Fornara v Tabcorp Holdings Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Fornara v Tabcorp Holdings Ltd [2024] NSWPICMP 309
APPELLANT:	Nadine Fornara
RESPONDENT:	Tabcorp Holdings Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	22 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) obtained a correct history regarding the appellant’s capacity in self-care and personal hygiene and in travel; whether MA’s rating of the appellant’s impairment in self-care and personal hygiene and in travel accorded with the evidence; Appeal Panel found MA obtained a correct history and his ratings of appellant’s impairment in self-care and personal hygiene and in travel accorded with the evidence and was correct; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 6 March 2024 Nadine Fornara, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 February 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The appellant worked for Tabcorp Holdings Ltd, the respondent, as an ICT business development manager. Due to incidents that occurred to her during her employment she suffered a psychological injury. She made a claim for compensation for permanent impairment from her injury, relying on reports of consultant forensic psychiatrist Dr Thomas Oldtree-Clark dated 17 March 2021 and 29 June 2021.
Dr Clark had examined the appellant on 17 March 2021 and in his report of that date, which was addressed to the appellant’s solicitors, he advised that he assessed the appellant had 16% whole person impairment (WPI) from her injury. His assessment was based on the Psychiatric Impairment Rating Scale (PIRS) set out in paragraphs 11.11 and 11.12 of the Guidelines. Dr Clark advised he rated the appellant’s impairment in self-care and personal hygiene as Class 1, her impairment in social and recreational activities as Class 3, her impairment in travel as Class 3, her impairment in social functioning as Class 1 and her impairment in concentration, persistence and pace as Class 3 and her impairment in employability as Class 5. He noted that the median of those scores is 3 and the aggregate is 15 which converted to 15% WPI. He also advised that he added 1% WPI to that for the effect the treatment the appellant had for her injury and, hence his assessment the appellant’s permanent impairment from her injury was 16% WPI.
Without further examination of the appellant but having reviewed correspondence from the appellant’s solicitors in which they advised instructions they had received from the appellant regarding her function relating to the several PIRS categories, Dr Clark revised his ratings of the appellant’s impairment in self-care and personal hygiene to Class 3 and in social functioning to Class 2. He detailed that in his report of 29 June 2021. That increased the level of his assessment of the appellant’s permanent impairment by reference to the PIRS to 22% WPI. He again added 1% WPI for the effects of treatment and ultimately advised, having reviewed what the appellant had instructed her solicitors her function was in the various PIRS categories, that he considered the appellant’s permanent impairment from her injury was 22% WPI.
The respondent’s insurer on 14 December 2021 issued a notice to the appellant pursuant to s 78 of the 1998 Act in response to her claim, in which it advised her it disputed she was entitled to compensation for permanent impairment. It advised its reason for that was that it considered her permanent impairment resulted from a secondary psychiatric injury.
Subsequent to issuing that notice, the respondent’s solicitors received a report from psychiatrist Dr Mukesh Kumar dated 14 October 2021. He had examined the appellant on that date, and in his report advised that the appellant’s psychiatric injury “is a primary injury”. He also advised that he assessed the appellant had 6% WPI from that injury. He too rated the appellant’s impairment by reference to PIRS and his ratings of the appellant’s impairment in the several PIRS categories were Class 2 for self-care and personal hygiene, Class 2 for social and recreational activities, Class 2 for travel, Class 1 for social functioning, Class 2 for concentration, persistence and pace and Class 3 for employability.
On 12 October 2023 the appellant instituted proceedings in the Personal Injury Commission (Commission) seeking determination of her claim for compensation for permanent impairment. The matter was initially referred to a Member of the Commission, namely Mr John Wynyard, who with the consent of the parties directed on 14 November 2023 that the matter be remitted to the President to refer to a Medical Assessor to assess the whole person impairment of the appellant from a primary psychological injury deemed to have occurred on 15 August 2018. A delegate of the President of the Commission duly issued a referral to the Medical Assessor on 17 November 2023.

MEDICAL ASSESSMENT CERTIFICATE

The Medical Assessor examined the appellant by a video link on 23 January 2024 to assess the medical disputes that had been referred to him for assessment. The Medical Assessor assessed the appellant’s impairment by reference to the PIRS. He rated the appellant’s impairment in self-care and personal hygiene as Class 2, in social and recreational activities as Class 3, in travel as Class 2, in social functioning as Class 2, in concentration, persistence and pace as Class 3, and in employability as Class 5. The Medical Assessor noted that the median of his scores is Class 3 and the aggregate is 17, which converted to 19% WPI. The Medical Assessor certified that he assessed that this was the degree of the appellant’s permanent impairment resulting from her injury.
The appellant in her appeal against the MAC has challenged the Medical Assessor’s ratings of her impairment in self-care and personal hygiene and in travel. With respect to his rating of the appellant’s impairment in self-care and personal hygiene the Medical Assessor provided the following reasons for his rating in the PIRS rating form within the MAC:
“The claimant was independent in her self-care and personal hygiene. She was more reliant on pre-prepared foods. Her husband purchases the groceries. She was dishevelled at the time of the assessment. She did little housework, or laundry
and relied more on the support of her husband. She did not attend to a garden or maintain any of the stables.”
The Medical Assessor provided the following reasons in the PIRS rating form for rating the appellant’s impairment in travel as Class 2:
“The claimant was able to travel to local and familiar areas alone. She was able to travel to her local medical centre and locations that were about 10 to 15 minutes’ drive from her home.”

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 appellant to undergo a further medical examination. This is because, for reasons explained below, the Appeal Panel came to the view that the Medical Assessor’s assessment was based on the correct criteria and that the MAC does not contain a demonstrable error. The Appeal Panel consequently cannot revoke the MAC, and the Appeal Panel does not therefore need, nor has the power to require the appellant be re-examined.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor erred by rating her impairment in self-care and personal hygiene as Class 2 and, based on the evidence before the Medical Assessor, the Medical Assessor ought to have rated her impairment as Class 3.
The appellant submitted that the Medical Assessor recorded an incorrect history regarding her current ability to attend to her self-care and personal hygiene. The appellant noted that the Medical Assessor used the past tense of the verb to be.
The appellant noted that the Medical Assessor said she “was independent in her self-care and personal hygiene”. The appellant submitted that she was independent with her self-care prior to suffering her injury but her present ability is that she is significantly restricted. The appellant referred to her evidence in a statement she signed on 6 September 2023 wherein she provided descriptions of how she performs with her self-care and personal hygiene. The appellant also noted that the Medical Assessor observed that she was dishevelled and had unwashed and uncombed hair and had no make up when she presented for his examination of her.
The appellant also noted that Dr Clark in his report of 29 June 2021 rated her impairment in self-care and personal hygiene as Class 3 explaining that she had neglected her appearance and does not attend to her hygiene.
The appellant submitted the Medical Assessor failed to explain properly his reasons for his rating of her impairment in self-care and personal hygiene.
The appellant submitted that the Medical Assessor obtained an incorrect history regarding her capacity in travel. The appellant referred to paragraph 72 of the statement she signed on 6 September 2023 wherein she said that she found it impossible to go anywhere on her own and will not leave her house without her daughter or husband. The appellant also referred to Dr Clark who in his second report of 29 June 2021 advised he rated the appellant’s impairment in travel as Class 3 explaining that she will not travel unaccompanied.
The appellant submitted that the Medical Assessor had enquired of her if she goes anywhere or drives alone to which she said she answered “no” except once when she saw her doctor.
In reply, the respondent submitted that the Medical Assessor’s use of “was” when explaining his reasons for rating the appellant’s impairment in self-care and personal hygiene as Class 2 did not indicate that the Medical Assessor was considering the past function of the appellant rather than her present function. The respondent referred to parts of the MAC, other than the PIRS rating form, in which the Medical Assessor had used the word “was” in the context of describing what was occurring at the time of assessment.
The respondent submitted that the Medical Assessor rated the appellant’s impairment based on the appellant’s history as obtained at the time of assessment. The respondent submitted that the appellant’s appeal relating to the Medical Assessor’s rating of her impairment with respect to self-care and personal hygiene “has not been made out”.
The respondent submitted that the appellant volunteered a history for the purpose of the assessment that she is able to travel to local and community areas alone.
The respondent submitted that it is clear that the Medical Assessor read the appellant’s statement in full but based his assessment on the history that was volunteered at the time of examination. The respondent submitted that the Medical Assessor did not err by doing so.

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.
The Appeal Panel does not accept the appellant’s submission that the Medical Assessor by using the word “was” in the PIRS rating form when explaining his rating of Class 2 for the appellant’s impairment in self-care and personal hygiene was describing the appellant’s capacity in this activity prior to her injury rather than describing her capacity at the time of assessment. When read in context, it seems clear to the Appeal Panel that the Medical Assessor was using the past continuous tense of the verb “to be” by using “was”. This is made apparent by the fact the Medical Assessor said “she was dishevelled at the time of the assessment”. That was clearly a reference to how the appellant presented at the time of assessment, rather than at the time prior to her injury. The Appeal Panel finds that the Medical Assessor’s description of the appellant’s activities in the PIRS rating form for the category self-care and personal hygiene related to her function at the time of assessment and not prior to the occurrence of injury.
The Appeal Panel also considers that the Medical Assessor obtained an accurate history relating to the appellant’s capacity with self-care and personal hygiene. It is apparent from the MAC that the Medical Assessor read the appellant’s evidence in her statements. It is apparent because the Medical Assessor expressly said that he had read both the appellant’s statements in full. It is also apparent that the Medical Assessor had regard to all relevant clinical data contained in the reports that Dr Clark and Dr Kumar had provided, the correspondence from the various clinicians who have treated the appellant, and the general practitioner’s clinical records relating to the appellant. This is apparent because the Medical Assessor extracted in the MAC relevant parts from that material.
The Appeal Panel considers that the history the Medical Assessor composed and detailed in the MAC was the history he needed to be able to assess the appellant’s permanent impairment from her injury. The composition by the Medical Assessor of that history was done with regard to the appellant’s evidence within her statements and all other relevant clinical material and also by reference to the Medical Assessor’s interview with the appellant during his examination of her. The history that the Medical Assessor detailed in the MAC was sufficient for him to be able to rate the appellant’s impairment in self-care and personal hygiene, and also with respects to the appellant’s ability in travel.
The Appeal Panel does not therefore accept the appellant’s submission that the Medical Assessor recorded an incorrect history. It is not apparent from the MAC that the history he detailed, by reference to which he rated the appellant’s impairment in both self-care and personal hygiene and in travel, was incorrect.
The examples provided in Table 11.1 of the Guidelines for a Class 2 impairment for self-care and personal hygiene are “able to live independently; looks after self adequately, although may look unkept occasionally; sometimes misses a meal or relies on takeaway food”. The descriptors provided for a Class 3 rating are:
“Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2 – 3 times per week to ensure minimum level of hygiene and nutrition.”
The Medical Assessor explained that his rating of Class 2 for the appellant’s impairment in self-care and personal hygiene was on the basis that she is independent in her self-care and personal hygiene. He noted that she relies more on pre-prepared food and that her husband purchases the groceries. He noted that she does little housework or laundry and relies on the support of her husband for this. He noted that she does not attend to garden or outdoor activities. The Medical Assessor also observed that the appellant was dishevelled at the time of her assessment.
As said, the Appeal Panel discerns no error with the history the Medical Assessor obtained. He was consequently correct to rate the appellant’s impairment in self-care and personal hygiene by reference to that history.
The Appeal Panel considers that the matters by which the Medical Assessor rated the appellant’s impairment in self-care and personal hygiene falls within the level of impairment described by descriptors for a Class 2 impairment, that is mild impairment. Whilst the appellant relies on her husband to attend to household tasks and prepare food, the history the Medical Assessor obtained was that the appellant is independent in her self-care and personal hygiene, that is she did not depend on others to ensure her nutrition. She was able to obtain pre-prepared meals to eat.
The Appeal Panel consequently discerns no error with respect to the Medical Assessor’s rating of the appellant’s impairment in self-care and personal hygiene. He took into account all relevant matters. It is not apparent that he exercised his clinical judgement erroneously to rate the appellant’s impairment as Class 2 by reference to the matter he set out in the MAC.
Similarly the Appeal Panel discerns no error with respect to the Medical Assessor’s rating of the appellant’s impairment in travel. Again, the Appeal Panel considers that the Medical Assessor obtained an accurate history of the appellant’s ability in this activity as at the time of assessment. There is no evidence of what was said between her and the Medical Assessor during examination regarding this, other than the appellant’s solicitors repeating what the appellant instructed them was said. In the Appeal Panel’s view that hearsay evidence is unreliable. It would seem that her instructions to her solicitors were provided after the MAC had issued, which was some weeks after the Medical Assessor interviewed the appellant. What the appellant has instructed her solicitors, some weeks after the Medical Assessor’s examination of her, is a less reliable record of what occurred than the history the Medical Assessor set out in the MAC. The history the Medical Assessor set out in the MAC is likely to have been based on notes he made at the time of examination. Given that, the appellant’s solicitors’ recount of the appellant’s instructions relating to what was said during the examination is not evidence that the Appeal Panel admits in its consideration of the appellant’s appeal.[2]
[2] Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA112 at [78], [102]
The descriptors provided in Table 11.3 of the Guidelines for a Class 2 impairment in travel are, “mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour”. The descriptors provided for a Class 3 impairment are:
“Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”

The Medical Assessor explained that his rating the appellant’s impairment in travel as Class 2 was based on the appellant being able to travel to local and familiar areas alone. The places to which she travelled were her local medical centre and locations that were about 10 to 15 minutes’ drive from her home. That squarely fits within the impairment described by the descriptors for a Class 2 impairment and not an impairment fitting within descriptors described for a Class 3 impairment. Consequently, the Medical Assessor has made no error by rating the appellant’s impairment in travel as Class 2.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 February 2024 should be confirmed.

[2024] NSWPICMP 309

22 May 2024