Yaghi v Pacific National Executive Services Pty Ltd
[2022] NSWPICMP 2
•10 January 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Yaghi v Pacific National Executive Services Pty Ltd [2022] NSWPICMP 2 |
| APPELLANT: | Yesmine Yaghi |
| RESPONDENT: | Pacific National Executive Services Pty Ltd |
| APPEAL PANEL: | Member Marshal Douglas Dr Patrick Morris Dr Douglas Andrews |
| DATE OF DECISION: | 10 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant suffered psychiatric injury, from which Medical Assessor (MA) assessed appellant had 7% whole person impairment (WPI); appellant submitted MA erred with respect to his classification of her impairment in the Psychiatric Impairment Rating Scale categories of travel, concentration, persistence and pace, and employability; Held - Appeal Panel considered it was open to MA to make the classifications he did with respect to concentration, persistence and pace and employability based on the material before the MA and for the reasons MA gave; Appeal Panel considered it was not open to MA to classify appellant’s function in travel as based on the evidence before the MA, and Appeal Panel consequently found Medical Assessment Certificate (MAC) contained a demonstrable error; Appeal Panel corrected that error and assessed appellant’s impairment in travel as class 2, but having done that the appellant’s WPI remained at 7%; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 19 October 2021 Yesmine Yaghi (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Samson Roberts, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 21 September 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 assessment was made on the basis of incorrect criteria,
· 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 1 April 2016 (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 Pacific National Executive Services Pty Ltd (the respondent) as a labour planner at some time in 2006. She last worked with the respondent in January 2020. She claimed that due to the manner in which her supervisor and manager treated her in the period between 2017 and 2019, she suffered a psychiatric injury.
On 13 November 2020 the appellant’s solicitors wrote to the respondent’s insurer claiming that the appellant had a permanent impairment of the order of 17% whole person impairment (WPI) from a psychiatric injury she had suffered from her work with the respondent. The appellant’s solicitors advised that the appellant claimed compensation from the respondent under s 66 of the Workers Compensation Act1987 (the 1987 Act) for that impairment. They advised that the appellant relied on a report of Dr Frank Chow dated 9 November 2020 and enclosed that report with their letter. Dr Chow is a consultant psychiatrist who examined the appellant on 4 November 2020. In his report Dr Chow advised that he diagnosed the appellant’s injury as Adjustment Disorder with Anxiety and, as the appellant’s solicitors advised the insurer, that he had assessed her as having 17% WPI from her injury. Dr Chow set out the basis of his assessment in his report.
The insurer then organised for the appellant to be examined by Consultant Psychiatrist Dr Clayton Smith, which occurred on 6 May 2021. In a report of the same date Dr Smith advised the insurer that he diagnosed the appellant’s injury as Adjustment Disorder with Mixed Anxiety and Depressed Mood. He said the appellant’s symptoms were in the mild range. Dr Smith also considered that the appellant had not reached maximum medical improvement as a consequence of further treatment options being available. Dr Smith advised in his report that based on the appellant’s functioning at the time of examination he had assessed her permanent impairment to be of the order of 5% WPI. The insurer provided the appellant with a copy of Dr Smith’s report.
The appellant thereupon lodged with the Commission an Application to Resolve a Dispute seeking determination of her claim for compensation from the respondent. The matter was referred to the MA to assess the degree of the appellant’s permanent impairment resulting from her injury.
The MA conducted an examination of the appellant on 9 September 2021. That was done by means of audio visual technology using the software platform Zoom. As noted above, the MA issued the MAC on 21 September 2021. In that he certified that the appellant had 7% WPI resulting from her injury.
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 Appeal Panel observed that in her application to appeal the MAC, the appellant had requested she be re-examined by one of the Medical Assessors comprising the Appeal Panel. However, as a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination because the Appeal Panel considered the material before it is sufficient to determine the appeal.
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 appellant’s appeal against the MAC relates to the MA’s assessment of her impairment in the Psychiatric Impairment Rating Scale (PIRS) categories of travel, concentration, persistence and pace, and employability.
The history the MA obtained relevant to those categories included that the appellant had until December 2020 maintained a role in a charity she had established in March 2019 to help people in need following the attack in a Christchurch mosque. The charity involved organising meals for homeless people. The MA noted that the frequency with which the appellant engaged in the charity diminished over time, with her last attending there in Christmas 2020.
The MA noted that the appellant had previously travelled between Sydney and Scone to visit her husband but her last trip to Scone occurred prior to her marriage to her husband in March 2021. The MA noted that the appellant previously had driven between her home in Carlton in Sydney and Bankstown so as to attend sessions with her psychologist.
The MA noted that the appellant was not currently working.
The MA noted that the appellant reported that she felt her psychiatric condition was getting worse. The MA noted that when asked by him the ways in which she perceived herself to have deteriorated, the appellant replied that she had initially been undertaking charity work and going to the shops but her motivation had declined and she had a deterioration in her appetite.
The MA recorded his findings from his physical examination of the appellant within Part 5 of the MAC in the following terms:
“Ms Yaghi was assessed by Zoom. The quality of the connection was good. She was neatly groomed. She did not appear to be wearing makeup. She wore a beanie throughout the assessment. She was animated but her affect was restricted and she described a depressed mood. She did not present as overtly distressed nor did she appear anxious. She participated fully and effectively in a lengthy assessment, addressing the questions posed to her and elaborating on the answers when required to do so. No features of a psychotic nature were apparent.”
The MA reviewed the reports of Dr Chow and Dr Smith. He reviewed a report of Dr Miller who is a consultant physician in psychiatry and who examined the appellant on 1 April 2020 at the request of the insurer and who considered the appellant did not suffer from a psychiatric injury. The MA reviewed reports of Ms Sokarno, a psychologist who treated the appellant. The MA also reviewed the practice notes of the appellant’s general practitioner (GP), namely Dr Alameddin. The MA made brief comments with respect to this material within Part 5 of the MAC.
The MA diagnosed the appellant’s injury to be Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and provided the following explanation for that within Part 7 of the MAC:
“The history presented by Ms Yaghi includes an account of mood symptoms and anxiety symptoms arising as an effect of experiences in the workplace. Countering the impression of symptoms of a moderately severe nature is Ms Yaghi’s description of having actively maintained participation in a charity for twelve months after ceasing work and having successfully established a new relationship with a man whom she ultimately married and whom she would visit in Scone. Namely, psychiatric symptoms, reportedly of a debilitating degree of severity, are inconsistent with such activities. Nevertheless, accepting the account of symptoms, it is appropriate to diagnose Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.”
The MA stated in the MAC that he assessed the appellant’s WPI based on the history the appellant had provided, the appellant’s presentation during his physical examination of her, and the documents that were provided to him.
With respect to the PIRS categories the subject of the appellant’s appeal, the MA assessed the appellant’s impairment with respect to travel as Class 1, that is either no deficit or minor deficit with respect to this area of function. He assessed the appellant’s impairment in concentration, persistence and pace as Class 2 that is a mild impairment. He assessed the appellant’s impairment in employability, which the MA described as adaptation, as Class 3, that is a moderate impairment. The MA provided the following reasons for his assessment in the PIRS rating form appended to the MAC.
Travel
1
Ms Yaghi did not describe any deficits with respect to travel. She reported being able to drive from her home in Carlton to her psychologist in Bankstown. She reported being able to drive to Scone to spend time with
her husband. It is acknowledged that she has not done this since their marriage in March but this was not presented as being an effect of psychiatric compromise.Concentration, persistence and pace
2
Ms Yaghi did not report engaging in any activities that demand persistence and pace. She engaged effectively in the interview, presenting her account in a logical and
coherent manner without evidence of compromise with respect to memory or concentration. Considering the nature of her psychiatric condition, it is appropriate to
anticipate that she would be mildly impaired in this area.Adaptation
3
Ms Yaghi ceased active engagement in charity work in late 2020. She is not pursuing any activity analogous to remunerative employment currently. The nature and severity of Ms Yaghi’s symptomatology is such that she
would not be able to engage in work at the level of sophistication at which she was previously employed. It is also anticipated that she would be unable to pursue work of more than 20 hours per week. On this basis, it is appropriate to conclude that she is moderately
impaired.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the MA was required to assess her impairment based on how she presented on the day of the assessment, whereas, according to the appellant, the MA relied on the fact that she had previously participated in charity work and the MA failed to take into account that her condition had deteriorated such that she could not perform that work. The appellant submitted that her function had deteriorated since Dr Chow assessed her impairment in November 2020 and the MA’s assessments with respect to her impairment ought to have been at least that which Dr Chow had assessed her impairment.
The appellant submitted that the MA ought to have assessed her impairment in the category of travel as Class 2 and the MA’s finding that the restriction on her ability to travel was not due psychiatric compromise was inconsistent with her evidence and inconsistent with the fact that her condition had deteriorated.
The appellant submitted that the MA failed to consider relevant evidence with respect to his assessment of her impairment in concentration, persistence and pace, specifically the evidence in the form of the reports of Dr Chow, Dr Miller, Dr Smith and Ms Sokarno and her statement. The appellant contended this evidence detailed difficulty she has with concentration, feelings of fatigue, sleep and motivation. The appellant’s submitted that the MA’s assessment of her impairment as Class 2 demonstrates error on the face of the MAC because the MA did not conclude that she could undertake a basic retraining course or standard course, and did not conclude that she could focus on intellectually demanding tasks, and had noted that she otherwise does little other than watching television, and had noted that she did not engage in any activities that demand persistence and pace.
The appellant submitted that the MA also made an error with respect to his assessment of her function in the category of employability. The appellant submitted that evidence within her statement supported an assessment of her impairment as Class 4. The appellant further submitted that other evidence in the form of the clinical records of her GP, the certificates of capacity her GP issued, the reports of Ms Sokarno, the report of Dr Chow and the report of Dr Miller also supported an assessment of her impairment as Class 4. The appellant submitted that the MA’s assessment of her impairment in this category as being Class 3 was inconsistent with the evidence.
In reply, the respondent submitted that the MA assessed the appellant as she presented on the day of the assessment and that the MA was not bound to agree with the findings of Dr Chow as a starting point with respect to his assessment of the appellant’s impairment. The respondent submitted that “intervention by the Appeal Panel” with respect to the MA’s assessment of the appellant’s impairment in the various PIRS categories would only be justified if the MA’s assessment was “glaringly improbable” or the MA was unaware of significant factual matters or the MA had a clear misunderstanding of matters or the MA’s reasoning did not support his assessments. The respondent submitted that a difference of opinion regarding the degree of the appellant’s impairment is insufficient to establish an error. The respondent submitted that the MA provided details of the actual path of his reasoning with respect to the assessment of the appellant’s impairment. The respondent submitted that the MA’s assessment was supported by the evidence.
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. The Appeal Panel is obliged to give reasons.[1]
[1] Campbelltown City Council v Vegan [2006] NSWCA 284.
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 Garling 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 will require a MA to have regard to all the materials at the MA’s disposal and, based on that material, a determination by the MA of the worker’s impairment ranging from no impairment to total impairment in each of the several PIRS categories. The Guidelines provide descriptors for each class of impairment for each of the several PIRS categories, but those descriptors are examples only of how a worker’s function or activity may be affected by a psychiatric condition. The examples are provided to assist the MA 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 MA 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].
In terms of how a MA is to carry out an assessment, the Appeal Panel observes that 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 MA had regard to all the materials at his disposal when assessing the appellant’s impairment. He said in the MAC that his assessment of the appellant’s impairment was based on three matters, being his review of the material provided to him, the history he obtained from the appellant and the appellant’s presentation during his examination of her. The material he was provided included the reports of Dr Chow, Dr Miller, Dr Smith and Ms Sokarno and the GP’s clinical records. The MA provided very brief summaries of that material. The material he was provided also included the appellant’s statements.
With respect to the MA’s evaluation of the appellant’s impairment in the categories of concentration, persistence and pace and employability, the Appeal Panel considers the MA took into account all relevant matters within the material he was provided. It seems to the Appeal Panel that the MA, whilst considering all the material before him, gave pre-eminence to his clinical observations of the appellant and the history he obtained when assessing the appellant’s impairment in these categories. He exercised his clinical judgment in doing so, which, consistent with what was held in Ferguson, the MA was entitled to do.
The Appeal Panel accepts the respondent’s submission to the effect that the MA’s assessment required an assessment of the appellant’s impairment on the day of the assessment. The MA was not required to use as a starting point how another clinician had assessed the appellant’s impairments at an earlier time and to consider whether there had been a deterioration in the appellant’s impairment and to base his assessment of the appellant’s impairment on that deterioration. To stress, the assessment required the MA to use his clinical judgment on the day of assessment to evaluate what the appellant’s impairment was at that time.
In the Appeal Panel’s view the MA’s assessment of the appellant’s impairment in the category of concentration, persistence and pace and in the category of employability was justified for the reasons he explained. It is not for the Appeal Panel to substitute its opinion for that of the MA. The Appeal Panel notes that the MA found that the appellant engaged effectively in his interview of her and presented her account in a logical and coherent manner without evidence of compromise with respect to memory or concentration. The Appeal Panel notes that the MA in his findings from his examination recorded also that the assessment was lengthy and that the appellant was able to address the questions that he had posed to her and the appellant was able to elaborate on her answers when required to do so. In the Appeal Panel’s view it was open to the MA for the reasons he explained to assess the appellant’s impairment in the area of concentration, persistence and pace as being mild, given those findings.
It was not necessary that the MA make a finding with respect to each of the descriptors provided within Table 11.5 for a Class 2 impairment in concentration, persistence and pace. As discussed above, those descriptors are just examples to assist the MA to consider the ways in which a psychiatric impairment may impact upon a worker’s function in a particular category.
With respect to the category of employability the MA was aware that the appellant had not engaged in charity work since December 2020 and was not doing remunerative work. The MA explained that the appellant would be unable to engage in the work in which she was previously employed. The MA anticipated that the appellant would be able to work 20 hours a week, and that conclusion was based on the history he obtained, his review of the documents and his findings from examination. It was open to the MA to conclude that, in the Appeal Panel’s view, based on the material before him. The Appeal Panel finds no error in the MA’s assessment of the appellant’s impairment in the category of employability.
The Appeal Panel however considers that the MA’s assessment of the appellant’s impairment in travel was inconsistent with the evidence before him, including the history he obtained from the appellant during examination. In other words, the Appeal Panel considers that it was not open to the MA to form the view that the appellant had no impairment or a minor deficit attributable to the normal variation in the general population in this area of her functioning. The history the MA obtained from the appellant was that she felt that her condition was getting worse. The appellant had not driven from Carlton to Scone since March 2021 and had not for a period of time travelled from Carlton to Bankstown. The inference to be drawn from that, in the Appeal Panel’s view, is that the appellant’s function to undertake longer distance travelling had diminished as a consequence of her feeling a worsening of her psychiatric condition. Given that history, which the MA obtained, it was not open to the MA to conclude that the fact the appellant no longer drove from her home to Bankstown or from her home to Scone “was not presented as being an affect of psychiatric compromise”. In all likelihood, the appellant being unable to drive these distances was a consequence of psychiatric compromise.
In short, the Appeal Panel agrees with the appellant’s submission that the MA erred by not rating her impairment in travelling as Class 2.
However, that being the case the degree of the appellant’s permanent impairment is still to be assessed as 7% WPI. This is because the medium of her scores remains 2 whilst the aggregate of her scores is 14. In accordance with Table 11.7 of the Guidelines, that converts to 7% WPI.
Consequently, even though the MAC does contain a demonstrable error the Appeal Panel nevertheless assesses the degree of the appellant’s permanent impairment the same as the MA.
For these reasons, the Appeal Panel has determined that the MAC issued on 21 September 2021 should be confirmed.
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