Jara v Supported Accommodation & Homelessness Services Shoalhaven Illawarra

DETERMINATION OF APPEAL PANEL
CITATION:	Jara v Supported Accommodation & Homelessness Services Shoalhaven Illawarra [2023] NSWPICMP 97
APPELLANT:	Dkahu Jara
RESPONDENT:	Supported Accommodations Homelessness Services Shoalhaven Illawarra
Appeal Panel
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	16 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Psychological Injury; appellant alleged error in the assessment by the Medical Assessor (MA) that Maximum Medical Improvement (MMI) had not been reached; Appeal Panel did not find error; the assessment that MMI had not been reached was open to the MA and was adequately reasoned; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 October 2022 Ms Dkahu Jara 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 a Medical Assessment Certificate (MAC) on 21 September 2022.
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):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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.
The appellant requested that she undergo a re-examination by a Medical Assessor member of the Appeal Panel. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could not find error. Absent a finding of error, the Appeal Panel has no power to require a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a)    statement of the appellant dated 18 October 2022;
(b)    statement of the appellant’s partner Mr Richard Warr dated 19 October 2022, and
(c)    report of Dr Kalla dated 18 October 2022.
The appellant submits that the evidence is relevant and was not reasonably available before the medical assessment.
The respondent objects to the admission of the additional evidence.
The Appeal Panel determines that the following evidence should be received on the appeal:
(a)    statement of the appellant dated 18 October 2022;
(b)    statement of the appellant’s partner Mr Richard Warr dated 19 October 2022, and
(c)    report of Dr Kalla dated 18 October 2022.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment as well as the additional evidence admitted above and has taken them into account in making this determination.

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.

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 matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
·        Date of injury:   8 September 2020
·        Body parts/systems referred:        Psychological
·        Method of assessment:      Whole Person Impairment.”
The Medical Assessor found that maximum medical improvement (MMI) had not been reached:
“Ms Jara's psychiatric condition has continued to improve over the last 6 months, with reduced symptoms, and improvement in a range of areas of functioning. As such, it is my clinical opinion that she has yet to reach maximum medical improvement.”
The worker appealed.
In summary, the worker submitted on appeal that the Medical Assessor made a demonstrable error or made an assessment on the basis of incorrect criteria for reasons which included:
(a)    He failed to provide adequate reasons for his assessment that MMI had not been reached.
(b)    He provided only a general reason without specifying particulars for why he assessed the appellant as not having reached MMI.
(c)    He gave no meaningful indication of how the appellant’s condition had improved.
(d)    He took an incorrect history and failed to properly consider the appellant’s self report.
(e)    The appellant has been off work for two years because of the injury with no meaningful improvement which has not been taken into adequate account.
In summary, the respondent employer, Supported Accommodations Homelessness Services Shoalhaven Illawarra, submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and that the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of firstly whether MMI has been reached and only if MMI has been reached then turn to assessing impairment under the Permanent Impairment Ratings Scale (PIRS) categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb the assessment of the Medical Assessor for mere difference of opinion but must be satisfied as to error.
The Guidelines provide as follows in respect of Maximum Medical Improvement:
“1.15 - 1.16 Maximum medical improvement
1.15Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.
1.16If the medical assessor considers that the claimant’s treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation – subject to paragraph 1.34 in the Guidelines.”
Paragraph 1.34 of the Guidelines provides as follows:
“1.34 Refusal of treatment
1.34 If the claimant has been offered, but has refused, additional or alternative medical treatment that the assessor considers likely to improve the claimant’s condition, the medical assessor should evaluate the current condition without consideration of potential changes associated with the proposed treatment. The assessor may note the potential for improvement in the claimant’s condition in the evaluation report, and the reasons for refusal by the claimant, but should not adjust the level of impairment on the basis of the claimant’s decision.”
The Medical Assessor has taken a thorough history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
In September 2014, Ms Jara began working for SAHSSI as a full-time case manager. The role was in Wollongong, and she was offered an initial two year contract, with an extension thereafter.
In 2018, Ms Jara took time off work, and spent several months in her native Chile, as her father was sick. Upon returning to Australia, she worked for the Red Cross on a three-month contract. At some stage in 2018, Ms Jara was contacted by the CEO of SAHSSI, enquiring if she wanted to work as a casual case manager, to fill an existing vacancy.
Ms Jara alleged there were ongoing issues with her employment with SAHSSI dating from her commencement in late 2014. She alleged she was not provided with adequate supervision or support, and that inappropriate comments were made about ‘my language’, referring to Ms Jara’s native Spanish. Furthermore, Ms Jara alleged that in meetings her comments would be dismissed by managers. She alleged that these behaviours were observed by her co-workers. When Ms Jara was asked why she returned to work with SAHSSI in 2018, given the issues she reported with employment in that organisation prior to this time, she replied, ‘It was close to home... I knew the work well’, and she also explained that there was a lack of alternative jobs in her local area.
Ms Jara alleged that on a number of occasions prior to ceasing work in September 2020, her manager, Ms JS, ‘grabbed me on the neck, she belittled me’. Ms Jara alleged that comments were made about her, such as, ‘I was cute, I was like a child’, a reference to Ms Jara’s stature. Ms Jara stated she attempted to obtain support from within the organisation. Ms Jara alleged that some of these incidents were witnessed by co-workers, but felt that the co-workers did not comment or intervene as they were motivated by their desire to preserve their employment. That said, Ms Jara reported that on one occasion, a colleague observed the behaviour in question, and spoke to the CEO of the organisation. Ms Jara stated that she herself did not approach the CEO of the organisation for a variety of reasons.
Ms Jara stated that prior to ceasing work, at least one GP consultation she had had mentioned referral to a psychologist, or drafting of a mental health care plan, but said she had difficulty recalling the exact details of this.
On 8 September 2020, Ms Jara alleged she was punched on the arm by Ms JS. She stated this was the incident that led to speaking with her doctor, Dr Shamit Kalla, which occurred on 9 September 2020. Whilst Ms Jara had mentioned some of her work-related issues to doctors at the same practice as Dr Kalla from 2019 onwards, ‘because I was stressed. I showed signs of depression, low mood, not doing well’. This was the first time she had specifically reported the issues to Dr Kalla. She was provided with medical certification, and did not return to work thereafter.
Ms Jara said she was unable to recall the exact nature of consultation, but recalled the GP organising a referral to a psychologist.
Since ceasing work, Ms Jara has consulted a psychologist, Mr Marcelo di Martino. She has seen him on a regular basis to date. Ms Jara stated, when asked to describe the course of symptoms over the past two years, she replied, ‘The keyword is fluctuation for me, every day, every week. I feel safer to be away from Wollongong. I'd say that I'm in recovery, I'm in a recovery process’. She recalled having marked dysphoria and suicidal ideation when she first ceased work. At some stage in 2020, one of Ms Jara’s nephews committed suicide, which she attributed to COVID-related lockdowns.
In April 2021, Ms Jara was referred to a psychiatrist, Dr Nagesh Pai, whom she consulted once. When Ms Jara was asked if this was for the purpose of treatment or a report, she replied, ‘Dr Pai said I'm here to do a report’. (This is not consistent with the reviewed correspondence of Dr Pai, dated 19 April 2021, which looks like a standard treating psychiatrist’s letter to a referring general practitioner.)
At no stage since ceasing work has Ms Jara take an antidepressant or other psychotropic medication. When she was asked about this, she embarked on a long discussion about her personal philosophy of health. She has never seen Dr Pai subsequent to the April 2021 assessment, or another psychiatrist for the purpose of treatment.
Ms Jara expressed the view that her condition had improved over the previous two years. When asked to elaborate on this, she replied, ‘I don't have the heightened suicidal negative thoughts... I'm able to sleep for at least five hours continuously’, but clarified that this was not every night. She reported an improved appetite and more frequent eating. She added, ‘my brain is making me look at goals for the future... what could I do... I can see a future, before I couldn't see a future’.
In July 2021, Ms Jara enrolled in an online yoga course. She stated the course was meant to run for a year, and involved undertaking an online tutorial every two months. She stated she did not complete the course, adding, ‘I would like to complete the course... my memory’s really bad, my reading is non-existent, my concentration is really poor’. She stated the course entailed undertaking periodic assessments, which she stated caused her anxiety. On further questioning, she disclosed she did not complete any of the required assessments.
In early 2022, approximately six months prior to the IME, Ms Jara began writing in her journal on a regular basis. She recounted, ‘Writing is my thing’, stating she has been writing in her journal for 10 to 15 minutes per day on a consistent basis for the past six months. She explained, ‘I wasn't doing any of that before’.
Around three months prior to the IME, Ms Jara stated she reached out to a neighbour, asking if she could take the neighbour’s dog for a walk. She estimated she took the neighbour’s dog for a walk two to three times a week, spending one to two hours per time walking.
Around July or August 2022, Ms Jara stated she began to visit her local library. She stated she would go to the library by herself, and spend up to 45 minutes reading periodicals there. She stated she did not borrow book books to read, as her concentration for reading was poor. Ms Jara stated the purpose of visiting the local library was to ‘sit and try and read a small article of interest’, such as articles on gardening or psychology. She expressed the view that doing so would help her address her fear of people, ‘bringing myself into that environment and feeling safer’.
Approximately a month prior to the IME, Ms Jara began collecting driftwood on the beach, with the aim of making some type of craft project.
Ms Jara said, ‘I'd say that there have been slight improvements’ in her mental health during the previous three to six months. She added, ‘I'm making an effort’, and when asked to elaborate on this, advised that when she walks past people in the street she will now make eye contact. She added, ‘I'd say I'm building my confidence’.
·        Present treatment:
a.Current Treating Clinicians:
Dr Shamit Kalla: Ms Jara has been consulting Dr Kalla as a general practitioner for the past six years. She has also consulted other doctors in the same practice as he. Currently, she consults him every three to four weeks, for consultations lasting 15 to 20 minutes. The nature of consultations was described as following: ‘it's a follow up about my strategy, my plan, my health’.
Mr Marcelo di Martino: Ms Jara initially consulted Mr di Martino in late 2020. She currently consults him every two to three weeks for consultations lasting 45 to 60 minutes. While some of these were on a face-to-face basis, they are currently provided by video conference. She described a nature of consultations as ‘trauma counselling, CBT’.
Ms Jara is not consulting a psychiatrist at present.
b.Current Medication:
Ms Jara takes thyroxine 75 micrograms daily. She is not prescribed any psychotropic medications.
c.Other Present Treatment:
Ms Jara attends in-person yoga classes lasting up to 90 minutes, up to twice a week.
·        Present symptoms:
Ms Jara described her mood as anxious. When asked to rate her mood in terms of depression, she rated it as 4-5/10 on 10-point scale, where 0/10 represents a very depressed mood, and 10/10 represents a very cheerful mood. She reported no diurnal variation and denied any suicidal ideation or intent. She reported reactivity of mood, advising that she was able to enjoy activities such as gardening and her yoga classes. She added, ‘Gardening is something I really enjoy, once a week, if I can’. Ms Jara did report experiencing panic attacks, experiencing one a month prior to the IME, and another one two months prior to that. She reported avoidance behaviour advising she avoided Wollongong, crowded situations and public transport.
Ms Jara reported middle insomnia, stating she typically goes to bed before midnight, and falls asleep within an hour. Thereafter she wakes around 04:00 – 05:00, but is able to return to sleep. Ms Jara stated, ‘sometimes I have nightmares’, estimating these occur every two to three weeks. The nightmares have themes of fear and fleeing. She reported they were reducing in frequency. She eats breakfast, a light lunch and dinner. When asked about enjoyment of food, she replied, ‘Sometimes’. She hasn't weighed herself recently but believes her weight to be stable. She described variable energy levels stating, ‘there not so low now’, but stated her levels were low to medium. She reported motivation to undertake activities as earlier outlined, including walking her neighbour’s dog on a regular basis, attending yoga classes, and gardening once a week.
·        Details of any previous or subsequent accidents, injuries or condition:
a. Past Psychiatric History:
Ms Jara reported no history of child and adolescent mental health issues including exposure to trauma as a child. She advised she had never been referred to a psychologist prior to seeing Mr di Martino in late 2020, and had never seen a psychiatrist prior to seeing Dr Pai in April 2021. She has never been prescribed psychotropic medications at any stage. She reported no prior episode of similar psychiatric symptoms.
It is noted that there has been some past query about whether Ms Jara has had a bipolar disorder. She stated she was not sure why this had ever been raised, as she did not feel herself to have ever had a manic or hypomanic episode. Further, she denied any auditory or visual hallucinations, delusions that are persecutory in nature, delusions of reference, or delusions of thought alienation. She has never engaged in deliberate self-harm or made a suicide attempt, has never had a psychiatric admission, has never been referred to a community mental health service.
b. Other workers' or other compensation claims:
Ms Jara advised she had never submitted a workers’ compensation claim of any kind prior to the present claim. She has never experienced a work-related physical injury that resulted in a claim of any kind. She has never submitted a claim for compensation for a motor vehicle or other injury.
·        General health:
a.Medical & Surgical History:
Ms Jara was diagnosed with hypothyroidism in 2002, and believes herself to have been on treatment for this condition since that time. Her condition has never required any surgical intervention. She reported no other medical conditions. She has had one unrelated surgical procedure. She has never had a head injury occasioning loss of consciousness or concussion. She reported no known medication allergies.
b.Alcohol & Other Drug History:
Ms Jara has never smoked cigarettes, and does not use nicotine products. She consumes two cups of black tea per day. She does not consume alcohol or use illicit substances.
·        Work history including previous work history if relevant:
Ms Jara completed a Bachelor of Social Work in 2004. Prior to graduation, she had already commenced working as a case manager at a women's refuge run by Mission Australia, and she worked for this organisation for five years. Thereafter she worked on the homeless persons project for two years for a government agency. Thereafter she worked in a domestic violence refuge run by a charitable organisation for a number of years. She then worked in 2011 for the Attorney General's department, working in a role addressing victim services. By this stage, Ms Jara had moved to the Illawarra region, and commuted to work. In 2012,
Ms Jara held a role for another charitable organisation in a domestic violence program. As noted in 2014 Ms Jara began working with SAHSSI. She explained that she had been looking for work since moving to the Illawarra region in 2009, but stated it was difficult finding work at the time of her move, and this was her first local employment.
·        Social activities/ADL:
a.Current social situation:
Ms Jara lives in a house with her partner. They have owned the property since 2009. She has three cats; she has no children. Her source of income is a workers’ compensation claim payment. Her main financial liability is her mortgage. She reported no secondary income. Ms Jara's family live in Chile. She has a friend who lives close by but she commented while she texts this friend once every three weeks, ‘I hardly ever see her now’. She has friends in Queensland and she communicates by text message with them on a fortnightly to monthly basis. She has another friend who lives on the Central Coast, and while she hasn't seen this friend in person for two years, they speak on the phone ‘once a week if I can’, and Ms Jara estimated their conversations last 30 to 45 minutes.
With respect to regular physical activity, Ms Jara attends in-person yoga classes once or twice a week, which last 90 and 120 minutes. She goes walking for exercise three times a week or more, and advised she can walk up to two hours at a time. In addition, she walks her neighbour’s dog two to three times per week.
Ms Jara reported no religious affiliations. She advised she did not belong to any community groups, and added that she does not feel a particular affinity with Spanish-speaking communities. She speaks English and Spanish fluently, and advised she has some understanding of French and Portuguese.
Ms Jara has a car and a standard driver’s licence. She is able to drive by herself and estimated she drives 5 to 10 kilometres at most. She states she pushes herself to drive alone, and does relaxation exercises beforehand. She does not use public transport but explained, ‘I tried it about a month ago, I tried it and it was horrendous’. She explained she travelled to Wollongong by train to collect her car. She estimated she was on the train for around 10 minutes and said she found this challenging, adding, ‘I had no control over who was in the carriage’; she felt anxious about teenagers on the carriage.
b.Current level of function:
Ms Jara stated she showered or bathed every second or third day. She attended to her hair once a week. When asked about dental hygiene she replied, ‘I am very attentive to my dental care’, attending to this at least daily. She advised that her partner notices and encourages her personal hygiene adding, ‘I guess that's prompting’. She changes her clothes between every second and third day.
Ms Jara advised she attends to home duties: ‘Keep the house tidy, to do the domestics, to vacuum’, estimating she will do so weekly to fortnightly. She advised she ‘washes the clothes if I can once a week or fortnightly’. She shares cooking with her partner, and advised that she makes salads or other light meals at least three times per week.
Ms Jara is able to use a mobile phone, able to use email and access the internet. She said she would access mental health related pages such as beyondblue. She has social media accounts, and uses WhatsApp to communicate with her father (though not of late) and a niece overseas with whom she communicates on a weekly basis.
Ms Jara stated she is able to focus on Buddhist or mindfulness meditation videos, or positive thinking videos for up to 20 minutes at a time. She states she watches TED talks on video, up to 10 minutes at a time.”

The Medical Assessor conducted a mental state examination, the results of which he recorded as follows:
“Ms Jara presented as a woman of Latin American background, with an olive complexion and long straight hair, wearing glasses and a dark top. She was pleasant, polite and interactive readily answering all questions, often adding extra information. She did not display any psychomotor agitation or retardation during the assessment.
Ms Jara's speech was spontaneous, fluent and normal in rate, volume and rhythm. There were occasional pauses in response to questions. Her proficiency in English was fluent; a very slight accent was noted in passing. Her affect was restricted in range and she did not smile. She was not labile or tearful. Her affect was congruent with subject matter. Her mood was anxious, and not objectively elevated, irritable or apathetic. Her thought form was notable for over-inclusiveness, and Ms Jara consistently added extra contextual information prior to answering questions, as well as adding extra information after the question. By way of example, when Ms Jara was asked if she had any religious affiliations, she explained her grandmother was Roman Catholic, and her father was atheist, before explaining that that she herself was ‘more a nature person, an earth person’. This tendency was consistent throughout the assessment. No delusional thought content was expressed or elicited. She was not suicidal. She was alert and oriented with no fluctuation in level of consciousness.”
The Medical Assessor summarised the injury and diagnoses as follows:
“summary of injuries and diagnoses:
Ms Jara is a 59 year old woman, formerly employed as a case manager, who is not working in any paid capacity. Alleging mistreatment by managers within her former employer for some years up until 2020, she ceased work after an incident on
8 September 2020, in which she was allegedly punched on the arm by her manager. The impact of this incident was psychological, rather than physical.
Whilst Ms Jara engaged in psychological intervention shortly after ceasing work, she has eschewed initiation of psychotropic medication. Her recovery, whilst slow, continues to date, with reduction in some symptoms, as well as increased social, leisure and other activities reported within the preceding six months.”
The Medical Assessor found the worker to be consistent in her presentation.
The Medical Assessor had regard to the other medical opinion and other evidence that was before him and commented as follows:
“Independent medical examination (IME) report by Dr Surabhi Verma, consultant psychiatrist, dated 26 October 2020:
This IME was undertaken within 6 weeks of Ms Jara's injury and cessation of work. The symptoms documented at this time are predominantly those of anxiety. Dr Verma records that ‘her mood was not persistently low’. She had already commenced consultations with a psychologist. A diagnosis of an Adjustment Disorder with mixed anxiety and depressed mood was recorded.
Correspondence from Dr Nagesh Pai, consultant psychiatrist, dated 19 April 2021:
Dr Pai's letter is written to Dr Shamit Kalla, following a review of Ms Jara on the date of the letter. Dr Pai records a diagnosis of Posttraumatic Stress Disorder (PTSD). Whilst the letter does record some symptoms of PTSD, such as nightmares and flashbacks, there is no documentation of an event that would meet DSM-5 (or another psychiatric diagnostic system) criteria for a triggering event (criterion A) for PTSD. As such, it is my opinion that the correct diagnosis would be an Adjustment Disorder.
Independent medical examination report by Dr Frank Chow, consultant psychiatrist, dated 13 December 2021:
Dr Chow records a diagnosis of a chronic adjustment disorder. That said, he records some symptoms that are consistent with a diagnosis of Major Depressive Disorder, including poor concentration, thoughts of worthlessness and hopelessness, impairment in motivation and weight loss. He recommended ongoing psychological treatment on a fortnightly basis, and also recommended consideration of referral to a psychiatrist and of prescription of antidepressants. The latter recommendations are consistent with the recommended treatment for Major Depressive Disorder, but could be consistent with the treatment for a chronic and severe Adjustment Disorder.
Dr Chow opined that Ms Jara had reached maximum medical improvement, and calculated a whole person impairment score of 19%.
Independent medical examination report by Dr Surabhi Verma, consultant psychiatrist, dated 8 March 2022:
This IME report represents a re-examination of Ms Jara. The symptoms documented in this report include symptoms of anxiety, however, it is noted that Ms Jara reported a persistently depressed mood, along with other symptoms of depression. Ms Jara had not worked in any capacity since the initial review by Dr Verma. She was continuing to consult a psychologist, however, was not prescribed any psychotropic medication.
Dr Verma recorded a diagnosis of Major Depressive Disorder in this instance, which is consistent with the symptoms reported. Noting limited treatment and significant functional improvement to date, Dr Verma opined Ms Jara's prognosis was guarded - given the lack of ‘optimal treatment as of yet’, or poor ‘if she does not receive any further treatment including medication’. He recommended referral to a psychiatrist, antidepressant medication, cognitive behaviour therapy on a weekly basis, and social interventions.
Correspondence from Dr Shamit Kalla, general practitioner, date 2 May 2022:
Dr Kalla's correspondence is in response to a letter from Krystal Parisis, Santone Lawyers". Whilst Dr Kalla expresses - succinctly - the opinion that Ms Jara has reached maximum medical improvement, an additional handwritten notation records, ‘further improvement could take place’.”
After taking a thorough history and conducting a thorough review of the medical evidence, a mental state examination and making his own clinical judgment using his own clinical expertise, the Medical Assessor considered that MMI had not been reached because of the reported improvements in the appellant and estimated MMI will occur “within 9 to 18 months”.
He explained his reasoning for assessing the appellant as not having reached MMI as follows:
“Ms Jara's psychiatric condition has continued to improve over the last 6 months, with reduced symptoms, and improvement in a range of areas of functioning. As such, it is my clinical opinion that she has yet to reach maximum medical improvement.”
The assessment of whether a worker has reached MMI is a matter for the clinical judgment and expertise of the Medical Assessor. The Medical Assessor is entitled to rely on his findings on the day of clinical examination.
The appellant has filed further statements from herself and her partner and a further report from her GP. This further evidence takes the matter no further than the evidence that was before the Medical Assessor. The Medical Assessor must come to an independent assessment based on the exercise of his clinical expertise. This has been done in this case and the conclusion that MMI has not been reached is adequately explained, with sufficient reasons based upon the worker’s trajectory of recovery, particularly taking into account the non-linear nature of the PIRS whole person impairment calculation, and is a clinical judgment consistent with the Medical Assessor’s findings on the day of examination and is explained with due regard and in consideration of the evidence that was before the Medical Assessor. The further evidence does not support a different conclusion than that reached by the Medical Assessor, that is, the Appeal Panel can discern no error in the Medical Assessor’s finding that the appellant has not reached MMI.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 September 2022 should be confirmed.

[2023] NSWPICMP 97

16 March 2023