Domathoti v Hyne & Son Pty Limited
[2021] NSWPICMP 68
•5 May 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Domathoti v Hyne & Son Pty Limited [2021] NSWPICMP 68 |
| APPELLANT: | Paul Domathoti |
| RESPONDENT: | Hyne & Son Pty Limited |
| APPEAL PANEL: | Member Catherine McDonald Dr Douglas Andrews Dr Julian Parmegiani |
| DATE OF DECISION: | 5 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological injury; application of the PIRS Tables; Ferguson v State of NSW and Parker v Select Civil applied; worker provided information inconsistent with reports of treating practitioners; AMS called for information under section 324 of the 1998 Act; Held- reliance on that material (including academic transcript) without further examination was not a denial of procedural fairness; assessments under PIRS Tables were a valid exercise of clinical judgement; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 February 2021 Paul Domathoti lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Wayne Mason, an Approved Medical Specialist (AMS) under the legislation in force at that time, who issued a Medical Assessment Certificate (MAC) on 21 January 2021.
Mr Domathoti relies on the ground of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – that the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, the ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground 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).
The Commission was informed by the parties that Wagga Wagga Police told the insurer of Hyne & Son Pty Limited (Hyne) that Mr Domathoti died in early March 2021. No further details were provided other than that the Police did not consider his death suspicious. The insurer and Mr Domathoti’s solicitor agreed that the appeal should proceed on the papers. No further information has been provided, nor is it necessary.
RELEVANT FACTUAL BACKGROUND
Mr Domathoti was employed by Hyne as a casual process operator in its timber mill at Tumbarumba, whilst studying psychology at university.
On 7 April 2020 an arbitrator of the former Workers Compensation Commission determined that Mr Domathoti suffered a psychological injury as a result of bullying and harassment in the course of his employment and that the deemed date of injury was 24 February 2017. The arbitrator found that he had no current work capacity from 20 February 2020.
Hyne’s insurer had disputed the claim because Mr Domathoti had not disclosed a previous psychological injury in 2007. He was cross-examined about it at the arbitration hearing. The Arbitrator found Mr Domathoti’s claim that he remembered nothing about that injury, the claim and its aftermath until late 2019 was implausible but she accepted that he did suffer an injury in 2017, noting that there was no challenge to his account of the events that led to that injury. He was awarded weekly compensation and his claim for permanent impairment compensation was remitted to the Registrar for referral to an AMS.
The AMS examined Mr Domathoti on 25 September 2020. Following that examination, the AMS sought a copy of Mr Domathoti’s academic record and was provided with further documents. Two Applications to Admit Late Documents were provided to the AMS as a result of a telephone conference with the Arbitrator on 10 December 2020.
The AMS diagnosed a major depressive disorder and alcohol use disorder. He considered that the 2007 injury had resolved but noted that Mr Domathoti had not been open with him about it or about the completion of his university degree and a recent hospital admission for alcohol detoxification. The AMS assessed 7% whole person impairment (WPI) and did not make any deduction under s 323 of the 1998 Act.
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 WorkCover Medical Assessment Guidelines 2006.
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 the assessment made by the AMS was a valid exercise of his clinical judgement and does not disclose an error.
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.
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, Mr Domathoti submitted, through his counsel Mr McManamey, that the AMS erred in the assessment of the Psychological Impairment Rating Scale (PIRS) categories of:
(a) Concentration, persistence and pace;
(b) Employability, and
(c) Social functioning.
Mr McManamey said that the AMS had not taken adequate notice of Mr Domathoti’s pre-injury level of functioning when considering the level of impairment.
With respect to concentration, persistence and pace. Mr McManamey said that the AMS determined that Mr Domathoti was not impaired because he was able to complete his degree by correspondence. In doing so he failed to have regard to Mr Domathoti’s pre-injury level of functioning (which was working up to 70 hours per week and studying full time by distance education) and to the report of his treating psychologist, Dr S Sowden dated 29 October 2020 in which she said that Mr Domathoti had underachieved in his degree but that she had encouraged him to complete it as behavioural therapy. Mr McManamey submitted that the AMS did not appear to have regard to Mr Domathoti’s “pre accident drive and intellectual ability” and determined that he had no impairment because he was able to complete the degree. He said that the AMS should have assessed a moderate impairment in class 3.
Mr McManamey also submitted that the AMS failed to consider the impact of Mr Domathoti’s alcohol use disorder described in the further statement admitted by the arbitrator on 10 December 2020. Mr McManamey said that the work for the university course “would have been” completed before the end of June and before the first admission to hospital in July 2020. He said that the evidence before the AMS demonstrated a deterioration in Mr Domathoti’s condition after the examination by the AMS.
He argued that the AMS denied Mr Domathoti procedural fairness by drawing adverse inferences based on the academic record without giving Mr Domathoti an opportunity to explain how he achieved the degree. Mr McManamey suggested that Mr Domathoti may have had special assistance or breaks and noted that he took five years to complete a three year degree despite starting with 48 credit points.
Mr McManamey submitted that the material should have raised a question as to whether Mr Domathoti had reached maximum medical improvement and that he gave no reasons for his conclusion that Mr Domathoti’s condition had stabilised “in the face of” material about his hospitalisation and alcohol use. The deterioration in Mr Domathoti’s condition meant that a further examination was necessary.
With respect to employability, Mr McManamey submitted that because of his finding in respect of concentration, persistence and pace, the AMS fell into error by assessing only a mild impairment and finding that Mr Domathoti is able to work because he was able to complete his course. The diagnoses made by the AMS – particularly the alcohol use disorder (binge pattern) led to two hospitalisations in 2020 and made it unlikely that Mr Domathoti would be able to maintain employment. Mr McManamey said that the AMS failed to consider the deterioration in Mr Domathoti’s condition. He submitted that the AMS misdirected himself by finding that Mr Domathoti could work at home because he completed his degree at home and failed to afford procedural fairness because he did not seek information about how the degree was obtained and why only one subject was completed in 2020 and made assumptions without allowing an opportunity to address those assumptions.
With respect to social functioning, Mr McManamey submitted that maintaining weekly contact by Skype with his younger daughter should not be interpreted as indicating a minimal impact on social functioning and Mr Domathoti’s loss of friends is a better indication. He said that the assistance of neighbours in a rural community and assistance from the Mormon church community should not be interpreted as maintaining relationships. He submitted that the deterioration in Mr Domathoti’s condition should result in an assessment in class 5.
In submissions prepared by its solicitor, Ms Parkes, Hyne said that it is apparent in the face of the MAC that the AMS considered Mr Domathoti’s pre-injury level of functioning in detail. The AMS questioned Mr Domathoti and had access to the documents in the file, including those filed pursuant to the order dated 10 December 2020. In particular, Mr Domathoti was given the opportunity to address any deterioration of his condition, difficulties with his studies and other relevant matters in his supplementary statement. The AMS also commented on Dr Sowden’s supplementary report. Hyne submitted there was therefore no denial of procedural fairness.
Citing Parker v Select Civil Pty Limited[1] (Parker), Hyne submitted with respect to concentration, persistence and pace that there was no demonstrable error and that Mr Domathoti’s submissions were an attempt to distinguish a difference of opinion. The AMS’s dissatisfaction with Mr Domathoti’s statements was consistent with the findings on credit made by the Arbitrator.
[1] [2018] NSWSC 140.
With respect to employability, Hyne submitted that the history obtained by the AMS was consistent with assessment in class 2. Hyne noted that the AMS sought further information after an interview of 1 hour and 50 minutes because of an inconsistency between the contemporaneous evidence and the history Mr Domathoti provided. It said the AMS afforded procedural fairness.
Hyne submitted that the observations made by the AMS were consistent with assessment in class 2 for social functioning.
THE CERTIFICATE OF DETERMINATION
The Arbitrator made comments about Mr Domathoti’s credit which are consistent with statements made by the AMS.
The Arbitrator noted that there was no dispute that Mr Domathoti suffered a significant psychological injury in 2007 and that, until details of the earlier claim came to light, there was no dispute that he suffered a significant psychological injury in the employ of Hyne. The Arbitrator said:[2]
“I do not find Mr Domathoti’s explanation for failing to disclose his previous injury and its aftermath persuasive. I accept the notion of a person ‘putting a matter behind them’ and ‘moving on’ but that is not the same as forgetting ‘altogether’ that it occurred. His explanations appear inconsistent. He was ‘in denial’, but also ‘saw no reason’ to disclose his history to the doctors because he had put it behind him, suggesting it was in his mind but he did not consider it relevant to disclose. In any event, by his own evidence, the large tattoo he had done the day after he left the detoxification facility was for the very purpose of reminding him every day of his drinking and homelessness due to the insurer’s handling of his claim.
To say the doctors did not ask, and he did not volunteer, information about his psychological history is no explanation. Mr Domathoti is clearly an intelligent man with a keen interest in psychology. I do not accept that he did not know the purpose for which treating and assessing doctors asked about his history. Whether or not they asked specifically about any prior workplace injury, their reports indicate they asked about his psychological history.
In his statement of evidence, Mr Domathoti volunteered that he had not suffered anxiety or depression before February 2017 and stated he had never lodged a complaint of bullying, harassment or discrimination with an employer prior to his employment with the respondent. Neither statement was true.
I accept that a worker might not appreciate the difference between a claim for unfair dismissal and one for workers compensation and I seriously doubt Mr Domathoti did not know he had claimed workers compensation after 2007. It is improbable that a solicitor, asked whether his client had claimed workers compensation, would give the advice Mr Domathoti claims.
I find it implausible, and I do not accept, that Mr Domathoti had no recollection of past events until late 2019 when confronted by the documents about his earlier claim.”
[2] Certificate of Determination 7 April 2020 [119]–[123].
The Arbitrator said that the difficulty for Hyne’s case is that it does not necessarily follow that Mr Domathoti did not suffer an injury in 2017. She found that Mr Domathoti had recovered from the earlier injury, or it was in remission, and that he suffered a further injury or an exacerbation of the previous injury. She awarded weekly compensation and remitted the permanent impairment claim for referral to an AMS.
THE MAC
The AMS examined Mr Domathoti on 25 September 2020. Because of the issues on the appeal, we have summarised his MAC at some length.
The AMS set out a detailed history of Mr Domathoti’s background, the injury and his subsequent treatment. The AMS noted that Mr Domathoti sees his psychiatrist, Dr A Adesanya, and his psychologist, Dr S Sowden at four weekly intervals. He takes medication as a result of his injury and to control back and neck pain from a motor accident in May 2020. He set out Mr Domathoti’s present symptoms:
“Mr Domathoti said his symptoms are much the same as they were. He has difficulty getting to sleep and his sleep is interrupted by nightmares. He is awake for two hours around 1 or 2 am. He sometimes sleeps during the day because he is so tired. He said he ruminates during the day, going over and over in his mind what happened at work. He continues to have two or three panic attacks per week. He said he remains depressed and has constant suicidal thoughts but does not think he would act on them. He acknowledged a huge sense of injustice about how he was treated in the workplace. He said he is unable to leave his house without company and he avoids crowds. He spoke about being unable to drive because he fears he will fall asleep at the wheel; he said the medications he is taking induce ‘narcolepsy’. He spoke about needing help from his neighbours and the Mormons to manage his ADLs.”
In respect of previous of subsequent injuries or conditions the AMS recorded:
“Mr Domathoti was employed from March to June 2007 with a company called Teletech in Sydney. He claimed harassment and abuse by a manager and ceased work on 5 June 2007. There was a workers compensation commission hearing in which he was awarded compensation. In May 2008 he received divorce papers from his wife claiming abandonment and seeking sole custody of their daughter. He had been treated with the antidepressant cipramil for 18 months at that time. He had a four day admission to Gorman House for rapid detoxification and then a 28 day admission to Concord Hospital for an alcohol rehabilitation program.”
The AMS wrote:
“When asked about past psychiatric history he said he did not recall exactly. When encouraged to remember he said he thought there may have been some anxiety and alcohol dependency around 2010. When asked how bad it was he said it was bad and he was homeless for two years. He then said he was bullied by a supervisor when he worked for a firm called Teletech and afterwards the insurer denied liability. He said he was homeless between 2007 and 2009 and the work related problem went on for some three years. He said he lost his job with Teletech in 2009 or 2010, implying he was working for the company for three years. When challenged about this he said he worked for about six months in 2007 but the matter went on for another 2 1/2 years so he did not work exactly the full three years.
…
When asked to describe his life on the street he said actually he was sleeping in friends’ garages and living rooms. He said he checked into an alcohol detox centre but had great difficulty remembering the name of the centre, even though he acknowledged reading it in the documents provided. He eventually acknowledged it was Gorman House. He was asked about his alcohol rehabilitation admission to Concord Hospital. He said he did not remember that but then acknowledged that he remembered it 2 months ago when he read the documentation. He said he had completely blocked that out. He said he became a Buddhist for two years and then moved to Estonia where he had full-time work and a new wife and child. I questioned Mr Domathoti about his mental health since 2010 and was informed that he had no psychiatric symptoms and was not receiving psychiatric treatment or taking psychiatric medication.”The AMS recorded Mr Domathoti’s pre-injury level of functioning:
“Mr Domathoti said prior to the work injury he was living in a rented room in Batlow. His selfcare and personal hygiene was satisfactory. He saw friends for barbecues or a few drinks. He was able to use all forms of travel. He said he did not have a partner because he was married at that time; his wife was in Estonia. He described no problems with concentration, persistence or pace. He was working at the timber mill, at times doing 70 hours per week, and in addition was studying a psychology degree by distance education at CSU. He had moved to Tumbarumba.”
The AMS set out Mr Domathoti’s current social activities and activities of daily living by reference to the PIRS categories:
“Currently Mr Domathoti said he goes to bed between 8 and 10 pm, gets to sleep about 12 midnight and then wakes at two or 3 am for a couple of hours. He goes back to sleep and rises around 9 or 10 am. He said he then sits down with a cup of tea and tries to watch television. He spends all of his time at home but does try to go for a walk when it is dark. He said his neighbours do the shopping for him and friends drive him to Albury to see his psychologist.
Self-care and personal hygiene: Mr Domathoti said he has no interest in his self-care and doesn’t bother to shower. He said he was depressed because he can’t see his daughter in Estonia because he has no money to travel. All food purchases are made online. He said one neighbour helps with the cleaning and another with the cooking and shopping. He is moderately impaired.
Social and recreational activities: Mr Domathoti said he does nothing. He sees no friends. He has no hobbies. He cannot do any reading or study because he is not interested and because of the side-effects of his medications ,which he said cause short term memory loss. He cannot go out without a support person. He is moderately impaired.
Travel: Mr Domathoti said he can drive but he tries to avoid doing so because intrusive thoughts make him vulnerable to having an accident. He cannot use public transport without a support person. He can travel in a familiar area without a support person. He would travel overseas to see his children if he had the funds. He is mildly impaired.
Social functioning: Mr Domathoti had separated prior to his work injury. He said he gets on well with his daughter in Estonia; they communicate for an hour twice weekly by Skype. He describes a good relationship with his daughter in America. He communicates with his ex-wives via email. He currently does not have a partner. His circle of friends is reduced but he receives significant help from friends. He is mildly impaired.
Concentration, persistence and pace: Mr Domathoti said his memory is really bad and he can read only four or five lines before he loses interest. There was no evidence throughout the 1 hour and 50 minute interview that Mr Domathoti had any problems with concentration, persistence or pace. Extra documentation revealed he had successfully completed his online university degree in as of July 2020. He is unimpaired.
Employability: Mr Domathoti said he is unable to leave his house and cannot deal with crowds and therefore could not manage to be in a workplace. However, he has completed a university degree which was conferred on 14 August 2020. In my opinion he is able to work more than 20 hours in a different position. He is mildly impaired.”
The AMS noted that Mr Domathoti did not exhibit anxiety or depression during the interview, that he had no difficulties with cognition. His insight and judgement seemed reasonable. He had significant problems with the memory about past events though no difficulty in respect of the recent work injury.
The AMS said that Mr Domathoti’s description of cognitive impairment is inconsistent with his presentation at the examination and his ability to complete a university degree. The AMS said:
“In my opinion on history he meets the DSM-5 diagnostic criteria for a major depressive disorder. While he describes some trauma related symptoms he does not meet DSM-5 criterion A for post-traumatic stress disorder. Extra documentation provided on 22 December 2020 indicates a pre-existing and ongoing alcohol use disorder (binge pattern).
I have accepted that the psychiatric conditions major depressive disorder and alcohol use disorder arising from his 2007 work injury had resolved, because there is no documentary evidence to the contrary. He was apparently functioning satisfactorily in his personal and work life following this injury without the need for psychiatric or psychological treatment. There was a motor accident in May 2020 which did not cause psychiatric injury.”
With respect to the consistency of presentation, the AMS said:
“… He was not open about this injury in the histories he had provided to various clinicians. While he claimed he had repressed his memory of these events I do not accept this explanation. He was selective in the history he provided to me and was not fully open about the 2007 work injury; in fact he led me to believe he had worked continuously for Teletech for three years. It was not until he was directly asked how long he worked that he provided accurate details, which he was able to do without difficulty. He was evasive until directly confronted.
As a generalisation, Mr Domathoti was evasive about various details of his history unless pinned down. I was unable to obtain a clear history of the progress of his bachelor of social science (psychology) degree at CSU. It appears a number of subjects had been completed prior to the work injury and a number had been attempted since the work injury. He said he withdrew from some subjects and failed others. No academic transcript had been provided. I asked why he told his treating psychologist he had only one subject to complete; he said this must have been a misunderstanding on her part because he told her he had completed only one subject.
Provision of the academic transcript on 22 December 2020 indicated the degree had been conferred on 14 August 2020, less than 6 weeks prior to interview. Mr Domathoti was not open about this. The clinical record of Wagga Wagga Base Hospital indicated a 4 day admission for alcohol detoxification in late July 2020. Mr Domathoti was not open about this, despite being specifically questioned about past psychiatric history and hospital admissions.
In summary, Mr Domathoti was an inconsistent historian to such an extent that it is difficult to rely on the information provided in reaching any conclusion.”
The AMS summarised the medical reports with respect to the 2007 injury and the 2017 injury. He said in respect of the 2007 injury:
“In summary, it is clear Mr Domathoti developed a major depressive disorder and alcohol use disorder in the context of his loss of work and extended period of unemployment following difficulties with a supervisor at Teletech. In my opinion he has not been truthful in withholding this information from a number of clinicians who questioned him regarding past psychiatric history.”
The AMS did not agree that Mr Domathoti suffered post traumatic stress disorder but did agree with the diagnosis of major depression in 2017. He did not considered that there was a pre-existing condition that “requires apportionment”.
The AMS considered documents from Wagga Wagga Base Hospital with respect to admissions between 30 July and 2 August for acute alcohol intoxication an between 20 and 24 October 2020. In respect of the first period he said:
“Mr Domathoti failed to disclose this episode of hospitalisation for alcohol detoxification during the interview on 25 September 2020, only 8 weeks after discharge from hospital, despite being specifically asked about his mental health since 2010. In addition, at that time he was clearly aware that he had completed his degree at Charles Sturt University. Yet when I attempted to clarify the progress of his studies he told me his psychologist had misreported him when she wrote he had only one subject to complete. He clearly stated he had completed only one subject.”
The AMS noted, among other documents, Mr Domathoti’s supplementary statement, his academic transcript showing that his degree (Bachelor of Social Science (Psychology)) was to be conferred on 14 August 2020, a report of Dr Sowden dated 29 October 2020 and a report of Dr Whetton dated 10 November 2020.
The AMS assessed 7% WPI. Mr Domathoti does not take issue with respect to his assessments in Class 3 for Personal hygiene, Class 3 for Social and recreational activities and Class 2 for Travel. The AMS assessed Mr Domathoti in Class 2 for Social functioning, Class 1 for Concentration, persistence and pace and Class 2 for Employability.
OTHER EVIDENCE
In the statement prepared with the assistance of Hyne’s investigator, Mr Domathoti said that he held a degree in software engineering, a diploma in Human Resources Management and an advanced diploma in Leadership and Management. He said that he was studying for a degree in psychology and that he was a “distinction student”.
In the supplementary statement prepared with the assistance of his solicitors, Mr Domathoti said that after school he studied Computer Science Engineering and was a distinction student. He then completed a “Post-Graduation in Application Programming – specialising in COBOL.” He described his work history and subsequent study. He said that he successfully completed the first year of his psychology degree and took the job with Hyne because textbooks are expensive.
There are a number of certificates – described as awards - attached to the Application to Resolve a Dispute. The inclusion of many of them is curious, particularly those relating to school and college sport. There is no evidence in those documents of a degree in software engineering though he was awarded a diploma in Computer Science and Engineering by the Government of Karnataka Board of Technical Examination in 1987. The file includes a number of awards for particular subjects from the National Institute of Information Technology in India. The courses in Human Resources and Leadership and Management were both three month courses undertaken at vocational colleges. Mr Domathoti attached references for the purpose of obtaining advanced standing in his psychology course. While those references refer positively to his results, the documents do not disclose the results obtained.
Mr Domathoti provided a supplementary statement dated 19 November 2020 which the Arbitrator admitted and which was sent to the AMS. He attributed a “pre-hospitalisation bender” to the distress of receiving an email on 2 September 2020 telling him that his weekly compensation would cease at 260 weeks from the injury unless his permanent impairment was more than 20% together with being “re-traumatised” by questioning during the appointment with the AMS about the 2007 injury and its aftermath. He said that he spiralled into severe depression and began drinking heavily which lasted for 10 days until his hospitalisation. A description of his hospitalisation followed.
The email from Hyne’s insurer to which Mr Domathoti referred is dated 2 September 2020 and informed him that as at that date he had been paid compensation for 176 weeks and that an examination was to be undertaken to determine if it was likely that his permanent impairment was not more than 20% and if that was so his payments would cease at 260 weeks.
The academic transcript from Charles Sturt University shows that Mr Domathoti received advanced standing for one quarter (48) of the credit points required for his degree (192). He commenced in Session 1 2016 and completed five subjects by the end of Session 2, achieving two credits, one pass and one high distinction. He failed a subject undertaken in Session 3 2016 and repeated it the following session, resulting in a credit. Mr Domathoti completed one or two subjects in each of the following sessions, achieving a further three passes, five credits and four distinctions. The last subject was completed in Session 1 2020.
Dr Sowden wrote to Mr Domathoti’s general practitioner on 29 October 2020. She said that her first session with him was on 13 July 2017 when she recorded that he “was achieving High Distinctions and Distinctions in his Degree in Psychology, CSU ... He is currently in his second year in his Bachelor Degree.” She said that on 18 April 2019 she encouraged Mr Domathoti to complete the final subject in his degree. She said:
“It was important that Mr Domathoti was encouraged to continue his studies as a form of behavioural therapy to keep his mind occupied. It is worth noting that he has been observed to be a highly intelligent man and from what I can understand from his transcript results, he has significantly underachieved in terms of his ability. Please note I have not conducted a cognitive assessment of Mr Domathoti, but he has been observed to be highly intelligent to the extent of being quite gifted intellectually. This was not always observed to be translated however in his capacity to manage himself in the light of his observed severe functional impairment or his capacity to manage himself on social situations.
From what I can understand about Mr Domathoti 's presentation, he was studying on and off ... I am of the opinion however that he has underachieved as noted above and that he is capable from a cognitive perspective of gaining High Distinctions. As it was his achievement appeared to be significantly less. I understand that Mr Domathoti was studying online and was not participating in classes or meeting other students or lecturers.”
Having seen this material, Dr P Whetton, qualified for Hyne, revised his opinion in a report dated 10 November 2020. He had previously diagnosed chronic major depressive disorder with symptoms of post-traumatic stress disorder and alcohol abuse disorder. Having considered the recent material he said that he had cause to doubt the accuracy of Mr Domathoti’s presentation and said:
“However concentration has an objective measure with a Uni degree and based on that he must be able to do some work, and on this basis, at least with his university studies, Concentration, Persistence and Pace would be Class 1 or Class 2 and employability would not be Class 5 but perhaps Class 2 or Class 3.”
Mr Domathoti’s case was based on reports by A/Prof M Robertson. His first report was dated 18 April 2019 and his most recent report is dated 24 January 2020. He considered material regarding the 2007 injury and its treatment and revised his previous assessment of permanent impairment by making a one-tenth deduction under s 323 of the 1998 Act. Neither of his reports discuss Mr Domathoti’s university studies.
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[3] 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.
[3] [2006] NSWCA 284.
Mr Domathoti’s appeal concerns only the application of the PIRS categories.
Paragraph 11.12 of the Guidelines provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
The application of the Guidelines is an egalitarian process – impairment is assessed on the same basis for all workers. In the example most often quoted, loss of use of a finger is assessed in the same way for a bank manager and a concert pianist.
The PIRS Tables reflect that principle and assessment in Class 1 under any of the Tables is expressed to apply where there is “No deficit, or minor deficit attributable to the normal variation in the general population.”
In Ferguson v State of New South Wales[4] (Ferguson) Campbell J said:
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”[5]
[4] [2017] NSWSC 887.
[5] At [24].
Harrison AsJ cited Ferguson in Parker and said that the passage set out above supported the conclusion that “there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense.”
Her Honour said[6]:
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self care and hygiene, that is to say, a moderate impairment of self care and hygiene...”
[6] At [70]-[71].
We have had regard to those statements in the preparation of these reasons.
The AMS undertook his task thoroughly, considering all relevant information and clearly setting out the path of reasoning to his opinion. We consider that the MAC does not disclose a demonstrable error.
Concentration, persistence and pace
The AMS assessed Mr Domathoti in Class 1, saying:
“Mr Domathoti said his memory is really bad and he can read only four or five lines before he loses interest. There was no evidence throughout the 1 hour and 50 minute
interview that Mr Domathoti had any problems with concentration, persistence or pace. He has been able to complete a university degree online since his work injury. In my opinion he is unimpaired.”Concentration, persistence and pace can be objectively assessed by the AMS during an examination and the assessment is not based solely on a worker’s self-reporting. In making that assessment, the AMS was required to form a view as to whether there was evidence of cognitive impairment and on the basis of his consultation, he found none. The assessment was made on the basis of the way Mr Domathoti presented during the consultation. It was not made solely on the basis that he had completed his degree.
The history provided by Mr Domathoti to the AMS is set out in the MAC. The logical order in which it was given confirms that the assessment made was accurate.
Like the Arbitrator, the AMS found much of what Mr Domathoti said was implausible. The history he gave the AMS was at odds with the way he interacted during the consultation and the other evidence. It was open to the AMS to take his presentation and those inconsistencies into account when assessing concentration, persistence and pace.
Mr McManamey’s submissions – based on Dr Sowden’s reports – stress that the AMS failed to have regard to Mr Domathoti’s pre-accident drive and ability. The premise is that Mr Domathoti had under-achieved, based on his previous ability. The evidence extracted at [45] to [50] above suggests that may be a false premise because the documents on which Mr Domathoti relied do not bear out his reports of past achievement. The only record of academic results which pre-dates the injury is that from the beginning of Mr Domathoti’s psychology degree. Apart from one failure about the time of the injury, those results are substantially similar to those obtained after the injury.
Mr McManamey submitted that the AMS denied Mr Domathoti procedural fairness in that he was not given the opportunity to explain how the degree was completed. The MAC shows that the AMS asked Mr Domathoti about his degree but that he was unable to obtain a clear history because Mr Domathoti was evasive. He gave an inaccurate history about the number of subjects completed. When the AMS asked why Dr Sowden recorded that he had only one subject to complete, Mr Domathoti said that he told her he had only completed one subject.
Mr McManamey speculated as to assistance which Mr Domathoti may have been given. That submission cannot be accepted and the references to assistance which might have been provided are no more than speculation. Similarly, the reference to taking five years to complete a three year degree is irrelevant when Mr Domathoti was studying and working at the time of his injury.
Procedural fairness did not require that another examination be undertaken to allow Mr Domathoti to explain how the degree was completed. The MAC shows that the AMS asked him about his studies and that the answers he gave were inconsistent with the documents which were later provided.
Mr Domathoti prepared a statement which was admitted by the Arbitrator and sent to the AMS. He had the opportunity to comment on the academic transcript but did not say anything in that statement about his studies.
We are satisfied that Mr Domathoti was not denied procedural fairness. The AMS gave him an opportunity to describe his studies. He had a further opportunity in his supplementary statement. It was not necessary for the AMS to undertake a further examination so that Mr Domathoti could provide information previously withheld.
Mr McManamey submitted that the admissions to hospital for alcohol abuse were evidence of a deterioration in Mr Domathoti’s condition. While the recent hospital admissions disclose a serious problem, they are not necessarily evidence of a deterioration in his condition since the examination by the AMS. There is evidence of a pattern of binge drinking both in 2007 and following the injury. Mr Domathoti told the AMS that he drinks a bottle of whisky over a weekend about every three months.
Importantly, the appeal is not brought under s 327(3)(a) of the 1998 Act – that there has been a deterioration in the worker’s condition resulting in increased impairment - but only under s 327(3)(d) – that the AMS made a demonstrable error. It is inevitable that
Mr Domathoti’s cognition will be impaired while under the influence of alcohol but that does not mean that the AMS erred in assessing him in class 1 based on his presentation on the day of the assessment.The assessment in Class 1 was open to the AMS and a valid exercise of his clinical judgement.
Employability
The AMS gave reasons for the assessment of Mr Domathoti in Class 2 for Employability:
“Mr Domathoti said he is unable to leave his house and cannot deal with crowds and therefore could not manage to be in a workplace. He has completed an online university degree which was conferred on 14 August 2020. In my opinion he is able to work full time in a different position. He is mildly impaired.”
The comments made above with respect to procedural fairness and an alleged deterioration in Mr Domathoti’s condition also apply to the submissions on employability.
Mr McManamey submitted that when the AMS assessed Mr Domathoti’s employability he should have considered the impact on his concentration and restrictions on travel. That course was not open to the AMS. In Ballas v Department of Education (State of NSW)[7] Bell P and Payne JA said[8]:
“Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to ‘social and recreational activities’ on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
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’, ‘travel’, ‘social functioning (relationships)’, ‘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 for an injured worker’s entitlement to compensation.”
[7] [2022] NSWCA 86.
[8] At [93]-[94].
In any event, the AMS assessed Mr Domathoti as having only a mild impairment with respect to travel and no appeal is brought in respect to that assessment.
The AMS accepted that Mr Domathoti suffered a mild impairment because he could not be in a workplace. The reasons by the AMS given place Mr Domathoti squarely in Class 2.
The assessment does not disclose error. Noting the prevalence of working from home since the commencement of the COVID-19 pandemic and Mr Domathoti’s previous experience in the IT industry, that assessment was appropriate.
Social functioning
The AMS gave the following reasons for an assessment in Class 2:
“Mr Domathoti had separated from his second wife prior to his work injury. He said he gets on well with his daughter in Estonia; they communicate for an hour twice weekly by Skype. He describes a good relationship with his daughter in America. He communicates with his ex-wives via email. He currently does not have a partner. His circle of friends is reduced but he receives significant help from friends.”
There is little information in the file about Mr Domathoti’s pre-injury level of social functioning. Some of the reports say that he maintains contact with his brother in Sydney. He lives in a rural area but he moved there before the injury. He maintains relationships with his daughters and friends drive him to Albury for his appointments with Dr Sowden.
Based on the history the AMS obtained, the assessment was open to him. The ground of appeal is essentially that a different assessment should have been made. As stated in Ferguson and Parker, that is insufficient to ground an appeal.
Submissions were again made with respect to procedural fairness and an alleged deterioration, as with respect to the PIRS Tables discussed above. Our previous comments are relevant to determination of the appeal with respect to social functioning.
The AMS afforded Mr Domathoti an opportunity to provide relevant information over a longer than usual interview. The assessment in Class 2 for Social functioning was open to the AMS in the exercise of his clinical judgement.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 January 2021 should be confirmed.
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