Dinataci v Bupa Aged Care Australia Pty Ltd
[2023] NSWPICMP 612
•24 November 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Dinataci v BUPA Aged Care Australia Pty Ltd [2023] NSWPICMP 612 |
| APPELLANT: | Salote Dinataci |
| RESPONDENT: | BUPA Aged Care Australia Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 24 November 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) provided any or adequate reasons for assessment; Appeal Panel held that MA’s reasons were so sparse that Appeal Panel unable to evaluate whether there was an error in MA’s ratings of appellant’s impairment in the psychiatric impairment rating scale (PIRS); demonstrable error found; appellant re-examined; appellant’s permanent impairment not fully ascertainable at time of re-examination; Appeal Panel declines to assess permanent impairment of appellant; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 29 May 2023 Salote Dinataci, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerard Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 May 2023.
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, 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 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment in 2015 with BUPA Aged Care Australia Pty Ltd, the respondent. Due to incidents to which she was exposed in her employment from around 2018 until April 2021 she suffered a psychological injury.
Relying on a report of Dr Abhishek Nagesh dated 4 November 2021, who assessed she had 18% whole person impairment (WPI) from her injury, she claimed compensation under s 66 of the Workers Compensation Act 1987 (1987 Act) for permanent impairment from her injury.
Following appellant making that claim, the respondent’s solicitors organised for the appellant to examined by psychiatrist Dr Zarrar Chowdary on 18 June 2022. He advised in a report dated 24 June 2022 that he considered the appellant’s condition “had not reached a maximum medical improvement”. He did not assess the appellant’s permanent impairment from her injury.
On 25 July 2022 the respondent’s solicitors wrote to the appellant’s solicitors advising them that, based on Dr Chowdary’s report, they do not consider the degree of the appellant’s permanent impairment from her injury to be fully ascertainable. Following that the appellant initiated proceedings in the Personal Injury Commission (Commission) seeking determination of her claim for compensation for permanent impairment.
The Commission referred the matter to one of its Members, namely Ms Jacqueline Snell, who on 19 December 2022, with the consent of the parties, made several determinations, one of which was to remit the appellant’s claim for compensation for permanent impairment to the President of the Commission for referral to a medical assessor for assessment of the appellant’s WPI from her injury.
On 28 February 2023 a delegate of the President duly referred the following medical dispute to the Medical Assessor to assess:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury
(s319(c))
whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion
(s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 8 April 2021 - deemed
Body part/s referred: Psychiatric / psychological disorder
Method of assessment: Whole person impairment”
The Medical Assessor, in the MAC he issued on 2 May 2023, certified the appellant had 7% WPI from her injury.
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 the appellant should undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that the MAC did contain a demonstrable error, and the Appeal Panel considered it would need further clinical data to be able to issue a MAC as to the matters that had been referred for assessment. To obtain that data, it needed to examine the appellant.
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.
MEDICAL ASSESSMENT CERTIFICATE
The Medical Assessor detailed the following history in MAC that he obtained relating to the appellant’s social activities and activities of daily living (ADLs):
“Social activities/ADL: reduction in ADLs. Reduction in social activities. Unable to work.
She spends most of her time at home. She is able to independently travel but generally
does not drive and is driven family. She walks to the doctors. She attends Church every Sunday. She watches TV and enjoys reality shows like MAFS and Blind Date. She reads the Bible most days.”
The Medical Assessor recorded the following finding from his “physical examination” of the appellant:
“Appeared stated age. Flat affect. Nil abnormal psychomotor activity. Depressed and anxious mood. Oriented to time, place and person. Speech of normal rate, rhythm, volume and prosody. Nil formal thought disorder. Nil delusions or hallucinations. No thoughts of harm to others.”
The Medical Assessor completed the Psychiatric Impairment Rating Scale (PIRS) rating form within the form prescribed for the MAC, in which he set out his ratings of the appellant’s impairment in the several PIRS categories and provided his reasons for his ratings. They were as follows:
Self care and personal hygiene
1
Independent with self care and ADLs
Social and recreational activities
2
Has withdrawn from social and recreational activities
Attends church weekly
Travel
3
Is unable to travel without family
Social functioning
2
Maintains good relationships with family and friends
Concentration persistence and pace
2
Subjectively impaired concentration
Able to read the bible, watch TV
Employability
4
Severe impairment. She is erratic and unable to work consistently
The Medical Assessor noted that the median score of his ratings was 2 and that the aggregate score was 14, which converted to 7% WPI, and hence his certification that the appellant’s permanent impairment from her injury was 7% WPI.
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 failing to provide any or adequate reasons for his ratings of her impairment in the several PIRS categories. The appellant submitted that the Medical Assessor’s reasoning was not sufficient to enable “the reader to discern whether he has correctly performed this assessment”.
In reply, the respondent submitted that the Medical Assessor provided a detailed history of the appellant's functioning and provided an adequate rationale for his ratings with respect to the appellant’s impairment in the several PIRS categories. The respondent submitted that the Medical Assessor was not obliged to provide exhaustive and extensive justification of his findings.
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[1] the Court of Appeal held that the Appeal Panel is obliged to give reasons.
[1] [2006] NSWCA 284 (Vegan).
Section 325(2) of the 1998 Act obligates a Medical Assessor to set out his or her reasons for the assessment she or he makes and to set out the facts upon which the assessment is based. That obligation entails a Medical Assessor revealing 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.[2]
[2] 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; see also Vegan at [23]-[24].
In the Appeal Panel’s view the reasons the Medical Assessor provided for his assessment of the appellant’s permanent impairment were sparse and so lacking in detail that the Appeal Panel was unable to understand why the Medical Assessor rated the appellant’s impairment as he did. Hence the Appeal Panel was unable to evaluate whether there is error in the Medical Assessor’s assessment of the appellant’s impairment in the several PIRS categories.
The history the Medical Assessor detailed in terms of the appellant’s functioning was very limited. The Medical Assessor did not in any meaningful way engage with the documentary evidence or elicit a history from that and from his interview with the appellant that allowed the Appeal Panel, or anyone else reading the MAC, such as one of the parties, to comprehend the ratings he made relating to the appellant’s impairment in the several PIRS categories.
By way of example there was no detail within the MAC relating the whether the appellant prepares meals or shops for her food so as to understand the extent of any impairment she has with her self-care and personal hygiene. Further, with respect to social and recreational activities the Medical Assessor only detailed that the appellant attends church weekly, which is the nature of a religious ritual rather than a social and recreational activity. The Medical Assessor also did not detail the travel that the appellant is or is unable to do, other than to say that she does not travel without family.
The Appeal Panel considered that the lack of reasoning the Medical Assessor provided for his assessment of appellant’s impairment was such that the MAC contains a demonstrable error. Further, as indicated above, the Appeal Panel required further clinical data to correct that error and to that end the Appeal Panel appointed one of its members, namely Medical Assessor Michael Hong to examine the appellant. Medical Assessor Hong did so on
25 October 2023 and provided the following report to the Appeal Panel:“Ms Dinataci presented for a psychiatric assessment and I explained the reason for my assessment and my role as part of the Medical Appeal Panel.
She had moved to Western Australia in May 2023 and initially joined the video assessment at the wrong time, due to the time zone difference.
She is now 42 and living with her husband, her daughter, her son-in-law and a 2-year-old grandson.
Ms Dinataci had worked at Bupa as a general service officer for six years and last performed work on 8 April 2021. She has not done other work and said she cannot imagine doing any work, due to her mental health. She reported that she suffered depression and anxiety after being bullied at work for almost a year.
She presented as clearly psychotic today, and therefore had difficulties with some dates and some of her history.
Ms Dinataci was seen by the mental health service in late 2022 and commenced Latuda (Lurasidone, antipsychotic medication) due to concerns about hearing ‘voices’ at the time. When seen by Dr Chew on 27/4/2023, she was taking Zoloft (Sertraline, antidepressant) and Lurasidone. She reported that some time ago, she spoke to her GP and they agreed she could come off the medications when she was still in Sydney. She was seeing a psychologist in Sydney, Dr Kumar, who was in the same practice as her GP.
Since she moved to WA, she started treatment and had two sessions with Dr Rahman, another psychologist, with the next session tomorrow. She has not taken any psychiatric medication for many months now.
She confirmed her psychological health deteriorated in the past few months. She reported that she had suicidal thoughts and increased depression and anxiety, and ‘things would come into my mind’. She said there was a family dispute with some texts from her aunt, and because of that she felt upset and could not eat or sleep and she was crying. She said she was not aggressive, but she felt suicidal, and so her daughter called the police about a week ago. She was taken to Rockhampton Public Hospital, however, she said she did not see any doctor there as they were very busy. The hospital called her GP and then discharged her. Subsequently, she consulted her GP, who prescribed escitalopram 10 mg (antidepressant) 2 days ago, but she has not yet started taking it as the script has not yet been filled.
In the past few months, particularly since moving to WA, she said that her mood is ‘not okay’ and her thoughts are ‘not okay’. Sometimes she thinks she really needs medication and that she is not good without her medication. She stated she is asking for medication now.
She confirmed an escalation in the ‘voices’. She said she heard intermittent voices early on, but it is now more frequent. The voices are usually the same two men but she cannot recognise them. They talk amongst themselves or they talk about her, and said that they are coming for her. They say things like ‘you are useless’ and she feels scared and she wants to harm herself with a knife, and she has never attempted. She said they can predict things that are going to happen. They make comments about what she is doing. She said she cries and tries to get away but she cannot think properly, because they attack her inside her mind.
I asked about mind-reading, and she does not believe that she experiences mind-reading and goes on to say she hates people.
I asked about thought blocking and she said that sometimes her thoughts just disappear and she cannot focus on her train of thought. She does not think anybody is removing thoughts from her mind or inserting thoughts into her mind.
She said that sometimes she feels like the person in her brain can command her to do something and she does not want to do it, but cannot give specific examples.
I asked about visual hallucinations, and she said she can see her dreams and she dreams about having both hands tied up to a tree and she cannot move. On further clarification, it does not appear to be a real visual hallucination as it does not occur when she is awake.
I asked about changes or problems in her movement, and she noted that sometimes she will try to do something but finds that she cannot move and there may be an element of motor ambivalence.
I asked about imposters and people pretending to be who they are not, and she said she feels that sometimes, but not with the people at home. When she goes to the shopping mall, sometimes people are talking to her and pretending to be other people.
I asked about unusual olfactory experiences and she said that sometimes she can smell a nice smell and ask the people around her whether they can smell it, but they cannot.
Since she moved to WA, she has joined a different church, and she stated they only meet up twice a month and she goes regularly. She enjoys reading the Bible at home.
At the end of the assessment, she told me that she thought hard about return to work, but does not think she can go back to work and prefers to be alone now, and there are only one or two people that she can trust.
Findings on physical examination
Ms Dinataci was assessed by video. She was alone and her aunt was also at home. She presented as disorganized in her speech, affect and movements. She was mildly thought-disordered and had a perplexed and incongruous affect. She smiled as she discussed having suicidal ideation and feeling paranoid. She closed her eyes at times to help her remember her history. She struggled with her memory and her focus, all through the assessment, and was not actively responding to internal stimuli.
Summary
Ms Dinataci has suffered depression and her file noted previous psychotic symptoms and she was treated with an antipsychotic medication.
Since Dr Chew's assessment, she has stopped taking all psychotropics. There has been a significant decline in her mental health and she had a presentation to the hospital 1 week ago, and there is a plan to start antidepressant medication. She recognises that she needs to be on psychiatric medication.
I asked her about returning to Latuda which she had taken before, and she said she would be happy to take it if the doctor suggested it.
Given there is a clear deterioration in her mental state since the cessation of psychotropic medications, with increased depression and significant psychotic symptoms, her condition is not stable. She wants to have further treatment and has not been offered or commenced appropriate treatment, and there is a reasonable prospect of significant improvement with the addition of an antipsychotic medication and an antidepressant. Therefore, her impairment is not fully ascertainable.
DR. MICHAEL HONG
MB BS, FRANZCP
Consultant Psychiatrist”
The Appeal Panel adopts the report of the Medical Assessor Hong and his findings from his examination of the appellant. The Appeal Panel also agrees with the summary Medical Assessor Hong provided and his conclusion that the degree of the appellant’s permanent impairment is not currently fully ascertainable. This is because, as Medical Assessor Hong noted the appellant’s mental state has recently deteriorated and there is a prospect the appellant will commence further treatment with the consequent prospect of there being an improvement in her condition.
Following the receipt of Medical Assessor Hong’s report, the Appeal Panel invited the parties to provide written submissions to it on what, based on Medical Assessor Hong’s report, the outcome of the appeal should be. The appellant’s solicitors provided written submission dated 10 November 2023, in which they submitted on behalf of the appellant that Medical Assessor Hong should conduct a reassessment of the appellant when the appellant’s condition has stabilised, and that the appeal should be held in abeyance until that further re-examination occurs.
The respondent’s solicitors submitted that “the appropriate course of action is for the proceedings to be adjourned until the [appellant’s] permanent impairment can be ascertained”.
Section 322(4) of the 1998 Act permits a Medical Assessor to decline to assess the degree of a workers’ permanent impairment until satisfied that the degree of permanent impairment is fully ascertainable. This section allows the Commission to adjourn proceedings before it until that assessment has occurred.
By virtue of s324(4) of the 1998 Act a Medical Assessor who is a member of an appeal panel has the powers of a medical assessor provided under s 324(1) of the 1998 Act, which includes requiring a worker to submit himself or herself for examination.
To recap, the Appeal Panel required the appellant to present herself for examination by Medical Assessor Hong in order that it could obtain the necessary clinical data to enable it to correct the error it identified in the MAC. Medical Assessor Hong found at the time of his examination that the appellant’s permanent impairment was not fully ascertainable, with which finding the Appeal Panel agrees and adopts. Consequently, the Appeal Panel is unable currently to assess the degree of the appellant’s permanent impairment. In accordance with s 322(4) of the 1998 Act the Appeal Panel accordingly declines to make an assessment of the degree of the appellant’s permanent impairment.
For these reasons, the Appeal Panel has determined that the MAC issued on 2 May 2023 should be revoked. Noting that:
(a) section 328(5) of the 1998 Act requires an appeal panel after revoking a medical assessment certificate to issue a new certificate as the matter concerned;
(b) the Appeal Panel has found a demonstrable error in the MAC, and consequently must revoke it, and
(c) one of the matters referred was whether the degree of the appellant’s permanent impairment was fully ascertainable,
the Appeal Panel therefore issues a Medical Assessment Certificate certifying that the degree of the appellant’s permanent impairment is not fully ascertainable.
The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W6189/22 |
Applicant: | Salote Dinataci |
Respondent: | BUPA Aged Care Australia Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Gerard Chew and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological | 8/04/2021 | Chapter 11 | The degree of permanent impairment is not fully ascertainable | The degree of permanent impairment is not fully ascertainable | ||
| Total % WPI (the Combined Table values of all sub-totals) | The degree of permanent impairment is not fully ascertainable | |||||
0
4
0