Rodrigo v Blackheath Area Neighbourhood Centre Inc
[2021] NSWPICMP 32
•22 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Rodrigo v Blackheath Area Neighbourhood Centre Inc [2021] NSWPICMP 32 |
| APPELLANT: | Alison Rodrigo |
| RESPONDENT: | Blackheath Area Neighbourhood Centre Inc |
| APPEAL PANEL: | Member Marshal Douglas Professor Nicholas Glozier Dr Patrick Morris |
| DATE OF DECISION: | 22 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant worker suffered psychiatric injury; appellant sought Appeal Panel receive into evidence a statement she made after MAC issued relating to her function in each of the PIRS categories; Appeal Panel did not receive that statement into evidence because appellant could have reasonably made a written statement regarding that matter prior to assessment; appellant submitted AMS erred with respect to the ratings of her impairment in all PIRS categories because AMS did not have proper regard how she functioned; Held- Appeal Panel considered AMS applied his clinical judgment to determine the significance of the matters raised in the evidence with respect to how they affected the appellant’s function; the Appeal Panel considered that the AMS provided sufficient reasons for his ratings and that the AMS’s ratings were open to be made by him based on what in his clinical judgement he considered were the significant matters; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 October 2020 Alison Rodrigo (the appellant) lodged an Application to Appeal Against the Decision of an Approved Medical Specialist. The medical dispute was assessed by Dr Julian Parmegiani, who issued a Medical Assessment Certificate (MAC) on 7 September 2020.
The Appeal Panel observes that on 28 February 2021 the Workers Compensation Commission (WCC) ceased to be, and that the Personal Injury Commission was established on 1 March 2021. In accordance with changes set out in Schedule 6 of the Personal Injury Commission Act 2020, an Approved Medical Specialist of the WCC is now known as a Medical Assessor, and an Arbitrator is now known as a Member. For the sake of clarity, the Appeal Panel notes that it will refer to Dr Julian Parmegiani using the acronym AMS, given that at the time he assessed the medical dispute and issued the MAC, he was an Approved Medical Specialist of the WCC.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment with Blackheath Area Neighbourhood Centre Inc (the respondent) in 2007. She suffered a psychological injury due to several incidents that occurred during her employment. On 12 February 2020, at the request of her solicitors, consultant psychiatrist Dr Ben Teoh examined her. In a report to her solicitors on that same day, Dr Teoh diagnosed the appellant’s injury as Chronic Adjustment Disorder with mixed anxiety and depressed mood. He also reported to the appellant’s solicitors that he had assessed that the appellant had 15% whole person impairment (WPI) from her injury.
The appellant’s solicitors then wrote to the respondent advising it that the appellant was claiming compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 15% WPI and also weekly payments of compensation from 1 November 2018 for an incapacity for work the appellant had from her injury. The appellant’s solicitors enclosed with their letter a copy of Dr Teoh’s report of 12 February 2020. The Appeal Panel notes that the appellant’s solicitors’ letter was dated 31 January 2020, but necessarily that could not be the correct date given that the letter had enclosed with it Dr Teoh’s report.
The respondent’s insurer thereupon organised for the appellant to be examined by psychiatrist Dr Deepinder Miller. That examination occurred on 28 May 2020. In a report Dr Miller wrote to the respondent’s insurer on 17 June 2020 she advised that she had diagnosed the appellant suffered from a chronic Adjustment Disorder with mixed anxiety and depressed mood, and alcohol use disorder, and tobacco use disorder. She advised the appellant had not achieved maximum medical improvement because, in her opinion, further therapy was available for the appellant that would benefit the appellant. Dr Miller advised “a WPI does not apply”, because of that, but nevertheless she reported that she had assessed the appellant’s degree of permanent impairment from the appellant’s injury was 7% WPI.
The respondent’s insurer then wrote to the appellant on 24 June 2020 and notified her, under s 78 of the 1998 Act, that it disputed liability to pay her compensation for permanent impairment from her injury because she was, according to it, not eligible as her WPI from her injury was less than the statutory threshold of 15% imposed by s 65A(3) of the 1987 Act for her to have an entitlement for compensation for permanent impairment. The respondent’s solicitors indicated to the appellant in its letter that it relied upon the report of Dr Miller dated 17 June 2020 with respect to its position.
The appellant’s solicitors then filed with the WCC an Application to Resolve a Dispute, by which the appellant sought determination of the claims she had made against the respondent for compensation for permanent impairment and weekly payments of compensation. The matter was referred to Arbitrator Ms Rachel Homan who issued a Certificate of Determination on 30 July 2020, with the consent of the parties, by which she remitted the matter to the Registrar for referral to an Approved Medical Specialist to assess the medical dispute relating to the degree of permanent impairment of the appellant from her psychological injury. Arbitrator Homan also noted within that certificate that the respondent had agreed to pay weekly benefits to the appellant in accordance with the 1987 Act based upon an agreed pre-injury average weekly earnings rate of $310.88.
On 5 August 2020 a delegate of the Registrar referred the medical dispute to the AMS to assess and, as mentioned earlier, the AMS provided a certificate with respect to that referral on 7 September 2020, which the Appeal Panel notes followed his examination of the appellant on 3 September 2020 by means of the software platform Skype.
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.
Fresh evidence
During its preliminary review, the Appeal Panel considered whether it should receive into evidence a statement the appellant signed on 2 October 2020.
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant in her statement of 2 October 2020 describes how she presently functions within the several areas of functions with respect to which, in accordance with [11.11] of the Guidelines, the AMS rated her impairment so as to assess the degree of the appellant’s permanent impairment from her injury.
Regarding whether the Appeal Panel should receive her statement into evidence, the appellant submits that “communication errors or misunderstandings must have arisen in the interview process as the report and findings contain substantial errors”. The respondent submits that the appellant in her statement is attempting to give a different history or to clarify the history she gave the AMS at the time of examination, and the respondent submits that in that regard the appellant is basically seeking to “cavil with the assessment and clinical judgment of the AMS”.
The Appeal Panel notes that the appellant does not recount in her statement of 2 October 2020 any of the conversation that occurred between her and the AMS during the AMS’s examination of her, and hence her statement does not provide support for her submission to the effect that the AMS made errors with respect to the history he obtained or may have misunderstood what she may have said during the AMS’s examination of her. Even if she had recounted in her statement what she says was said between her and the AMS during examination, that evidence would still not be able to demonstrate the MAC contained an error, and hence would not be probative to the ground for appeal the Appeal Panel must consider. This is because evidence that goes beyond the face of the MAC cannot be relied on to substantiate the MAC contains a demonstrable error[1]. That is to say, to the extent that a party has to adduce further evidence to substantiate there is an error in the MAC, then it cannot be readily demonstrated from the face of the MAC that the MAC contains an error.
[1] See Pitsonis v Registrar of the Workers Compensation Commission [2008] NSWCA88 and NSW Police Force v Registrar of the Workers Compensation Commission [2013] NSWSC1792.
Irrespective of that, the Appeal Panel considers that the evidence the appellant seeks to give in her statement of 2 October 2020 is evidence that she could reasonably have obtained before the AMS’s assessment. This is because her evidence in her statement relates entirely to how she functions in the several behavioural areas that must be assessed to rate a worker’s impairment from a psychiatric injury. She would have been aware, prior to the AMS’s assessment of her permanent impairment, how she functioned in these several areas. Indeed, the fact that she made a statement shortly after the MAC was issued relating to that, confirms that. In the Appeal Panel’s view, it was reasonably open for her to record in a statement how she functioned in these areas and to have filed such a statement with the WCC either prior to filing her application with the WCC or prior to the Registrar referring the medical dispute regarding the degree of her permanent impairment form her injury to the AMS to assess. Accordingly, the Appeal Panel is unable under s 328(3) to receive her statement into evidence.
Further medical examination
Based on its preliminary review, the Appeal Panel determined that it would not require the appellant to undergo a further medical examination. This is because the Appeal Panel came to the view, for reasons that are explained below, that the ground for appeal on which the appellant relied is not established. The Appeal Panel cannot therefore revoke the MAC, and its power to require the appellant to be re-examined is not enlivened.[2]
[2] See NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
The history the AMS obtained from the appellant, which he recorded in Part 4 of the MAC, included that the appellant, as a consequence of her injury, slept poorly, had a decreased appetite, and had lost 6 kilograms in weight. The AMS noted that the appellant reported her appetite was erratic and that her weight had gradually increased, which the appellant attributed to COVID19 lockdown and lack of physical activity. The AMS noted that the appellant lacked energy, motivation and concentration and reported having two near accidents whilst driving. The AMS noted that the appellant reported avoiding going out because she lived in a small community and did not want to run into persons associated with the respondent. The AMS noted that the appellant self-medicated with alcohol to improve her sleep and that after she had ceased working for the respondent she had begun drinking one and a half bottles of wine a night. The AMS noted that the appellant ruminated daily about the work incidents from which her injury arose. The AMS noted that the appellant experienced alcohol related periods of amnesia on average once a week.
With respect to how the appellant’s injury affected her social activities and activities of daily living the AMS recorded the following within Part 4 of the MAC:
“Ms Rodrigo lived alone in Medlow Bath until recently. She moved in with her mother two weeks ago, in Liverpool. Ms Rodrigo did not shower daily, and her appetite was erratic. She took less care with her appearance. Ms Rodrigo saw three close friends every 2-3 days. She went on bushwalks, and she attended African drumming classes on Monday nights. Before the COVID lockdown she went to restaurants every 1-2 weeks. Ms Rodrigo was able to travel alone to unfamiliar areas. She now travelled from Liverpool to the Blue Mountains once per week, to attend African drumming classes. She slept at a friend’s house overnight, and she saw her psychologist the following day. She then returned to Sydney. Ms Rodrigo lacked concentration, but she was able to perform some intellectually demanding tasks. She recently read a book called Eggshell Skull, which criticised the legal system. She spent up to two hours per day online, looking at her social media. She told me she liked photography and she posted photographs on Instagram.”
The AMS recorded his findings from his mental state examination of the appellant at Part 5 of the MAC in these terms:
“Ms Rodrigo was interviewed via videolink. The audio-visual signal quality was good. She appeared somewhat anxious and agitated. Her emotional expression was increased in range, and she was able to smile at times. Her thinking was coherent and she did not express delusional ideas. She did not experience visual or auditory hallucinations. She was oriented in time, place and person and her memory was intact.”
The AMS said that the appellant’s symptoms “are best described as an adjustment disorder with mixed anxiety and depressed mood”.
In Table 11.8 of the MAC the AMS set out his ratings of the appellant’s impairment for the several areas of the appellant’s function he was required to assess, in accordance with paragraph 11.11 of the Guidelines, so as to the establish the appellant’s impairment from her psychiatric injury. He provided brief reasons for each of his ratings. The completed table was as follows:
PIRS Category Class Reasons Self Care and Personal Hygiene
2 Ms Rodrigo was able to live independently
with a mild degree of neglect. She was able to
purchase groceries, prepare meals and perform
domestic tasks. She did not however showerregular, and her appetite fluctuated
Social and recreational activities 1 Ms Rodrigo maintained a number of social and
recreational activities. She attended African
drumming classes on Monday nights. She
enjoyed going on bushwalks, and before the
COVD-19 lockdown she went to restaurants
every 1-2 weeks. She saw friends every 2-3days.
Travel 1 Ms Rodrigo was able to travel alone to
unfamiliar areas, albeit with increased anxiety.
She commuted weekly from Liverpool to the
Blue Mountains to attend appointments withher psychologist
Social functioning 2 Ms Rodrigo had less contact with friends. She
maintained regular contact with three friends.She was able to maintain some relationships.
Concentration, persistence and pace 2 Ms Rodrigo reported a subjective impairment
of concentration. She was however able to read
a book at a slower pace, and she spent up to
two hours per day on the internet. She postedphotos on social media
Employability 3 Ms Rodrigo did not undertake gainful
employment since November 2018. Ms
Rodrigo was able to drive a motor vehicle, and
perform domestic tasks. Under different
circumstances she could be remunerated for
these activities. Taking into account her current
symptoms, her mental state examination, and
her daily activities in toto, it is likely that she
could work up to 20 hours per week in an
occupation that did not require significant
intellectual effort.
The AMS noted that the median of his ratings was 2 and that the aggregate was 11, which correlated with 5% WPI.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that she is seriously impaired with respect to her self-care and personal hygiene. She submits that the house that she rents has mould on the walls and that she rarely washes herself or her clothes and does not prepare meals but eats tin food. With respect to social and recreational activities, the appellant submits that she is unable to engage in intimate relationships and has lost all her friends other than three who check on her regularly and that her only social interaction is a drumming class that she attends irregularly. With respect to travel she submits that she is unable to travel independently because she becomes confused. She submits, with respect to her social functioning, that she barely functions socially and does not initiate social contact. With respect to her concentration, persistence and pace, she submits that she has lost her capacity to concentrate and has only managed to read one book in two years whereas she used to be an avid reader, reading three or four books per month. With respect to employability, she submits that she is totally incapacitated and totally unfit for work due to the severity of her symptoms and disability due to injury.
It is implicit in her submissions that she considers the AMS did not have proper regard to these features of her functioning and, as a consequence, did not correctly rate her impairment.
In reply, the respondent submits that the appellant’s submissions amount to a summary of her additional statement of 2 October 2020 and are an attempt to amend the history and assessment recorded in the MAC without referring to any demonstrable error in the MAC. The respondent submits that the AMS gave primacy to the detailed history he obtained and the AMS referred to the medical reports he was provided and explained how it was that these assessments differed from the assessments of the authors of those medical reports. By doing that, the respondent submits that the AMS complied with the requirements of [1.6] of the Guidelines.
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.
Noting that the Appeal Panel was unable to receive into evidence the appellant’s statement of 2 October 2020, the Appeal Panel is of the view that there is nothing within the evidence that is before it that supports most of the submissions the appellant has made.
The report of Dr Teoh dated 12 February 2020 provides particularly vague evidence, in the Appeal Panel’s view, regarding how the appellant’s injury affected her function, at that point in time, in the several areas that are required to be rated to assess the appellant’s permanent impairment from her injury. Dr Teoh expressed the view that the appellant was not fit to work “at this stage” which was 17 February 2020. Dr Teoh noted that the appellant had a loss of interest in her activities and had been experiencing social isolation and lacked motivation and interest in her usual activities. Dr Teoh noted that the appellant had poor concentration and preoccupation and negative thoughts. Dr Teoh noted that the appellant’s relationships were strained due to her irritability and lack of communication.
In her statement of 15 November 2019, the appellant reveals that she has had difficulties securing employment, that her concentration has been compromised severely, that she was nearly involved in two car accidents because she became distracted when particularly distraught in December 2018, and that her injury has affected her social interaction such that she felt that she had no other choice but to relocate to another area and rebuild her life.
Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887 at [23] (Ferguson) cited with approval the following passage at [33] from the decision of the Appeal Panel in NSW Police Force v Daniel Wark [2012] NSWWCCMA 36:
“…the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face. …”
In the Appeal Panel’s view the AMS has obtained a history sufficient to enable him to assess the appellant’s permanent impairment with respect to the several rating areas in which he was required to classify the appellant’s impairment between nil and severe. The AMS has indicated in the MAC that he obtained that history having perused the documents that were provided to him by the WCC, which included the appellant’s statement of 15 November 2019 and Dr Teoh’s report of 12 February 2020 and also Dr Miller’s report of 17 June 2020. Ferguson confirms that the AMS was entitled, when assessing the appellant’s permanent impairment to exercise his clinical judgment giving significance to the history he obtained during his examination of the appellant.
In the Appeal Panel’s view, the AMS’s classification of the appellant’s impairment in the several areas of the appellant’s function that he was required to rate under [11.11] of the Guidelines are supported by the reasons he provided in Table 11.8 of the MAC. The AMS’s reasons therein are based upon the matters that in his clinical judgment he considered were significant from the history he obtained.
With respect to employability, the Appeal Panel notes that the appellant is not presently working. However, the AMS considered that because the appellant was able to drive a vehicle and could perform domestic tasks, that potentially there was employment available to her in which she could work 20 hours a week that would require her to perform similar tasks. The Appeal Panel observes that domestic tasks form the core of a number of cleaning and care jobs. It was, in the Appeal Panel’s view, open to the AMS to form the opinion he did and, because of that, it does not matter that others may have formed a different view regarding the appellant’s impairment in this area. A difference of opinion is not a demonstrable error. Rather what is required is that the opinion the AMS formed was not reasonably open to him.[3]
[3] Glen William Parker v Civil Pty Ltd [2018] NSWSC 140 at [66].
That is also the case with respect to the other areas in which the AMS has classified the appellant’s impairment. With respect to concentration, persistence and pace the AMS had regard to the fact that the appellant now read books at a slower pace but was able to post photos on social media, which the Appeal Panel notes requires some concentration, and was also spending two hours a day on the internet, which similarly requires concentration. The AMS’s classification of the appellant’s impairment as mild in this area was open to him.
With respect to self-care and personal hygiene, there is no evidence that is before the Appeal Panel that supports the appellant’s submissions that she resides in a leaking house with mould on the walls, the inference from which would be that she is unable to clean her house. The AMS’s rating of the appellant’s impairment as mild is, as has been discussed above, based on what he considered to be significant in terms of the history he obtained. His rating was open to him.
With respect to social and recreational activities, the AMS was cognisant of the fact that the appellant had lost contact with some friends, but he based his assessment on what he considered was significant from the history he obtained that included the appellant still participating in a number of social and recreational activities, including a drumming class on Monday evenings, and going on bush walks and, before the restrictions imposed by the COVID19 pandemic, going to restaurants. The AMS based his classification of the appellant having only a minor deficit in this area of function on that as well as the appellant seeing friends every two to three days, before the COVID19 restrictions.
With respect to travel, the AMS based his assessment that the appellant only had a minor deficit in this area on the fact that she was able to travel alone to unfamiliar areas although with increased anxiety and that she commuted weekly between Liverpool and the Blue Mountains to attend appointments with psychologists. In the Appeal Panel’s view, the AMS’s rating of the appellant in this area as minor was open to him.
That is also the case, in the Appeal Panel’s view, with the AMS’s rating that the appellant had a mild impairment in the area of social functioning. The AMS’s rating of the appellant’s impairment in this area was justified by the history he obtained of the appellant maintaining regular contact with three friends and maintaining relationships with those friends.
To repeat, although in a more adumbrated fashion from what the Appeal Panel has explained above, the AMS exercised his clinical judgment when assessing the appellant’s impairment to base his assessment on what he considered significant from the history he obtained, and his ratings of the appellant’s impairment in each of the relevant functional areas was open to him to make.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 September 2020 should be confirmed.
Marshal Douglas
Member
Professor Nicholas Glozier
Medical Assessor
Dr Patrick Morris
Medical Assessor
22 March 2021
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