Pham v Rentokil Initial Pty Ltd
[2025] NSWPICMP 79
•11 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Pham v Rentokil Initial Pty Ltd [2025] NSWPICMP 79 |
| APPELLANT: | Van Tuyet Pham |
| RESPONDENT: | Rentokil Initial Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | John Lam-Po-Tang |
| DATE OF DECISION: | 11 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury; parties obtained reports commenting on financial information; Medical Assessor (MA) did not comment on worker’s report but discussed material with worker; role of the MA to make independent assessment; State of New South Wales (NSW Department of Education) v Kaur considered; assessment under permanent impairment rating scale tables for social and recreational activities and travel; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 December 2024 Van Tuyet Pham lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 19 November 2024.
Ms Pham relies on the grounds of appeal under s 327(3)(c) and (d) 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, being that the MAC contains a demonstrable error. 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
Ms Pham was employed by Rentokil Initial Pty Ltd (Rentokil) as a banking and allocation officer between 2016 and July 2023. She claimed weekly compensation, medical expenses and permanent impairment compensation. She claimed compensation for 21% whole person impairment (WPI), based on a report by Dr Kumagaya.
When Ms Pham’s claim was listed before a Member of the Personal Injury Commission (Commission), the parties agreed that she suffered a psychological injury, which is deemed to have occurred on 6 October 2022. In a Certificate of Determination dated 27 August 2024, the Member determined that the injury was caused by action taken with respect to performance appraisal but that the action was not reasonable, so that Rentokil’s defence under s 11A(1) of the Workers Compensation Act 1987 failed. The Member remitted the matter to the President for referral to a Medical Assessor. She deferred the issue of weekly compensation until after the medical assessment.
Rentokil had arranged for Ms Pham to be examined by Dr Saboor, who assessed 19% WPI under the Psychiatric Impairment Rating Scale (PIRS) in the Guidelines. After Ms Pham produced financial records in the proceedings before the Member, Rentokil asked Dr Saboor to consider them and review his assessment. In a report dated 14 August 2024, Dr Saboor reduced his assessment to 8% WPI but his report was not received by those representing Rentokil until after the conciliation conference and arbitration hearing. In September 2024, Rentokil sought leave to rely on the report and, by a direction dated 23 October 2024, the Member granted leave to Rentokil to rely on Dr Saboor’s report and granted leave to Ms Pham to obtain a supplementary report from Dr Kumagaya. She directed that the supplementary reports of Drs Saboor and Kumagaya be sent to the Medical Assessor.
The referral to the Medical Assessor reflects the Member’s determination as to the documents to be sent to the Medical Assessor and included Dr Kumagaya’s report dated 24 October 2024.
The Medical Assessor said in the MAC that he had received the documents “as listed in the referral from the Commission.” He summarised a number of reports, including Dr Saboor’s report dated 14 August 2024, but did not mention Dr Kumagaya’s report dated 24 October 2024.
Using the PIRS, the Medical Assessor assessed 8% WPI, placing Ms Pham in class 1 for travel, class 2 for self-care and personal hygiene, social and recreational activities and social functioning. He assessed her in class 3 for concentration, persistence and pace and class 5 for employability. He did not make an adjustment for the effect of treatment and did not make a deduction under s 323 of the 1998 Act.
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 Ms Pham to undergo a further medical examination because the assessment in the MAC does not disclose error.
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, Ms Pham submitted that the Medical Assessor’s report was made on the basis of incorrect criteria because he failed to have regard to Dr Kumagaya’s supplementary report, which was a denial of procedural fairness, referring to Dranichnikov v Minister for Immigration and Multicultural Affairs[1] (Dranichnikov). She submitted that the Medical Assessor failed to have regard to evidence which he was “required by law to have regard”, referring to Roger v De Gelder[2] (Rodger) and that if he had done so, he would have come to a different conclusion with respect to social and recreational activities and travel. She said that she travelled in accordance with her treating psychologist’s suggestions and that she gave the Medical Assessor a history of “limited participation/functionality whilst overseas.”
[1] [2003] HCA 26.
[2] [2015] NSWCA 211, [90]-[111].
Ms Pham sought reassessment in person. She said that the Medical Assessor’s assessment was erroneous and that he had made determinations as to her credit.
In reply, Rentokil submitted that the MAC showed that the Medical Assessor had considered the material referred by the Commission which included Dr Kumagaya’s report. Rentokil disputed that the consideration of Dr Kumagaya’s report would have caused the Medical Assessor to reach a different conclusion. It noted that the Medical Assessor set out in detail his discussion with Ms Pham about the travel she undertook in 2023 and 2024.
Rentokil considered the descriptors in the PIRS. Quoting Ferguson v State of New South Wales,[3] it said that assessment in class 2 for social and recreational activities was open to the Medical Assessor and that it was a matter on which reasonable minds may differ. and said that Ms Pham’s activities were consistent with assessment in class 1 for travel.
[3] [2017] NSWSC 887.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is a 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[4] 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.
[4] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[5] 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.
[5] [2021] NSWCA 304 at [26].
The parties’ assessments
Ms Pham’s statements deal with the circumstances of the injury and not with matters going to the PIRS.
Dr Kumagaya prepared a report dated 2 June 2003 addressed to Ms Pham’s solicitor. He diagnosed major depressive disorder with anxious distress. Dr Kumagaya assessed 21% WPI under the PIRS, placing Ms Pham in class 2 for self-care and personal hygiene, travel and social functioning, class 3 for social and recreational activities and concentration, persistence and pace and class 5 for employability. He allowed 2% for the effect of treatment.
Dr Saboor assessed Ms Pham on 28 February 2023 and 17 April 2024 on behalf of Rentokil. He assessed 19% WPI and his assessment was the same as that made by Dr Kumagaya, except that he did not make an allowance for the effect of treatment.
Rentokil’s solicitors sought production of Ms Pham’s financial records and asked for particulars of those records on 30 April 2024, noting that the records referred to travel to the United States, Perth, Brisbane and “a cruise”. A response was provided in July 2024.
Dr Saboor prepared a further report dated 5 June 2024 when he was asked to consider a bundle of bank statements. He declined to amend his assessment but noted a payment for a cruise.
In a further report dated 14 August 2024, Dr Saboor answered a more directed series of questions and considered a response to the request for particulars prepared by Ms Pham. He reduced his assessment for social and recreational activities to class 2 on the basis that Ms Pham had travelled to Vietnam on four occasions between May 2022 and November 2023, had travelled to the United States twice and been on a four day cruise. He reduced his assessment of travel to class 1 for the same reasons. Those changes had the effect of reducing his assessment of WPI to 8%.
Dr Kumagaya prepared a report dated 24 October 2024. He reviewed the financial records and Dr Saboor’s report but did not undertake a re-examination. He also noted an email from Ms Pham dated 26 September 2024 “explaining her overseas travel to see her family to help with her psychological condition” which was not attached to the Application to Admit Late Documents dated 28 October 2024.
Dr Kumagaya did not change his assessment, noting that Ms Pham said that her mood was bad when she was overseas. With respect to social and recreational activities, he said that the overseas trips were made with the prompting of Ms Pham’s family with the intention of aiding her recovery, which correlated with assessment in class 3. With respect to travel, Dr Kumagaya said that Ms Pham had travelled to visit her relatives before and after the injury so that the locations were familiar and that she was accompanied by close social supports, being her cousin and sisters. Dr Kumagaya said that was consistent with assessment in class 2 because Ms Pham was not able to travel to unfamiliar locations.
The MAC
The Medical Assessor recorded a history of the injury, treatment and Ms Pham’s present symptoms. He said:
“Ms Pham described having depressed mood, most of the time, and said she has no energy to do anything.
She worries and has panic attack-like symptoms. She reported having major problems with her concentration and cannot read books now. She said her sister gave her a self-help book to overcome her situation but she could not read it. She said her memory has reduced. She has headaches thinking. She reported chronically disrupted sleep due to palpitations and worrying thoughts, and anxiety. She said her weight fluctuated by 1kg in 2024.
She has been irritable and said she avoids talking to her cousin at home, to avoid arguments. She would retreat to her bedroom and feel like no one understands her now.”
The Medical Assessor summarised Ms Pham’s social activities and activities of daily living:
“Ms Pham is living with a cousin. She's never married and has no dependents.
Ms Pham does not drive. She said she has no problem going out. Usually her cousin drives her everywhere as she has time - her cousin is retired. Ms Pham does not use public transportation normally, and only if her cousin is busy. She can walk 5 minutes to the trains if needed.
She talks to her family overseas regularly. She has no friends now and said she quit her job and does not want to talk to anyone. She said she had friends from work and no friends outside work normally, even though she has been in Australia for more than 20 years. She was close to 2 people from work, and rarely talks to them now, and said before the work injury, she only talks to them at work and did not do anything outside.
Day-to-day, she said she does nothing, and she ‘sits here and there’. She enjoyed knitting but cannot focus and ceased it now. She sits on sofa or stays in her room. She listens to monks give sermons. She does not watch television or leave the TV on but does not always it, and has the volume low.
She said she has no plans, aside from moving to the USA in 3 years, and explained that is how long it take for the sponsorship application.
…”
When summarising the injuries, the Medical Assessor said:
“I noted Dr Kumagaya's assessment was before her cruise and he was not aware of her overseas trips, and it is unclear whether he would have altered his WPI rating, had he been given the same information.”
Under the hearing “consistency of presentation”, the Medical Assessor said:
“We discussed the passport and the trips she had undertaken in the documents supplied to the commission. Ms Pham said in 2023 she returned to Vietnam three times, and in April 2024 she went to the USA for three weeks, and these were the only trips she had. She said even when she went to Vietnam, she didn't do anything, and she stayed at home because she only went there to see her family, because of what her psychologist suggested, and that she felt alone in Australia. On further inquiry, she said that she donated to charity so they can build cottages for poor people and prepare food and rice for the poor people. She wasn't involved in the food preparation. Ms Pham said she did go to the rural area to distribute the food with the other volunteers and did it for about one week.
Ms Pham said her brother in the USA is helping to sponsor her to go to America, but it probably takes another three years. She said she didn't stay there very long in the USA in April 2024, only three weeks, because insurance is expensive in America.
I asked about the cruise, and Ms Pham said it was a four-day cruise to Tasmania. She went with her cousin and three friends from the temple in November 2023.
With the overseas trip, she said she doesn't drive, and her cousin dropped her off at the airport, and she flew by herself, and then was picked up at the airport by her family overseas.
I discussed with Ms Pham about that the previous assessors changed her WPI ratings because she did not tell them she had been overseas or been on a cruise. She said that she forgot because she was nervous in the assessment, and also her trips were not holidays, but it was on the recommendation of her psychologist to go and see her family, and she had told her lawyers about it. We discussed the cruise, and she acknowledged that it was a holiday, and that there were parts of the overseas trip that she did enjoy.”
The Medical Assessor noted that he had received more than 1,000 pages. He summarised some of the material in the file, noting that his assessment was the same as Dr Saboor’s amended assessment. With respect to Dr Kumagaya’s reports he said:
“This was before her 4-day cruise to Tasmania, and he did not record her overseas travel or going to the rural area in Vietnam with other volunteers.”
The Medical Assessor assessed Ms Pham in class 2 for social and recreational activities because:
“Within the inconsistencies identified, she has actively engaged in social recreational activities with her family and friends, including a cruise, a few trips overseas where she did volunteering work, which she enjoyed.”
He assessed her in class 1 for travel because:
“Ms Pham has anxiety and can go everywhere, including overseas trips on her own and visited rural Vietnam. There is no deficit or minor deficit, attributable to the normal variation in the general population.”
The Medical Assessor’s task
The role of a Medical Assessor is to determine the medical dispute referred, which will usually require an examination. The Medical Assessor is an administrative decision maker, charged with making an assessment of permanent impairment which is binding.[6] The assessment is made as the worker presents on the day of the examination[7], not by reference to the observations of other practitioners at other times. The Guidelines provide that the Medical Assessor must apply his or her own clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing conditions.[8]
[6] 1998 Act s 326.
[7] Guidelines paragraph 1.6.
[8] Guidelines paragraph 1.6b.
The Medical Assessor was required to assess permanent impairment in accordance with the Guidelines. He was not required to respond to every report in the file.
The Medical Assessor is not required to adopt or choose between the other opinions in the file and is required to form his or her own opinion. In State of New South Wales (NSW Department of Education) v Kaur[9] 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.’”
[9] [2016] NSWSC 346.
The Medical Assessor is directed by the standard MAP template to comment on other opinions and provide the reasons why his or her opinion differs. That is so the parties understand how and why the assessment may differ, not because the Medical Assessor is required to agree with or choose between them.
The Medical Assessor did not consider Dr Kumagaya’s report. While that is contrary to his statement that he read everything provided by the Commission, it clear that the Medical Assessor carefully considered the information he gleaned from Ms Pham’s records and discussed it with her before making his own assessment.
Ms Pham’s reliance on Dranichnikov is not apt. That case concerned the failure to deal with a “substantial, clearly articulated argument relying on established facts”. In Wang v State of New South Wales,[10] the Court of Appeal said:
“The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings.”
[10] [2019] NSWCA 263.
In Allianz Australia Insurance Ltd v Cervantes[11] cited in Rodger, Basten JA said that Dranichnikov did not go “so far as to imply an obligation to consider every piece of evidence presented.”
[11] [2012] NSWCA 244; 61 MVR 443.
The decision in Rodger concerned the role of a medical review panel under the Motor Accidents Compensation Act 1999, which is different to that of a Medical Assessor under the 1998 Act. The submission that it supports the contention that the Medical Assessor was required “by law” to have regard to Dr Kumagaya’s October 2024 report cannot be accepted.
When the Medical Assessor’s task is understood, the failure to refer to Dr Kumagaya’s supplementary report is not the application of incorrect criteria. There is, in a technical sense, a demonstrable error on the face of the certificate because the Medical Assessor said he had reviewed all of the material when he had not, but it is not an error which vitiates the MAC. There was no error in the Medical Assessor’s assessment of Ms Pham and the application of the PIRS.
Dr Kumagaya’s report is a re-statement of his opinion, without re-examination, relying on information that was available to and considered by the Medical Assessor. He had access to similar information as Dr Saboor but drew different conclusions. Based on his discussion with Ms Pham and his own assessment on the day of the examination, the Medical Assessor drew his own conclusions regarding the information and clearly stated his reasons.
Before considering the tables of the PIRS to which Ms Pham referred, we note that she did not tell either Dr Saboor or Dr Kumagaya about the trips she had taken. That is surprising when the proximity of the trips and the examinations is considered.
Ms Pham’s passport shows that it was issued in February 2022. She travelled to Vietnam between 6 and 20 May 2022 and the United States between 9 and 30 September 2022. The injury is deemed to have been suffered on 6 October 2022.
Ms Pham travelled to Vietnam again between 19 February and 5 March 2023, only six days after she saw Dr Saboor. There is no reference to the proposed travel in his report. She travelled to Vietnam again between 4 and 29 June 2023, leaving two days after her telehealth consultation with Dr Kumagaya. She visited again between 18 to 26 November 2023. She travelled to the United States from 9 June to 2 July 2024.
The bank statements show that she paid for a cruise in March 2024 on 28 November 2023.
Dr Kumagaya recorded in his most recent report that Ms Pham went on a four-day cruise to Tasmania with her cousin and “three sisters”. That history is different to what appears in Ms Pham’s email responding to the request for particulars in which she said that she travelled with “my cousin and three sisters from temple.” The latter is consistent with the history to the Medical Assessor that she travelled with her cousin and “three friends from temple.”
The MAC shows that the Medical Assessor carefully explored with Ms Pham the documents concerning travel. Without developing the submission, Ms Pham said that the Medical Assessor had made adverse findings as to her credit. The fact is that Ms Pham has travelled overseas on four occasions and within Australia once and did not divulge that information until a notice for production was pressed. The MAC shows that the Medical Assessor was at pains to allow Ms Pham to explain the material and that she conceded that she enjoyed some parts of the trips.
Ms Pham’s submissions were brief and focused on the failure to have regard to Dr Kumagaya’s report. Her solicitor did not make any detailed submissions with respect to the impugned tables. We have considered the specific assessment of each of those tables.
Travel
There is potential for overlap between the tables for travel and social and recreational activities when considering trips such as those undertaken by Ms Pham and care must be taken to attribute conduct to the correct table.
The examples in table 11.3 of the PIRS focus on the extent of a worker’s ability to leave his or her home and go to other places. The example for assessment in class 2 (mild impairment) is the ability to travel alone to familiar places, such as local shops or visiting a neighbour. That connotes an inability to travel far from home.
Dr Saboor noted that Ms Pham was able to leave home alone for her morning exercise but was reliant on her cousin to drive. The Medical Assessor recorded that Ms Pham does not drive and is reliant on her cousin to take her shopping. She does not generally use public transport though can walk to the train if needed. She told him that she has no problems going out.
The international flights Ms Pham undertook have, on the evidence in the file, been undertaken alone. She told the Medical Assessor that her cousin drove her to the airport and her family met her. Even so, she was required to find her way through busy airports and she was not accompanied by a support person. While in Vietnam, she travelled on at least one occasion to a rural area.
In his report dated 2 June 2023, Dr Kumagaya merely quoted the examples in the Guidelines for class 2. In his most recent report, Dr Kumagaya maintained his assessment of Ms Pham in class 2, seeking to characterise her overseas destinations as familiar. The examples in the PIRS are proximate to a worker’s residence. An attempt to describe international airports as familiar is an inappropriate application of the PIRS.
Ms Pham told Dr Kumagaya that her mood was bad while she was overseas. The examples in table 11.3 focus on the ability to travel, not whether a worker feels uncomfortable while travelling. It is important not to conflate the symptom of feeling uncomfortable with an impairment.
Schmidt J said in Tasevski v Westpac Banking Corporation[12] that assignment to the relevant class is not a matter of discretion. Based on the history that she provided on the day of the assessment, the Medical Assessor was correct to assess Ms Pham in class 1 for travel.
[12] [2024] NSWSC 401 at [36].
Social and recreational activities
The social and recreational activities table measures a worker’s degree of participation in people these activities, alone or with others.[13]
[13] Ballas v Department of Education (State of New South Wales) [2020] NSWCA 86 at [100].
The examples in the Guidelines for assessment in classes 2 (mild impairment) and 3 (moderated impairment) are:
“Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
In the context of Ms Pham’s trips, the social and recreational activities table is relevant to what she did when she was away from home. Though the distribution of charity in Vietnam might not be recreational, it is social. Ms Pham told the Medical Assessor that she was in a rural area of Vietnam for about a week with other volunteers and that she enjoyed the activity.
A cruise is inherently a recreational activity. Ms Pham went with friends, not only family members and was likely to be exposed to a large number of strangers. When the Medical Assessor discussed it with her, Ms Pham acknowledged that it was a holiday.
Dr Kumagaya stressed the prompting of Ms Pham’s family in her social and recreational activities in assessing Ms Pham in class 3 and the intention that it was to aid her psychological recovery. The points of difference between class 2 and class 3 are the need for a support person and extent of involvement. In supporting the assessment he had previously made, Dr Kumagaya did not consider those aspects. He mentioned but did not consider the cruise.
The Medical Assessor gave reasons for assessing Ms Pham in class 2, which were correct, based on the history he set out.
For these reasons, we have determined that the MAC issued on 19 November 2024 should be confirmed.
0
11
0