Capri v Luxtralia Pty Ltd
[2023] NSWPICMP 48
•16 February 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Capri v Luxtralia Pty Ltd [2023] NSWPICMP 48 |
| APPELLANT: | Giselle (Manuela) Capri |
| RESPONDENT: | Luxtralia Pty Ltd |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 16 February 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Assessment of degree of permanent impairment resulting from psychiatric injury; appellant asserted that the Medical Assessor’s (MA) ratings of her impairment in the psychiatric impairment rating scale (PIRS) categories of self-care and personal hygiene, travel and social functioning did not accord with the history the MA obtained or with the medical evidence; appellant submitted that the MA did not provide sufficient reasons for his ratings for those categories; Held – Appeal Panel did not accept those submissions and found that the MA provided sufficient reasons for his ratings and that his ratings he made were available on the evidence; Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 30 November 2022 Giselle (Manuela) Capri, 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 3 November 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):
· 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 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 WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
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
The appellant commenced employment on 9 March 2018 with Luxtraila Pty Ltd, the respondent, as a store manager. Due to events that occurred in her employment in the period to 31 January 2020, which was the last day on which she worked for the respondent, she suffered a psychiatric injury.
Consultant psychiatrist, Dr Frank Chow, whom the appellant consulted on 24 May 2021 at the request of her solicitors, advised in a report of 1 June 2021 that he assessed the appellant had 19% whole person impairment (WPI) from her psychiatric injury, which he had diagnosed as a chronic adjustment disorder. Relying on that report, the appellant’s solicitors wrote on 24 August 2021 to the respondent’s insurer advising it that the appellant claimed compensation from the respondent under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the sum of $50,820 for 19% WPI.
In response to that, the insurer arranged for the appellant to be examined on
9 November 2021 by psychiatrist Dr Yajuvendra Bisht. In a report of 8 December 2021 that Dr Bisht provided the insurer, he advised that he diagnosed the appellant had adjustment disorder with mixed anxious and depressed mood. He advised that he considered that the appellant’s condition had not reached maximum medical improvement. He did not assess the appellant’s permanent impairment from her injury. On 17 December 2021 the insurer wrote to the appellant advising her that on the basis of Dr Bisht’s report of 8 December 2021 the degree of her permanent impairment resulting from her injury of 21 January 2021 is not capable of being assessed because maximum medical improvement had not been reached. It was implicit in its communication that it would not at that stage be acceding to the appellant’s claim for it to pay her compensation of $50,8250.Thereupon the appellant initiated proceedings in the Personal Injury Commission (the Commission) seeking determination of her claim for compensation. A delegate of the President of the Commission then referred the matter to the Medical Assessor to assess the appellant’s degree of permanent impairment from her injury. The referral specified the injury as having occurred on 24 August 2021, consistent with s 15 of the 1987 Act.
As noted, the Medical Assessor issued the MAC on 3 November 2022 in response to that referral. He certified in that that he assessed the degree of the appellant’s permanent impairment from her injury was 8% WPI.
MEDICAL ASSESSMENT CERTIFICATE
The appellant’s appeal relates to the Medical Assessor’s rating of her impairment in the psychiatric injury rating scale (PIRS) categories of self care and personal hygiene, travel and social functioning. Relevant to that, the history the Medical Assessor obtained from the appellant included that her daughter and her partner assisted her with the care of her home. Both resided with the appellant. The Medical Assessor noted that the appellant’s partner bought the groceries because the appellant was too anxious when in a supermarket. The Medical Assessor noted that the appellant relied more on pre-prepared food and take-away food than home cooked meals. The Medical Assessor noted that the appellant was able to look after herself adequately and that she did not appear dishevelled or unkempt at the time of examination. The Medical Assessor noted that the appellant was “able to live independently at the time of this assessment”.
The Medical Assessor also noted that the appellant had stopped driving to unfamiliar locations because of her anxiety and that her partner provided support for her when she travelled to and from her work place. The Medical Assessor noted that the appellant used an electric scooter and a bicycle to convey herself subsequent to suffering her injury, until the appellant fell from one of those conveyances, and that thereafter the appellant was anxious about using those conveyances.
The Medical Assessor obtained a history that the appellant’s relationship with her partner was strained although the appellant was not expecting separation or estrangement from her partner. The Medical Assessor noted that the appellant had not experienced any domestic violence or periods of separation subsequent to her injury. The Medical Assessor also noted that the appellant’s relationship with her daughter was also strained. The Medical Assessor noted that the appellant enjoyed caring for her one year old grandchild. The Medical Assessor noted that the appellant had lost her friendship circle but her relationship with her aged parents had not been affected by her injury.
The Medical Assessor noted that the appellant was able to work in a less skilled and less stressful role and was employed part time working as a receptionist in a real estate agency three days a week for seven and a half hours each day.
The Medical Assessor diagnosed the appellant’s injury as adjustment disorder with mixed anxiety and depressed mood.
The Medical Assessor’s ratings of the appellant’s impairment in PIRS categories that the appellant challenges, and his reasons for those ratings were as follows:
Self care and personal hygiene
2
Ms Capri reported that she was assisted by her daughter and her partner in the care of her home. She did not have a garden to manage. She stated that her partner would buy the groceries as she was too anxious in the supermarket. She was able to look after herself adequately. She did not appear dishevelled or unkempt. She relied more on pre-prepared food and take-away foods. She was able to live independently at the time of this assessment.
Travel
2
Ms Capri had stopped driving to unfamiliar locations alone as she would become too anxious. She was supported by her partner whilst travelling to and from her new workplace. Ms Capri reported she had fallen off an electric scooter and a bicycle at slow speed since the onset of this workplace injury. She was now too anxious to try and continue using these vehicles.
Social functioning
2
Ms Capri reported her relationship with her partner Mohamed was strained. She reported that she was not expecting separation or estrangement from her partner. She had not experienced any domestic violence or periods of separation. Ms Capri reported that her relationship with her daughter was also strained. Her daughter lived in the same house as Ms Capri and her partner. Ms Capri reported that caring for her one-year-old grandson provided her with positive feelings of calm. Ms Capri reported that she enjoyed caring for her daughter’s first-born child. She reported she had lost her friendship circle. Ms Capri reported that her relationship with her aged parents was not affected by this workplace injury.
The Medical Assessor’s ratings of the appellant’s impairment in the PIRS categories of “social and recreational activities”, “concentration, persistence and pace” and “employability”, none of which the appellant has challenged, were, respectively, 3, 3 and 2. The Medical Assessor noted that the medium of his scores of all his ratings was 2 and that the aggregate score was 14. In accordance with Table 11.7 of the Guidelines, that converted to 7% WPI.
The Medical Assessor considered that “it is reasonable and not out of keeping with the evidence for an adjustment for treatment effect of 2% WPI be applied as Ms Capri had remained in her work place role as a receptionist for more than 5 months”. In other words, consistent with [1.32] of the Guidelines, the Medical Assessor was of the view that if the appellant were to cease her treatment her permanent impairment would increase.
In Table 2 attached to the MAC the Medical Assessor specified that the overall permanent impairment of the appellant was 9% WPI. He also considered that a proportion of her permanent impairment was due to a pre-existing psychological condition and he made a deduction under s 323(1) of the 1998 Act of 10% on account of that, resulting in his assessing the appellant to have 8% WPI from her injury.
The Medical Assessor observed Dr Chow had assessed the appellant had 19% WPI from the appellant’s injury. The Medical Assessor said that he did not concur with that assessment. The Medical Assessor also observed that Dr Bisht had considered that the appellant had not reached maximum medical improvement. He also said that he did not concur with that.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment. 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 grounds for appeal on which the appellant relied were not established and consequently the Appeal Panel had no need, nor power[1], to examine the appellant.
[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 are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor erred by rating her impairment in the PIRS categories of “self care and personal hygiene”, “travel” and “social functioning” as Class 2 rather than Class 3. The appellant submitted that the rating of her impairment as Class 3 or Class 2 in each of those categories is a medical controversy and, in accordance with the authority of Campbelltown City Council v Vegan[2], the Medical Assessor was required to provide expansive reasons as to why he rated her impairment in these categories as Class 2. The appellant submitted that the Medical Assessor’s reasons were not sufficient.
[2] [2006] NSWCA 284.
The appellant further submitted, in substance, that the Medical Assessor’s ratings in each of the PIRS categories that she challenged did not accord with the history the Medical Assessor obtained or with the medical evidence. The appellant submitted that the fact that she is assisted by her daughter and her partner with respect to domestic activities is inconsistent with the Medical Assessor’s finding that she is able to live independently. The appellant submitted that she does not travel alone anymore, which accords with the history the Medical Assessor obtained and also that obtained by Dr Chow, and she submitted this did not allow for a Class 2 rating to be made with respect to the category of “travel”.
The appellant noted that the Medical Assessor obtained a history that she had lost her circle of friends and rarely goes to social events outside of her home and that her evidence in her statement was that she is reluctant to accept social invitations. The appellant submitted that that evidence warranted a rating of Class 3 impairment in “social functioning”.
In reply, the respondent submitted that the Medical Assessor applied the correct guidelines to assess the appellant’s impairment in that he utilised the Guideline, specifically PIRS, to assess the appellant’s impairment. The respondent submitted that the appellant failed to provide any critical analysis as to why she should have been rated Class 3 in “social functioning”. The respondent submitted that the appellant failed to provide sufficient reason to substantiate that she ought to have been assessed as Class 3 in “self care and personal hygiene”. The respondent submitted that there is no medical controversy regarding the Medical Assessor’s assessment of the appellant’s impairment in the category of “self care and personal hygiene”.
The respondent submitted that the history relating to the appellant’s capacity in “travel” that the Medical Assessor obtained on the date he assessed the appellant did not accord with the history Dr Chow had earlier obtained. The respondent submitted that the history the Medical Assessor obtained revealed that the appellant was unable to drive to unfamiliar locations alone and that she was assisted by her partner whilst travelling to and from her work place. The respondent submitted that that accords with the criteria for a Class 2 impairment.
The respondent submitted that based on the appellant’s own reporting of her “social functioning” to the Medical Assessor she does not satisfy the criteria for a Class 3 impairment in “social functioning”.
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 Medical Assessor applied the Guidelines to assess the appellant’s permanent impairment. Those are the applicable criteria by which the appellant’s permanent impairment was required to be assessed. Accordingly, the appellant’s appeal based on the ground provided in s 327(3)(c) is not made out.
A Medical Assessor is required in accordance with s 325(2) of the 1998 Act to set out his or her reasons for the assessment made and to set out the facts upon which the assessment is based. That obligation requires a Medical Assessor to reveal the reasons by which he or she arrived at the assessment in sufficient detail such that it can be ascertained whether there is any error in their reasoning.[3] The reasons do not necessarily need to be comprehensible to a person with no medical expertise. In a circumstance where an assessment or conclusion of a Medical Assessor would be self-evident to a medical practitioner and there is no medical contest regarding it, a Medical Assessor can shortly state his or her reasons. If, however, a conclusion is medically contestable or controversial a more extensive explanation will be required.[4]
[3] Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43, 22 CLR 480 (Wingfoot) at [55]; applied by Campbell J in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [24]-[25] (Kaur) and by Harrison AsJ in Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320.
[4] Campbelltown City Counsel v Vegan [2006] NSWCA 284 at [122], 67 NSWLR 372; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [34].
The obligation of a Medical Assessor does not require the Medical Assessor to explain why he or she did not form an opinion that he or she did not reach, even if that opinion is different from those of other medical examiners.[5] Nor does it require the Medical Assessor to sit as a decision maker choosing between competing medical opinions put forward by the parties.[6]
[5] Wingfoot at [56].
[6] Kaur at [26].
The Appeal Panel considers that the Medical Assessor provided sufficient reasons for his ratings in the PIRS categories that the appellant has challenged. Further, the reasons he provided for his ratings clearly explain his ratings and do not disclose any error with respect to his ratings.
It is relevant to observe that Dr Chow, whom the appellant’s solicitors qualified to provide a report on his assessment of the appellant’s impairment, rated the appellant’s impairment in the categories of “self care and personal hygiene” and in “social functioning” as Class 2 for similar reasons as those that the Medical Assessor provided his ratings. The history
Dr Chow obtained, more than 12 months before the Medical Assessor examined the appellant, relating to the appellant’s functioning in these areas was almost identical to that which the Medical Assessor obtained.With respect to the category of “travel”, Dr Chow rated the appellant’s impairment as Class 3. His reasons for rating her impairment as such for this category were:
“She only travels with partner. She is driven by partner to and from work.”
As already noted, the Medical Assessor rated the appellant’s impairment in the category of “travel” as Class 2. That rating was based on the history he obtained from the appellant at the time he examined the appellant. That history was slightly different from the history
Dr Chow obtained over a year earlier. The history the Medical Assessor obtained was that the appellant had stopped driving alone to unfamiliar locations and that she was supported by her partner whilst travelling to and from her workplace. The difference being that the appellant did not need her partner to accompany her if traveling to places familiar to her, other than her workplace. Further, the appellant had been able to travel alone using an electric scooter and a bicycle subsequent to her work place injury until she fell from one of those vehicles. Thereafter, she became anxious about using those forms of conveyance.In the Appeal Panel’s view, the Medical Assessor’s clinical judgment, based on the history he obtained when assessing the appellant, that the appellant’s impairment in the category of “travel” was mild was open to him. His evaluation does not reveal error. The history he obtained was such that the appellant could travel alone to familiar areas, other than her workplace. The Medical Assessor’s assessment, based on the history he obtained, was not demonstrably wrong. He was entitled to use his clinical judgement.[7]
[7] Jenkins v Ambulance Service of NSW [2015] NSWSC 633 at [73]; Ferguson v State of NSW [2017] NSWSC 887 at [23].
With respect to the category of “self care and personal hygiene”, the Medical Assessor noted that the appellant receives assistance in her home from her daughter and partner, with whom the appellant lives in her home. The fact that the appellant receives assistance from persons living in her home does not, as the appellant contended, mean that she is unable to live independently. Indeed, the history the Medical Assessor obtained at the time he examined her was that the appellant was able to look after herself adequately and able to live independently. The Medical Assessor noted that at the time of examination the appellant did not appear dishevelled or unkempt. The Appeal Panel considers it is also relevant to highlight with respect to the appellant’s capacity to function in this category, that the appellant works as a receptionist, a public facing role, at a real estate agency and that she attires herself appropriately for that purpose.
As already indicated, the Appeal Panel considers that the reasons that the Medical Assessor provided for his rating of the appellant’s impairment in the category of “self care and personal hygiene” sufficiently explain his assessment and do not disclose any error.
The Medical Assessor’s reasons for rating the appellant’s impairment in the category of “social functioning” as Class 2 were that the appellant’s relationships with her partner and daughter had become strained but she had not experienced any separation of estrangement from her partner nor had she experienced any domestic violence. The Medical Assessor’s reasons included that the appellant, her partner and the appellant’s daughter reside in the same house and that the appellant cares for her one year old grandchild (who assumedly also resides in that same house). The reasons of the Medical Assessor for rating the appellant’s impairment in this category as Class 2 included that her relationship with her parents had not been affected by her injury. The Medical Assessor took account of the fact that the appellant had lost her friendship circle.
Again, the Appeal Panel considers that the reasons of the Medical Assessor for rating the appellant’s impairment in the category of social functioning as Class 2 are adequate and do not disclose any error. The Medical Assessor’s reasons clearly detail why he rated the appellant’s impairment as he did. Importantly, in the Appeal Panel’s view, the appellant is well supported by those of her family who live with her in her household and no one is leaving their household because of the appellant. In the Appeal Panel’s view, it was open to the Medical Assessor, based on the matters he detailed, to assess the appellant’s impairment in “social functioning” as mild.
For these reasons, the Appeal Panel has determined that the MAC issued on
3 November 2022 should be confirmed.
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