Porpiglia v Health Care Australia Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Porpiglia v Health Care Australia Pty Ltd [2024] NSWPICMP 562
APPELLANT:	Flavia Porpiglia
RESPONDENT:	Health Care Australia Pty Ltd
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	12 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against whole person impairment finding of 13% for psychological injury; whether Medical Assessor (MA) had erred in the classification of travel; MA had taken matters into account that were not relevant, and did not take parts of the worker’s statement into account; Held – MA’s reasons inadequate in this scale and re-examination directed; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 3 October 2023 Flavia Porpiglia (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
6 September 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).

RELEVANT FACTUAL BACKGROUND

The appellant developed a primary psychological injury in the course of her employment with Health Care Australia Pty Ltd (the respondent) as a Disability Support Worker when she was headbutted by a patient and her nose was fractured on 21 February 2021.
The appellant commenced proceedings in the Personal Injury Commission (Commission) claiming 15% whole person impairment (WPI) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 21 February 2021.
The Medical Assessor examined the appellant on 7 August 2023. The Medical Assessor assessed 13% WPI as a result of the injury on 21 February 2021.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that she be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that there was an error in the MAC and that it was necessary for the appellant to undergo a further medical examination because there was in sufficient evidence on which to make a determination.

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.

Further medical examination

Medical Assessor John Baker of the Appeal Panel conducted an examination of the worker on 30 July 2024 and reported to the Appeal Panel.

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. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    The Medical Assessor has erroneously assigned the worker to the wrong class in the travel scale in the Psychiatric Impairment Rating Scale (PIRS), in Table 11.3 of the Guidelines.
(b)    Both Associate Professor Robertson, qualified by the appellant and Dr Virk, qualified by the insurer, assigned the worker to Class 2 in the travel scale. In discussing those opinions on page 10 of the MAC it was apparent that the Medical Assessor has made the following errors:
(i)having accidents or near misses is not a matter relevant to the travel scale;
(ii)driving to doctors’ appointments and driving to buy groceries in the local area falls clearly within the Class 2 descriptor (ie. can travel without support person, but only in a familiar area such as local shops…), and
(iii)the Medical Assessor noted (at page 3, penultimate paragraph): “She said that she constantly fears for her safety, like when she was driving and a vehicle with a ladder driving in front of her. She feared that the ladder might fall on her windscreen.” There is no reasonable basis for suggesting this behaviour can be classified as a “minor deficit attributable to the normal variation in the general population”.
(c)    The appellant provided evidence about her travel anxiety at paragraph 57 of her statement (page 6 ARD) as follows: “I will travel unaccompanied in the local area when I have to go out but would not travel further alone. I am always anxious when I am driving since the injury. I worry about having an accident and I feel like if anything else bad happened to me, I would not be able to cope. I was not like this before.” This was not consistent with a minor deficit attributable to the normal variation in the general population.
(d)    The other factor relied on by the Medical Assessor was: “She went to France to care for her ailing mother”. The Medical Assessor did not note the worker’s evidence in her statement surrounding this trip:
(i)the appellant was born in France;
(ii)the appellant has travelled back to France “many times before” without issue;
(iii)as a result of the injury the appellant required the assistance of her psychologist to make the travel arrangements, and
(iv)the appellant could not travel to and from the airport which is located outside of her local area unaccompanied so had to arrange her ex-husband to drive her.
(e)    Making a trip to her childhood home to be with her mother falls within the class 2 descriptor of a familiar area taking into account her cultural background and activities which were normal for her pre-injury. On the other hand, the other difficulties the appellant has described clearly could not be described as a minor deficit attributable to the normal variation in the general population so as to warrant a Class 1 assessment in this scale.
(f)    The MAC should be amended to reflect a Class 2 assessment in the Travel scale of the PIRS.
The respondent ‘s submissions include the following:
(a)    The Medical Assessor provided adequate reasoning for his findings and assessment of the category of ‘travel’ under the PIRS scale. The Medical Assessor recorded a detailed history of the appellant’s functioning and reported restrictions under the PIRS scale.
(b)    The assessment of Class 2 is consistent with a finding an individual “can travel without a support person, but only in a familiar area such as local shops, visiting a neighbour”.
(c)    The distinction between an assessment of Class 2 and Class 1 primarily relates to the ability to travel without supervision in new environments or unfamiliar areas.
(d)    It was open on the findings of the Medical Assessor, to find the appellant falls within Class 1 in relation to impairment of travel.
(e)    The MAC at page 10 clearly indicates that Medical Assessor engaged with the evidence of Dr Virk and Dr Robertson particularly in relation to the assessment of travel.
(f)    The Medical Assessor used his clinical judgement in assessing the appellant’s limitations and functioning in the PIRS scales, including travel, and assigned the appropriate class based on his expertise.
(g)    The appellant does not take issue with the history or particulars recorded by the Medical Assessor, and instead argues these findings should have resulted in an assessment of class 2.
(h)    This ground of appeal is without substance and merely cavilled with the Medical Assessor’s expert opinion on the severity of the applicable class assessed for travel, rather than demonstrates any appealable error. In doing so, the appellant seeks to appeal the clinical judgement of the Medical Assessor which was not a proper matter for appeal.
(i)    The MAC be confirmed when having regard to the PIRS ratings for travel. The Medical Assessor applied clinical judgement and made a finding which was open to him on the evidence. The Medical Assessor’s finding should not be disturbed.

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.

PIRS Category - Travel

The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
The appellant alleges error in respect of the assessment of the PIRS categories of Travel.
The appellant submits that the Medical Assessor erroneously assigned the worker to the wrong class in the travel scale as the evidence provided was not consistent with a minor deficit attributable to the normal variation in the general population.
The examples under Table 11. 3 for “Travel” in the Guidelines are:
“Class 1: No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2: Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3: Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”
Clause 11.11 of the Guidelines classifies Travel as an activity of daily living.
The Medical Assessor assessed the appellant as class 1 for Travel. In the PIRS Rating Form, the Medical Assessor wrote:
“Travel - Class 1
She continues to drive in the similar capacity. She has driven for up to 30 minutes to see a specialist. She denied having any accidents or near misses since the
incident. She is able to drive in unfamiliar situations as well.
She went to France to care for her ailing mother.”
In the MAC, the Medical Assessor noted:
“She no longer enjoys doing things and stays at home.
She however is able to leaves house for grocery shopping, paying bills and doctors’
appointments.
She continues to drive in the similar capacity. She has driven for up to 30 minutes to see a specialist. She denied having any accidents or near misses since the incident. She is able to drive in unfamiliar situations as well. She went to France to care for her ailing mother”.
In commenting on the other medical opinions, the Medical Assessor wrote:
“Travel: I do not agree with Dr Virk’s and A/Professor Robertson’s assessment of Mild impairment as Ms Porpiglia reported a clear history of driving to doctors’ appointments, driving to buy groceries. She denied having any accidents or near misses. There is some anxiety related to driving, but that is a minor deficit which should be classified under Class 1.”
In her submissions the appellant relies on the following paragraphs from her statement dated 9 May 2023:
“57.   I will travel unaccompanied in the local area when I have to go out but would not travel further alone. I am always anxious when I am driving since the injury. I worry about having an accident and I feel like if anything else bad happened to me, I would not be able to cope. I was not like this before.
58.    I recently had to return to France to visit my ill mother and I required the assistance of my psychologist to make the plans and write down all the steps for organising flights etc. This is something I have done many times before without thinking and now it was so hard for me to organise.
59.    I had to arrange for my ex-husband to drive me to and from the airport as I have no friends left since the injury and I would not travel to Sydney by myself. While I was in France I mainly stayed at my mother’s house. My cousin and her friend took me and my mum to the south of France for a short stay.”
Associate Professor Robertson made an assessment of Class 2 for travel noting: “Travel: She can leave her house on short, focussed outings but is hypervigilant and has phobic responses to triggering events.”
In his report dated 16 March 2023, Dr Abdul Virk, consultant psychiatrist, assessed the appellant as Class 2 for Travel providing the following reasons:
“Ms Porpiglia reported that she usually only travels to the local areas to pay bills or obtain groceries. She stated that she went to France last year for three months to care for her unwell mother. She claimed that she found the trip to be stressful due to COVID protocols that were in place at the time.”
Dr Virk, in a report dated 26 May 2022, noted that the only time Ms Porpiglia would leave the house was to get essential groceries or attend medical appointments. He noted that she had begun to engage in catastrophic thinking: “becoming extremely anxious and gives the example of becoming terrified when rocks hit the windshield of her car or when she is driving behind large load carrying vehicles”.
In the notes of the treating psychologist, Naomie Anderson, the following entries were made:
(a)    On 6 May 2022, Ms Anderson noted: “Discussed possibility of visiting mother ?? F to make enquiries. Mother 86 yrs – open heart surgery 2001, water in the lungs. F concerned for mother’s health. M unwell – causing F distress and worry”.
(b)     On 10 June 2022 Ms Anderson noted: “41/2 years since seeing mother – arguments …feeling uneasy.”
(c)     On 24 June 22, Ms Anderson noted: “Return from France 1/11/22. F reports feeling fearful about returning home – brother – leaving mother after 3 mths.”
Firstly, the appellant submits that having accidents or near misses is not a matter relevant to the travel scale. The Appeal Panel accepts that not having accidents or near misses was not relevant to assessment in the travel scale. None of the descriptors in the travel scale refer to such matters but focus on the ability to travel, whether such travel is to familiar environments or new areas and whether supervision or a support person is required. The Appeal Panel considers that including not having accidents or near misses is not a factor to be taken into account in making a rating in this PIRS category amounts to making an assessment on incorrect criteria.
Secondly, the appellant submits that driving to doctors’ appointments and driving to buy groceries in the local area falls clearly within the class 2 descriptor (ie. can travel without support person, but only in a familiar area such as local shops…). The Appeal Panel agrees that such activity was a Class 2 descriptor.
Thirdly, the Medical Assessor reports: “She said that she constantly fears for her safety, like when she was driving and a vehicle with a ladder driving in front of her. She feared that the ladder might fall on her windscreen.” The appellant submits that there is no reasonable basis for suggesting this behaviour can be classified as a “minor deficit attributable to the normal variation in the general population”.
Fourthly, in relation to the appellant’s fear for her safety at times when driving, this is, as described by Dr Virk, catastrophic thinking and a condition that could be regarded as attributable to the normal variation in the population. The appellant in her statement said that she was always anxious when driving since the injury and was not like that before. However, the appellant’s anxiety does not prevent her from driving locally unaccompanied and it is the ability to travel locally that needs to be taken into account in the assessment.
The Medical Assessor notes that “She is able to drive in unfamiliar situations”. However, the appellant in her statement said that while she would travel unaccompanied in the local area when she would have to go out, she would not travel further alone.
The Medical Assessor in his reasons for decision in Table 11.8 notes that the appellant went to France to care for her ailing mother. The trip to France was taken into account in his assessment of Class 1 for Travel. However, the Medical Assessor failed to properly consider the evidence given by the appellant in her statement. The appellant was born in France and lived there until her early twenties when she moved to Australia with her husband. In her statement, she said that in order to travel to France to see her mother she required the assistance of her psychologist to make the plans and write down all the steps for organising flights etc. She said that this was something she had done many times before without thinking and “now it was so hard for me to organise”. The appellant stated that she had to arrange for my ex-husband to drive her to and from the airport as she would not travel to Sydney by herself. She said that while she was in France she mainly stayed at her mother’s house and her cousin took her and her mother to the south of France for a short stay. The clinical notes of Ms Anderson confirmed that the appellant discussed her trip back to France with her.
The Appeal Panel concluded that the Medical Assessor took into account not having accidents or near misses and this was not relevant to assessment in the travel scale. Further the Medical Assessor did not adequately take into account the appellant’s statements and the arrangements that she made concerning her travel to France to see her mother. The Appeal Panel concluded that the Medical Assessor did not provide sufficient reasons for rating the appellant as Class 1 for travel in circumstances where she was only able to travel locally and had considerable assistance from family in order to make the trip to France to see her mother. The Appeal Panel was satisfied that this was a demonstrable error.
The Appeal Panel concluded that it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence on which to make a determination in relation to the PIRS category of travel.
As noted above, Medical Assessor John Baker re-examined the appellant on 30 July 2024. Medical Assessor Baker provided the following report:
“1.The workers medical history, where it differs from previous records
This report is in relation to the appeal regarding Table 11.3 assessment as documented in MAC dated 6 September 2023 by Assessor Verma.
The appellant (Ms Porpiglia) was assessed using MS Teams by videoconference. She was assessed alone. The appellant confirmed that she first commenced work with the employer in 2019. She worked as a disability support worker. She had completed about 2 years employment with the employer prior to the onset of the primary psychological injury.
The appellant said that she was at work, attending a distressed disabled man who was hitting himself. The disabled man head butted other staff and she stated she was headbutted in the nose. Her nose was fractured. The fracture healed. She sustained a primary psychological injury. She was diagnosed with Post Traumatic Stress Disorder and Major Depressive Disorder. She left work and had not returned to work since.
The appellant reported that she attended a plastic surgeon and decided not to proceed with surgical treatment.
The appellant attended her general practitioner, and she was referred to a clinical psychologist. She continued to attend her clinical psychologist once every two weeks.
The appellant had previously travelled to Paris in 2023 as her mother, then 87 years, had suffered an acute illness with respiratory illness with cardiac complications. Her mother did recover from her acute illness and returned to her home in the suburbs of Paris. In 2023 the appellant travelled with her son. In 2024 her son was working, however she was familiar with the route, so she travelled without her son. She said, like the time in 2023, she followed the same routine.
2. Additional history since the original Medical Assessment Certificate was performed
The appellant reported that she was called to Paris, France by family to attend her 88-year-old mother who was terminally ill. The appellant was told by her family on the morning of 5 January 2024. She immediately rang her psychologist and a neighbour to inform them of her mother’s terminal illness.
The appellant then rang her travel agent to arrange an immediate departure from Sydney to Paris. She then rang her ex-husband, with whom she has an amicable relationship, and requested that he drive her to the airport. Her ex-husband assisted and drove her and supported her until she entered the airplane.
The appellant flew Qatar airlines. She said she had a three hour stop-over enroute to Paris. She said she did not leave the quarantine security area of the airport whilst waiting for the airplane to be serviced. The appellant said she had flown to Paris and from Paris back to Sydney at a frequency of about once every 2 years since first arriving in Australia 30 years ago. She said she was very familiar with the route. She had organised as usual for her brother to be present on her arrival. She flew alone. She said she informed the passenger next to her about the reason for her return to Paris and this passenger was kind and supportive of the appellant. The duration of the journey was about 23 hours.
On arrival in Paris her brother was present to receive her. He escorted the appellant to her mother’s bedside in hospital. Initially her mother had been treated in the intensive care unit of the hospital, then her mother was transferred to the general ward. Her mother remained in hospital for about 9 days before dying.
The appellant and her brother stayed at her mother’s home in the suburbs of Paris. Her two other sisters remained in their accommodation outside of their mother’s home. The appellant assisted her brother with the funeral arrangements. The appellant said the funeral was performed on 25 January 2024. Her mother’s body was buried in the family’s grave where the appellant’s father and brother had previously been laid to rest.
The appellant returned to her mother’s home and with her brother. They grieved normally for the death of her 88-year-old mother. The appellant said neither she, her sisters or brother socialised during the traditional grieving period.
The appellant’s brother organised for her to return home to Australia once the matters regarding her mother’s will was organised and settled. The appellant returned home to Sydney using Korean Airlines. She had a stopover of about 3 hours. She did not leave the quarantine security area of the airport. She returned directly to Sydney. In Sydney she was greeted by her ex-husband who drove her to her home before departing.
3.Findings on clinical examination
The appellant presented as a woman who looked her stated age. She was casually dressed in clean clothes. She spoke about having a fear of flying, however she said she would organise herself to manage the journey without incident. She said she did not enjoy travel and she had no plan for future travel.
The appellant stated she had resolved her normal grief. She said she understood that her mother was elderly and that her mother had suffered recurrent illness during her widowhood. The appellant said she was “relieved” that she had been called to be beside her mother’s bedside at the time of her passing. The appellant said she was the first member of her family to notice that her mother had died. The appellant was glad that her mother could be laid to rest according to her wishes.
The appellant reported that she would still experience negative cognitions and ruminations that involved her work. She said she would still restrict herself socialising as she had prior to travelling to Paris. She said her daily travel was for essential meetings that included in person attendance at her medical practitioner or her psychologist. She continued to have intrusive thoughts about her perceived injustice involving how she was treated by her employer.
The appellant’s speech was soft in volume. She spoke about how her life had returned to how her circumstances were prior to her mother’s death. The applicant was orientated in time, place and person. Her judgment was normal. She did report ongoing nightmares and flashbacks. She had a negative affect associated with the attack she had suffered whilst at work. She had no suicidal thoughts or plans.
4.Results of any additional investigations since the original Medical Assessment Certificate
The appellant provided a clear and consistent history of travelling directly to and from Paris to attend her terminally ill mother and assist with her funeral arrangements. The appellant said she was able to travel without a support person such as her son, as she had travelled in the same familiar manner in 2023 with her son. The organisation of the journey was completed and supported by her extended family, in both directions. The appellant had a clear expectation of how the travel would proceed.
The appellant, on return to Australia, continued to travel only in local and familiar areas alone. She had restricted her travel to essential matters that include attendance at in person medical appointments and in person psychological appointments. She would not travel to unfamiliar locations alone. She did not travel in Paris anywhere without her brother. She travelled to and from Sydney airport with the assistance of her ex-husband.
Using the PIRS Whole person impairment scale, Table 11.3 Travel was best defined as Class 2, mild impairment. She was able to travel to local and familiar locations in Australia. She does not travel to unfamiliar locations alone, either in Australia or Paris.
This rating is different from that in the assessment of the original Assessor’s Certificate dated 6 September 2023. The reasons for the difference were the appellant’s reliance on support people and her capacity to use cognitive behavioural skills to manage her fear of flying and avoidance of non-essential travel. This is in keeping with a mild impairment, Class 2 and not a minor impairment Class 1. In a minor impairment, Class 1 the appellant would not have required any assistance at any stage of her journey. Similarly, her travel in Australia would not require any assistance.
The grief the appellant had experienced had not impaired her capacity to travel. The emotional need to be beside the appellant’s mother’s bedside was sufficient to enable her to travel with the least amount of support provided.”

The Appeal Panel adopts the report and findings of Medical Assessor Baker. The Appeal Panel, after considering the re-examination findings, assesses the appellant as Class 2 for travel as she was able to travel alone to local and familiar locations but not to unfamiliar locations.
The Appeal Panel concluded that the appellant’s impairment in all of the PIRS classes apart from Travel was the same as assessed by the Medical Assessor.
The Medical Assessor made an assessment of 13% WPI in respect of a psychological injury. The Appeal Panel has now made a rating of Class 2 in the scale of Travel. The Median Class was 3 and the total Aggregate Score Impairment was 15. Therefore, using Table 11.7 of the Guidelines, the assessment of WPI by the Appeal Panel is 15% as a result of the injury on
21 February 2021.
For these reasons, the Appeal Panel has determined that the MAC issued on
6 September 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:	W3767/23
Applicant:	Flavia Porpiglia
Respondent:	Health Care Australia 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 Medical Assessor Surabhi Verma 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)
Psychiatric / psychological disorder	21 February 2021	Chapter 11	Chapter 14	15%	N/A	15%
Total % WPI (the Combined Table values of all sub-totals)					15%

[2024] NSWPICMP 562

12 August 2024