Electrical Home Aids Pty Ltd v Kumar
[2024] NSWPICMP 38
•29 January 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Electrical Home Aids Pty Ltd v Kumar [2024] NSWPICMP 38 |
| APPELLANT: | Electrical Home-Aids Pty Ltd |
| RESPONDENT: | Kamal Kumar |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 29 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for loss of impairment resulting from a primary psychological injury; employer appealed the Psychiatric Impairment Rating Scale categories of social and recreational activities, concentration, persistence and pace and employability; Medical Assessor erred in assessment of concentration, persistence and pace; no error in assessment of social and recreational activities and employability; worker re-examined and assessed as class 2 for concentration, persistence and pace; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 31 July 2023 Electrical Home-Aids Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr John Lam-Po-Tang, a Medical Assessor, who issued an Amended Medical Assessment Certificate (MAC) on 4 July 2023.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).
RELEVANT FACTUAL BACKGROUND
The respondent, Kamal Kumar (Mr Kumar) developed a primary psychological injury in the course of his employment with the appellant as a sales team member.
The appellant commenced proceedings in the Personal Injury Commission (Commission) claiming 24% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 18 August 2020.
The matter was listed for hearing in the Commission before Member Burge who issued a Certificate of Determination on 28 March 2023. Member Burge made the following orders:
“1. The applicant suffered a psychological injury in the course of his employment with the respondent with a deemed date of injury of 18 August 2022.
2. The injury referred to in [1] above was not caused by the respondent's reasonable actions with respect to performance appraisal, transfer and/or discipline.
3. The claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from the following:
Date of injury: 18 August 2020 (deemed).
Body systems: psychological injury.
Method of assessment: whole person impairment.
4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following:
(a) this Certificate of Determination and Statement of Reasons;
(b) Application to Resolve a Dispute and attachments;
(c) Reply and attachments, and
(d) respondents Application to Admit Late Documents dated 14 February 2023.
5. The surveillance film attached to the Reply is not to be referred to the Medical Assessor.
6. The claims for weekly benefits and medical and treatment expenses are adjourned to a date after the issuing of the Medical Assessment Certificate.”
The Medical Assessor examined Mr Kumar on 5 June 2023. The Medical Assessor assessed 15% WPI as a result of the injury deemed to have occurred on 18 August 2020.
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 Workers Compensation Medical Dispute Assessment Guidelines 2019.
The appellant did not request that Mr Kumar be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for Mr Kumar to undergo a further medical examination because there was an error in the MAC and insufficient evidence on which to make a determination.
EVIDENCE
Documentary 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.
Further medical examination
Medical Assessor Michael Hong of the Appeal Panel conducted an examination of Mr Kumar on 18 January 2024 and reported to the Appeal Panel.
Medical Assessment Certificate
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.
The appellant’s submissions include the following:
(a) the MAC contained a demonstrable error (s 327(3)(d) of the 1998 Act) as the Medical Assessor incorrectly classed Mr Kumar’s impairment in categories of the psychiatric impairment rating scale (PIRS) of social and recreational activities, concentration, persistence, and pace and employability. The assessment was therefore made on the basis of the incorrect criteria.
(b) Social and recreational activities – the Medical Assessor assessed Mr Kumar in class 3 of the PIRS for social and recreational activities.
(c) The Medical Assessor was provided with surveillance reports dated 30 September 2022 (page 225 of the Reply to the Application to Resolve Dispute (ARD) dated 22 December 2022 (the Reply)) and 18 October 2022 (page 240 of the Reply). These reports demonstrated Mr Kumar out of his home on several occasions without a support person.
(d) Mr Kumar conceded as much in his statement dated 2 November 2022 (p 484 of the ARD) when he responded to the surveillance material of 7 October 2022. He stated: “I dropped my wife to the station, went to the shop as my wife asked me to grab box of onion for home. Around 11:30 went to shop with some plastic buckets and entertaining the neighbourhood kids. Around 3:20 I left back home”.
(e) This statement demonstrated Mr Kumar’s ability to interact and engage in social activities, without a support person. Furthermore, his ability to go out and interact was not limited to his employment activities but includes the ability to interact with people to whom he was not related and for a period of four hours at a time. Such activity was not consistent with a moderate impairment (class 3) but rather was consistent with a mild impairment (class 2).
(f) The Medical Assessor incorrectly applied the Guidelines. The MAC contained a demonstrable error, as the material and information provided to the Medical Assessor, as well as the history taken by the Medical Assessor supported a class 2 impairment.
(g) Concentration, persistence, and pace – the Medical Assessor assessed Mr Kumar in class 3 of the PIRS for concentration, persistence, and pace.
(h) The Guidelines provided the following at 1.6: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information…”.
(i) The Medical Assessor’s comments suggested that Mr Kumar presented on the day of assessment as being to maintain concentration for a period of 105 minutes.
(j) In line with the Guidelines, the way Mr Kumar presented on the day of assessment, should be considered over the subjective impairment reported by Mr Kumar.
(k) On page 16 of the MAC, the Medical Assessor noted that :
“According to the surveillance reports, Mr Kumar has been able to work in his own retail business for several hours per day, multiple times per week, including interacting with customers, interacting with staff, undertaking training and undertaking administrative procedures”.
(l) The surveillance reports supported that Mr Kumar had the capacity to undertake a basic retraining course. Further, the surveillance reports provided an objective demonstration of Mr Kumar’s ability to function effectively, which was demonstrably inconsistent with his subjective self-reporting.
(m) As such, the Medical Assessor incorrectly applied the Guidelines. The MAC contained a demonstrable error, as the material and information provided to the Medical Assessor, the history taken by the Medical Assessor and the Medical Assessor’s own observations at the time of his examination supported at most a class 2 impairment.
(n) Employability – the Medical Assessor assessed Mr Kumar in class 3 moderate impairment for employability.
(o) The following inconsistent history was provided by Mr Kumar when discussing his employment activities: “He said that the business is rarely open nowadays, as he no longer employs staff. He stated he is not ordering any goods for the store…” (page 7 of the MAC). “…Mr Kumar initially referred to the grocery business in Hurstville in the past tense”. He added, “The shop is closed, like locked”, but on further questioning added, “Sometimes stuff is coming”, stating at times the business will open for a couple of hours. He added, “I don’t visit at all…we are not ordering anything because we can’t afford staff” (page 8 of the MAC). When asked if he had spent around two and a half hours in the shop in late September 2022 Mr Kumar replied “in my shop? Never.” When asked if he had provided training for staff regarding operation of a coffee machine, he specifically denied doing so, even when advised that the surveillance footage seemed to indicate that he did so. (page 8 of the MAC).
(p) The surveillance reports dated 30 September 2022 (page 225 of the Reply) and 18 October 2022 (page 240 of the Reply) indicated that Mr Kumar spent several hours at a time at the premises, on more than one occasion. Mr Kumar indicated to the Medical Assessor that this was incorrect.
(q) The Medical Assessor noted, on page 11 of the MAC:
“Notwithstanding Mr Kumar’s assertation that he was never present in his business for the time period stated in the surveillance reports, his presence on several occasions, as documented in these reports led to this information being the preferred source of evidence when assessing his function in the employability domain”.
(r) The Medical Assessor referred to the financial documentation provided, noting, on page 7 of the MAC, that “…the accompanying documentation indicates the existence of a business, Tradepals Group Pty Ltd, operating from the 2017-2018 financial year onward”’.
(s) Despite the above, the Medical Assessor had not fully appreciated the substantial financial records provided (from page 7 of the Application to Admit Late Documents dated 14 February 2023 (the AALD)), including Mr Kumar’s personal (as opposed to business) bank accounts (from page 283 of the AALD). These document payments which were clearly related to the operation of his business including payments to wholesale grocery suppliers between 14 December 2021 and 14 January 2022.
(t) Furthermore, the Medical Assessor has not appreciated the relevance of the Automated Teller Machine (ATM) deposits into Mr Kumar’s personal bank account held with St George (from page 499 of the AALD) on a frequent basis from 20 July 2020 through to 11 July 2022 when statements in respect of that account cease. These payments continued virtually on a weekly basis of between $450 and $1,300 and up to $1,350.
(u) Mr Kumar’s personal bank account statement, at page 540 of the AALD for the period 12 July 2022 to 11 January 2023 documented cash deposits of $17,685, which equated to an average of $680.19 per week.
(v) The above provided a strong evidentiary basis to suggest that contrary to Mr Kumar’s strident objections, and consistent with the surveillance materials which were made available to the Medical Assessor, Mr Kumar was indeed working in his grocery business, and he was being paid cash by business into his personal bank account.
(w) The duties of such employment activity specifically in a retail environment require comparable skill and intellect as those of Mr Kumar’s pre-injury role. Indeed, noting Mr Kumar was the sole director of TradePals Pty Ltd, it was likely that Mr Kumar’s role required greater skill and intellect, as it required him to order stock, recruit, train and roster staff, balance the tills and record keeping. The evidence before the Medical Assessor was not consistent with a moderate class 3 impairment for employability, but rather was consistent with a class 2 mild impairment at most.
(x) As such, the Medical Assessor has incorrectly applied the Guidelines and the MAC contained a demonstrable error, as the material and information provided to the Medical Assessor, as well as the history taken by the Medical Assessor supported a class 2 impairment.
(y) The Amended MAC on 4 July 2023 should be set aside. The Medical Appeal Panel should issue a MAC which correctly classes Mr Kumar’s impairment in accordance with the Guidelines,
Mr Kumar’s submissions include the following:
(a) the appellant’s challenge to the Medical Assessor’s findings was that the Medical Assessor made a mistake as to his clinical findings and so to the scores he allocated to the challenged PIRS classifications. Such submissions must fail as the determination of a PIRS score after clinical examination and reasons given for that score are not appealable (Petrovic v BC Serv No 14 Pty Ltd [2007] NSWSC 1156).
(b) Social and recreational activities – the appellant submitted class 2 was appropriate as Mr Kumar had left home by himself on several occasions. However, nowhere was it suggested that Mr Kumar had attended social or other recreational events by himself. Going to the shops was not a “social event” as defined in class 2.
(c) The Medical Assessor took a clear history of the social events that Mr Kumar no longer attended and why he does not attend, namely, that he “doesn’t want to answer questions about his injury or the current work situation”. His trip to India was also discussed.
(d) Mr Kumar was questioned in detail about the findings in the surveillance reports and the Medical Assessor clearly considered this material when coming to his clinical judgment when allocating scores for the various PIRS categories.
(e) On the evidence available to the Medical Assessor, the requirements for a class 3 in social and recreational activities and the Medical Assessor’s reasoned allocation of a class 3 score was appropriate.
(f) Concentration, persistence and pace – the appellant relied on the statement that Mr Kumar could maintain concentration for the 105 minutes of the Medical Assessor’s examination ignored the Medical Assessor’s finding that Mr Kumar had an impairment of his ability to concentrate as set out in the MAC, namely, an inability to read more than two pages and store and process information from that treading. If this finding was accepted without the note that Mr Kumar maintained concentration throughout the Medical Assessor’s interview, then a score of 4 would be more appropriate as Mr Kumar would not be able to concentrate for more than 30 minutes on any task. Clearly the Medical Assessor in his clinical judgment found a score of 3 was appropriate. There is no basis to alter the score assessed.
(g) Employability – there was no evidence that Mr Kumar could do his preinjury work in a different setting. Class 2 was not appropriate. As to the evidence that Mr Kumar was able to do the duties of a shop keeper, the appellant referred to financial records only over a three month period and these were consistent with the history given to the Medical Assessor when he questioned Mr Kumar about the records and Mr Kumar denied working in the business. Mr Kumar did admit that he went to the business to help staff clean up mess, that he arranged the sale of material to other shop keepers and confirmed that he had not worked for 2.5 hours in the shop on one occasion in September 2022. The financial material did not show Mr Kumar conducting a business over a prolonged period or that he was ordering stock and paying for it over a prolonged period. There was no evidence that the business account was operated exclusively by Mr Kumar and the evidence of Mr Kumar was that his wife was paying bills. The payments into his personal account were just that and did not indicate any complex business activity by themselves.
(h) It was clear that the Medical Assessor did not accept Mr Kumar on his stated inability to work in his shop and accepted the evidence presented in the surveillance report.
(i) It was on clinical examination of Mr Kumar, detailed questioning of Mr Kumar on the surveillance material and his assessment of what work Mr Kumar can now do that the Medical Assessor concluded that a class 3 was warranted.
(j) There was no evidence or reason to alter the Medical Assessor’s score of 3 in this PIRS category.
(k) The appeal does not disclose any ground of appeal and should be dismissed.
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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 the form of the words used in s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
Discussion
PIRS categories
The appellant alleged error in respect of the assessment of the PIRS categories of employability.
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
In Ferguson v State of New South Wales & Ors [2017] NSWSC 887, Campbell J stated (at [33]):
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS: ‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.”
Campbell J in dealing with whether there was error in the application of the categories and classes of the PIRS identified the following as relevant:
(a) was the categorisation glaringly improbable;
(b) was the Approved Medical Specialist (AMS) unaware of significant factual matters;
(c) was there a clear misunderstanding by the AMS, and
(d) was the AMS’s reason process unable to be made out?
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“66. In relation to Classes of PIRS 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…
70. 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.
71. 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…”
In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 (Jenkins) Garling J ultimately observed that the classes in the PIRS were merely examples of activities that indicate an assessable level of disability and significantly that the boundaries between the classes are not “bright line boundaries” (at [62]-[65]). Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
Earlier in Jenkins Garling J made the following observations with respect to the assessment process before the AMS:
“52. Chapter 1 of the WorkCover Guides is a general description to those in the position of an AMS as to how to apply the Guides. Of particular importance in clause 1.5(a) is the statement which notes that assessing permanent impairment involves clinical assessment on the day of assessment.
53. A clinical assessment of a claimant is one, but not the only, method of accumulating information about a claimant. Clearly, other medical reports about the claimant’s condition, histories obtained from independent observers such as members of the claimant’s family, and histories obtained from the claimant themselves, either in the past, as contained in medical reports, or in the process of a consultation, are all matters which are legitimately able to be taken into account.
54. Clause 1.13 of the WorkCover Guides cannot reasonably be read in the way contended for by the plaintiff. A reasonable reading of that clause underlines the usual process engaged in by a medical expert when assessing the presenting condition, the diagnosis, and the severity of the condition which is being presented. Clause 1.13 requires medical specialists to exercise their clinical judgment. Whilst it is correct to say that the words in the following sentence in clause 1.13 require the medical expert to determine a degree of permanent impairment ‘… using the tables, graphs and methodology given …’, that does not mean that clinical judgment or assessment has no role to play in that process of determination of the degree of permanent impairment.
55. Particularly with the assessment of psychiatric or psychological impairment, so much, in my view, is self evident. There is no objective method by which the extent of a psychiatric impairment can be measured, unlike the objective measurement of a restriction on a degree of movement in an upper limb, by way of example, or an objective, and measurable, assessment of the extent of loss of hearing or eyesight.
56. In assessing the extent of a psychiatric impairment, the WorkCover Guides require the AMS to determine from all of the material at their disposal, whether, in respect of each functional area, the degree of impairment fits into one of the classes which range from no impairment to total impairment.
57. The submission of the plaintiff that, in assigning a class of impairment to each scale, the AMS is restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum, cannot be accepted."
In Ballas v Department of Education (State of NSW) [2019] NSWSC 234 8 March 2019 Wright J observed:
“69. ...the PIRS categories are as described in the Guidelines and are to be applied as required by the Guidelines. Because of their generality and the generic nature of the words used and examples given, however, application of the categories in accordance with the Guidelines involves the AMS using his or her professional expertise and judgment in the light of the clinical examination and any relevant history.”
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Social and recreational activities
The appellant submitted that the MAC contains a demonstrable error, as the material and information provided to the Medical Assessor, as well as the history taken by the Medical Assessor supported a class 2 impairment for social and recreational activities. The appellant referred to the surveillance reports dated 30 September 2022 and 18 October 2022 and submitted that these reports demonstrated Mr Kumar went out of his home on several occasions without a support person.
Mr Kumar conceded responded to the surveillance material of 7 October 2022. He stated:
“I dropped my wife to the station, went to the shop as my wife asked me to grab box of onion for home. Around 11:30 went to shop with some plastic buckets and entertaining the neighbourhood kids. Around 3:20 I left back home”.
The appellant argued that this statement demonstrated Mr Kumar’s ability to interact and engage in social activities, without a support person.
The examples under Table 11.2 for “Social and recreational activities” in the Guidelines are:
“Class 2: Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3: Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4: Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.”
Clause 11.11 of the Guidelines classified social and recreational activities as an activity of daily living.
Under “Social activities/ADL” in the MAC, the Medical Assessor wrote;
“Mr Kumar advised he does not undertake exercise or participate in sports commenting, ‘No I don't feel to go anywhere… I have fear to see anybody, they may ask me so many types of questions’ if he were to play cricket. He explained that in the past he used to play a friendly game of informal cricket on Sundays with friends. Mr Kumar stated he no longer follows sports commenting, ‘Cricket, I love cricket, I was playing cricket … maybe every fortnight we would go to play. I stopped in 2019, all these things, it's about four years now’.
Mr Kumar stated he does not visit friends much, nor do friends visit him. He stated he was anxious about being asked questions in relation to his work situation. He states he has two sisters in Sydney, and when asked if he sees them he replied, ‘Not really, because I don't feel like meeting people at this moment’. When asked to estimate when he last caught up with one of his sisters he replied, ‘Maybe a year ago’.
...
Mr Kumar stated he is of the Hindu faith, but when asked about religious participation replied, ‘Before I was going there very often, maybe once a week… but now I'm tired of all the questions people asked me… and I cry’. He estimated he last attended temple three years prior to the IME”.
The Medical Assessor assessed the appellant as class 3 for social and recreational activities. In the PIRS Rating Form, the Medical Assessor wrote:
“Social and recreational activities - Class 3
Mr Kumar reported no current recreational activities, advising he no longer played informal cricket with friends.
Mr Kumar said he no longer socialised with friends, and no longer visited people at their homes, or hosted them at his place.
Mr Kumar advised he no longer attended a temple on a regular basis, due to his anxiety.”
The surveillance reports from the Procare Group dated 30 September 2022 and 18 October 2022 concerned surveillance conducted on 27, 28 and 29 September 2022 and 6, 7 and 8 October 2022.
The first surveillance report dated 30 September 2022 noted that on 27 September 2022 Mr Kumar drove to Regent Steet, Kogarah, where he was seen inside Patel Supermarket Kogarah conversing with a male. He later went to the Sharma store and then at 11.46am, went to his business where at 12.31pm, he was seen inside the store working, assisting with customer service and conducting the stocktake. Mr Kumar left at 2.46pm and drove home. On 28 September 2022 Mr Kumar dropped a female off at the train station in Hurstville. He briefly looked at his business before departing the area and going home. On 29 September 2022 Mr Kumar dropped the known female off at the train station and then briefly checked his shop upon arrival and before going home. At 9.40am, Mr Kumar returned to his shop and was seen accepting a large delivery and assisting physically with unpackaging the items. Mr Kumar left the shop at 9.53am and returned to his home until 12.00pm, when he proceeded to his shop again. Over the next 2.5 hours, he was seen carrying out various manual tasks such as repositioning the fridge whilst conversing with staff members. He then drove home.
The second surveillance report dated 18 October 2022 noted that on 6 October 2022 Mr Kumar dropped his partner off at the train station and then proceeded to briefly attend The Big Bazaar in Hurstville where he obtained some small unknown items before going home. He returned to his business at 8.31am, where he remained for approximately 10 minutes before leaving with a box and briefly returning home. At 8.49am, he departed and proceeded to the Ingleburn Central Business District, where he attended the PCS Supermarket and conducted training for staff on a Chai Tea Dispenser for approximately 2.5 hours. He then returned home. On 7 October 2022 at 11.34am, Mr Kumar drove to his workplace and commenced serving customers throughout the day. At 3.20pm, Mr Kumar met with an older male and then Mr Kumar and the older male returned to Mr Kumar’s house. On 8 October 2022 Mr Kumar drove to his workplace and was seen throughout the day serving customers. At 2.15pm, Mr Kumar exited the store to retrieve a mop before cleaning the front of the store.
In his statement dated 2 November 2022, Mr Kumar commented on surveillance report in relation to 7 October 22 and stated: “I dropped my wife to the station, went to the shop as my wife asked me to grab box of onion for home. Around 11:30 went to shop with some plastic buckets and entertaining the neighbourhood kids. Around 3:20 I left back home”.
Dr Graham George in a report dated 19 January 2023 reviewed the surveillance report and videos and wrote:
“The video evidence suggests that Mr Kumar has capacity to drive a car independently and also, to venture outside his house, both with and without his wife. He does have a capacity to interact with other people as is demonstrated in the video. The video does demonstrate a capacity to interact socially with others. Whether visiting a shopping centre and going to a particular outlet constitutes recreational activity would be open to question”.
Dr Christopher Canaris in a report dated 3 August 2021 assessed the appellant as class 3 for social and recreational activities. He provided the following reasons:
“He does not do anything socially and he has not been out for ‘more than one a half years’. He does not venture out and even when pushed by his wife often will want to go home. She tries to take him to friends' home or to the park.”
The Appeal Panel reviewed the evidence. Mr Kumar had stopped playing cricket, going to temple and visiting friends. Attending his shop and going to shops are not recreational activities and therefore not relevant to assessment in this class. Although Mr Kumar had entertained some neighbourhood children on one occasion, the Appeal Panel considered that a rating of class 3 was open to Medical Assessor when looking at all of the evidence. In particular, there was no evidence that Mr Kumar went to social events on his own.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of class 3 for social and recreational activities.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS categories of social and recreational activities and the assessment in this class was not made on the basis of correct criteria. The categorisation of class 3 for social and recreational activities was not glaringly improbable; the Medical Assessor was not unaware of significant factual matters, there was no clear misunderstanding by the Medical Assessor and his reasoning process was sufficiently clear.
Concentration, persistence and pace
The appellant submitted that the Medical Assessor incorrectly applied the Guidelines and the MAC contained a demonstrable error, as the material and information provided to the Medical Assessor, the history taken by the Medical Assessor and the Medical Assessor’s own observations at the time of his examination support at most a class 2 impairment.
The examples under Table 11.5 for “Concentration, persistence and pace” in the Guidelines are:
“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.”
Under “Present symptoms” the Medical Assessor wrote:
“Mr Kumar advised that he was able to recall biographical details and that his long-term memory was relatively intact. By contrast, he commented of his short-term memory, ‘I don't remember so many things… I will read a page and forget’. By way of example, he stated that he last read any printed material two weeks prior to the IME and that he was able to read ‘not more than five minutes, and I get bored. I can't continue’. He stated he has misplaced personal effects such as glasses”.
Under “Social Activities/ADL” in the MAC the Medical Assessor noted:
“Mr Kumar stated he does attempt reading at times but added, ‘Sometimes I do reading, but unfortunately I can't remember what I'm reading… I go to one page, then the second page, then I forget’. He stated he does not watch movies”.
Under “Current level of function”
“Mr Kumar states he is able to use a mobile phone, and said he will use this to call his general practitioner and solicitor. After a pause, he stated he also used his phone to contact his wife. He states he does not use the internet, and does not have access to a computer or tablet device at home. He stated he does not have any social media accounts. He explained that the household no longer has a television since he broke it eight to nine months prior to the IME. He states he has his own bank account, but as he has no income, his wife pays and organises the household bills”.
Under “Findings on physical examination”, the Medical Assessor noted:
“Mr Kumar’s speech was spontaneous, fluent, and normal in rate and volume. At times he did speak slower and at other times there was modulation of volume of speech, within normal limits. There was no consistent increased latency of response. His affect was restricted in range, in that he rarely smiled. He was not labile or tearful on any occasion, and his affect was congruent with subject matter. He described his mood as depressed, anxious and irritable. Objectively he presented as depressed and anxious, but did not present objectively as irritable, elevated or apathetic in mood. Mr Kumar's thoughts were logically and sequentially organised, with no formal thought disorder. No delusional thought content was expressed or elicited. He spontaneously reported regrets about the burden he was placing on his wife. He was alert and oriented, with no fluctuation in level of consciousness. He did not appear drowsy”.
The Medical Assessor assessed class 3 in relation to concentration, persistence and pace noting:
“Mr Kumar reported subjective impairment in concentration, interfering with reading.
Mr Kumar was able to maintain concentration during the assessment, which lasted 105 minutes.”
Dr Graham George in a report dated 19 January 2023 reviewed the surveillance report and videos and wrote:
“I believe that the surveillance material demonstrates that Mr Kumar can drive a car independently and focus his attention and concentration whilst driving.
He has demonstrated reverse parking a car in quite a tight parking space, and he is shown carrying out the necessary corrective procedure to park the car almost perfectly”.
Dr Christopher Canaris in a report dated 3 August 2021 assessed the appellant as class 3 for concentration, persistence and pace. He provided the following reasons:
“His concentration is poor and while he might try to listen to music to pass the time is no longer interested in watching the news or seeing movies. He once enjoyed watching cricket or soccer but now takes no interest. He no longer reads and whereas once he enjoyed searching his way through the internet now no longer feels like doing this”.
The Appeal Panel reviewed the evidence and found that there was an inconsistency between findings on clinical examination, in particular, the ability to focus for 105 minutes, and a rating of class 3. The Appeal Panel considered that the reasoning process for assessing Mr Kumar as class 3 in this category was unable to be made out.
The Appeal Panel considered that the Medical Assessor fell into error when assessing
the appellant as class 3 in the category of concentration, persistence and pace.
Employability
The appellant submitted that the evidence from the surveillance report and bank records provided a strong evidentiary basis to suggest that Mr Kumar was working in his grocery business, and he being paid cash by business into his personal bank account. The appellant argued that the duties of such employment activity specifically in a retail environment require comparable skill and intellect as those of Mr Kumar’s pre-injury role and the evidence before the Medical Assessor was not consistent with a moderate class 3 impairment for employability, but rather was consistent with a class 2 mild impairment at most.
The examples under Table 11.6 for “employability” in the Guidelines are:
“Class 2: Mild impairment: able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3: Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4: Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.”
The Medical Assessor assessed the appellant as class 3 for employability. In the PIRS Rating Form, the Medical Assessor wrote:
“Employability - Class 3.
Mr Kumar advised he has not worked in his substantive position at Godfrey's for over two years.
According to the surveillance reports, Mr Kumar has been able to work in his own retail business for several hours per day, multiples days per week, including
interacting with customers, interacting with staff, undertaking training and undertaking administrative procedures.”
Dr Canaris in his report dated 3 August 2021 assessed the appellant as class 5 for employability. He provided the following reasons:
“He is apparently still on the books at Godfreys. However, he is afraid that he will encounter the same problems if he goes. back. He would like to work but lacks the requisite confidence and is afraid of what bosses or colleagues might do saying he had once been a well-regarded employee. He worries that he may be treated the same way elsewhere because he is an Indian.”.
Dr Graham George in a report dated 18 October 2022 expressed the opinion that Mr Kumar had no psychiatric disorder at the time of examination on 15 November 2022. Dr George noted that his initial diagnosis in his report of 6 November 2020 was that Mr Kumar had an adjustment disorder. However, he noted: “When I saw him on the last occasion, I was not able to diagnose any psychiatric disorder”.
Dr George saw no reason why Mr Kumar could not return to his pre-injury duties because of ye fact that he had not diagnosed him with an ongoing psychiatric disorder. Dr George did not believe that Mr Kumar had any incapacity, either total or partial, as a result of the work injury.
Dr Graham George in a report dated 19 January 2023 reviewed the surveillance report and videos and wrote:
“I do not believe that I can comment with any authority on the surveillance material in respect of the section of adaptability and employability related to Mr Kumar from the surveillance material provided”.
The Appeal Panel reviewed the evidence. Mr Kumar was working limited hours in his shop on some days of the week. There was no evidence that Mr Kumar was working full time in his business. Indeed, from the surveillance reports, Mr Kumar appeared to be working less than 20 hours a week and worked some hours some days. The Appeal Panel accepted that Mr Kumar was paid some money over a year ago but there was no evidence as to who operated his accounts apart from his statement that his wife was paying the bills.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of class 3 for employability.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS categories of employability and that the assessment in this class was not made on the basis of correct criteria. The categorisation of class 3 for employability was not glaringly improbable; the Medical Assessor was not unaware of significant factual matters, there was no clear misunderstanding by the Medical Assessor and his reasoning process was sufficiently clear.
In view of the inconsistencies in the assessment of concentration, persistence and pace, the Appeal Panel considered that it was necessary for Mr Kumar to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above, Medical Assessor Michael Hong re-examined the appellant on
18 January 2024. Medical Assessor Hong provided the following report:“• Update history of the incident/onset of symptoms and of subsequent related events, including treatment:
I discussed with Mr Kumar the Appeal and explained that the Panel had a set of questions to ask. His wife was present during the assessment, which took one hour by video.
I checked the detailed history in the MAC from Dr John Lam-Po-Tang, and confirmed this was an accurate account of his work injury. Mr Kumar commenced work at Godfreys in July 2018. In July 2019, a new area manager was appointed whose responsibility included the Miranda store, where Mr Kumar worked. After the new area manager was appointed, changes were made to his shifts. The new manager changed the location of his workplace on multiple occasions. He was criticised by the manager in front of other staff. HR supported the manager and did not help him. He was increasingly distressed. The Performance improvement plan was discussed. In early 2020, Mr Kumar and his wife opened a grocery store in Hurstville when he was still working for Godfreys. In the second half of the same year, he saw his GP and commenced psychological/psychiatric treatment. He ceased working at Godfreys in August 2020.
He described ongoing chronic anxiety and depressive symptoms since and said that he had been suicidal because he is being triggered with ongoing accusations, and because of the high cost of living, and they are surviving on his wife's income only. They are behind in rent and he has been feeling very stressed.
I discussed the bank statements and the surveillance material. I asked him whether he had known about these, given that these were raised in the appeal and his solicitor had responded to them, and he said that he was aware of these.
He said that he has never interacted with customers, staff members or tradespeople, did administration work at the grocery store, or provided instructions to staff. I noted these were inconsistent with some of the photos.
I discussed the Appellant’s submission regarding the surveillance material and noted his responses, and asked him whether it was true that he went to his Hurstville grocery store for a few hours, a few times a week at the time of the surveillance photos. He said that he does not remember what happened as it was so long ago. I agreed it was difficult to remember details from a long time ago. I discussed the surveillance material in detail to help him remember. I read all the relevant entries to him, then went back and asked about each entry individually for clarification.
He confirmed the grocery store opened in August 2020 and his wife works there and she also has a casual job. They have one female staff member and he said he does not work at the store. He said that one day there was heavy rain and it was a natural disaster and there were leakages in the store. His wife could not go, so she asked him to go to help mop up and remove the water from the store. He said other times he would go to the store because his wife has said to bring groceries home, but only if his wife insisted.
I asked Mr Kumar how long he would stay at the store and he said he could not remember, maybe a few minutes or up to half an hour. He does not know how often he has gone to the store in a week around the time of the surveillance, and said that it would not be a couple of times a week as suggested by the insurer. He said he had gone there to clean up water leakages, maybe a couple of times and only because his wife could not go.
Mr Kumar went on to tell me that the grocery store is losing money and the landlord does not permit them to sell it because they are behind in the rent. They had previously tried to sell it.
He went on to tell me that he cannot remember what happened yesterday or things that happened two minutes ago. He therefore has some difficulty with some of the questions.
We discussed the surveillance photos in September 2022 and October 2022. Mr Kumar said he went to close the store because his wife asked him to. He confirmed that he opened the shop because his wife asked him to do it and he said he does not work there. He said his wife asked him to bring food home from the grocery store so he goes and closes the store and brings something home.
We discussed the photo regarding the delivery and he said that he asked the driver to put the stock in the shop and then closed the shop and he attended to the paperwork.
Regarding the surveillance when he was in front of the fridge for about 40 minutes with a female staff member, he said that was when the water had come in and he had to go and clean and mop up.
I asked him about what appears to be moving things around the shelves, and he said he was not doing any work and cannot remember other information.
I asked Mr Kumar about going to a store in Ingleburn and he said that their store had a coffee machine or drink dispenser that broke and that it was a good machine because it attracted customers. His wife insisted that he went to Ingleburn where another shop had the same machine, so he could find out how to repair it. He said he was only there for about 20 minutes and he could not learn how to do it. I discussed with Mr Kumar that it appeared that he arrived at 9.47 am, then there was a man who was helping him with the machine at 10.36 am, and he appears to be removing the cartridge and dispensing product from it and he was still at the machine at 11.46 am in the photo, and then he left and went back to his own store.
We also discussed the footage from a different day that showed him carrying bags and driving to different places and at one point interacting with a female with a small child, and appeared to be playing with the child.
I asked him about his bank statement and regular cash deposits. He said the cash deposits were made by his wife and were not related to the grocery store. He said that they had people renting parts of their property, usually students, and in the past, they have had four tenants, currently two, and they would stay for four months and sometimes six months. They pay in cash and he stated that is why they had cash deposits. I asked him why the deposits were different every week (and noted several were for $450), even though the students were there for four to six months, and he said they only deposit enough cash to cover their own rent and car loans, even though they may take in more cash rent money in that week. He said that he did not make deposits, it was his wife who deposited all the cash into his account where money is automatically deducted by the bank.
I asked him about the cash income from the store and he said that they do not have any cash income from the store and it is all card transactions, and he said I can refer to his tax return for this. I noted to him that it is unusual that there are no cash payments in a grocery store.
· Present symptoms:
Aside from chronic depression and anxiety, he said he had been irritable and arguing with his wife and their relationship is not good. He finds it hard to sleep and he feels like a burden and said ‘what is the use of my life?’. He feels suicidal. He said he cannot work and cannot play and spends most of his time at home.
1. FINDINGS ON PHYSICAL EXAMINATION
Mr Kumar was assessed by video. He was at home and his wife Kowsalya Shyam Sundar was present during the assessment. The assessment took 60 minutes.
Mr Kumar was bespectacled and had short greying hair and a full beard, and wore a tee shirt. There was no psychomotor slowing or abnormal movements. He was mildly restricted in his affect range and reactivity. He spoke spontaneously and readily. He was not thought disordered.
He was attentive and polite. He remained focused throughout the assessment. There was no set-shifting impairment. He maintained a steady pace.
2. SUMMARY
It is difficult to obtain a clear explanation regarding the surveillance material and the bank statements. The Panel accepted that he has some cognitive problems and these activities happened a long time ago.
Overall, the evidence does suggest that Mr Kumar was doing some tasks that would be considered productive or work-like at the store, and whilst he has concentration problems, he was nevertheless able to focus on learning about repairs of the drink dispenser for more than half an hour. This is consistent with his presentation on the day of the assessment with Dr John Lam-Po-Tang, whose observation on mental state examination that there was no evidence of overt cognitive problems. Dr Hong noted he did not present with overt cognitive difficulties and focused well during the assessment. The Panel also noted his presentation was not consistent with his assertion that he could not remember things from two minutes ago.
Overall, his concentration, persistence and pace is consistent with 2, mild impairment and not consistent with moderate impairment. He can engage in intellectually demanding tasks for up to 30 minutes and more. He could follow complex instructions during the assessment with Dr Hong and therefore 3 cannot be supported.”
The Appeal Panel has adopted the report and findings of Medical Assessor Hong. The Appeal Panel agreed that while Mr Kumar has some concentration problems, there was no evidence of overt cognitive problems or evidence of moderate impairment in concentration, persistence and pace. Mr Kumar was able to focus well in both the assessment by Medical Assessor Hong and the assessment by the Medical Assessor. The Appeal Panel agreed with Medical Assessor Hong that Mr Kumar could engage in intellectually demanding tasks for up to 30 minutes and more and could follow complex instructions during the assessment by Medical Assessor Hong.
The Appeal Panel was satisfied that the assessment of class 3 for concentration, persistence and pace could not be supported by the evidence and assessed Mr Kumar as class 2 for employability.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS categories of social and recreational activities and employability. The Appeal Panel found that the assessment in the class of concentration, persistence and pace was not made on the basis of correct criteria and this was a demonstrable error.
The Appeal Panel agreed with Medical Assessor Hong that the PIRS scales score 331 223, ascending order 122 333 median 3, aggregate 14 so that the final WPI = 13%.
For these reasons, the Appeal Panel has determined that the MAC issued on
4 July 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W8034/22 |
Applicant: | Kamal Kumar |
Respondent: | Electrical Home Aids 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 Dr John Lam-Po- Tang 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) |
| 1.Psychological | 18.08.2020 | Chapter 11, page 6, | N/A | 13% | N/A | 13% |
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
0
7
0