Centralized Services Pty Ltd v Akbari

DETERMINATION OF APPEAL PANEL
CITATION:	Centralized Services Pty Ltd v Akbari [2024] NSWPICMP 838
APPELLANT:	Centralized Services Pty Ltd
RESPONDENT:	Ehsan Akbari
APPEAL PANEL
MEMBER:	Cameron Burge
MEDICAL ASSESSOR:	Ash Takyar
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	9 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; concurrent primary and secondary injuries; failure by Medical Assessor to specifically address secondary psychological injury constitutes demonstrable error requiring re-examination by Appeal Panel member; upon re-examination, respondent worker assessed as having 22% whole person impairment; Held – original Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 26 August 2024, Centralized Services Pty Ltd (the appellant) lodged an appeal lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Lam-Po-Tang, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 July 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The respondent suffered a primary psychological injury in the course of his employment with the appellant, with a deemed date of injury of 2 October 2018. The matter was referred to the Medical Assessor with the following notation:
“The parties agree that the applicant has, a result of his injury on 2 October 2018, suffered both a primary and a secondary psychological injury (section 65A). The parties acknowledge that the assessment of the degree of permanent impairment, if any, as a result of the primary psychological injury and the degree of permanent impairment, if any as a result of the secondary psychological injury is a matter for the Medical Assessor.”
The Medical Assessor examined the respondent on 15 July 2024 and issued a MAC on
30 July 2024. He assessed the respondent as suffering a 22% whole person impairment as a result of his primary psychological injury. The Medical Assessor made no mention in the MAC of the secondary psychological injury which the parties agreed the respondent had also suffered.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the Medical Assessor had erred in failing to distinguish in the MAC between any impairment suffered as a result of the agreed claimable primary psychological injury and the agreed but non-claimable secondary psychological injury. It was necessary to re-examine the respondent to determine the impairment, if any, which arose from the secondary psychological condition together with that arising from the primary psychological condition.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Further medical examination

Medical Assessor Ash Takyar of the Appeal Panel conducted an examination of the worker on 19 November 2024 and reported to the Appeal Panel.

Medical Assessment Certificate

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, the appellant submits that the Medical Assessor made his assessment on the basis of incorrect criteria in failing to address, distinguish and exclude the secondary psychological condition and any impairment resulting from it. The appellant submitted such failure also constituted a demonstrable error on the part of the Medical Assessor.
In reply, the respondent submits that there was no error because there was no requirement in the Medical Assessor to specifically address the secondary psychological injury if it did not lead to any impairment consequent upon it. The respondent submitted the appellant’s submissions were predicated on the erroneous assumption there must have been some impairment arising from the secondary psychological injury.

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 Appeal Panel considers the Medical Assessor erred in failing to address the presence of the secondary psychological injury. Failure to do so, even in circumstance where no impairment arose from it, constitutes a failure to provide sufficient reasons and is therefore a demonstrable error. Contrary to the assumptions within the respondent’s submissions, the error in this matter is not a failure to make a deduction, but rather to consider the effects, if any, of the accepted secondary psychological condition at all.
As noted, Medical Assessor Ash Takyar conducted a re-examination of the respondent, the results of which are set out below;
HISTORY RELATING TO THE INJURY
·    Brief history of the incident/onset of symptoms and subsequent related events, including treatment:
This history is informed by the reading of all the documentation including the statement documents and all of the treatment records and medicolegal reports. This is correlated with the clinical history and Mr Akbari’s mental state examination on assessment, which informs the Panel’s findings.
Mr Akbari was examined on 19 November 2024 in the PIC’s (the commission) rooms in Sydney. A Farsi interpreter organised by the commission was present, and at the outset, Mr Akbari was encouraged to utilise their services as he felt necessary; in some sections, he was guided to speak via them where a lack of understanding arose of the enquiry or of what he was trying to express. In particular this section and the claimant’s history of functioning was aided by this clinical process. It is also noted that much of the history he provided had to be checked at least twice, progressively through the re-examination – sometimes three or four times, to confirm accuracy where it was not clear that he had understood the question, or if he had lost track of it, or when he answered with an unclear answer. Additionally, due to the overlap between Farsi and Hindi/Panjabi, whole phrases or terms at times were understood directly.
Mr Akbari said he began working at Centralized Services Pty Ltd in September 2018, on a full time basis in Car Wash Attendant duties – in discussing his functioning and life prior to the work injury, Mr Akbari mentioned in passing that before the injury of 2 October 2018 he had worked six days a week at eight hours a day.
Mr Akbari’s injuries were sustained on 2 October 2018 as a result of a motor vehicle accident which arose after he and a colleague were sent from one site to another location and he reported, ‘I was passenger’. Mr Akbari recounted, ‘We go with two cars, and back we only have one car – he said, ‘We have one car only’, so I was the passenger’. On checking this history, he said that he and his colleague had driven in two separate cars to a location where the cars were returned and from here as only one car was available, they were travelling in it together – with Mr Akbari in the front passenger seat – when the accident transpired. He confirmed that he had been wearing his seatbelt at the time of the collision (‘of course, all the times’) and that the vehicle had been stationary when it took place: ‘We were stopped, trying to go to parking, waiting to go parking, because other lines, cars coming’.
Mr Akbari reported that they were awaiting an opportunity to turn right into the car wash ‘and the car goes bang, hits my side’, pushing their vehicle onto the other side of the road by ‘a few metres... was a very small car, was a Suzuki Vitara – there was a gap... the car was very small and he hit my side, I got pushed too much, too much pressure. My head one time from the front and the second time my head is back’. Mr Akbari was describing the forward motion from the collision and the rebound impact of his head. He continued, ‘The police say your blood is here, on the top of the backseat... behind’. I sought clarification as to understand this reference to the police report. But his additional history was not particularly clear – it was understood that he was describing blood from his injuries, found on the roof of the seat behind him. I note from review of the MAC’s reference to the ambulance records, which state that blood was present on the pillar of the car.
An ambulance arrived at the scene, and they spoke to Mr Akbari. He recalled, ‘and he asked, ‘Is your neck broken’, and I said, ‘no’’. He described turning down transport to hospital and said he went home instead, seeing his general practitioner, Dr Jafari – who speaks Farsi – the following day.
Treatment for the physical injuries was discussed. Mr Akbari recalled seeing neurosurgeon, Dr Spittaler ‘after... just my GP recommended for a few months, after the accident’, stating that he was told by him that he had reviewed the brain imaging and that there was no injury or physical problem and that he needed to see a psychologist. Mr Akbari said he had physiotherapy ‘after that, after see the psychologist and neurologist’. He felt he had consulted neurologist, Dr Krishnamurthy after seeing the pain psychologist, Dr Christie Mason. Mr Akbari reported that he was administered Botox injections to the head and neck, to treat his pain. Mr Akbari noted that at another point, he saw another neurologist, Dr Tom Wellings. Mr Akbari said the Dr Wellings told him he had post-traumatic stress disorder, and that he required treatment for it.
Although no other contributing factors outside of the accident-related injuries and their impacts was evident or described, further history was obtained from Mr Akbari, who was not aware of anything unrelated to the accident that impacts his day-to-day psychiatric symptoms or mental state.
·    Present treatment:
Mr Akbari currently sees his general practitioner, Dr Touraj Jafari ‘every one month, four weeks’ at Toronto Medical Centre, reporting that he has been consulting him for ‘six years, almost’. Dr Jafari prescribes medication for pain – Palexia 100mg, which he reported taking ‘not all the time, just sometimes, maybe one a week, now I'm getting less’, taking it once per day when he uses it, finding that it helps. He has been prescribed this for ‘five, six years’.
Dr Jafari referred him to a Farsi-speaking pain psychologist, Dr Ali Asghari. When he was asked when this began, he replied, ‘I think… not sure, middle of 2023, two years now... maybe beginning of 2023’. Sessions occur around ‘Maybe month, every two months’, which he feels has been beneficial, adding that Dr Asghari also hails from Tehran and thus has understanding of his background. Mr Akbari reported that those unfamiliar with Iran often did not understand him and prejudged him, in his view, making assumptions about war and conflict in the country and region, which he said is not something he faces with his current psychologist. Mr Akbari was asked if therapy is limited to pain or if it also includes work on his mood and anxiety – he responded, ‘focuses on the anxiety and depression, he believe I have less pain, he try to be, ‘forget the pain’’.
Mr Akbari confirmed that previously he had consulted pain psychologist, Dr Christie Mason ‘for I think two, three years’. History was obtained to understand the interventions or therapeutic modalities used by her. ‘To be honest, I got the first report from Dr Christie Mason, she said the PTSD from the accident... but after a visit [to] Dr Kendurkar [psychiatrist, see below]… he said there was multiple attack in Iran, but that was when I was the kid and after getting confusing and then she advised you see a Farsi psychology’. Mr Akbari said he consulted her ‘sometimes every four weeks, sometimes six weeks’. The focus of treatment was revisited: ‘She focus on my mental, she advised me using Valium to make me calm down for panic attacks... she say go to art, go to do this... she advised to my GP to give me Valium’. Eventually, he described the use of relaxation techniques and reported that Dr Mason had encouraged him to “go to the beach, swimming’. It was unclear if cognitive behavioural therapeutic (CBT) strategies were used, but Mr Akbari said things became confusing and that he took up the recommendation to see a psychologist who could treat him in Farsi – he said this confusion arose ‘before two years actually, it was hard to find the psychologist [a Farsi-speaking one, which the interpreter also commented on being challenging in Sydney]’,
For some time, he was treated by psychiatrist, Dr Arvind Kendurkar – ‘I saw him 2020, I saw him two times... I saw him at the pain management... Dr Christie Mason recommended’. Mr Akbari felt Dr Kendurkar worked at the same clinic as Dr Mason.
Dr Jafari continued to prescribe Mr Akbari his medication in that time that included diazepam and sleep inductive medications and other unspecified medications for his mental health which he said were not well-tolerated. He was unable to name or described these medications any further.
These days, Mr Akbari sees psychiatrist, Dr Stuart Saker ‘every three months’, having been under his care for ‘I think more than two years’, remarking that he feels Dr Saker is more familiar with his background, identifying as Kurdish. He said this makes him feel understood. Mr Akbari said Dr Saker had commenced him on CBD oil (he takes 10ml ‘every night’) ‘maybe one year, yeah, one year’ ago. He was asked what effect it has on him: ‘It makes me calm down, go to sleep’ – stating that it is not prescribed for pain but rather reporting that that it is prescribed ‘[to] make me get ready to go to sleep, calm down and stress, and negative things in my brain, before sleeping – anxiety and... they don't have any side effect’. Additionally, he is also prescribed the benzodiazepine, diazepam 5mg as needed: ‘this is when I get panic attacks or more stressed or high anxiety, if I can't control it. Three times, it depends... in a week’, referring to his typical usage.
·    Present symptoms:
This history was obtained as an average over the last two months.
Sleep: Pre-injury, Mr Akbari slept ‘eight hours, normally’ solidly, without any initial insomnia which he attributed to his work being physically demanding. When he was asked about his sleep now (in the last two months), he replied, ‘I sleep more, hard work... so I sleep more’ – confirming on discussion that he was adding to his description of his pre-injury sleep.
On returning Mr Akbari to how much actual sleep he obtains these days, he said it has degraded since the accident. ‘These days, maybe two, three hours I sleep, because I get nightmares. I wake up, and then I cannot go to bed for hours, when I wake up, I just sit up for hours’. Middle insomnia was enquired about, and he replied, ‘Maybe early morning, I sleep. Maybe another one or two hours’. Further detail was sought and he stated, ‘I have to use the medication, maybe one [hour to fall asleep], the cannabis works’. Prior to using CBD oil, it took him longer to fall asleep (‘two, three hours, very hard’), attributed to ‘too much anxiety, and stress’, describing rumination.
Of note, Mr Akbari denied that pain caused insomnia prior to the CBD oil, reporting, ‘No, it’s not pain, because in the night, I don't have any. Pain comes when I get stressed and wake up, with nightmares’ – attributing problems sleeping to thinking instead. He wakes through the night. The frequency, he said ‘depends, sometimes, if I have high stress, a few times’ (in the last two months, typically per night ‘four, five times’), attributed to the stress of his legal case and the current situation he faces. Each occasion of middle insomnia lasts ‘sometimes three hours, sometimes one hour, depends’. He said on average it takes two hours to return to sleep.
Mr Akbari was then asked if it was correct that he might spend somewhere around 15 hours a night in bed. Mr Akbari and the interpreter conversed for some time, with the interpreter appearing to explain the question to him a few times as Mr Akbari replied with what was described as unrelated and obliquely related information at times. Ultimately, he reported that he takes a sleeping tablet at 10pm and falls asleep around 11pm for two or three hours until he wakes for an hour or two, returning to sleep at 4 or 5am, getting out of bed at 8am. Although on obtaining more details he said he wakes at a few other points through the night as well, for briefer periods.
Mr Akbari said he had difficulty relating this history due to problems with his concentration; later in the examination he reported sleeping a further one to two hours on the days he returns to bed.
Concentration: This was observed to be markedly poor during the two hour and 24 minute re-examination, lapsing frequently, sometimes mid-answer. He often replied to questions with non-relevant or obliquely relevant history due to concentration dropouts.
On asking how it compares to pre-injury, he replied, ‘I cannot concentrate. I cannot manage my day, basically, because of this concentration’. Impacts on Mr Akbari’s daily life were discussed and he began speaking of anxiety instead, so was refocused. Then he stated, ‘Because when this anxiety get over, it disturbs the concentration’. He stated that he sometimes wants to eat something but cannot decide if he wants to go out or eat at home, finding it ‘hard to make decisions’. If he watches a Farsi show in which he has interest, the duration of continuous focus before lapsing was reported to be ‘Maybe a few minutes, maybe’, around five minutes of understanding the plot. In exploring if he remains watching following this, Mr Akbari replied, ‘No, I lost it and I try again, try again and finally I leave it’, due to frustration.
Mr Akbari recalled being able to watch Netflix shows pre-injury with his then-girlfriend, remarking on how he cared about the details back then – stating that he observed detail well. While he used to read pre-accident, this is now ‘very less’ due to his concentration being ‘less... now’. Mr Akbari appeared to lose focus due to the assessment many times, so he was asked about this further, reporting that he reads for two or three minutes but with re-reading within this time (‘always review, all the time, I get mistake’).
Short-term memory: Mr Akbari reported having problems frequently in this regard, stating of the injury, ‘That affects my short-term memory, before was a lot”, citing examples: “it affects my memory, because I leave the gas on, the water tap and sometimes my keys, my everything, my sunglasses – lose’, feeling frustrated and angry on losing or misplacing items.
Mood: Mr Akbari reported feeling low in mood. The pervasiveness of his low mood was explored, and he responded, ‘Now is very worst, at the moment’. Moving back to how ongoing it is, he said he feels depressed ‘all the time’, rated at 2/10 these days (where 1-2 reflect severe depression, 3-4 moderate depression, 5-6 mild depression, 7-8 euthymic mood, and 9-10 elation). Mr Akbari reported crying more since the accident – ‘a lot, at the moment, in the evening time’ one to three times a week, particularly if he talks to his mother as he feels sad (as his intended plans to visit Iran did not transpire due to the subject injuries, and he last saw her 15 years ago). Further to the problems in his sleep, concentration and memory, he reported low energy, rated at 15-17% of his pre-injury full baseline. Despite this he cannot nap (‘I close my eyes but I couldn't’).
Enjoyment is ‘less, maybe 8, 7[%] because before heaps of drive – I was very active, very social. Never been at home since I was a kid, was outside, always outside... I just come home for sleep maybe, my mum always say’.
Amotivation was apparent in his history (‘Now motivation very bad, cos I lost my hope’, adding when asked if he has any hope of improvement, ‘now, not at the moment’). Themes of helplessness and worthlessness were peppered through the history and when he was asked directly about these feelings, he replied, ‘Yeah, of course. Because I was 38, it was golden time for me. I am 44 now’.
Appetite has declined from three meals a day to one ‘since four years’, stating that meal enjoyment is low due to anxious overthinking. Portions are of ‘a small size. For example, today I just I have just one coffee, and this one thing [pointing to his water bottle], I just don't have appetite’. He described weight loss and body compositional change since the accident: ‘I get skinnier, my body was fit, now I lost’, detailing weight loss of 10-15kg.
Mr Akbari was asked about any self-harm or suicidal ideation, intent or plans: ‘No, no, no... to be honest, sometimes I am thinking of the death’. Dr Saker is aware of this; such feelings occur ‘when things get very hard’, episodically for around two hours, three or four times a week. He was overheard using the word, ‘khudkhushie’ (‘suicide’ in Hindi/Urdu/Panjabi) – the interpreter was asked what his referred to in Farsi and they replied stating that he was saying he does not experience ‘khudkhushie’, which
Mr Akbari then confirmed, then explaining that he does not want to suicide but if he were to die he would accept it, describing passive suicidal ideation, not active intent, plans or ideation; this would not have been apparent but for the word being overheard, despite a relatively extensive discussion about this in English prior to this.
Anxiety: When Mr Akbari was asked if this is experienced, and if it occurs intermittently, he replied, ‘No, it's all the time since the accident, just there with me’. He was asked to rate the severity on a scale (where 1-3 reflect low anxiety, 4-6 moderate anxiety, 7-8 high anxiety, and 9-10 severe anxiety), and he replied, ‘I got high, but depends, sometimes goes very high’, later rating it at 7/10 these days. Along with deficits in energy, sleep and focus, he described irritability: ‘I get very fast reaction, unfortunately – I get very fast reaction to get angry, before I was never like this. Before [when working in a] factory, some people would be like go back to your country, I never did like this’, stating that he could tolerate such racially biased or inappropriate remarks without being irritated or agitated but that he now finds himself in such states at low provocation (‘to be honest, getting very fast reaction’). This is anxiety-driven, not by pain. Later, when pain was discussed at length in his history, it was congruent with the report.: ‘Anxiety. Pain is less now. Pain when I lift something, maybe I get pain, but anxiety and stress all the time with me, since I had the accident and getting worse and worse’.
Much later in the examination, additional detail was obtained around his experience of pain and its impacts, once the basic psychiatric symptom history had been obtained. Until this point, it had been understood from him that pain was occurring at a certain pervasiveness and severity, yet pain was repeatedly referred to in remarks and in his history as less significant or not particularly impairing – and this was a little mysterious as there was repeated evidence of a difference here.
A careful history revealed that while he experiences anxiety-related muscle tension, Mr Akbari was not distinguishing between that discomfort and pain from his physical injuries. This is detailed further on in this section.
In terms of the original history Mr Akbari provided around muscle tension he reported experiencing anxious tension in his head and neck, though then went on to speak about the sensation of pins-and-needles emanating from his chest to his left hand and fingers during panic attacks. Mr Akbari then referred to his whole body being affected, which was checked – he said he was not referring to whole-body pins-and-needles but to feeling physically out of control due to restlessness. This occurs with palpitations and elevated heart rate ‘and get whole my body’, demonstrating a restless movement in his legs – until this point it was not evidently clear that he was describing restlessness and on history he said it feels horrible when this occurs, referring to feeling agitated and having restless energy which is distressing for him. He said he finds himself unable to control restlessness in his legs and body – which was mildly present during the examination. Additional history and re-checking this with him reaffirmed the above understanding that restlessness emanating from anxiety was the issue spoken of.
A history was obtained of re-experiencing phenomena as Mr Akbari referred to having nightmares at previous points during the assessment. He was asked about the content of these dreams: ‘Just sometimes of the close, dead experience, something happened to me and I die and I wake up and that’s... I have a death sort of feeling like I am dying, and it repeat again’.
More detail was sought; Mr Akbari said these re-experiencing phenomena are of ‘remembering the accident, something like that, I got flashback to the accident’. Exploring what he meant by this and what they are of, he stated, ‘Sometimes I get dreams of the driver, because he came to me and said, ‘Sorry, I was on the phone’, I still remember his face, and the people around me, ambulance, police and the people around – ‘Are you alright?’ When the accident happened, I was half an hour in the dead time, everything was black’. It took some time to determine that he was referring to both nightmares reliving the actual accident events and flashbacks. The nightmares currently occur “maybe two times” a week. He reported having ‘flashback, I remember the accident’ – while at first, he seemed to refer to thoughts and memories, not intrusive flashbacks, he later explained, ‘I see it, I see the face of the driver. I see ambulance driver, police ask me, show me the blood on the behind there’ (the blood behind his seat from his own injuries, he explained). Flashbacks occur of ‘That moment of the accident... and I got a darkness, that's a flashback [of] when my head smashed the window screen, I go darkness, I don't know what's happening at that time, I think I'm dead’.
An exaggerated startle response was noted when he reported, ‘I remember the noise, I get sensitive to the noise – any noise, if someone bang the door, I get sensitive’, describing jumpiness in response to loud or sudden noises and explaining that he is hyperresponsive to them: ‘With normal person, maybe 5, 10% [the degree of reaction to such noises] but for me like 100%’, reporting that he is more reactive. Mr Akbari described hypervigilance later, reporting, ‘When I go out, I just always watching behind me, especially with the wind, in front of the house, the tree – falling. Checking a lot’. Along with negative cognitive and emotional changes of fear, loss of enjoyment and difficultly experiencing positive emotions, he seemed to describe avoidance of busy places (‘I just try to, I don't go to the social place. When I go shopping, I try to go at the night, everything quiet’), related to being anxious.
Exploring if any trauma-avoidance is present, he reported anxiety when he is a car passenger, and refocusing him once more he observed, ‘I try not to go, the same place, the same’, reporting that he avoids the accident scene. Mr Akbari said he avoids busy locations ‘cos I scared it will happen to me again, so I fear going to the shopping centres’. Furthermore, he reported avoiding exposure to depictions of car crashes on the television in any way, choosing to leave the area. He added, ‘When I got something like storm coming, weather changing, I get fear, I don't go out’.
A history was then obtained of pain to assess its contribution towards his psychiatric symptoms.
Pain: Mr Akbari said he experiences pain these days ‘on and off’ – asked how much of a typical week in the last two months he has experienced pain (where 100% is pervasive and 0% is nil). He provided an initial answer which was re-verified twice, but on putting to him that there was an apparent distinction (between his remarks and qualitative description of the pain not being as much of an issue to him as his anxiety and trauma symptoms, which was also congruent with his report that anxiety and trauma symptoms drive irritability and restlessness, not pain, and with the history of his functioning) he then provided further information that made it clear that in speaking of pain, he was referring predominantly to the discomfort of muscle tension driven by anxiety. The process of this history follows.
On initially asking how frequently pain occurs (or what percentage of his typical week in the last two months it has been there) and how severe it is when present, Mr Akbari replied, ‘25, 20 [%]... not most of the time’, rating the severity (out of 10, where 0 is nil pain and 10 the maximal pain) at ‘maybe 7 [/10], but not happen a lot with the medication, because I control the pain with the medication but I have no control over the anxiety and stress’. However, he then referred to pain in a more diminutive manner in stating, ‘To be honest, not too much’. This led to further history being obtained to understand the impacts of pain on his anxiety, mood and overall mental state and current psychiatric symptoms: ‘Yeah, just, when I got, my anxiety and stress affected my pain and then pain affects my anxiety and stress, it gets worse and worse’.
At this point, Mr Akbari was asked where the pain occurs and he pointed with both hands to his head and neck, in the same way he had described anxious muscle tension. As the divergence between his description of pain and its impacts and his rating of it increased as this was explored, he was asked to speak to the interpreter about this to ensure nothing was being lost or missed when he spoke in English intermittently. It was then ascertained that the same word is used to describe pain in Farsi and Hindi (‘dard’) and when he was asked about this, Mr Akbari said he was describing the muscle tension in his neck and head, not ‘dard’ or pain. This was re-affirmed several times on asking, and on further exploration, noting that he referred at various points to pain as infrequent – out of keeping with the rating and pervasiveness described above. It was established that anxious muscle tension has been present for 20-25% of his typical waking week in the last two months, at a severity of 7/10 when it occurs – but that pain or ‘dard’ occurs for 10% of his waking week at 4/10. He was then asked how much this ‘dard’ or pain affects his mental state, relative to his depression and anxiety and psychiatric symptoms – ‘less, most of the time, to be honest, my anxiety and stress affects the pain. My neurologist said that to me, all the time don't have the stress, ‘you have PTSD and that affects the pain. You should have no stress’ ‘at all the time’. My neurologist said that to me, my psychologist said, Dr Asghari, everyone says’.
·    Details of any previous or subsequent accidents, injuries or conditions:
Medical History:
Mr Akbari denied having any surgical, chronic medical or other general medical conditions, reporting that he was fit and healthy before the injury and he denied any other conditions currently in terms of medical history.
Family Psychiatric History:
Mr Akbari denied any family history of mental illness, such as anxiety or depression and reported, ‘No, my father, mother still working in the farm’.
Prior Psychiatric History:
From the material and his history, it was understood at the time of starting the pre-injury role he had no anxiety or depressive symptoms, congruent with the history in the MAC of Dr Lam-Po-Tang. Mr Akbari said that had planned to go to Iran to visit his family as he had not done so since leaving (in 2010), and he said he has not been able to do this due to the subject injury, which he said makes him feel sad. He was asked if he had any active lowering of mood or anxiety prior to this injury, or any other psychiatric symptoms – he responded in terms of describing a higher, fuller level of functioning, unimpaired by psychiatric illness at the time – ‘No, full time job and play soccer. Do full time job. I have girlfriend. I work full time job, even Saturday’, explaining that he worked six days a week pre-injury (eight hours a day) and although he estimated that he worked 40 hours a week it was understood that he was working 48, based on these hours. Additionally, he said he was a professional soccer player for ‘St Jose, for the church’ (in Newcastle), for a local league, training two to three days a week at 2-3 hours per session, with matches ‘every three months’ – although seemingly infrequent, on enquiring about this at two other points in the history, he confirmed this.
Mr Akbari was then asked to consider his mental state in the two months prior to the work motor accident. He reported having no depression, anxiety or other psychiatric illness, nor was he seeing a psychiatrist, psychologist or prescribed or taking any psychiatric medication. He stated then, ‘I just wanna tell you, before accident I used to work one year, in the tomato factory, this is a very big factory. Before you go to factory, you go for medical exam for mental health and physical. I passed the medical for mental health, physical and after that I go to the factory. One year I worked with no accident, no anything’.
A broader psychiatric history was obtained. He denied any previous psychiatric illness (‘No, I never have’) including of having any anxiety, depression, panic attacks, nightmares or flashbacks. He was asked about the process of leaving Iran for Australia and his time as a refugee, and Mr Akbari said that in the detention centre, he once had sleep tablets because of dental pain that kept him awake as there was no dentist on site, adding that he had to get the tooth extracted. ‘I only used [it] one or two times, that's it’. He was asked if he experienced any depression or anxiety in leaving Iran and coming to Australia – ‘No, cos when you come to Christmas Island, they check everything. I play soccer, I do everything. I use yoga, meditation’, which he said he learned there. He said as a result, he coped. He also reported that he had attended English classes, reported feeling fortunate as he was able to secure permanent residence after three months there. Mr Akbari added, ‘I got heaps of motivation, that's why I go to the gym, I had six pack, everything very fit’– this history appeared reasonable, noting that it is unlikely that he would have been able to achieve a level of fitness sufficient to obtain a six pack had he been experiencing any significant, impairing depression or anxiety.
Subsequent Accidents, Injuries or Conditions:
Mr Akbari denied any other accidents, injuries or conditions subsequent to the work injury or otherwise that are currently affecting his mental state.
·    General health:
Cigarettes: Mr Akbari is a non-smoker.
Alcohol: Pre-accident, he did not drink on weekdays, only consuming alcohol ‘just weekend, with my girlfriend, she was drinking and…’ – on further history he said typically he would have ‘two shots’, then reporting that he had ‘two, three’ drinks pre-accident, per week. His consumption has reduced since the accident: ‘Now less, maybe every two, three months. Now less and less. Before, maybe four, five, bottle of beer, and now less, maybe one glass of wine with dinner sometimes, because I don't go to any nightclub or pub or party or something’. As the estimates differed, he confirmed that he consumed four to five drinks a week pre-accident (on weekends) typically and that he now drinks every two or three months, consuming two beers or one glass of wine at a time. Mr Akbari attributed the decline to ‘socialising less. I used to be party a lot... very, very social. I had too much energy’.
He denied any use of substances then or now, denied any forensic history and does not gamble.
·    Work history including previous work history if relevant:
Mr Akbari said he finished Year 12 (referring to it as a ‘diploma’, it was understood that this was common parlance in referring to Year 12 in Iran) around the age of 18. He said he then had to complete two years of compulsory military service and then completed TAFE-equivalent studies – an ‘international gas certificate’ in ‘gas welding’ which took him ‘I think, one year’. He said he subsequently worked in that area for two or three years in factories before he moved into what he described as the sports industry.
Initially, Mr Akbari described working in a training role – seemingly describing personal training work but after a broader discussion over several minutes, it was apparent that this was not the case. He spoke of his own experience in swimming, stating that aged 16 he had completed lifeguard training and reporting that following the factory work he had worked as a lifeguard for two or three years before becoming a swimming teacher, which he did for another two or three years.
‘After that, go work in my father's farm... maybe one year’, helping there. He said he then came to Australia – once in the community following the detention centre, he first worked in gardening, having settled in Newcastle. He did this for two or three years and said he then worked as a handyman and did informal painting work for ‘two, three years and I used to study my TAFE at night, the gas welding’. Mr Akbari reported completing TAFE studies over six months. He then worked at a construction site as a labourer from 2017, followed by a year of factory work and then returned to the construction company as a labourer for ‘a few months, six months, seven months. After that, my job is quiet. We finished the whole building, and after that I go to that job’, referring to his pre-injury employment.
·    Social activities/activities of daily living:
Self Care and Personal Hygiene:
A history was obtained of his routine on a typical day over the last two months. Asked what time he wakes, he replied, ‘At the moment, I just get 11, 12’. To get out of bed will ‘take half an hour... because I just sit in my bad dream, I wake up in stress – half in dream and half in the life, stress’ reporting that he wakes anxious to such a degree that he does not check his phone or feel able to do anything and it takes him half an hour to get out of bed. On rising, he goes to the toilet, then showers and will ‘come back, try to have a coffee’ and said he sits in bed to relax for half an hour. He will then ‘try to do something in my house, if I need something to do, make myself busy’, such as the chores ‘for maybe five minutes... to be honest, I didn't wash for three months’, then reporting that he might spend ten minutes on this, apparently describing not washing/cleaning the home (rather than referring to showering, which he described as more frequent). Mr Akbari said he checks his emails or messages, sometimes talks to a friend on the phone and might return to bed for two or three hours, attempting to sleep but cannot as he feels anxious about having a nightmare – ‘sometimes my body needs sleep, but I couldn't’ due to anxiety. If he slumbers for ten minutes, he wakes “with the same situation and I go shower again, if I don't get shower then I get... especially the cold shower – after that, when I finish, that relaxes me, bring it [anxiety] down. But it come back again, come back again”. Asked what he does next he replied, ‘After that, I try to eat something’. History in relation to cooking is noted in the next paragraph. He said he tries to lie in bed for two or three hours and then takes his medication and goes to bed at 10 or 11pm.
His appetite has declined from three meals a day to one, which has been the case ‘since four years’. He attributed low enjoyment of food to anxious overthinking and said his portions are of ‘a small size. For example today I just I have just one coffee, and this one thing [pointing to his water bottle], I just don't have appetite’. He described weight loss and body compositional change since the accident: ‘I get skinnier, my body was fit, now I lost’ having lost 10-15kg. Mr Akbari showered once a day prior to the injury and now showers twice a day typically, reporting that the increase has occurred because showering is helpful to centre himself and reduce his anxiety. ‘If I don't do that, I can't even make coffee for myself, I can't do anything. When I get cold shower, my brain get dopamine’ (asked if he had been told this by one of his treating practitioners he reported that he had found this out himself).
Cooking: Earlier, he referred to making food – on asking if he cooks, he said he does not, explaining that he prepares two-minute noodles, eggs or tuna, clarifying that he used to cook meals for 10-15 guests he would have over pre-injury, but no longer can. Mr Akbari said if he cannot prepare a simple meal, he goes down the street to the Turkish kebab shop. Pre-accident, he lived alone (he had a partner who lived with her mother), so he cooked dinner every day. On asking how long it has been since he cooked in his previous manner he reported not cooking meals of that complexity since the accident due to his mental state (citing poor focus, easily becoming irritable and being less hungry, along with low mood). Grocery shopping: he bought groceries two or three times a week without any anxiety pre-accident, now doing so weekly when it is less busy – at night – due to his anxiety; midway through this he began talking of his current problems and on redirecting him he apologised, stating that his focus had dropped out. Chores: ‘Used to be, look after too much everything, now I don't do at the moment, less now’, ascribed to amotivation (‘I don't have no motivation, [as well as] stress and anxiety’.
Social and Recreational Activities:
Mr Akbari said he speaks to friends on the phone ‘every day’ for ‘maybe 15 minutes, maybe 20 minutes’. Pre-accident he saw friends in person “a lot... like most of the time” – after enquiring three times, he eventually reported seeing them two or three times a week and said he has not been able to regularly since the accident. He noted that while friends visited from Sydney last week, he tends to see friends in person every two or three months. His social circle has reduced since the accident when he had ‘21 [friends], maybe now is one only. Cos soccer player, people work with them’.
Hobbies in the past had included playing soccer (training two or three times a week for around two or three hours per session, with matches every three months). He swam ‘a lot’ – four times a week after work at Bar Beach – ‘I spend [spent, in the past] most of the time there, two, three hours’, understood to be per day on the days that he swam, after work, also describing body surfing and he reported being outside all the time.
Mr Akbari said he used to go on weekends to nightclubs, pubs and parties most weekends, now not doing so and said he has not swum this year, but did last year ‘a few times, not swimming, but put [himself] in the water’, in a pool and sometimes briefly in the sea. He no longer plays or trains in soccer. If he was invited by his one remaining friend to a party in Newcastle he would not go alone due to his mental state, and would likely struggle to attend with a support person, particularly due to his anxiety.
Travel:
Mr Akbari lives in Newcastle. He said he travels around the area mostly by walking down the street, as he lives in the city/Civic. He said he can drive but does not much, ‘local only’, not to new places. He denied using the bus or tram, stating that his anxiety precludes him from doing this.
Social Functioning:
Mr Akbari said he was with his girlfriend for 7-8 months, and their relationship broke down ‘a few months after the injury’. She had moved to Sydney and would ask him to visit but due to the injury-related fear and anxiety around motor vehicle transport he reported that he could not and she did not understand – Mr Akbari said he tried to visit her but was unable to, and he said she accused him of not loving her when he was unable to travel there. He described losing touch with most friends, with a reduction in social circle as described above and he reported that in terms of his family he would speak to his mother and father four times a week, which has reduced since the injury – ‘less, because I get upset after that, because she [his mother] say, ‘why don't you come to visit’, and my mum is getting old’.

Concentration, Persistence and Pace:
Mr Akbari’s concentration was observed to be markedly poor during the two hour and 24 minute examination, lapsing frequently, sometimes mid-answer. He often replied to questions with non-relevant or obliquely relevant history due to concentration dropouts. On asking how it compares to pre-injury, he replied, ‘I cannot concentrate. I cannot manage my day, basically, because of this concentration’. Impacts on daily life were discussed and he began speaking of anxiety instead, so was refocused, then stating, ‘Because when this anxiety get over, it disturbs the concentration’, stating that he sometimes wants to eat something but cannot decide if he wants to go out or eat at home, finding it ‘hard to make decisions’. If he watches a Farsi show in which he has interest, the duration of continuous focus before lapsing was reported to be ‘Maybe a few minutes, maybe’, around five minutes of understanding the plot. In exploring if he remains watching following this, Mr Akbari replied, ‘No, I lost it and I try again, try again and finally I leave it’, due to frustration.
Mr Akbari recalled being able to watch Netflix shows pre-injury with his then-girlfriend, remarking on how he cared about the details back then – stating that he observed detail well. While he used to read pre-accident, this is ‘very less’ due to his concentration being ‘less... no’. He appeared to lose focus so was asked about this further, reporting that he reads for two or three minutes but with re-reading within this time (‘always review, all the time, I get mistake’).
Short-term memory: Mr Akbari reported having problems frequently in this regard, stating of the injury, ‘That affects my short-term memory, before was a lot’, citing examples: ‘it affects my memory, because I leave the gas on, the water tap and sometimes my keys, my everything, my sunglasses – lose’, feeling frustrated and angry on losing or misplacing items.
Employability
Such is Mr Akbari’s current depressive, anxiety and trauma symptoms that in terms of the severity, breadth and entrenchment of his symptoms it is not considered feasible for him to work in any capacity at the current time, which is not likely to change in the foreseeable future due to the severity of his psychiatric symptoms despite extensive treatment.
1.   FINDINGS ON MENTAL STATE EXAMINATION
Mr Akbari presented as a 44-year-old male of a slightly taller than average stature and an average build, wearing a T-shirt, a blue zip-up jacket that was open and casual jeans, and a dark cap, which he wore throughout the assessment. He was seated with a small plastic disposable water bottle in front of him. He was seen for two hours and 24 minutes in the presence of a Farsi interpreter, and he provided history predominantly in English, but where difficulties in expression were evident history was obtained via the interpreter.
Mr Akbari was mildly restless at times, but was easily engaged, with eye contact reasonable. Speech was of an increased rate, sometimes needing slowing, of normal prosody and volume. Thought stream was increased, and thought form intermittently became tangential, requiring refocusing. Mood was low, affect was restricted in range and fairly anxious in quality, which was well-communicated, and it was consistent with what he described.
It was established over the history that while he seemed to initially refer to suicidality, he was actually referring to passive ideation but not active suicidal ideation, intent or plans. This occurs intermittently and his psychiatrist is aware of it.
Depressive trauma-related and anxious themes predominated. His concentration was markedly poor, frequently lapsing, including mid-discussion, often providing history that was tangential or oblique to what was asked of him, and history had to be rechecked repeatedly on an ongoing basis throughout the assessment. Insight and judgement were intact, and he described a good relationship with his current psychologist, psychiatrist and general practitioner and compliance on his current medications. He spoke of previous problems with antidepressant medication in terms of side effects.
2.   DETAILS AND DATES OF SPECIAL INVESTIGATIONS
Not applicable.
3.   SUMMARY
·    summary of injuries and diagnoses:
Mr Ehsan Akbari is a 44-year-old male who was injured during his employment with Centralized Services Pty Ltd as a car wash attendant. The psychiatric symptoms set in following this injury, which occurred through a motor vehicle accident in October 2018, with significant injuries described.
The history and his presentation during the examination were taken into account along with the documentation provided in the brief by both parties, including medicolegal reports, treatment records and correspondence and statement documents.
In considering his symptomatology, Mr Akbari described a substantial reduction in sleep from eight solid hours a night without middle or initial insomnia to typically sleeping two or three hours (three to five hours on some days, if he can sleep an extra one or two hours later) due to nightmares of the accident that wake him. He needs time to get back to sleep. CBD oil has led to a reduction in the initial insomnia and may have led to a reduction in middle insomnia. Concentration and short-term memory disruption were clearly observed throughout the assessment, which Mr Akbari also described in terms of impacts on typical daily functioning. This impairs his ability to focus on the television, to read, and other aspects of his daily life.
Both depression and anxiety are pervasive. His depression is severe in grade, he cries more than prior to the injury, particularly if he talks to his mother (he had planned to return to Iran for a visit prior to the injury, which he has not transpired – and he has not seen her since around 2010; she asks him why he does not visit when he speaks to her). Enjoyment is minimal, with substantially reduced energy and although he tries to nap, he usually is unable to. He described amotivation, feelings of helplessness, worthlessness, absence of hope, reduction in appetite (reducing from three meals a day to one meal a day, reduced enjoyment and meal size), and he described sometimes having passive suicidal ideation, which his psychiatrist is aware of (nil acute self-harm or suicidal ideation, intent or plans on assessment).
Additionally, pervasive anxiety of a high grade occurs with lowered frustration tolerance and irritability driven by anxiety – not pain, anxious muscle tension in his head and neck (initially he described this as his pain history but it was ascertained that this occurs 20-25% of the time as severity of 10/10 where 10 is maximal), with anxious physiological changes of paraesthesia from his chest to his left fingers, palpitations and elevated heart rate, along with significant restlessness and agitation which is distressing and fatigue. Re-experiencing nightmares of the actual accident events occur around twice a week, along with intrusive flashbacks of the accident with hyperarousal changes (sleep and concentration disruption and irritability, exaggerated startle response to loud and sudden sounds and hypervigilance). Negative and cognitive emotional changes of minimal enjoyment and interest, difficultly experiencing positive emotions and fear were described and he described trauma-avoidance behaviours.
From a psychiatric perspective, these symptoms – on the basis of his history, his presentation on mental state examination and the medical and other file material before me are congruent with a diagnosis under DSM-5 of post-traumatic stress disorder and major depressive disorder. This is consistent with the view of Dr Lam-Po-Tang, who diagnosed post-traumatic stress disorder, and while he did not diagnose a major depressive disorder as a standalone condition, he did describe some depressive symptoms, signs and deterioration in social and occupation functioning that is consistent with my diagnosis of major depressive disorder.
Differences in the severity of the symptoms may be due to difficulties in terms of translating concepts. To minimise this clinical complexity this assessment and history was rechecked repeatedly, leading to a longer and more through assessment. In the Panel's view, the severity and breadth of his depressive condition warrants the inclusion of major depressive disorder with post-traumatic stress disorder to fully define Mr Akbari primary psychological injury sustained because of this accident.
In considering the other medical material, it is noted that Dr Arvind Kendurkar,
Mr Akbari’s former treating psychiatrist in May and July 2020 provided correspondence where he reported the possibility of comorbid generalised anxiety disorder with panic attacks, later also referring to a headache with psychosomatic pre-occupation though on a detailed history at this occasion he described headaches as tension headaches, occurring with muscle tension in his neck and this was described throughout the assessment in a manner consistent with anxious muscle tension. The Panel finds that after full consideration of this evidence that Mr Akbari does not meet DSM5 criteria for generalised anxiety disorder. The Panel notes that panic attacks are clinically frequently reported and are often seen within posttraumatic stress disorder.
Additionally, the report of Dr Russel Davies (July 2023) diagnosed post-traumatic stress disorder, post-concussion syndrome and somatoform pain disorder. But for a through re-checking of history which had already been checked repeatedly throughout this assessment process, somatoform pain disorder was not found. The Panel notes that the term ‘somatoform pain disorder’ is not a DSM5 listed condition.
The Panel finds that Akbari was describing anxious muscle tension when he would commonly use the incorrect word, ‘pain’, as he failed to distinguish the difference between anxious muscle tension and the physical pain he experiences, which is markedly less pervasive and less severe compared to the impact of his anxious muscle tension.
A/Prof Kaplan in October 2023 did not clinically confirm that Mr Akbari presented with context-specific nightmares consistent with the diagnosis of post-traumatic stress disorder. After a careful, detailed history specifically looking at the difference between thoughts, memories and intrusive re-experiencing of the actual accident, it was determined that Mr Akbari does satisfy DSM 5 Criterion A for post-traumatic stress disorder. He also fulfils all the requirements in making this diagnosis with markedly prominent clinical symptoms of post-traumatic stress disorder including persistently re-experiencing flashbacks and nightmares of the actual accident circumstances.
Consistent with Dr Lam-Po-Tang's assessment Mr Akbari denied any pre-existing psychiatric symptoms of anxiety or depression and expressed the view that at times he has felt that persons who are not familiar with his culture or the context of growing up or living in Tehran, Iran's capital might make assumptions around exposure to wartime experiences which are not relevant to his lived experience, and while he did complete two years of compulsory military training for the Iranian government, Mr Akbari was not directly exposed to war, combat or injuries during the duration of his national service..
Dr Lam-Po-Tang did refer to an instance where Mr Akbari was arrested in Iran, and he said Mr Akbari did not think it had led to any psychiatric impairment, condition or injury, was consistent with documentation completed whilst in immigration detention in 2010 and 2011, where he denied suffering from psychiatric symptoms in these records. The Panel concurs with Dr Lam-Po-Tang and confirms his finds that Mr Akbari self-report and the medical record.
·    consistency of presentation:
Mr Akbari presented in a manner that was congruent when considering his history over the two hours and 24 minutes assessment, his presentation on mental state examination and his clinical history along with the material before me.
4.   EVALUATION OF PERMANENT IMPAIRMENT
My answers to the following questions regarding the assessment of impairment and or whole person impairment in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment with respect to the injury suffered in the accident are:
a.   Is the worker claiming for any body part/system outside your field of expertise? If so, please indicate the body part/system:
No.
b.   Have all body parts/systems stabilised/reached maximum medical improvement?
Yes.
c.   If not, please list those injuries not yet stable/at maximum medical improvement:
Not applicable.
d.   If stabilisation/maximum medical improvement, of any or all injuries has not been reached, when, in your opinion, will this occur?
No.
e.   Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
No.
f.    If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality.
Not applicable.
5.   THE FACTS ON WHICH THE ASSESSMENT IS BASED
The facts on which I have based my assessment of whole person impairment are:
The history provided by Mr Akbari during the assessment, his mental state examination features throughout the assessment and the medical, psychiatric and other opinions and information in the documentation provided in the brief.
6.   REASONS FOR ASSESSMENT
a.   My opinion and assessment of whole person impairment:
Mr Akbari’s psychiatric injury has reached maximum medical improvement. While there is reference in the documentation and the opinions of a secondary psychiatric condition and pain, the history that was obtained by the Panel was detailed at length and careful conducted. On the basis of the Panel's opinion and experience, the Panel has determined that what Mr Akbari was describing as pain was primarily a reference to anxious muscle tension a part of known states of anxiety. He described this anxious experiences consistently through the history as muscle tension-related in the form of tension in his head and neck. He separately described physiological anxious changes that support and confirm anxiety as being persistently present throughout Mr Akbari’s history of this primary psychological injury
Separate to anxiety, Mr Akbari reported that while the anxious muscle tension occurs for 20-25% of his waking week. This high grade of anxiety was further exacerbated when present, pain was present. Pain from the actual injuries caused by the accident occurs at low-to-moderate grade around 10% of his waking week, relatively rarely. This reduced frequency of pain was in keeping with the history he provided repeatedly through the assessment. Mr Akbari referred to pain itself as relatively infrequent and non-impairing to his lifestyle, social or occupational functioning in his view.
While Mr Akbari’s referred to anxious muscle tension incorrectly as pain repeatedly, it was only when the use of the word ‘dard’ was established to confidently define Mr Akbari’s understanding of pain that he was able to separate anxious muscle tension from “pain”. Though there seemed to be some divergence between the two experiences of anxious muscle tension and pain when this complex cultural aspect of the assessment was fully explored in detail, it was revealed that the pain itself occurs much less and rarely when compared to the frequent experience of anxious muscle tension. This is in keeping with a fairly detailed history of functioning that revealed changes in the context of the anxiety and trauma symptoms primarily, along with depressive impacts in some domains, but no impacts from pain. Pain was considered in each of these sections and across the assessment, and the information Mr Akbari provided was consistent throughout.
No adjustment was made for a pre-existing condition, as there was no evidence of one as noted and no adjustment was made for treatment, as there is no evidence of the treatment received has led to apparent substantial or total elimination of his permanent impairment despite having treatment now with two different psychiatrists over time, trials of what he described as various psychotropics that were not tolerated and psychological therapy.
In making that assessment I have taken account of the following matters:-
·    Examination findings, matters of history including of his functioning – in detail, and documentation provided including the medicolegal reports, treatment records and other documentation.
b.   An explanation of my calculations (if applicable)
PIRS attached.
c.   My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
See above
d.   I certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable.
Issued by Dr Ash Takyar”

For these reasons, the Appeal Panel has determined that the MAC issued on 30 July 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W1601/24
Applicant:	Ehsan Akbari
Respondent:	Centralized Services Pty Ltd

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor John Lam-Po-Tang and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Psychological	2 October 2018	Chapter 11	Chapter 14	22%	Nil	22%
Total % WPI (the Combined Table values of all sub-totals)					22%

PERSONAL INJURY COMMISSION

Table 11.8: PIRS Rating Form

Name	Ehsan Akbari	Claim reference number (if known)	M1-W1601/24
Age at time of injury	38 years
Date of Injury	2 October 2018	Occupation at time of injury	Centralized Services Pty Ltd – Car Wash Attendant
Date of Assessment	19 November 2024	Marital Status before injury	Partnered

Psychiatric diagnoses

1. Post-traumatic stress disorder

2. Major depressive disorder

Psychiatric treatment

Mr Akbari was treated with psychological, psychiatric and evidenced-based pharmacotherapy for this primary psychological injury. He was not treated in psychiatric hospital as an inpatient for this injury. He was not treated with repetitive transcranial magnetic stimulation or another treatment available as an outpatient including Esketamine.

Is impairment permanent?

Yes

PIRS Category

Class

Reason for Decision

Self Care and Personal Hygiene

A history was obtained of his routine on a typical day over the last two months. Asked what time he wakes, he replied, “At the moment, I just get 11, 12”. To get out of bed will “take half an hour... because I just sit in my bad dream, I wake up in stress – half in dream and half in the life, stress” reporting that he wakes anxious to such a degree that he does not check his phone or feel able to do anything and it takes him half an hour to get out of bed. On rising, he goes to the toilet, then showers and will “come back, try to have a coffee” and said he sits in bed to relax for half an hour. He will then “try to do something in my house, if I need something to do, make myself busy”, such as the chores “for maybe five minutes... to be honest, I didn't wash for three months”, then reporting that he might spend ten minutes on this, apparently describing not washing/cleaning the home (rather than referring to showering, which he described as more frequent). Mr Akbari said he checks his emails or messages, sometimes talks to a friend on the phone and might return to bed for two or three hours, attempting to sleep but cannot as he feels anxious about having a nightmare – “sometimes my body needs sleep, but I couldn't” due to anxiety. If he slumbers for ten minutes, he wakes “with the same situation and I go shower again, if I don't get shower then I get... especially the cold shower – after that, when I finish, that relaxes me, bring it [anxiety] down. But it come back again, come back again”. Asked what he does next he replied, “After that, I try to eat something”. History in relation to cooking is noted in the next paragraph. He said he tries to lie in bed for two or three hours and then takes his medication and goes to bed at 10 or 11pm.

His appetite has declined from three meals a day to one, which has been the case “since four years”. He attributed low enjoyment of food to anxious overthinking and said his portions are of “a small size. For example today I just I have just one coffee, and this one thing [pointing to his water bottle], I just don't have appetite”. He described weight loss and body compositional change since the accident: “I get skinnier, my body was fit, now I lost” having lost 10-15kg. Mr Akbari showered once a day prior to the injury and now showers twice a day typically, reporting that the increase has occurred because showering is helpful to centre himself and reduce his anxiety. “If I don't do that, I can't even make coffee for myself, I can't do anything. When I get cold shower, my brain get dopamine” (asked if he had been told this by one of his treating practitioners he reported that he had found this out himself).

Cooking: Earlier, he referred to making food – on asking if he cooks, he said he does not, explaining that he prepares two-minute noodles, eggs or tuna, clarifying that he used to cook meals for 10-15 guests he would have over pre-injury, but no longer can. Mr Akbari said if he cannot prepare a simple meal, he goes down the street to the Turkish kebab shop. Pre-accident, he lived alone (he had a partner who lived with her mother), so he cooked dinner every day. On asking how long it has been since he cooked in his previous manner he reported not cooking meals of that complexity since the accident due to his mental state (citing poor focus, easily becoming irritable and being less hungry, along with low mood). Grocery shopping: he bought groceries two or three times a week without any anxiety pre-accident, now doing so weekly when it is less busy – at night – due to his anxiety; midway through this he began talking of his current problems and on redirecting him he apologised, stating that his focus had dropped out. Chores: “Used to be, look after too much everything, now I don't do at the moment, less now”, ascribed to amotivation (“I don't have no motivation, [as well as] stress and anxiety”.

Social and Recreational Activities

Mr Akbari said he speaks to friends on the phone “every day” for “maybe 15 minutes, maybe 20 minutes”. Pre-accident he saw friends in person “a lot... like most of the time” – after enquiring three times, he eventually reported seeing them two or three times a week and said he has not been able to regularly since the accident. He noted that while friends visited from Sydney last week, he tends to see friends in person every two or three months. His social circle has reduced since the accident when he had “21 [friends], maybe now is one only. Cos soccer player, people work with them”.

Hobbies had included playing soccer (training two or three times a week for around two or three hours per session, with matches every three months). He swam “a lot” – four times a week after work at Bar Beach – “I spend [spent, in the past] most of the time there, two, three hours”, understood to be per day on the days that he swam, after work, also describing body surfing and he reported being outside all the time. Mr Akbari said he used to go on weekends to nightclubs, pubs and parties most weekends, now not doing so and said he has not swum this year, but did last year “a few times, not swimming, but put [himself] in the water”, in a pool and sometimes briefly in the sea. He no longer plays or trains in soccer. If he was invited by his one remaining friend to a party in Newcastle he would not go alone due to his mental state, and would likely struggle to attend with a support person, particularly due to his anxiety.

Travel

Mr Akbari lives in Newcastle. He said he travels around the area mostly by walking down the street, as he lives in the city/Civic. He said he can drive but does not much, “local only”, not to new places. He denied using the bus or tram, stating that his anxiety precludes him from doing this.

Social Functioning

Mr Akbari said he was with his girlfriend for 7-8 months, and their relationship broke down “a few months after the injury”. She had moved to Sydney and would ask him to visit but due to the injury-related fear and anxiety around motor vehicle transport he reported that he could not and she did not understand – Mr Akbari said he tried to visit her but was unable to, and he said she accused him of not loving her when he was unable to travel there. He described losing touch with most friends, with a reduction in social circle as described above and he reported that in terms of his family he would speak to his mother and father four times a week, which has reduced since the injury – “less, because I get upset after that, because she [his mother] say, ‘why don't you come to visit’, and my mum is getting old”.

Concentration, Persistence and Pace

Mr Akbari’s concentration was observed to be markedly poor during the two hour and 24 minute examination, lapsing frequently, sometimes mid-answer. He often replied to questions with non-relevant or obliquely relevant history due to concentration dropouts. On asking how it compares to pre-injury, he replied, “I cannot concentrate. I cannot manage my day, basically, because of this concentration”. Impacts on daily life were discussed and he began speaking of anxiety instead, so was refocused, then stating, “Because when this anxiety get over, it disturbs the concentration”, stating that he sometimes wants to eat something but cannot decide if he wants to go out or eat at home, finding it “hard to make decisions”. If he watches a Farsi show in which he has interest, the duration of continuous focus before lapsing was reported to be “Maybe a few minutes, maybe”, around five minutes of understanding the plot. In exploring if he remains watching following this, Mr Akbari replied, “No, I lost it and I try again, try again and finally I leave it”, due to frustration. He recalled being able to watch Netflix shows pre-injury with his then-girlfriend, remarking on how he cared about the details back then – stating that he observed detail well. While he used to read pre-accident, this is “very less” due to his concentration being “less... no”. He appeared to lose focus so was asked about this further, reporting that he reads for two or three minutes but with re-reading within this time (“always review, all the time, I get mistake”). Short-term memory: Mr Akbari reported having problems frequently in this regard, stating of the injury, “That affects my short-term memory, before was a lot”, citing examples: “it affects my memory, because I leave the gas on, the water tap and sometimes my keys, my everything, my sunglasses – lose”, feeling frustrated and angry on losing or misplacing items.

Adaptation

Such is Mr Akbari’s current depressive, anxiety and trauma symptoms that in terms of the severity, breadth and entrenchment of his symptoms it is not considered feasible for him to work in any capacity at the current time, which is not likely to change in the foreseeable future due to the severity of his psychiatric symptoms despite extensive treatment.

Score

Median Class

= 3

Aggregate Score Impairment

Total

= 18

22%

A careful history established that Mr Akbari did not have any pre-existing psychiatric impairment or symptomatology that was active at the time of the injury. Furthermore, it was established after a very long and careful history the pain occurs minimally, for around 10% of his waking week at a low-to-moderate grade, which he described coping with, and a careful history of his functioning revealed that substantial changes in his functioning across domains occurred not because of pain but because of his psychiatric symptoms. Particular attention was paid to considering where pain might have impact, but it was clear through the history that the impacts are psychiatric on basis.

[2024] NSWPICMP 838

9 December 2024