Parthasarathy v Secretary, Department of Transport
[2021] NSWPICMP 147
•11 August 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Parthasarathy v Secretary, Department of Transport [2021] NSWPICMP 147 |
| APPELLANT: | Devaki Parthasarathy |
| RESPONDENT: | Secretary, Department of Transport |
| APPEAL PANEL: | Member Paul Sweeney Dr Julian Parmegiani Dr Douglas Andrews |
| DATE OF DECISION: | 11 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker appeals from determination of Medical Assessor (MA) that she fell within class 2 for the PIRS categories of Social functioning and Employability; Held- the appellant had not established demonstrable error or incorrect criteria; ample evidence to support determination of MA; differing outcomes in the assignment of classes merely a difference of opinion. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 May 2021, Devaki Parthasarathy (the appellant) lodged an Application to Appeal Against a Decision of a Medical Assessor (MA, formerly an Approved Medical Specialist or AMS). The medical dispute was assessed by Dr Peter Wallace Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 April 2021.
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.
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 grounds of appeal on which the appeal is made.
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.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant is a long-term public-sector employee who was employed at relevant times by the Department of Transport (the respondent) as a procurement officer. Following a restructure of the procurement team in late 2018, the appellant experienced interpersonal conflict with her supervisors. She perceived that she was “excluded, unappreciated, not credited for the contribution to major projects” and that her promotional prospects within the public sector were impeded by their actions. In mid-June 2019, her performance was criticised by her supervisor and she was ordered to work in the one location, whereas she had previously worked from home two days each week.
At this time, the appellant ceased work and sought medical treatment. She was referred to a psychologist and, on 28 June 2019, to Dr Rastogi, a psychiatrist. It is common ground that the appellant suffered a psychological injury arising out of and in the course of her employment. The appellant has made a partial recovery from her psychological injury and works from home in a different job three days per week.
By these proceedings, the appellant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). By a report dated 11 January 2020, Dr Rastogi expressed the opinion that the appellant had developed an adjustment disorder with depressed mood due to unresolved grievances, loss of support by her employer and emotional vulnerability. In respect of prognosis, she said this:
“She holds a reasonable prognosis provided she is given ongoing psychological support and vocational rehabilitation to seek vocational opportunities with restrictions. She has reached maximum medical improvement. Her vocational prognosis is reasonable with restrictions.”
By a further report dated 5 June 2020, Dr Rastogi expressed the opinion that the appellant’s whole person impairment (WPI) assessed in accordance with the guidelines and the PIRS rating form was 14%. To this she added 2% WPI for the effects of treatment, as she believed the appellant had “made progress with treatment and counselling and is ready for vocational options”. Her final assessment of WPI was 16%.
Dr Teoh, a psychiatrist, saw the appellant at the request of the respondent’s insurer on two occasions. By a report dated 28 October 2019, he expressed the opinion that the appellant suffered an adjustment disorder with anxious mood. He stated this condition had been “exacerbated by her employment and industrial issues at work”. He thought that the appellant was fit to return to work in a graduated program “as soon as possible” and that her prognosis was good “if she can resolve the industrial issues at work”. He stated that the appellant should be able to return to her pre-injury duties.
In a supplementary report dated 24 August 2020, Dr Teoh expressed the opinion that the appellant remained unfit to “return to her full pre-injury duties with no restrictions”. He stated that:
“She should be able to return to pre-injury duties and hours within two months with another employer.”
Dr Teoh declined to assess permanent impairment as he did not believe that the appellant suffered a permanent psychiatric injury as her condition was likely to improve with further treatment and adjustment of her employment.
Fresh evidence
The respondent sought leave to admit documents as additional evidence in these proceedings pursuant to s 328(3). Section 328(3) of the 1998 Act is as follows:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The documents sought to be admitted were attached to an Application to Admit Late Documents (AALD) lodged with the Commission on 25 February 2021. They included documents relevant to the appellant’s employment, a report on her use of social media, and medical reports including a further report from Dr Teoh. At a telephone conference on 9 March 2021, a Member of the Commission refused leave to lodge these documents in these proceedings as the appellant would be prejudiced by their contents.
Section 328(3) of the 1998 Act permits the receipt by the panel of fresh or additional evidence where that evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment. A brief review of the documentation attached to the AALD establishes that those documents were available to the respondent before the medical assessment. In those circumstances, there is no legal basis to admit the documents on this appeal.
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 WorkCover Medical Assessment Guidelines 2006.
As a result of the preliminary review, the panel determined that it was unnecessary for the worker to undergo a further medical examination. The panel noted that the appellant had requested re-examination by a doctor who was a member of the panel. However, as the panel determined that the appellant had not proven error in the MAC, there was no factual or legal basis for a further medical examination.
EVIDENCE
The appeal panel has before it all the documents which were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the Medical Assessment Certificate given by the MA are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated here in full, but have been considered by the appeal panel.
In summary, the appellant alleged that the MA had failed to consider relevant considerations and considered irrelevant considerations in respect of the Psychiatric Impairment Rating Scale (PIRS) categories of Social functioning and Employability.
After considering the descriptors for impairment of Social functioning in Table 11.4 of the Guidelines, the appellant argued:
“To qualify for class 3, what is required are periods of separation and severe straining of previously established relationships. The appellant’s important relationships at her age now encompass not only her children but her grandchildren. She played an active and caring role in their lives. This was culturally and personally important to her. The appellant’s evidence shows that as a result of the injury she is not able to connect with those she loves the most and in that way the relationships are severely strained.”
The appellant continues:
“She is unable to care for her 18 month old grandchild in the way she previously could and this has resulted in someone else having to care for that child. She now only occasionally does so. The Assessor has failed to have any regard to the all [sic] of the appellant’s evidence which was relevant to the assessment. This concluded her statement evidence.”
On the basis of the above submission, the appellant asserted that she “more appropriately fits within class 3 for Social functioning”.
In respect of Employability , the appellant noted that the MA differed from Dr Rastogi, who had determined a moderate impairment in respect of Employability. The MA had assigned class 2, whereas Dr Rastogi had assigned class 3 for this category. After considering the descriptors for classes 2 and 3 in Table 11.6 of the Guidelines, the submission continued:
“The evidence of the appellant is that as a result of her injury she has difficulty communicating in a group setting, she is overwhelmed in a crowded space, she is highly sensitive to being judged, she is exhausted, tired and forgetful and lacks confidence liaising with colleagues. It is true that the appellant is carrying out work at home on 3 days. The Assessor stated in his reasons that she was complying with the employer’s requirement in respect of COVID-19 restrictions to work from home.
This is not her evidence. She is not working in the ‘same position’. She is working in a ‘different position’.”
The appellant submits that she is medically restricted to a working from home arrangement because of her injury and that she is only able to carry out a limited part of her pre-injury job. The appellant argues she is not in a different workplace carrying out her normal work as she is not able to do this. Rather, she is “in effect in a sheltered workshop type situation”. On the basis of this relevant evidence the appellant should be assessed as class 3 in respect of Employability.
By its response, the respondent referred to a series of cases from the Supreme Court where it was held that a mere difference of opinion as to whether to assign a mild or moderate impairment to any of the PIRS categories did not disclose an error. These cases included Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker), Ferguson v State of New South Wales [2017] NSWSC 887 (Ferguson) and Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633.
In respect of Social functioning, the respondent stressed the words “evidenced by periods of separation or domestic violence” in the descriptors. It submitted that there was no evidence of separation or domestic violence which would warrant assigning class 3. While the appellant’s condition has impacted on her relationship with her grandchildren, the appellant continues to care for them “on an occasional basis”.
The respondent submits that Dr Rastogi also assessed a class 2 for Social functioning and on the basis of her opinion and all of the evidence it was open to the MA to reach the same conclusion.
In respect of Employability, the employer respondent? submits that the evidence does not establish that the appellant is working in an area that requires “less skill or is qualitatively different” so that she might qualify for class 3. It submitted that the appellant had only moved into her current management role in October 2020, after the date of Dr Rastogi’s assessment of permanent impairment. Patently, Dr Rastogi could not have considered the nature of this employment in expressing her opinion as to permanent impairment.
The balance of the respondent’s submissions addressed its application to admit documents as fresh or additional evidence which has been dealt with above.
DISCUSSION AND FINDINGS
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the 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.
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the 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 those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in her application.
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the medical assessment certificate is binding.
In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52 (Kocak) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Kocak, it was said that:
“The function of a medical panel is neither arbitral nor 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 form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Kocak has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
Social functioning
The descriptors for class 2 of Table 11.4 are as follows:
Class 2: Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
The descriptors for class 3 of Table 11.4 are as follows:
Class 3: Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
As the appellant submits Chapter 11.12 of the Guidelines states that the descriptors are examples only and the MA is required to consider the worker’s cultural background and activities that are usual for the worker’s age, sex and cultural norms in assigning an appropriate classification. In the MAC, the MA recorded the following relevant history in respect of this category:
“Her family is close and supportive but she loses her temper and becomes agitated and there is consequent strain. Her daughter-in-law is supportive and she has time with grandchildren, enjoying a good relationship with the 10-year old and also seeing the 18-month old grandchild. She was caring for this grandchild up until December 2020 one day a week to assist and that was a satisfactory arrangement. Now she does this on an occasional basis.”
As the respondent submitted Dr Rastogi, who assessed the appellant in June 2020 also assigned a class 2 to Social functioning. In her reasons for assigning this class, she stated:
“Mild impairment as existing relationships strained with children due to emotional disconnection and limited contact with them.”
In the opinion of the panel there was ample evidence on which the MA could assign class 2 for Social functioning. It is evident that many of the descriptors for class 3 are not met in this case. There is no evidence of periods of separation or domestic violence. There is no evidence of relatives or community services looking after children. On the contrary, the appellant describes her family as “close and supportive”. There has been some interruption to the child-minding which she previously performed one day a week. However, the appellant still carries out this function occasionally.
Both the opinion evidence of Dr Rastogi and the history obtained by the MA strongly suggest that the appellant suffers a mild impairment in the area of Social functioning which clearly falls within class 2.There is no demonstrable error. Further, the MA has not taken into account irrelevant considerations and there is no failure to consider relevant considerations as the appellant alleges.
Rather, the MA has lucidly set out the relevant history so that the actual path by which he reached his classification can be readily discerned by the reader. In conformity with the instruction in Kocak, he has applied his experience and expertise in assigning the appropriate class to the category of Social functioning.
Employability
The descriptors for class 2 in Table 11.6 of the Guidelines are as follows:
Class 2: Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).
The descriptors for class 3 are as follows:
Class 3: Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
In the MAC, the MA recorded the following in respect of the appellant’s Employability:
“She is currently working 3 days a week for the Department of Transport but working from home. She is a manager in regulatory agreements. 90% of her work is at home. She works Monday, Wednesday and Friday and complains of fatigue and thus her workers compensation certificate restricts her to these arrangements. She finds the job challenging but likes it. She is uncertain about the future as there are structural changes currently and she is uncertain.
On a workday she is up at 6.30 and working at 7, continuing until 3.30 or 4pm when she shuts down the computer and then does little, not going out at all.”
In his reasons for assigning class 2, the MA said this:
“Ms Parthasarathy is working at management level, 3 days a week substantial hours working from home as required by the employer during the COVID era.”
Again, the panel concluded that there was ample evidence on which the MA could conclude that the appellant fell within class 2. On the history that he recorded the appellant was working more than 20 hours per week in a comparable position to that of a procurement officer. While the appellant stresses in her submissions that she is performing a “different job”, it was clearly open to the MA to form the view that as the appellant could perform reasonably sophisticated regulatory work at a managerial level, she could also perform her pre-injury work of procurement for those hours. There is no support in the evidence for the appellant’s extravagant contention that she is in effect consigned to work in a sheltered workshop.
Further, it was open to the MA on the evidence to conclude that the appellant could perform her preinjury work at a different location. It may be necessary to ensure that the appellant is not required to work with the “specific persons” who were instrumental in the onset of her psychological injury. But that does not detract from an assignment of class 2. It is also evident from her statement that in addition to her work for the respondent the appellant continues to perform occasional part-time work in an internet business that she has carried out for some time.
While Dr Rastogi concluded that the appellant could not work in the same position, Dr Teoh, the psychiatrist qualified by the respondent had reached a contrary conclusion. He expressed the opinion that the appellant had not suffered a permanent psychiatric impairment and thought that she could “return to pre-injury duties and hours within 2 months with another employer”.
The MA dealt with these varying opinions as to Employability in the MAC. In respect of Dr Rastogi’s opinion, the basis of his disagreement is logical and compelling. He said this:
“I have disagreed with the moderate impairment rating on Concentration, Persistence and Pace made by Dr Rastogi. I have instead made a mild class 2 impairment rating. This is because Ms Parthasarathy is working an eight hour day, three days a week in a management position, notwithstanding subjective complaints of distractibility and fatigue.
I have disagreed with Dr Rastogi’s class 3 impairment rating with respect to Employability. This is because Ms Parthasarathy is managing to work substantial yet reduced hours in a management position away from her previous mistreatment. I have made a class 2 mild impairment rating.”
It is also true that there had been a change in the nature of the appellant’s employment between the date of Dr Rastogi’s assessment and the consultation with the MA. Patently, this may detract from aspects of Dr Rastogi’s opinion.
In considering the criticisms of the MA made by the appellant, it must be borne in mind that the assignment of classes in respect of PIRS is a medical conclusion based on the skill and experience of a highly qualified psychiatrist after a full medical examination. It is not based solely on the self-assessment of the worker as to her capability. In Jenkins, Garling J said at [73]
“It was a matter for the clinical judgement of the AMS to determine whether the impairment with respect to Employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
Equally, a mere disagreement about assignment to a class is insufficient to ground an assertion of demonstrable error or incorrect criteria. The appellant has failed to establish that there is error in the assignment of class 2 for Employability. The descriptors for a moderate impairment were not established on the evidence.
For these reasons, the appeal panel has determined that the MAC issued on 6 April 2021 should be confirmed.
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