Nestle Australia Ltd v Santimano

DETERMINATION OF APPEAL PANEL
CITATION:	Nestle Australia Ltd v Santimano [2024] NSWPICMP 37
APPELLANT:	Nestle Australia Limited
RESPONDENT:	Terence Rudolfo Santimano
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	29 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; uplift for treatment effect inappropriate; Psychiatric Impairment Rating Scale category of self-care and personal hygiene; Ferguson v State of New South Wales and Parker v Select Civil considered; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 October 2023 Nestle Australia Limited (Nestle) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 September 2023.
Nestle relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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 the MAC contains a demonstrable error. 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, 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).

RELEVANT FACTUAL BACKGROUND

Mr Santimano suffered a psychological injury in the course of his employment with Nestle, which is deemed to have occurred on 25 June 2021. The Medical Assessor assessed 16% whole person impairment (WPI) under the Psychiatric Impairment Rating Scale (PIRS). He assessed Mr Santimano in class 3 for self care and personal hygiene, class 2 for social and recreational activities, travel and social functioning and class 3 for each of concentration, persistence and pace and employability. The Medical Assessor allowed 1% WPI for the effect of treatment.

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 Mr Santimano to undergo a further medical examination because there is sufficient information in the file to determine the appeal.

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.
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, Nestle submitted that the Medical Assessor erred in making an allowance for the effect of treatment because he did not provide reasons and his assessment was not in accordance with the Guidelines. It said that it is impossible to conclude that treatment has resulted in the substantial elimination of impairment when the Medical Assessor assessed 15% WPI.
Nestle also submitted that the Medical Assessor’s assessment in class 3 for self care and personal hygiene was not supported by his observation that Mr Santimano was well kempt and the history obtained that Mr Santimano attends the gym three times a week. Nestle said it was also inconsistent with Mr Santimano’s statement dated 22 June 2023 and the history provided to Dr Khan, qualified on its behalf. Nestle noted that Dr Teoh, qualified for Mr Santimano, assessed him in class 1 for self care and personal hygiene. Nestle said that the assessment for self care and personal hygiene should be class 2 “at the most”.
In reply, Mr Santimano submitted that he had undergone significant treatment and that the Medical Assessor had a sound basis on which to assess an additional 1% for the effects of treatment. He said that the ordinary meaning of substantial is “real and tangible” or “important”. He disputed Nestle’s submission.
With respect to self care and personal hygiene, Mr Santimano said that a “fair and holistic” reading of the history in the MAC does not suggest that he sleeps through every day or runs every morning. He said that the Medical Assessor’s assessment was not glaringly improbable and was open to him.

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 New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales,[1] Davies J considered that the form of words used in s 328(2) of the 1998 Act – “the grounds of appeal on which the appeal is made” – was intended to convey that the appeal is confined to the errors identified by a party in their submissions. We have only considered those grounds specifically raised by the appeal.
[1] [2013] NSWSC 1792.
In Campbelltown City Council v Vegan[2] 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.
[2] [2006] NSWCA 284.

Treatment effect

The Medical Assessor described Mr Santimano’s present treatment:
“… Mr Santimano has followed up with his general practitioner around once a month. Dr Nigel Harkins diagnosed Mr Santimano with depression He was referred for psychological treatment and previously followed up with his psychologist on average every one to two weeks until the insurer reportedly declined ongoing approval for individual psychological treatment. Mr Santimano was referred for psychiatric treatment and has followed up with his psychiatrist on average every eight weeks. After the incident has also been going to a psychiatrist, Dr Tanveer (Hills Clinic) who put him on Lamotrigine as well. The medication helps to an extent, and the sessions with psychologist has helped a little bit as well, He takes Effexor, Olanzapine and Lamotrigine as prescribed by his treating doctors.”
When explaining where he differed from the doctors qualified by the parties, the Medical Assessor merely said that he had allowed “an additional 1% for the effect of treatment.” He considered that Mr Santimano had reached maximum medical improvement.
Paragraph 1.32 of the Guidelines reads:
“1.32 Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
In the chapter relating to psychiatric injuries, paragraph 11.8 of the Guidelines also refers to the effects of treatment but only in the context of whether an injury is stable.
The words of the Guidelines connote a very significant improvement as a result of treatment such that impairment is greatly ameliorated. The Medical Assessor did not explain why he made an allowance for the effect of treatment. It was important that he do so when Dr Khan, qualified for Nestle, said that Mr Santimano had not reached maximum medical improvement and required further comprehensive treatment.
The Medical Assessor recorded only that the medication Mr Santimano takes helps “to an extent” and that the sessions with his psychologist have “helped a little bit as well.” The Medical Assessor noted that Mr Santimano had seen a psychologist until liability was declined by Nestle’s insurer. The individual treatment by a psychologist was not current at the time of the Medical Assessor’s examination. Mr Santimano’s statement reveals that he had not seen a psychologist individually since March 2022 and, as at June 2023, attended only group therapy.
The history the Medical Assessor obtained and his examination findings do not support a conclusion that Mr Santimano has undergone treatment which has led to “an apparent substantial or total elimination of his permanent impairment”. The test is not whether treatment has led to some improvement in a worker’s condition or even to some reduction in permanent impairment.
While we do not agree with Nestle’s submission that it is impossible (our emphasis) to conclude that is so when an assessment of 15% WPI has been made, it is clear that in this case, treatment has not substantially eliminated Mr Santimano’s permanent impairment and that there was no basis to allow an additional 1%. If 15% permanent WPI represented a substantial or total elimination of impairment, the Medical Assessor should indicate when there was a much greater impairment and how this still significant impairment represents a substantial elimination of that prior much greater WPI.

Self care and personal hygiene

In Ferguson v State of New South Wales[3] Campbell J said:
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”
[3] [2017] NSWSC 887 at [25].
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Ltd (Parker) and said:[4]
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
[4] [2018] NSWSC 140 at [70]-[71].
The Medical Assessor recorded Mr Santimano’s present symptoms, including that he:
“goes for run in the morning, makes it a point to go out of house to walk, runs and goes to gym and scared to talk to anyone…”
When describing Mr Santimano’s social activities and activities of daily living, the Medical Assessor wrote:
“He showers only twice a week, mostly lay in bed tired, sleeps through the day, not bothered to do much, sister does all the cleaning and the cooking and has been a huge support, used to cook but now only relies on canned food, and has only 1-2 meals in the day.
Tries to push himself to go out, just to meet supposedly friends, hoping that something will click. has been going out on his own to the pub to grab a drink but is unable to handle it and feels being judged there and can’t stay for long.”
Describing his findings on mental state examination, the Medical Assessor said:
“Mr Santimano was a 46 years-old male, who was well kempt and dressed appropriately. He was cooperative and rapport was well established. Distressed, looking down, good eye to eye contact, light beard, and was wearing a cap. Mood was sad and had a restricted and dull affect. He described low motivation and no energy and no pleasurable thoughts. There was no formal thought disorder and no symptoms of psychosis. He denied thoughts of self-harm or suicide. He was uncertain about his future and was worried how things have changed. He was oriented and had clear sensorium. He struggles to focus and finds hard to organize himself to do activities.”
The Medical Assessor gave reasons for scoring Mr Santimano in class 3:
“I have scored him in class 3 in self-care and personal hygiene as he showers only twice a week, mostly lay in bed tired, sleeps through the day, not bothered to do much, sister does all the cleaning and the cooking and has been a huge support, used to cook but now only relies on canned food, and has only 1-2 meals in the day.”
Paragraph 11.12 of the Guidelines describes the application of the PIRS:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
Each of the PIRS Tables is divided into five classes is divided into five levels of impairment. The most important part of the description is the level of impairment, followed by a series of examples.
In Jenkins v Ambulance Service of NSW[5] Garling J said:
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[5] [2015] NSWSC 633 at [65].
With respect to self-care and personal hygiene, the first example in each class highlights the extent to which a worker is able to live independently.
Assessment in class 2 connotes a mild impairment. The examples are:
“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 is the appropriate assessment for a moderate impairment and the examples are:
“Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
We do not consider that the assessment of Mr Santimano’s self care and personal hygiene is one about which reasonable minds may differ. Assessment in class 3 is appropriate where a worker is effectively unable to live independently. While Mr Santimano’s self care is compromised, and he benefits from the assistance his sister provides, he is able to take care of himself.
That conclusion is supported by his statement dated 22 June 2023. He said:
“Before my work injury I took more care of my appearance. Now, I do not always brush my hair or shave as regularly. I care less about how I look. I still however try to shower and change my clothes regularly and I brush my teeth once per day. There have been occasions where my sister prompts me to wash my clothes or do the laundry to ensure I have fresh things to wear.
…
I went to the gym on almost a daily basis. I enjoyed working out. I still go to the gym but I have reduced this to around three times per week. Sometimes it is very hard for me to get out of bed and make it to the gym and I will not go on those days.
…
I go to the local grocery store once every week or two to pick up groceries. I try to go by myself when I am feeling up to it because I do not want to burden my sister. There are days when I am not up to it and I do not go but if I can muster enough courage, I will go on my own.”
Those statements show that Mr Santimano is able to undertake self-care tasks with some reduction compared to his former level of functioning. Based on the history he took, the Medical Assessor made a demonstrable error in assessing Mr Santimano in class 3 for self care and personal hygiene.

Conclusion

When the scores are arranged as required in paragraph 11.13 of the Guidelines, the result is 2, 2, 2, 2, 3, 3 and median class score is 2. The aggregate score is 14. Under Table 11.7, the percentage impairment is 7% WPI. There is no treatment uplift.
For these reasons, we have determined that the MAC issued on 6 September 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:	W5110/23
Applicant:	Terence Rudolfo Santimano
Respondent:	Nestle Australia Limited

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 Himanshu Singh 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 injuries	25 June 2021	Chapter 11	NA	7	0	7%
Total % WPI (the Combined Table values of all sub-totals)					7%

[2024] NSWPICMP 37

29 January 2024