Abdolkarimi v Ruby Painting Services Pty Ltd
[2024] NSWPICMP 760
•6 November 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Abdolkarimi v Ruby Painting Services Pty Ltd [2024] NSWPICMP 760 |
| APPELLANT: | Ali Abdolkarimi |
| RESPONDENT: | Ruby Painting Services Pty Limited |
| APPEAL PANEL | |
| MEMBER: | John Isaksen |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| DATE OF DECISION: | 6 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment for psychological injury; worker claims demonstrable error in Medical Assessor failing to provide adequate reasons for a one half deduction in whole person impairment for secondary psychological injury; consideration of Ausgrid Management Pty Ltd v Fisk and difficulty in the disentanglement of impairment for a secondary psychological injury from impairment for a primary psychological injury; Held – demonstrable error in failing to give adequate reasons; re-assessment of the psychiatric impairment rating scale categories; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 21 August 2024 the appellant, Ali Abdolkarimi, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 July 2024.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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.
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
The appellant sustained fractures of the lumbar spine at L1, L2 and L3 levels on 20 November 2017 while employed with the respondent, Ruby Painting Services Pty Ltd, when he tripped on a plank of wood and fell about 10 metres to the ground.
The appellant has provided a statement dated 29 May 2024 wherein he states that he admitted to St George Hospital for about two weeks following the injury and was then in a back brace for about a year. He states that he was bedridden during this time and felt helpless.
The appellant states that he is extremely scared of heights. He states that he is scared to get on a plane, and that he has done it once since the work injury and he was hyperventilating. He states that he lives on level 3 of an apartment and tends to stay at home as much as possible because he is scared to walk down stairs.
The appellant states he snaps at people and blames everyone else for his issues.
The appellant states that he commenced working 10 hours per week in 2021 doing supervisory work. However, he states that he stopped all work in October 2023: “I just could not do it anymore. Everything about worksites and work in general triggers me.”
The appellant states that he wakes during the night with nightmares and flashbacks. He states that he is constantly in depressive slumps and has been taking Endep for about four or five years.
There is a report from the appellant’s general practitioner, Dr Noorzad, dated 14 May 2024. Dr Noorzad writes that the appellant has been his patient since 2014 and he has treated the appellant for his back injury in November 2017. He writes that the appellant presented on 1 June 2018 with complaints of poor sleep, depression, stress and anxiety related to the workplace injury.
Dr Noorzad concludes his report: “Mr Abdolkarimi sustained spinal fractures from a workplace fall, leading to the development of depression and anxiety symptoms necessitating antidepressants and psychotherapy”.
Sarah Hamidi, psychologist, has provided a report dated 15 April 2024 and her clinical notes are also in evidence. Ms Hamidi counselling of the appellant on 21 September 2020.
Ms Hamidi records that the appellant has continuously reported poor sleep patterns, social isolation, reduced concentration, constant intrusive thoughts, flashbacks and ongoing pain. She writes that the work injury has significantly impeded the appellant’s functioning and self- confidence.
Ms Hamidi writes that the appellant is highly anxious when he accompanies his brother to a work site or anywhere which is reminiscent of the injury, and that this triggers post-traumatic stress disorder symptoms. She records the appellant having intrusive thoughts regarding reliving the fall.
Ms Hamidi writes that the appellant is restricted with physical activities and struggles with physical endurance.
The appellant made a claim for a lump sum payment for 21% whole person impairment (WPI) for a primary psychological injury based upon an assessment made by Dr Saboor, psychiatrist, in a report dated 21 April 2023. Dr Saboor made an assessment of 26% WPI as a result of the work injury and then deducted one-fifth of that impairment as a result of the secondary psychological injury.
Dr Saboor did not provide any explanation for how he arrived at a one-fifth deduction for the secondary psychological injury in his report dated 21 April 2023. Dr Saboor states in a supplementary report dated 2 April that the one-fifth deduction was “based on my clinical judgment”.
Dr Saboor diagnosed the appellant as having a persistent depressive disorder, chronic post-traumatic stress disorder and chronic pain.
Dr Paisley, consultant psychiatrist, provided reports at the request of the respondent dated 14 January 2022 and 6 December 2023.
In his report dated 14 January 2022, Dr Paisley opines that the appellant developed psychiatric symptoms after the injury on 20 November 2017 in the context of chronic pain and disability. He opines that the appellant’s psychiatric symptoms are secondary to his physical disability and chronic pain.
Dr Paisley diagnoses the appellant as having a Persistent Depressive Disorder.
In his report dated 6 December 2023, Dr Paisley makes an assessment of 17% WPI. However, Dr Paisley opines that the appellant’s psychological condition is secondary to his physical 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 Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient material to determine the issues which are the subject of the appeal.
EVIDENCE
Documentary 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 Medical Assessor examined the appellant by video on 25 July 2024. The Medical Assessor records that the appellant has had problems with pain since the accident. He records that the appellant has had psychological symptoms since the work injury including sleep disturbance, nightmares, re-experiencing phenomena related to his accident, and low motivation. He records that the appellant’s symptoms are exacerbated by exposure to reminders of the accident. The Medical Assessor records the appellant developing low mood, lack of enjoyment, low libido, social withdrawal and low self-esteem.
The Medical Assessor records that the appellant did not recognise experiencing typical physiological symptoms of anxiety when exposed to reminders of the workplace incident. He records that the appellant will become irritable when he occasionally supervises some of the workers employed by his brother, and the appellant attributes this to frustration due to his physical limitations.
The Medical Assessor found on examination that the appellant was physically uncomfortable at times and would adjust his position as necessary. He found that the appellant’s affect conveyed frustration at his situation, and that his mood was objectively and subjectively depressed.
The Medical Assessor reviewed the reports of Dr Saboor and Dr Paisley, and the records from treating health professionals. The Medical Assessor concludes:
“Mr Abdolkarimi sustained a psychological injury because of the workplace injury. He developed a secondary persistent depressive disorder complicated by his persistent pain and reduced ability to function. He also sustained post-traumatic stress disorder as a primary psychological injury due to the workplace accident and has some ongoing symptoms of this.”
The Medical Assessor makes an assessment of 22% WPI, but he considers that the contribution to impairment of the primary psychiatric injury is one half, leading to an impairment rating of 11% due to the primary psychiatric injury.
The Medical Assessor writes that he disagrees with the attribution of 80% made by Dr Saboor of the appellant’s impairment due to the primary psychiatric injury.
The Medical Assessor concludes:
“Mr Abdolkarimi has sustained both a primary and secondary psychiatric injury. The primary psychiatric injury, post-traumatic stress disorder, contributes ½ of the calculated permanent impairment. The impairment attributable to the primary psychiatric injury is therefore 11%.”
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions
The appellant submits that the Medical Assessor has made a bald statement regarding apportionment between the primary psychological injury and the secondary psychological injury without providing any reasons, or any adequate reasons, and without exposing a process of reasoning.
The appellant relies upon what was said by Basten JA in Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan) at [128]–[129]:
“128. No doubt the assessment of physical impairment involves matters of evaluation and judgment by medical specialists. Such matters are often not reducible to precise explanations, and the choice of a particular figure will only be a point within a legitimate range. The content of reasons must be assessed with those factors in mind. Nevertheless, the present reasons demonstrate no attempt to explain significant departures from the assessment made by Dr Adler, nor any attempt to explain the errors which were said to exist in his reasons and findings, other than the bald statement of the preferred levels of impairment.
129. The Panel being under an obligation to supply reasons, it is clear that these were manifestly deficient and did not constitute compliance with the minimum requirements of that obligation. The next question is to identify the consequence which flows from this failing.”
The appellant submits that the reasons for the apportionment between the primary psychological injury and the secondary psychological injury are “manifestly” deficient and do not constitute compliance with the minimum requirements of the obligation to give reasons.
The appellant refers to the statement made by the Medical Assessor that he disagreed with the apportionment made by Dr Saboor but provides no further explanation or analysis as to the difference between his own assessment and that of Dr Saboor. Nor does the Medical Assessor explain what is meant by the appellant’s co-morbid persistent depressive disorder being a “considerable contributor” to the appellant’s impaired function when he considers the opinion of Ms Hamidi.
The respondent’s submissions
The respondent submits that the Medical Assessor undertook a detailed analysis of the evidence as set out in pages 5, 6 and 7 of the MAC. The respondent submits that the Medical Assessor has considered the appellant’s physical injuries, psychological symptoms and diagnoses, as well as the impact on the appellant’s functioning, in determining the portion of impairment to be set aside for a secondary psychological injury.
The respondent submits that the equal apportionment between the primary and secondary psychological injury is clearly set out in the MAC and that sufficient detail as to the Medical Assessor’s reasons for this apportionment have been provided.
The respondent submits that the reasons provided by the Medical Assessor meet the standard set out in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 (Wingfoot) at [55]:
“.... The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”
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 Court of Appeal in Vegan held that the 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.
The Appeal Panel finds that the MAC contains a demonstrable error in the failure by the Medical Assessor to provide “the actual path of reasoning” (Wingfoot) whereby he came to the conclusion that one half of the appellant’s permanent impairment is attributable to the primary psychological injury. The Medical Assessor merely states that the primary psychiatric injury – post-traumatic stress disorder – contributes to one half of the impairment, but without providing any reasons for reaching that conclusion.
The Medical Assessor states that he disagrees with the attribution of 80% of impairment due to a primary psychiatric injury made by Dr Saboor, but no explanation is provided by the Medical Assessor as to why he disagrees and why he concludes that the primary psychiatric injury contributes 50% to WPI.
Having found that demonstrable error, the Appeal Panel is faced with the difficult task which often arises for an assessment of permanent impairment for a primary psychological injury where there is also a secondary psychological injury of having to disentangle the impairment and symptoms from the primary psychological injury from the secondary psychological injury in order to comply with the provisions of s 65A (2) of the Workers Compensation Act 1987. Section 65A (2) provides:
“In an assessment of degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.”
This difficulty was set out in some detail by the Appeal Panel in Ausgrid Management Pty Ltd v Fisk [2023] NSWPICMP 237 (Fisk), where the Panel said at [41]:
“The requirement of s 65A(2) is that a Medical Assessor have no regard to the impairment or symptoms resulting from a secondary psychological injury when assessing the degree of permanent impairment from a primary psychological injury. Her Honour Harrison AsJ in obiter dicta propounded in Kiely no 2 a two-step process by which a Medical Assessor could comply with the requirements of s 65A(2) to have no regard to impairment or symptoms from a secondary psychological injury. The first step is to assess the overall degree of permanent impairment of a worker in accordance with clauses 11.11 and 11.12 of the Guidelines. The second step is to assess separately the worker’s permanent impairment due to the secondary psychological injury by reference to the same clauses and then deduct the latter from the former. The Appeal Panel considers that such a process is apt for the circumstance where there can be a disentanglement of the impairment and symptoms a worker suffers due to a secondary psychological injury from the impairment and symptoms a worker suffers due to the primary psychological injury.”
The Appeal Panel then said at [43]:
“…the requirement of s 65A(2) to have no regard to any impairment or symptoms from a secondary psychological injury is to be interpreted as impairment or symptoms that can be isolated to the secondary psychological injury. If it were otherwise, then in a case such as this, where the impairment and symptoms from the primary psychological injury and the secondary psychological injury are indivisible and cannot be disentangled, to disregard the impairment and symptoms from the secondary psychological injury would mean to disregard the impairment and symptoms from the primary psychological injury. It would mean that a worker could be assessed to have no degree of permanent impairment resulting from a primary psychological injury when in fact a worker did have a permanent impairment from that injury. It would be a perverse result and contrary to the beneficial purpose of the legislation and also contrary to one of the express objectives of the legislation that injured worker receive payment for permanent impairment.”
The Appeal Panel then said at [45]:
“As said the requirement of s 65A(2) is to disregard the symptoms and impairment from the respondent’s secondary psychological injury. As the Appeal Panel has also said, that does not require the Appeal Panel or a Medical Assessor to disregard those impairments and symptoms if they also result from the primary psychological injury. The section does not require a Medical Assessor or an Appeal Panel to make a deduction for the extent to which a separate injury contributes to a worker’s permanent impairment, but rather and to repeat, it requires a Medical Assessor or an Appeal Panel to disregard impairment and symptoms. The two are different things. The sub-section cannot be interpreted to disregard whatever impairment and symptoms a worker has that result from a primary psychological injury even though they may also result from a secondary psychological injury.”
The Appeal Panel notes the significant overlap in the primary and secondary psychological conditions of post-traumatic stress disorder and persistent depressive disorder, especially in the domain of mood and hedonic experiences. This overlap and the difficulty of assigning impairments to one or the other condition creates a challenge in the disentanglement of impairments.
The Appeal Panel has undertaken a careful consideration of the allocation of the Psychiatric Impairment Rating Scale (PIRS) categories made by the Medical Assessor and the material from the appellant’s treating health professionals, and considers that the impairment in some of the allocated classes is an intermingling of both the primary psychological injury and secondary psychological injury sustained by the appellant. That is, the impairment rating arising from the primary psychological injury would be the same even if the symptoms and impairment arising from the secondary psychological injury were disregarded.
The appellant’s statement indicates that he has post-traumatic stress disorder-related symptoms of fear, specifically in regard to his ability to fly and walk down stairs. He states that he snaps at people and blames them and that “everything about…work in general triggers me”, although the Medical Assessor records that he can work with his brother when suitable work is available.
The Medical Assessor also records the appellant having nightmares, poor sleep and fear of being injured again, but conversely that there is no triggered anxiety and that his “symptoms are exacerbated by exposure to reminders of the accident.”
The Medical Assessor attributes the appellant’s irritability to pain and frustration due to his physical limitations. The Medical Assessor records depressive symptoms of “depressive slumps” of low mood, low self-esteem, and lack of motivation for self-care and socialising. Poor concentration, reduced enjoyment, and low energy and libido, could arise from both primary and secondary conditions.
The Medical Assessor and other clinicians also record significant ongoing pain and dysfunction which requires physiotherapy and analgesia and limits the appellant’s function (for instance, in being unable to paint at heights or on a ceiling, or undertaking any sport), as well as financial difficulties which affects the appellant’s mood.
The moderate rating of impairment in self-care is based primarily on the symptoms of lack of motivation due to the secondary psychological injury and the physical injury. For instance, Dr Noorzad records on 1 June 2022 that the appellant “needs help at home his brother is doing his shopping and washing.” If this is disregarded for the purposes of assessment of the primary psychological injury, then there would be a mild impairment rather than a moderate impairment for that injury.
The records from Ms Hamidi also indicate moderate impairment rather than mild impairment for social and recreational activities arises from the secondary psychological injury of depression. Ms Hamidi records on 25 November 2020:
“Struggles with socialisation, unable to call friends or accept invite.
Feels that he may be a burden to friends – they may have to compromise their activity because of him.”
Ms Hamidi records on 2 April 2021:
“Poor confidence – lost all friends
No socialisation due to pain and no motivation.”
The Appeal Panel therefore considers that there is mild impairment in social and recreational activities attributable to the primary psychological injury.
Conclusion
Based upon the evidence made available to the Medical Assessor and information elicited during the assessment of the appellant, and disregarding the symptoms and additional impairment arising solely from the secondary psychological injury, the Appeal Panel considers that the following PIRS categories now apply as a result of the primary psychological injury:
Self care and personal hygiene Class 2
Social and recreational activities Class 2
Travel Class 2
Social functioning Class 3
Concentration, persistence and pace Class 3
Employability Class 4
Score Median Class
2 2 2 3 3 4 3
Aggregate Score Impairment Total %
+2 +4 +6 +9 +12 +16 16 17%
Pre-existing deduction clause: Nil
Treatment effect clause Nil
Final WPI = 17%
For these reasons, the Appeal Panel has determined that the MAC issued on 6 February 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W4395/24 |
Applicant: | Ali Abdolkarimi |
Respondent: | Ruby Painting Services Pty Limited |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Alan Doris and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psychological injury | 20/11/2017 | Chapter 11 Pp 54-60 | 17% | Nil | 17% | |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
John Isaksen
Member
Douglas Andrews
Medical Assessor
Nicholas Glozier
Medical Assessor
6 November 2024
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