Cini v B Hatzi & C Hatzi
[2024] NSWPICMP 861
•13 December 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Cini v B Hatzi & C Hatzi [2024] NSWPICMP 861 |
| APPELLANT: | Amber Cini |
| RESPONDENT: | B Hatzi & C Hatzi |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | John Lam-Po-Tang |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 13 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The appellant submits that the Medical Assessor erred in his assessments under two categories of the psychiatric impairment rating scale (PIRS), namely social functioning and concentration, persistence and pace; Held – Medical Assessment Certificate (MAC) was consistent with all the evidence; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 October 2024 Amber Cini (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 16 September 2024.
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.
Rule 128 of 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 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) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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 because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA 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 submits that the MAs erred in his assessments under two categories of the Psychiatric Impairment Rating Scale (PIRS), namely social functioning and concentration, persistence and pace.
In reply, B Hatzi & C Hatzi (the respondent) submits that no errors were made.
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. 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.
The appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychological injury on a deemed date of injury of 6 March 2021.
The MA obtained the following history:
“Ms Cini stated that she joined her employer Nadia's Cafe in Penrith in 2019 as an apprentice. She stated that her first year at work was okay, as the head chef told her that he would not yell at her. She stated that the second and the third years of her apprenticeship were horrific. She stated there was an accident where caustic acid spilled down on her right leg and she got burned on 6 March 2021, which was a Saturday. She reported she started to have some mental health issues following that incident.
Ms Cini stated that there was constant bullying, threatening and name-calling at work. She was getting screamed at and had a panic attack. She was also called the C-word. At work, others would talk about her that she was a virgin as she was very young. She had incidents where mayonnaise was thrown at her and it was told to her that it was semen. She stated she was yelled at every day and was called names. Ms Cini stated that she continued work with all this happening. She started to go to a counsellor to help with her mental health and to cope with the situation as she did not want to lose her apprenticeship. She was told by others that it was not a healthy workplace and was told that it was not safe to work there.
Ms Cini stated that after the burn incident, she had a half year off work and she did not return back after this. She got a job at the company where her mum was working and worked there for a year. Her mother is best friends with the manager of the company.
Ms Cini reported the initial mental health symptoms such as having panic attacks which were really the quick ones. She would often have sweatiness and dizziness and would be short of breath. She reported having a racy heart, thinking that she will die and will lose herself. She even passed out once and on one incident she could not talk for two hours and was told to have selective mutism.
Ms Cini reported other symptoms such as having a poor sleep. She would sleep for four hours and may not sleep for two days. She also stated that her appetite got affected. She did not eat much and would feel fatigued and tired. She also developed suicidal thoughts. She would not bother to eat. She would just go home after work and sleep. She was not going out. She was living with her parents at that time. She did not want to talk to them and constantly had fights with them. She was not going out with her friends and not socialising.
Ms Cini started to see her doctor. She saw her doctor, Dr Anthony Cao, and later saw another GP. She also started to see a counsellor. She started the counselling sessions a month before the accident and continued the sessions. She also was put on medication. She has been on medication for the last three years. Initially, she was on venlafaxine 75 mg and now she is taking 150 mg, and this was started four weeks after the accident.”
The MA then set out details of her present treatment and said:
“Ms Cini has been on medication for the last three years. She takes venlafaxine 150 mg. She also takes melatonin at night-time to help with sleep. She stated treatment has helped her to feel a lot better. She is not getting suicidal thoughts and not feeling miserable, but she is still not happy and is trying to process things. She is trying to get an appointment with a new psychologist and has not seen anyone for the last four months.”
Present symptoms were noted as follows:
“Ms Cini stated that she continues to have flashbacks, where she can see the burn injury where she could see holes in her skin due to the burn. She also gets flashbacks of the incident where she is dragging her leg and trying to walk and thinking that she will not be safe. She also has self-harm problems. She gets a lot of suicidal thoughts.
Ms Cini stated that she cannot get out of bed in the morning and she is much more anxious. She cannot go to the shops. She panics when she has to drive and when she thinks about the work or the injury. She has anxiety all the time.
Ms Cini reported her mood as being horrible and feels as if nothing is left. She is not motivated and no energy. She used to love art, but she cannot draw anymore. She cannot play any game and does not enjoy anything these days.
Ms Cini stated that she gets nightmares where she stated that I'm just back at Nadia's. I see my co-workers and I get scared about the accident. Ms Cini has scars on her leg following the burn. There is no pain and there is no restriction in her movement.
Ms Cini stated that she is currently not working. She quit her last job in around April 2024. She was working 32 hours in a week. She quit the job due to her mental health. She was struggling. While she was driving on the road, she wanted to crash her car and was sitting in her car or at home and writing suicide letters.”
When asked to provide “Details of any previous or subsequent accidents, injuries or conditions” the MA said:
“Ms Cini has a diagnosis of mild autism, which was diagnosed at the age of 3. I have noted from the document she also has a history of attention deficit hyperactivity disorder. Ms Cini denied any mental health issues before the work injury. She denied any history of anxiety or depression.”
The MA then turned to consider the impact of Ms Cini’s injury on her social activities and activities of daily living (ADL’s) and said:
“Ms Cini stated that she would get up by 6:30 and would drop her sister to the train station. She stays at home most of the day and lies in bed. She is not working currently and not going out anymore. gets up by 6:30 to drop her sister to train station, stays home and lies in bed, not going out anymore. Ms Cini stated her personal care is pretty bad. She is not brushing her hair regularly. She sleeps in the same clothes that she wears the whole day. She would shower every 3-4 days and her mum will tell her if she stinks. She struggles to do house chores and is not on top of her cleaning. She is not doing the dishes regularly and not able to keep the house clean and she spends most of the time on the couch.
She has done a graphic design certificate III at TAFE before working at Nadia's. She has not studied after stopping work at Nadia's after the injury and has only worked for a year.
Ms Cini stated she was drinking a lot when she was working at Nadia's Cafe. She would drink after a bad day at work and would have shots of vodka in the morning as well. She was having 4-5 drinks on a Saturday. She could go up to drinking eight drinks in a day for 4-5 days in a week. She has stopped drinking now as she cannot afford it.”
Findings on mental state examination were reported as follows:
“Ms Cini was seen over video conference on 15 August 2024. In terms of mental state, Ms Cini was dressed appropriately and appeared clean. She maintained good eye to eye contact and rapport was established. She had a spontaneous speech with normal rate, tone and volume. Subjectively, she described her mood as low with low levels of motivation and energy. I found her effect to be distressed. She described disturbed sleep with nightmares and disturbed appetite. She described inability to enjoy things. She reported ongoing flashbacks and nightmares about the work injury and the incident at work, where she was physically injured in a burn accident. She did not describe any grandiosity, racing thoughts or increased energy levels. She denied having any active or passive suicidal thoughts, intents or plans and there were no thoughts of harming others. There was no formal thought disorder, no delusional pattern of thinking and no perceptual abnormalities. She described her ability to focus and concentrate as low. She had intact judgment and had reasonable insight into her issues and was help-seeking.”
In summarising the injuries and diagnoses, the MA said:
“In my opinion, Ms Cini has sustained a work-related psychological/psychiatric injury following the bullying and harassment at work and physical injury involving a burn accident. Ms Cini continues to manifest the symptoms which meet the DSM-5 criteria of major depressive disorder.”
The MA assessed 8% WPI.
He then turned to consider the other medical opinions and material before him and said:
“I have noted the independent medical examination report by Dr Patrick Morris, consultant and forensic psychiatrist, dated 6 November 2023. Dr Morris made an opinion in his report and said: ‘I have given Ms Cini the diagnosis of post -traumatic stress disorder. Ms Cini still has clinical symptoms of anxiety and depression from this condition. I have given her a whole person impairment rating of 15% due to her psychiatric condition.’
I have noted the independent medical examination report by Dr Nicholas Cassimatis, consultant psychiatrist, dated 13 February 2024. Dr Cassimatis made an opinion in his report: ‘The diagnosis is major depressive disorder, post -traumatic stress disorder and autism spectrum disorder. Ms Cini continues to suffer from the effects of workplace injury and the condition of post-traumatic stress disorder and major depressive disorder have not resolved. Her current capacity is that she works 38 hours per week. Her condition has reached maximum medical improvement. My assessment was 100% based on psychological impairment. I assess her whole person impairment as 15%. There is no reduction for pre-existing condition. Her autism spectrum disorder has remained unchanged.’
I have noted the supplementary report by Dr Nicholas Cassimatis, consultant psychiatrist dated 3 April 2024. Dr Cassimatis stated: ‘It would appear that Ms Cini does have a pre-existing condition of depression and for this I will make a deduction of 10%. Ms Cini was anxious about the trip to Queensland with friends. Her psychologist treated her for travel anxiety prior to the trip. She was unfortunately sexually abused on that trip and now has a court action against that abuser. Her condition has deteriorated as a result. As noted, Ms Cini does have a pre-existing condition of depression and for this I will make a deduction of 10%. The final whole person impairment is 6% with one-tenth deduction for pre-existing condition.”
The MA then commented as follows:
“Ms Cini continues to manifest the symptoms which meet the DSM-5 criteria of major depressive disorder. Ms Cini has received treatment in the form of medications and psychological intervention. Ms Cini was able to return to work in an alternate employment. However, she stopped working as she noticed deterioration in her mental state. Ms Cini continues to manifest the symptoms of major depressive disorder with functional impairments. In my opinion, Ms Cini has reached maximum medical improvement as her condition is unlikely to change substantially by more than 3% in the next 12 months with or without treatment.”
Earlier in the MAC, the MA made comments as follows:
“I have noted from the documents:
Amber stated that on 6 March 2021, she was asked to retrieve some caustic liquid cleaner which had to be dispensed from a storage container in the basement of her workplace. Amber had not performed this task before. She was not given any instructions on how to safely dispense the liquid. In the process of dispensing the caustic liquid, Amber spilt liquid on her right leg and the situation was not helped by the fact that there was a faulty tap on the main storage unit. There was no immediate first aid available and Amber had to return to the open kitchen in the restaurant for help. Cursory help was given by a chef (vinegar and water) while Amber then had to traverse the length of the shopping centre to access the toilet. Amber felt immediate pain progressing down her right leg and by the time she reached the toilet in the shopping centre, she was in acute distress, lightheaded and collapsed on the floor. Her chef’s trousers were at this stage stuck to her skin. An attempt to remove them resulted in burnt skin being peeled off. Amber did not have any further help till her father came around and transported her to Nepean Hospital. She was treated with painkillers at Nepean Hospital, given morphine and further first aid. She was eventually treated at the Burns Unit at Westmead Hospital and although skin grafting was not deemed necessary to this day, Amber does have painful sensations down her right leg and her skin displays slight scarring.
Ms Cini was initially started on Zoloft (sertraline) to help manage her psychological symptoms as she was continuing to struggle significantly with her mental health despite receiving psychological counselling. In about June 2021, she was terminated from her role because of the inability to return to work. In October 2021, she started to see a specialist, Dr Pusic, consultant psychiatrist, every 2-3 weeks. Her medication was changed from Zoloft to Effexor (venlafaxine), initially 150 mg but later decreased to 75 mg as she started to have a concerning amount of weight gain.
I have noted the letter by Dr Augustus E Pusic, consultant psychiatrist, dated 26 October 2021. -traumatic stress disorder as a result of the caustic burns which she suffered while employed at Nadia's Cafe at Penrith Plaza. Amber will require ongoing psychotherapeutic and pharmacotherapeutic intervention. I advised Amber to continue outpatient sessions with her psychologist.
I have noted the letter by Dr Mark Selikowitz at Sydney Developmental Clinic dated 21 October 2016. The letter stated: ‘Amber is a girl functioning in the low average range of intelligence with significant learning difficulties across literacy and mathematics. She has attention deficit hyperactivity disorder (predominantly inattentive type) and autism spectrum disorder. She is also suffering from anxiety disorder.’”
The appellant’s submissions
These are as follows:
Social Functioning
(a) the appellant resides with her parents and younger siblings. It is the appellant’s evidence in her statement that prior to sustaining the subject psychological injury, she had a small group of close friends she would regularly go out and socialise with and she was close with both parents and her siblings. The appellant in her statement at paragraph 31 states that because of the subject injury she no longer socialises with her friends aside from one and describes the reason for the loss of these friendships as being due to the psychological injury in which she feels alienated from them and that her friends would not understand how she feels. At paragraph 25 in her statement the appellant describes previously being close with her family and the relationship she now has with her dad and brothers is strained. The appellant's mother Samantha Cini also provides evidence of this at paragraph 12 of her statement wherein she states the appellant no longer socialises with friends and the relationship with her father is now strained.
(b) The history and facts that the MA has recorded is more consistent with a Class 3 descriptor which notes previously established friendships and family relationships severely strained as well as loss of friendships. The MA when considering the class descriptors and the best fit for each category also needs to take into consideration the appellant's age, sex and cultural norms. At the time of the subject accident, the appellant was a young woman, she had finished high school and was working in her first full time job and studying. The appellant had a small group of friends she would regularly socialise and hang out with, she had a close and loving relationship with her immediate family namely her mother, father and siblings. The history recorded by Dr Morris for the appellant, Dr Cassimatis for the respondent employer and the MA is consistent, in that prior to the subject injury, the appellant would help out with household tasks, would regularly assist her parents and siblings, she was independent with all aspects of self-care. The appellant has a diagnosis of mild autism and was able to live a very independent life, working and studying without the need for support.
(c) The MA at page 2 of the MAC records a history from the appellant of her life post injury which is a stark contrast to the life she was living prior to the subject injury:
"She also developed suicidal thoughts. She would not bother to eat. She would just go home after work and sleep. She was not going out. She was living with her parents at that time. She did not want to talk to them and constantly had fights with them. She was not going out with her friends and not socialising."
(d) The appellant has been diagnosed by the MA with Major Depressive Disorder which has resulted in suicidal ideation. Along with suicidal ideation the appellant reports symptoms to the MA of low energy and mood, inability to enjoy things, feelings of worthlessness, withdrawal from social interactions with friends, isolation and difficulty in performing most of her daily activities. She now requires regular prompting from her mother to do simple daily activities such as have a shower and get changed. It is submitted that the appellant’s psychological injury has significantly impaired her ability to maintain a healthy and independent lifestyle that one would otherwise expect of a young woman in her early 20's who was starting her career, studying, maintaining close relationships with friends and family and regularly going out to social events. The appellant's evidence was that she previously enjoyed playing netball and going to the gym and as a result of the subject injury no longer finds these activities enjoyable. This has led to her no longer participating in these hobbies.
(e) The appellant's evidence is that there is a clear distinction between her pre and post injury lifestyle. The appellant's evidence is that she now finds it daunting to leave the house without her mother or without a National Disability Insurance Scheme (NDIS) travel support companion. The MA in considering the best fit for the appellants social functioning ought to have taken all of these factors into consideration when assessing the best fit for this class which is submitted is a Class 3 and not a Class 2.
(f) The MA at page 4 of the MAC reports the following present symptoms of the appellant:
"Ms Cini reported that she is currently not working. She quit her last job in around April 2024... She quit the job due to her mental health. She was struggling. While she was driving on the road, she wanted to crash her car and was sitting in her car or at home and writing suicide letters...Social activities/AOL: Ms Cini stated that she would get up by 6.30 and would drop her sister to the train station. She stays home most of the day and lies in bed. She is not working currently and not going out anymore."
(g) It is submitted that the evidence before the MA is that as a result of the psychological injury, the appellant has lost contact with most of her friends, her relationship with her father and brothers are strained, she has ceased employment and is no longer going out. The MA respectfully ought to have considered the appellant’s age, suicidal ideation and most importantly, the significant change of her lifestyle from one where she was working, socialising and able to live a very independently which would be expected of a young woman, to now spending most of her time at home in bed, preferring to be alone, strained relationships with members of her immediate family and despite efforts to make a return to employment this has unfortunately exacerbated her psychological injury. The MA has failed to give due regard to the deterioration in the appellant's relationships and it is clear he has provided his assessment based on incorrect information and incorrect criteria with respect to this area.
(h) There is a significant contrast between the appellant’s pre and post injury lifestyle and it is on this basis that it is submitted the assessment of a Class 2 is incorrect. When considering the best fit, the MA should have concluded that the most appropriate Class descriptor for Social Functioning is Class 3.
Concentration, persistence and pace
(a) The MA found a Class 2 rating for the descriptor "Concentration, Persistence and Pace". The commentary the MA has provided on page 10 of the MAC in his reasoning for finding a Class 2 is:
"Ms Cini tries to watch TV or YouTube but does not remember it and has been really bad in her focus. She cannot focus on anything and feels that her brain is broken. She was good at her job (data entry). However, she spent a lot of time not doing her job as well and she struggles to motivate or focus herself. Her focus and concentration was well sustained through the one-hour assessment."
(b) Dr Morris assessed a Class 3 for this category and said:
“Ms Cini reports having very poor concentration. She said she finds it difficult to read more than a page before losing concentration and needing to reread the material. She finds it difficult to watch television shows and movies now because of her poor concentration. She is not able to cook complex recipes anymore because of her reduced concentration even though she was trained as a chef."
(c) The appellant's evidence in her statement at paragraph 36 is that prior to the subject injury she found it easy to concentrate and was able to multitask while working as an apprentice chef which required her to maintain focus for prolonged periods of time. It is the appellant’s evidence she now finds it difficult to concentrate on tasks, she can no longer follow complex recipes due to her difficulty concentrating which is consistent with a Class 3 descriptor.
(d) The appellant at paragraph 38 of her statement says:
"Following my injuries, I often find myself needing to re-read pages multiple times before understanding the content. I can no longer follow the plot of movies or TV shows because I struggle to maintain focus and find myself getting distracted by troubling thoughts. I also find myself forgetting things easily which further affects my ability to follow TV shows and movies."
(e) Dr Cassimatis also assessed a Class 3 in this category.
(f) The appellant's evidence is consistent with the history and symptoms recorded by both Dr Cassimatis and Dr Morris who assessed the appellant as a Class 3 in this category.
(g) The evidence before the MA is that the appellant has difficulty concentrating, she can no longer follow the plot of movies or TV shows due to an inability to maintain focus. The evidence before the MA was that following the injury the appellant obtained employment working in an administrative role, where she was working alongside her mother at a company where her mother's best friend is the manager. The role the appellant was working in was in a supportive environment which was low stress, she worked next to her mother and the company allowed her to work at her own pace and take breaks as needed. The appellant’s mother in her statement at paragraph 8 states that shortly prior to the appellant resigning from this employment, she would call in sick or was at times unable to leave the house due to a panic attack. The MA in his reasoning for assessing a Class 3 states "She spent a lot of time not doing her job as well and struggles to motivate or focus herself.”
(h) The best fit is a Class 3.
As stated earlier, the respondent contends that no errors were made, adding:
Social Functioning
(a) neither Dr Morris nor Dr Cassimatis assessed a Class 3 for social functioning.
(b) The examples provided by the appellant of existing relationships with her dad and brothers now being strained and a loss of some friendships is the exact descriptor for Class 2.
(c) The difference in lifestyle referred to by the appellant includes factors which have no bearing on this category.
(d) The respondent refers to the NSW Court of Appeal decision of Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas) in which Bell P and Payne JA stated (Emmett JA concurring) at [94] [96]:
“Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie, whether it goes to Self-care and Personal Hygiene, Social and Recreational activities ,Social functioning (relationships) Travel, Concentration, Persistence and Pace or Employability. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical to an injured workers entitlement to compensation…”
(e) The difference in lifestyle referred to by the appellant have no direct bearing on her relationships were correctly not considered by the MA in this category.
(f) There is evidence to support a Class 2 rating, for example, the close relationship with her mother, and the clinical notes of Kylie Lapierre, psychologist, where the appellant said she went on a trip to Queensland with five of her friends in September 2022 to celebrate her 21st birthday. Unfortunately she was sexually assaulted by a friend on the trip and reported this to the police. If the appellant is no longer close with some of her friends, that may be due to the unrelated sexual assault and not due to her work-caused injury.
Concentration, persistence and pace
(a) Table 11.5 of the Guidelines sets out the PIRS Class descriptors for Concentration, Persistence and Pace, and relevant to this Appeal are the following classes:
“Class 2: 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.
Class 3: 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.”
(b) In paragraph 8 of her submissions, the appellant stated that evidence before the MA was that the appellant had difficulty watching and following the plot of TV shows, had to re-read material several times in order to understand, had difficulty in concentrating in her subsequent employment where she worked with her mother, and that that shortly prior to resigning from this employment, she would call in sick or was at times unable to leave the house due to a panic attack.
(c) It is interesting to note that the appellant resigned from her full time employment with a subsequent employer in April 2024, according to her mother’s statement, which seems to have coincided with the issuing of the Section 78 Dispute Notice dated 12 April 2024 disputing any entitlement to lump sum compensation.
(d) We note that in his supplementary report Dr Cassimatis specifically referred to the appellant’s ability to work full-time and do complex tasks when reducing his assessment.
(e) This employment involved data entry work, which she had performed on a full- time basis from January 2022 to April 2024. According to her mother’s statement, she would sit next to her at work, performed data entry duties and was not required to speak with anyone or any customers and able to work at her own pace and take breaks as required. no evidence has been provided as to why there was a deterioration in around April 2024.
(f) There are some reasons to doubt the Appellant’s credibility as a witness of truth, for example, the MA recorded a history that “she has not been on any travel, interstate or overseas and has not been on any holidays.” This is inconsistent with the notes of Kylie Lapierre.
(g) The appellant herself in her statement confirmed this trip.
(h) In addition to working full time in an administrative role from January 2022 to April 2024, there is also reference in the clinical notes and the Desktop Surveillance Report of Worksite Investigations dated 26 March 2024 to the appellant as having completed an art course at TAFE in 2023, which further supports a Class 2 rating.
(i) The Desktop Surveillance Report of Worksite Investigations dated 26 March 2024 shows that the appellant continued to post a number of intricate art works on her Instagram page in 2023.
(j) Looking to the principles set out in Ferguson v Stateof New South Wales [2017] NSWSC 887, it cannot be said that the MA’s assessments were glaringly improbable; demonstrated that he was unaware of significant factual matters; demonstrated a clear misunderstanding or if an unsupportable reasoning process could be made out.
(k) The MA’s reasoning and discussions is comprehensive, clearly thought out and carefully explained.
(l) This appeal is an expression of a difference of opinion about which reasonable minds might differ, and is not a proper basis for appeal.
Discussion
Social functioning
The descriptor for a Class 2 rating reads: “Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
For a Class 3 it reads: “Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
We agree with the respondent that: “The difference in lifestyle referred to by the appellant include factors which have no bearing on this category.”
The basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples, giving a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allowing a wider discretion to be applied than if the descriptors were intended to be strict criteria, must be considered.
This category deals with personal relationships, and many of the appellant’s submissions in this category are irrelevant.
For example, the submission that: "She also developed suicidal thoughts. She would not bother to eat. She would just go home after work and sleep…” and:
“Prior to the injury, the appellant would help out with household tasks, would regularly assist her parents and siblings, she was independent with all aspects of self-care. The appellant has a diagnosis of mild autism and was able to live a very independent life, working and studying without the need for support.”
Another example is the submissions that:
“The appellant has been diagnosed by the MA with Major Depressive Disorder which has resulted in suicidal ideation. Along with suicidal ideation the appellant reports symptoms to the MA of low energy and mood, inability to enjoy things, feelings of worthlessness, withdrawal from social interactions with friends, isolation and difficulty in performing most of her daily activities. She now requires regular prompting from her mother to do simple daily activities such as have a shower and get changed. It is submitted that the Appellants psychological injury has significantly impaired her ability to maintain a healthy and independent lifestyle that one would otherwise expect of a young woman in her early 20's who was starting her career… [she] enjoyed playing netball and going to the gym and as a result of the subject injury no longer finds these activities enjoyable. This has led to her no longer participating in these hobbies…she now finds it daunting to leave the house without her mother or without a NDIS travel support companion.”
There is considerable evidence that Ms Cini has long-standing problems with various relationships.
On 21 October 2016, she was assessed by a developmental paediatrician, Dr Mark Seliklwitz, of the Sydney Developmental Clinic who concluded:
“Amber is a girl functioning in the low average range of intelligence with significant learning difficulties across literacy and mathematics. She has attention-deficit/hyperactivity disorder (predominantly inattentive type) and autism spectrum disorder. She is also suffering from an anxiety disorder.”
On 18 July 2017 Dr Ashok-Kumar referred her to a psychologist for treatment in respect of “depression due to family issues.” She was also daignosed with Asperger’s Syndrome (now known as autism spectrum disorder) in April 2011. The doctor also reported “depressed due to home situation.”
A Mental Health Care Plan was then put in place.
Her brothers had similar disorders. Dr Ashok-Kumar also noted:
“Patient depressed as unable to handle twin brothers with ADHD, throwing tantrums; father depressed due to business lossand not involved with family; attempted to take 6 P/Fortes (paracetamol and codeine) 3/7 ago spat it out in time; still feels occasionally suicidal; referred to counsellor.”
In short, Ms Cini had relationship problems for many years pre-dating her work injury.
She is however very close to her mother, who provided a statement in support of her daughter’s claim.
In her statement Ms Cini said that she had been on a trip to Queensland with five of her friends in 2022, some time after her work injury.
As the respondent pointed out, the clinical notes of psychologist Ms Kylie Lapierre confirm that she was unfortunately sexually assaulted by a friend on the trip and subsequently reported that to the police.
There is some merit in the respondent’s submission that “if the appellant is no longer close with some of her friends, that may be due to the unrelated sexual assault and not her work injury.”
In assessing a Class 2 rating in this category, the MA said:
“Ms Cini stated that her social functioning is really bad at the moment. She has her own issues and she may hurt others. She denied any arguments or fights with her family. She is not in a relationship nor was she before the injury. She said her family members keep giving reminders to her to look after herself. She sees a friend of hers; however, she has lost a few friends.”
Finally, we note that neither Dr Cassimatis nor Dr Morris assessed a Class 3 rating.
Although not bound by the opinions of other doctors, they nonetheless form part of the evidence to which we must have regard.
The appellant in her submissions refers to “existing relationships with her dad and brothers now being strained and a loss of some friendships” is in fact the exact descriptor for Class 2 for Social Functioning.
In our view, the MA’s assessment was correct, and consistent with the totality of the evidence, inconsistent as some of it is.
There is no compelling evidence that Ms Cini falls into a Class 3 rating in this category.
Concentration, persistence and pace
The descriptor for a Class 2 rating reads: “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.”
For a Class 3 it reads:
“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.”
The developmental problems Ms Cini has, referred to above, are also relevant to a degree in this category.
As the respondent correctly submitted:
“The appellant resigned from her full time employment with a subsequent employer in April 2024… which seems to have coincided with the issuing of the Section 78 Dispute Notice dated 12 April 2024 disputing that she had any entitlement to permanent impairment lump sum compensation based on the preferred assessment of Dr Cassimatis of 6% WPI, which was under the Section 65A(3) threshold of 15% WPI. We note that in his supplementary report dated 03/04/2024 Dr Cassimatis specifically referred to the appellant’s ability to work full-time and do complex tasks when reducing his assessment in this category.
This employment involved data entry work, which she had performed on a full time basis from January 2022 to April 2024. According to her mother’s statement, the appellant would sit next to her at work, performed data entry duties and was not required to speak with anyone or any customers and able to work at her own pace and take breaks as required. No evidence has been provided as to why there was a deterioration in around April 2024.”
In addition, we note the following points:
(a) in addition to working full time in an administrative role from January 2022 to April 2024, the appellant completed an art course at TAFE in 2023.
(b) She continued to post intricate art works on her Instagram page in 2023.
(c) These art works, (copies included in the respondent’s Reply) were described by the respondent as “detailed and appear to have taken a substantial amount of time to complete and would indicate an ability to concentrate for a lengthy period of time.”
We have noted them and agree with the respondent’s submissions.
We also agree that there is evidence which provides some reasons “to doubt the appellant’s credibility as a witness of truth.”
The example provided by the respondent was as follows:
“The MA recorded a history that ‘she has not been on any travel, interstate or overseas, and has not been on any holidays.’ However, the clinical note of Kylie Lapierre confirms that the appellant did travel to Queensland on a holiday for her birthday with friends in September 2022. This is also confirmed by the appellant in her statement.
Ms Cini was clearly functioning well up until early 2024, notwithstanding her long-term developmental problems referred to above. There is no evidence of deterioration since that time.
Once again, there is no compelling evidence to suggest that she falls into a Class 3 rating.
The MA accepted that she had some difficulties in this category by rating her as a Class 2.
We agree with the MA’s assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 September
2024 should be confirmed.
0
3
0