Connecting Families Pty Ltd v Babatunde Ejueyitsi

[2021] NSWPICMP 144

DETERMINATION OF APPEAL PANEL
CITATION:	Connecting Families Pty Ltd v Babatunde Ejueyitsi [2021] NSWPICMP 144
APPELLANT:	Connecting Families Pty Ltd
RESPONDENT:	Babatunde Ejueyitsi
APPEAL PANEL:	Member Marshal Douglas Dr Brian Parsonage Dr Julian Parmegiani
DATE OF DECISION:	9 August 2021
CATCHWORDS:	WORKERS COMPENSATION- Assessment of Whole Person Impairment from psychiatric injury; appellant employer submitted that Medical Assessor made assessment based on incorrect criteria and MAC contained a demonstrable error with respect to the PIRS categories of social and recreational activities and social functioning; appellant submitted Medical Assessor failed to identify the reasons for the respondent’s reduced social activities and gave no consideration to whether the restricted social activity was due to COVID; Held- Appeal Panel considered that Medical Assessor sufficiently explained in the MAC his reasons for his assessment and that it was apparent from the MAC that the Medical Assessor considered the respondent’s impairment was due to the injury and no other cause; MAC confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 2 June 2021 Connecting Families Pty Ltd (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 4 May 2021.

2. 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):

   ·        the assessment was made on the basis of incorrect criteria,

   ·        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. 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.

5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

1. Babatunde Ejueyitsi (the respondent) worked as a care support worker for the appellant for a brief period of time, commencing in July 2018. He suffered a psychiatric injury as a consequence of his employment, deemed under s 15 of the Workers Compensation Act 1987 (the 1987 Act) to have happened on 5 August 2018.

2. The respondent was assessed on 16 September 2020 by psychiatrist Dr Richa Rastogi to have a permanent impairment from his injury of the order of 22% whole person impairment (WPI). On 24 September 2020, the respondent’s solicitors wrote to the appellant’s insurer advising it that the respondent claimed compensation of $58,000 under s 66 of the 1987 Act for his permanent impairment from his injury.

3. The insurer then arranged for the respondent’s permanent impairment to be assessed by psychiatrist Dr Yajuvendra Bisht. In a report to the insurer dated 16 November 2020, Dr Bisht advised the insurer that he had assessed the respondent had 5% WPI from his injury. The insurer then wrote to the respondent on 20 November 2020 and notified him under s 78 of the 1998 Act that it disputed he was “entitled to permanent impairment lump sum compensation for your injury”. It provided him with a copy of Dr Bisht’s report. It advised him that its reasons for disputing his claim for compensation under s 66 of the 1987 Act were that it relied on Dr Bisht’s assessment of his permanent impairment and, based on that, he did not exceed the threshold imposed by s 65A(3) of the 1987 Act to be entitled to compensation for permanent impairment.

4. A medical dispute thereupon arose between the parties regarding the respondent’s degree of permanent impairment from his injury. On 16 December 2020, the respondent’s solicitors lodged with the Commission an application to resolve dispute seeking determination by the Commission of the respondent’s claim for compensation for permanent impairment.

5. The medical dispute was referred to the Medical Assessor to assess. He examined the respondent on 23 April 2021 and, as said, on 4 May 2021 issued a MAC. Within that, he certified the respondent had 17% WPI from his injury.

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 WorkCover Medical Assessment Guidelines 2006.

2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because, for reasons explained below, the Appeal Panel came to the view that the Medical Assessor’s assessment was based on the correct criteria and that the MAC does not contain a demonstrable error. The Appeal Panel consequently cannot revoke the MAC, and the Appeal Panel does not therefore need to nor have the power to require the appellant to be re-examined.[1]

   [1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792.

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.

MEDICAL ASSESSMENT CERTIFICATE

1. The Medical Assessor set out within Part 4 the MAC the following history he obtained relating to the respondent’s ability with social activities and activities of daily living:

   “Mr Ejueyitsi lives on his own. He has an 8-year-old daughter with his ex-wife.

   Mr Ejueyitsi said in the past he had written books on economics, but now he does not write books anymore. Even reading books has become difficult and a real chore. He thought he could focus for maybe 10 minutes or 15 minutes at most.

   Mr Ejueyitsi goes to pray at a church sometimes.

   In terms of fun, he said he enjoys watching the news and watching television on his own at home. He has a driver’s licence but does not drive. He said that his car had broken down, but he does not repair the car.

   Mr Ejueyitsi does not do much housework and does not cook anymore. He gets take-away food or buys premade meals from Coles. He said he does not mix with people anymore and has no friends. Sometimes he speaks to his family in Nigeria and recently discovered that his mother had passed away, aged 91.

   I asked Mr Ejueyitsi whether he could perform data entry work, as has been suggested. He said he cannot focus and therefore does not think he can do this.

   Mr Ejueyitsi reported that prior to Connecting Family he was quite sociable and saw a lot of friends. He liked to meet new people. He liked to watch soccer and play football. Mr Ejueyitsi is very different since his employment.”
   
   

2. The symptoms the respondent reported to the Medical Assessor included an inability by the respondent to enjoy things he would normally enjoy and to his having almost no social interaction.

3. The Medical Assessor recorded his findings from his mental state examination of the appellant in the following terms:
   
   

   “Mr Ejueyitsi had a shaved head and was clean shaven. He had red eyes and seemed tired. He came on the train today on his own. He was moderately restricted in his affect range and reactivity. He spoke spontaneously. He had a disorganized narrative and was not thought disordered. Mr Ejueyitsi spoke with a strong accent and gave a disjointed history, and many aspects of his history seemed incorrect in the time line (or he responded with approximations rather than recalling specific dates). I had to repeat many questions as he was lost when the questions were too long.”
   
   

4. The Medical Assessor diagnosed that the respondent had “developed Major depressive disorder as a result of the subject employment”. The Medical Assessor found that the respondent’s “psychological injury has not resolved”.

5. The respondent’s challenge to the Medical Assessor’s assessment of his permanent impairment relates to the Medical Assessor’s rating of his function in the Psychiatric Impairment Rating Scale (PIRS) categories of social and recreational activities and social functioning. The Medical Assessor scored the respondent’s impairment as 3, being a moderate impairment, in social and recreational activities and scored the respondent’s impairment as 2 in social functioning, being a mild impairment. The Medical Assessor provided the following reasons for those classifications in the PIRS rating form appended to the MAC:

Social and recreational activities	3	Mr Ejueyitsi has almost not (sic: no) social interactions and does not attend parties. He is quiet and withdrawn when at Church, where he goes to pray. All of his former recreational activities have discontinued.
Social Functioning	2	He is anxious and socially avoidant, and reported having ceased contact with all of his friends. His relationship with his ex-wife and daughter is good but less close over time.

1. The Medical Assessor also provided further reasons for his classification of the respondent’s impairment in these categories when comparing his assessment with the assessments that Drs Rastogi and Bisht had respectively made. Those further reasons were:

   “In terms of social and recreational activity, Dr Rastogi rated 3 and explained Mr Ejueyitsi had become reclusive, stopped social activity and does not go out. Dr Bisht rated 2 and said he occasionally attends social gatherings but does not actively participate and only attended church twice in the last few months. Dr Bisht did not provide details of his social gatherings. In my assessment I noted he goes to the church to pray but remains quite withdrawn at the church, he does not see any friends at all, does not play any sports or go to watch football games. There is a marked departure from his usual social and recreational activities, and I rated 3.

   Dr Rastogi rated Mr Ejueyitsi's social functioning as a 3 and advised he does not engage with his daughter much. Dr Bisht rated 2 and advised he has a good relationship with his daughter and the family in Nigeria but talked to them less. My assessment is similar to Dr Bisht, that he has a good relationship with the daughter and his family but does not see any friends at all.

   He has some interaction with people at the church and can engage in brief conversation. He has not lost partnerships. Therefore, I rated 2.”
   
   

SUBMISSIONS

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

2. In summary, the appellant submitted that the Medical Assessor “fell into error” by classifying the respondent’s impairment in the category of social and recreational activities as 3. The appellant highlighted that the respondent is able to attend events, such as going to church, without a support person and without being prompted. The appellant submitted that the Medical Assessor “failed to identify the reasons for the [respondent’s] reduced social activities” and gave no consideration to whether the restrictions imposed on social gatherings due to COVID that was the cause of that. The appellant submitted that the respondent’s impairment in the category of social and recreational activities should be classified as 2.

3. The appellant further submitted that the Medical Assessor’s classification of the respondent’s impairment in the category of social functioning as 3 was an error, but did not articulate why.

4. In reply, the respondent submitted that his attending church is not a social or recreational activity because he goes there to pray and not as a “social function”.

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. A Medical Assessor is required within the MAC to expose the actual path of his or her reasoning for the assessment he or she has made of a worker’s impairment. The detail with which the Medical Assessor does that must be sufficient to enable an Appeal Panel to determine whether there is error in the assessment.[2]

   [2] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.

4. The Appeal Panel considers that the Medical Assessor has abided that requirement. It is apparent when the MAC is read in its entirely that the Medical Assessor was of the view that the respondent’s impairment in social and recreational activity is due to his psychiatric injury.

5. In the Appeal Panel’s view, the Medical Assessor has considered all relevant matters to come to that view. It is not demonstrable from the MAC that the Medical Assessor has failed to take into account a relevant matter or has taken into account an irrelevant matter. The Medical Assessor took account of the fact that the respondent before his injury was quite sociable, saw a lot of friends, met new people and liked to watch soccer and play football. The Medical Assessor explained that subsequent to the respondent’s injury the respondent had almost no social interaction and that all of his former recreational activities had ceased. The Medical Assessor explained that the respondent did not see any friends, or play any sport or watch football matches. The Medical Assessor noted that when the respondent is at church, for the purpose of praying, the respondent was quiet and withdrawn.

6. That reveals, and in the Appeal Panel’s view clearly reveals, an impairment in the respondent’s ability to engage in social and recreational activity.

7. As said, in the Appeal Panel’s view, it is apparent from the MAC that the Medical Assessor considered that this impairment in the respondent’s social and recreational activity is due to the respondent’s injury. There is simply no evidence to indicate it was due to any COVID restriction. Assuming however, in arguendo, that COVID restrictions did play a role, the respondent’s injury would nevertheless have been the most significant factor that contributed to his impairment in social and recreational activity, such that his impairment is to be attributed to his injury. If COVID did play a role, and again in arguendo as there is no evidence to indicate it did, the respondent’s present level of impairment would not have been what it presently is absent his suffering injury. The role of COVID restrictions would only have been by way of aggravation of his impairment from his injury, and his impairment accordingly ought to be attributed to his injury.[3]

   [3] New South Wales Department of Education v Johnson [2019] NSWCA 321 at [55] and [124].

8. But to repeat, that is all speculative, because there is no evidence to suggest COVID was a contributing factor.

9. The Appeal Panel also considers there is merit in the respondent’s submission that going to church is not a social and recreational activity. The plurality in Ballas v Department of Education (State of NSW)[4] held, “the ‘social and recreational activities’ scale looks to the injured worker’s degree of participation in such activities”. The respondent went to church to pray, not for recreation or for social activity. It was a religious activity. In any event, insofar as there was social interaction between the respondent and others whilst he was church it was limited to brief conversations. That only confirms, in the Appeal Panel’s view, that the respondent’s impairment in social activity was moderate.

   [4] [2020] NSWCA 86 at [100]. Calman v Commission of Police [1999] HCA 60 at [38]-[40] (Calman);

10. As mentioned when summarising above the appellant’s submissions, the appellant has contended the Medical Assessor erred by classifying the respondent’s impairment in social functioning as 3. The Medical Assessor did not do so. He classified the respondent’s impairment in this category as 2, that is a mild impairment. The appellant did not provide any submission why the Medical Assessor’s classification of the respondent’s impairment in social functioning was wrong, other than to say it was. In the Appeal Panel’s view, the Medical Assessor’s classification was sufficiently explained, and for the reasons the Medical Assessor provided, his assessment was correct.

11. In short, the Appeal Panel considers the Medical Assessor made his assessment of the respondent’s permanent impairment based on the correct criteria and that the MAC does not contain a demonstrable error.

12. For these reasons, the Appeal Panel has determined that the MAC issued on 4 May 2021 should be confirmed.

ACQ Pty Ltd v Cooke [2009] HCA 28 at [25].