Spartalis v Zip Heaters Australia Pty Limited

DETERMINATION OF APPEAL PANEL
CITATION:	Spartalis v Zip Heaters Australia Pty Limited [2021] NSWPICMP 130
APPELLANT:	Orpheus Spartalis
RESPONDENT:	Zip Heaters Australia Pty Limited
APPEAL PANEL:	Member Marshal Douglas Dr Patrick Morris Professor Nicholas Glozier
DATE OF DECISION:	20 July 2021
CATCHWORDS:	WORKERS COMPENSATION- The medical dispute required the assessment of the appellant’s permanent impairment from a psychological injury; appellant submitted the Medical Assessor did not take into account his evidence relating to the categories of social functioning and concentration, persistence and pace, and that consequently the Medical Assessor’s classifications of his impairment in these categories as mild was wrong; Held- when assessing the appellant’s impairment, the Medical Assessor took into account all of the material at his disposal, which included the evidence in the appellant’s statement and also the history the Medical Assessor obtained during the assessment and the findings the Medical Assessor made during his examination of the appellant; based on that material, it was open to the Medical Assessor to classify the appellant’s impairment in social functioning and in concentration, persistence and pace as mild; MAC confirmed.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 May 2021 Orpheus Spartalis (the appellant) 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 22 April 2021.
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, 4^th ed 1 April 2016 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment with Zip Heaters Australia Pty Limited in April 2007, working as a call centre operator. Due to events that occurred in his employment after 2015 he suffered a psychological injury.
The appellant made a claim under s66 of the Workers Compensation Act 1987 (the 1987 Act) against the respondent for compensation for permanent impairment from his injury. He relied on a report of consultant psychiatrist Dr Peter Anderson dated 21 February 2020 who had assessed his permanent impairment from his injury to be of the order of 18% whole person impairment (WPI).
Subsequent to the claim being made, the respondent’s insurer organised for the appellant to be examined by psychiatrist Dr Yajuvendra Bisht on 3 July 2020. Dr Bisht reported to the respondent’s insurer on 8 July 2020 advising that he had assessed the degree of the appellant’s permanent impairment from his injury to be 6% WPI.
On 14 July 2020, the respondent’s insurer notified the appellant under s 78 that it denied it was liable to pay him compensation under s 66 because, based on the report of Dr Bisht, it contended that the appellant’s degree of permanent impairment was less than the threshold of 15% WPI imposed by s 65A(3) of the Act for the appellant to be entitled to compensation.
On or around 12 January 2021 the appellant lodged with the Commission an Application to Resolve a Dispute, seeking determination of his claim for compensation under s 66. A delegate of the Registrar on 5 February 2021 referred the medical dispute relating to the degree of the appellant’s permanent impairment from his injury to the Medical Assessor to assess. The Appeal Panel notes that at the time the referral was made the Medical Assessor was known an Approved Medical Specialist. With the abolition of the Workers Compensation Commission on 28 February 2021 and the creation of the Personal Injury Commission on 1 March 2021, an Approved Medical Specialists is now known as a Medical Assessor.
The Medical Assessor conducted an examination of the appellant on 13 April 2021 and, as mentioned above, on 22 April 2021 issued the MAC, in which he certified he had assessed the degree of the appellant’s permanent impairment from his injury to be 7%.

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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because, for reasons explained below, the Appeal Panel came to the view that the Medical Assessor’s assessment was based on the correct criteria and that the MAC does not contain a demonstrable error. The Appeal Panel consequently cannot revoke the MAC, and the Appeal Panel does not therefore need to nor have the power to require the appellant to be re-examined.[1]
[1] 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

In the MAC the Medical Assessor noted that since the appellant had suffered his injury the appellant did “not care anymore” and that he grinds his teeth. The Medical Assessor noted that if someone puts pressure on the appellant his blood pressure and heart rate will rise and he will become nervous and uptight, and, by way of example, the Medical Assessor noted that the appellant had described that when he was watering his lawn and a neighbour advised him he was doing it the wrong way he became irritated and walked away. The Medical Assessor recorded that the appellant reported presently suffering the following symptoms:
“●      Dysregulated emotions with elements of anxiety, depression and anger.
·        Reduced enjoyment and motivation.
·        Having poor concentration and difficulties with his memory.
·        Fleeting suicidal thought.
·        Appetite and weight problem since the subject injury, and having gained 8kg in the past 12 months.
·        Sleep disturbance.
·        Having a low tolerance for frustration.
·        He avoids social situations due to his anxieties.”
Under the heading “Social activities/ADL”, the Medical Assessor recorded the following:
“Mr Spartalis lives on his own. He has two adult children.
I asked Mr Spartalis what he does during the daytime and he said he does not do anything at all. He went on to state that he does not have visitors, he does not visit anybody, he does not get invitations. He further stated that he does not leave home because he is too nervous and uptight. He showed me that he had lost many teeth and there was a gap in his teeth, and therefore he does not want to go out. He also said that when he goes out he becomes anxious and nauseated.
Mr Spartalis confirmed he goes to the shops once every fortnight. He will buy enough food for two weeks, and sometimes he will go out again to buy cigarettes.
Regarding housework, Mr Spartalis said he lives in a small apartment and says he has only vacuumed it maybe two or three times in the last two years. He said he would start doing some jobs around the apartment but does not finish them. For example, he would do some painting or fix a drill, but then does not finish it.
Mr Spartalis was going to the gym but approval was discontinued.
Mr Spartalis said he rarely drives. I asked him what is the longest he is capable of driving, and he said the longest he can drive is only 5 km. I asked him about driving to the volunteering place at Yagoona, and he agreed that he can drive 15 km on his own, to the volunteering place. He said he is too anxious to take buses and trains.
Mr Spartalis said the children rarely visit him. He went on to say that he has regular contact with his son, and his daughter does not want to talk to him because he upsets her, and this has been the case for many years.
Mr Spartalis is the youngest of seven siblings, and said that he has not had contact with his siblings for many years because they are not nearby, and they lead their own lives, and that three of them have died. I asked him when was the last time he felt close to them. He said he does not know.
Aside from the charity place and the shops, Mr Spartalis said he does not go anywhere else. I asked him about attendance at the hotel and RSL. He said he no longer has membership but he still goes occasionally to the hotel, but he only stays there for 10 or 15 minutes. In the last six months he estimated having gone maybe six to 10 times.
Mr Spartalis plays the poker machine on his own and he does not talk to anybody there.
Mr Spartalis spoke about his difficulty eating because of dental problems and he has to cut everything into small pieces. He eats regularly but only showers once or twice every fortnight.
Mr Spartalis does not have newspapers and does not read books. He said that the last time he read books was probably when he was at school, and he has probably only read one book in his whole life. I asked him about using the computer. He can read news articles online but he says he can only focus for three or four minutes. He watches some YouTube.
Mr Spartalis has a 30-year-old car and he will check the oil and change the oil when needed, but this does not require much work because he rarely drives the car, he said he only drives maybe 500 km per year.
I asked Mr Spartalis about handyman repairs on the house. He said he can do everything but he is not interested in doing it.
Mr Spartalis reported that he was driving and then his heart rate started going fast, and he had to pull over in front of a no parking sign and he was fined $292. He disputed the fine with OSR, and said he sent an email with the help of his son and also a doctor’s certificate, and the fine was changed to a caution instead.”
The Medical Assessor noted that he had directly enquired with the appellant regarding charity work and food distribution the appellant has done. The Medical Assessor recorded that the appellant advised that in the last 12 months he had done that work “one day a week” but had also estimated he had “gone maybe four to five times in the last three months”. The Medical Assessor noted that the appellant reported that on each occasion he had done that work, he worked for one or two hours. The Medical Assessor noted that the charity at which the appellant worked is operated by his niece and that when the appellant is there his niece and his niece’s mother are generally also there.
The Medical Assessor recorded the following under the heading “FINDINGS ON PHYSICAL EXAMINATION”:
“I called Mr Spartalis on the mobile phone because it appeared that his webcam was not switched on. After doing some problem solving, he was able to get the Skype video call working and the great majority of the contact was made through the Skype video call.
Mr Spartalis was assessed alone and was at home. I assessed Mr Spartalis from my Sydney office. I have completed a full psychiatric assessment with informed consent. I have taken handwritten notes and there was no audio-visual recording of the assessment. The assessment was undertaken over 58 minutes.
Mr Spartalis was bespectacled, and had receding hair and stubbles. He engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements. There was no apparent distress during the assessment. He had intense manners at times. He was moderately restricted in his affect range and reactivity. He spoke spontaneously and readily and gave long detailed history. He was not thought disordered and the provided history was easy to follow. He said he also read from a statement on his computer that he had prepared.
Mr Spartalis provided a coherent history. He remained attentive during the assessment, and was not distracted. There were no difficulties in alternating between topics and staying within topics. He maintained a normal processing speed.
Cognitive Assessment
Registration:
Mr Spartalis mentally registered 3 of 5 items after two attempts.
Short-term recall:
Mr Spartalis was able to recall two items without prompting, after a period of time and a shift in mental task.
MOYB:
When asked to name the months of the year in the reverse order from December, he was somewhat slow and recalled December, November, September, July, June, April, March, February, January and thought he recalled all months correctly.
I asked him to recall the months of the year forwards and he responded correctly, however was very slow, and was significantly slower than when he reversed the months. I note his test behaviour was inconsistent.
Verbal Fluency:
Mr Spartalis was able to generate 5 words starting with a specific letter of the alphabet within 60 seconds.
This is inconsistent with his verbal fluency during the assessment.
Ultimately I have disregarded the test results as they were markedly inconsistent and different to his cognitive performance during the assessment.”
As mentioned, the Medical Assessor assessed the appellant had 7% WPI from his injury. That was based upon the tally of his scores for his classifications of the appellant’s impairment in the several categories comprising the Psychiatric Impairment Rating Scale (PIRS) being 14 and the median score being 2.
The appellant’s challenge to the Medical Assessor’s assessment relates to the Medical Assessor’s classification of his impairment in the categories of social functioning and concentration, persistence and pace. In each of those categories the Medical Assessor scored the appellant’s impairment as 2, being a mild impairment. The Medical Assessor provided the following reasons for those classifications in the PIRS rating form appended to the MAC:

Social functioning
2
He is anxious and socially avoidant, and reported having ceased contact with all of his friends.
His relationship with his son and niece is good.
He reported strained relationship with his daughter.

He described longstanding issues with his siblings with a further decline after the subject injury.

Concentration, persistence and pace
2
Mr Spartalis reported having reduced concentration.
His mental state examination is consistent with 2.

The Medical Assessor also provided further reasons for classifying the appellant’s impairment in these categories as mild when comparing his assessment with the assessments that Drs Anderson and Bisht had respectively made. Those further reasons were:
“Dr Anderson rated Mr Spartalis’ social functioning as 3 and advised there has been a loss of friendship, and irritability and impatience affects his relationships. Dr Bisht rated 2 and noted he has good relationships overall with the family but gets irritable and becomes distant from them. In my assessment, I noted Mr Spartalis has not had a partner for more than 30 years. He and his siblings and daughter have a distant or tense relationship, and in the context of work stress, there has been a further decline in the relationships. He has good relationships with some family members, including his niece, her family and his son. There has been no domestic violence. I consider this consistent with a rating of 2.
In terms of concentration, persistence and pace, Dr Anderson rated 3 on the basis Mr Spartalis’ marked loss of capacity to concentrate affects his dealing with paperwork generally, he reads magazines and watches television. Dr Bisht rated 2, and explained that Mr Spartalis could sustain concentration on demanding tasks like driving up to 20 minutes. In my assessment I noted that playing poker machines does not require much concentration. He could do simple repairs to his car and change the oil. He reads newspaper articles online and watches YouTube. With his son’s help he reversed an OSR fine successfully. I also performed cognitive testing during the assessment, but I rejected the assessment results as they were internally inconsistent and the results were also inconsistent with the rest of his cognitive performance during my 58-minute contact with him. I rated his concentration, persistence and pace as 2.”
The Medical Assessor said within the MAC that he had based his assessment on his clinical examination of the appellant and the “perusal of documentation submitted by the parties”. The documentation submitted by the parties were the documents the Commission forwarded to the Medical Assessor with the referral, being the documents attached to the Application to Resolve a Dispute and the documents attached to the respondent’s Reply.

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, with respect to social functioning that his evidence was such that he “more appropriately fits within Class 3”. He highlights from his evidence that he has lost all friendships and not just some of his friendships, that he has no visitors or no invitations, that he goes to the shops for necessities only and then only every two weeks, and that he has no relationship with his daughter, which indicates that that relationship is severely strained. The appellant submits that not all of his relationships are required to be severely strained so as to be classified as having a moderate impairment in social functioning. The appellant submits that the descriptors provided in Table 11.4 of the Guidelines for rating a worker’s impairment in social functioning are examples only of how an impairment of a worker may be rated and do not represent “criteria which are to be applied blindly”.
With respect to the assessment of his impairment in concentration, persistence and pace, the appellant submits that the Medical Assessor should not have used the results from the clinical testing he conducted during the assessment as a reason to assess his impairment as Class 2 because the Medical Assessor had rejected the results of these tests. The appellant submits that his evidence was he has poor concentration and is able only to carry out simple tasks that require very little concentration, persistence and pace. The appellant submits that his playing poker machines does not require much concentration. The appellant submits that his doing simple repairs on a car and changing oil does not qualify as being able to follow complex instructions. The appellant submits that the Medical Assessor’s assessment lacked any regard to what persistence and pace the appellant is able to apply. The appellant submits that his evidence “points to an impaired level of concentration, persistence and pace” of class 3.
In reply, the respondent submits that the findings the Medical Assessor made with respect to the appellant’s impairment in social functioning were a matter entirely for the Medical Assessor’s clinical judgment. The respondent highlights that the Medical Assessor considered the opinions of Drs Anderson and Bisht.
The respondent further submits that the Medical Assessor’s findings regarding the appellant’s impairment in concentration, persistence and pace were also matters entirely for his clinical judgment and again the Medical Assessor considered the opinions of
Drs Anderson and Bisht with respect to the appellant’s impairment in concentration, persistence and pace.

The respondent submits that the Medical Assessor has weighed all the available evidence and has then drawn on his own conclusions, which were based upon his clinical assessment, to assess the appellant’s impairment. The respondent submits the MAC does not contain a demonstrable error.

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.
The Guidelines at [1.6] instruct that an assessment of “permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information”.
As Campbell J. noted in Jenkins v Ambulance Service of New South Wales[2] (Jenkins), the assessment of a worker’s permanent impairment from a psychiatric injury requires a Medical Assessor to determine from all the materials at the Medical Assessor’s disposal whether the impairment of the worker in each of the PIRS categories fits into one of the classes ranging from no impairment to total impairment. The Guidelines provide descriptors for each class of the several PIRS categories, but these are examples only of how a worker’s function or activity may be affected by a psychiatric condition. These examples are provided to assist the Medical Assessor to consider the ways in which a psychiatric condition may impact upon the worker’s activities and capacity to function in the relevant area to be assessed. They place no restriction on how the Medical Assessor is to rate the worker’s impairment in a particular category. They are not prescriptive.[3]
[2] [2015] NSWSC 663 at [56]
[3] Jenkins at [57]-[60]
Campbell J in Ferguson v State of New South Wales[4] cited at [23], with approval, the following passage 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. …”
[4] [2017] NSWSC 887 (Ferguson)
The Appeal Panel considers that it is apparent from the MAC that the Medical Assessor had regard to all the materials at his disposal when assessing the appellant’s impairment. That material included the brief of documents the Commission forwarded to him, which included the appellant’s statement. The material also included the history the Medical Assessor obtained at examination and his findings from his examination of the appellant.
The Appeal Panel considers the Medical Assessor took into account all relevant matters within that material when evaluating the appellant’s impairment in the several categories comprising the PIRS, including the appellant’s ability in social functioning and in concentration, persistence and pace.
It seems to the Appeal Panel that the Medical Assessor, whilst considering all the material before him, gave pre-eminence to his clinical observations of the appellant and the history he obtained at the time of his examination. He exercised his clinical judgment in doing so, which, consistent with what was held in Ferguson, the Medical Assessor was entitled to do.
With respect specifically to social functioning, the Medical Assessor’s reasons for classifying the appellant’s impairment as mild included that the appellant was anxious and socially avoidant and that he had lost contact with all of his friends. The Medical Assessor’s reasons also included that the appellant maintained good relationships with his son, his niece and his niece’s family. The Medical Assessor noted that there were no issues with respect to domestic violence involving the appellant. The Medical Assessor noted that the appellant had a strained relationship with his daughter, which predated the injury, and long standing issues with his siblings, which had worsened as a consequence of the appellant’s injury.
The Medical Assessor was aware that the appellant did not have visitors and did not receive invitations.
In the Appeal Panel’s view, it was open to the Medical Assessor to classify the appellant’s impairment in social functioning as mild for the reasons the Medical Assessor articulated. His reasons were based upon the history he obtained and his observations from his clinical examination of the appellant. One particular aspect of the appellant’s social functioning, specifically the nature of his relationship with his daughter, correlated with a descriptor for a class 3 rating, but it seems to the Appeal Panel that the Medical Assessor weighed this with the other aspects of the appellant’s social functioning that indicated regular family contact and support, and having done so, the Medical Assessor scored the appellant as having a class 2 impairment. The Appeal Panel can discern no error in the Medical Assessor having done so.
The Medical Assessor’s reason for assessing the appellant as having a mild impairment in the category of concentration, persistence and pace included that the appellant had reduced concentration. The Medical Assessor noted that the appellant was able to play pokies but observed that this did not require much concentration from the appellant. The Medical Assessor’s reasons also included that the appellant was able to do simple car repairs and maintenance, that the appellant could read newspapers on line and watch YouTube, and that the appellant had successfully overturned a Office of State Revenue fine with his son’s assistance.
The Medical Assessor did not have regard to the results from the cognitive testing the Medical Assessor had undertaken and this was because the Medical Assessor considered there were inconsistencies in the results. The Medical Assessor therefore assessed the appellant based on the history he had obtained and from his findings from his clinical examination of the appellant. In other words, contrary to what the appellant submitted, the results of the cognitive testing was not a factor in the Medical Assessor’s assessment of the appellant’s impairment in concentration, persistence and pace.
The fact that some of the appellant’s activities relating to concentration, persistence and pace accord with descriptors provided for a class 3 impairment does not mean that the appellant’s impairment must be classified as class 3. As was held in Ferguson, those descriptors provide only examples to assist a Medical Assessor when assessing a worker’s impairment. They are not prescriptive. This is the identical argument to that used by the appellant in their appeal over Social Functioning. In the Appeal Panel’s view the Medical Assessor adopted a global evaluation of all of the appellant’s activities when evaluating the worker’s impairment in concentration, persistence and pace.
With respect to the appellant’s persistence and pace, it is apparent to the Appeal Panel that the Medical Assessor, whilst not using those specific words, was aware of the persistence and pace the appellant demonstrated by virtue of the findings the Medical Assessor made from his physical examination of the appellant. That is to say the Medical Assessor noted that over the duration of the 58 minutes in which the assessment was taken the appellant spoke spontaneously and readily and gave a long detailed and coherent history and exhibited no thought disorder and was easy to follow. Further, the appellant was able to read from a statement, he had previously prepared on his computer. The Medical Assessor observed that the appellant remained attentive during the course of the assessment and was not distracted. The Medical Assessor noted that the appellant maintained a normal processing speed.
That was evidence of the appellant’s persistence and pace. It did not reveal a moderate impairment, in the Appeal Panel’s view. It is consistent with a mild impairment.
Again, in the Appeal Panel’s view, it was open to the Medical Assessor to rate the appellant’s impairment as mild in the category of concentration, persistence and pace based upon the history the Medical Assessor had obtained and his findings from his physical examination of the appellant.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 April 2021 should be confirmed.

[2021] NSWPICMP 130

20 July 2021