Montivero v Anowah Community Living Ltd
[2024] NSWPICMP 651
•12 September 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Montivero v Anowah Community Living Ltd [2024] NSWPICMP 651 |
| APPELLANT: | Claudia Montivero |
| RESPONDENT: | Anowah Community Living Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 12 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) provided adequate reasons for rating appellant’s impairment in social and recreational activities, concentration, persistence and pace and employability under the permanent impairment rating scale (PIRS); whether MA’s ratings under PIRS accorded with the evidence; whether MA took into account irrelevant considerations and failed to take into account relevant considerations; Held – MA erred in rating the appellant’s impairment in social and recreational activities, concentration, persistence and pace and employability under the PIRS; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 July 2024 Claudia Montivero, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
19 June 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 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 (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).
RELEVANT FACTUAL BACKGROUND
The appellant suffered a psychological injury due to matters that occurred between December 2021 and 12 January 2022 in her employment as a disability support officer with Anowah Community Living Ltd, the respondent. She claimed compensation from the respondent for permanent impairment she said had resulted from her injury. She relied on a report of psychiatrist Dr Abdal Khan dated 28 July 2023, who assessed the degree of her permanent impairment from her injury was of the order of 19% whole person impairment (WPI). Dr Khan’s assessment was done by reference to the Psychiatric Impairment Rating Scale (PIRS), the criteria for which, the Appeal Panel notes, is detailed in paragraphs 11.11 and 11.12 and Tables 11.1 – 11.6 of the Guidelines. Dr Khan’s ratings of the appellant’s impairment in the several PIRS categories were Class 2 in self-care and personal hygiene, Class 3 in social and recreational activities, Class 2 in travel, Class 2 in social functioning, Class 3 in concentration, persistence and pace (CPP), and Class 5 in employability.
To respond to that claim the respondent’s solicitors arranged for the appellant to be examined by psychiatrist Dr Karthik Modem who in a report dated 3 November 2023 advised that he assessed the degree of the appellant’s permanent impairment was of the order of 22% WPI. His assessment was also done by reference to PIRS, and his ratings of the appellant’s impairment in the several PIRS categories were Class 2 in self-care and personal hygiene, Class 3 in social and recreational activities, Class 2 in travel, Class 3 in social functioning, Class 3 in CPP, and Class 5 in employability. Dr Modem advised in his report that he did not believe the appellant’s psychological condition had reached maximum medical improvement and this was because he was of the view that with appropriate and assertive treatments including the use of psycho-tropic medications there was a significant probability of the appellant’s symptoms alleviating and her progressing to a path of recovery. He considered that such treatment would provide the appellant the potential to re-integrate into social settings and to resume occupational functioning.
On 2 January 2024 the respondent’s insurer wrote to the appellant advising her that based on Dr Modem’s report her permanent impairment from her injury was not “currently capable of assessment”. It advised her that she could attend a further appointment to obtain an independent medical opinion regarding the degree of her permanent impairment when maximum medical improvement is reached or alternatively institute proceedings with the Personal Injury Commission (Commission). In other words, the respondent’s insurer did not accede to the appellant’s claim for compensation for permanent impairment from her injury.
The appellant chose the latter of the options the respondent’s insurer had suggested, and her solicitors, on her behalf, lodged with the Commission an Application to Resolve a Dispute on 2 May 2024 seeking the Commission to determine her claim for compensation for permanent impairment from her injury.
A delegate of the President of the Commission issued a referral to the Medical Assessor on 23 May 2024. The Medical Assessor conducted an examination of the appellant on
5 June 2024 in order to conduct the assessment of the medical disputes that had been referred to her. As said, the Medical Assessor issued the MAC on 19 June 2024.In the MAC the Medical Assessor certified that she assessed the appellant’s impairment is permanent and that the degree of her permanent impairment is fully ascertainable. In other words, as at the time she assessed the appellant, her view regarding whether the appellant had attained maximum medical improvement was different to the view of Dr Modem expressed in his report of 3 November 2023.
Neither party has raised an issue with the Medical Assessor’s assessment of those particular medical disputes.
The Medical Assessor also assessed that no proportion of the appellant’s permanent impairment from her injury is due to a previous injury, pre-existing condition or abnormality. Again, neither party has challenged the Medical Assessor’s assessment with respect to that matter.
The Medical Assessor assessed the degree of the appellant’s permanent impairment by reference to the PIRS, as she was required to do, and her ratings 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 3 for social functioning, Class 2 for CPP and Class 4 for employability. The medium of those Class scores being 2 and the aggregate being 15, those ratings in accordance with Table 11.7 of the Guidelines converted to 8% WPI. And that is what the Medical Assessor assessed is the degree of the appellant’s permanent impairment from her injury.
What is an issue in the appellant’s appeal against the medical assessment is the Medical Assessor’s ratings of the appellant’s impairment in social and recreational activities, CPP and employability.
The reasons the Medical Assessor detailed in the PIRS rating form within the MAC for rating the appellant’s impairment in social and recreational activities as Class 2 are:
“Ms Montivero enjoyed going for walks, going to the gym earlier. She said that after the incident, she did try to go to the gym, but felt quite anxious of doing that. She is, however, able to go out for walks and a run. She is unable to read as before as her mind wanders and she also does not enjoy reading as much as she used to. She reported that she used to catch up with her friends for coffee and for other activities with her colleagues. She has, however, has [sic] not met any of her friends in a year, but her sister often comes over. She denied visiting her friends in a long-time as she feels conscious of being unemployed. She said that she goes out for walks with her eldest daughter on weekends. She has been able to go out for walks and to the local beach as well.”
Within the MAC the Medical Assessor also detailed in the history she recorded that the appellant’s trips to the beach is to take her youngest daughter there. The Medical Assessor also, when comparing her rating of the appellant’s impairment in social and recreational activities with Dr Modem’s rating, acknowledged they differed. The Medical Assessor highlighted, to support her rating, that the appellant socialises with her sister but who visits her with decreased frequency than prior to her injury, that the appellant had started going on walks which she enjoyed, that the appellant took her youngest daughter to her sport, and the appellant socialised with her in-laws who visit her fortnight to monthly.
The Medical Assessor provided the following reasons in the PIRS rating form for rating the appellant’s impairment in CPP as Class 2:
“Ms Montivero reported that her ‘attention and concentration is not as good as it used to be.’ She said that she often forgets dates, anniversaries, etcetera. She has difficulty in focusing on tasks and is unable to read the information that she reads. However,
Ms Montivero has been able to do household chores and was persistent in the same. She has been able to persist with cleaning like mopping, etcetera, on a regular basis to keep herself busy. Ms Montivero reported difficulty in retaining information. There were no obvious deficits noted during the one-hour long assessment and Ms Montivero was able to give a clear account of her symptoms and difficulties. Ms Montivero was not distracted during the one-hour assessment and was able to focus appropriately.”Within the MAC the Medical Assessor noted that her examination of the appellant was done by means of a video conference. The Medical Assessor said that the appellant did not struggle using the technology. The Medical Assessor noted that her rating of the appellant’s impairment in CPP again differed from Dr Modem’s rating. The Medical Assessor affirmed her rating explaining that during her examination of the appellant the appellant was able to provide a clear history with no obvious issues regarding her attention and concentration, that the appellant is able to persist with household chores on a daily basis and complete those chores, and that the appellant is able to engage in cooking which would require attention and concentration.
The Medical Assessor provided in the PIRS rating form the following reasons for rating the appellant’s impairment as Class 4 in employability:
“Ms Montivero continues to have symptoms of depression and anxiety, which impact her ability to work. She can currently work less than 20 hours per fortnight possibly with different employers.”
Within the MAC the Medical Assessor noted that a psychological functional assessment had been done of the appellant, which is dated 15 August 2023. The Medical Assessor noted that the assessor who completed that assessment provided an opinion that the appellant had no capacity for work but had the capacity to engage in vocational rehabilitation activities for one to two hours a week whilst engaging in best practice treatment to work towards improving her work capacity and psychological symptoms. The Medical Assessor further noted that the assessor noted that upon improvement in the appellant’s symptoms and pending an upgrade in her work capacity the appellant potentially could work as a claims assessor, receptionist, beautician or an alternative suitable vocation.
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 the material before the Appeal Panel is sufficient for the Appeal Panel to deal with the appeal.
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.
Paraphrasing the appellant’s submissions, so as to provide a summary of them, they are that there is a medical controversy regarding how her impairment in the PIRS categories of social and recreational activities, CPP and employability are to be rated and, in such circumstance, the rating the Medical Assessor’s reasons for her ratings were insufficient.
The appellant noted that both Dr Khan and Dr Modem had rated her impairment in social and recreational activities as Class 3.
The appellant submitted that her evidence was that she “rarely leaves home and will not go out with a support person”. The appellant did not identify where within the material that she and the respondent lodged with the Commission that evidence was, but the Appeal Panel understands that this submission is a reference to a statement she signed on 2 May 2024 in which she said she has “reclused myself to stay at home”.
The appellant submitted that her travelling to familiar areas such as her daughter’s soccer matches and to the beach was wrongly characterised by the Medical Assessor as relating to social and recreational activities, and should have been characterised as relating to travel. The appellant submitted the reasons the Medical Assessor articulated in the PIRS rating form for rating her impairment in social and recreational activities as Class 2 were inadequate.
The appellant submitted that the history the Medical Assessor obtained relating to social and recreational activities was different form the histories Dr Khan and Dr Modem obtained. The appellant submitted that the Medical Assessor ought to have put this difference to her so that she could give an explanation for the difference.
The appellant submitted that the Medical Assessor took into account an irrelevant consideration when rating her impairment in CPP in that the Medical Assessor had regard to her doing cooking and cleaning, which the appellant submitted the Medical Assessor wrongly characterised as conduct relating to CPP and should have characterised it as relating to self-care and person hygiene. The appellant submitted that the Medical Assessor also failed to take into account a relevant consideration when assessing her impairment in CPP in that the Medical Assessor did not consider her evidence in her statement wherein she said that she has difficulty reading and constantly re-reads sentences and has difficulty watching movies and forgets what she has watched. The appellant also referred to the evidence in her statement in which she said that she finds conversing with people difficult because she becomes distracted by her own thoughts and is unable to pay attention.
The appellant submitted that the Medical Assessor did not provide adequate reasons to explain her rating of Class 2 of her impairment in CPP. The appellant submitted that it was “incumbent upon the Medical Assessor to question” her further with respect to her CPP because the Medical Assessor’s findings from her examination were at odds with the other evidence before her.
The appellant noted that both Dr Khan and Dr Modem had rated her impairment in employability as Class 5. The appellant also noted that she has not returned to any form of employment since suffering her injury. The appellant submitted that there was no evidence before the Medical Assessor that indicated she could work 20 hours a fortnight with different employers.
The appellant submitted that the Medical Assessor did not correctly apply the criteria to her findings from examination and to the medical evidence by rating her impairment as mild, rather than moderate in social and recreational activities, CPP and severe rather than totally impaired for employability.
Paraphrasing the respondent’s submissions, also to provide a summary of them, they are that the appellant not being able to read a book and not seeing her friends is not relevant to her impairment in social and recreational activities. The respondent, relying on Ballas v Department of Education (State of NSW),[1] contended that not seeing friends relates to the appellant’s impairment in social functioning, and not social and recreational activities.
[1] [2020] NSWCA 86 (Ballas) at [94] – [96].
The respondent submitted that the appellant being unable to read is conduct relevant to her impairment in CPP, rather than social and recreational activities.
The respondent submitted the appellant going for runs with her eldest daughter and going for runs and walks on the beach and having her sister visit her and being involved in her youngest daughter’s sports, when balanced against the appellant not attending the gym or meeting her friends for coffee, indicates a Class 2 impairment in social and recreational activities. The respondent submitted that there was information and material to support the Medical Assessor’s rating of the appellant’s impairment in social and recreational activities as Class 2. The respondent submitted that the Medical Assessor gave detailed reasons for her rating.
The respondent submitted that the appellant’s ability to run a household, by cooking and cleaning, as distinct from the appellant cleaning for herself and feeding herself, is conduct that the Medical Assessor could consider when rating the appellant’s impairment in CPP.
The respondent submitted that the Medical Assessor took into account the appellant’s reports that she has difficulty reading, retaining information, conversing with people, and paying attention in conversation. The respondent submitted that the Medical Assessor was entitled to rely on her own findings from her examination of the appellant when rating the appellant’s impairment in CPP. The respondent submitted that the Medical Assessor provided detailed reasons for her rating. The respondent submitted that there was information and material to support the Medical Assessor’s rating.
The respondent submitted the Medical Assessor’s rating of the appellant’s impairment in employability was open to the Medical Assessor notwithstanding that the appellant had not been employed since 12 January 2022, and that the Medical Assessor’s rating was based on her clinical judgment. The respondent submitted that the Medical Assessor provided detailed reasons for her assessment and her rating was supported by evidence that was attached to the appellant’s Application to Resolve a Dispute and its Reply.
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.
Social and recreational activities
The Appeal Panel does not agree with the appellant’s submission to the effect that the history that the Medical Assessor obtained was vastly different from the histories that
Dr Modem and Dr Khan obtained such that the Medical Assessor denied her procedural fairness by not putting any difference to her so that she could give an explanation.Further, the history the Medical Assessor obtained dealt with the same matters that both
Dr Modem and Dr Khan considered in their respective reports. The Medical Assessor was entitled to rely upon the history she obtained regarding those matters. It is apparent from the MAC that she composed the relevant clinical history having both to the information she elicited from the appellant during examination and to the documentary evidence that was before her, including the histories that Dr Modem and Dr Khan had detailed in their respective reports.
A medical assessor is required to afford procedural fairness to a worker, which will require the medical assessor to raise with a worker matters that are relevant to the assessment of the worker’s impairment that are unaddressed in the evidence before the medical assessor so as to enable the worker to provide a response to such a matter. However, that situation is not this case. The matters the Medical Assessor detailed in the history she set out in the MAC relating to the appellant’s conduct in social and recreational activities, and also with respect to the other PIRS categories, related to matters contained in the evidence. The obligation of a medical assessor to afford procedural fairness to a worker does not require a medical assessor to expose his or her mental processes or provisional view to a worker for comment before making the assessment.[2]
[2] See Hutchison v Wyong Race Club Ltd [2020] NSWSC 1592 at [74] – [78] and the case decided therein.
That said however, the Appeal Panel considers that the reasons the Medical Assessor provided for her rating of the appellant’s impairment in social and recreational activities reveal an impairment of greater severity than a Class 2 impairment. None of the activities in which the appellant engages for her recreation involve any significant social element. Her recreation is limited to going for walks and a run. She does that on her own, with the exception of walking with her eldest daughter on the weekends. However, as the respondent submitted, the appellant’s conduct in being with her eldest daughter, as distinct from going on a walk, is conduct that is correctly characterised as relating to social functioning, in that it involves maintaining a relationship with her daughter. Consequently, the fact that the appellant walks with her daughter on a weekend cannot be considered as a social activity. The Medical Assessor was consequently wrong to have regard to the appellant’s daughter accompanying her on a walk when rating the appellant’s impairment in social and recreational activities.[3]
[3] Ballas at [93] – [94] and [96].
The Medical Assessor also had regard to the appellant’s sister visiting her when rating the appellant’s impairment in social and recreational activities, but the Medical Assessor did not detail anything else about this event and, without such detail, the conduct of the appellant meeting with her sister at her home is, in the Appeal Panel’s view, better characterised as conduct relating to social functioning, rather than social and recreational activities. In other words, it is conduct relating to the appellant maintaining relationships rather than conduct relating to social and recreational activities.
The Medical Assessor detailed in the MAC that the appellant’s in-laws visit her fortnightly to monthly, although in the PIRS rating form she did not detail that as an event to which she had regard when rating the appellant’s impairment in social and recreational activities. For completeness the Appeal Panel notes that, in the absence of any detail about what occurs when this happens, the appellant receiving visits from her in-laws similarly is conduct of the appellant, that is best characterised as relating to social functioning, and not social and recreational activities.
The history the Medical Assessor obtained was that the appellant no longer goes to the gym and no longer meets with her friends and that her recreational activity is now limited to walking. That reveals a moderate impairment in social and recreational activities and, consequently, the Medical Assessor erred in her clinical judgment by rating the appellant’s impairment as Class 2.
CPP
The Appeal Panel considers that the Medical Assessor also erred with respect to her rating of the appellant’s impairment in CPP. Whilst the Medical Assessor found that the appellant did not exhibit “obvious deficits” during the hour she conducted her examination of the appellant and that the appellant was able to give a clear account of her symptoms and difficulties and was not distracted, the Medical Assessor needed to balance that with the appellant’s reports that her attention and concentration has deteriorated, that she forgets dates and anniversaries, that she has difficulties focusing on tasks, and that she cannot read because she cannot retain information. That indicates that the appellant cannot focus on any task that would require any degree of intellectual rigour for up to 30 minutes and that she would be unable to undertake any basic courses.
The Appeal Panel accepts the respondent’s submission that the Medical Assessor was correct to consider the appellant’s conduct in attending to household chores when rating the appellant’s impairment in CPP, insofar as that conduct involved more than the appellant’s selfcare. The appellant’s capacity to attend to household chores involves concentration and persistence in order to complete the chores, and the Medical Assessor’s consideration of that conduct when rating the appellant’s impairment in CPP, did not involve an error of the type identified in Ballas. However, the level of concentration and persistence of the appellant in attending to household chores is of a low order.
The evidence including the history the Medical Assessor obtained relating to the appellant’s function in CPP indicates that the appellant would be unable to read more than a newspaper article, would find it difficult to follow instructions, would have difficulty typing long documents and executing any type of plan. That aligns with an impairment of the severity described by the examples for a Class 3 impairment. The Medical Assessor was wrong not to rate the appellant’s impairment in CPP as Class 3.
Employability
The Appeal Panel also considers that the Medical Assessor made an error by rating the appellant’s impairment in employability as Class 4 rather than Class 5. The appellant has not worked since January 2022 as a consequence of her injury. The Medical Assessor did not identify any job in which the appellant would be able to work for less than 20 hours a fortnight. The psychological functional assessment report dated 15 August 2023 indicated that the appellant would only have capacity for work if her psychological symptoms improved. The evidence does not reveal there has been any substantial improvement in her psychological symptoms since that time. The appellant’s symptoms are such that she would be unable currently to engage in employment.
Correction of errors
As the Appeal Panel found the Medical Assessor erred with respect to her ratings of the appellant’s impairment in social and recreational activities, CPP and employability, the Appeal Panel must correct those errors, and does so by rating the appellant’s impairment in the former two categories as Class 3, and the latter, that is employability as Class 5. The consequence of that is that the medium of the appellant’s Class scores for all the PIRS categories is 3 and the total is 18, which in accordance with Table 11.7 of the Guidelines converts to 22% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 19 June 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W3510/24 |
Applicant: | Claudia Montivero |
Respondent: | Anowah Community Living Ltd |
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 Surabhi Verma and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric and psychological disorders | 28/08/2023 | Chapter 11 | - | 22% | - | 22% |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
0
3
0