Chalouhi v Sony Australia Ltd
[2024] NSWPICMP 27
•18 January 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Chalouhi v Sony Australia Ltd [2024] NSWPICMP 27 |
| APPELLANT: | Andre Chalouhi |
| RESPONDENT: | Sony Australia Limited |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 18 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal against 8% finding for a psychological injury where the Medical Assessor had awarded a class 2 rating for the social and recreational activities category in the Psychiatric Impairment Rating Scale where the worker had been gambling on poker machines; whether Ballas v Department of Education applied to make that finding erroneous; Held – class 2 rating unsustainable in the light of Ballas v Department of Education; other evidence demonstrated a moderate rating; Ballas v Department of Education considered; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 October 2023, Andre Chalouhi, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 November 2023.
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, 4th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 18 July 2023 an assessment was sought of the WPI caused by psychological/psychiatric disorder that occurred on a deemed date of 16 February 2023.
A most comprehensive history was taken by the Medical Assessor. The following is a precis. Mr Chalouhi was employed by Sony Australia Limited (the respondent) as a retail installation specialist. He commenced with the respondent in July 2015 working initially as a contractor.
After two years he commenced as a full-time employee. In that capacity whilst working at the JB Hi-Fi store he was falsely accused of “many sexual harassments”. He was accused of numerous sexual harassment complaints and was put on several performance reviews.
This made him distressed and angry. He was concerned that if he was working with many younger people, they would judge him on “a rumour and make things worse”. Accordingly, Mr Chalouhi notified his senior manager and forwarded a formal complaint. A meeting was arranged but Mr Chalouhi was surprised to see the person who had made a false allegation present at the meeting.
He refused the offer of an apology from the co-worker. He sought treatment from his general practitioner (GP) and was referred to a clinical psychologist. He ceased work on 21 February 2022.
Mr Chalouhi was “erratic in his capacity to complete his rehabilitation back to work.” He was drinking vodka at the rate about one litre per week and playing poker machines to stop his depressive ruminations.
He received support from his mother and on his mother’s arrival to live in his house with him, ceased drinking alcohol and curtailed his gambling to about 1/10th of his spending,
The Medical Assessor assessed an 8% WPI.
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 noted the appellant’s submission that a re-examination ought not be required, but that a re-examination was open to the Appeal Panel. The issues are of a technical nature, and the remedies proposed by Mr Chalouhi are available on the evidence. A re-examination was accordingly not required.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The 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 which have been considered by the Appeal Panel.
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 MAC
The Medical Assessor noted:[1]
“Mr Chalouhi reported that he was erratic in his capacity to complete his rehabilitation back to work. He reported he was drinking Vodka at about 1 litre per week. He was also playing poker machines to stop his depressive ruminations. He received support from his mother. He ceased drinking alcohol and curtailed his gambling to about one tenth of his spending prior to his mother’s arrival to live in his house in Sydney with him.”
[1] Appeal papers page 33.
In reporting on the appellant’s general health, the Medical Assessor stated:[2]
“Mr Chalouhi smoked tobacco. He usually smoked about 40 cigarettes daily. He does gamble. He was attending his prefer locations to gamble more days than not. He would spend about $300 per session. He reported that his gambling was not impairing other activities of daily living. He reported that he viewed his gambling as a preferred activity where he could relax. He had ceased all alcohol consumption for over five months prior to this assessment on medical advice to treat this primary psychological injury. He does not use illicit substances. He did not suffer from any allergies.”
[2] Appeal papers page 34.
At [5] the Medical Assessor said that Mr Chalouhi presented as an agitated, irritable, unkempt man who suffered from episodes of anger and frustration that he attempted to control throughout the assessment. The Medical Assessor recorded that Mr Chalouhi stated that “playing the poker machines stopped his depressive rumination whilst he was engaged in this activity…… Mr Chalouhi had lost interest ….. in socialising since the onset of this primary psychological injury.”
Under the heading “Social activities/ADL:” the Medical Assessor noted:[3]
“Mr Chalouhi reported that he did attend a small group of hotels. He would usually spend an evening at a location that was not congested with a crowd. He would leave for his venue usually between 6:00pm to 10:00pm. He would remain out of home until he had exhausted his allocated money to play on the poker machine. He might return home quickly within 30 minutes or remain out until no later than closing time at the venue. Closing times at each venue differed between 2:00 am to 6:00 am. He had one friend at one venue that would have incidental social contact. He would speak to the supervisor or manager on most occasions. He would play the poker machines more days than not.
Mr Chalouhi’s brother had presented him with a ‘Bull Arab’ male pup. He spent most of his time with the dog. Mr Chalouhi spent most of his days at home. His mother had attended to keep him company over the last few months prior to this assessment. She did not attend with him at the poker machine venues.
……
Mr Chalouhi was unfit to return to his primary substantive role with this employer at any time in the future.
Mr Chalouhi was erratic in his capacity to sustain a rehabilitation program to return to work. He had stopped the rehabilitation program as he stated that he had no ‘confidentiality’. He became overwhelmed with his emotions whilst ruminating that he would become falsely accused and labelled by co-workers in the workplace.
Mr Chalouhi’s employability was severely impaired.”
[3] Appeal papers page 35.
At [10b] the Medical Assessor said:
“…Mr Chalouhi’s assessable symptom severity had fluctuated without any sustained recovery or return to his primary substantive role. His improvement was insufficient to enable him to return to his primary substantive role as a retail installation specialist prior to this assessment. He was permanently unfit to return to work for this employer prior to this assessment. His employability was severely impaired by the primary psychological injury alone. Mr Chalouhi’s primary psychological injury was now permanent.”
At [10c] the Medical Assessor answered the templated question seeking his comments about other medical opinions and findings submitted by the parties that were before him. He considered:
i.Mr Chalouhi’s two statements;
ii.the termination of employment letter;
iii.the report of Dr Assad Saboor of 27 January 2023;
iv.the report of Clinical Psychologist Registrar Breanna Georgiadis of 4 May 2022;
v.the nominated treating doctor, Dr George Kassar’s certificate of fitness dated 11 February 2022, and
vi.a report from psychiatrist Dr Nabil Malik dated 18 April 2023.
The Medical Assessor commented on most of the document he reviewed. In relation to Dr Mailk’s report however, the Medical Assessor, without comment, reproduced Dr Malik’s history that Mr Chalouhi was “spending 3000 to 4000/week in pokies, 3-4 times/week.”
The Medical Assessor, again without comment, reproduced Dr Malik’s reply to questions regarding employment capacity asked by the respondent’s solicitors:[4]
“As explained in above question, in my professional opinion, on the balance of probabilities. I suggest a meeting/discussion between him, his case manager, in consultation with his GP and to finalise the future workplace and role. I suggest he can start in a suitable role 2 days/week, 4-6 hours/day, after that, four to six hours can be increased every week until he reaches full weekly working hours. There is no specific restriction from psychological point of view, but I do suggest he starts working in a supportive environment.”
[4] Appeal papers page 45.
Amongst that documentation he reproduced the following portions of Mr Chalouhi’s statement of 16 May 2023:[5]
“8. Because of my workplace injury and mood, I now gamble. I go to the local pub where I keep away from other patrons and use the poker machines. I'm not proud of this, but I am really struggling emotionally, and this is a coping mechanism for me.
15. I especially do not socialise with people at the pub, and I certainly have not become friends with anyone at the pub. I isolate myself and use the poker machine.”
[5] Appeal papers pages 66-67.
In his Table 2 Psychiatric Impairment Rating Scale (PIRS) form the Medical Assessor gave the following reasons for the Class 2 rating he made for Mr Chalouhi’s social and recreational activities:[6]
“Mr Chalouhi reported that he did attend a small group of hotels. He would usually spend an evening at a location that was not congested with a crowd. He would leave for his venue usually between 6:00pm to 10:00pm. He would remain out of home until he had exhausted his allocated money to play on the poker machine. He might return home quickly within 30 minutes or remain out until no later than closing time at the venue. He had one friend at one venue that would have incidental social contact. He would speak to the supervisor or manager on most occasions. He would play the poker machines more days than not. Mr Chalouhi’s brother had presented him with a ‘Bull Arab’ male puppy. He spent most of his time with the dog. Mr Chalouhi spent most of his days at home. His mother had attended to keep him company over the last few months prior to this assessment. She did not attend with him at the poker machine venues."
[6] Appeal papers pages 48-49.
Appellant’s submissions
The appellant, in an extensive review of the relevant evidence and authorities, submitted that the Medical Assessor fell into error regarding his assessment of two of the PIRS categories - namely social and recreational activities and employability.
As to the assessment of social and recreational activities, the appellant submitted that the Medical Assessor had fallen into error because he offended against the principle in Ballas v Department of Education (State of NSW).[7] Mr Chalouhi submitted that the facts in Ballas were similar to those before the Appeal Panel, and that he should be assessed as a Class 3 and not the Class 2 rating.
[7] [2020] NSWCA86.
We were referred to the relevant sections of the MAC in that regard.
As to the category of employability, Mr Chalouhi submitted firstly that the Medical Assessor had not “at any point” reported in his clinical judgement that Mr Chalouhi could work at one or two days at a time, less than 20 hours per fortnight. The Class 4 assessment was said to be “entirely at odds” with the Medical Assessor’s findings and in fact congruous to a Class 5 assessment.
We were referred to passages of the Medical Assessor’s reasons in that regard, which Mr Chalouhi contrasted with the history taken by his medico-legal expert, Dr Saboor. He submitted that the Medical Assessor did not provide any reasons why he disagreed with Dr Saboor. We were also referred to Mr Chalouhi’s statement and the certificates of capacity that were issued by his GP.
Respondent’s submissions
The respondent reproduced a summary of Mr Chalouhi’s submissions, and referred globally to the reasons of the Medical Assessor. As to the effect of Ballas, the respondent submitted that the descriptors in Table 11.2 of the Guides were addressed by the Medical Assessor in his “clinical reasoning.” The respondent emphasised that the Medical Assessor had noted Mr Chalouhi’s preference to play poker machines to relax and the attendant activities of travel and frequency of his participation.
It submitted further that the assessment “does not constitute incorporation of irrelevant considerations....” and that the conditions for a Class 2 rating had been satisfied.
As to the challenge to the employment category, the respondent submitted that Mr Chalouhi had only referred in his submissions to the Medical Assessor’s inability to return to any work in the context of his returning to his employment with the respondent. The respondent referred to a note by the Medical Assessor of Dr Nabil Malik’s opinion regarding Mr Chalouhi’s fitness for work (mistakenly crediting the opinion to the Medical Assessor).
The respondent submitted that the reasons given by the Medical Assessor had been clear and adequate, and that he was under no obligation to follow the opinion of Dr Saboor or any other treating practitioner.
FINDINGS AND REASONS
The PIRS
The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[8] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[8] Guides 55.
The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[9]
[9] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[10] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[11]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[10] [2017] NSWSC 887.
[11] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[12] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24]).”
[12] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Appeal Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
a. if the categorisation was glaringly improbable;
b. if it could be demonstrated that the AMS was unaware of significant factual matters;
c. if a clear misunderstanding could be demonstrated, or
d. if an unsupportable reasoning process could be made out.
In Western Sydney Local Health District v Chan[13] Adams J found that a Medical Assessor (‘AMS’ as they were then called) was bound following the High Court authority of Wingfoot Australia Partners Pty Ltd v Kocak[14] to set out in his Statement of Reasons the actual path of reasoning by which he arrived at his opinion.
[13] [2015] NSWSC 1968.
[14] [2013] HCA 43; 252 CLR 480.
We have already referred to Vegan at the outset of these reasons which found that the extent of the reasons required to be given by an Appeal Panel (and by analogy with Chan, a Medical Assessor) can vary from case to case, depending on whether one conclusion or more than one conclusion is open.
In Wingfoot the Court held at [47]:
“…The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
In Ballas v Department of Education[15] the Court (Bell P, Payne JA, Emmett AJA agreeing) held that the conduct assessed must be consigned to the correct category (or scale), and failure to do so would result in appellable error. As noted, this is one of the issues raised by the appellant.
Social and recreational activities
[15] [2020] NSWCA 86 at [94].
Ballas
In Ballas the issue related to the refusal by the delegate of the Registrar to allow Ms Ballas’ appeal to progress to an Appeal Panel under the relevant legislation. That refusal had been appealed to the Supreme Court, where Wright J upheld the delegate’s decision.[16] The Court of Appeal reversed that decision, finding that the delegate had failed to properly consider the import of Ms Ballas’ submissions. At [85] Bell P and Payne JA, Emmett A JA agreeing, said:
“85. The argument advanced by Mr Hooke SC on behalf of Ms Ballas was that, in giving his reasons for the particular rating of 2 assigned to the ‘social and recreational activities’ area of impairment … Dr Hong took into account matters that, whilst they may have been relevant to other areas of impairment that fell for assessment such as ‘travel’ and ‘social functioning’, did not bear upon that area identified as ‘social and recreational activities’. In particular, the solitary nature of Ms Ballas’s gambling was said not to be relevant to ‘social and recreational activities’ because, to quote from para 6 of her submission to the Delegate, that scale ‘is directed to the kind of activities that involve interactions with other people’. This was the essence of what made it ‘arguable’ that the AMS had made a ‘demonstrable error’.”
[16] Ballas v Department of Education [2019] NSWSC 234.
The Court found that even if there might, as a matter of English language, be some overlap in a claimant’s conduct between the different categories (or scales) within the PIRS, a Medical Assessor had no discretion as to which category such conduct should be ascribed.
From [92] the Court said:
“92. …The scales are fixed and are treated by the Guidelines as distinct from each other. The structure of the Guidelines, and the mandated use of a standardised form on which an AMS must specify the ‘class’ he or she assigns to each ‘scale’ and give his or her reasons for doing so, are designed to add transparency and rigour to the exercise of WPI assessment.
93. Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to ‘social and recreational activities’ on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
94.... If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”
The impugned conduct was that Ms Ballas had been playing poker machines as her recreational activity. The Court accepted the appellant’s argument that gambling on the poker machines for one hour about once a month was essentially a solitary activity and did not involve interactions with other people.
Demonstrable error
In assessing a Class 2 rating for Mr Chalouhi’s habit of visiting poker machine establishments the Medical Assessor was obliged to give reasons as to why he thought, notwithstanding the authority of Ballas, such a rating was justified, and in failing to do so, he made a demonstrable error. The Review Panel is thus obliged to consider whether to revoke or confirm his assessment.
The descriptors for the various classes in this category are, relevantly:
“Table 11.2: Psychiatric impairment rating scale – social and recreational activities
Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2 Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3 Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
As indicated, we accept that the failure by the Medical Assessor to discuss the effect of Ballas constituted a demonstrable error. The Medical Assessor made no attempt to explain how he had reached the conclusion that the appropriate Class rating in this category was Class 2 and for the above reasons, one was called for.
It does not appear, with respect, that the respondent engaged with the appellant’s premise that the authority of Ballas meant that a person whose activities involve gambling on poker machines is not engaging in a social or recreational activity. Furthermore, the Medical Assessor’s description of Mr Chalouhi’s attendance at hotels confirms the solitary nature of his gambling –
“He would usually spend an evening at a location that was not congested with a crowd…………. He would remain out of home until he had exhausted his allocated money to play on the poker machine. He might return home quickly within 30 minutes or remain out until no later than closing time at the venue. He had one friend at one venue that would have incidental social contact.”
In his statement of 16 May 2023, Mr Chalouhi said:[17]
“7. Because of my workplace injury, I no longer meet with friends or attend social gatherings. I keep to myself. I dislike going out to the shops in case l see someone l know. I have become anti-social as l feel l am now perceived as a sexual predator. I experience intrusive thoughts of the workplace incident.
…
10. My friendships have broken down. I have isolated myself from people that know me because I am so humiliated by how I was treated and what it may have made people perceive me to be. I would often go for drinks and socialise with a group of friends. I have not socialised with friends since the workplace injury. I have not made any new friends. I do not reply to text messages or take calls from friends.”
[17] Appeal papers page 66.
This evidence, which is not controverted, establishes a Class 3 rating, and the MAC will accordingly be revoked.
Employability
Table 11.6 of the Guides for the category of employability provides relevantly:
“Class 4: severe impairment: Cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5: totally impaired: Cannot work at all.”
The Medical Assessor assessed a Class 4 rating, saying:[18]
“Mr Chalouhi was unfit to return to his primary substantive role with this employer at any time in the future.
Mr Chalouhi was erratic in his capacity to sustain a rehabilitation program to return to work. He had stopped the rehabilitation program as he stated that he had no ‘confidentiality’. He became overwhelmed by his emotions whilst ruminating that he would become falsely accused and labelled by co-workers in the workplace.”
[18] Appeal papers page 49.
Firstly, the Medical Assessor did not find that Mr Chalouhi was incapable of any work, as was asserted by the appellant. As indicated above, the Medical Assessor noted that Mr Chalouhi was erratic in his capacity to sustain a rehabilitation program to return to work. His complaint about “confidentially” being the reason he stopped that program does not denote any incapacity, rather a desire that the false accusations made against him as to sexual harassment remained confidential.
Secondly, we note the history taken by Dr Malik that was quoted by the Medical Assessor, to which we have referred in considering the respondent’s submissions. Dr Malik said:[19]
“As explained in above question, in my professional opinion, on the balance of probabilities I suggest a meeting/discussion between him, his case manager, in consultation with his GP and to finalise the future workplace and role. I suggest he can start in a suitable role 2 days/week, 4-6 hours/day, after that, four to six hours can be increased every week until he
reaches full weekly working hours. There is no specific restriction from psychological point of view, but I do suggest he starts working in a supportive environment.”
[19] Appeal papers page 45, 216
The Medical Assessor did not comment on this quotation, but we note that it is an opinion that was before him that did not suggest Mr Chalouhi was totally impaired.
Moreover, the submission that the Medical Assessor’s opinion could be read as supporting a Class 5 rating because he had said that Mr Chalouhi’s employability was severely impaired overlooks the fact that it directly followed the preceding sentence. The Medical Assessor said:[20]
“…He was permanently unfit to return to work for this employer prior to this
assessment. His employability was severely impaired by the primary psychological injury alone…”.
[20] Appeal papers page 40.
When it is remembered that Mr Chalouhi had been accused of “numerous sexual harassment complaints” at work, it is no surprise that he was found unfit for a return to that employment.
It was submitted that no findings by the Medical Assessor could be interpreted to suggest that Mr Chalouhi was capable of any work at all as at the date of the assessment. We were referred to comments by Dr Saboor, who advised that Mr Chalouhi “cannot work at all considering his psychological symptoms, psychosocial functioning and cognitive deficits.”[21]
[21] Appeal papers page 91.
As we noted above, when discussing Wingfield, a Medical Assessor’s function is not to choose between competing arguments, but to form and give his expert opinion by applying his medical expertise. This he has done, and we find no error in his assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 September 2023 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: | W3639/23 |
Applicant: | Andre Chalouhi |
Respondent: | Sony Australia 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 Dr John Baker 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) |
| Psychological injury | 16/02/23 | Chapter 11 | 17 | nil | 17 | |
| Total % WPI (the Combined Table values of all sub-totals) | 17% | |||||
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
| Name | Andre Chalouhi | Claim reference number (if known) | |
| DOB | Age at time of injury | 42 years | |
| Date of Injury | 16/02/2023 (deemed) | Occupation at time of injury | Retail Installation Specialist |
| Date of Assessment | 5 September 2023 | Marital Status before injury | Single |
| Psychiatric diagnoses | Major depressive disorder, single episode disorder DSM5 code 296.21. |
| Psychiatric treatment | Mr Chalouhi was treated by his local medical practitioner, and psychologist. He was treated with evidence-based psychological treatment. He received CBT and EMDR, and relaxation therapy. He remained in treatment at the time of this assessment with his general practitioner and psychologist. He had not been treated as an inpatient of a psychiatric hospital or by a psychiatrist for this primary psychological injury. |
| Is impairment permanent? | Yes |
| PIRS Category | Class | Reason for Decision |
| Self Care and personal hygiene | 2 | Mr Chalouhi reported that he was able to live independently at the time of this assessment. He reported that he did rely on his mother and brother to help with cleaning the house, vacuum and clean the bathroom. He reported that his mother did most of the shopping and cooking of meals. His mother did most of the laundry. Mr Chalouhi maintained his own psychological and medical teams’s appointments. Mr Chalouhi reported that he adequately maintained his own personal hygiene and self-care. He appeared unkempt at the time of this assessment. |
| Social and recreational activities | 3 | No longer meets with friend or attends social gatherings. Does not socialise with friends. |
| Travel | 2 | Mr Chalouhi reported that he was able to drive to his preferred poker machine venues alone. Mr Chalouhi reported that he could drive no more than about 25km from his home. Mr Chalouhi reported he did not attend unfamiliar locations. He stated he would suffer anxiety thinking about travelling outside of his local and familiar region. He stated he feared being unjustly accused by people who may know him. |
| Social functioning | 2 | Mr Chalouhi reported that the relationship with his brother and mother was strained. His mother had left her house in Queensland to support him whilst he was living Sydney. Mr Chalouhi reported he had lost some friends. |
| Concentration, persistence and pace | 3 | Mr Chalouhi could no longer cook food from a recipe without spoiling the food. He had previously trained and worked as a chef. Mr Chalouhi reported he did not concentrate whilst playing the poker machines. He stated he relied on the visual and music ques to monitor his success or failure. Mr Chalouhi had stopped using his social media accounts and did not write posts publicly for about six months. |
| Employability | 4 | Mr Chalouhi was unfit to return to his primary substantive role with this employer at any time in the future. Mr Chalouhi was erratic in his capacity to sustain a rehabilitation program to return to work. He had stopped the rehabilitation program as he stated that he had no “confidentiality”. by emotions whilst ruminating that he would become falsely accused and labelled by co-workers in the workplace. |
Score Median Class
Aggregate Score Impairment Total 17%
| +2 | +2 | +2 | +3 | +3 |
0
7
0