Robba v W Cronin & P Cronin

[2023] NSWPICMP 343

DETERMINATION OF APPEAL PANEL
CITATION:	Robba v W Cronin & P Cronin [2023] NSWPICMP 343
APPELLANT:	Jacqueline Robba
RESPONDENT:	Michael W Cronin & John P Cronin
Appeal Panel
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	20 July 2023
CATCHWORDS:	wORKERS cOMPENSATION - Appeal from assessment of whole person impairment (psychological); whether Medical Assessor erred in assessing self-care and personal hygiene, and concentration persistence and pace; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. The appellant worker, Ms Robba, appeals from the Medical Assessment Certificate of Medical Assessor (Medical Assessor) Glozier dated 10 March 2023.

2. The Medical Assessor assessed an 8% whole person impairment (psychological) as a result of injury on 31 July 2018 (deemed date). In doing so, he assessed a class 1 impairment in respect of the psychiatric impairment rating scale, Self-care and personal hygiene, and a class 2 impairment in respect of Concentration, persistence and pace.

3. Ms Robba alleges demonstrable error and the application of incorrect criteria with respect to the assessment of both these scales. She says that the evidence supported a class 2 impairment for Self-care and personal hygiene and a class 3 impairment Concentration, persistence and pace.

4. She relies on her own statutory declaration dated 30 March 2023, in which she responds to the contents of the Medical Assessment Certificate, and a letter dated 28 March 2023 from her psychiatrist, Dr Wahaib to another treating physician.

5. The Appeal Panel conducted a preliminary review of the Medical Assessment Certificate in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).

Submissions

1. The parties made written submissions which have been taken into account. They are summarised below.

2. The appellant worker submits as follows.

   (a)    With respect to Self-care and personal hygiene:

   (i)There is no evidence that the assessor enquired as to how Self care and personal hygiene had changed as a result of injury. Had appropriate enquiries been made, the assessor would have elicited the evidence now contained in the statutory declaration, namely that the appellant attends a hairdresser much less frequently than before, that she no longer wears makeup or worries about her appearance, and that she wears the same clothes rather than buying new ones as before, does not go out with friends and does not dress up to do so.

   (ii)The finding that she showers daily if she feels like it is “entirely inconsistent with the history that he [the Medical Assessor] had taken”. It is also inconsistent with the observations that she was “showering daily”, which was made in the context of a discussion of Dr Canaris’ assessment.

   (iii)The Medical Assessor found that the appellant spends most of her time at home watching television, not caring about her appearance. This does not support a class 1 impairment.

   (b)    With respect to Concentration, persistence and pace:

   (i)The Medical Assessor found that the appellant felt pervasively flat, had little motivation, watched TV for hours, waked several times during the night and had poor sleep efficiency, though she was able to focus and watch TV programs. This is consistent with a moderate impairment (class 3), not with a mild impairment (class 2).

   (ii)Her concentration must “surely” be affected by poor sleep. Dr Canaris thought so.

   (iii)Had he enquired of the appellant, he would have discovered the evidence in her statutory declaration, that she no longer reads books after the injury, she no longer sews or makes clothes or follows patterns for them.

   (iv)He failed to have regard to the evidence at par [46] of her statement, that she does not watch TV shows with a complicated plot.

   (v)The appellant has “impacted concentration” because she can no longer find her way to and from Sydney as she used to.

   (vi)Because Employability was assessed at class 5, it follows that Concentration, persistence and pace is compromised.

   (vii)The finding that the appellant was able to focus and persist with the assessment is challenged, on the basis that in her recent statutory declaration, the appellant says that she found it increasingly difficult to concentrate as the interview progressed, causing delayed answers to questions.

   (viii)The Medical Assessor has failed to make a proper diagnosis.

3. Michael W Cronin & John P Cronin (the respondent employer) submits in summary as follows.

   (a) The fresh or additional evidence should not be admitted, because it does not satisfy the requirements s 328(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The evidence in the statutory declaration could reasonably have been obtained prior to assessment. The letter of Dr Wahaib has no probative value, because it speaks only to the appellant’s condition as at 28 March 2023, and does not comment on her condition as at the date of assessment. Its admission would be contrary to the principle of finality in litigation.

   (b)    The Medical Assessor made a diagnosis on the basis that the diagnostic criteria were satisfied. It was relevant to the assessment of impairment, though not alone determinative.

   (c)    The Medical Assessor explained the differences between his assessment and that of Dr Canaris on the basis that there had been an improvement in functioning since Dr Canaris assessed the worker on 29 March 2022, almost a year previously.

   (d)    With respect to Self-care and personal hygiene:

   (i)With respect to the allegation that the Medical Assessor failed to make appropriate inquiries of the appellant as to pre-injury functioning, she should have provided evidence of this in her Application but failed to do so.

   (ii)The Medical Assessor expressed reliance on the appellant’s statement of 9 December 2021, reports from her treating general practitioner and treating psychiatrist Dr Wahaib and psychologist Kim Clancy. These contained evidence of pre-injury functioning. He was aware of this, and took it into account.

   (iii)Dr Canaris took a history in March 2022 that the appellant showered daily.

   (iv)The descriptors in Table 14-11 of the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA5) are displaced by those in Table 11.1 of the Guidelines: Guidelines Chapter 11.

   (e)    With respect to Concentration, persistence and pace:

   (i)With respect to the allegation that the Medical Assessor failed to make appropriate inquiries of the appellant as to pre-injury functioning, she should have provided evidence of this in her Application but failed to do so. In any event, the evidence to which he had regard did address pre-injury functioning.

   (ii)A class 2 impairment was reasonably open on the evidence.

   (iii)The Medical Assessor also relied on his objective assessment of performance at examination, which he was entitled to do.

   (iv)The Medical Assessor gave clear reasons for assessing a class 2 impairment.

Fresh or additional evidence

1. With respect to the evidence contained in her statutory declaration of 30 March 2023 and Dr Wahaib’s letter of 28 March 2023, the appellant’s submissions do not address the requirements of s 328(3) of the 1998 Act. Those are considered below.

2. Section 328(3) provides – emphasis added:

   “Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”

3. The evidence in the statutory declaration describes the appellant’s pre-injury functioning, and compares it with post-injury functioning. It does so in respect of showering, changing clothes, buying clothes, travelling to Sydney and back, attending the hairdresser, using make-up, dressing up, reading books and newspapers, sewing, making clothes, and sleep patterns.

4. No submission is made to the effect that this evidence could not reasonably have been obtained prior to assessment. No such submission could reasonably be made, as the evidence was obtainable prior to assessment. For the same reason, it is excluded by operation of s 328(3). It does not matter that its purpose is to provide more evidence than was available to the assessor, to contradict the assessor’s version of the history given, or to criticise the assessor for allegedly not having asked questions that might have elicited this evidence.

5. In par [13], the appellant contradicts the Medical Assessor’s objective opinion that she demonstrated an ability to concentrate during his assessment, providing evidence that she found concentration increasingly difficult, which delayed her answers. This evidence was not reasonably obtainable prior to assessment because it goes to what occurred at assessment. However, it is not relevant to any ground of appeal. The fact that the appellant disagrees with an opinion expressed objectively by the assessor on mental state examination does not demonstrate error, or the application of incorrect criteria.

6. Even if it were relevant, it can only be admitted if it has substantial prima facie probative value, plausibility and/or independent support: Lukacevic v Coates Hire Operations Pty Limited [2011] NSWCA 112 per Hodgson JA (at [78]). There is no independent support for the evidence. The allegation of increasingly impaired concentration is contradicted by the objective observations of the assessor. Accordingly we are not in a position to assess the evidence as having “substantial” prima facie probative value or plausibility. It does not satisfy the test in Lukacevic, and is not admissible on appeal. There is also a public interest in the finality of litigation, which admitting this evidence will not serve. In the absence of a reply from the Medical Assessor, there are issues of procedural fairness, which admitting the evidence will not satisfy: Lukacevic at [111].

7. Dr Wahaib’s letter goes to the appellant’s mental state when he spoke to her by phone on 28 March 2023, after she had been made aware of the results of the assessment. By its nature, this evidence cannot contradict observations made at examination on 8 March 2023. It is not relevant to any ground of appeal. Even if it did go to the appellant’s mental state as at examination, which it does not, such evidence would have been obtainable prior to examination, and for that reason also, it should be excluded.

8. Neither the statutory declaration nor the letter of Dr Wahaib are capable of establishing demonstrable error because, by its nature, demonstrable error is error which appears on the face of the Medical Assessment Certificate and the referral for assessment, and does not require reference to other material: Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939.

9. For all those reasons, the evidence is not admissible on appeal. It is unnecessary to consider the appeal submissions which are based on that evidence.

Self-care and personal hygiene

1. In his Psychiatric Impairment Rating Scale (PIRS) Table, the Medical Assessor gave following reasons for assessing a class 1 impairment in respect of Self-care and personal hygiene:

   “She has been addressing her food intake, making salads and cooking lean meats for herself, showering daily, undertaking regular stretching and attempting to cut down her smoking which equate to a function within the normal range of the population.”

2. Under the heading, “Social activities/ADL” he recorded:

   “When she wakes in the morning she says she has a shower if she feels like it (as someone who does little activity she doesn’t need to shower daily), makes herself breakfast, takes the dog out for a walk for 10 minutes or so and may do the chores and cleaning that is required. About four times a week she does stretches as she says she knows she needs to keep somewhat limber. She tries to maintain a healthy diet, having salads for lunch, chicken at night, has lost some kilos over the past six months. She says there is a slightly reduced appetite and also that she no longer eats between meals. She is actively reducing her smoking such that she is now down to only 2 or 3 cigarettes a day.”

3. The reasons must be read as a whole. We interpret his reference to “showering daily” (which is repeated in his discussion of Dr Canaris’ assessment) as a reference to showering daily “if she feels like it”, in accordance with the history recorded under “Social activities/ADL”. The point made by the Medical Assessor was that, on the occasions that showering was less than daily, it was due to practical considerations of need, and not to pathology resulting from injury.

4. The Guidelines prescribe the following criteria for class 1 and 2 impairment in this scale:

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population
Class 2	Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.

1. The task of the Medical Assessor was to determine into which class the worker’s impairment best fit, having regard to the worker’s presentation at examination on 8 March 2023, the history taken, ongoing symptoms and the other evidence before him.

2. To select a class 1 impairment, he had to find that there was no deficit, or a minor deficit “attributable to the normal variation in the general population”. The details of functioning which he elicited were within normal variations in the general population. A class 1 impairment was reasonably open on that evidence. There was no evidence of missing meals or relying on take-away food which might have invited consideration of a class 2 impairment.

3. Contrary to the appellant’s submissions, the Medical Assessor did not find that she no longer cared about her appearance. At [5], he described the appellant as “casually-dressed and kempt”.

4. The evidence that the appellant watched television for hours was relevant to the scale, Concentration persistence and pace, and was taken into account in that context. It is not relevant to Self care and personal hygiene.

5. We can identify neither error nor the application of incorrect criteria in the assessment of Self-care and personal hygiene.

Concentration, persistence and pace

1. In his PIRS Table, the Medical Assessor gave following reasons for assessing a class 1 impairment in respect of Concentration, persistence and pace:

   “Today she was able to focus and persist with the pace of the assessment fully, showed no difficulty in relating a consistent history, watches TV programmes for many hours a day, is able to follow these without difficulty and says that she stopped reading magazines because she no longer has the money. She trusts herself to use her phone for internet banking.”

2. Under the heading, “Social activities/ADL” he recorded:

   “She spends almost all day and all evening watching TV. She describes a range of serials and reality shows that she watches, is able to follow these, keep up with the various plots and social machinations in e.g. MAFS, and describes no difficulty doing this. She does not have the money to buy magazines anymore. She will check Facebook a couple of times a day and check the news on Facebook. She also uses this for internet banking.”

3. The Guidelines prescribe the following criteria for class 2 and 3 impairment in this scale:

Class 2	Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3	Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.

1. This is the one rating scale where an assessor is able to make an objective assessment based on mental state examination, having regard also to the other evidence. The Medical Assessor recorded that the appellant was “able to focus and persist with the pace of the assessment fully, showed no difficulty in relating a consistent history”. That is consistent with no impairment (class 1) or a mild impairment (class 2). The finding that she watches and follows television programs for hours is also consistent with those two classes of impairment, though perhaps more consistent with class 1. There is no admissible evidence that, as at the date of examination, the appellant was finding it difficult to follow complex instructions, type long documents, or follow patterns.

2. It was reasonably open to the Medical Assessor to assess a class 2 impairment though, in our view, the evidence was also consistent with class 1.

3. The fact that the appellant was experiencing poor sleep efficiency and felt pervasively flat does not necessarily contradict his objective observations on examination above, or the fact that the appellant is able to concentrate when watching television.

4. The task of the assessor was to assess the appellant as she presented at examination on 8 March 2023. He was not bound by the observations or conclusions of Dr Canaris at examination almost twelve months earlier in March 2022, including his views as to her powers of concentration.

5. Nor was he bound by her subjective impression of her own powers of concentration as at the date of her statement on 9 December 2021. He took an updated history, and in any event had detailed regard to her statement, as he indicated at [4] of his reasons.

6. The appellant submits that she has “impacted concentration” because she can no longer find her way to and from Sydney as she used to. Her ability to travel was assessed by the Medical Assessor under the Scale, “Travel”, as was appropriate. Travel is not assessable under “Concentration persistence and pace”.

7. In any event, it was not the finding of the assessor that she was no longer able to find her way to and from Sydney as before. He remarked in his reasons in the PIRS Table, that she “has been able to travel up to Sydney on a couple of occasions recently”. Under the heading, “Social activities/AD”, he explained:

   “She shops as she needs to although describes being aroused and aware when shopping. She has no reason to leave Kiama Downs although over the past couple of years has been able to travel up to Sydney to see her eye specialist and late last year went to pick her daughter up from the airport and described no difficulty doing either to do [sic] of those.”

8. As the appellant correctly points out, the Medical Assessor assessed a class 5 impairment in respect of Employability. That did not compel a class 3 assessment in respect of Concentration, persistence and pace, because the reasons given in the PIRS Table for the class 5 assessment were her arousal, avoidance and anxiety, which prevented her from working in social situations, and her lack of motivation.

9. The appellant offers no basis for the assertion that the Medical Assessor failed to make a proper diagnosis. He expressed the reasons for making that diagnosis at [7], with reference to relevant diagnostic criteria. The diagnoses he made (Major Depressive Disorder and Post-Traumatic Stress Disorder) are not inconsistent with his findings on mental examination at [5]. In our view, his diagnoses were reasonably open on the evidence.

1. We can identify neither error nor the application of incorrect criteria in the assessment of Concentration, persistence and pace.

Conclusion

1. For the reasons given, the Medical Assessment Certificate of Medical Assessor Glozier is confirmed.