Mangarelli v State of New South Wales (Sydney Local Health District)
[2024] NSWPICMP 18
•12 January 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mangarelli v State of New South Wales (Sydney Local Health District) [2024] NSWPICMP 18 |
| APPELLANT: | Denese Mangarelli |
| RESPONDENT: | State of New South Wales (Sydney Local Health District) |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 12 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998 section 327(3)(a) and (b); psychological injury; deterioration in period between date of examination and issuing of Medical Assessment Certificate (MAC); Riverina Wines Pty Ltd v The Registrar of the Workers Compensation Commission considered; additional relevant information; statement describing deterioration and conduct of examination; Petrovic v BC Serv No 14 Pty Limited, Lukacevic v Coates Hire Operations Pty Limited, and Pitsonas v Registrar of the Workers Compensation Commission and Anor considered; Held – MAC revoked, maximum medical improvement not reached. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 September 2023 Denese Mangarelli lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Samuel Lim, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 31 August 2023.
Ms Mangarelli relies on all four grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment;
· 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 was satisfied that, on the face of the application, at least one ground of appeal was made out, being that Ms Mangarelli’s condition has deteriorated. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ms Mangarelli suffered a psychological injury in the course of her employment by the State of New South Wales (Sydney Local Health District) as a cleaner and porter at Concord Hospital. She suffered a psychological injury which is deemed to have occurred on 7 September 2020.
Ms Mangarelli’s claim for permanent impairment compensation was referred to the Medical Assessor who examined her on 18 August 2023 and issued the MAC on 31 August 2023. He assessed 7% whole person impairment (WPI) using the Psychiatric Impairment Rating Scale (PIRS).
At the time of the Medical Assessor’s examination, Ms Mangarelli was certified fit for suitable duties. Her capacity has since been downgraded. She seeks to rely on notes from her treating doctor for consultations after the examination to argue that there is additional relevant information since the MAC and in addition or in the alterative that her condition has deteriorated. She seeks to rely on a statement about the day of the examination to argue that there is a demonstrable error in the assessment of her self-care and personal hygiene. She relies on a certificate of capacity dated 7 September 2023 to say that the assessment of her employability was a demonstrable error or on the basis of incorrect criteria.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination. We have considered the material attached to the Application to Appeal for the purpose of preparing our decision.
The parts of the MAC that are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, and in short submissions prepared by Mr Moffet of counsel, Ms Mangarelli submitted that there was additional relevant information available, which fell within s 327(3)(b) of the 1998 Act, being the notes of five consultations prepared by her general practitioner, Dr Dixon between 30 August 2023 and 7 September 2023, she also sought to rely on a certificate of capacity dated 7 September 2023 and a statement dated 28 September 2023. Ms Mangarelli argued that the material strongly suggested that her condition had deteriorated. She also relied on s 327(3)(a) and did not make any additional submissions in respect of that ground of appeal.
Ms Mangarelli relied on her statement to say that there was a demonstrable error in the assessment of self care and personal hygiene because the Medical Assessor said she was “casually attired and adequately groomed” when she was wearing her dressing gown. She relied on the certificate of capacity dated 7 September 2023 to say that there was a deterioration in her employability. In the alternative, Ms Mangarelli said that the Medical Assessor erred in failing to apply “his recorded facts to the PIRS criteria” because she was not able to work her pre-injury hours nor work with “people who perpetrated the harassment” so that the impairment was severe rather than mild.
In reply, and in submissions prepared by its solicitor Mr Elder, the State submitted that the evidence on which Ms Mangarelli sought to rely did not demonstrate a deterioration and that the Medical Assessor had the same opportunity to record the history as the general practitioner. The State said that the appeal is an attempt to have a fresh assessment and that there is no explanation for the deterioration other than the subjective symptoms recorded in the clinical notes.
The State said that the Medical Assessor had given a detailed explanation for his assessment of Ms Mangarelli’s self-care and personal hygiene and that the rating in class 2 was appropriate. The State did not make any submissions about Ms Mangarelli’s new statement, referring instead to notes from her general practitioner between January and August 2023. With respect to employability, the State said that it was misguided to rely on a certificate of capacity which came into existence after the date of the MAC and that the assessment in class 2 was consistent with notes made by the general practitioner in July and August 2023.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Ms Mangarelli to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284.
Clinical notes and statement
The submissions from both parties are brief and do not engage with some of the principles relevant to the grounds of appeal relied on. Ms Mangarelli seeks to rely on recent notes from her general practitioner, a certificate of capacity and a statement. The principles applicable to the admission of those classes of document are different. The clinical notes are additional relevant information within the meaning of s 327(3)(b) but the statement is not.
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 notes from Ms Mangarelli’s general practitioner in the Application to Resolve a Dispute (ARD) are current to 28 March 2023, one month before the ARD was filed. Though a complete copy of the general practitioners’ notes dating from 16 June 2021 was provided, the submissions only seek to rely on the notes of the five consultations between 30 August and 7 September 2023. We accept that those notes are additional relevant information which post date the examination by the Medical Assessor and that they could not have been obtained before the assessment because they did not exist. We admit those documents on the appeal.
The notes dated between March 2023 and 30 August 2023 are not referred to in the submissions and they pre-date the MAC. We have not considered them.
Ms Mangarelli’s statement dated 28 September 2023 is in two parts. Paragraphs 2 to 7 deal with Ms Mangarelli’s return to work. Of those, paragraphs 2 to 4 deal with the period before the examination by the Medical Assessor and do not fall within the definition of fresh evidence. To the extent they seek to provide history in addition to that in the MAC, they are inadmissible for the reasons set out below. Paragraphs 7 adds nothing that does not appear in the general practitioner’s notes.
Paragraph 8 seeks to cavil with the Medical Assessor’s assessment of Ms Mangarelli’s appearance at the examination, his assessment of social functioning (in respect of which no ground of appeal is raised) and employability. It is not admissible for the reasons which follow.
In Petrovic v BC Serv No 14 Pty Limited[2] (Petrovic), Hoeben J dealt with the ground of appeal in s 327(3)(b). His Honour observed that if a statement going to the way in which a medical assessment was conducted was additional relevant information “it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal”.
[2] [2007] NSWSC 1156 at [31].
In Lukacevic v Coates Hire Operations Pty Limited[3] (cited in Ali), Hodgson JA said:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”[4]
[3] [2011] NSWCA 112.
[4] At [78].
Handley JA said that evidence of what took place at the examination was additional rather than fresh evidence.[5] His Honour said:
“The Panel's reasons for refusing to receive the new evidence … referred to the importance of finality in litigation, that procedural fairness for the respondent would entitle it to seek a response from the AMS, and the fact that the issues raised were ‘not contemplated as part of the appeal mechanism’. In my judgment these were relevant considerations in the exercise of the Panel's discretion, and it cannot possibly be said that its decision was irrational.”
[5] At [100].
Ms Mangarelli sought to rely on her statement to show that the Medical Assessor made a demonstrable error in his assessment of her self care and personal hygiene. The statement is not admissible to support that ground of appeal because the alleged failure to take account of the matters described in the statement cannot be a demonstrable error.
A demonstrable error is evident on the face of the MAC. In Pitsonas v Registrar of the Workers Compensation Commission and Anor Mason P said:[6]
“I am therefore driven to conclude that s 327(3)(d) uses ‘contained’ in the more intense meaning of having as a constituent part, comprising or including (Macquarie Dictionary). Thus understood, the paragraph requires the would-be appellant to demonstrate to the Registrar that there is an arguable case of error appearing on the face of the Certificate. It may be an error of fact or law, but it must be more than one that depends upon evidence that is not within s 327(3) (a) or (b) being adduced in the appeal. This conclusion accords with that reached by Hoeben J in Merza v Registrar of the Workers Compensation Commission[2006] NSWSC 939 at [39] (‘an error which is readily apparent from an examination of the medical assessment certificate and the document referred the matter to the AMS for assessment’.)” (Emphasis in original.)
[6] At [49].
Mason P said:[7]
“Those [matters complained about] dependent on the applicant showing that the doctor failed to record or to record correctly things she had told him face a double difficulty. They are not demonstrable on the face of the Certificate. And they seek, in effect to cavil at matters of clinical judgment in that matters unrecorded are likely to be matters on which the specialist placed no weight. The same can be said about factual matters recorded in one part of the Certificate that did not translate into the decision favourable to the applicant now contended for.”
[7] At [59].
We have determined that the statement should not be received on the appeal and that the reasons expressed in the authorities preclude its consideration.
The MAC
The Medical Assessor assessed Ms Mangarelli by video link. The Medical Assessor set out a detailed history of the injury with respect to her attempts to return to work. The Medical Assessor said:
“She provided a brief description of her attempts to return to work. She attempted to return to work doing administrative duties for a funeral director and said that she commenced working one day a week. She said, however, that she could not continue working in this position as the employer wanted her to work full-time, which she did not feel able to do. She informed me that approximately two or three months ago, with the support of her rehabilitation provider, she commenced working again as a cleaner at Concord Hospital. She informed me that the previous individuals whom she identifies as having bullied her no longer worked with the employer. She stated that she has been doing two or three four hour shifts a week. However, she finds these difficult to manage and does not think she will be able to increase her work capacity beyond this. She stated that she had been encouraged to attempt this return to work by her own treatment providers in order to increase her social interaction. She informed me that whilst the colleagues who had treated her badly no longer work there, there were other colleagues present with whom she had previously developed a good relationship.”
The Medical Assessor set out Ms Mangarelli’s present symptoms:
“Ms Mangarelli reported the persistence of anxiety symptoms, as well as poor sleep and ‘mental fatigue’ during the daytime. She described feeling generally tense, particularly when working at Concord Hospital. She reported the persistence of a reduced appetite. She denied any suicidal ideation.”
When describing his mental state examination, the Medical Assessor said that she presented as a casually attired and adequately groomed woman. He said:
“She reported a number of depressive symptoms and stated that she also experiences a generalised elevated level of anxiety. She stated that her anxiety is elevated when she is in the work environment and that this sometimes causes her to experience associated nausea. She did not present with a formal thought disorder, and she did not describe any delusional ideas. She did not present with perceptual disturbances. Her cognition was grossly intact.”
The Medical Assessor diagnosed persistent depressive disorder. He considered the medical reports in the file in detail, though the most recent of those was Dr Yeung’s report in May 2023.
The Medical Assessor assessed 7% WPI. He assessed Ms Mangarelli in class 2 for self-care and personal hygiene, saying:
“Ms Mangarelli reported occasionally missing a meal due to reduced appetite and also stated that there had been occasions where she does not have the motivation to change her clothes particularly when she does not have to leave the house. She reported otherwise being independent with her self-care notwithstanding the limitations she reported from her chronic pain. She also stated that she is able to support her father with household chores. From a psychiatric perspective, this is a mild impairment.”
The Medical Assessor assessed Ms Mangarelli in class 2 for employability because:
“Ms Mangarelli reports having returned to work at Concord Hospital in her previous duties as a cleaner. She stated that she continues to work in duties which she reports are not entirely consistent with her physical restrictions. She stated however that she has been able to work up to three four-hour shifts a week although this causes her some anxiety. This equates to her being able to work in her previous position, but no more than 20 hours per week. It is noted that she is no longer required to work with the individuals she identified as implicated in the negative behaviours towards her.”
Deterioration
The ground of appeal in s 327(3)(a) is separate and distinct from that in s 327(3)(b) though Ms Mangarelli sought to rely on the same brief submissions in respect of each.
The concept of deterioration was considered by the Court of Appeal in Riverina Wines Pty Ltd v The Registrar of the Workers Compensation Commission.[8] Campbell JA said:[9]
“Considering that submission involves, first, construing section 327(3)(a). ‘Deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.
The conclusive presumption of correctness does not attach to every statement that is made in a MAC – in the present case, that conclusive presumption of correctness applies, under Part 18C Schedule 6 Clause 4(2) only to ‘the matters in dispute in any proceedings in respect of the claim for compensation concerned’. In the present case, that is the extent to which the Worker has suffered a percentage loss of efficient use of the right arm at or above the right elbow. Thus, in the present case, the relevant type of ‘deterioration’ for the ground in section 327(3)(a) is established if her present condition is such that she has a percentage loss of efficient use of the right arm at or above the right elbow of greater than 0%.”
[8] [2007] NSWCA 149.
[9] At [94]-[95].
Handley AJA said:[10]
“The relevant ground of appeal (s 327(3)(a)) makes the certificate the starting point of the inquiry. The ground does not authorise a challenge to the correctness of the certificate as at the date it was given. It is entirely focused on what has happened to the worker since.”
[10] At [122].
We can only consider the material brought into existence after the date of the Medical Assessor’s examination on 18 August 2023 and presume that the MAC was correct as at the date it bears. In this case the deterioration occurred in a short time frame but it is apparent that a deterioration has occurred.
Dr Dickson is Ms Mangarelli’s general practitioner. Contrary to the submissions, only two of the consultations were with Dr Dickson, though the psychologist’s observations are relevant.
Dr Dickson saw Ms Mangarelli on 30 August 2023 and said:
“requested earlier review after speaking with psychologist yesterday and further exploring ongoing symptoms of anxiety including nausea and vomiting.
isnt sure if due to current role or hosptial-related (i.e. not clear if symptom severity may necessitate new employer as goal)
has been trying to cont and trying to cont with upgrade in hours
vomiting essentially every shift and not improving
has been investigaed with her GP for organic causes
discussed
clearly not fit to continue this
Denese fearful of being 'stuck at home' and determined to cont with some work
discussed potential role for controlled exposure along with CBT and increase inmedication
discussed potential benefits/adverse effects of trial increase in lexapro
is happy to trial for 8 weeksdiscussed reducing to 2 days
Denese prefers this to unfit while titrating.”Ms Mangarelli saw a psychologist at the same practice on 1 September 2023 and 5 September 2023. He also noted that Ms Mangarelli experienced nausea and vomiting before going to work.
On 7 September Dr Dickson undertook a capacity review in a case conference. He recorded that a
“trial of suitable duties has continued to lead to severe anxiety with nausea and vomiting at every shift
this has continued on reduced hours
does not suffer nausea as much when at home
GP is requesting endoscopy at next review
increased SSRI from 1 week ago. tolerating but nil improvement yet
conts with psych therapy
discused - not viable to cont with this level of anxiety and persistent vomiting
discussed capacity at zero, give medication some time to take effect
discussed - any possibility of alternative site given the issue with this specific hosptial?
discussed difficulties wtih getting OT/worksite assessment for the suitable duties”
discused earlier reveiw of progress and importance of f/up wtih GP re: further investigations.” [sic]
The general practitioners’ notes show that there has been a deterioration in Ms Mangarelli’s condition since the date of the MAC. Though she sought to continue to work while her medication was adjusted, she experienced nausea and vomiting before going to work and we agree with Dr Dickson that this is not viable. Ms Mangarelli is not able to work to the extent set out in the MAC. We are satisfied that she has suffered a deterioration as defined in s 327(3)(a).
At the present time, Ms Mangarelli’s impairment in respect of employability would be measured as moderate or severe. However, a further examination, such as Ms Mangarelli sought, would not be helpful because she is symptomatic and, so far as the medical information we have shows, her medication remains under review. A further examination would not be appropriate until she has experienced a period of sustained stability on that medication and when further adjustments in the dosage are less likely.
It cannot be said at this stage that Ms Mangarelli’s condition has reached maximum medical improvement. The Guidelines provide in paragraph 1.15 and 1.16:
“1.15 Assessments 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.
1.16 If 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 is not relevant because Ms Mangarelli has not refused treatment.
Because some improvement is possible with treatment, a further examination should not take place until there is evidence that Ms Mangarelli’s condition has stabilised, probably in about a year from the consultation with Dr Dickson on 7 September 2023.
PIRS categories
We make the following comments on the other grounds of appeal for completeness, even though a fresh examination will take place in due course.
The ground with respect to self-care and personal hygiene is dependent on the admission of the statement and on a finding that Ms Mangarelli’s clothing on the day of the assessment, warranted an assessment of more than a mild impairment. The other material on which the Medical Assessor based his assessment was not challenged and assessment in class 2 on that day was open to him. The assessment was conducted by video conference when Ms Mangarelli was at home and the Medical Assessor noted that she sometimes did not change her clothes when she does not have to leave her house.
The Medical Assessor’s assessment of a mild impairment with respect to employability was open to him on the history he took on the day of his assessment. The examples for assessment in class 2 include:
“… Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).”
Ms Mangarelli told the Medical Assessor that she was able to work in her previous position but for less than 20 hours per week. He relied on her history that she was no longer required to work with those who had harassed her and that they no longer worked with the employer. The assessment did not disclose error at the time of the examination, when Ms Mangarelli was working.
For these reasons, we have determined that the MAC issued on 31 August 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2851/23 |
Applicant: | Denese Mangarelli |
Respondent: | State of New South Wales (Sydney Local Health District) |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Samuel Lim and issues this new Medical Assessment Certificate.
The applicant’s medical condition has not reached maximum medical improvement.
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