Aboutayeh v Stamford Tyres Australia Pty Limited
[2021] NSWPICMP 109
•1 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Aboutayeh v Stamford Tyres Australia Pty Limited [2021] NSWPICMP 109 |
| APPELLANT: | Bernard Aboutayeh |
| RESPONDENT: | Stamford Tyres Australia Pty Limited |
| APPEAL PANEL: | Member Carolyn Rimmer Professor Nicholas Glozier Dr Michael Hong |
| DATE OF DECISION: | 1 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- AMS made an assessment of 13% WPI as a result of a psychiatric injury deemed to have occurred on 10 August 2018; AMS made a deduction of 1/10th for pre-existing condition; statement of the appellant dated 3 May 2021 not received on the appeal as not probative; whether error demonstrated in respect of section 323 deduction and of PIRS categories of self-care and personal hygiene, social functioning and employability; the Panel considered that no adjustment for effects of treatment could be made in this case as there has not been a substantial or complete elimination of permanent impairment; Held- no error demonstrated; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 May 2021 Bernard Aboutayeh (the appellant) made an application to appeal against a medical assessment (the appeal) made by Dr Douglas Andrews, Medical Assessor (the MA) and issued on 6 April 2021.
The respondent to the appeal is the Stamford Tyres Australia Pty Limited (the respondent).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
· the assessment was made on the basis of incorrect criteria pursuant to
s 327(3)(c) of the 1998 Act, and· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments 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 reissued 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 developed a primary psychological injury in the course of his employment as a sales representative when he was subjected to bullying and harassment between 10 August 2018 and 10 April 2019.
The matter was referred to the MA, Dr Douglas Andrews, on 20 January 2021 for assessment of whole person impairment (WPI) of the appellant’s psychological disorder attributable to the injury on 10 August 2018.
The MA examined the appellant on 31 March 2021 and assessed 13% WPI in respect of the psychological disorder. The MA made a deduction of one-tenth for a pre-existing condition under s 323 of the 1998 Act. Therefore, the total WPI was assessed as 12% WPI as a result of the injury deemed to have occurred on 10 August 2018.
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 appellant requested that, if the Appeal Panel found it appropriate, he be re-examined by a MA, who is a member of the Appeal Panel.
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 evidence on which to make a determination.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) Statement of the appellant dated 3 May 2021.
The appellant submitted that the evidence was relevant to facts in issue and clarified some inconsistencies in the MAC. The appellant submitted that the statement could not reasonably have been obtained by the appellant before the medical assessment as it addressed issues specifically raised in the MAC. The Appeal Panel accepted that the statement, in so far as it relates to events that occurred in the examination by the MA, could not reasonably have been obtained before the MA’s assessment. However, the parts of the statement, in so far as they related to activities in respect of self-care and personal hygiene, employability and social functioning, could have been obtained prior to the MA’s assessment.
The respondent disputed the appellant’s entitlement to rely on this supplementary statement on various grounds including that it contradicted the concept of finality of litigation and either contained information that was available to, and could reasonably have been obtained by, the appellant before his examination with the MA on 31 March 2021 or contains information that was mostly irrelevant in the context of the appellant’s appeal against the MAC. With respect to finality of litigation, the respondent referred to the decision of Deputy President Wood in the matter of CSR Limited v Ewins [2021] NSWPICPD1 (see in particular paragraph 130 of DP Wood’s decision).
The admission of ‘fresh evidence’ into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by a panel (see discussion in Australian Prestressing Services Pty Ltd v Vosota WCC 10798-04). In Ross the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418; Orr v Holmes (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
The issue concerning “additional relevant information” which is a separate ground of appeal under s 327(3)(b) was addressed by Hoeben J in Petrovic v BC Serv No 14 Pty Limited t/as Broadlex Cleaning Services [2007] NSW SC1156. Hoeben J held that a statutory declaration addressing the way in which an AMS carried out his examination was not “additional relevant information” as it was not information of a medical kind or which directly related to the decision made by the AMS. At [31], Hoeben J said:
“In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs327(3)(b).’
32. It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not ‘additional relevant information’ for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar.”
Hoeben J did note that once the matter came before an Appeal Panel, the matter in the statutory declaration could be considered by the Appeal Panel.
The respondent argued that there was no reason why a supplementary statement could not have been furnished prior to the examination by the MA. The appellant has not explained why more detail concerning his activities was not included in his statement of the appellant dated 29 September 2020 or why a supplementary statement was not filed prior to the examination by the MA.
Further, the respondent submitted that the statement dated 3 May 2021 contained information that was mostly irrelevant in the context of the appellant’s appeal. The Appeal Panel agreed with this submission. For example, the question of whether it was the reporting of issues to Safework Australia rather than the mistreatment by Pat Danker which caused an increase in anxiety was not particularly relevant to the assessment process, nor was the fact that his parents were volatile and his father violent towards him at infrequent times. Further, the appellant’s concession that he drinks alcohol occasionally was not relevant to the assessment of WPI. Similarly, the fact that the appellant worked for Choice Digital not Pizza Hut as a national sales manager was not relevant to the assessment.
The Appeal Panel also noted some inconsistencies between the history provided by the appellant’s doctors in their contemporaneous documentation and the information in the supplementary statement dated 3 May 2021. For example, the appellant said that the MA reported he left his marriage a year ago but “it was two years ago that I left my marriage”. This was inconsistent with the history recorded by Dr Friend, in his report of 28 November 2017, that the appellant’s marriage had already ended although they still lived in the same house. The appellant stated that his teeth were currently in a state of decay but his general practitioner, Dr Kurrie, noted in a referral dated 10 May 2017 under “Past history” that the appellant had a dental abscess in 2013, which suggested a history of dental problems.
Further, the Appeal Panel considered that because the appellant’s long-standing difficulties with concentration and attention, his recollection as to what happened in the examination by the MA may not be reliable.
Although the statement of the appellant in part came within the literal definition of “fresh evidence” as referred to in s 328(3), the Appeal Panel decided to disregard that evidence since it was quite contrary to the purpose of the 1998 Act. The Appeal Panel does not understand the intention of the legislature to be that such criticisms of an MA ought to be admitted as fresh evidence. The Appeal Panel believes that the purpose of the legislation is to give some prima facie credence to the opinion of a MA in situations where he has examined the client and all the competing medical views. The system would not be able to operate properly if the MA’s view could be overturned merely because of some untested documentary evidence as to the events that occurred during the examination. Further, it should also be noted that the applicant’s evidence concerning the history of employment pre-injury, his parent’s behaviour, his activities at home and social activities would have little, if any, probative value. The Appeal Panel decided that the statement of the applicant was not evidence of such probative value that it was reasonably clear that it would change the outcome of the case.
The Appeal Panel determines that the following evidence should not be received on the appeal:
(a) the statement of the applicant dated 3 May 2021.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA 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 have been considered by the Appeal Panel.
The appellant’s submissions, include the following:
(a) Ground 1 - The MA made a demonstrable error in calculating the s 323 deductible amount by not following the SIRA guidelines.
(b) It is clear from the Guidelines that under 11.10 the s 323 deduction should be calculated by making a psychiatric impairment rating scale (PIRS) assessment pre-injury and then deducting that PIRS assessment from the post injury PIRS assessment. The 10% deduction is only used when a pre-injury PIRS assessment is too difficult to undertake or cannot be undertaken. In this matter the evidence of the appellant is that his condition was stable before the injury and changed dramatically after he left work with the respondent. The MA based his opinion of a "pre-existing psychiatric condition" on evidence from the applicant's history of bipolar disorder and ADHD. The appellant submits that none of the symptoms described would affect a pre-injury PIRS assessment being undertaken. It was hard to see how the MA could come to the conclusion on the history he took and on the treatment the appellant had before the injury, that any PIRS assessment taken before the injury would show any impairment, especially given the lay evidence from the appellant and the treatment from his doctors, whose notes were silent on any symptoms that would affect a PIRS assessment.
(c) The absence of pre-injury symptoms that could give rise to a PIRS assessment resulting in a WPI was not a reason to invoke the 10% mandatory deduction under the Guidelines for a psychiatric injury as the MA appeared to have done. The correct approach was to make a pre-injury PIRS assessment and then deduct it from the post injury assessment, if the pre-injury assessment was 0% then there is no s323 deduction. The MA has made a demonstrable error in his calculation of the s323 deduction by not following the procedure in the Guidelines, which if followed would in all likelihood have resulted in no s 323 deduction.
(d) Ground 2 - The MA did not adjust the WPI rating to allow for the effects of treatment. The MA set out why no allowance should be made for treatment saying: "Mr Aboutayeh has not had a substantial or complete elimination of his impairment". The MA did not consider the guidelines according to MAA & Workcover Permanent Impairment Guidelines. The MA did not consider that an increase in the appellant's WPI could be based on the drugs’ side effect and has, as such, fallen into demonstrable error by only considering that only a substantial or total remission of symptoms can lead to an increase in the WPI found for "effects of treatment". If the MA was correct, then there would never be an increase for "effects of injury" as any PIRS assessment would be negligible as the PIRS assessment is one based on symptoms.
(e) Ground 3 - availability of additional relevant information. These submissions were referred to above under “Fresh evidence”.
(f) Ground 4 – the MA has made a demonstrable error by wrongly placing the appellant in class 1 for self-care and personal hygiene, class 3 for social functioning and class 3 for employability.
(g) The MA gave a finding of class 1 for self-care and personal hygiene and by doing this made a demonstrable error. At page 3 of the MAC it was documented that the appellant "often has only a few hours of sleep a night. Sometimes he sleeps during the day". On page 4 of the MAC it was documented that "his mother does most of the shopping" and "most of the cooking". He "on occasions picks up small items such as a bread roll". Furthermore at page 4 of the MAC the MA noted that "he appeared casually attired, with short hair and was clean shaved". This was inaccurate as the appellant has long unkempt hair as per the appellant’s supplementary statement. These comments show that the appellant does not show a pattern that is consistent with normal variation in the general population.
(h) Considering that the appellant has his mother cooking for him most of the time, this would be the reason why he eats a good diet. It can be implied that should the appellant live on his own, he would rarely cook and most likely have a bad diet as he only goes out on occasions to pick up small items such as bread rolls. In his supplementary statement the appellant clarified that he never cooks. It was not clear where the MA has got the information regarding the appellant cooking. Additionally, the appellant's statement clarified that the comments regarding him contributing to household chores and maintenance as well as wears clean clothes without prompting, and showers daily have also been taken out of context as he only does so when feeling in an elevated mood.
(i) Additionally, as the appellant does sleep during the day on some days, he would most likely be missing meals and not carrying out general house chores. Based on the above, at the minimum, the appellant should have been placed in class 2.
(j) At page 11 the MA goes on to state "Mr Aboutayeh feels that he may be able to work in his own business. He likely would be able to work in a less demanding role, probably for less than 20 hours a week." The MA made a demonstrable error in doing this. The MA has clearly disregarded the medical evidence of his treating doctors who he has been under the care of. The appellant has not worked since May 2019, the report of his psychologist, Mr Albassit, dated 10 March 2021, stated that he did not have capacity to work due to his depression and agoraphobia. The medical certificate completed by his treating doctor,
Dr Kurrie, certified him as unfit to work. Dr Teoh found the appellant to have no capacity to work. While the appellant would like to consider a return to work, it was clear from his treating doctor's opinion that his condition and symptoms would find him unfit to work. For example, at page 8 of the ARD, the appellant states that he has tried to complete a responsible service of alcohol course but was unable to complete this. In addition to this, the MA noted that the appellant sleeps during the day, which contradicted his opinion that the appellant can maintain employment.(k) On Page 11 of the MAC it was noted that the appellant can watch documentaries with comprehension and interest, and he works on projects. This was not considered with all the factors being taken into consideration, as explained in the supplementary statement where the appellant indicated that this was only on occasions where he was in a heightened mood. As such, it was clear from the above that the appellant should have been placed into class 5 with respect to employability as his treating doctors have found him having no current capacity to work. In the alternative, he should have been placed into class 4 considering if he was found to have some capacity to work his pace would be reduced and most likely his attendance would be erratic as supported by the above statements.
(l) The MA placed the appellant into class 3 for social functioning on the basis that he has lost his friendships, has a strained relationship with his mother, and that his marriage broke down. It appeared that he did not place him into class 4 on the basis that he got on well with his daughters. The MA made a demonstrable error in doing this. On page 4 it was documented that the appellant has three daughters ages 10-16 years. In fact the appellant has two daughters and one son. He has failed to address and consider whether appellant partakes in the care of his children now that he no longer resides with his wife as the marriage has broken down.
(m) Considering the fact that the appellant’s relationship has broken down and that he is unable to form or sustain long term relationships, coupled with his inability to care for his dependants, the appellant should more appropriately be placed in class 4 with regards to his social functioning.
(n) Ground 5 - The demonstrable errors made by the MA in his medical assessment certificate necessitate that the MAC was made upon the basis of incorrect criteria.
(o) In summary, no deductions should be made under s 323 and an adjustment be made to the WPI rating as determined to allow for the effects of treatment. In addition, the further relevant information be considered and the assessment for self-care and personal hygiene be categorized as class 2, social functioning be categorized as class 4 and employability be categorized as class 5.
The respondent’s submissions include the following:
(a) Ground 1 - the MA did not make a demonstrable error in calculating the s 323
deductible amount by not following the SIRA guidelines.
(b) The respondent does not agree with the appellant’s submission that “the 10% deduction is only used when a pre-injury PIRS assessment is too difficult to undertake or can’t be undertaken”. The Guidelines state at 11.10 that “If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI”.
(c) The MA, as an experienced practitioner and qualified assessor, was aware of the process by which he is required to determine a worker’s WPI in circumstances where there is pre-existing impairment attributable to a pre-existing condition.
(d) It can be inferred that the MA was unable to assess the pre-existing impairment and therefore made a 1/10th deduction.
(e) There was no dispute that the appellant had a pre-existing condition thus the MA’s 1/10th deduction was appropriate in the circumstances.
(f) In the alternative, if it had been possible for the MA to provide a WPI for the appellant’s pre-existing condition based on a PIRS rating for the pre-existing condition, a deduction of more than 1/10th would have been required leaving the appellant with a final WPI of less than the 12%.
(g) The respondent disputed the appellant’s submission that there were no pre-injury symptoms that could give rise to a PIRS assessment for a pre-existing condition. For example, the MA referred to the report of Dr Pickering dated 13 May 2016 and highlighted that Dr Pickering’s report was prepared before the appellant began employment with the respondent.
(h) In relation to Dr Teoh’s report, despite conceding on multiple occasions in his report that the appellant has a pre-existing psychiatric condition and even noting at paragraph 12 of his report that he had ‘made appropriate deduction for his pre-existing psychiatric condition’, Dr Teoh did not in fact ultimately make a deduction for the appellant’s pre-existing condition in circumstances where he arguably should have done so and arguably meant to do so.
(i) Furthermore, Dr Teoh did not appear to have made any attempt to provide a WPI assessment for the appellant’s pre-existing condition which is what the appellant submitted the MA failed to do.
(j) There was ample evidence to permit the MA to make the assessment he made. Furthermore, the 10% deduction was open to him on the evidence.
(k) Ground 2 - the appellant submitted that the MA made a demonstrable error by not adjusting the WPI rating as determined to allow for the effects of treatment. However, the appellant did not provide any clarity as to what the Guidelines required of the MA nor did the appellant explain how the MA contravened those Guidelines.
(l) At 11.8 of the Guidelines, it states that ‘The psychiatrist may make a comment in the report about the likely effect of treatment’ and the MA has done so.
Dr Teoh, the appellant’s medico-legal expert did not even mention this issue.(m) In relation to Ground 3, the availability of additional relevant information, the respondent disputes the appellant’s entitlement to rely on his supplementary statement dated 3 May 2021.
(n) Ground 4 - The PIRS ratings applied by the MA for self-care and personal hygiene (class 1), for social functioning (class 3) and for employability (class 3) were entirely justified based on the evidence before the MA and his examination of the appellant.
(o) In relation to the reference by the MA to the appellant having short hair, it was claimed that the appellant has ‘long unkempt hair’ as per the appellant’s supplementary statement and did ‘not show a pattern that is consistent with normal variation in the general population’. With respect to this line of submissions: (a) that having unkempt hair does not necessarily place a person outside what is ‘consistent with normal variation in the general population’; (b) the photo of the appellant that was attached to his supplementary statement dated 3 May 2021 does not necessarily show him to have long hair in any event. It could reasonably be described as unkempt hair but it was not necessarily long; and (c) the photo of the appellant that was attached to his supplementary statement dated 3 May 2021 was of no probative validity in any event. The MA was more than entitled to note how the appellant presented at the examination on 31 March 2021 and photos of the appellant before or after the examination were of no significance or probative value.
(p) In relation to employability, the submission that the appellant should be rated as Class 5 because ‘his treating doctors have found him having no current capacity to work’ has no merit and wholly contradicts the purpose of having workers examined by MAs.
(q) The MA clearly gave due consideration to the issue of employment. He stated on page 7 that ‘I consider it likely that Mr Aboutayeh would be able to work in some role consistent with his experience, education and training but perhaps with less responsibility than earlier. Mr Aboutayeh acknowledged that he might be able to work in his own business, as he has previously’.
(r) Ground 5 - The assessment was made on the basis of incorrect criteria the appellant has failed to provide any or any sufficient explanation as to how the MAC was made on the basis of incorrect criteria.
(s) The MAC should be confirmed.
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. 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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The Medical Assessment Certificate
Under Present treatment, the MA wrote:
“Mr Aboutayeh is under the care of his general practitioner, Dr Abdul Qureshi, his
psychologist, Mr Sam Albassit, and his psychiatrist, Dr Paul Friend. He has had ongoing care from Mr Albassit and Dr Friend for many years.
He takes the following psychiatric medication:
o Dexamphetamine 5 mg, six tablets daily
o Lithium carbonate 900 mg daily
o Clonidine – unsure of dose
o Diazepam 5 mg on an as-needed basis
His psychological therapy was described as cognitive behaviour based, with conflict
resolution and anxiety reduction techniques.
He sees his psychologist and his psychiatrist about every three months.”Under “Present symptoms”, the MA wrote:
“Mr Aboutayeh has a low mood almost all of the time. He can experience positive emotion, particularly in relating to his daughters. There is no predictable rhythm to his mood. He has long-standing subjective difficulties with concentration and attention. He said, ‘it has always been shocking.’
He is anxious and on edge much of the time, causing him to being avoidant of going out as he feels uncomfortable interacting with others.
He has occasional thoughts of suicide but no plans or intent. He strongly insisted that he would not act on such thoughts.
His sleep varies day by day, and he often has only a few hours of sleep at night. Sometimes he sleeps during the day.
He eats a reasonable diet, and his weight is stable.Mr Aboutayeh said that this is the worst that he has ever felt.”
Under “Details of any previous or subsequent accidents, injuries or conditions’” the MA wrote:
“He has a long-standing history of chronic mental health problems, starting as an adolescent.
He described a prejudicial upbringing, saying that his father was physically violent and that both his parents were volatile.
He thinks that his mother might have had OCD. He has two siblings, both of whom are okay.
He has had difficulty with emotional dysregulation, fluctuating moods and anxiety through much of his life.
He has also had long-standing difficulties with concentration, attention and task completion.
When he was about 28 years old, he was diagnosed with bipolar disorder and attention deficit hyperactivity disorder.
He describes having periods of mood elevation during which he has more goal-directed activity, decreased energy, more risk-taking and reduced need for sleep. His periods typically last for a few days and then settle.
He also has frequent episodes of depression.In recent times he has been more pervasively depressed.”
On page 4 of the MAC under “social activities/ADL”, the MA wrote:
“Mr Aboutayeh was married and had three daughters, aged between 10 years and 16 years.
He left his marriage about one year ago, choosing to move back to live with his mother. He described a conflicted marriage with a wife who was argumentative and demanding.
However, at one point, there was an AVO taken out against him.
He feels that his wife had ‘used’ him. She had migrated to Australia from the Philippines, and as soon as she obtained permanent residency, her attitude toward him and the marriage changed, and her behaviour became increasingly difficult.
He now lives autonomously in his mother’s home, contributing to household chores and maintenance. He said, ‘If anything goes wrong, I fix it.’
His mother does most of the shopping, but he will occasionally pick up small items such as bread rolls. His mother also does most of the cooking, but he will cook on occasion.
He maintains a clean home, wears clean clothes without prompting, and showers daily.
He previously enjoyed going out to cafés and bars, camping, going to the beach, having barbecues and taking photographs. He no longer does these things.
He enjoys his daughters’ company and occasionally will go out to a restaurant with them, for example, to get Chinese food.
He usually refuses invitations to family gatherings.
He no longer sees friends.
He is anxious when he leaves his home but travels within the local area. He does not travel further afield.
He is close to his daughters. He occasionally has conflict with his mother.
He has lost friends through his social withdrawal, although he commented that he had only ever had a small group of friends.
Despite his ADHD, he keeps himself busy with a variety of tasks. For example, he had been working on fitting a turbocharger to his car. He said, ‘when I’m working on my cars, once I’ve got the tools out, I work all day.’
He also enjoys watching documentaries about topics such as wildlife, vehicle building and welding. He especially enjoys watching shows where he can learn practical skills.
He feels unable to work, saying that he can’t trust others. He said, ‘I could maybe work if I was self-employed’.”On page 4 of the MAC, under “summary of injuries and diagnoses” the MA made a diagnosis of bipolar disorder (type ii), current episode depressed with anxious distress and ADHD. The MA noted that the appellant had long-standing conditions and that the distress he experienced in the workplace likely caused an exacerbation of his pre-existing bipolar disorder leading to his current pervasive depression. The MA considered that the ADHD was a historical diagnosis for which he had effective treatment and was not the cause of his impairment and had not been aggravated by the workplace injury.
In commenting on other medical opinion the MA wrote:
“IME psychiatrist Dr Ben Hooi-Beng Teoh, 27 March 2020, diagnosed a major depression and determined a poor prognosis. He assessed whole person impairment at 20%. Dr Teoh stated that Mr Aboutayeh had a pre-existing psychiatric condition but opted to make no adjustment for this. His class ratings were 2, 3, 2, 3, 3, and 5.
It is now more than one year since the assessment of Dr Teoh. Mr Aboutayeh has
consistently stayed on his medication. He rated Mr Aboutayeh at higher classes than I did for the following domains: self-care and personal hygiene; concentration, persistence and pace; and employability.
Dr Teoh writes, ‘He has been lacking motivation to care for himself. He requires help from family and friends.’
Mr Aboutayeh is living as an autonomous adult, sharing accommodation with his mother. He contributes significantly to the household’s running and cares for himself in a manner similar to that of others in the general population.
Dr Teoh writes, ‘He has poor concentration and persistent preoccupation with negative thoughts.’
Despite his ADHD, he is able to do complex projects such as upgrading his motor vehicles and acknowledges that once he starts a project, he can spend the entire day working at the project until it is finished. If there is impairment in this domain, it is mild.
Dr Teoh writes, ‘He is not fit to work.’ I consider it likely that Mr Aboutayeh would be able to work in some role consistent with his experience, education and training but perhaps with less responsibility than earlier. Mr Aboutayeh acknowledged that he might be able to work in his own business, as he has previously.”
Discussion
The MA is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Ground 1 - Section 323 deduction
The appellant submitted that the MA made a demonstrable error in calculating the s 323 deductible amount by not following the SIRA Guidelines.
The Guidelines at 11.10 under “Pre-existing impairment” provide:
“To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
The Guidelines do not provide that the 10% deduction is only used when a pre-injury PIRS assessment is too difficult to undertake or cannot be undertaken but such a provision is contained in s 323 of the 1998 Act .
Section 323 of the 1998 Act provides:
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.
(4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole). Schmidt J said:
“29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre- existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 …That is a matter of fact to be assessed on the evidence led in each case”.
The appellant submitted that the evidence of the appellant was that his condition was stable before the injury and changed dramatically after he left work with the respondent and that none of the symptoms described would affect a pre-injury PIRS assessment being undertaken. The appellant argued that it was hard to see how the MA could come to the conclusion on the history he took and on the treatment the appellant had before the injury, that any PIRS assessment taken before the injury would show any impairment.
The Appeal Panel reviewed the evidence concerning the appellant’s pre-existing condition.
In the MAC, on page 6, the MA found that the appellant had pre-existing bipolar disorder and ADHD, “both of which contribute to his impairment”. The MA on page 2 of the MAC noted that the appellant had long-standing difficulties with concentration and attention. The MA, on page 3 of the MAC, noted that the appellant’s mental health conditions “always affected my reliability, and this has gotten worse over the years. He had never lost a job because of this and had not previously been on WorkCover. However, he had periods of unemployment between jobs”.
The MA on page 6 of the MAC wrote:
“He has significant pre-existing conditions but was functioning well enough to obtain work with Stamford Tyres, where he performed well for a time. I consider that he had a contributing condition and make a one-tenth deduction to account for this”.
The MA referred to the report of the treating psychiatrist Dr John Pickering dated 13 May 2016 and noted that the report listed these diagnoses: bipolar disorder, panic disorder, mixed phobic disorder (with agoraphobia can social phobic features) and ADHD. The MA stressed that this report was written before the onset of the appellant’s condition. The Appeal Panel noted that this report was in fact written before the appellant commenced work with the respondent.
The MA quoted from Dr Pickering’s report of 13 May 2016 as follows:
“INDEPENDENT LIVING: He is marginal with respect to this function. He needs significant support.
COMMUNICATION AND SOCIAL INTERACTION: he has completely withdrawn from his Friends, shunning their company. He misunderstands some instructions, to the detriment of his treatment with me.
COGNITIVE FUNCTIONING: It is ability to pay attention for a prolonged periods of time are very poor. He cannot concentrate for very long at all. This will improve only when both the ADHD and is anxiety disorders are addressed.[sic]
WORK: He is currently not capable of work or study at all apart from briefly addressing simple tasks such as doing the washing up. He is certainly not fit for any sustained effort.”
The MA noted that the appellant was then apparently not taking the prescribed medication and concluded that Dr Pickering had described a very unwell patient with significant impairment.
Dr Friend, treating psychiatrist, in a report dated 18 May 2017, that is some months before the appellant started work for the respondent, confirmed the diagnosis of ADHD and type II bipolar disorder but said that he could not confirm the diagnosis of social phobia and/or panic disorder with agoraphobia.
The MA on page 8 of the MAC noted that the appellant had said that he had recovered and was taking medication by the time he commenced work the respondent.
The appellant in his statement dated 29 September 2020 wrote:
“With Bipolar, if my emotions aren't level, I cannot come into work as I cannot
function. There were times I would have no days off in a month, others where it
was a couple of days a month. My days off seemed to increase based on the
pressure and situation I was having with Patricia at work. When this was gettingworse, I noticed that I was beginning to have more and more days off work.
…..
Before I suffered my injury on 10 April 2019 I:
(a) Was diagnosed with ADHD and Bipolar. I was diagnosed with these
conditions about 18 years ago. I have been prescribed Dexamfetamine
(5mg), Quilonum SR (450mg), Catapres 100. Since lodging my current
Workers Compensation Claim, I have been prescribed Antenex (5mg)
which is similar to Valium.(b) In relation to my Bipolar, I was diagnosed as being pretty severe and
because of my condition I have to maintain my mood as level as possible,
as Bipolar can lead to manic depression and psychosis. Having had this
condition for so long, I know where the line is and when I have to walk
away.These conditions did not impact my capacity to work in anyway. Although, I would
on occasions have to take some time off from work to deal with the conditionsthey did not affect me in any other way.”
The appellant submitted that the absence of pre-injury symptoms that could give rise to a PIRS assessment resulting in a WPI was not a reason to invoke the 10% mandatory deduction under the Guidelines for a psychiatric injury as the MA appeared to have done. The appellant argued that the correct approach is to make a pre-injury PIRS assessment and then deduct it from the post injury assessment, and if the pre-injury assessment was 0% then there was no s 323 deduction. The appellant argued that the MA made a demonstrable error in his calculation of the s 323 deduction by not following the procedure in the Guidelines which, if followed, would in all likelihood result in no s 323 deduction as per Dr Teoh’s report.
The Appeal Panel accepts that the Guidelines state pre-injury impairment is to be calculated using the same method used for calculating current impairment level. The assessing psychiatrist is to use all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function and then calculate the percentage impairment using the aggregate score and median class score and the conversion table. The injured worker’s current level of WPI% is then assessed and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. However, the Guidelines also provide that if the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.
The MA found that the appellant had two longstanding psychiatric conditions, namely, bipolar disorder and ADHD, both of which contributed to his current impairment. The MA made a deduction of 1/10th of the assessed WPI. The Appeal Panel considered that it can be inferred that the MA was of the view that the percentage of pre-existing impairment could not be assessed. The Appeal Panel noted that the appellant suffers from a pre-existing condition, bipolar disorder, and that is a condition where patients have frequent relapses and it can be very difficult to assess whether a patient is in an episode when making an assessment.
The Appeal Panel also noted the difficulty faced by the MA in ascertaining a reliable pre-existing impairment using this method. For instance Dr Friend’s report of November 2017 records the pre-injury breakdown of his marriage. “Unfortunately, Mr Aboutayeh 's marriage has ended, although he still lives in the same house as his ex-wife and three children aged 12, 8 and 7 years”, inconsistent with the history provided by the appellant. The appellant’s email of 15 September 2017 confirmed a pre-existing impairment in Employment – “I have been unemployed for quite some time, though, an interview I had previously, seems to have come to fruition….. I don't believe that I can possibly do this without my medication”.
Therefore, the Appeal Panel accepts that the MA decided that it was too difficult to make an assessment of the contribution from the pre-existing conditions to the current condition. The Appeal Panel sees no error in this approach.
Even if the MA had adopted the other approach set out in the Guidelines and rated the appellant’s pre-injury level of functioning in each of the areas of function, the result in terms of a deduction pursuant to s 323 of the 1998 Act would have been the same. Although the appellant stated that his bipolar disorder and ADHD did not impact his capacity to work in any way pre-injury, he did state that on occasions he had to take some time off from work to deal with the conditions. He stated that with the bipolar disorder if his emotions were not level, he could not come into work as he could not function. The appellant said that there were times when he would have no days off in a month, and other times when “it was a couple of days a month”.
The Appeal Panel was satisfied that in terms of the scale of employability, there was a mild impairment (class 2) in the appellant’s level of pre-injury functioning in this scale and his absences from work, and description of several years of unemployment were greater than that in the normal variance in the general population.
The Appeal Panel was also satisfied that there was a deficit in the appellant’s level of pre-injury functioning in the scale of concentration, persistence and pace. The appellant stated that he had long-standing subjective difficulties with concentration and attention. He told the MA “It has always been shocking.” Dr Friend, in his report dated 18 May 2017, noted that the appellant had very long-standing symptoms including difficulty maintaining focus and concentration, being very forgetful and being easily distracted. He noted that the appellant was generally disorganised and he had no sense of direction, finds it difficult to read maps and easily got lost.
The Appeal Panel was satisfied that in terms of the scale of concentration, persistence and pace, there was a mild impairment (class 2) in the appellant’s level of pre-injury functioning in this scale.
These assessments of class 2 for employability and class 2 for concentration, persistence and pace result in median class score of 1 and an aggregate score of 8, which is converted to 1% WPI. The MA made a deduction of 1% WPI so the result, using either method of assessing the s 323 deduction, is the same.
Ground 2 - Effects of Medication
The appellant submitted that the MA did not adjust the WPI rating to allow for the effects of treatment on the basis that the appellant has not had a substantial or complete elimination of his impairment. The appellant argued that the MA did not consider that an increase in the appellant's WPI could be based on the drugs’ side effect and has, as such, fallen into demonstrable error by only considering that only a substantial or total remission of symptoms can lead to an increase in the WPI found for "effects of treatment".
This argument seems to the Appeal Panel to imply that the MA should have considered that side effects of the medication have Increased the WPI, which is the opposite of a treatment effect. This possibility is covered in paragraph 1.31 of the Guidelines. However neither the MA nor the Appeal Panel can ascertain any such treatment related impairment in the evidence or assessment, and beyond raising this possibility, nor has the appellant.
The appellant argued that the MA did not consider the guidelines according to MAA & Workcover Permanent Impairment Guidelines. It is not clear what the appellant meant by referring to the MAA & Workcover Permanent Impairment Guidelines. There are two sets of Guidelines, the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 reissued 1 March 2021 which have been referred to as the Guidelines throughout this decision and the Motor Accident Permanent Impairment Guidelines – SIRA. The Motor Accident Permanent Impairment Guidelines – SIRA are different to the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment. In this case, the Guidelines that apply are the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment.
Paragraph 1.32 of the Guidelines provide as follows:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the Claimant’s permanent impairment but the Claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage using the Combined Values chart”.
Paragraph 1.32 of the Guidelines is in the introduction under “Part 2 – Principles of Assessment” and does not only apply to psychiatric injuries.
The Guidelines at 11.8 do relate to Psychiatric Injuries but the paragraph headed "Effects of Treatment", is concerned with whether the injury is stable and not with the estimation of impairment.
Under “present treatment” the MA noted that the appellant took the following psychiatric medication: Dexamphetamine 5 mg, six tablets daily, Lithium carbonate 900 mg daily, Clonidine – unsure of dose and Diazepam 5 mg on an as-needed basis. On page 5 of the MAC, the MA noted that the appellant has had pharmacological and psychological treatment without apparent good results.
On page 6 of the MAC, the MA wrote: “I have not adjusted for treatment effect as he has not had a substantial or complete elimination of his impairment”.
It was clear that the appellant used medication which had at most some limited effect on his condition. However, the Guidelines provide that there must be substantial or complete elimination of impairment for a MA to increase the percentage of WPI. There has not been a substantial or complete elimination of permanent impairment in this case and therefore the MA cannot make an adjustment for effects of treatment. The Appeal Panel noted that
Dr Teoh did not make an adjustment for effects of treatment.The appellant argued that if the MA was correct, then there would never be an increase for "effects of injury" as any PIRS assessment would be negligible as the PIRS assessment is one based on symptoms. The Appeal Panel agreed that this would be the result in many cases but there could be rare cases where the level of WPI was extremely high and treatment had resulted in a substantial elimination of WPI so a 2% increase could be applied.
The Appeal Panel considered that no adjustment for effects of treatment could be made in this case as there has not been a substantial or complete elimination of permanent impairment.
Ground 3 - the availability of additional relevant information
This ground was addressed above under the heading “Fresh evidence”.
Ground 4 – PIRS scales
The appellant submitted that the MA has made a demonstrable error by wrongly placing the appellant in class 1 for self-care and personal hygiene, class 3 for social functioning and class 3 for employability. Although the Appeal Panel has determined that the statement of the applicant dated 3 May 2021 shall not be received in this appeal and the appellant’s submissions in relation to this ground are in the main based on the information in the supplementary statement, the Appeal Panel will proceed to consider this ground of appeal.
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 Harrison AsJ at [66] said:
“66. In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense…
70. 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.
71. 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…”
Self-care and personal hygiene
The examples under Table 11.1 in the Guidelines for class 1 in self-care and personal hygiene are: “No deficit, or minor deficit attributable to the normal variation in the general population”. The examples for class 2 are: “Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.”
In the PIRS Rating Form, the MA assessed the appellant as class 1 and wrote:
“Mr Aboutayeh lives with his mother and contributes to the household chores: cleaning, maintenance, gardening and occasional cooking. He showers and brushes his teeth daily. He eats a good diet. This pattern is consistent with normal variation in the general population.”
On page 3-4 of the MAC under “present symptoms” the MA wrote: “He eats a reasonable diet, and his weight is stable.”
On page 4 of the MAC, under “Social activities/ADL” the MA wrote:
“He now lives autonomously in his mother’s home, contributing to household chores and maintenance. He said, “If anything goes wrong, I fix it.”
His mother does most of the shopping, but he will occasionally pick up small items such as bread rolls. His mother also does most of the cooking, but he will cook on occasion.
He maintains a clean home, wears clean clothes without prompting, and showers daily.”
In commenting on the other medical opinion and in particular the opinion of Dr Teoh, the MA noted that Dr Teoh rated the appellant in a higher class but it was now more than one year since the assessment of Dr Teoh. The MA wrote:
“Mr Aboutayeh is living as an autonomous adult, sharing accommodation with his mother. He contributes significantly to the household’s running and cares for himself in a manner similar to that of others in the general population.”
In his report dated 27 March 2020, Dr Teoh rated the appellant as class 2 for self-care and personal hygiene providing the following reasons:
“He has been lacking motivation to care for himself. He requires help from family and friends.”
None of the other medical reports appeared to address the activities that need to be considered in making an assessment in the scale of self-care and personal hygiene. The appellant in his statement dated 29 November 2020 did not provide any information concerning activities relating to self-care and personal hygiene.
The Appeal Panel noted that Dr Kurrie in a referral dated 10 May 2017 under “Past history” reported that the appellant had a dental abscess in 2013 from which it could be inferred that the appellant’s dental hygiene prior to the work injury was poor at times.
The Appeal Panel accepted the history as recorded by the MA.
The Appeal Panel considered whether the MA had erred in making a class 1 rating for self-care and personal hygiene. Dr Teoh rated the appellant as class 2 for self-care and personal hygiene but provided scant reasons in his report in support of that rating which was done more than a year ago.
The MA noted that the appellant was living as an autonomous adult, sharing accommodation with his mother and contributed significantly to the household’s running in terms of household chores and maintenance. The MA considered that the appellant cared for himself in a manner similar to that of others in the general population.
Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel considered that it was open to the AMS on the evidence to make an assessment of class 1 for self-care and personal hygiene.
Social functioning
The appellant submitted that he was more appropriately classified as class 4 for social functioning.
The examples under Table 11.4 in the Guidelines for class 3 in social functioning, are:
"Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children”. The examples for class 4 are: “Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependents (eg own children, elderly parents).”
In the PIRS Rating Form, the MA assessed the appellant as class 3 for social functioning and wrote:
“He only ever had a small group of friends and now has lost them because of social withdrawal. His relationship with his mother is strained, but he gets on well with his daughters, who stay with him many weekends. His marriage has broken down,
but it had been strained before the incidents at work.”On page 4 of the MAC, under “Social activities/ADL” the MA wrote:
“Mr Aboutayeh was married and had three daughters, aged between 10 years and 16 years.
He left his marriage about one year ago, choosing to move back to live with his mother. He described a conflicted marriage with a wife who was argumentative and demanding.
However, at one point, there was an AVO taken out against him.
He feels that his wife had “used” him. She had migrated to Australia from the Philippines, and as soon as she obtained permanent residency, her attitude toward him and the marriage changed, and her behaviour became increasingly difficult…
He enjoys his daughters’ company and occasionally will go out to a restaurant with them, for example, to get Chinese food.
He usually refuses invitations to family gatherings.
He no longer sees friends.
He is close to his daughters. He occasionally has conflict with his mother.
He has lost friends through his social withdrawal, although he commented that he had only ever had a small group of friends.”
In his report dated 27 March 2020, Dr Teoh rated the appellant as class 3 for social functioning providing the following reasons:
“He has a strained relationship due to irritability and lacking communication”
Dr Antonella Ventura, consultant psychiatrist, in a report dated 26 September 2019 noted that:
“Mr Aboutayeh told me that he takes his children to school and has lunch with his wife He told me that he follows his children's homework and drive his children to activities on weekends. He told me he occasionally plays pool with a friend in a hotel in Yagoona where he reportedly drinks three to four beers. He told me that he struggles with going out in public as he has no trust of people”.
Mr Sam Albassit, treating psychologist, in a report dated 10 March 2021 noted that the appellant “avoids social situations, leaves his home irregularly and has become a recluse”.
Dr Friend in his report dated 28 November 2017 noted that the appellant’s marriage had ended although he still lived in the same house as his ex-wife and three children.
The appellant, in his statement dated 29 November 2020, did not provide any relevant information concerning the area of social functioning.
The Appeal Panel accepted the history as recorded by the MA.
The Appeal Panel considered whether the MA had erred in making a class 3 rating for social functioning. Dr Teoh rated the appellant as class 3 for social functioning.
The MA noted that the appellant had lost his small group of friends because of social withdrawal. The MA reported that the appellant’s relationship with his mother was strained, but he got on well with his daughters, who stayed with him many weekends. The MA noted that the appellant’s marriage has broken down, but it had been strained before the incidents at work. The Appeal Panel noted that the appellant’s marriage had broken down by late November 2017, that was, two months after the appellant started work for the respondent and at a time when Dr Friend described the appellant as generally coping well with his job. The Appeal Panel considered that the appellant’s marriage broke down due to factors largely unrelated to the workplace injury.
Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel considered that it was open to the MA on the evidence to make an assessment of class 3 for social functioning. The Appeal Panel considered that the history obtained by the AMS was consistent with a class 3 rating for social functioning.
Employability
The appellant submitted that he was more appropriately classified as class 4 or class 5 for employability.
The examples under Table 11.6 in the Guidelines for class 3 in employability are: "Moderate impairment: cannot work at all in the same position. Can perform less than 20 hours a week in a different position, which requires less skill or is qualitatively different (eg less stressful).” The examples for class 4 are: “Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.” The examples for Class 5 are: “totally impaired. Cannot work at all.”
In the PIRS Rating Form, the MA assessed the appellant as class 3 for employability and wrote:
“He struggles to trust others and would not work well in a structured team. He feels that he may be able to work in his own business (he has experience doing this). He likely would be able to work in a less demanding role, probably for less
than 20 hours a week”.
On page 4 of the MAC, the MA noted:
“Despite his ADHD, he keeps himself busy with a variety of tasks. For example, he had been working on fitting a turbocharger to his car. He said, ‘when I’m working on my cars, once I’ve got the tools out, I work all day’.”
In commenting on the other medical opinion, the MA wrote:
“Dr Teoh writes, ‘He is not fit to work.’ I consider it likely that Mr Aboutayeh would be able to work in some role consistent with his experience, education and training but perhaps with less responsibility than earlier. Mr Aboutayeh acknowledged that he might be able to work in his own business, as he has previously.”
In his report dated 27 March 2020, Dr Teoh rated the appellant as class 5 for employability providing the following unsupported reason:
“He is not fit to work.”
Dr Ventura, consultant psychiatrist, in a report dated 26 September 2019 considered that poor motivation was the main factor preventing a return to work.
Mr Albassit, treating psychologist, in a report dated 10 March 2021 noted:
“The opinion on his prognosis remains guarded; however improvement is likely if he is away from further exacerbation namely, that particular work environment.
Mr Aboutayeh currently has no work capacity due to his ongoing symptomatology of
Depression and Agoraphobia. He has shown recent improvement with his mental
health as result of continued treatment and being away from the work environment.Mr Aboutayeh has not worked since May 2019.”
The Appeal Panel accepted the history as recorded by the MA.
The Appeal Panel considered whether the MA had erred in making a class 3 rating for employability. Dr Teoh rated the appellant as class 5 for employability.
The MA considered it was likely that the appellant would be able to work in some role consistent with his experience, education and training but perhaps with less responsibility than earlier. He noted that the appellant acknowledged that he might be able to work in his own business, as he has previously. The appellant was capable of fitting a turbo charger to a car and watched shows to learn practical skills such as vehicle building and welding.
Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel considered that it was open to the MA on the evidence to make an assessment of class 3 for employability.
Based on the evidence before the Appeal Panel, and for the reasons provided by the MA in the MAC, the Appeal Panel considered that it was appropriate for the MA on the evidence to make an assessment of class 1 for self-care and personal hygiene, class 3 for social functioning and class 3 for employability. The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in those PIRS categories.
In conclusion, the Appeal Panel did not consider that a demonstrable error in the assessment of the MA.
Ground 5 – incorrect criteria
The appellant submitted that the assessment was made on the basis of incorrect criteria. The appellant did not provide any explanation as to how the MAC was made on the basis of incorrect criteria. The Appeal Panel was satisfied that the assessment was not made on the basis of incorrect criteria.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 April 2021 by the MA should be confirmed.
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