Alizada v Workers Compensation Nominal Insurer (iCare) - [2021] NSWPICMP 156

DETERMINATION OF APPEAL PANEL
CITATION:	Alizada v Workers Compensation Nominal Insurer (iCare) [2021] NSWPICMP 156
APPELLANT:	Habib Alizada
RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
APPEAL PANEL:	Member Catherine McDonald Dr Michael Davies Dr J Brian Stephenson
DATE OF DECISION:	31 August 2021
CATCHWORDS:	WORKERS COMPENSATION- Worker suffered head and orthopaedic injuries in a fall from a height; Medical Assessor has assessed worker on two previous occasions when he had not reached maximum medical improvement; assessment in light of inconsistency on examination; no error in assessment of orthopaedic injuries; Held - Medical Assessor did not explain assessment of brain injury and omitted aspects which were supported by his own findings; MAP revoked.

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

BACKGROUND TO THE APPLICATION TO APPEAL

On 4 June 2021 Habib Alizada lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ross Mellick, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 May 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate was 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 grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Alizada was working as a painter when he fell from a height of about three metres on 14 December 2015, onto his head. He was intubated at the scene and transferred by helicopter to Westmead Hospital. He was admitted into intensive care because of a decreased Glasgow Coma Score (GCS) and agitation but was extubated and transferred to a regular ward on the same day. An MRI scan of his brain showed multiple contusion injuries. He remained in hospital for two weeks then referred to the Brain Injury Unit. An MRI scan of his spine was normal.
Mr Alizada returned to Westmead Hospital on 5 February 2016 with head, neck and shoulder pain on the background of a traumatic brain injury. His neck and shoulder pain had recently worsened.
On 18 May 2016, Dr R Martens and Dr P Aprameyan of the Brain Injury Rehabilitation Service wrote to Mr Alizada’s general practitioner. They noted that Mr Alizada had right shoulder pain since leaving hospital and said:
“He otherwise denied any symptoms of headaches, fatigue, loss of focus or concentration, problem solving or memory issues today. He states the pain is the only limiting factor that has been limiting him from getting back to-work otherwise he feels normal…
On his examination today he was well oriented to time, place and person and his recall was good along with his delayed recall. He did have some element of anxiety during the conversation. He did not have any focal neurology to elicit. His right shoulder did have a reduction in his range of motion with internal rotation and abduction mainly secondary to pain. He could passively attain full range of motion. He did have a painful arc over 90 degrees.
Overall the impression was Mr Alizada probably did have moderate traumatic brain injury. He is about five months post his TBl and he is recovering well without any symptoms of post concussion symptoms. He is willing to return to work provided his pain is getting better.”
An ultrasound of Mr Alizada’s right shoulder on 16 May 2016 showed minor bursitis and an MRI of his cervical spine on 7 July 2016 showed subtle degenerative disc disease without evidence of neural impingement. An MRI of the right brachial plexus was recommended because of right sided symptoms.
Mr Alizada saw Dr H Lam, pain medicine specialist, on 2 August 2016 at the request of his general practitioner, Dr Hamid. Through an interpreter, Mr Alizada told Dr Lam that he had constant pain in the right side of his neck, radiating to his head, and in his right shoulder and the back and front of his chest. Dr Lam noted that he did not move his right arm while walking and the complete range of shoulder movement was diminished. Dr Lam diagnosed mixed nociceptive and neuropathic pain and said that Mr Alizada was a genuine patient with a limited understanding of his condition and excessive reliance on passive approaches.
On 3 August 2016 Mr Alizada saw Dr M Dowla, neurologist. Dr Dowla said:
“Although he was discharged after two weeks, he continued to suffer neck pain, headache, right facial numbness and also pain and restriction on the right shoulder. He has been having poor concentration, fatigue and has had difficulty with his problem solving, ability and memory. This problem has not been addressed adequately since his discharge.”
At the time of the examination, Mr Alizada was alert, orientated and co-operative. Dr Dowla considered that Mr Alizada continued to suffer a traumatic brain injury “exacerbated by poor recovery of his right shoulder.” He has continued to treat Mr Alizada.
On 12 August 2019 Dr Dowla undertook nerve conduction studies which he said did not show focalised or generalised abnormality. On that day, Mr Alizada “was upset and demanded ambulance be brought to take him to hospital.”
On 5 December 2019 Dr Dowla noted that Mr Alizada continued to complain of pain in his neck and right shoulder and was confused with loss of memory. Dr Dowla diagnosed rotator cuff tendonitis on a background of chronic pain and anxiety. He maintained that diagnosis in a report dated 23 April 2020.
Apart from the notes of his treating psychologist, there is little other evidence in the file from Mr Alizada’s treating doctors. He has been seen by a number of qualified doctors whose reports are discussed below. He provided a statement to an investigator instructed by iCare and a statement to his solicitor.
The Medical Assessor prepared three MACs and it is necessary to have regard to the first two to understand the third MAC, which is the subject of this appeal. The first MAC was dated 17 December 2019 and the Medical Assessor determined that Mr Alizada’s condition had not reached maximum medical improvement. The second MAC was dated 27 November 2020 and the Medical Assessor again determined that Mr Alizada’s condition had not reached maximum medical improvement.
By a referral dated 13 April 2021, the Medical Assessor was asked to assess Mr Alizada’s whole person impairment (WPI) in respect of his cervical spine, right upper extremity and nervous system.
The third MAC dated 10 May 2021 is the subject of this appeal. The Medical Assessor assessed 13% WPI comprised of 5% in respect of Mr Alizada’s cervical spine, 3% in respect of his right upper extremity and 5% in respect of the nervous system.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination. Though there are errors in the MAC which are corrected below, the three MACs and the reports of treating and qualified practitioners show that it would not be possible to examine Mr Alizada successfully because of numerous inconsistencies. The appeal has been dealt with on the basis of the findings made by the Medical Assessor.

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.
The parts of the medical certificate given by the Medical Assessor 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.
In summary, Mr Alizada submitted, through his solicitor, Mr Meighan, that the Medical Assessor failed to examine his cervical spine and right upper extremity and had adopted the assessments made by Dr R Breit who had examined him on behalf of iCare. He also submitted that the Medical Assessor accepted that Mr Alizada had suffered a significant head injury with a brain contusion and anosmia but failed to apply Tables 13-5 and 13-6 of AMA 5 or to explain his assessment. Mr Alizada said that his symptoms should result in a Clinical Dementia Rating (CDR) in class 2 or at least in the higher end of class 1.
In reply, iCare submitted, in submissions prepared by its solicitor, Mr Dolan, that the MAC confirms that the Medical Assessor attempted to examine Mr Alizada, albeit with difficulty. iCare noted the Medical Assessor’s reference to paragraph 1.36 of the Guidelines with respect to inconsistent presentation and said that the Medical Assessor had used his best endeavours to provide an assessment of Mr Alizada’s cervical spine and right upper extremity. The fact that he did not refer to Dr Giblin’s reports does not mean that he did not consider them.
With respect to the second ground of appeal, iCare noted that the Medical Assessor encountered severe difficulties in examining Mr Alizada. iCare submitted that he did his best to prepare an assessment, exercising his judgement as he was required to do under paragraph 1.36.

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[1] 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 MAC
[1] [2006] NSWCA 284.

The MAC is dated 10 May 2021 but was based on a consultation on 21 April 2021. The Medical Assessor said:
“He has seen a large number of doctors and has attended the writer’s rooms twice previously, in 2019 and 2020, because there are considerable psychological issues and inconsistencies of presentation which create a considerable barrier to achieving a valid WPI.
This MAC has been completed by taking into account fin findings of an orthopaedic colleague on an earlier occasion with reasons, as described below.”
The Medical Assessor said that he had considered all of the documents sent to him. He summarised the history in the two previous MACs. In respect of the first, he said:
“In spite of the presence of a professional interpreter, history taking was markedly impaired. Mr Alizada frequently replying he does not remember. I have documents prepared nearer to the time of the injury which indicate that history taking was at that time possible. The history of the injury will accordingly be supplemented with documents prepared at an earlier time.”
The Medical Assessor noted that further information was available at his third examination, including a report from his treating psychiatrist, Dr Saboor.
The Medical Assessor elicited the following description of Mr Alizada’s present symptoms:
“Mr Alizada said the main existing symptoms involved headache, neck pain, neck stiffness, and right arm and right leg pain. The headache is reported to occur eight or nine times a day of short duration and also added, ‘getting dizzy, getting numbness in arms and legs…really uncomfortable…really warm, really hot feeling in head.’ He also describes the headache to be treated with cream. The neck pain is described to be in the back of the neck associated with stiffness constantly.
Constant pain is also reported to be in the whole of the right arm and there is constant numbness of the right arm. The pain is described to extend to involve the anterior part of the chest and is present in the chest all the time. There are no symptoms involving the left upper extremity.
He also complains of waking in the early hours of the morning shaking because he felt scared. He said he felt as though he was being electrocuted.
I asked Mr Alizada what he felt the main problem is and he said, ‘the condition is all the
time, affects my mental health, it has destroyed me like a bend in my bones, in my
posture…makes me furious and uncomfortable’ ”.
Mr Alizada gave the following description of his activities of daily living:
“He told me he is unable to walk for any more than one minute. He said that people who share the accommodation look after his room for him. He informed me that he is able to dress and see to his personal needs such as toileting. He lives with others who do ‘everything’ for him. He also indicated he is able to do light shopping on his own, for example to buy water, medicines and bread. With regard to other day to day activities, he said he goes to the local park.
I understand that prior to the injury he was sharing rented accommodation and still does so.”

The Medical Assessor set out the findings on physical examination from the first two MACs and said:
“The most recent physical examination replicated the inconsistencies referred to above.
No objective organic signs were identified. However, there continues to be an inability to properly assess the range of movement of the right shoulder, where he continued to complain of pain. Cervical movements were also performed over a grossly restricted range today with some asymmetry of movement accompanied by complaints of cervical pain.
I once more tested olfaction and he reported that he could not identify any odour.”
The Medical Assessor accepted that Mr Alizada suffered a head injury with evidence of a brain contusion and that there were objective abnormalities in the right upper extremity though “the examination conducted did not establish the presence of any focal intracranial or spinal cord or abnormality of traumatic origin.” He accepted that Mr Alizada suffered anosmia. He said:
“It is also clear that his clinical condition in general has become worse with the passage of time, with particular evidence of evolution of psychological problems.
The overwhelming nature of this gentleman’s presentation is of a severe behavioural disorder with significant psychologically based problems of pain symptoms dating from the time of the injury, without reproducible objective diagnostic neurological abnormalities and with a pattern of evolution of his ‘clinical condition’, pointing to the probability of increasing psychological causes for the current condition.”
The Medical Assessor said:
“This MAC has proven to be extremely difficult to complete because of the marked inconsistencies exhibited by Mr Alizada without the problem being one of linguistics. Comprehension of his primary language is intact and I am convinced that the translation of English into his primary language was done well.
The factual information is that Mr Alizada had worked as a painter from the time of his arrival up until the time of the injury in question and has not worked since that time – a period of more than five years.
By normal neurological measures, his head injury was a significant one and when the assessment was made at the site of the injury, his Glasgow Coma Score was estimated to be 8 by the ambulance officer. In addition, there is MRI evidence of a brain contusion.”
The Medical Assessor noted paragraph 1.36 of the Guidelines with respect to inconsistent presentation and said that paragraph 1.9 implied that a degree of benevolence should be afforded. He said:
“My assessment on two occasions identifies loss of olfaction. When taking into account the magnitude of the fall, that he was unconscious and also had a cerebral contusion, it is reasonable to allow that single neurological finding to be valid and to accept anosmia to be present.
Dr Breit also refers to paragraph 1.36 when he made his assessment on 26 July 2020 of 5% WPI for a cervical spine injury and 3% for an upper extremity injury. It is noted that Dr Breit makes reference to Dr O’Sullivan’s earlier assessment and includes this paragraph:
‘Dr O’Sullivan has suggested this man should be classified under DRE cervical category 2, all things considered that is reasonable in my opinion and he has also not provided a quantum for ADLs which I would also consider to be reasonable’.
I agree with that reasoning.
I therefore join my orthopaedic colleague and consider it is reasonable to do so, considering the enormous variability in this gentleman’s presentation to different doctors at different times. I would regard it to be justified to use information from documents provided by Dr Breit to assist completion of this MAC with the justification I refer to in the PIC Guides cited above.”
With respect to consistency of presentation, the Medical Assessor said:
“There is considerable inconsistency of presentation. However, taking into account the consistency of my finding that he is unable to identify odour and the reasoning and findings of Dr Breit, as well as the information provided in the Guides and cited above, the application of clinical judgement reasonably justifies the WPI assessment completed here.”
The Medical Assessor said:
“Because of the challenge of managing Mr Alizada’s presentation, the risk exists that an assessable impairment may easily be missed because of the overwhelming impact in the face-to-face consultation of the inconsistencies that are apparent.
The writer accepts the inconsistencies but also draws attention to the reasoned opinion of an orthopaedic colleague, who was on that earlier occasion able to make a valid assessment with support from Dr O’Sullivan. Because of the variability in this man’s presentation, I include Dr Breit’s assessment as it is in keeping with the details of the injury and the consistency of symptoms involving that upper extremity.
Loss of olfaction is a common consequence of a significant head injury and the total information is quite unambiguous in so far as it documents a serious head injury making anosmia an entirely probable consequence.
The writer of course realises that a lack of reliability of Mr Alizada’s responses might also be regarded to justify putting aside both the assessment of anosmia and the assessments made by Dr Breit. However, for reasons provided above and having regard to the PIC directive referred to above, I propose the assessments made to be appropriate and justified.”
The Medical Assessor assessed 5% WPI with respect to Mr Alizada’s cervical spine and 3% WPI with respect to his right upper extremity (shoulder). He assessed 5% WPI for the nervous system, referring to Tables 13-5 and 13-6. However, the Medical Assessor did not explain how he applied those tables.

Other evidence

In 2016 Mr Alizada provided a statement to an investigator instructed for iCare, which provided a cogent account of the circumstances of his employment. He said that he had provided a statement to WorkSafe NSW.

Dr P Giblin, orthopaedic surgeon, saw Mr Alizada at the request of his solicitors and reported on 27 November 2017. He noted that the passive range of motion of all of the joints in Mr Alizada’s arms were normal but that on examination of his right shoulder, there was marked cogwheel rigidity which prevented any range of motion assessment. He made a provisional diagnosis of a moderate closed head injury with soft tissue symptoms affecting the cervical spine and right shoulder.
Dr Giblin’s report suggests that he was able to obtain a history with the assistance of a Farsi interpreter. He did not say why the diagnosis was provisional or what other information was required.
In a report dated 6 February 2018, Dr Giblin assessed Mr Alizada’s cervical spine in DRE cervical category II resulting in 5% WPI and allowed 2% for the impact of the injury on the activities of daily living. He assessed 3% WPI on the basis of a minor soft tissue injury of the right upper limb (shoulder).
Dr D O’Sullilvan, neurologist, saw Mr Alizada at the request of iCare on 24 January 2018 and his report indicates that he was able to obtain history from Mr Alizada. In particular, Mr Alizada said that he felt that his symptoms were a little better than soon after the accident but he had become depressed and upset because of his persistent pain. Dr O’Sullivan said that Mr Alizada appeared to be “quite bright and alert” and seemed to understand English reasonably well.
When describing his examination, Dr O’Sullivan said:
“He had absent joint position sense in the entire right upper limb even to the level of the shoulder. This is not organically possible in view of the preserved reflexes and the fact that he had normal tone even though there was no muscle movement.
Of interest to note, that when he was getting dressed and putting the x-rays back into the x-ray bag he seemed to use the right arm without any difficulty . He had absent vibration sense entirely in the right upper limb. There was total absence of pinprick and light touch in the entire right half of his body including the right half of the face and the right arm . This is not possible in view of the normal nerve conduction studies.”
Dr O’Sullivan diagnosed a “conversion disorder with physical symptoms resulting in him not being able to function in any capacity with regards to his right arm.” He recommended psychiatric assessment. Dr O’Sullivan did not consider that Mr Alizada had suffered a significant traumatic brain injury.
Dr Robin Fitzsimons saw Mr Alizada at the request of his solicitors. In her report dated 3 February 2018, she said that Mr Alizada presented in a straight forward fashion and was able to communicate to some extent in English. She said:
“Although there are no formal neuropsychological studies available, and indeed these would be very difficult to obtain and properly interpret, given the requirements of translation. Nevertheless, he had a significant period of PTA, [although this may have been in part attributed by in-hospital medications]. He also had a low GCS at the scene, of a kind which would most probably result in significant long term adverse cognitive difficulties, although there may have been some language barriers to early assessment of GCS, and GCS values are consistent with a range of possible outcomes.
I therefore consider it probable that difficulties he has experienced with memory and with organisation are a consequence of the subject accident.”
Dr Fitzsimons noted some inconsistencies on examination and that radiology had not revealed any obvious cause for Mr Alizada’s neck and shoulder pain and recommended an MRI scan and treatment by an orthopaedic surgeon based on the results. She queried whether, based on her examination findings, if Mr Alizada’s disinclination to exercise power in his right upper limb was a result of his left cerebral hemisphere injury. Dr Fitzsimons said:
“In one sense his condition has stabilised, in that most of the expected improvements from a cognitive perspective would normally occur within the first two years after trauma. However, from another perspective, I consider that there is still room for functional improvement with intensive ongoing pain management calibration, treatment of depression, and physiotherapy.”
There is no evidence that Dr Fitzsimons’ recommendation about an MRI scan of Mr Alizada’s cervical spine was followed. There is no evidence that Mr Alizada has been treated by an orthopaedic surgeon.
Mr Alizada saw Dr G Vickery, psychiatrist and pain management consultant, at the request of iCare on 6 March 2018. The report is relevant because of Dr Vickery’s ability to take a history from Mr Alizada, though he did comment on Mr Alizada’s pain related behaviour. He diagnosed somatic symptom disorder or malingering “however his condition is not directly related to the injury”. He noted Dr O’Sullivan’s findings and said:
“There is no medical basis for Mr Alizada's pain perception or incapacity in relation to the accident.
Mr Alizada's has not developed a psychological condition as a direct result of his fall and work has not been a significant contributing factor to his current presentation.
Mr Alizada has the differential diagnosis of Somatoform Disorder or malingering which is not compensable in relation to Whole Person Impairment.”
While Dr Vickery explained what somatoform disorders are, he failed to explain why he had made that assessment in this case.
Dr Fitzsimons prepared a further report dated 10 April 2018, having review notes from the Westmead Hospital Brain Injury Unit. She said that the letter dated 18 May 2016 noted that the most severe ongoing issue was Mr Alizada’s right shoulder. She repeated her recommendation that he see a treating orthopaedic surgeon, noting that Dr Dowla had made the same recommendation.
Dr Fitzsimons noted that Mr Alizada appeared to have made a good recovery from his brain injury but said that the left temporal lobe damage that he suffered were consistent with the memory difficulties she observed.
In a report dated 4 June 2018, Dr Fitzsimons made a provisional assessment of permanent impairment but said that up to date information was required to determine to what extent the trajectory indicated by earlier reports had continued. She said:
“WPI in relation to his head injury is complicated by the presence of pain, and language difficulties, which may impact on concentration (affecting memory and social functions, the various possible outcomes of a head injury of the kind which he sustained, and with the parameters describe. It is also complicated by the interactions with psychological factors, such as anxiety (see page 3 of my report of 10 April 2018, and the cited report of Dr Dowla).
Taking the available evidence as a whole at the time of the consultation with me, a reasonable estimate, according to the CDR rating might be 1.0 (15-29% WPI), to take account of his reported memory difficulties, poor socialization (‘Home and Hobbies’ category, use of alarm clocks but ability to make his way to the consultation with me, and other factors reported under ‘Activities of Daily Living’.
There is also an assessment for emotional and behavioural disturbance due to brain injury which may be combined with the CDR WPI in the WCC jurisdiction (para 5.4 WCC Guides). However, an assessor must not double-rate the same impairment when undertaking this combination – eg those impairments which impact on socializaiton. That being so, if there were no component of his presentation due to pain or due to psychological issues other than due to brain injury he would probably classify towards the higher end of the above range (28% WPI) on the CDR with an additional component (8% WPI) due to emotional/behavioural issues not accounted for in the CDR. This would, prima facie, result in a WPI of 34%, if this were entirely due to brain injury. This would combine with any orthopaedic assessment.”
Dr J Stewart, neuropsychologist and clinical psychologist, saw Mr Alizada at the request of iCare and reported to his general practitioner on 15 October 2018. Dr Stewart wrote:
“In terms of cognitive complaints, he told me that he can no longer remember 'anything', or 'do 'anything. However, he told me that his memory problems had been getting worse since the accident. He was unable to provide me with specific examples of his memory loss. However, he did confirm that he can no longer recall information about his past. For example, Mr Alizada claimed that he no longer knew the names of his wife or children.”
Dr Stewart said that Mr Alizada said he was independent with activities of daily living and that he denied difficulties with eating or managing his medication. She said:
“The assessment was limited by time as the interview had taken far longer than expected. Additionally, there are very few neuropsychological tests appropriate to individual's from Mr Alizada's cultural background, particularly given his limited educational opportunities. Finally, the assessment was terminated after he performed so poorly on a very basic bedside test of cognitive functioning that I did not believe there would be anything to gain by continuing with other tests.”
Dr Stewart said:
“Mr Alizada's presentation, his replies to questions and performance on the most basic test of cognitive ability do not in my opinion, reflect what would be expected from someone who has suffered a traumatic brain injury. I was particularly struck by the pattern of memory difficulties that he claimed to experience. Individuals who have even very severe traumatic brain injuries do not forget personal information, e.g. names and details of family members.
…
There certainly is evidence that he suffered from some degree of trauma to the brain. Indeed, the reports suggest that his initial GCS was abnormal at the scene and that there was evidence of trauma to the brain on cerebral MRI.
…
His performance on the simplest bedside test of cognitive function designed specifically to minimise the effects of cultural learning and language diversity on the assessment, was in my opinion, non-credible. His relative day-to-day independence also conflicts with his performance. He had claimed for example not to be able to speak or read any English. However, on telephoning the case worker after the appointment to enquire how he would make his way home, I was informed that the driver relied on sending him text messages which Mr Alizada was able to respond to.”
Dr Stewart recommended that Mr Alizada be seen again by Dr O’Sullivan and that took place on 13 June 2019. Dr O’Sullivan said that examination of the cranial nerves revealed unusual abnormality of eye movement which reflected non-organic pathology. He said:
“Examination of the upper limbs was identical to what I found previously. There was no muscle wasting with normal tone. On testing power, it revealed marked variability in all muscle groups in the entire right upper limb. It should be pointed out that Dr Dowla's examination in August 2016 revealed normal power, as far as his upper limbs were concerned. Once again, he was unable to cooperate to perform coordination testing, such as 'finger-nose' testing or 'fine finger movements'. In fact, he had no movement in his right-hand muscles.
…
Once again, on sensory examination, he had absent joint position sense in the fingers, wrist and elbow of the right upper limb even to the level of the shoulder. As stated previously, this is not organically possible, in view of the preserved reflexes. In addition, he had absent vibration sense in his right upper limb. There was also absence of pinprick and light touch in the entire right half of the body, including the right half of his face. As stated previously, this is not possible with normal nerve conduction studies. His gait was hesitant and slow.
On examination of his neck, there was marked rigidity and in fact, it was almost impossible to get him to relax as far as his neck was concerned, and I am also of the opinion that he was resisting my attempts to examine his neck.”
Dr O’Sullivan commented on the reports of Drs Giblin and Fitzsimons. Based on the reports of Dr Vickery and Dr Stewart, he disagreed with their findings. He assessed 5% WPI in respect of a soft tissue injury to Mr Alizada’s cervical spine.
Dr R Breit saw Mr Alizada at the request of iCare on 25 July 2019. He referred to an assessment of permanent impairment made by Dr O’Sullivan in a June 2019 report but that report does not appear in the file.
Dr Breit said that Mr Alizada exhibited marked vagueness on history taking and described his examination:
“This gentleman presents in an unusual manner. He looks straight ahead and doesn't look either at the interpreter or at me. He had an extremely slow gait pattern when walking from the waiting room which in its own right was bizarre. It started out with a bent right knee somewhat abducted gait with a collapsing component that got better as he progressed but when he was later seen walking just outside the elevators the gait pattern appeared normal.
He kept the right arm in a protected posture and didn't use it, he used his teeth to help pull the sleeve off his left arm. There was marked tenderness to touching the top of his head, neck, and pectoral region extending to the sternoclavicular joint as well as the forequarter down to the elbow. There was tenderness in trapezius on both sides as well as the left shoulder cowl.
There was no neck movement at all. When asked to move the right shoulder the best that he could manage was 30° elevation and 30° abduction. No other movements could be undertaken.”
Dr Breit said:
“I can indicate there is evidence of cervical spondylosis and right shoulder bursitis however there is a poor correlation between investigational findings particularly in the
neck and symptomatology.
If it were not for the mechanism of injury, the dropped right shoulder and the forearm wasting I would indicate there is no organic pathology. I can only indicate that his presentation is otherwise totally inconsistent with organic pathology.
Dr Breit assessed 5% WPI for the cervical spine and 3% in respect of the right shoulder. After being directed by a question to Dr O’Sullivan’s assessment of the cervical spine, he said:
“Dr O'Sullivan has suggested this man should be classified under DRE Cervical Category II, all things considered that is reasonable in my opinion and he has also not provided a quantum for ADLs which I would also consider to be reasonable.
As far as the right shoulder is concerned it is very apparent that range of movement is inappropriate and the only assessment tool I can use is to invoke SIRA Guides Chapter 1, paragraph 1.36 and indicate 3% WPI which results in a total of 8% WPI impairment.”
When asked to comment on Dr Giblin’s report, Dr Breit said that he did not agree that it was appropriate to add a component for the impact on the activities of daily living to the cervical spine assessment because of Mr Alizada’s “extraordinary overall presentation.”
Surveillance undertaken on 3 December 2019 showed that Mr Alizada was able to travel by train between Auburn and the Sydney CBD.
Mr Alizada has been treated by Mr M Amani, psychologist, since April 2018. At his first consultation, Mr Amani noted that Mr Alizada had symptoms consistent with severe depression, anxiety and stress and sub-clinical post-traumatic stress disorder. From the first consultation, Mr Amani noted that Mr Alizada’s memory was poor. In an Allied Health Recovery Request form dated 21 April 2019, Mr Amani noted that Mr Alizada can cook simple food and has difficulties with shopping, cleaning and finding addresses and directions. However he had recently visited his family in Pakistan with the assistance of friends.
In May 2020, Mr Amani confirmed that he saw Mr Alizada weekly but also recommended referral to a psychiatrist.
Dr A Saboor is Mr Alizada’s treating psychiatrist and his medico-legal report is dated 18 February 2021. He considered the 2019 MAC. Dr Saboor said:
“Based on the presentation and review of material, Mr Alizada's case is very complex. He suffered with major depressive illness. He also has a history of a traumatic brain injury-and ongoing pain since the injury consistently. His pain has not adequately responded to any treatments since the accident. He reported getting pain coming out of the blue causing distress and anxiety. He experiences these pains on a daily basis at home interfering with his ability to sleep and participate in his daily functioning. I note that Dr Ross Mellick attributed his pain due to his psychological injury. However, l am not very convinced that this pain with this severity is the result of his depression.
I noted he did not find any organic basis for the pain but also mentioned that there were some inconsistencies. I personally speak Dari and Farsi and there was no difficulties in communication between us and I conducted my assessment without an interpreter.
My impression is that although there is no organic basis found for his ongoing pain in the neck and headaches as well as back pain, he had a clear history of severe head injury and very low GCS at the time of the incident and was hospitalised and was unconscious for a period of time. He has a clear history of a head injury and fall in which he fell from a very high level leading to trauma. Therefore, these are the reasons I would speculate that would be more pain related to his injury and that has to be treated adequately. His reporting pain has been interfering with his daily activities causing him frustration and distress.”
Dr Saboor considered that Mr Alizada’s psychological injury was a secondary psychological injury.
There are references in iCare’s medical reports to reports from Dr R Sundaraj and Dr J Yu which do not appear in the Commission’s file.

Consideration

Despite Mr Alizada’s submissions, the Medical Assessor did undertake a physical examination. He expressed his findings briefly, noting that they were consistent with his two previous examinations. All three examinations took place within less than two years.
It is clear that there were significant inconsistencies on examination which have been observed by other assessors. Paragraph 1.36 of the Guidelines provides:
“AMA5 (p 19) states: ‘Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements, such as one that checks the individual’s range of motion are good but imperfect indicators of people’s efforts. The assessor must use their entire range of clinical skill and judgment when assessing whether or not the measurements or test results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the assessor may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.’ This paragraph applies to inconsistent presentation only.”
A notable feature of Mr Alizada’s medical history is the lack of documented treatment. There has been minimal investigation of his physical injuries. Investigations recommended by Dr Fitzsimons were not undertaken and her recommendation of referral to a treating orthopaedic surgeon appears not to have been acted on. It appears that Mr Alizada attended the Brain Injury Clinic on only one occasion.

Cervical spine

The Medical Assessor noted that Mr Alizada’s cervical spine movements were performed over a restricted range with asymmetry of movement.
In the case of an accepted injury to the cervical spine, those findings were sufficient to assess Mr Alizada in DRE cervical category II.
The reliance by the Medical Assessor on the findings made by Dr O’Sullivan and Dr Breit was unnecessary in light of his own examination findings. Their basic assessments were the same as that made by Dr Giblin.
The difference is that Dr Giblin allowed 2% for the impact of the cervical spine injury on Mr Alizada’s activities of daily living. Dr Giblin did not explain that allowance and it is difficult to accept when he did not provide reasons and when the reported impact on those activities is also likely to be the result of Mr Alizada’s inability to use his right arm. Because of Mr Alizada’s unusual presentation on examination, it was open to the Medical Assessor not to add a component for the impact on activities of daily living.

Right shoulder

The Medical Assessor said that it was not possible to properly assess the range of movement of Mr Alizada’s right shoulder. That shows that the Medical Assessor did attempt the relevant part of the examination. He set out in detail the results of the examination on 17 November 2020 and said that the most recent examination was consistent.
Paragraph 2.2 of the Guidelines reads:
“Evaluation of anatomical impairment forms the basis for upper extremity impairment (UEI) assessment. The rating reflects the degree of impairment and its impact on the ability of the person to perform ADL. There can be clinical conditions where evaluation of impairment may be difficult. Such conditions are evaluated by their effect on function of the upper extremity, or, if all else fails, by analogy with other impairments that have similar effects on upper limb function.”
Dr Giblin made the same assessment because he noted marked cogwheel rigidity which prevented a range of motion assessment. He assessed Mr Alizada’s right shoulder on the basis of an ongoing minor soft tissue injury. Cogwheel rigidity is muscular rigidity with ratchet-like stop-start movement when performing passive movement of a joint. It can occur in Parkinson’s disease but otherwise implies active resistance by the patient evidencing
non-anatomical weakness.
No other practitioner was able to measure the range of motion of Mr Alizada’s shoulder. Dr Breit also posited 3% WPI as an appropriate assessment.
The inconsistency of presentation is highlighted by the surveillance photographs in the Reply which show Mr Alizada carrying x-rays in his right hand and flexing his elbow in the order of 40°.
Where there is such a marked consistency in the assessments and gross inconsistency on examination, it cannot be said that the Medical Assessor erred in the assessment of 3% WPI for Mr Alizada’s right shoulder.

Nervous system

The medical evidence in the file shows that Mr Alizada recovered well in the period following the injury. By the time he attended the Brain Injury Clinic in May 2016 his only limiting factor was pain. His cognitive function was better at the time of other assessments. That confirms the complexity of his case because the pattern for patients with brain injuries is either that they do not improve or they improve and plateau.
The Medical Assessor said Mr Alizada suffered a head injury with a brain contusion. The Table in the MAC reveals that he purported to make an assessment under Tables 13-5 and 13-6 of AMA 5 which assess Mental Status, Cognition and Highest Integrative Function. He did not set out his reasoning for making an assessment of 5% WPI.
The Medical Assessor accepted that Mr Alizada suffered anosmia or a complete loss of olfaction but did not explain the impact of that on his assessment. He accepted that it was a result of Mr Alizada’s brain injury and therefore it should have formed part of his assessment of the permanent impairment arising from the injury to Mr Alizada’s nervous system and explained in the MAC.
Paragraph 5.11, to which the Medical Assessor referred in the Table attached to the MAC provides:
“Olfaction and taste: The assessor should use AMA 5 Chapter 11, Section 11.4c (p 262) to assess olfaction and taste, for which a maximum of 5% WPI is allowable for total loss of either sense. The effect on activities of daily living should be considered.”
Anosmia is assessed under paragraph 11.4c of AMA 5 in the range of 1 – 5% WPI. Because Mr Alizada has complete anosmia, an allowance of 5% was appropriate.
The seriousness of the traumatic brain injury suffered warranted an assessment under Tables 13-5 and 13-6 which paragraph 5.4 of the Guidelines says can be combined with an assessment and under Table 13-8 in respect of emotional, mood and behavioural impairments. Paragraph 5.4 warns that the same impairment should not be double-rated.
Paragraph 5.9 of the Guidelines reads:
“In assessing disturbances of mental status and integrative functioning; and emotional or behavioural disturbances; disturbances in the level of consciousness and awareness; disturbances of sleep and arousal function; and disorders of communication (AMA5 sections 13.3a, 13.3c, 13.3d, 13.3e and 13.3f; pp 309–311 and 317–327), the assessor should make ratings based on clinical assessment and the results of neuropsychometric testing, where available.
For traumatic brain injury, there should be evidence of a severe impact to the head, or that the injury involved a high-energy impact.
Clinical assessment must include at least one of the following:
a)    significant medically verified abnormalities in the Glasgow Coma Scale score
b)    significant medically verified duration of post-traumatic amnesia
c)     significant intracranial pathology on CT scan or MRI.”
Dr Stewart accepted that it would be difficult to administer neuropsychological testing to someone of Mr Alizada’s cultural and educational background. The assessment can therefore be made without that testing.
Dr Fitzsimons made assessments under those Tables and the Medical Assessor did not refer to that aspect of her report.
The history obtained by the Medical Assessor and the significant difficulties he experienced in undertaking his assessment warranted application of Table 13-8. On the evidence, the most significant impact of the brain injury suffered by Mr Alizada is behavioural and it is not adequately assessed under Tables 13-5 and 13-6.
Dr Fitzsimons made a provisional assessment in Class 2 under Tables 13-5 and 13-6 but said that she required further information. When the components of Table 13-5 are considered, an assessment in Class 2 is inappropriate. Mr Alizada is able to travel alone within Sydney using public transport and to find his way to appointments. His psychologist’s report indicates that he has been overseas. He is able to function in a share household and to take care of his personal needs.
Under Table 13-5, the history taken by the Medical Assessor warrants a score of 0.5 for Memory, the primary category. The history suggests that Mr Alizada is fully oriented. There is no evidence that he is unable to manage his finances so that his Judgement and problem solving are not impaired. There is some impact in terms of Community affairs and Home and hobbies because his recreation is only to go to the local park. His Personal care is not impacted. A CDR score of 0.5 and assessment in class 1 is appropriate.
Table 13-6 provides that the impairment resulting from assessment in Class 1 is in the range of 1-14%. The impairment ascribed is a matter of clinical judgement. Based on the history and the inconsistencies observed on examination, an assessment of 5% WPI is appropriate.
With respect to Table 13-8, Dr Fitzsimons assessment of 8% WPI reflects the impairment Mr Alizada suffers.
Combining those figures results in an assessment of 13%. When that is combined with 5% for anosmia, the WPI in respect of Mr Alizada’s nervous system is 17%.
Mr Alizada’s combined WPI is 23%.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 May 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

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 Dr Ross Mellick 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 WorkCover Guides	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)
Cervical spine	14.12.15	Chapter 4, pages 24-30 Para 4.17-4.21	Chapter 15 pages 373- 431 Table 15-5	5%	0	5%
Right upper extremity (shoulder)	14.12.15	Chapter 2, pages 1-12	Chapter 16 Pages 443-518	3%	0	3%
Nervous system - anosmia	14.12.15	Chapter 5, para 5.11	Chapter 11 section 11.4c	5%	0	5%
Nervous system	14.12.15	Chapter 5, para 5.4, 5.9	Chapter 13, pages 305-355, Tables 13-5, 13-6, 13-8	13%	0	13%
Total % WPI (the Combined Table values of all sub-totals)					23%

Catherine McDonald
Member
Dr Michael Davies

Medical Assessor

Dr J Brian Stephenson

Medical Assessor

31 August 2021