Nikolovski v McDonalds Australia Limited
[2021] NSWPIC 55
•31 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Nikolovski v McDonalds Australia Limited [2021] NSWPIC 55 |
| APPLICANT: | Cane Nikolovski |
| RESPONDENT: | McDonalds Australia Limited |
| MEMBER: | Mr Philip Young |
| DATE OF DECISION: | 31 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Mixed psychological and arguably unrelated frontal lobe pathology; parties agree on referral to Medical Assessor but do not agree on referral specialty; consideration of power of a member to refer to medical assessor; Held- the effect of the 1998 Act and Procedural Direction PIC 6 as well as SIRA Guidelines is that a Member has power to remit a matter to the President for referral to a Medical Assessor but where the parties cannot agree on the appropriate assessor or his/her specialty it is the President (not the member) who chooses the assessor. |
| DETERMINATIONS MADE: | 1. The matter is remitted to the President for referral to a Medical Assessor chosen by the President to determine the extent of the applicant’s whole person impairment, if any, which results from psychological injury suffered by the applicant with deemed date of injury 22 June 2017. 2. The President’s delegate is requested to place before the Medical Assessor a copy of the Application, a copy of the Reply and a copy of this Statement of Reasons. 3. A general order is made in favour of the applicant in respect of section 60 expenses. |
STATEMENT OF REASONS
BACKGROUND
Cane Nikolovski (the applicant) is a 71 year old man who was employed by McDonalds Australia Limited (the respondent) as a cleaner for many years.
The applicant alleges that he was the subject of bullying and harassment by his superior for about a two year period up until 22 June 2017 and then threatened with dismissal.
There is no dispute about psychological injury, but rather the extent of the pathology which results from workplace events rather than other factors.
ISSUE
The issue concerns whether the Medical Assessor to whom the applicant should be referred for assessment of whole person impairment should be (as the applicant contends) a psychiatrist or (as the respondent contends) a neuropsychiatrist. There are associated issues concerning the power of Members of this Commission to refer a medical dispute for assessment and to choose the specialty of the Medical Assessor where that specialty is not agreed.
PROCEDURE BEFORE THE COMMISSION
This matter came for conciliation and arbitration hearing on 11 February 2021. Mr L Morgan of counsel instructed by Mr S Murray appeared for and with the applicant. Mr F Doak of counsel instructed by Mr P Lichaa appeared for the respondent. The respondent’s Ms C Odisho was also present.
Conciliation occurred during which many of the issues were refined, however, the issues mentioned above were not capable of resolution. I am satisfied that the parties and their representatives are fully aware of the present issues and that I have used my best endeavours to effect resolution, to no avail. That being the case, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.
Towards the end of the conciliation I determined that written submissions should be filed and submissions were subsequently filed by Mr Morgan dated 18 February 2021 and by Mr Doak dated 24 February 2021.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission:
(a)Application filed 4 December 2020 and attachments (Application);
(b)Reply filed 23 December 2020 and attachments (Reply), and
(c)Submissions as per paragraph 7. above.
ORAL EVIDENCE
No oral evidence was given.
SUBMISSIONS
Written submissions as outlined above were filed by the parties. I do not propose to set out the arguments in detail because they are self-evident from the submissions.
DISCUSSION AND REASONS
The extent of a Member’s power
The first matter of contention is whether a member of this Commission has power to refer a matter for consideration by a Medical Assessor. Secondly, has a Member power to determine the relevant specialty of the Medical Assessor?
Both section 321A (3) of the Workplace Injury Management and Workers Compensation Act 1998 and Part 2.1 of the Workers Compensation Medical Dispute Assessment Guidelines (Assessment Guidelines) enable “the Commission or the Registrar” to refer a medical dispute for assessment. Since the introduction of the Personal Injury Commission Act 2020, however, schedule 6 at section 6.11 [52[#93]] removes the reference to “Registrar” and instead inserts the word “President” but the reference to “the Commission” appears to be unchanged.
Because Part 2.1 of the Assessment Guidelines also allows “the Commission” to refer a medical dispute, that Part would have no work to do if as submitted by the applicant it is qualified by Part 2.5, Part 2.6 or Part 2.8 so that the Registrar must refer the assessment. It is, in my view, tolerably clear that the “Commission” (ie., a Member) may make a referral, even though the mechanics of that referral must be administered by the President or his delegate.
In terms of the New South Wales Workers Compensation Guidelines for the Evaluation of Permanent Impairment, it is clear that the assessor must be advised of the nature of the injury or condition in respect of which assessment is sought. It may well be that (hypothetically) the applicant’s medical condition is an entanglement of different pathologies. But it is not in my view a Member’s function to theoretically disentangle those conditions and form some conclusion concerning which is the more preferable specialty among different types of the same specialty, namely (in the present matter) psychiatrists. To do so would I think intrude into the Medical Assessor’s territory. It is sufficient I think to say that the applicant alleges a psychological injury or condition and that is the injury or condition to be so referred.
It may be that a qualified and appointed psychiatrist Medical Assessor feels unable to arrive at an assessment without further neuropsychiatric or neuropsychological input. But that too is from the viewpoint of this Commission mere speculation, because this Commission is not authorised to determine whether further specialist medical opinion is required. To do so would in my view be an intrusion into matters which are clearly within the province of the Medical Assessor and indeed would in many matters pre-empt the Assessor’s function.
Procedural Direction PIC 6-Medical Assessments came into effect on 1 March 2021. Relevantly, it provides: -
“25. A dispute in relation to the degree of permanent impairment may be referred to a member for conciliation, in appropriate circumstances, if the matter remains unresolved, a member may determine the dispute in accordance with the evidence. Alternatively, the member may refer the matter to a medical assessor for assessment.
26. Where the dispute is referred to a medical assessor, the parties may agree on the medical assessor who is to assess the dispute, or, if the parties have not agreed, the President will choose the most appropriate assessor to conduct the assessment. The parties may advise the Commission in writing of the name of the medical assessor they have agreed to appoint at the time of filing the application and/or reply or within seven days after the dispute is referred. However, if the President is not satisfied that the medical assessor nominated by the parties is appropriate, a different medical assessor may be selected”. (emphasis added)
The Evaluation Guidelines at Chapter 11.2 provide:
“evaluation of psychiatric impairment is conducted by a psychiatrist who has undergone appropriate training in this assessment method”.
This Evaluation Guideline Chapter 11.2 is descriptive in its wording. It does not compel the President to select a psychiatrist as the appropriate specialty. It describes the specialty but the absence of compulsive wording (for example “shall be conducted” or “must be conducted”) means that the President’s power to select the Medical Assessor is unimpeded.
Chapter 11.6 of the Evaluation Guidelines contemplates that the psychiatrist can have regard to appropriate psychometric testing. That logically must refer to external opinion in the matter. It is clear in my view that although limited in his opinion, there is psychometric testing which has been performed by Dr Roldan. In saying this I do not advocate Dr Roldan’s or any other opinion: this is a matter to be determined by the Medical Assessor consistent with Chapter 11 of the Evaluation Guidelines. That evaluation enables the Medical Assessor to request further opinion, if considered appropriate. But the availability of “opinion” as so expressed by Dr Roldan, means that this matter is not necessarily entirely deficient of information to support a referral by me as a Member.
The current internet publication by State Insurance Regulatory Authority of the Workers Compensation Medical Dispute Assessment Guidelines (28/3/21) continues to use the descriptions “Registrar” and “Approved Medical Specialist” (AMS) in terms of the referral process, but Part 2.1 authorises the Commission to refer a medical dispute for assessment by an “AMS”. The choice of the AMS is dealt with in Parts 2.5 to 2.8, but importantly in the absence of agreement between the parties it is the Registrar (sic-President), not the Commission Member, who makes that choice.
It follows therefore that whilst a Member has power to refer a medical dispute to a Medical Assessor, a Member cannot require the President or his delegate to choose any particular specialty for any such referral. That is my primary conclusion, but if I am wrong about this then I see the following matters as relevant from the medical evidence relied upon.
Medical evidence
The applicant has seen several medical practitioners after his last day of work on 22 June 2017. These include his general practitioner, Dr J Gligorov, psychologist Dr S Sorbello, psychiatrist Dr G Stevans, neuropsychologist Dr F Roldan, psychiatrist Dr F Chow, psychiatrist Dr Furst, psychiatrist Dr I Synnott and psychiatrist Dr D Samuell. There are also clinical records produced by Brigadoon Medical Centre, Miranda Medical Centre and Bankstown-Lidcombe Hospital.
The applicant’s section 66 claim is supported by the report of Dr F Chow dated 23 December 2019. Dr Chow arrived at an assessment of 24% whole person impairment in relation to the applicant’s psychiatric and psychological disorder.
Dr Stevans reported on 15 December 2017[1] with a diagnosis of major depression and he recommended a management plan consisting of psychoeducation, medication changes, psychotherapy and lifestyle changes including a healthy diet and regular physical exercise.
[1] Application page 32
On 29 May 2019 the applicant presented to Bankstown-Lidcombe Hospital having sustained a fall due to intoxication.[2] A CT scan of the applicant’s head and a MRI of his brain revealed moderate bilateral white matter hyperintensities and a mild to moderate cerebral atrophy in the frontal lobes.
[2] Application page 34
Dr Stevans saw the applicant also on 25 February 2019[3] at which time the applicant was again diagnosed with major depression.
[3] Application page 38
On 28 August 2019 the applicant was seen by Dr D Samuell, psychiatrist, at the request of the respondent. The applicant reported memory difficulties, sleeping problems and a dry mouth. At that time the applicant reported that he had been treated by his GP, psychiatrist and psychologist for about 18 months. Dr Samuell thought that although it was possible that the applicant had pseudodementia of depression, there existed imaging revealing frontal lobe atrophy and that over time it has become increasingly likely that the applicant may be experiencing the onset of dementia. For that reason, Dr Samuell thought the applicant should be assessed by a neuropsychologist and suggested that he did not suffer any work-related psychological condition (bold added).
The applicant’s solicitors arranged for him to be examined by Dr F Chow and this occurred on 17 December 2019. Dr Chow had before him documentation including Dr Samuell’s report of 31 August 2019. Dr Chow noted that despite small brain vessel changes before the applicant went off work, the applicant had no memory or mood symptoms before that time and in his opinion the applicant’s workplace difficulties caused major depressive disorder and alcohol use disorder which worsened his underlying frontal lobe pathology.
Dr Chow accepts[4] that over time it has become increasingly likely that the applicant may have the onset of dementia. He also suggested assessment by a neuropsychologist (bold added).
[4] Application page 59
Dr I H Synnott, psychiatrist, saw the applicant and provided a report to the respondent dated 19 September 2018. Dr Synnott thought the applicant met the criteria for major depressive disorder with prominent anxiety.
Dr Synnott provided a further report on 3 April 2020. The earlier diagnosis was confirmed, however, Dr Synnott noted that the applicant’s condition could not be simply explained as related to psychiatric difficulties because the “issue of cognitive difficulties needs to be explored”.[5] Dr Synnott also suggested detailed neuropsychological assessment (bold added).
[5] Reply page 45
Dr F Roldan, neuropsychologist (bold added), provided a report to the respondent’s solicitors dated 4 June 2020. That consultation did not proceed. A consultation did proceed, however, on 23 June 2020. Although the applicant did not participate in extensive testing, Dr Roldan reviewed documentation which noted that the applicant had been abusing alcohol at the time of presentation to hospital in April 1985, at further presentation on 8 December 1996 and further alcohol related attendances in 1999 and March 2000.
These and other matters led Dr Roldan to conclude that there was a long-standing history “of alcohol abuse, significant tobacco use, hypertension and chronic obstructive pulmonary disease, all of which can have consequences for cerebral functioning”.[6]
[6] Reply page 68
Dr Furst, psychiatrist, provided a report of 16 September 2019. He thought that the abnormal MRI brain scan pointed towards organic mood disorder and associated frontal lobe syndrome, essentially dementia caused by mini strokes.
It is clear from Dr Roldan’s report that although he identified several cultural and functional impediments to the testing environment concerning the applicant, a number of tests were able to be administered, enabling Dr Roldan to express some conclusions concerning neurocognitive disorder.
Dr Samuell, Dr Chow and Dr Roldan all recommend neuropsychological opinion, not neuropsychiatric opinion. Dr Roldan is a neuropsychologist but he said that he did not have sufficient clinical opportunity to assess the applicant. He did, however, arrive at some opinions, which in the overall scheme of this matter may, or may not, or may partly, be taken into account by the Medical Assessor.
If I am wrong in my conclusion that it is only the President or his delegate who may choose the speciality of the Medical Assessor to whom the applicant should be referred, my view would be that consistent with Chapter 11.2 of the Evaluation Guidelines and the medical evidence set out above, the appropriate specialty is a Medical Assessor Psychiatrist.
ORDERS
The matter is remitted to the President for referral to a Medical Assessor chosen by the President to determine the extent of the applicant’s whole person impairment, if any, which results from psychological injury suffered by the applicant with deemed date of injury 22 June 2017.
The President’s delegate is requested to place before the Medical Assessor a copy of the Application, a copy of the Reply and a copy of this Statement of Reasons.
A general order is made in favour of the applicant in respect of section 60 expenses.
Philip Young
MEMBER
31 March 2021
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