Nikolovski v McDonalds Australia Limited

[2021] NSWPICMP 192

DETERMINATION OF APPEAL PANEL
CITATION:	Nikolovski v McDonalds Australia Limited [2021] NSWPICMP 192
APPELLANT:	Cane Nikolovski
RESPONDENT:	McDonalds Australia Limited
APPEAL PANEL:	Member Catherine McDonald Dr Douglas Andrews Dr Julian Parmegiani
DATE OF DECISION:	13 October 2021
CATCHWORDS:	WORKERS COMPENSATION-   Psychological injury; obligation to give reasons; Vitaz v Westform (NSW) Pty Ltd and State of New South Wales v Kaur considered; assessment in the Psychological Impairment Rating Scale categories; Ferguson v State of New South Wales and Parker v Select Civil Pty Ltd considered; Held - Medical Assessment Certificate confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 30 July 2021 Cane Nikolovski lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 July 2021.

2. 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,

   ·        the MAC contains a demonstrable error.

3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out, being that in s 327(3)(d). The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.

4. The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.

5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

1. Mr Nikolovski was born in Macedonia and arrived in Australia in 1971. He suffered a back injury whilst employed as a machine operator, for which he underwent surgery. He began working at McDonalds Australia Limited (McDonalds) in the Revesby store in 1988 as a cleaner. Mr Nikolovski suffered a psychological injury as a result of interactions with the second-in-charge of the store. His injury is deemed to have been suffered on 22 June 2017.

2. On 31 March 2021 a Member of the Commission determined a dispute between the parties and remitted the matter to the President for referral to a Medical Assessor. McDonalds had requested referral to a neuropsychiatrist, because it considered that any impairment was contributed to by non-work related factor. The Member held that the choice of the Medical Assessor is a matter for the President or his delegate.

3. The Medical Assessor, a psychiatrist, assessed Mr Nikolovski on 25 June 2021 in the company of his wife and with the assistance of a Macedonian interpreter. He assessed 9% whole person impairment (WPI).

PRELIMINARY REVIEW

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.

2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the MAC does not disclose an error.

EVIDENCE

1. 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.

2. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. In summary and in submissions prepared by his solicitor, Ms Hunt, Mr Nikolovski submitted that the Medical Assessor had applied incorrect criteria or made a demonstrable error in his assessment in respect of several of the categories under the Psychological Impairment Rating Scale (PIRS). He submitted that where there are medical controversies or disputes, the Medical Assessor is required to provide “more expansive reasons”, citing Campbelltown City Council v Vegan[1] (Vegan). He submitted that the Medical Assessor was required to set out his path of reasoning where a higher class of impairment rating was available but a lower class was preferred. He argued that the Medical Assessor had failed to provide a path of reasoning to substantiate a mild rather than a moderate assessment in the categories of self-care and personal hygiene, travel, social functioning and concentration, persistence and pace. Mr Nikolovski submitted that the MAC should be revoked and a fresh MAC issued assessing 26% WPI.

   [1] [2006] NSWCA 284.

3. In reply, the respondent submitted that the Medical Assessor “got it right” and explained his assessment and why it differed from that of other doctors who have examined Mr Nikolovski.

FINDINGS AND REASONS

1. 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.

General principles

1. Basten JA described the standard of reasons required of a Medical Assessor in Vitaz v Westform (NSW) Pty Ltd[2]:

   “Although reasons are required so that the unsuccessful party may know why he or she has failed, it does not follow that a medical specialist has to give reasons which are immediately comprehensible to a person with no medical expertise. For example, a medical expert speaking to other practitioners might say that some degree of impairment was self-evidently caused by a pre-existing condition, despite the fact that the person was asymptomatic prior to the injury. On the other hand, such a conclusion may be medically contestable. In order for the applicant to succeed in this Court in asserting inadequacy of reasons, there must at least be material properly before the Court which demonstrates that the opinion falls into the latter category.

   …

   It is at least arguable … that the reasons required of the Appeal Panel differ in kind from those required of the specialist.”

   [2] [2011] NSWCA 254

2. In Vegan, and in the passage to which Mr Nikolovski referred, 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.

3. The standard of “expansive” reasons which Mr Nikolovski sought to impose does not apply to the Medical Assessor.

4. Implicit in Mr Nikolovski’s submissions is the suggestion that the Medical Assessor’s reasons were inadequate because he did not explain why he did not assess him in the same way as Dr Chow, qualified on his behalf. The task of the Medical Assessor was to assess Mr Nikolovski as he presented on the day of the examination and to apply his own clinical judgement in the application of the Guidelines. He was not bound to agree with findings of other assessors, nor was he required to choose between their assessments.

5. Campbell J described his task in State of New South Wales v Kaur[3]:

   “In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:

   ‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’

   Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:

   ‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”

   [3] [2016] NSWSC 346.

6. Paragraph 11.12 of the Guidelines provides:

   “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.”

7. The application of the Guidelines is an egalitarian process – impairment is assessed on the same general basis for all workers. In the example most often quoted, loss of use of a finger is assessed in the same way for a bank manager and a concert pianist.

8. The PIRS Tables reflect that principle and assessment in Class 1 under any of the Tables is expressed to apply where there is “No deficit, or minor deficit attributable to the normal variation in the general population”.

9. In Ferguson v State of New South Wales[4] (Ferguson) 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.”[5]

   [4] [2017] NSWSC 887.

   [5] At [24].

10. Harrison AsJ cited Ferguson in Parker v Select Civil Pty Limited[6] (Parker) and said[7]:

    “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...”

The MAC

[6] [2018] NSWSC 140.

[7] At [70]-[71].

1. The Medical Assessor set out the history of injury that he obtained from Mr Nikolovski and the treatment he has undergone. He noted that:

   “Mr Nikolovski has continued to have symptoms of anxiety and depression but reports his symptoms have improved slightly with the treatment he has received from Dr Stevans.”

2. The Medical Assessor described Mr Nikolovski’s present symptoms:

   “Mr Nikolovski reports having low self-esteem. He describes feeling generally unhappy. He is socially withdrawn and avoidant and avoids socialising with other people. He feels depressed and sad. He said that his sleep is reasonable now. He has a good appetite. His concentration is variable. He feels hopeless and at times feels that life is not worth living but does not have suicidal thoughts. He feels anxious, restless and frequently ‘on edge’”.

3. With respect to Mr Nikolovski’s social activities and activities of daily living, the Medical Assessor wrote:

   “Mr Nikolovski lives with his wife in his own home in Revesby. He said that his wife does most of the shopping and he occasionally helps her with this. She does all the cooking and the clothes washing and he helps her with the house cleaning. He said that he used to help his wife with the cooking before as he was a trained cook, but he does not do so now. He spends most of his time at home. He mows the lawn and does some handyman and cleaning work around the house. He said he does not like socialising with friends since he stopped work. He said he sometimes goes for a walk with his wife around his local area. He said he occasionally goes out for a meal with his family for an occasion such as a birthday. He said that he showers and changes his clothes on most days and does not need prompting from his wife.”

4. Describing his examination, the Medical Assessor said:

   “Mr Nikolovski was a well-groomed, casually dressed, elderly man with grey hair. He was cooperative but anxious in the interview. His speech was of normal rate and flow. His mood was more anxious than depressed. His affect was appropriate to his mood and still reactive. There was no formal thought disorder and no psychotic symptoms.

   Mr Nikolovski was alert and orientated. His cognition was not tested due to his language difficulties. He was able to focus for the duration of the interview which was for one hour and twenty minutes and gave a clear and coherent history.”

1. The Medical Assessor diagnosed “Persistent Depressive Disorder with anxious distress according to DMS-5 diagnostic criteria”. He assessed 9% WPI, assessing Mr Nikolovski in class 2 for self-care and personal hygiene, class 3 for social and recreational activities, class 2 for each of travel, social functioning and concentration, persistence and pace. He assesses Mr Nikolovski in class 5 for employability. The Medical Assessor did not make any allowance for the effect of treatment and did not make any deduction for pre-existing impairment.

2. The Medical Assessor commented on the opinions of other medical practitioners at some length. It was necessary because of McDonalds’ argument that Mr Nikolovski had an underlying brain injury. The Medical Assessor explained that he had not diagnosed an alcohol use disorder as Dr F Chow, qualified on behalf of Mr Nikolovski, had. The Medical Assessor said that he did not fulfil the diagnostic criteria because he had not drunk alcohol for two years. The Medical Assessor said:

   “In his report dated 23 December 2019, Dr Chow had given Mr Nikolovski a whole person impairment rating of 24%. Where Dr Chow differed from me were in his ratings for Travel where he rated Mr Nikolovski a Class 3 whereas I rated him a Class 2. I rated Mr Nikolovski a Class 2 as he said that he is able to leave his home by himself to go for walks. Dr Chow rated Mr Nikolovski a Class 3 for Social Functioning whereas I rated him a Class 2. I rated Mr Nikolovski a Class 2 as he continues to be in a relationship with wife with no episodes of separation or domestic violence. Dr Chow rated Mr Nikolovski a Class 3 for Concentration Persistence and Pace whereas I rated Mr Nikolovski a Class 2 as he is able to do chores around the home such as mowing the lawn and small handyman and cleaning chores. His wife had reported that she did not notice that he had significant problems with memory and concentration around the home. He was able to focus for the duration of the assessment which lasted for an hour and twenty minutes.

   I note a report on Mr Nikolovski by Dr Doron Samuell, psychiatrist dated 31 August 2019. Dr Samuell wrote, ‘…in my opinion, Mr Nikolovski has probable frontal lobe dementia. This would need to be confirmed with neuropsychological testing’. I did not find evidence of frontal lobe dementia in Mr Nikolovski and have made a diagnosis of Persistent Depressive Disorder with anxious distress.

   I note a report Mr Nikolovski by Dr Inglis Synnott, psychiatrist dated 19 September 2018. Dr Synnott gave Mr Nikolovski the diagnosis of Major Depressive Disorder, chronic, whereas I have given him the diagnosis of Persistent Depressive Disorder with anxious distress. I note a report on Mr Nikolovski by Dr Inglis Synnott, psychiatrist dated 30 March 2020. Dr Synnott made a diagnosis Major Depressive Disorder with prominent anxiety. In this report Dr Synnott gave Mr Nikolovski a whole person impairment rating of 17%. Where Dr Synnott differed from me were in his rating for Self-Care and Person Hygiene where he rated Mr Nikolovski a Class 1 whereas I rated him a Class 2. I rated Mr Nikolovski a Class 2 as he relies on his wife to do all the cooking and most of the shopping and other household chores whereas he used to help with these. However, he does not require prompting to shower and change his clothes. Dr Synnott rated Mr Nikolovski a Class 3 for Concentration Persistence and Pace whereas I rated him a Class 2 for the reasons I have outlined above.

   I note a supplementary report on Mr Nikolovski by Dr Inglis Synnott, psychiatrist dated 3 September 2020. In this report Dr Synnott wrote, ‘…the neurocognitive deficits identified by psychologist Dr Fernando Roldan (in his report of July 2020) invalidate my WPI determination of 30 March 2020… it is invalid because - in his presentation - it is impossible to tease apart what may be related to psychiatric illness or neurocognitive deficit/organic brain injury’.

   I refer to the report of Dr Cipriani Roldan, clinical psychologist and neuropsychologist date 27 July 2020. For the reasons outlined in his report Dr Roldan was not able to personally assess Mr Nikolovski and based on the documentation provided to him made a diagnosis of ‘neurocognitive disorder in Mr Nikolovski.

   I did not find significant evidence of cognitive impairment in my assessment of Mr Nikolovski and believe the impairment that Mr Nikolovski presented with was solely due to his work-related psychiatric condition of Persistent Depressive Disorder with anxious distress.”

1. That passage shows that the Medical Assessor turned his mind to the assessments of other assessors and explained where he agreed or differed.

2. We note that the reasons given by the Medical Assessor for assessment in each category are more extensive than those given by Dr Chow in his report dated 23 December 2019, which is quite brief. Dr Chow’s report was prepared 18 months before the examination by the Medical Assessor. It was prepared only about six months after Mr Nikolovski’s admission to hospital as a result of a fall after drinking on 29 May 2019 and admission for detoxification until 6 June 2021.

3. Mr Nikolovski’s statement was signed in May 2020, over a year before the examination. Mr Nikolovski told the Medical Assessor that his symptoms had improved and that Dr Stevans had reduced his medication three months before the examination. He had stopped seeing his psychologist in December 2020 and, by the time of the examination by the Medical Assessor, saw Dr Stevans at six weekly rather than monthly intervals. Mr Nikolovski said that there had been no change in the severity of his symptoms.

4. However, those factors all suggest some improvement in his condition since the date of Dr Chow’s examination, though it remained clinically significant. Dr Chow’s assessment is unlikely to be an accurate measure of Mr Nikolovski’s current functioning.

5. Given the time between the assessments of Dr Chow and the Medical Assessor a neurodegenerative condition, such as fronto-temporal dementia, would be expected to progress, whereas Mr Nikolovski has improved.

Self-care and personal hygiene

1. The history the Medical Assessor obtained is consistent with assessment in class 2 and a review of the examples relevant to assessment in class 3 in the PIRS scale show that Mr Nikolovski would not be assessed in that class. It is noteworthy that Dr Chow also assessed Mr Nikolovski in class 2.

2. Mr Nikolovski said that the Medical Assessor’s assessment that he would be able to live independently was inconsistent with the statement that he relied on his wife to do things that he used to help with. It does not necessarily follow from his reliance on his wife for some household tasks that Mr Nikolovski would be unable to live independently. The examples in class 2 include an occasionally unkempt appearance and reliance on take-away food.

3. Mr Nikolovski told the Medical Assessor that he mows the lawn and does some handyman and cleaning work around the house. He showers and changes his clothes on most days and does not need prompting from his wife. The assessment in class 2 by the Medical Assessor does not disclose an error. He has provided clear and sufficient reasons to show why he made that assessment.

Travel

1. Mr Nikolovski said that the Medical Assessor failed to provide reasons why he assessed him in class 2 for travel rather than class 3 as Dr Chow did.

2. Dr Chow said that Mr Nikolovski was dependent on his family, needing someone with him for direction and due to anxiety. In his submissions, he quoted from his statement to the effect that he gave up his driver’s licence because he did not feel safe driving. He attributed that to lack of sleep, the effects of medication and lack of concentration.

3. It is important to note that travel is not limited to driving and the examples in Table 11.3 do not refer to driving. Travel connotes the ability to leave the security of one’s own home or familiar surroundings. The level of impairment in the Table is related to the extent of support or supervision that is required.

4. The Medical Assessor said that Mr Nikolovski was able to leave home by himself to go for walks around his local area. He was aware that Ms Nikolovski no longer drives. Based on the history obtained, the Medical Assessor appropriately assessed him in class 2.

Social functioning

1. Mr Nikolovski said that he should have been assessed in class 3 because there was some strain on family relationships and he had lost all his friendships. Dr Chow recorded recurrent conflicts and arguments with his family and assessed him in class 3.

2. Neither the history obtained by the Medical Assessor, nor the history obtained by Dr Chow, supports assessment in class 3 for social functioning.

3. The Medical Assessor gave reasons in the PIRS Rating Form for assessment in class 2:

   “Mild impairment. Mr Nikolovski reports some strain in his relationship with his wife due to his depressive and anxiety symptoms, but they remain together with no separations or domestic violence. He said there is some strain in his relationships with his children, but they are still reasonably good. He said he has lost all his friendships due to his social withdrawal.”

4. The Medical Assessor explained why he disagreed with Dr Chow and gave sufficient reasons for his own assessment.

Concentration, persistence and pace

1. In his submissions, Mr Nikolovski stressed that he said in his statement that he has severe memory loss and is unable to concentrate. He said that the Medical Assessor was in error not to provide detailed reasons for assessing him in class 2 “where a class 3 rating was available”. He complained that the MAC suggested that the Medical Assessor had relied on comments made by his wife and that he should have questioned him further when the clinical findings were “so at odds with the evidence before him”. However, based on the Guidelines and the authorities, and for the reasons set out at [36] to [39] above, the relevant evidence was that obtained in his own examination.

2. A Medical Assessor takes various sources of information into account when rating concentration, persistence and pace. One important source is the interview itself, when the Medical Assessor can directly observe the worker’s capacity to sustain concentration during the lengthy examination.

3. Even with the use of an interpreter, an assessor will be able to judge the extent to which a worker is engaging with the process.

4. In many cases, simple, objective tests can be administered to test cognition. The Medical Assessor said that he did not test Mr Nikolovski’s cognition due to language difficulties and that was appropriate. Importantly, the Medical Assessor said that Mr Nikolovski was able to focus for the interview which lasted one hour and twenty minutes and gave clear and consistent history. He did not find significant evidence of cognitive impairment.

5. The Medical Assessor took comments made by Mr Nikolovski’s wife into account but there is nothing in the MAC to suggest that he relied only on her comments. The MAC shows that he relied mostly on the information provided by Mr Nikolovski. The Medical Assessor considered a number of areas which may impact on concentration and, on the basis of Mr Nikolovski’s answers, assessed him in class 2.

6. The Medical Assessor provided reasons for his assessment in the PIRS rating form. The difference between class 2 and class 3 in this case is matter on which reasonable minds might differ. Based on the decisions in Ferguson and Parker, that does not constitute a demonstrable error or the application of incorrect criteria.

7. For these reasons, the Appeal Panel has determined that the MAC issued on 5 July 2021 should be confirmed.