Zucca v Frasers Property Australia
[2023] NSWPICMP 441
•6 September 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Zucca v Frasers Property Australia [2023] NSWPICMP 441 |
APPELLANT: | Enrico Zucca |
RESPONDENT: | Frasers Property Australia |
| APPEAL PANEL | |
MEMBER: | Catherine McDonald |
MEDICAL ASSESSOR: | Douglas Andrews |
MEDICAL ASSESSOR: | Graham Blom |
DATE OF DECISION: | 6 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment arising from a psychological injury; Psychiatric Impairment Rating Scale (PIRS); Jenkins v Ambulance Service of NSW, Ferguson v State of NSW referred to; characterisation of activities; Ballas v Department of Education applied; assessments open to Medical Assessor in the exercise of his clinical judgement; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 June 2023 Enrico Zucca lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Prof Nicholas Glozier, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 23 May 2023.
Mr Zucca relies on the grounds of appeal under s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 323(3)(d). We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Zucca was employed by Frasers Property Australia (Frasers) as a Health, Safety and Environmental Project Specialist. He suffered a psychological injury as a result of interactions in the workplace which is deemed to have occurred on 7 July 2021. He made a claim for permanent impairment compensation supported by a report of Dr Hong dated 18 July 2022, in which he assessed 19% whole person impairment (WPI).
The Medical Assessor assessed 8% WPI, assessing Mr Zucca under the Psychiatric Impairment Rating Scale (PIRS) in class 2 for self care and personal hygiene, social and recreational activities and social functioning. He assessed Mr Zucca in class 1 for travel and concentration, persistence and pace and class 4 for employability. The Medical Assessor allowed 2% to compensate for the effects of treatment.
PRELIMINARY REVIEW
We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that it was not necessary for Mr Zucca to undergo a further medical examination because the assessment made by the Medical Assessor was open to him and does not disclose error.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Zucca submitted that the Medical Assessor erred in his assessment in several tables of the PIRS. In respect of the assessment of social and recreational activities, Mr Zucca submitted that the Medical Assessor had failed to consider relevant considerations and had taken into account irrelevant considerations because he relied on activities undertaken with his family which are relevant to the assessment of social functioning. Mr Zucca contrasted the assessment with that of Dr Hong who assessed him in class 3 and the matters set out in his own statement dated 14 December 2022.
Mr Zucca said that the Medical Assessor should have assessed him in class 2 for travel and said that there was no evidence to support assessment in class 1 for concentration, persistence and pace “which suggests that [he] would be able to pass a TAFE or university course within the normal timeframe”. He said that he should be assessed as having a moderate impairment, leading to assessment in class 3.
In reply, Frasers noted that the descriptions of activities relevant to each class of the PIRS are examples only and said that there was no warrant for an appeal panel to intervene when there was no error identified in the application of the Guidelines, noting that the assessment of each of social functioning and travel was one on which reasonable minds may differ, citing Ferguson v State of New South Wales (Ferguson).[1] Frasers said that the history taken by the Medical Assessor was consistent with assessment in class 1 for concentration, persistence and pace.
[1] [2017] NSWSC 887.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[2] the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[2] [2006] NSWCA 284.
The task of the Medical Assessor was to assess Mr Zucca as he presented on the day of the examination.[3] His task was to determine the dispute about the extent of permanent impairment by making his own assessment, not to choose between the competing assessments made by the parties.[4] Mr Zucca submitted that the assessments made by the Medical Assessor should have been the same as those made by Dr Hong. The Medical Assessor noted that Mr Zucca had acknowledged improvement in the period of 10 months since Dr Hong’s examination. The Medical Assessor increased his assessment by 2% to take account of the effects of treatment and the likelihood that he might revert to a greater degree of impairment if the treatment was withdrawn.[5]
[3] Guidelines paragraph 1.6.
[4] State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346.
[5] Guidelines paragraph 1.31.
Mr Zucca submitted that the assessment did not accord with his statement but that statement is dated 14 December 2022, six months before the assessment.
The Medical Assessor said:
“He has also been treated by a psychiatrist, Dr Rastogi, since early 2022. In her first assessment she noted ongoing nightmares, severe anxiety, agitation, avoidance, amotivation, and at the time he had only been treated with hypnotics. She started Fluvoxamine and increased this. He said that although it has helped to some extent, it left him feeling ‘hollow and without enthusiasm.’ Over the past few months this has been changed to Desvenlafaxine which has improved a bit further, particularly his mood and his ability to enjoy things but leaves him feeling a bit ‘edgier.’”
And
“Mr Zucca was consistent internally and the history elicited consistent with those elicited elsewhere allowing for the passage of time and recent changes in his medication which he acknowledged made some improvement, as well as ongoing psychotherapy.”
Those changes in his medication post-date the examination by Dr Hong in July 2022. Dr Hong noted in his report that Mr Zucca was taking Fluvoxamine.
Assessment under the PIRS
Paragraph 11.12 of the Guidelines describes the application of the PIRS:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
The important part of the description of each class in the PIRS is the level of impairment – eg no deficit, mild impairment, moderate impairment. What follows in each class are examples which demonstrate the level of impairment. In Jenkins v Ambulance Service of NSW[6] Garling J said:
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
[6] [2015] NSWSC 633 at [65].
Mr Zucca’s submissions stressed the examples in each of the PIRS Tables rather than the level of impairment.
As Campbell J said in Ferguson v State of New South Wales[7] (Ferguson), intervention by an Appeal Panel is only justified if the assessment under the tables of the PIRS is “glaringly improbable”:
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’…”
[7] [2017] NSWSC 887 at [24]-[25].
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Ltd (Parker) and said:[8]
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
Social and recreational activities
[8] [2018] NSWSC 140 at [70]-[71].
The Medical Assessor provided reasons in the PIRS Rating Form for assessing Mr Zucca in class 2:
“He went camping with his partner and family recently which he enjoyed and has also now confided with one friend and is teaching dancing although within the family. His withdrawal appears to be embarrassment about himself not working rather than being an actual impairment associated with his condition.”
The Medical Assessor provided additional detail in the body of the MAC:
“He has stopped doing his Latin dance teaching, although recently has been teaching Nalan’s niece and her fiancée to rumba on a weekly basis for their wedding. He has a property up at Oberon that he drove up to with his partner, brother and sister-in-law over the long weekend where they camped. He had to fix his trailer for this. He described actually enjoying being out there, as well as some of the social interactions. He has never actually completed the shelter on this farm. He also drove up earlier this year to meet an investigator with a friend and confided with this friend on the trip as they made some reconnection after he had been embarrassed to relate his lack of work.”
The Medical Assessor explained that he disagreed with the assessments made by Dr Hong in his report dated 18 July 2022 “mainly because his impairment has improved”.
Each of the PIRS tables is assessed separately. An activity must be assessed to the appropriate scale - Ballas v Department of Education.[9] Bell P and Payne JA said that the social and recreational activities table “looks to the injured worker’s degree of participation in such activities” and their interaction with others. [10]
[9] [2020] NSWCA 86.
[10] At [100].
The Medical Assessor was aware that the social and recreational activities have been undertaken with members of Mr Zucca’s family and his partner’s family. He is teaching dancing to his partner’s niece and her fiancée – a relationship outside his immediate family. The Medical Assessor focussed on Mr Zucca’s level of participation in the activities rather than the identity of those who attended. While another assessor might have assessed Mr Zucca differently, it cannot be said that the assessment in class 2 was glaringly improbable.
Travel
The Medical Assessor assessed Mr Zucca in class 1 - applicable where there is no deficit or a minor deficit attributable to the normal variation in the general population, saying:
“He describes no problems actually driving as and where he needs to including to Oberon, North Rocks and locally, but does have symptoms of anxiety that he has to manage whilst doing so.”
In the body of the MAC the Medical Assessor added that the anxiety which Mr Zucca has to manage is “not an impairment outside the level of the normal range within the population”.
Mr Zucca said that the Medical Assessor failed to appreciate that he did not travel alone and only travelled to familiar areas. That submission does not take account of the history recorded by the Medical Assessor who noted:
“He can do the shopping on his own but at times they go together. He described no problems driving as and where he needs to. He bought a new 650cc sports bike a year ago but has not ridden this for months, as again he is not particularly enthused or interested in this but has no difficulty actually riding this bike or his old CB-300. He used to cycle around the block a while ago but has not done much this year.”
The assessment made by the Medical Assessor under Table 11.3 was open to him in the exercise of his clinical judgement.
Concentration, persistence and pace
Table 11.5 measures a worker’s ability to maintain concentration, to complete activities and to undertake them within a reasonable time frame. Mr Zucca said that he should be assessed as having a moderate impairment. In respect of this table, a Medical Assessor will make his or her assessment based on a worker’s ability to engage during an extended interview as well as on the history provided. The assessor’s comments about their observations on a mental state examination are important.
The examples for class 3 – moderate impairment – include an inability to read more than newspaper article and a difficulty following complex instructions.
With respect to his interview with Mr Zucca, the Medical Assessor said:
“…He showed excellent focus throughout the assessment, providing great detail and context, and at times had to be interrupted when going into the detail of aspects of his history and his life. There was no formal thought disorder and his affect was normal. He describes fairly pervasive but not overly-severe depressive phenomena, no anhedonia, but some reduced enjoyment and motivation, anxiety bordering on generalised, with some features of arousal but no panic attacks but marked negative cognitions and embarrassment about his lack of work, bordering on shame and self-stigma. He has long-term cognitions about hierarchy, imbalance and power which have been exacerbated by his treatment at work and he now describes significant focus on this in a range of scenarios. He focused well, showed no difficulties with the pace and persistence of the assessment.”
That description is not consistent with assessment in class 3.
The Medical Assessor gave reasons for assessing Mr Zucca in class 1:
“He can watch TV for several episodes, learn things on YouTubes and described quite extensive focus, concentration, reasoning and cognition when reviewing regulations and laws last week and formulating response to the Council. He also showed excellent focus, concentration, detailed historian, and pace within the assessment today and I really cannot identify any cognitive difficulties outside of the range of the normal population in the history and assessment today.”
In the body of the MAC the Medical Assessor noted:
“He goes to bed between midnight and 2am, watching TV for many hours beforehand…He feels somewhat tired, lacking enthusiasm and describes difficulty motivating himself in a range of tasks. This appears to be a motivational difficulty rather than a direct focusing issue or concentration. He was able to describe many cognitive activities including quite extensive engagement just last Friday. He had been ticketed by the Council and then spent the day reading all the legislation and regulations about this, wrote an email to the Council challenging their decisions and outlining the various aspects of law that he felt had not been complied with, as well as also asking them how they were going to make reparations. He has not received a response to this but this is indicative of his ability to focus, concentrate and motivate himself with external demands as opposed to the intrinsic motivation affected by his mood.”
The Medical Assessor was careful to distinguish between Mr Zucca’s motivation and his ability to concentrate. Table 11.5 measures the latter, even though decreased motivation may be a symptom of the injury suffered.
Based on the history that Mr Zucca gave the Medical Assessor – particularly the description of recent activities - assessment in class 1 was open to him.
For these reasons, we have determined that the MAC issued on 17 May 2023 should be confirmed.
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