Espana v Architectural Projects Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Espana v Architectural Projects Pty Ltd [2023] NSWPICMP 215
APPELLANT:	Frank Espana
RESPONDENT:	Architectural Projects Pty Ltd
Appeal Panel
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	22 May 2023
CATCHWORDS:	wORKERS cOMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in finding there was a class 2 in the Psychiatric Impairment Rating Scale (PIRS) in the categories of social functioning and concentration, persistence and pace when there should have been a finding of a class 3 impairment in both categories; Panel considered all of the evidence; Panel concluded that the MA’s assessment was consistent with all of the evidence; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 February 2023 Frank Espana (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 10 February 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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, no specific reasons were provided as to why this was necessary, and in any event, we consider that we have sufficient evidence before us to enable us to determine this appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the MA erred in finding there was a class 2 in the Psychiatric Impairment Rating Scale (PIRS) in the categories of social functioning and concentration, persistence and pace when there should have been a finding of a class 3 impairment in both categories.
In reply, Architectural Projects Pty Ltd (the respondent) submits that no errors were made.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychiatric/psychological injury resulting from a deemed date of injury of 9 February 2021.
The MA obtained the following history:
“Mr Espana has worked for Architectural Projects on two occasions, the first time between 2004 and 2007 and the second time between 2014 and February 2021. He reported that he was the architect and an associate of the company. He did architectural work on residential developments, and when the two directors were not present, he would be in charge and the workers would come to him, for example, if there were problems with the computers he would help them solve it.
He recalled that after school, he started architectural studies in Italy, but did not finish it. He subsequently returned and finished his university degree. He has done other work, for example in hospitality, and for three years he lived in Spain and he worked at the airport doing flight plans for the airlines.
He then joined Architectural Projects and left, he said because of the problem in the organization and he felt stressed. After he left, he did contract architectural work and also worked casually at the airport unloading aeroplanes, but said there was not really enough architectural contract work. He was then contacted by the Architectural Projects, and he thought by that stage they had improved, so he decided to go back there full-time.
Mr Espana described many issues when he returned to work there. He said that when he returned to Architectural Project, everything was a challenge. He was abused by the directors. He explained that as he is older, he would not accept some of the behaviour from the other workers and directors. He did not want to be blamed.
Mr Espana recalled suddenly three people from work pulled him aside and said they wanted him to leave, that he was being sacked. He recalled he froze and started crying, and felt ‘really weird’. He said that since then, his attitude towards society has changed.
I asked Mr Espana whether treatment has helped him and he said treatment does not seem to make any difference to his mental health. He was drinking one or two alcoholic beverages a day and stopped in October 2021, when he started antidepressant medication.”
After detailing Mr Espana’s current treatment regime, the MA then noted present symptoms as follows:
“He reported having chronically depressed mood.
He described having reduced concentration and memory.
Suicidal ideation has ceased.
He reported having lost weight and does not know how much.
He reported having sleep problems. He has poor sleep and explained he does not like his bedroom as it is too quiet and empty. He prefers to sleep in the lounge.
He has panic attacks. He has been irritable and socially withdrawn.”
The MA noted Mr Espana’s work history as follows:
“After Mr Espana left Architectural Project the second time in 2021, he said he had only done menial work. He told me that he applied for jobs but was not successful and his agent told him that one of his references was letting him down. He discovered who it was and realised that the people from Architectural Projects were sabotaging his future employment and making it difficult for him.
Mr Espana did some contract work until mid-2021. He said he was not doing much, sometimes there would be nothing and sometimes maybe up to ten contract projects in a month. He said that each project would only take maybe 15 or 20 minutes, and he would use a table to check compliance with the drawing, and certify it against the Development Application requirements before the developer would lodge it. He was working for Daiwa Company.
I discussed with Mr Espana the vocational assessment with the three jobs identified and he said he did not agree with the assessment. He does not believe he can do any work anymore.”
The MA then turned to the issue of the impact of the injury on Mr Espana’s social activities and activities of daily living (ADL’s) and said:
“Mr Espana is 57 years old and lives alone in an apartment. He has no partner and no dependants.
He said that he spends a lot of time in his apartment. He said he had always been interested in Japanese joinery as an architect and started to do some learning about hands-on carpentry work, and he set up a workshop on his balcony, but he said he is making a mess.
He said he has problems visualising and doing mental arithmetic now. I asked him what type of project he has been trying to make, and he said he has a glass table with a broken leg and he is trying to design a new base, but it is not very good and he is still learning and he is only doing this on-and-off.
He said he used to love cooking, but now he only makes very basic foods and not all the time. For example, he would heat up frozen pies or cook chicken breasts in the frying pan. He said he eats a lot of cold meat with bread because he is Spanish.
Mr Espana said he goes to the shops to buy things when needed, but only when it is quiet at the shops. He cannot stand the noise of the children at the shops. Mr Espana also described some unusual symptoms relating to his eyes and said he had been watching a documentary recently about ancient Egypt on YouTube, but he could not watch it because of flickering on the TV strained his eyes. He therefore lies down and only listens to it. Mr Espana said it is for the same reason he does not watch television anymore. He also said he has a very poor memory.
He reported he is not as jumpy as he used to be, but has become very sensitive to noise.
He has played the guitar for many years, on-and-off. He used to be in a band when he was at university and played rock, jazz and classical music. He still plays sometimes.
I asked Mr Espana about the things he did yesterday and he said he could not remember. With some difficulty he then said that he spent the whole day in the workshop, but this was not constant, and he was in and out and he slept and watched YouTube for maybe 5 to 10 minutes and did not remember any other activity.
Mr Espana said that normally he would ride his bicycle, but has stopped doing this. He does not have a car and relies on his motorcycle to go to different places. He used to love swimming, but he said he is not going frequently. He later said he goes three times a week, at the end of the day when there are not many people around. He told me that normally he could swim maybe 20 laps, but now he can barely do four laps due to anxiety attacks as he cannot breathe.
I asked Mr Espana whether he has contact with any friends, and he said he does not have contact with any friends anymore. He later confirmed that he has text contact with maybe three friends living in Parramatta and Newcastle. He may exchange texts with them maybe every two or three days.
Mr Espana said his psychologist, Natalia, asked him to go out with one of his friends so he went to have a beer at a bar in Parramatta and then it was busy and he left as he could not tolerate it.
He said he used to love cooking, but now he only makes very basic foods and not all the time. For example, he would heat up frozen pies or cook chicken breasts in the frying pan. He said he eats a lot of cold meat with bread because he is Spanish.
Mr Espana said he goes to the shops to buy things when needed, but only when it is quiet at the shops. He cannot stand the noise of the children at the shops.”
Findings on examination were reported as follows:
“Mr Espana was assessed by video…The assessment took 60 minutes.
Mr Espana wore a singlet and had receding hair and was unshaven. He reported having mild cold symptoms today. He fidgeted and presented as anxious. He grimaced at times, and gestured regularly. He was vague at times and struggled with medication names and some of the specific dates. He provided a coherent history and recalled some details, but not others. He was consistently focused throughout the assessment. He did not perseverate and there was no set-shifting difficulty. Mr Espana maintained good speed and pace all through the assessment. There was no psychomotor slowing or abnormal movements. He was mildly restricted in his affect range and reactivity.
At the end of the assessment, Mr Espana discussed Dr Kumar’s IME report and said that he recorded things opposite to what he told him. For example, Dr Kumar said he had regular catchups with friends during COVID, which is not true. Mr Espana also said that his father and sister are not his support network. His father does not even know what has happened to him, and although he has contact with his sister, she is not a support person. Mr Espana said he did [sic- not] feel heard by Dr Kumar.
Mr Espana also disagreed with Dr Annad’s travel assessment that he could travel anywhere. I discussed with him that Professor Davies also rated travel as 1. He also did not agree with Professor Davies’ assessment and said he did not know where he got that information from. He described that he would take a train to go to Redfern Station, but he would scan everywhere to make sure that he avoided certain people.
Cognitive Assessment Registration:
Mr Espana mentally registered 5 unrelated words on the second attempt.
Short-term recall:
He was able to recall 4 of the 5 items without prompting, after a period of time and a shift in mental task.
MOYB: He was able to mentally reverse the 12 months of the year without impairment in his concentration.
Verbal Fluency/ Generativity: He generated 13 unique words starting with the letter P, within 60 seconds, not including the examples I gave.”
In summarising the injuries and diagnoses, the MA said:
“Mr Espana has no past psychiatric history. He described working with the same organization twice. In his second period of employment, he was subjected to frequent bullying and abusive behaviour, and developed chronic anxiety and depressive symptoms. I have diagnosed Major depressive disorder, caused by his employment.
I have been requested to assess Mr Espana's WPI.
Professor Davies rated Mr Espana's travel as 1 and noted he travelled without difficulty. Mr Espana did not agree with that assessment. In my assessment I noted that whilst he is independent in travel, he avoided certain places and crowded places, and therefore I rated 2.
In terms of concentration, persistence and pace, Professor Davies rated 3 and noted problems with Mr Espana's concentration and difficulty with any sustained reading. He also recorded a very different mental state examination. In my assessment I noted problems with his eyes to the point that he cannot even look at the television. He is trying to learn about carpentry from video watching, but only for short periods. He listens to some documentaries. His eye problem cannot be assessed in the PRIS, and based on his mental state examination and capacity for maintaining focus for one hour during my assessment, I rated 2.
In terms of employability, Dr Annand rated a 3. I noted that Mr Espana is highly anxious and avoidant and he did not agree with the vocational assessment for the identified job options. Overall, my view is a return to work would be extremely unlikely and his psychological health would almost certainly decompensate, and therefore I rated a 5.”
The MA assessed 9% WPI to which he added 2% for the effects of treatment, a total WPI of 11%.
The MA then turned to comment on the “other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs” and said:
“Dr Mukesh Kumar IME psychiatrist provided a report dated on 2 August 2021 noted the problem with the two directors at the company, who were a married couple with volatile personalities. There was a revolving door of employees because of their tempers. There were many incidences of abuse from them which led to Mr Espana stopping work. He diagnosed an adjustment disorder.
A vocational assessment report from Rehab Co., 24 September 2021, noted that Mr Espana's functioning at the time, that he had not been consistent with self-care tasks such as showering or laundry, and difficulty sleeping. He did not feel confident travelling outside of home due to anxiety. He took walks in his free time and his hobbies included playing the guitar. Some of the jobs identified as suitable included buyer’s agent, real estate agent and property manager.
Dr Ashwinder Anand, IME psychiatrist reported on 3 May 2022, noted that since the workplace problem Mr Espana lived like a hermit and did not go out much. He would struggle in the workplace. He played the guitar and is very creative and the entire house is almost like a workshop and he tries to create things and becomes absorbed in these activities. With the encouragement from psychologist, he is doing some yoga and weights. He is doing a MindSpot course on anxiety and depression. He lives independently and has independent self-care. He rides a motorcycle less. Mr Espana only started swimming in recent times and distanced himself from most of his friends. He said there was a family history of depression (Comment: this is inaccurate). He diagnosed an adjustment disorder and provided WPI totalling 8% and 1% treatment effect (Comment: there is no explanation for the additional 1%).
Mr Espana’s statement noted Mr Espana had no prior psychiatric history and no external stressors and he is financially in a good place. He detailed the issues with work and the psychiatric problem that caused. Associate Professor Gordon Davies, IME psychiatrist reported on 11 February 2022, took a similar history in relation to the work directors and the abusive behaviour and said that Mr Espana was being set up to fail. On examination, he presented as voluble and hyperactive, restless and at times incoherent, and gave a disorganised history. Comment: This is very different to how Mr Espana presented in my assessment. Professor Davies diagnosed major depression and provided a WPI which came to 17%.
Dr Frank Chow, Treating Psychiatrist, 10 March 2022, noted on 9 February 2021 Mr Espana was called into a meeting and he felt he was set up to fail and they wanted him to leave. He was fairly emotional. If he stayed he would be put on a Performance improvement plan. He has had about 30 sessions with psychologists by this stage and had poor local support and there were no other psychosocial stressors. He presented with an adjustment disorder with ongoing depressive features.
The GP record is noted with no other relevant factors identified. Generalized anxiety disorder was listed as a diagnosis at one point. Dementia runs in his family.”
Dealing firstly with the issue of social functioning, the MA assessed a Class 2 and said: “He lost many friendships. He maintains two long-term friendships. The relationship with his general family is reasonable.”
The appellant submits that the MA should have assessed a class 3 and states:
(a)    The MA made references to the opinion of Dr Kumar with which the appellant disagreed.
(b)    The only other comment by the MA regarding this category was this:
“I asked Mr Espana whether he has contact with any friends, and he said he does not have contact with any friends anymore. He later confirmed that he has text contact with maybe three friends living in Parramatta and Newcastle. He may exchange texts with them maybe every two or three days.
Mr Espana said his psychologist, Natalia, asked him to go out with one of his friends so he went to have a beer at a bar in Parramatta and then it was busy and he left as he could not tolerate it.”
(c)    From the above extracts… the worker satisfies class 3 being that previous established relationships are severely strained, evidenced by periods of separation or domestic violence.
(d)    As noted in the MAC, his father does not know what is going on with Frank and his sister is not supportive. His only attempts to have an in-person interaction with a friend ended in failure (pub attendance in Parramatta). Further, he is only able to maintain contact with people via a text message.
(e)    We note the report by Dr Frank Chow dated 15 March 2022 (Application to Resolve a Dispute page 40) comments that the worker has some contact with his dad and sister. Has poor local support. Since psychological injury no social engagement.
(f)    The evidence in the MAC and documents before the MA clashes directly with the description of his general family relationship being “reasonable”. And evidence of the relationships being severely strained. This criterion more likely falls within a class 3. As the worker has strained relationships with his immediate family, no in person or video social relationships and at most responds to occasional text messages. Whereas as class 2, described the strained or loss of some friendships, tension and arguments with partner or close family. The worker has effectively cut himself off from friendships.

The descriptor for a class 2 reads: “Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
For a class 3 it reads: “Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
In our view, there is no evidence to support a class 3 rating for reasons that follow.
To begin with, the evidence does not suggest that Mr Espana’s established relationships are “severely strained” nor that he requires assistance from relatives or community services.
As the MA noted, Mr Espana is 57-years-old and lives alone in an apartment. He has no partner and no dependants.
He is clearly in contact with friends and family, even if only by text. He mentioned three friends living in Parramatta and Newcastle, and that he may exchange texts with them every two or three days.
The evidence suggests that Mr Espana has never engaged in extensive social functioning. For example, in his statement dated 19 March 2021, he said:
“I went on annual leave for 2 weeks after the 23.12.20 and did absolutely nothing. I cancelled my planned trip to Byron Bay to stay with my friend Simon which I love doing and had been doing so regularly pre- COVID. There was going to be a group staying in his house as there always is and I couldn’t bear the thought of socialising to that extent. I did not want to talk about my year in retrospect (as we do when we get together) and just wanted to ‘chill’ as I said to Simon. Chill means withdraw.
I made ample use of my balcony and only ventured to the beach once- I’d normally be there regularly while on leave. I had planned to get back into cooking but planning the shopping became tedious and I never did.
I declined spending Xmas day with my sister (my only family member) and her in-laws on the south coast…”
Contrary to some of his statements to the MA, it seems that Mr Espana considers his sister as his only family member.
In addition, his only pre-injury significant social activity was an annual trip to Byron Bay to stay with his friend Simon.
In short, Mr Espana does not describe an active social life prior to his injury, nor active interaction with his family.
In these circumstances, a class 2 rating seems entirely consistent with the evidence, and we do not agree that the MA erred in his assessment in this category.
Turning next to the issue of concentration, persistence and pace, the appellant submits:
(a)    Dr Hong has provided a class 2 on the basis that he can focus on intellectual demanding tasks up to 30 minutes, including learning carpentry online and completing carpentry projects.
(b)    Class 3 provides that an individual may find it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to a motor vehicle, type long documents, follow a pattern and making clothing, tapestry or knitting.
(c)    The worker was employed as an architect with the respondent between 2004 to 2007 and then 2014 to February 2021. Prior to his accepted major depressive disorder the worker was a highly functioning architect, whose work would involve complex arithmetic and understanding complex instructions such as building plans, typing long documents.
(d)    Dr Hong in the MAC takes the following history and makes the following comments:
(i)The worker has difficulty doing mental arithmetic now.
(ii)In relation to repairing a glass table with a broken leg, the worker is trying to design a new base, “but is not very good and he is still learning, and he is only doing this on and off”.
(iii)The worker notes that he has a poor memory.
(iv)Dr Hong extracts the following history:
“I asked Mr Espana about things he did yesterday, and he said he could not remember. With some difficulty he then said that he spent the whole day in the workshop, but this was not constant, and he was in and out and he slept and watched YouTube for five or 10 minutes and did not remember any other activity.”
(v)Dr Hong also notes and observes the following “He was vague at times and struggled with medication names some specific dates. He provided a coherent history and recalled some details but not others. He was consistently focused throughout the assessment. He was not perseverate [sic] and there was no set shifting difficulty. He maintained good speed and pace throughout the assessment.”
(vi)Dr Hong also notes that the worker has set up a workshop on his balcony for his attempt at Japanese joinery, but the worker notes he is making a mess.
(e)    Given the worker’s previous employment as a functioning architect on residential projects and also a manager of employees and dealing with technical IT issues to now being struggling to do mental arithmetic, struggling to design a new base for a glass table, he struggles to remember what he did the previous day, when he did not go out and is unable to sustain any long form reading. Given his drastic decline in concentration, persistence and pace the worker would clearly fall within class 3.
(f)    Further, the vocational assessment dated 24 September 2021 notes in relation to concentration:
“Mr Espana reported that his short-term memory was not as good and his recall was affected. Mr Espana reported that he takes naps throughout the day. Mr Espana reported that his concentration was affected due to ruminating thoughts. Mr Espana reported that he is hyper-focused for tasks or activities related to his workers compensation claim”.
(g)    It is unreasonable for the MA to use a symptom of the accepted injury “hyper-focused” on his workers compensation situation as evidence of him being a class 2, when the balance of the worker’s concentration, persistence and pace is significantly impaired.
The Panel accepts, as did the MA, that Mr Espana does indeed have some difficulties with concentration, persistence and pace.
The appellant has correctly set out the descriptor for a class 3 rating.
Having said that, we do not agree that Mr Espana satisfies that rating for reasons that follow.
We note the observations of Dr Anand in his report dated 3 Mat 2022 when he said:
“In a typical week, he stated that he plays the guitar. He is extremely creative and he stated that his entire house is almost like a workshop now and he is always trying to create things and he is totally absorbed by these activities. He has at the urging of his psychologist, Charmaine, started doing some yoga and some weights. He is also engaging with MindSpot and doing a course on anxiety and depression…”
In addition, the cognitive assessment performed by the MA did not disclose any significant impairment.

The MA observed:
“In terms of concentration, persistence and pace, Professor Davies rated 3 and noted problems with Mr Espana's concentration and difficulty with any sustained reading. He also recorded a very different mental state examination. In my assessment I noted problems with his eyes to the point that he cannot even look at the television. He is trying to learn about carpentry from video watching, but only for short periods. He listens to some documentaries. His eye problem cannot be assessed in the PIRS and based on his mental state examination and capacity for maintaining focus for one hour during my assessment, I rated 2.”
It must also be noted that Chapter 1.6 of the Guidelines states: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment…” (our emphasis).
The MA conducted a thorough mental state examination. The assessment itself is a cognitively demanding task that enables an objective evaluation of an appellant’s impairment in concentrating and persisting with such a task, and the pace at which an appellant can do this. The MA recorded Mr Espana’s presentation as set out above, during an assessment that took one hour.
The examination is also a good indicator as to the level of functioning as assessed by an MA on the day of assessment.
The MA concluded that the appellant’s abilities in this category were mildly impaired and consistent with the general descriptor of a class 2 rating.
The descriptors are just that: a broad outline of the sorts of activities or cognitive impairments in a particular category.
Consistent with his task, the MA based his assessment on all of the evidence to which he referred including his own detailed assessment on the day of examination. He was mindful of the opinion of the independent medical assessors and explained why his opinion differed.
In our view, the MAC was both thorough and detailed, and we cannot see any errors in the findings and assessment of the MA.
One further matter that should be addressed is the appellant’s submissions regarding “General Factual Errors.” They generally relate to Mr Espana’s qualifications.
Notwithstanding any factual errors the MA may have made, they have no bearing on the ultimate findings and assessments made by him.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 February 2023 should be confirmed.

[2023] NSWPICMP 215

22 May 2023