Knezevic v Precision Valve Australia Pty Ltd
[2024] NSWPICMP 40
•29 January 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Knezevic v Precision Valve Australia Pty Ltd [2024] NSWPICMP 40 |
| APPELLANT: | Lucija Knezevic |
| RESPONDENT: | Precision Valve Australia Pty Limited |
| APPEAL PANEL | |
| MEMBER: | R J Perrignon |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 29 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from assessment of whole person impairment; whether assessor erred in assessing the Psychiatric Impairment Rating Scale category of self-care and personal hygiene or social and recreational activities; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant worker, Ms Knezevic, appeals from the Medical Assessment Certificate of Medical Assessor Baker dated 21 June 2023. He examined her on 6 June 2023, and assessed an 11% whole person impairment (psychological) as a result of injury on
21 January 2021 (deemed date).He assessed two of the psychiatric impairment rating scales (PIRS) as follows:
(a) Self care and personal hygiene: Class 2 impairment, and
(b) Social and recreational activities: Class 2 impairment.
The appellant submits that the assessment of the two rating scales above demonstrates error, because in each case the evidence supported a class 3 impairment, and insufficient reasons were provided to justify an assessment of class 2. She seeks re-examination by a member of the Panel.
The Appeal Panel conducted a preliminary review of the Medical Assessor’s medical assessment in the absence of the parties and in accordance with the Guidelines.
Submissions
The parties made written submissions which have been taken into account. It is unnecessary to repeat them in full. The appellant’s submissions may be summarised briefly as follows:
(a) In respect of Self care and personal hygiene:
(i)the Medical Assessor’s finding that the worker could maintain her personal hygiene and self-care was unsupported by reasons;
(ii)it was inconsistent with the worker’s presentation and history taken, and inconsistent with her statement of 30 December 2022 at [15] to [17], which described her rarely wearing make-up, not caring as much about her appearance, undergoing haircuts less often and relying on family member to cook or eating take-away;
(iii)it is inconsistent with the history taken by the Medical Assessor that she relies on her daughter to cook all her meals, and that her daughter cleans the home and bathroom, and inconsistent with the evidence that she relies heavily on her partner for support;
(iv)the evidence supports a class 3 impairment, and
(v)the reasons given for the assessment of a class 2 impairment were insufficient, because they were limited to a mere recitation of the history recorded under the heading “Social activities/ADL”, and did not engage with the criteria in Table 11.1 and 11.2, or with the worker’s statement.
(b) In respect of Social and recreational activities:
(i)the Medical Assessor did not refer to the worker’s statement evidence at [20] to [22] that she no longer enjoys bike riding, kayaks, concerts, dancing at the club and seeing friends;
(ii)the Medical Assessor characterised a trip to Austria as a social and recreational activity, when it was not a recreational activity. It was a reunion with a lifelong friends undertaken on medical advice;
(iii)the Medical Assessor found that the worker’s statement contained examples of social and recreational activities that she can do, but ‘the only recreational activity noted is the real estate Christmas function in paragraph 10 which the client attended with her partner as a support person’;
(iv)the evidence did not support a class 2 assessment, because the only recreational activities the worker can attend are with a support person – namely family or close friends;
(v)the evidence better fit a class 3 assessment because she rarely goes out to such events, and
(vi)the reasons given for the assessment of a class 2 impairment were insufficient, because they were limited to a mere recitation of the history recorded under the heading “Social activities/ADL”, and did not engage with the criteria in Table 11.1 and 11.2, or with the worker’s statement.
The respondent submits in brief summary as follows:
(a) In respect of Self care and personal hygiene:
(i)the worker’s statement evidence that she no longer does make-up daily, prefers comfortable clothing, and goes long periods before seeing her hairdresser is not inconsistent with a class 2 impairment. It is consistent with the class 2 descriptor, ‘looks after self adequately, although may look unkempt occasionally’;
(ii)independent psychiatrists Dr Ahmed and Dr Rastogi, who were qualified for the insurer and worker respectively, both assessed a class 2 impairment in their reports of 4 November 2002 and 6 July 2022;
(iii)Dr Ahmed reported that the worker was capable of self care, taking into account that she was ‘less interested in outward appearance’ and her irregular appetite. He noted she did not attempt to cook because her daughter and son-in-law (with whom she lives) ‘eat different foods’. He also noted she was attempting to lose weight through diet and lifestyle. That evidence does not support a finding that she is unable to cook;
(iv)Dr Rastogi considered there was mild impairment because the worker’s partner and daughter ‘needs [sic] to prompt her with daily functioning, [and the worker] struggles with routine due to anxiety and amotivation and prefers to be at home’, and
(v)the history taken by the Medical Assessor best fits a class 2 impairment.
(b) In respect of Social and recreational activities:
(i)the Medical Assessor expressly referred to the worker’s statement of
22 February 2021, in which she said, ‘I am very active and I like music, dancing; walking, riding my bicycle and cooking. I do not play any sport.’ He was aware of these interests;(ii)exercising on kayaks was added in the later statement of
30 December 2022. It ‘should not be there, as this was not mentioned in the appellant’s statement dated 22 February 2021’;(iii)in the earlier statement, the worker indicated that she had decided to travel to Austria before taking medical advice on the trip;
(iv)the Medical Assessor viewed the medical and factual evidence provided at the time of examination;
(v)the Medical Assessor ‘has every right to recite word for word the history obtained under the heading ‘Social activities/ADL’ and the PIRS rating form.’ It would be problematic if the reasons in the PIRS form did not reflect the history taken, and
(vi)the history obtained is ‘more in line with a Class 2 impairment’, and was supported by the reasons given.
Self care and personal hygiene
The criteria for rating class 2 and 3 impairment in Self care and personal hygiene are as follows:
Class 2
Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3
Moderate impairment: 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.
In his PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 2 impairment:
“Ms Knezevic could live independently. She prefers to avoid crowded spaces. She relies on her daughter to cook all her meals. Her daughter cleans the home and the bathroom. She was unkempt at the time of this assessment. She showered less often and did not engage in her prior level of deportment. She could maintain her personal hygiene and self-care.”
This reflected the history recorded at [4] under the heading ‘Social activities/ADL’s’. That was appropriate, as the source of the information would otherwise be unexplained.
It was the task of the Medical Assessor to determine in which category the behavioural consequences of psychological injury best fit, by applying the descriptors in each class of impairment as examples: Guidelines at [11.12].
He was required to assess the worker as she presented at examination on 6 June 2023. He was not bound by previous assessments, though we note that his assessment of a class 2 impairment had also been made by Dr Rastogi in July 2022 and by Dr Ahmed in
November 2022. Nor was he bound to accept the currency of allegations made in statements as long ago as February 2021 or December 2022. He was entitled to take an updated history, as he did.He was required to give reasons for his assessment. As the appellant submits, the mere narration of the history taken does not explain how he applied the descriptors in class 2 or class 3, but in this case the history so closely meets the descriptors in class 2 that that it is obvious how they were applied. The observation that the worker appeared unkempt at assessment is consistent with the descriptor, ‘may look unkempt occasionally’. The history taken from the worker to effect that, ‘Ms Knezevic could live independently. … She could maintain her personal hygiene and self-care’, was consistent with the descriptors, ‘able to live independently; looks after self adequately’. The history that she relies on her daughter to cook all meals was not evidence that she ‘sometimes misses a meal’, so it is not clear that even this descriptor was met, let alone the descriptors for a class 3 impairment.
In any event, she explained to Dr Ahmed the reason why she relied on her daughter for cooking. In his report of 4 November 2022 he recorded:
“She said she … does not do as much cooking. She notes her son-in-law and daughter eat different foods so she does not make as much of an attempt to cook.”
This is evidence that the diminution in her cooking regime resulted from practical considerations rather than from psychological injury.
There was no current evidence before the Medical Assessor to establish that she missed meals frequently, needed prompting to shower daily or wear clean clothes, or that the assistance of a family member was needed ‘to ensure minimum level of hygiene and nutrition’, noting that the worker was living in her daughter’s house, and that she refrained from cooking because her daughter and son-in-law preferred another cuisine.
The Medical Assessor expressly referred to the appellant’s statement dated
30 December 2022. We take into account her evidence at [15] to [17], to which she has referred in submissions. At [15], she said she no longer has the motivation to care as much about her appearance, rarely wears make-up and wears comfortable clothing. That does not necessarily establish an inability to ‘live independently without regular support’. At [16], she said does not attend hairdressers as often as she used to, and forces herself to shower when contemplating the effort needed to wash her hair. This does not establish that she ‘needs prompting to shower daily and wear clean clothes’. At [17], she said she used to cook every day, but now does so only three times per week. As indicated, that is because her daughter and son-in-law prefer different food from the food that she tends to cook.The history taken by the Medical Assessor, in our view, was consistent with the descriptors for a class 2 impairment and inconsistent with the descriptors for a class 3 impairment. It was reasonably open to the Medical Assessor to assess a class 2 impairment. We can identify neither demonstrable error nor the application of incorrect criteria. This ground fails.
Social and recreational activities
The criteria for rating class 2 and 3 impairment in Social and recreational activities are as follows:
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.
In his PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 2 impairment:
“Ms Knezevic’s social and recreational activities were impaired. She advised she had lost interest socialising with her friendship circle in Australia. She no longer shared watching television events with her daughter or partner. She did participate in celebrations with her extended partner. Whilst in Europe she was able to participate in social activities with her lifelong friend. She had participated in Christmas 2022 celebrations. Her Easter celebrations were much reduced than what she would have prepared for prior to the onset of this primary psychological injury.”
This, too, precisely reflected the history recorded at [4] under the heading ‘Social activities/ADL’s’. The Medical Assessor explained part of this history at [4] in the context of travel:
“She could travel from Sydney to Vienna alone as the route was well known to her from many prior transits. She was greeted on arrival by her lifelong friend during her last journey to Europe in the second half of 2022.”
The Medical Assessor was obliged to give reasons for his assessment of a class 2 impairment, by engaging with the descriptors for that class. Unlike the assessment of Self care and personal hygiene, it is by no means obvious how this history taken satisfied the relevant descriptors. The Medical Assessor does not say whether and, if so, to what extent, the worker continued to socialise with friends in Australia, after having lost interest in such events. He does not explain whether the celebrations which she attends with her partner also involved socialising with others, or their degree of regularity. Nor does he explain whether the 2022 Christmas celebrations which she attended with her partner, or the Easter celebrations (albeit much reduced) involved active involvement in socialising, or whether she remained quiet and withdrawn.
That leaves the Panel unable to discern the reasons why he considered that the facts better fit the descriptors for a class 2 impairment than those for class 3. That amounts to an inadequacy of reasons, which demonstrates error, requiring that the Medical Assessment Certificate be set aside.
As the error could not be cured on the basis of factual information contained in the history or reasons, the worker was referred for examination to Medical Assessor Glozier, who is a member of the Appeal Panel. His report follows:
“Report of Medical Assessor Glozier
1. The worker’s medical history, where it differs from previous records
Ms Knezevic has not seen her psychiatrist for some time, although was prescribed 30mg Mirtazapine many months ago which she continues to take. She said the insurers had stopped paying and she did not realise that she could continue to pay him herself. Recently she has recommenced psychological treatment with a psychologist named Suzanne and has had four sessions. She described a CBT / psychoeducation programme including challenging her thinking and strategies for exposure and behavioural activation. She continues to consult her GP. She has a physiotherapist who she has started seeing recently for some breathing problems as well as osteoarthritis in her fingers, leg and a bunion. She has a number of exercises that she has been given although says she preferred the previous physiotherapist who gave her diagrams to follow. She also takes Ramipril for hypertension.
2. Additional history since the original Medical Assessment Certificate was performed
Ms Knezevic continues to live with her long-term partner, Joe, in the home of her daughter and son-in-law. Joe is a national publishing manager for Newscorp, travels fairly frequently, and works in the office most of the week, leaving at 5am. Her daughter is a lawyer in a conveyancing practice locally, and leaves around 8am and her son-in-law is an electrician. She spends much of the day on her own. After they sold their house and moved in with her daughter near Wilton, she moved away from the few friends who were still remaining where she used to live. She also noted that over the past few years many of her previous friends, with whom she described an extensive social network, particularly going to German and Croatian events, had already moved away. She and Joe have purchased an off-the-plan property in Shell Cove which they go down to frequently to check on its development and see the local area as they do not know it well. She is looking forward to moving there. In part this is because she feels constrained in her daughter’s home. She says they eat different foods, often having takeaways and other ‘more Australian food,’ whereas she has always preferred to cook more demanding Balkan dishes. However, although she will cook a few times a week, she said that when discussing with a friend yesterday about such dishes, she became quite worried and somewhat overwhelmed at the thought of preparing them. This sense of being overwhelmed by excessive demands characterised the assessment and appears to be the focus of much of her CBT.
She goes to bed around 11pm, having taken her tablets at 9pm. In between, she sits and chats with her daughter and they will watch some TV, either on the TV or follow Croatian programmes on YouTube. She watches some health programmes and also some archaeology programmes involving the archaeologist she met last year when she was back with her family. Most of the nights of the week she falls asleep easily but if she moves into a ruminative pattern, she can stay awake for some time. She then next wakes around 4am and tries to doze and go back to sleep. Again the minority of the nights of the week she may get up for half an hour or so and watch some TV before going back to bed until 6-6:30am. She then gets up, has a coffee, does some chores around the home and then when everyone has gone, she does some of her routine. Sometimes her daughter will go for a walk with her before leaving but otherwise she will go for a walk herself. She goes for a short bike ride about three times a week, and also down to the gym but does not do so if it is hot. She said she needs to do this to get out of the house, stay well and keep up her muscle strength. Having moved away from home and also having had their long-term friends move away, she has few local acquaintances or contacts. Her son-in-law’s mother lives close by and they will see each other for coffee or a catch up infrequently. She is also constrained by their transport. They sold the second car and so she is reliant upon either Joe being at home or her taking her daughter Katerina to work, so she has a car to use. If she does have that car she might meet Katerina or her son for lunch or occasionally catches up with her friends who now live in Campbelltown or Wollongong. She said she does this every few months. She has one friend lives locally who again she sees slightly more frequently, every few weeks. She and her friends are organising a lunch before Christmas. Otherwise during the day she will do some chores, watch some TV and occasionally cook. She is looking forward to when she moves into her own home so that things may change and she ‘can into get more of my routine.’ She finds it difficult at times to drive long distances or into unusual areas whereas before she had no problem driving into Sydney. She can however drive in local areas and catch the train. She said that over the past few weeks whilst staying at her son’s house for a couple of weeks she twice caught the train to catch up with friends. She last flew in May this year. She and Joe went to Europe for an extended holiday in Germany and I believe Croatia. She said they visited family and friends there and she enjoyed this, seeing a range of friends in social situations. Although Joe has three sons, they appear to be estranged. Every few weeks she and Joe will go and see her half-sister in Dundas. She described no other significant hobbies and more restricted lifestyle than previously. She reports some problems with concentration due to worry, distractibility and a range of problems with low self-esteem and reduced stress tolerance.
She undertakes a number of activities for her wellbeing including regular walking, gym attendance and cycling. She stated that she tries to eat healthily but finds that the reliance on takeaway driven by her daughter and son-in-law undermines this and it is not her kitchen. She has been looking at some breathing exercises on YouTube to try and has tried yoga once as her son-in-law’s sister runs a class.
3. Findings on clinical examination
Ms Knezevic was well-kept with her hair done. She was somewhat tearful and apprehensive. Her partner Joe was with her at the beginning but then left the room while we conducted the assessment. Although she had a strong Balkan accent that required occasional clarification, there were no misunderstanding problems. She describes a lowish mood, more being of easily moved to tears and fragility than of a pervasive depressed nature. She enjoys little now apart from some social interactions, but finds these less pleasurable. She has a low-normal sleep duration with at times broken sleep and has some reduced energy/motivation. She has a number of negative cognitions about herself. There is an extensive worry which she knows is frequently irrational, out of proportion to the stressor, and/or difficult to control. She reports physiological associations with this of headaches, increased urgency, stomach-churning but no actual panic attacks. There is limited avoidance but rather more worry and reduced stress tolerance. She reports poor concentration although there appeared to be no difficulties in the actual assessment itself.
4. Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Summary
Ms Knezevic currently meets the criteria for a Persistent Depressive Disorder with over two years of a low-level mood and reduced enjoyment, which may also reflect a Major Depressive Disorder in partial remission. She would also meet the criteria for Generalised Anxiety Disorder. She is taking an antidepressant and has recently restarted psychological intervention.
She reports doing some cooking, basic chores around the home, although this is in part limited by not being in her own home and worry that she could not undertake the level of cooking and home care that she would have done previously. She tries to eat more healthily than her family prefer. She undertakes a number of activities to improve her wellbeing, including regular exercise and cycling and is, at the most, mildly impaired in this domain.
Her social and recreational activities are in large part curtailed by her old friends moving away and she and Joe moving to Wilton. She has less frequent catch-ups with people, again in part determined by her access to transport but reported regular, if not frequent, catch-ups with a neighbour, some of her old friends, travelling to Campbelltown or Wollongong to do so, and a planned group catch-up in a couple of weeks’ time. She is involved in actively coordinating these and can enjoy them when there. She also described enjoying the social components of her European holiday where she saw family and friends with Joe. This is a mild impairment.”
Conclusion
Having regard to his expertise and clinical experience, the Panel accepts the history and findings on examination of Medical Assessor Glozier with respect to Social and recreational activities. In our view, those findings better fit the criteria for a class 2 assessment than a class 3 impairment because the appellant worker attends social events such as less frequent catch-ups with people, regular if not frequent catch-ups with a neighbour, and regular if not frequent catch-ups with some of her old friends. There is no evidence that she needs a support person to do so, or that she does not participate in such events actively, or that she remains quiet and withdrawn.
We do not consider that that the descriptors for a class 1 impairment are satisfied, because the evidence does not establish that she regularly participates in social activities, or that she is actively involved with clubs or associations. On the contrary, we are satisfied that there is a deficit in respect of social and recreational activities resulting from injury.
Though we have identified inadequacy of reasons in his Medical Assessment Certificate, Medical Assessor Baker’s assessment of a class 2 impairment with respect to Social and recreational activities is supported by the history and findings of Medical Assessor Glozier, and by our own assessment. For that reason, notwithstanding the error identified, the Medical Assessment Certificate of Medical Assessor Baker is confirmed.
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