Cammarata v We Care NFP Pty Ltd

[2024] NSWPICMP 414

DETERMINATION OF APPEAL PANEL
CITATION:	Cammarata v We Care NFP Pty Ltd [2024] NSWPICMP 414
APPELLANT:	Kristy Cammarata
RESPONDENT:	We Care NFP Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	26 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor’s (MA) ratings of the appellant’s self-care and personal hygiene, social functioning, and travel under Psychiatric Impairment Rating Scale involved error; Held – MA’s ratings of the appellant’s impairment in self-care and personal hygiene, social functioning, and travel involved no error; Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 25 March 2024 Kristy Cammarata, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 February 2024.

2. The appellant relies on the following ground for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):

   ·        the MAC contains a demonstrable error.

3. 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.

4. 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.

5. 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

1. The appellant worked as a disability support worker for We Care NFP Pty Limited, the respondent. Due to events that occurred when she worked an overnight shift between 5 July and 6 July 2022 she suffered a psychological injury.

2. The appellant’s solicitors arranged for the appellant to be examined by psychiatrist Dr Ben Teoh on 14 April 2023 to assess the degree of her permanent impairment from that injury. In report of that date Dr Teoh advised that her presentation was consistent with a diagnosis of post-traumatic stress disorder on the background of a pre-existing obsessive compulsive disorder.

3. Dr Teoh assessed that the degree of the appellant’s overall permanent impairment was 17% whole person impairment (WPI). His assessment was done by reference to the psychiatric impairment rating scale (PIRS), the substance of which, the Appeal Panel notes, is set out in paragraphs 11.11 and 11.2 of the Guidelines. Dr Teoh’s ratings of the appellant’s impairment in the several PIRS categories were Class 2 for self-care and personal hygiene, Class 3 for social and recreational activities, Class 2 for travel, Class 3 for social functioning, Class 3 for concentration, persistence and pace and Class 3 for employability. When assessing the degree of the appellant’s permanent impairment from her work injury, Dr Teoh made a deduction of 10% to the overall permanent impairment he assessed the appellant had because he considered a proportion of her permanent impairment was due to “a pre-existing impairment”.

4. Relying on that report of Dr Teoh, the appellant claimed compensation from the respondent’s insurer pursuant to s 66 of the Workers’ Compensation Act 1987 for 15% WPI. To respond to the appellant’s claim, the respondent’s solicitors organised for the appellant to be examined by psychiatrist Dr Abdul Virk on 9 September 2023. In a reported dated 7 November 2023 Dr Virk provided a “diagnostic impression” of the appellant’s injury of post-traumatic stress disorder as a primary diagnosis and “obsessive compulsive disorder – aggravation” as a secondary diagnosis. Dr Virk advised that he assessed the appellant’s overall permanent impairment was 7% WPI. He too assessed the appellant’s impairment by reference to the PIRS, rating her impairment for self-care and personal hygiene as Class 2, for social and recreational activities as Class 3, for travel as Class 2, for social functioning as Class 2 for concentration, persistence and pace as Class 3 and for employability as Class 2. Dr Virk also considered that a proportion of the appellant’s permanent impairment from her work injury was due to the appellant’s history of obsessive compulsive disorder and made a deduction of 10% on account of that, such that he assessed the degree of her permanent impairment from her injury as 6% WPI.

5. Following Dr Virk issuing his report to the respondent’s solicitors, the insurer issued a notice to the appellant under s 78 of the 1998 Act in which it denied it was liable to pay her compensation for permanent impairment. It advised her that its reason was that it relied on the report of Dr Virk whose assessment of her permanent impairment was less than the threshold imposed by s 65A(3) of the Workers Compensation Act 1987 for her to be entitled to compensation.

6. The appellant then instituted proceedings in the Personal Injury Commission (Commission) seeking determination of her claim. The matter was referred to the Medical Assessor who examined the appellant on 16 February 2024. His ratings of the appellant’s impairment in the several PIRS categories were Class 2 for self-care and personal hygiene, Class 3 for social and recreational activities, Class 2 for travel, Class 2 for social functioning, Class 3 for concentration, persistence and pace and Class 3 for employability.

7. In her appeal, the appellant has challenged the Medical Assessor’s ratings of her impairment in self-care and personal hygiene, travel, and social functioning.

8. In the PIRS rating form within the MAC the Medical Assessor provided the following reasons for rating the appellant’s impairment in self-care and personal hygiene as Class 2:

   “Ms Cammarata's self-care has declined. She told me she does not shower daily and does not care about her appearance, and only brushes her teeth once a day. Her eating pattern is irregular and her weight is now stable. She shares the household chores, cooking and shopping and said it is normal in that regard.”

9. Within the body of the MAC the Medical Assessor also noted that the appellant “has not been doing her hair”.

10. The Medical Assessor provided the following reasons in the PIRS rating form for rating the appellant’s impairment in travel as Class 2:

    “Ms Cammarata has anxiety and prefers to be accompanied when out, and avoids places where ex-clients would attend.”

11. The Medical Assessor provided the following reasons in the PIRS rating form for his rating of the appellant’s impairment in social functioning as Class 2:

    “Ms Cammarata's relationship with her wife is good and she is supportive.

    She has many close friends but the relationship is overall less close.

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

12. Within the body of the MAC the Medical Assessor also noted that the appellant spends time with her grandchildren and that she enjoys that. The Appeal Panel notes that the fact that the appellant enjoys time with her grandchildren indicates that she is able to maintain a good relationship with them.

13. The Medical Assessor recorded that the median of his PIRS scores is 2 and that the aggregate is 15. That converted to 15% WPI.

14. The Medical Assessor also identified that the appellant had a pre-existing condition of obsessive compulsive disorder and that a proportion of her permanent impairment was due to that. In accordance with s 323(2) of the 1998 Act he assumed that the proportion was 10%. The appellant has raised no issue in her appeal with the Medical Assessor’s finding that a proportion of the permanent impairment was due to a pre-existing condition and that that proportion is 10%.

15. After the Medical Assessor made a deduction under s 323(1) of the 1998 Act for the proportion of the appellant’s permanent impairment that he considered is due to the pre-existing condition, he assessed the degree of the appellant’s permanent impairment from her injury is 14% WPI. He certified that in the MAC he issued on 26 February 2024.

PRELIMINARY REVIEW

1. 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.

2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established the ground for appeal on which she relied, and consequently there was no reason 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

1. 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

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

2. Mr James McEnaney, barrister, drafted the appellant’s submissions relating to her challenge to the Medical Assessor’s rating of her impairment in social functioning, and Ms Eraine Grotte, barrister, drafted the appellant’s submission relating the appellant’s challenge to the Medical Assessor’s rating of her impairment in self-care and personal hygiene and travel.

3. With respect to social functioning, the appellant referred to a statement she signed on 15 December 2023 in which she said that she does not interact with anyone due to her anxiety, has no desire to leave her house and spends most of her time inside, does not attend to basic activities, does not travel without support, does not go out with friends and family or socialises, and cannot visit Maitland area generally. The appellant also referred to a note within “the clinical records of the GP” that the appellant’s anxiety is affecting her relationships at home. The Appeal Panel observes that this was in fact a note made by Robyn Bernitz, who described herself as a therapist. The note was made on 7 September 2022

4. The appellant also referred to Dr Teoh’s finding that she is agitated and irritable and argumentative and that following the injury she was spending a lot of time at home.

5. The appellant submitted that she no longer maintains her social relationships, does not leave the home and cannot travel alone and that her impairment in social functioning ought to be rated as Class 3.

6. With respect to self-care and personal hygiene the appellant submitted that a Class 2 rating is appropriate where a worker is able to live independently and able to look after themselves adequately whereas a Class 3 rating is appropriate where a worker requires prompting from a family member or community nurse. The appellant submitted, in substance, that she would not be able to attend to her self-care and personal hygiene “if she were living independently”. The appellant submitted that there is no evidence that she can live independently without regular support.

7. With respect to travel the appellant submitted that the Medical Assessor did not engage fully with the evidence when rating her impairment, specifically the history he obtained that she has chronic fluctuating depressed mood and feels on edge, looks over her shoulder, is worried about being assaulted and avoids places where her clients or ex-clients might frequent, and prefers to be accompanied when she goes out. The appellant submitted that this “places her more comfortably into Class 3”.

8. In reply, the respondent submitted that the Medical Assessor’s ratings are neither improbable nor ignorant of relevant factual matters and are supported by an adequately explained path of clinical reasons.

FINDINGS AND REASONS

1. 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.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

3. The examples provided in Table 11.1 of the Guidelines for a Class 2 and Class 3 impairment in self-care and personal hygiene are:

Class 2	Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3	Moderate impairment: 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.

1. Contrary to what the appellant submitted, the Medical Assessor did not record that the appellant’s partner prompts her to shower. He recorded the appellant’s wife has made comments about the appellant’s appearance. The appellant’s wife commenting about the appellant’s appearance is not the equivalent of the appellant’s wife prompting the appellant to shower.

2. The appellant submitted that there is no evidence that the appellant could live independently. The Medical Assessor found however, that the appellant shares household chores, cooking and shopping. The Appeal Panel infers that she shares the doing of these activities with her wife. It is common that spouses do that. That does not indicate, in the Appeal Panel’s view, a dependence of the appellant on her wife. Indeed, the fact that the appellant attends to these activities, with her wife, reveals she has the capacity to do these activities. In other words, her psychiatric injury does not impede her function with respect to this conduct.

3. The Medical Assessor also noted the appellant does not eat much anymore. The Medical Assessor did not record that the appellant frequently misses meals, which is a descriptor provided for a Class 3 rating. The Medical Assessor recorded the appellant showers, although not daily. As said, he did not record that the appellant requires prompting to shower daily. The Medical Assessor recorded the appellant brushes her teeth only once a day.

4. The fact that the appellant has the capacity to cook, shop and do household chores, and showers, although not daily, brushes her teeth once a day, and eats although less than what she did before, indicates, in the Appeal Panel’s view, that the appellant does not require the support of someone else to be able to live independently. It reveals the appellant is able to support herself adequately in her self-care and personal hygiene but with a decline in her self-care and her personal hygiene, which is in substance what the Medical Assessor found.

5. The Appeal Panel consequently discerns no error in the Medical Assessor’s evaluation of the matters relating to the appellant’s self-care and personal hygiene by rating the appellant’s impairment as Class 2. There is no demonstrable error in the MAC as a consequence of the Medical Assessor’s rating.

6. The descriptors provided in Table 11.3 of the Guidelines for a Class 2 impairment in travel are, “mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour”. The descriptors provided for a Class 3 impairment are:

   “Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”

7. The fact that the appellant experiences anxiety and prefers company when away from her residence, and prefers not to visit areas where she may encounter former clients, which matters the Medical Assessor reasoned results in the appellant having a Class 2 impairment in travel, does not indicate that the appellant is unable to travel away from her residence without a support person. In other words, her preference to have a support person does not equate to requiring a support person in order to travel. It is not the same as needing a support person to travel. Further, the fact that she avoids places where she may encounter former clients does not prevent her from travelling generally, including to new environments.

8. Given this, the Appeal Panel considers that the Medical Assessor made no error in rating her impairment in travel as Class 2. The Appeal Panel also observes that, in addition to the matters the Medical Assessor reasoned warranted rating the appellant’s impairment in travel as Class 2, the appellant is currently self-employed as a support worker attending to the needs of clients whose ages range from 10 to 12 years of age. Necessarily, in order to undertake that work, she must travel. That too indicates she has a Class 2 impairment in travel.

9. The examples for a Class 2 and Class 3 impairment provided in Table 11.4 of the Guidelines for social functioning are:

Class 2	Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3	Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.

1. Many of the matters that the appellant highlighted in her submissions relating to the Medical Assessor’s rating of her impairment in this category were not germane to the appellant’s conduct in social functioning but rather to conduct in other PIRS categories.

2. The history the Medical Assessor obtained revealed that the appellant maintains a good and supportive relationship with her wife and maintains a good relationship with her younger sister, her grandson and a group of close friends, although she socialises less now with her close friends than she did before her injury. That squarely accords with an impairment encapsulated by the descriptors for a Class 2 impairment. The history the Medical Assessor obtained does not indicate any strain in her previously established relationships. It does not reveal any periods of separation or domestic violence such that the appellant’s impairment could be rated as Class 3, as the appellant has submitted.

3. For these reasons, the Appeal Panel has determined that the MAC issued on 26 February 2024 should be confirmed.