Pene v Nova Patisserie Pty Ltd
[2024] NSWPICMP 417
•27 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Pene v Nova Patisserie Pty Ltd [2024] NSWPICMP 417 |
| APPELLANT: | Wayne Te-Huia Pene |
| RESPONDENT: | Nova Patisserie Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 27 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury under the Psychiatric Impairment Rating Scale; argument that Medical Assessor should have had greater regard to evidence in the file; principles of assessment; SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th edition, 1 March 2021; State of New South Wales v Kaur; Held – error in assessment of social functioning; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 April 2024 Wayne Te-huia Pene lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Himanshu Singh, who issued a Medical Assessment Certificate (MAC) on 3 April 2024.
Mr Pene 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Pene was employed by Nova Patisserie Pty Ltd (Nova) as a cleaner and storeperson. He suffered a psychological injury, which is deemed to have occurred on 17 November 2020, as a result of his interactions with his manager.
The Medical Assessor assessed Mr Pene’s whole person impairment (WPI) under the Psychiatric Impairment Rating Scale (PIRS). He assessed him in class 1 for social functioning, class 2 for self care and personal hygiene, travel and concentration, persistence and pace, class 3 for social and recreational activities and class 5 for employability. The Medical Assessor assessed 8% WPI, to which he added 1% for the effects of treatment. No appeal point was raised with respect to the allowance for the effects of treatment.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Mr Pene to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, and in submissions prepared by Ms Warren of counsel, Mr Pene submitted that the Medical Assessor “failed to have due regard to the lay and medical evidence before him” in his assessments of self care and personal hygiene, social functioning and concentration, persistence and pace. In each of those categories, Mr Pene referred to the evidence in the file which he said supported an increased assessment.
In reply, in submissions prepared by its solicitor, Mr Michael, Nova submitted that the evidence in the file and previous histories are contextually relevant, the clinical history recorded on the day of the examination is paramount.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Queanbeyan Racing Club Ltd v Burton[1] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[1] [2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[2] [2006] NSWCA 284.
Our task as a Medical Appeal Panel is to determine if the Medical Assessor has made a demonstrable error or applied incorrect criteria. We cannot substitute our own view for that of the Medical Assessor unless he made an error within the meaning of s 327(3) of the 1998 Act.
It is relevant to point out some general principles with respect to assessment under the Guidelines and the PIRS before considering the specific submissions. The Guidelines required that the Medical Assessor to assess Mr Pene’s permanent impairment on the basis of the way he presented on the day of the examination, using his own clinical judgement.[3]
[3] Guidelines paragraph 1.6 (a) and (b)
The Medical Assessor’s role is not to adopt, or choose between, the assessments made by other examiners on other days. In State of New South Wales (NSW Department of Education) v Kaur[4] Campbell J said:
“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.’”
[4] [2016] NSWSC 346.
The material in the file provides the Medical Assessor with the background to the claim. The MAC template alerted him to explain how his assessment differed from the other reports in the file.
Class 1 applies under each of the tables where there is no deficit or a minor deficit attributable to the normal variation in the general population. Class 1 contemplates that there is a range of behaviour and capacity which is normal and not every deficit experienced by a worker will necessarily lead an assessment in a higher class. The Medical Assessor was required to assess how Mr Pene’s situation differed from that normal variation.
The evidence to which we were urged to have regard included two statements from Mr Pene dated 3 March 2023 and 30 January 2024, the latter of which was structured by reference to the PIRS tables. Mr Pene relied on the report of Dr Canaris dated 14 April 2023 obtained by his solicitors in which he assessed 19% WPI.
Dr Bisht saw Mr Pene at the request of Nova’s insurer and reported on 26 May 2021,
13 April 2023 and 23 October 2023. In his final report he assessed 5% WPI.
Self care and personal hygiene
In a report dated 1 April 2023, about a year before the examination by the Medical Assessor, Dr Canaris assessed Mr Pene in class 3 because of his unkempt appearance. The other factors relied on by Dr Canaris would support assessment in class 2. The history obtained by the Medical Assessor shows some improvement since that time.
The Medical Assessor assessed Mr Pene in class 2, a mild impairment, and recorded:
“Mr Pene showers irregularly, once a week, when he goes to church. He has stopped shaving, used hair trimmer when needed. He brushes teeth when he showers. He cooks, cleans the house and does laundry sometimes when he is in the mood, and has the energy and motivation. His mum must remind him often to do things.”
The Medical Assessor also noted that Mr Pene is trying to do some basic baking at home “and it helps him organise better”.
The Medical Assessor’s history is substantially the same as in Mr Pene’s statement dated 30 January 2024, though in his statement he also said:
“I do not help my mother with the household chores, but I have started my own garden outside and I do help my mother with her garden. That is basically all I do around the home.
Since starting my own garden, I have been eating slightly healthier by eating salads, using the ingredients from my garden.”
The statement mainly relied on in Mr Pene’s submissions was that dated 3 March 2023. At that time he was “comfort eating”. His submissions noted Dr Baddam’s reference to an unhealthy lifestyle but that note was written on 24 February 2022. A review of the evidence shows that there has been some improvement in Mr Pene’s condition so that recourse to evidence in the years before the Medical Assessor’s examination is inappropriate.
The self care and personal hygiene table looks to the extent that a person can look after themselves and live independently. It is likely on that Mr Pene could live independently. Though his mother reminds him to do some things and there is some compromise in his self care, Mr Pene is growing food in a desire to eat more healthily and does some baking. Both of those activities suggest more than a basic level of self care and evidence the improvement that Mr Pene described to the Medical Assessor when he said he was “better than the start”.
On the history he obtained, assessment in class 2 for self care and personal hygiene was open to the Medical Assessor.
Social functioning
The social functioning table measures the strength of a worker’s relationships. The Medical Assessor assessed Mr Pene in class 1 saying:
“Mr Pene has good relationship with mum and dad, when he explained to mum of what happened they understood it. His mum is paying for everything, and he is not able to contribute money. He has been living with his parents and they are very supportive. He has never been into relationship and never had friends.”
The Medical Assessor’s description of Mr Pene’s activities is equivocal as to his relationships. He said:
“Mr Pene had a social life before all this started. He would go out fishing and to the movies. Since this has happened, he just doesn’t want to do it. Before injury, Mr Pene would go for drives, go to beach, pubs, and it was never a problem.”
The MAC does not reveal that the Medical Assessor was aware that Mr Pene’s father has dementia, which is clear from multiple sources in the file. The Medical Assessor noted, as did Dr Canaris and Dr Bisht, who saw Mr Pene for Nova’s insurer, that Mr Pene has never had friends. Dr Bisht recorded that his recreational activities were undertaken substantially alone Dr Canaris noted that Mr Pene had never been married and never had a partner and Mr Pene agreed that he preferred his own company.
The Medical Assessor said that Mr Pene goes to church with his mother and that is “the only place he meets people and can talk but doesn’t feel calm and is anxious”. Mr Pene provided further detail in his statement and said that after church he listened to the conversations his mother was having but did not engage in the conversations himself. He was comfortable with the people from church because they did not ask questions.
Describing his mental state examination (the results of which are split into two sections) the Medical Assessor said that Mr Pene “expressed anxiety and fear about interacting with people.” Mr Pene said in his statement that he did not have friends or keep in touch with family and that “I really only talk to my mum”.
Assessment in class 1 was not open to the Medical Assessor on the history he obtained because Mr Pene has a fear of interacting with people and his anxiety when he goes to church with his mother. We consider that assessment in class 2 was appropriate and that his previous life as a loner mitigates against a higher assessment.
Concentration, persistence and pace
It is important to remember that the Medical Assessor was not limited to the worker’s physical appearance and the history he provided when assessing concentration, persistence and pace as he was with the other Tables. The Medical Assessor is best placed to make the assessment as a result of his consultation, assessing Mr Pene’s ability to concentrate, persist with cognitively demanding tasks, and the pace of his cognitive processes. The findings on his mental state examination are relevant.
Describing his mental state examination, the Medical Assessor said:
“Mr. Pene was a 58-year-old male, who was well kempt and dressed appropriately. He had overgrown beard, long grey hair and was frequently putting his hand on his head. He was cooperative and rapport was well established. He maintained good eye to eye contact and had spontaneous speech. Mood described was anxious and had a reactive affect. There was no formal thought disorder and no symptoms of psychosis. He denied thoughts of self-harm or suicide. He expressed anxiety and fear about interacting with people and going back to work. He was oriented and alert and maintained attention and concentration throughout the 60 mins interview. He struggled to recall the events from the past at times. His judgment was intact, and he had good insight into his issues.”
The Medical Assessor recorded:
“Mr Pene is not too good with his focus and concentration. He reads stories on eBooks after he downloads. He has been reading the bible, and his focus is much better. It just depends on the book, can read up to 30 mins. He can sometimes follow the instructions but finds too difficult to understand and gets tired.”
A number of examples were provided in Mr Pene’s submissions from his statements in support of the argument that the Medical Assessor should have assessed him in class 3, including that he has difficulty remembering things. Memory is different to concentration. Most of the examples in Mr Pene’s second statement under the relevant heading do not relate to the assessment of concentration, persistence and pace – such as his inability to talk to people because of anxiety or having nightmares about his inability to pay his bills.
It is important to remember that not every aspect of daily life is covered by the PIRS. Because the authorities[5] tell us that the categorisation of conduct must be precise, it is important not to seek to expand the tables to encompass conduct which is not assessed under the PIRS.
[5] Ballas v Department of Education (State of New South Wales) [2020] NSWCA 86; Tasevski v Westpac Banking Corporation [2024] NSWSC 401.
The examples in the Guidelines for assessment in class 2 are consistent with the Medical Assessor’s observations and include:
“…Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.”
As set out above, the Medical Assessor was not required to adopt the findings of other examiners who examined Mr Pene a year before the Medical Assessor.
Assessment in class 2 was open to the Medical Assessor on the history he obtained and on the basis of his observations at the examination, particularly Mr Pene’s ability to maintain concentration (after a slow start) throughout the 60 minutes assessment and his ability to read for 30 minutes.
Reassessment
Taking into account our assessment in class 2 for social functioning, the scores arranged in ascending order are 2, 2, 2, 2, 3, 5. The median class is 2 and the aggregate is 16. Using the conversion table in paragraph 11.20 of the Guidelines, the scores convert to 9% WPI. When 1% is added for the effects of treatment, the total WPI is 10%.
For these reasons, we have determined that the MAC issued on 3 April 2024 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: | W1042/24 |
Applicant: | Wayne Te-Huia Pene |
Respondent: | Nova Patisserie Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Himanshu Singh and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | 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) | |
| Psychological injury | 17/11/20 | Chapter 11 | N/A | 10% | Nil | 10% | |
| Total % WPI (the Combined Table values of all sub-totals) | 10% | ||||||
0
6
0