Patel v Hygiclean Australia Pty Ltd ATF the Endeavour

DETERMINATION OF APPEAL PANEL
CITATION:	Patel v Hygiclean Australia Pty Ltd ATF The Endeavour [2024] NSWPICMP 746
APPELLANT:	Ambaben Patel
RESPONDENT:	Hygiclean Australia Pty Ltd ATF The Endeavour
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	30 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Appeal against finding that a new injury had occurred which had been responsible for ¾ of the assessed 44% impairment; whether incorrect criteria applied in finding new injury (neurocognitive disorder likely due to Alzheimer’s disease); whether demonstrable error in failure to give adequate reasons for so finding; whether finding a subsequent injury was beyond power; whether applying the principles in Oatley was beyond power; Held – the Medical Assessor (MA) had issued an earlier Medical Assessment Certificate (MAC) that maximum medical improvement MMI not reached, and made recommendations therein for further tests to be obtained regarding differential diagnoses; current Medical Appeal Panel (Panel) for re-assessment did not have the recommendations acted on, as expert report lodged in response failed to consider them, claimant illiterate and largely mute in most presentations to doctors; further documentation called for by Panel; no evidence therein of any cognitive testing, diagnosis made on clinical criterion of claimant’s presentation, but many objective tests available for proper diagnosis; MAC revoked and MMI reinstated pending proper investigation; MA’s finding of subsequent injury beyond power; MA’s interpretation of Oatley beyond power; MA’s application of Oatley incorrect in any event; observations on template [8g] being contrary to law; Wingfoot Australia Partners Pty limited v Kocak, Skates v Hills Industries Ltd, Oatley, and Bunnings Group Ltd v Davis considered and applied.

BACKGROUND TO THE APPLICATION TO APPEAL

On 18 December 2023 Ambaben Patel, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 November 2023.
The appellant 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 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 (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). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 20 December 2023 this matter was referred to the Medical Assessor for WPI assessment of psychiatric/psychological disorder that occurred on a deemed date of 11 October 2019. The Medical Assessor, Dr Douglas Andrews, had already issued a MAC in Ms Patel’s case on 28 June 2022 when he found that maximum medical improvement (MMI) had not then occurred. This appeal relates to the further MAC issued by the Medical Assessor on 23 November 2023, which incorporates much of the 28 June 2022 MAC.
Mrs Patel was employed as a factory cleaner with Hygiclean Australia Pty Ltd ATF The Endeavour (the respondent). She was born and raised in Gujarat, India, where she attended school until year two and she remains illiterate. She was born in a farming family, and education was considered unnecessary.[1] She married her husband of over 45 years in India, and visited Australia with him in 2006, emigrating to Griffith in 2013. They live on a street where several other immigrants from Gujarat also live. Mr and Mrs Patel have two sons and three grandchildren who live nearby.
[1] Appeal papers page 24.
One of the features of this community appears to be that many members also have the surname Patel. There was a statement lodged, ostensibly from Ms Patel, but which Mr Patel noted had been “helped” by him.[2] Indeed the evidence suggests that many of the times Ms Patel was initially assessed by various health professionals, she was usually mute, and her husband supplied the histories.
[2] Appeal papers page 54.
Ms Patel’s apparent statement related that she started working for the respondent in 2016, and that from about April 2019 she was regularly abused in the Gujarati language by the leading hand, one Hitesh Patel. Complaints were made to Mr and Ms Patel’s supervisor, one Upendra Patel, but without any action being taken. Mr Patel also put on a statement, recounting that on 11 October 2019 he saw his wife running and screaming for help from Hitesh Patel, who was “going after” Ms Patel, speaking to her in abusive language, and that he found Ms Patel unconscious on the ground when he approached her. She has since suffered a significant decompensation.
In the subject MAC, the Medical Assessor found an impairment of 44%, from which he deducted three quarters for a subsequent unrelated injury, leaving a certification of 11% WPI.

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 worker to undergo a further medical examination because none was sought, and the nature of the review (appeal) was concerned with the neurocognitive disorder identified by the assessor as a subsequent injury. A further examination by a panel member of a worker who has been near mute in assessments, and/or with marked cognitive impairment, would not provide further information.

EVIDENCE

Documentary 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.

Medical Assessment Certificate

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

Both parties made written submissions which have been considered by the Appeal Panel.

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. 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.
The appeal concerned the deduction made by the Medical Assessor.

THE MAC

It is convenient to consider both MACs issued in this case separately.

28 June 2022 (the first MAC)

When the Medical Assessor originally examined Ms Patel on 11 May 2022 he said:[3]
“I assessed Mrs Patel by video link at her solicitor's office with her husband. The assessment was conducted with an interpreter using Gujarati.
Initially, I asked Mr Patel to allow Mrs Patel to speak for herself.
I asked her age, birthdate, where she lived, where she was now, why I was seeing her and what would country we were in. For each question, she responded, ‘I don't know’, except for where she was now, to which she replied, ‘at the doctors.’
She was a slight woman wearing a brown beanie and a black top. She exhibited severe psychomotor retardation and sat with a slumped posture looking at the floor throughout the interview. Her affect was blunted; her expression did not change throughout the interview…..
Mr Patel reports that Mrs Patel is profoundly unwell. She rarely speaks or moves without prompting. Her husband assists her with eating and dressing, encouraging and prompting her. He feels that she often doesn't understand what is expected but can follow simple directions. She has lost about 20 kg since leaving work.”
[3] Appeal papers pages 22-23.
The Medical Assessor recorded in his summary:[4]
“…Because of the challenges of the interview and lack of clinical records, it is not possible to arrive at a definitive diagnosis.
Considering all available information, my provisional diagnosis is:
· major depressive disorder with melancholic features and possible psychosis.
Mrs Patel presents significant cognitive deficits. These deficits may be due to pseudodementia associated with a mood disorder or a dementing process.
Her repeated ‘I don't know’ responses indicate a lack of effort or engagement with the assessment.
She may have late-onset schizophrenia, or her presentation may represent abnormal illness behaviour.”
[4] Appeal papers page 25.
The Medical Assessor embarked on a consideration of the relevant evidence in answer to the templated [10c], which reads: “My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs”. (Emphasis in original)
The Medical Assessor considered:[5]
[5] Appeal papers from page 27.
(a)    the statement of Ms Patel with help by Vashi Bhaj Patel;
(b)    the report by Dr Robert Gertler, psychiatrist of 6 May2021;
(c)    the undated report by Dr Surabhi Verma, Ms Patel’s medico-legal expert certifying that MMI had not been reached, and
(d)    further documents received on 10 June 2022, which contained:
(i)complete record from Your Health Griffith, being the notes of general practitioner (GP) Dr Kosaka;
(ii)Wagga Wagga Rural Referral Hospital notes – admission 7 November 2019;
(iii)Griffiths Base Hospital notes – admission 30 April 2020;
(iv)letters from Dr Nicola Rendina of 6 April 2020 and 2 November 2020;
(v)letter from Dr Julian Short, psychiatrist dated 12 January 2021, and
(vi)report of Dr Verma of 28 June 2021 which both found that MMI had not been achieved, and agreed with Dr Gertler’s assessment of 47%.
In concluding his survey of the relevant evidence, the Medical Assessor said:[6]
“These documents provide a picture of a woman who has been assessed by several psychiatrists and had three hospital admissions. There has been diagnostic uncertainty and significant variability in her mental state presentation. At times, she presents as withdrawn, psychomotor retarded and mute, which has been characterised as 'catatonia' in the context of major depression, with or without psychosis. At other times she is relatively well and can shift from one state to another quickly.”
[6] Appeal papers page 41.
In answering a templated question at [8b] regarding MMI, the Medical Assessor said:
“Mrs Patel presents as profoundly unwell. A treating psychiatrist has not assessed her for at least a year. It remains possible that her condition could improve, and her impairment may resolve, at least to some extent.
She warrants urgent referral to a treating psychiatrist, ideally a psychogeriatrician with transcultural experience, for diagnostic clarification and appropriate management. It may be necessary to assess her in an inpatient setting.
It is impossible to say that her condition is stable or has reached maximum medical improvement until this is done. As far as I can tell, no one has yet done a comprehensive cognitive assessment looking for a dementing process. This assessment would be challenging and needs to be conducted in Mrs Patel’s language with sensitivity to her cultural background and limited education.
Her reassessment for the PIC should occur after further assessment and treatment by a psychogeriatrician. Any future evaluation for the PIC should be done in person because the challenges will make it impossible to get a clear picture in a video consultation. It may be helpful to have her assessed without her husband present.”
On 27 July 2022 a Certificate of Determination issued from the Personal Injury Commission (Commission), stating that the permanent impairment resulting from Ms Patel’s injury was not fully ascertainable, and that proceedings could be restored when she had attained MMI.[7]
[7] Appeal papers page 91.
An application to restore was not made until 30 August 2023 by Ms Patel’s solicitors. The application stated:[8]
“…In accordance with [the Medical Assessor’s] treatment recommendations the worker attended Dr Julian Short Psychiatrist who opined that the worker is unlikely to improve with or without further treatment.”
[8] Appeal papers page 92.

23 November 2023 (the current MAC)

The Medical Assessor repeated the history he had taken in his first MAC of 11 May 2022.[9] He noted that Ms Patel’s medications were stopped about a year earlier and that she had not consulted a psychologist or psychiatrist.
[9] Appeal papers page 32.
On examination for the current MAC, the Medical Assessor said:[10]
“…It was necessary to conduct most of the interview with Mr Patel and verify Mrs Patel’s responses.
She presented as an elderly Indian woman, casually attired in a pink top with her hair pulled back. She appeared well cared for.
She was passive during the interview but responded to questions when directly asked. Her affect was restricted. When she spoke, she did so in Gujarati, and there was no apparent psychomotor slowing. Her answers were short and vague.
She was unable to tell me the month or year. She knew she was in an office but didn’t know who it belonged to. Although I had introduced myself and outlined the purpose of the assessment, when asked later in the interview, she didn’t know who I was or why we were meeting. She
correctly stated that she was 70 but didn’t know what year she was born. She didn’t know how long she had lived in her current residence and could not give me her home address.
I reminded her that she had become unwell after problems in the workplace, but she could not remember anything about that.
When asked at the end of the interview if he had anything further to add, Mr Patel said, ‘I am just waiting for her to get better.’”
[10] Appeal papers page 34.
The Medical Assessor again considered the material before him at [10c]. He repeated his opinion from his first MAC as to the recommendations he made, which we have reproduced at [25] above. He noted that Dr Short had provided a reply on 13 August 2023, and the Medical Assessor repeated it, verbatim.[11] The Medical Assessor commented that Mr Patel denied there had been any further consultation with Dr Short, so he doubted that there had been a re-assessment. The Medical Assessor said:[12]
“With respect, it isn’t clear that Dr Short reassessed Mrs Patel (Mr Patel denied he had), and my concerns were not addressed. I appreciate Dr Short’s opinion that Mrs Patel has a poor prognosis and, given that it appears that she has had no further assessment or treatment, that her condition is unlikely to improve. The issue of her cognitive decline isn’t mentioned. Her mood disorder has improved and is stable. She is communicating and it is possible to examine her mental state.”
[11] Appeal papers page 36.
[12] Appeal papers page 37.
The Medical Assessor repeated his comments regarding the evidence before him that he had made in the first MAC. After also repeating his summary, which we have reproduced at [21] above, he said:[13]
“Mrs Patel’s mood disorder has improved, but her neurocognitive symptoms are at least as severe. …..”
[13] Appeal papers page 41.
In explaining why he was satisfied that MMI had been achieved, the Medical Assessor said:[14]
“...Mrs Patel’s condition is severe and entrenched. She is on no treatment. Her mood disorder has significantly improved, but she remains profoundly impaired by her neurocognitive disorder. Her condition and associated impairment will not change significantly over the next 12 months, with or without further medical treatment.”
[14] Appeal papers page 35.
In his summary the Medical Assessor said:[15]
“My diagnoses rely on the Diagnostic and Statistical Manual – Fifth Edition (DSM-5), published by the American Psychiatric Association.
·Persistent depressive disorder
·Neurocognitive disorder likely due to Alzheimer’s disease
When I assessed Mrs Patel in 2022, I had diagnosed her with a ‘major depressive disorder with melancholic features and possible psychosis.’ I also noted that she presented with ‘significant cognitive deficits.’
Mr Patel stated that his wife’s condition has improved since my last assessment. She has some continuing mood symptoms without anxiety, and there is no evidence of psychosis. Her melancholic features have resolved – she no longer shows evidence of psychomotor retardation and does not have sleep or appetite disturbance. She does not now meet the DSM-5 criteria for a major depressive disorder, but her continuing mood symptoms warrant a diagnosis of persistent depressive disorder.
At my last assessment, it was impossible to assess cognition because Mrs Patel was mute and immobile. She now shows significant problems with cognition and memory. Her mood disorder has improved.”
[15] Appeal papers page 34.
At [8g] of the MAC the following appears:
“g. Indicate whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment, this should not be included with the impairment assessment due to the subject work injury.
Mrs Patel has a moderately severe neurocognitive disorder, probably of the Alzheimer’s type. Her deficits in cognition and memory are not consistent with a mood disorder or with the effects of any past treatment, including the ECT. The majority of Mrs Patel’s impairment is due to the degenerative neurocognitive decline. Her mood disorder has significantly improved. Her neurocognitive deficits would exist whether or not she had suffered a workplace injury, and her impairment would be severe.
Referring to the decision of Malcolm CJ in State Government Insurance Commission v Oakley (Oakley), this is a situation where the worker has previously suffered an injury but has a subsequent injury that would have occurred whether or not she had suffered the original injury and the damage sustained because of the subsequent injury includes no element of aggravation of the earlier injury. Therefore, there is no causal connection between the original injury and the damage subsequently sustained.”
At [10b] the Medical Assessor explained his calculations:
“I have determined a 44% WPI. Most of Mrs Patel’s impairment is due to her subsequent neurocognitive disorder. Determining an exact proportion due to the subsequent injury is impossible, but relying on my expertise and experience as a psychiatrist, I consider that it has been at least three-quarters. I have apportioned one-quarter of her impairment to the mild persistent depressive disorder.”

SUBMISSIONS

Ms Patel

Ms Patel submitted that in making a diagnosis of neurocognitive disorder likely due to Alzheimer’s disease, the Medical Assessor had fallen into error. She submitted that there was no basis for that diagnosis, as no tests, psychiatric evaluation nor any expert opinion had suggested it. Ms Patel submitted that there had been a failure to provide adequate reasons for reaching that conclusion.

A further error was apparent, it was submitted, when the Medical Assessor considered whether there had been a further injury and purported to apply one of the three tests set out in State Government Insurance Commission v Oakley.[16] This was a determination as to causation, and concerned an impermissible legal determination, Ms Balendra argued. There were no findings from the Commission regarding the existence of a subsequent injury, nor was there any evidence before the Medical Assessor to support his finding.
[16] (1990) 10 MVR 570 (Oakley).
Further, it was argued that Ms Patel of been deprived of procedural fairness, and she had no opportunity to consider these conclusions. She was not able to provide evidence regarding the alleged existence of any neurocognitive disorder, nor the relationship, if any, between the work-related injury and this alleged later condition.

Respondent

The respondent submitted that the Medical Assessor supported his diagnoses by his reference to Ms Patel’s problems with cognition and memory that were not consistent with a mood disorder, or with the effects of past treatment. The Medical Assessor had commented that there was diagnostic uncertainty and significant variability over the years as to Ms Patel’s condition.
The Medical Assessor, it said, was not obliged to accept the opinions of other medical practitioners, but do no more than take them into account. It submitted further that a mere difference of opinion on a subject about which reasonable minds might differ was not sufficient to establish error.
The respondent then made submissions as to s 323 of the 1998 Act, on the assumption that the 75% deduction was relevant to that provision.
With regard to the methodology used by the Medical Assessor in determining that there had been a subsequent injury, the respondent submitted that such a methodology was permissible, referring to Curran v Linfox Armaguard Pty Ltd.[17]
[17] [2021] NSWPICMP 76 at [21].
The respondent submitted that the Medical Assessor had found that Ms Patel’s neurocognitive disorder was unrelated to her work, and that the workplace injury did not aggravate that condition.
The Medical Assessor had noted that whilst Ms Patel’s mood disorder had improved significantly, her cognitive and memory deficits persisted, the respondent noted. These findings constituted an adequate explanation for his reasoning, it submitted. It denied that procedural fairness had not been shown to Ms Patel.

DISCUSSION

Chapters 1.15 and 1.16 contain the guidelines regarding MMI:
“Maximum medical improvement
1.15 Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.
1.16 If the medical assessor considers that the claimant’s treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation…”

The diagnosis of neurocognitive disorder

The first submission from Ms Patel claimed that the Medical Assessor had erred in finding a neurocognitive disorder by failing to identify the criteria on which he relied, and failing in any event to give adequate reasons for his diagnosis.
It would seem that the Medical Assessor had some doubt in his first MAC as to the presence of a cognitive disorder, as he did not then make the diagnosis. However, he clearly suspected it, as was apparent from the reasons he gave in his MMI determination, and in the recommendations he made at [25] above. His summary also suggested further differential diagnoses, to which he referred at [21] above, namely late onset schizophrenia and abnormal illness behaviour, although provided no specific reasons for these beyond “considering all the available information”.
At that stage, the Medical Assessor did not have enough evidence to either confirm or refute a diagnosis of neurocognitive disorder, and hence he drew up his list of recommendations. One of his recommendations was that an opinion be obtained from an expert, notwithstanding that the assessment would be challenging, in Ms Patel’s language and “with sensitivity to her cultural background and limited education.” The Appeal Panel notes that Mrs Patel had previously been assessed by an experienced psychogeriatrician, Dr Rendina, during admissions in 2019 and 2020, and he reviewed her as an outpatient over that period. He made no diagnoses indicative of neurocognitive disorder or dementia over that period although reported similar and variable communication and behavioural impairment over those months. Over that same period the second opinion from another psychogeriatrician, Dr Aqualina suggested diagnoses of either a dissociative disorder or underling psychosis.
The main clinical change the Medical Assessor recorded in the current MAC was that Ms Patel’s mood disorder had significantly improved, and from that he concluded that she did not then meet the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition
(DSM-5) criteria for a major depressive disorder. His diagnosis was changed to that of a persistent depressive disorder, which often represents a chronic partially remitted depressive disorder, and he followed that with the statement:
“The majority of Ms Patel’s impairment is due to neurocognitive decline.”
He noted in his summary that it had been impossible to assess cognition in his first assessment “because Ms Patel was mute and immobile. She now shows significant problems with cognition and memory.” However she was not mute but reportedly answered “don’t know” to basic cognitive questioning
A comparison of the cognitive aspects of the two mental state examinations carried out by the Medical Assessor is informative. In the assessment of 22 May 2022 he received answers from Ms Patel of “I don’t know” to questions about her age, birthdate and residence. She did not know which country she was in although knew she was at the doctors. He relied on Mr Patel to give the background and describe her activities of daily living.
On 22 November 2023 the Medical Assessor again had to rely on Mr Patel throughout “most of the interview….and [to] verify Mrs Patel’s responses.” He described Ms Patel’s answers as “short and vague” when she responded to direct questions in Gujarati. Ms Patel was unable to name the month or the year nor did she know whose office she was in, even though the Medical Assessor had identified the purpose of the meeting and who he was. Again she did not know her date of birth but correctly stated she was 70. Again she did not know her residence.
This comparison indicates very similar responses of ‘not knowing’ the answers to the same, questions through verbal answers and the reasons why this only ‘now’ demonstrates “significant problems with cognition and memory” are not provided.
We note that the Medical Assessor was reliant on Mr Patel at both examinations, and it would appear that he may have based his finding of mood improvement to some extent on Mr Patel’s report of her symptoms. The findings by the Medical Assessor that Ms Patel had continuing mood symptoms without anxiety, that there was no evidence of psychosis and that her melancholic features had resolved were clearly made on a limited basis due to the restrictions within the assessment process, as were the Medical Assessor’s findings following the first mental state examination of May 2022. Many of her treating clinicians describe her as a diagnostic dilemma and also relied upon family members. The Medical Assessor was also reliant on Mr Patel to a degree for his finding that her melancholic features had resolved, there being no longer any history of sleep or appetite disturbance. However the Appeal Panel notes his identification of her psychomotor retardation having resolved is a clinical observation, independent of Mr Patel.
In this context, we have some reservations as to the criteria the Medical Assessor relied on to make his diagnosis. We note that in his first MAC, he said:[18]
“Because of the challenges of the interview and lack of clinical records, it is not possible to arrive at a definitive diagnosis.”
[18] Appeal papers page 25.
We do not, with respect, consider that the Medical Assessor was in a better position to make a definitive diagnosis when he examined Ms Patel in November 2023. In dealing with Dr Short’s report, the Medical Assessor noted that Ms Patel’s mood disorder had improved and was stable. He said it was possible to examine her mental state. He appears to have decided that a diagnosis of neurocognitive disorder was preferable on clinical grounds only.
The respondent referred to the clinical observations made by the Medical Assessor and submitted that his finding that Ms Patel’s significant problems with cognition and memory were not consistent with her improved mood disorder, constituted an adequate explanation. However, a diagnosis of neurocognitive disorder, and specifically Alzheimer’s disease, relies on much more than such observations. Neurological examinations, neuropsychological and functional assessments, soft tissue brain imaging (MRI) are all objective investigations that can be utilised, and positron emission tomography (PET)-FDG and cerebrospinal fluid (CSF) testing increasingly used for complex cases. A CT scan in December 2019 showed no intracranial pathology.
The respondent’s submissions did not engage with the fact that the recommendations by the Medical Assessor had not been followed up, and there had been no further assessment and treatment by a psychogeriatrician, nor any further testing. There was a reference to the reports of Dr Short, Dr Gertler and Dr Verma in the uncontroversial submission that a Medical Assessor was not bound to agree with the findings of medical experts before him.[19] However, no reliance was placed on the report of Dr Short, on whom Ms Patel had relied following the recommendations of the Medical Assessor in his MAC of 28 June 2022.
[19] As to which see Wingfoot Australia Partners Pty limited v Kocak [2013] HCA 43 from [13].
As noted, the Medical Assessor reproduced Dr Short’s report at [10c] of the current MAC and responded in unambiguous terms.[20] Far from attempting to respond to the recommendations, it does not appear that Dr Short even re-examined Ms Patel, let alone supply any relevant opinion regarding the issue of cognitive impairment or decline.
[20] Appeal papers page 36-37.
The Medical Assessor in his first MAC spoke of “diagnostic uncertainty and significant variability in [Ms Patel’s] mental state presentation.” He considered differential diagnoses of cognitive deficit, schizophrenia and abnormal illness behaviour, alongside her mood disorder. He did not then consider he had sufficient information to fulfil the criteria to make any definitive diagnosis, and made the above recommendations, which were inadequately followed up. Although Ms Patel’s solicitors advised the Commission on 30 August 2023 that Dr Short’s report had been obtained “in accordance with [the Medical Assessor’s] treatment recommendations,” his recommendations were not about treatment, but rather about diagnosis and cognitive impairment.

Diagnosis of neurocognitive disorder rejected

For the above reasons, Ms Patel’s submission must be accepted. It is clear that the Medical Assessor was unable to come to any affirmative diagnosis when he certified there had been no MMI, and he was then not supplied with any of the opinions or assessments he recommended. Importantly, the comprehensive cognitive assessment confirming or refuting a dementing process that he named was not forthcoming. The Medical Assessor identified impairment in Ms Patel’s orientation to time and place in both assessments. Many older people from rural areas in low and middle income countries have minimal education, and often may not know their date of birth. It is unclear whether Ms Patel not knowing her address reflects orientation or memory. The only indications of amnestic impairment were her inability to recall the Medical Assessor’s name and reason for meeting, which might also reflect limited education, language or a lack of interest, which the Medical Assessor noted as passivity.
The reasons he gave for not being able to diagnose a neurocognitive disorder likely due to Alzheimer’s disease were inadequate. Apart from expressing his disappointment with Dr Short’s report, he did not give any reasons as to why the information that he sought in his first MAC were no longer required, and he did not display why the differential diagnoses – particularly as to abnormal illness behaviour which was thought “most reasonable” by Dr Short who had treated her from 2021 to 2023 – were no longer possible.
Our findings are sufficient on this basis alone to find that the Medical Assessor had erred, and to consider whether to revoke or confirm the current MAC.

Further enquiry

A Medical Appeal Panel can of course correct an error if possible. With Ms Patel’s extensive medical history, including three admissions to the mental health unit at Wagga Wagga Hospital, the Appeal Panel made the following call on 12 April 2024, pursuant to s 324(1)(b) of the 1998 Act:
“Pursuant to s 324 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) the Medical Appeal Panel calls for the following documents:
(a)All records in the possession of the Greater Western and Murrumbidgee Local Health District pertaining to the appellant.
(b)All medical records including notes, reports and referrals from Dr Julian Short psychiatrist pertaining to the appellant.
(c)All medical records pertaining to the appellant from Your Health Griffith from 8 June 2022 to date.”
The Appeal Panel received nine different files of information. They included:
(a)    the letter of instructions to Dr Short dated 16 July 2023;
(b)    an email chain between 23 November 2020 and 14 January 2021 concerning arrangements for an appointment with Dr Short;
(c)    further communication with Dr Short’s rooms and reports from Dr Sathish Dayalan, psychiatrist, dated 28 February 2020 and Dr Nicola Rendina dated 6 April 2020;
(d)    copy of report from Dr Short dated 13 August 2023 already considered above;
(e)    health record from Your Health Griffth Pty Ltd;
(f)    records from MLHD Mental Health Services re admissions on 11 October 2019 and 6 December 2018;
(g)    referral from GP, Dr Gayathri Kosaka on 9 November 2020 to Dr Short, and
(h)    referral from Royale Medical Centre to Dr Short dated 28 March 2023.
Whilst the clinical documentation showed that Ms Patel’s initial presentations to hospitals, and subsequent rapid temporal fluctuations have been consistently inconsistent, no cognitive testing is mentioned, which suggests little suspicion by her treating psychogeriatrician of an underlying neurocognitive disorder in 2019-2020. Neither does Dr Short, who treated her from 2021-2023 report any testing or suggest such a diagnosis, even as a differential. Thus, we were unable to find any objective criteria that would support or refute the diagnosis of neurocognitive disorder, and the MAC must therefore be revoked.

Disposition

The result is that the question of diagnosis is still a live issue. In his first MAC the Medical Assessor gave a comprehensive analysis of the evidence and his assessment - with which we concur – was that the diagnosis is unclear. Whilst a cognitive disorder has been postulated by him, and a recommendation for further investigations has been made, alternative diagnoses are also a distinct possibility, as was acknowledged by the Medical Assessor himself – including that of abnormal illness behaviour. We alluded to this when discussing the Medical Assessor’s recommendation that a psychogeriatrician with transculture experience investigate Ms Patel’s case.
Dr Aqualina raised this likely diagnosis in 2019/202. Ms Patel has been often mute and always assisted by her husband. She comes from a poor uneducated hierarchical background. She is illiterate and the presentation demonstrated by the evidence before the Medical Assessor and by the documents we called for, may very well demonstrate a fluctuating presentation which is overlaid by illness behaviour, caused by her culture. Dr Short concurs that “I believe (abnormal illness behaviour) to be most reasonable and more than possible in this bewildered and uneducated woman” and that it may “complicate the clinical picture”
The diagnosis of “neurocognitive disorder likely due to Alzheimer’s disease” is possible, but there is no evidential support from Ms Patel’s treating clinicians over several years hitherto for the Medical Assessor’s diagnosis. However we are unable to make a determinative ruling until the investigations recommended by the Medical Assessor are made.
Thus, the Medical Assessor has applied incorrect criteria in reaching his diagnosis, and he has also made a demonstrable error in failing to explain adequately how he reached this diagnosis in the absence of the investigations that he had recommended.
Given that we have determined that there is a disorder that is still yet to be classified or clarified, and that this appears to be having substantial impact on the current level of impairment, it is not clear whether this is a feature of the presenting disorder or a new disorder. It follows that Ms Patel needs to be more thoroughly investigated and possibly treated, depending on the outcome of the investigations.
Chapter 1.15 requires a Medical Assessor to be satisfied that a worker’s condition is well stabilised and unlikely to change substantially in the next year with or without medical treatment. We are unable to determine whether Ms Patel is stable or not. If the investigations demonstrate that she does indeed suffer from a neurocognitive disorder then further change may be likely, and might be quite substantial. Ms Patel’s presentation suggested there might be further change over the next year. Her mood appeared to be improving to the extent that her differential diagnosis was downgraded by the Medical Assessor from a major depressive disorder with melancholic features and possible psychosis, to a persistent depressive disorder. However we do not think that his finding that she now had a neurocognitive disorder likely due to Alzheimer’s disease was properly found, as we have determined.
Until this recognised diagnostic dilemma is resolved it is not possible to find that MMI has been reached. Accordingly, the MAC is revoked.

Other issues

We note Ms Patel’s submissions regarding the finding by the Medical Assessor that the neurocognitive disorder was a new injury, and indeed that his purported application of the rule in Oakley was beyond power, but in view of our finding a detailed determination is not necessary. Suffice it to say that these submissions must also be upheld. The scope of a Medical Assessors function is restricted by the terms of the referral, unless they are contrary to the agreement between the parties.[21]
[21] Skates v Hills Industries Ltd [2021] NSWCA 142.
Further, it is doubtful whether it is within the power of a Medical Assessor to make findings about subsequent injuries, as such a determination involves more than one injury, in contravention of s 319 of the 1998 Act, and a legal interpretation as to their effect. The determination of whether a subsequent injury has affected a claimant’s entitlement goes to the nature of the injury and is a matter for the Commission.[22]
[22] Bunnings group Ltd v Davis [2023] NSWPICMP 525
We also note that in any event, the Medical Assessor’s apportionment of ¾ of the impairment to the alleged neurocognitive disorder was incorrect. His purported finding was that the disorder was in fact a novus actus interveniens under the third rule in Oatley, by which there could be no impairment awarded at all for the work-related injury.

In passing, we would observe that the respondent’s reliance on Curran is misconceived, with respect. It relied on the observation by a Medical Appeal Panel that there was a template (at [8g]) of the standard form MAC precedent that said:
“Indicate whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment, this should not be included with the assessment of impairment due to the subject work injury”. (Emphasis in original)
Although many standard form MACs continue to issue with this subparagraph (including the two MACs before us), the standard form has been amended since Johnson to delete sub-paragraph 8g, as clearly its terms are contradictory to the law as it is now applied.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 November 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:	W6290/21
Applicant:	Ambaben Patel
Respondent:	Hygiclean Australia Pty Ltd ATF The Endeavour

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 Douglas Andrews 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/ psychological	11.10.2019 (deemed)	Chapter 1.15 & 1.16, Chapter 11	N/A	Maximum medical improvement not reached
Total % WPI (the Combined Table values of all sub-totals)

[2024] NSWPICMP 746

30 October 2024