearance for an appointment for a medical examination.
In the Appeal Panel’s view the Medical Assessor wrongly exercised her clinical judgement by rating the appellant’s impairment as Class 2 for self-care and personal hygiene. The rating should have been Class 3.
Travel
The Appeal Panel does not accept the appellant’s submission that the Medical Assessor erred regarding her classification of his impairment in travel. The examples provided in Table 11.3 of the Guidelines for a Class 2 impairment in travel are “can travel without support person, but only in familiar area such as local shops, visiting a neighbour”. The examples provided for a Class 3 impairment:
“Cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”
The Medical Assessor recorded that the appellant is able to drive on his own to familiar areas such as doctor’s appointments. That correlates best with the examples provided for a Class 2 impairment and not a Class 3 impairment. The appellant has not demonstrated that the Medical Assessor wrongly exercised her clinical judgement to rate his impairment in this PIRS as Class 2.
Correcting the error
As the Appeal Panel has found the Medical Assessor erred with her rating of the appellant’s impairment in the PIRS for self-care and personal hygiene, the Appeal Panel must correct that error. It does so by rating the appellant’s impairment in this PIRS as Class 3. When that is done the median of the Class scores for the appellant as 3 but the aggregate score increases to 18, which, in accordance with Table 11.7 of the Guidelines converts to 22% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
12 January 2024 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: | W6915/23 |
Applicant: | BRN |
Respondent: | The Intermedia Group 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 Medical Assessor Surabhi Verma 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) |
| Psychiatric/psychological disorder | 13/11/2018 deemed | Chapter 11 | - | 22% | - | 22% |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
0
2
0