Coles Supermarkets Australia Pty Ltd v Kalpakdjian
[2025] NSWPICMP 263
•15 April 2025
DETERMINATION OF APPEAL PANEL CITATION: Coles Supermarkets Australia Pty Ltd v Kalpakdjian [2025] NSWPICMP 263 APPELLANT: Coles Supermarkets Australia Pty Limited RESPONDENT: Sylvia Kalpakjian APPEAL PANEL MEMBER: Michael McGrowdie MEDICAL ASSESSOR: Graham Blom MEDICAL ASSESSOR: John Baker DATE OF DECISION: 15 April 2025 CATCHWORDS:
WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychological injury with a deemed date of injury 19 January 2024; psychiatric impairment rating scale (PIRS) categories; deduction pursuant to section 323; Held – Appeal Panel found error due to insufficient reasons; appellant was re-examined; resulting impairment remained the same with no deduction pursuant to section 323; MAC revoked; new certificate issued with detailed reasons.
BACKGROUND TO THE APPLICATION TO APPEAL
1.The appellant employer, Coles Supermarkets Australia Pty Ltd, appeals from the Medical Assessment Certificate of Medical Assessor Dr Himanshu Singh dated 28 October 2024.
2.The respondent worker Sylvia Kalpakjian, born in the early 1960’s, worked in a various of the Appellant’s Sydney suburban supermarkets from 1998 performing numerous roles in various roles including work in the deli section, meat section and bakery section and became Bakery Manager.
3.In her role as Bakery Manager at the last store at which she worked, the respondent began to experience conflict with a new store manager and felt that she was being unfairly treated and felt victimised. This situation continued but escalated for the Respondent and by early 2021, she saw her doctor and had some periods off work and then finally ceasing work in August 2021.
4.The respondent made a lump sum claim for compensation on 19 January 2024 pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) for psychological injury on 19 January 2024 (deemed date) being the date of the claim. On 3 July 2024, the appellant, relying on a report dated 19 June 2024 of Dr Bisht, Psychiatrist, who assessed a 6% Whole Person Impairment, declined liability to pay lump sum compensation as the degree of impairment did not reach the threshold, namely an impairment of at least 15% for psychological injury as provided for in section 65A of the 1987 Act. Liability was not disputed for psychological injury on 27 February 2021 (deemed date).
5.The respondent had sought to be compensated for a 19% Whole Person Impairment as assessed by Dr Smith, Psychiatrist, in his report of 13 December 2023.
6.By way of a Consent Order dated 2 May 2023 in Matter Number W791/23 which dealt with weekly compensation and medical expenses, the date of injury was amended from 12 August 2021 to 27 February 2021 presumably on the basis that was when the Respondent first had time off work due to the problems at work that she was experiencing.
7.The matter was referred by the Commission to Medical Assessor Dr Singh, Psychiatrist, for assessment of whole person impairment. The injury date stated in the referral was 12 September 2024 being the date the lump sum was made was 19 January 2024 (deemed date). It would seem that neither party raised any objection to the referral in those terms for the purposes of the impairment assessment.
8.Medical Assessor Dr Singh issued a Medical Assessment Certificate dated 28 October 2024 certifying the respondent as having a 15% Whole Person Impairment as a result of injury on 19/01/2024 (deemed) which met the threshold for the payment of lump sum compensation and in doing so, he assessed a class 3 impairment in respect of the rating scales Social and recreational activities, and, Concentration, persistence and pace. In respect of Employability, he assessed a class 4 impairment.
9.The appellant submits that the deemed date of injury should be 27 February 2021.
10.The appellant submits that the Medical Assessor failed to apply a deduction pursuant to s323 of the Workplace Injury Management and Workers Compensation Act,1998 for a pre-existing condition and refers to the report dated 19 June 2024 of Dr Bisht and the application by Dr Bisht of 10% of the impairment for anxiety suffered by the Respondent in 2008 and 2009 for which she was sometimes prescribed anti-anxiety medication by her general practitioner. There is nothing to suggest that this persisted beyond that time or gave rise to any ongoing impairment.
11.The appellant says that the assessment of three rating scales demonstrated error by the Assessor and that the Assessor used incorrect used criteria in his assessment of them. The appellant submits the evidence supports a class 2 impairment (rather than a class 3) in respect of the categories of: Social and recreational activities, and Concentration, Persistence and Pace; and, a class 2 in respect of Employability (rather than a class 4).
12.The delegate was satisfied on the face of the application, that there existed at least an arguable case in respect of demonstrable error. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
13.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.
14.The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
15.The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties in accordance with the Procedural Direction PIC7. As a result of that preliminary review, the Appeal Panel determined that Medical Assessor Singh had not provided clear or sufficient reasons in respect of the PIRS Categories the subject of the Appeal nor in respect of the deductible proportion, if any, pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998, it was necessary for the worker to undergo a further medical examination.
EVIDENCE
Documentary evidence
16.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.
SUBMISSIONS
17.Both parties made succinct written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In respect of Social and recreational activities –
18.In summary the appellant submits that:
(a) The medical Assessor failed to have proper regard to the respondent’s evidence the she has good days and bad days on a fairly equal basis.
(b) on good days, the respondent is able to be up and about and may go for breakfast or lunch and may take her mother out for lunch.
(c) the respondent would sometimes go to the shops by herself and would sometimes go out on weekends with her cousin or partner.
(d) the Assessor should have taken account of all the available evidence and not overly relied on the respondent’s self-reporting.
In reply the respondent submits that:
(a) The Medical Assessor gave careful and detailed consideration to the evidence in forming his opinion.
(b) The Medical Assessor gave appropriate consideration to the Respondent’s presentation on the day of the Assessment.
In respect of Concentration, persistence and pace -
19. In summary the Appellant submits that:
(a) The Medical Assessor recorded a history that the respondent’s symptoms come and go and half of the time she had good days and half of the time had bad days.
(b) The respondent was able to fully able to participate in the interview process with the Medical Assessor.
(c) The respondent could drive 45 minutes whilst on the telephone with ger daughter.
(d) The difficulties reported by the respondent that she could follow recipes after reading it a few times and that the respondent had difficulty with crochet or knit work was more suggestive of a class 2 assessment rather than a class 3.
In reply the respondent submits that:
(a) The Medical Assessor properly considered all of the evidence.
(b) The Medical Assessor clearly states why he formed the opinions that he did.
(c) The mere fact that the respondent was able to effectively participate in the interview process should be viewed in the context of it being conducted by a trained and qualified person with specialised knowledge and experience.
In respect of Employability -
20. In summary the appellant submits that:
(a) The Medical Assessor placed undue weight on the respondent’s self account.
(b) The Medical Assessor should have all of the evidence.
(c) the respondent’s conceded that on occasion she was up and about would do
quite a few things around the house.
The respondent submits that:
(a) The Medical Assessor had regard to the available evidence as well as his assessment of the Respondent on examination.
(b) The Assessor made an assessment based upon all relevant information in forming a view including the respondent’s presentation and history at the time of making his assessment.
21. The Guidelines set out the class descriptor for each functional impairment for the purposes of the rating scale.
On preliminary review the Panel considered that the Medical Assessor did not articulate with sufficient clarity the reasons for placing the respondent in the classes he did in respect of each of the impairment categories the subject of the Appeal and for this reason, the Panel considered that it was appropriate for the respondent to be re-examined. Similarly, with regard to the matter of whether there should be a deduction for any preexisting condition. The re-examination was conducted by Medical Assessor Dr Baker on 31 March 2025. Appeal panel Member Baker addressors the relevant descriptors for each relevant class of impairment in his re-examination report.
THE RE-EXAMINATION REPORT OF DR BAKER
22. Set out below is the re-examination report of Appeal Member Baker:
1. The workers medical history, where it differs from previous records
Ms Kalpakdjian attended an examination with Dr John Baker by videoconference on 31 March 2025 at 10:00 a.m. The worker was at her boy-friend’s house. She was assessed alone. She said that her mother was admitted to St George Hospital on Saturday which was about 2 days prior to this assessment. She said she was expecting a favourable outcome as her mother of 87 years was suffering from a chest infection. She said her mother was sad and grieved for the death of her father in December 2023. This report is consistent with the hand-written note in response to similar enquiry at page 161 of the joint bundle, where her mother is sad and distressed due to life stressors. The hand-written record on 161 stated: “Mum – nervous breakdown – from life pressures.”
Ms Kalpakdjian said she received her entitlements after her last day of work on 11 August 2021.
The worker’s medical history:
Ms Kalpakdjian provided the following history. She said she had never suffered from any psychiatric condition prior to commencing employment with the employer in October 1998. She said that she was initially employed as a causal worker. She was promoted to work in a full-time role in 2000 working at the Coles Brighton store as a Deli Manager.
Prior to working for the employer Ms Kalpakdjian had worked in the following roles without psychological or physical injury. She provided the following history:
· Shoe shop assistant casual role from 16 to 18 years of age.
· After completing Year 12 at J.J. Cahill High School she commenced work as an Import and Export clerk for a private company for about 3 years.
· She then worked for TNT in logistics as a freight cost estimator for about 12 years.
· She worked in a family partnership, causal hours for her husband and brother-in-law. The family owned a Creperie located at Darling Harbour and a Café at Bondi between 1992 until 1998 when they left this business.
· Ms Kalpakdjian found employment with this employer in October 1998. She remained employed until about August 2021.
Prior to working for this employer, she married and had a son and daughter to this union. Her son was aged 37 years and her daughter 33 years. She had grand children from her adult children’s, unions. Her marriage was dissolved after 25 years.
Ms Kalpakdjian reported the separation was amicable as both parties had grown apart with time.
Ms Kalpakdjian did not suffer from any childhood trauma, abuse or neglect. She did not suffer from any postnatal depression or psychological conditions associated with pregnancy.
Ms Kalpakdjian said her husband also had worked in the same Coles Store whilst she worked and she was comfortable with him working.
Ms Kalpakdjian reported not gambling, not smoking tobacco for many years and alcohol consumption on rare occasions.
Ms Kalpakdjian said she had never lodged a NSW Worker’s Compensation claim in relation to any of her prior employments.
Employment as a Coles employee.
Ms Kalpakdjian said that she had started her employment with the employer in October 1998. She said that she was the Bakery manager at the Ramsgate store from about 2016. She said that prior to this last location, she had worked between two stores, one at Brighton and the other at Ramsgate.
Ms Kalpakdjian said she was initially working part-time in a casual role. In about 2000 she was employed fulltime. She remained a fulltime employee until her entitlements were paid out in about August 2021.
Ms Kalpakdjian said she had worked between the two stores in various roles listed below:
· October 1998 causal worker for the store at Brighton.
· About 2000 she was the Deli manager at Brighton.
· Ms Kalpakdjian said that whilst she was working at Ramsgate, in about 2006 (15 years before the making of her Statement on 30 August 2021 at point 36.) she said the store she was working at was robbed by two robbers.
· Ms Kalpakdjian said that she was working at the back of the store, when the robbers entered the store.
· She said that she was advised by her manager to go to the computer room as this door could not be opened from the outside without a key.
· She said she did not see the robbers.
· She was not threatened by the robbers.
· She called the NSW Police to advise them that the store was being robbed.
· She said that her manager provided further information as her manger had seen the robbers.
· The robbers fled.
· Ms Kalpakdjian did not have to attend court to give evidence in relation to this event.
· She said she was anxious and utilised the Employees Assistance Program (EAP). She spoke with a counsellor on about 4 occasions.
· Ms Kalpakdjian did not lodge a NSW Workcover Treatment claim or claim for psychological injury in relation to the robbery.
· Ms Kalpakdjian said she continued her career.
· Ms Kalpakdjian said she would become anxious, but she would cope with her anxiety and continue working without disability or impairment.
· Ms Kalpakdjian said she had received some assistance immediately after the robbery from a “work organised psychologist.”
· In about 2009 she was transferred to Ramsgate store as the meat manager was on leave. On return of the manager from leave she transferred to the Deli at Ramsgate. In 2010 she was working in the Bakery at Ramsgate.
· She was then transferred to Brighton again and worked in point of sale working on sales and product price changes, until about 2011.
· Whilst at Brighton she was then transferred to work in the meat department in about 2014.
· Ms Kalpakdjian reported that in about 2014 she began to develop bunions of both her great toes. She said she was anxious about having surgery.
· She said that she did suffer from persistent pain due to her physical condition of bilateral bunions.
· She had bilateral bunion surgery at Prince of Wales private hospital performed by Dr Negrine. Her left toe was successful. Her right toe was not successful. She used conservative physical treatment and Diazepam 5mg whilst she sought a second opinion and surgical treatment to her right great toe in 2017. The surgery was successful.
· At the time of this re-examination, Ms Kalpakdjian was not anxious about needing future surgery and she had been pain free from her bunions.
· The Panel notes that Ms Kalpakdjian whilst symptomatic with her anxiety about surgical treatment of her physical condition, did not stop her career working for the employer. For Ms Kalpakdjian to have a DSM-5-TR compliant psychiatric condition related to her physical condition of bunions, she must have loss of function or significant distress. The medical records referred to by Dr Bisht were not in the medical records forwarded with this referral.
· The Panel notes that the references to medical records prior to about 31 October 2021 were via other authors interpretations of references in their reports and not from the provided documents forwarded to the Panel.
· During the festive period of 2015 she filled in for the Bakery manager who was on unexpected leave. She then became fulltime in Brighton Bakery as the manager from 2016 until her employment was ceased in about August 2021.
2. Additional history since the original Medical Assessment Certificate
Whilst Ms Kalpakdjian reported symptoms of depression whilst asserting she was not aware that she had been “diagnosed with any psychiatric condition” prior to this re-examination. She had a poor understanding of her psychological condition. She provided the following history that was provided in a disjointed manner throughout the re-examination:
· Ms Kalpakdjian reported having a depressed mood, most days. She said she tries not to think about her depression as she will become overwhelmed by her frustration and irritability
· Loss of interest in her hobbies of attending the gym, knitting and crochet
· Rapid onset of fatigue and low energy with her abandoning her two friendships at the gym due to her not having energy to participate with the routine exercises she could have before the onset of this primary psychological injury.
· Loss of interest in her nutrition with her eating mainly take-away, pizza and KFC (deep fried chicken). She had increased in weight more than 5% as defined by DSM-5-TR criteria for Major depressive disorder.
· Ms Kalpakdjian reported poor sleep with over sleeping and difficulty rising from the bed each morning.
· Poor concentration with frequent interruption in her concentration due to intrusive depressive themes of been bullied and harassed, with recurrent public humiliation due to the manager who started work in her store in 2019.
· Loss of capacity to persist with complex tasks such as her preferred such as knitting. She said she could only persist with crochet for a few minutes before she lost interest and abandoned the activity.
· Ms Kalpakdjian said she had not received any training whilst working in the bakery and she had informed her employer that the operation procedure had changes between her two sessions of work in this area.
· Ms Kalpakdjian reported that she does have recurrent intrusive thoughts of death without any specific plan. She said she frequently feels excessive shame, worthlessness and guilt for being a burden on her adult children’s finances, as she has no income and had not been able to work.
· Ms Kalpakdjian said she was living off her savings.
· She does not receive NSW Workcover payments.
· She does not receive income protection or total and permanent disability payments. This statement by Ms Kalpakdjian is consistent with the TAL application in the forwarded documents that were dated 13 December 2021
· She had lost hope and does not have the interest or capacity to apply for Australian Government Jobseeker payments or Disability Support Payments.
Ms Kalpakdjian had received treatment from her local medical practitioner and clinical psychologist. She had been provided with antidepressant medication. She said she was unable to tolerate antidepressant medication as she suffers from gastroenteric side effects, including nausea and vomiting. In discussion with her general practitioner, she had decided not to use antidepressant medication.
Ms Kalpakdjian had been treated with evidence based cognitive behavioural therapy for her “depression and anxiety.” She had ceased psychological treatment when she was not provided with funding from the insurer. She reported she had not been treated by a psychiatrist. She said she had not been admitted to a psychiatric hospital in relation to this primary psychological injury.
At the time of this re-examination, she appeared sullen and depressed. Her depressive episode was similar to that reported by Dr Smith where he diagnosis Ms Kalpakdjian as suffering from Persistent depressive disorder with major depressive episodes. At the time of this assessment the claimant was suffering from a Major depressive disorder with a recurrent episode. Using DSM-5-TR criteria Major depressive disorder with recurrent episode best fits the clinical presentation as reported by all other psychiatrists and at the time of this assessment. The diagnoses explain why the variability in observation between Dr Smith and Dr Bisht is marked. It also explains that the reduced severity of symptoms during partial recovery has also been well recorded by the various independent psychiatric reports and supports the known variability in clinical consistency known for prolonged depressive disorders. The last script for Cymbalta (duloxetine) 30mg was prescribed on 27 March 2022. The like period for deterioration of symptoms is between 6 to 12 months after ceasing medication which is consistent with the history provided by Ms Kalpakdjian.
The general practice medical records forwarded with the documents commenced 26 October 2021 and ceased on 20 September 2023.
3. Findings on clinical examination
Ms Kalpakdjian’s mental state examination was as follows:
Ms Kalpakdjian presented as a dishevelled and irritable woman with unwashed and unbrushed hair. She would have tearful outburst during the assessment when talking about the bullying and harassment she had endured since the commencement of employment by her store manager. She spoke in a loud voice when angry. Rapport was difficulty to establish and maintain. When rapport was lost, the assessor provided Ms Kalpakdjian with time to settle and use her relaxation and cognitive skills prior to proceeding with the re-examination.
Ms Kalpakdjian spoke about her inability to stop ruminating about her loss of self-worth, loss of self -esteem and loss of career. She said because of her loss of capacity to work she was a burden to her adult children and that she lived with her daughter and her daughter’s family most days. Ms Kalpakdjian reported that she had “lost motivation.” She was asked what she meant by this description, she said she was too sad to bother, and she was depressed most days, with fatigue, low energy and thoughts of death with her ruminating, “why carry on.” She said she was not interested in celebrations with her extended family. She had no Easter celebrations planned as she would have prior to the onset of this primary psychological injury. She did not report melancholia as she said her grandchildren provided her with some joy. She said that she had not participated in Christmas or Easter for about 3 years. She said she had lost interest in celebrating birthdays for the grandchildren. She reported that she would provide incidental care for her grandchildren. She could drive to her ex-husband’s house and assist with some transport of her grandchildren if her daughter was busy. She would ruminate and become agitated when driving.
Ms Kalpakdjian required breaks during the re-examination as she would become tearful and irritable. She said this emotional lability is caused by her having depressive intrusive thoughts of being, “targeted by her store manager from day one of his arrival.” She used a support person either as a passenger or on the telephone to talk to her whilst she drove outside the house. She did have thoughts of death that were not merely “fear of dying”. She did not have thoughts of harming herself or others. She had depressive rumination of hopelessness and worthlessness with low self-esteem and feelings of shame and guilt as she felt she was a “burden on her adult children.” She was insightful into her condition. Her judgment was fair. She did not have psychotic symptoms or delusional ideas.
The worker’s mental state had deteriorated after stopping medication.
4. Assessment of Whole Person Impairment
The PIRS category of Social and recreational activities was re-assessed:
Dr Bisht had documented, “The client (Ms Kalpakdjian) only occasionally attends social gatherings. Even when the client goes, the client doesn’t actively participate. The client is able to attend social and recreational activities without a support person.”
Ms Kalpakdjian was asked about the frequency that she attends social gatherings. She said she had not participated in Christmas gift giving for the grandchildren and she had not participated in Easter celebrations with the grandchildren since having left work in 2021. She was asked why she had stopped these activities and she said she had lost interest and did not have the energy or motivation to attend and help her daughter or son with these events.
Dr Bisht had documented, “She (Ms Kalpakdjian) said that she sometimes goes to her mother’s house…” Ms Kalpakdjian was asked about her attendance at her mother’s house and what she does when she is there. Ms Kalpakdjian said that her mother is 87 years of age. She said that her boyfriend of many years lives closer to her mother’s home than her daughter. Ms Kalpakdjian said she attended her mother's house to check on her wellbeing, hygiene and provide some cleaning and sometimes laundry. She said she does chat with her mother about her mother’s past shared events. She said she does not engage in Christmas, birthday or Easter cerebrations with her mother. She does not leave the house with her mother to shop as she is frail. Ms Kalpakdjian does ring her mother daily, to check on her and on the Saturday prior to his assessment she noted that her mother was unwell, with the support of her boyfriend Ms Kalpakdjian organised for her mother to go to hospital for treatment of her chest infection.
Dr Bisht documented, “I (Ms Kalpakdjian) do have a lot of friends who I tend to talk to when I am feeling down…”
Ms Kalpakdjian was asked about her friendship circle. She said since leaving work she does not have “a lot of friends.” She said she had her boyfriend whom she would visit about once every fortnight for one to two days, if her mother was not in need. She said she does ring her boyfriend most days. She said she does not socialise with any friends, and she does not socialise with the two friends she had at the gym since she stopped her membership.
Ms Kalpakdjian said that she had stopped attending cafes and shopping with her daughter and that she had not engaged in this activity for a number of years.
The impairment for Social and recreational activities was of moderate severity, Class 3.
The PIRS category of Concentration, persistence and pace was re-assessed:
Dr Bisht documented, “She said - “I (Ms Kalpakdjian) do go on the internet and read up on things or I might sit there and play a game on my phone…I will try to keep myself busy somewhere…She is not able to read more than a page and half at a time as her mind drifts away.”
Ms Kalpakdjian said that prior to the onset of her primary psychological injury she could use the internet to find things of interest. Since the onset of depression Ms Kalpakdjian reports, looking at other people’s posts on Facebook. She said she was not able to concentrate to post anything herself and she felt shame as she had nothing to write about but her depression.
Ms Kalpakdjian said she was no longer able to read a knitting pattern, a complex task she could have easily achieved since been taught by her grandmother how to knit when she was about 10 years of age. She has abandoned knitting. Ms Kalpakdjian said she had never been able to crochet with high skill. She said she had made many, “granny squares” she tried to return to this basic crochet task but lost interest and abandoned this hobby as well. She said she no longer reads books as documented by Dr Bisht, “…She is not able to read more than a page and half at a time as her mind drifts away.” During the re-examination Ms Kalpakdjian progress through the assessment was slow. She required frequent breaks as she would return to her intrusive depressive themes of the process been pointless and herself been worthless with no hope for the future. She required encouragement to persist with the re-examination.
Dr Bisht documented, “She (Ms Kalpakdjian) is able to manage her own finances.” Ms Kalpakdjian was asked about her finances. She said she had one bank account, that holds her residual money from her employment entitlements. She has no bills or costs other than her phone. She lives with her daughter and relies on her daughter and son to financially support her needs.
Ms Kalpakdjian was aware she was entitled to income support through her superannuation policy, however, she abandoned the process and did not follow through as the process was too complex for her to persist with resolving and lodge her claim. This type of lack of concentration, persistence and pace impairment, is common in suffers of Major depressive disorder of recurrent type, where they make incomplete and disorganised attempts to complete complex tasks due to poor concentration with reduced persistence and pace.
Ms Kalpakdjian’s impairment for Concentration, persistence and pace was of moderate severity, Class 3.
:
Dr Bisht documented, “…from a psychiatric perspective, the client (Ms Kalpakdjian) would be able to work four hours a day, 5 days a week, in a job that does not require the client to have a role which involves frequent direct interactions with customers, or perform detail-oriented
tasks or manage other staff. The client is not able to work with the pre-injury employer.” It is noted that Dr Bisht does not provide any assistance as to what type of job would meet his restrictions. Dr Bisht’s restrictions have been made in the context of a woman who has only worked using these skills for many years and has no experience outside of her employment role since commencing work for the employer in 1998.Ms Kalpakdjian reported that she had not received any rehabilitation or assistance with re-training since she had left work from the employer. She said she was not fully trained prior to or whilst working in the Bakery. She said she had to learn as she went. She said she is fearful of employment and has lost hope that she would be able to work in any role. She said she was able to assist with her grandchildren but she had no formal training or preparation for childcare service work. She had not attended Jobseeker at Centrelink. She had not worked in any capacity since leaving work in August 2021.
At the time of this re-examination Ms Kalpakdjian’s capacity to work in any role would be erratic. The severity of her depression would cause her employability to be more impaired than described by some assessors prior to this re-examination. Ms Kalpakdjian’s loss of employability is severe. The reasons for this finding are that she is aware that she has no income as well as been entitled to income support however she lacked capacity to follow through in either seeking new work as she had done prior to employment with this employer or seek employment related assistance through either the Australian Government Jobseeker program. Her self-esteem was severely impacted by the bullying and harassment she experienced because of her employment with this employer, she felt like a burden to her adult children who were supporting her.
For these reason Ms Kalpakdjian’s Employability is severely impaired, and falls within Class 4.
5. Re-examination of any deduction pursuant to s 323 of the 1998 Act and cl 1.11 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Guides).
Ms Kalpakdjian was employed in various roles prior to her employment with this employer. She had no pre-existing psychological or psychiatric impairments prior to her employment with this employer.
It is noted that Dr Bisht commented on Ms Kalpakdjian being prescribed diazepam for her anxiety. The symptom of anxiety is commonly treated in clinical practice with diazepam. The treatment of anxiety as a symptom does not indicate the presence of a DSM-5-TR diagnosable disorder. Dr Bisht does not diagnose her with a defined DSM-5-TR diagnosis in relation to either Ms Kalpakdjian symptoms of anxiety or any other related psychiatric condition related to the symptom of anxiety or prescribed diazepam.
Whilst working for this employer since 1998 Ms Kalpakdjian had been exposed to a robbery of the store she was working in whilst employed by this employer. She received psychological treatment provided by her employer soon after the event. Ms Kalpakdjian did not apply for any NSW Worker’s compensation claim for treatment in relation to this incident. She continued working in her role for many years and was able to remain employed with this employer without impairment.
Ms Kalpakdjian suffered from bilateral bunions. The physical condition is known to be painful. She was anxious that her physical condition was deteriorating. She sought medical assistance and surgical treatment. Her left toe recovered after the initial surgery. Her right toe recovered after her second surgery about three years later. She reported receiving diazepam to assist with her anxiety and sleep induction. After her second surgery was finalised in about 2017 she was able to persist with her employment without pain, disability or impairment.
In 2019 Ms Kalpakdjian’s store was allocated a new store manager. She reported she was targeted from day one. The targeting was on most days and she would have her work “nit-picked apart.” The new store manager recurrently isolated her and publicly humiliated her in front of her co-workers. Ms Kalpakdjian notified her general medical practitioner. She was diagnosed with “anxiety and depression”.
The anxiety described by Ms Kalpakdjian’s general practitioner was best understood as part of Ms Kalpakdjian major depressive disorder and would present when she was irritable and agitated. Ms Kalpakdjian did not have any pre-existing psychological condition prior to her employment with this employer. The claimant was noted to become anxious when confronted with serious questions about consent for surgery and medical treatment. The presence of anxiety as a symptom is insufficient to meet criteria for a recognised DSM-5-TR diagnosis.
Ms Kalpakdjian was capable of continuing her employment whilst suffering from her bilateral bunions and associated anxiety regarding her surgical treatments and slow recover. As Ms Kalpakdjian was capable to continue her employment she was not psychologically or psychiatrically impaired. For these reasons the claimant does not have a pre-existing psychological condition as defined by this section of the Act.
FINDINGS AND REASONS:
24. The Appeal Panel has reviewed and accepts the comprehensive re-examination report
of Appeal Member Dr Baker and his conclusions regarding the categories of impairment under the Guidelines and which ultimately do not differ from the relevant Classes as found by Medical Assessor Singh. However, given that it was the Panel’s view that Medical Assessor Singh did not provide sufficient clarity in his reasons regarding the classes of impairment for the PIRS Categories the subject of the Appeal the Panel nor in regard to any deductible proportion as previously referred the worker was re-assessed in respect of those matters.
The deemed date of injury
25. The Medical Assessor assessed the respondent according to the referral.
26. Both parties had the opportunity to raise any issue in respect of the terms of the referral with the Commission before it was forwarded by the Commission to the Medical Assessor.
27. The Medical Assessor assessed the respondent in accordance with the referral made, and in doing so made no error in that regard.
29. The respondent does not accept that for the purposes of the lump sum claim, that the notional date of injury is the date that the appellant contends for.
30.If the appellant wishes to agitate its argument in relation to the notional date of injury, then the appellant can consider what avenues may be available under the legislation in that regard.
CONCLUSSION
31.Given that it was the Panel’s view that Medical Assessor Singh did not provide sufficient clarity in his reasons regarding the classes of impairment for the PIRS Categories the subject of the Appeal and whether there should be any deductible proportion as previously referred to, the Medical Assessment Certificate dated 28 October 2024 of Medical Assessor Dr Singh is set aside and the following Certificate is issued:
Table 2 - Assessment in accordance with AMA5 and NSW workers compensation guidelines for the evaluation of permanent impairment for injuries received after 1 January 2002
This Certificate is issued pursuant to section 325 of the Workplace Injury Management and Workers Compensation Act 1998.
Matter Number: M1-W25271/24
Applicant:Sylvia Kalpakdjian
Date of Re-examination: 31 March 2025
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 AMA5 Guides % WPI WPI
Deductions pursuant o S323 for pre- existing injury, condition or abnormality (expressed as a fraction)
Sub- total/s % WPI (after any deductions in column 6) Psychological
Injury19
January
2024
deemed
Chapter 11. 14 15 Nil. 15% Total % WPI (the Combined Table values of all sub-totals) 15 %
PERSONAL INJURY COMMISSION
Table 11.8: PIRS Rating Form
Name Sylvia Kalpakdjian Claim reference number (if known)
DOB 28 March 1962
Age at time of injury 61 years Date of Injury 18 April 2022 (deemed)
Occupation at time of injury Bakery Manager Date of Re-examination 31 March 2025 Marital Status before injury Defacto
Psychiatric diagnoses DSM-5-TR F 33.10 Major depressive disorder recurrent episode.
Psychiatric treatment Ms Kalpakdjian had been treated with evidenced-based pharmacotherapy and evidenced-based psychological treatment by her general practitioner, and psychologist. She was compliant with her general practitioner and psychologist advice and regime. She suffered from known gastro-intestinal side-effects and ceased her evidence-based pharmacotherapy on medical advice. She had not attended a psychiatric hospital as an inpatient. She had not received evidence-based non-pharmacological psychiatric treatment for her primary psychological injury such as rTMS or inpatient treatment such as ECT.
Ms Kalpakdjian evidence-based psychological treatment was ceased prior to this re-examination due to cancelation of funding.
Is impairment permanent? Yes PIRS Category Class Reason for Decision Self Care and personal hygiene 1 Ms Kalpakdjian stated that her personal care is okay.
She will shower regularly and brush her teeth and
change to clean clothes. She does chores at her
home. She is involved in cooking and cleaning. It
varies depending on her day. However, she attends
the tasks needed at home.Social and recreational activities
(re-examined)3 Ms Kalpakdjian was asked about her friendship circle. She said since leaving work she does not have “a lot of friends.” She said she had her boyfriend whom she would visit about once every fortnight for one to two days, if her mother was not in need. She said she does ring her boyfriend most days. She said she does not socialise with any friends, and she does not socialise with the two friends she had at the gym since she stopped her membership.
Ms Kalpakdjian said that she had stopped attending cafes and shopping with her daughter and that she had not engaged in this activity for a number of years.
Ms Kalpakdjian said she does not engage in Christmas, birthday or Easter cerebrations with her mother. She does not leave the house with her mother to shop as she is frail. Ms Kalpakdjian does ring her mother daily, to check on her
Travel 2 Ms Kalpakdjian drives short distances, if she has to
drive long distance, then she is on the phone to keep
her mind off things. She may drive 30 minutes or 10
minutes depending on the need. She can drive for 1
hour as well if she is feeling okay but she has to be on
the phone. She may occasionally drive to places
where she has not been before but she is not
comfortable to do so. She caught a plane to travel to
Brisbane to be with her friend to get away from things
and have a break. She also has been to Nelson Bay
with her partner and her family.Social functioning
2 Ms Kalpakdjian stated that it is very challenging with her partner as she is short tempered. She stated that she has been in a de facto relationship with her partner for almost 10 years. She was married previously but they separated some long time ago. She has occasional fights and arguments with her partner. She denied any period of separation or domestic violence. She has a daughter who is 32 and a son who is 37 from her previous marriage and she lives with her daughter currently.
Concentration, persistence and pace
(re-examined)3 Ms Kalpakdjian said that prior to the onset of her primary psychological injury she could use the internet to find things of interest. Since the onset of depression Ms Kalpakdjian reports, looking at other people’s posts on Facebook. She said she was not able to concentrate to post anything herself and she felt shame as she had nothing to write about but her depression.
Ms Kalpakdjian said she was no longer able to read a knitting pattern, a complex task she could have easily achieved since been taught by her grandmother how to knit when she was about 10 years of age. She has abandoned knitting. Ms Kalpakdjian said she had never been able to crochet with high skill. She said she had made many, “granny squares” she tried to return to this basic crochet task but lost interest and abandoned this hobby as well. She said she no longer reads books.
Ms Kalpakdjian was aware she was entitled to income support through her superannuation policy, however, she abandoned the process and did not follow through as the process was too complex for her to persist with resolving and lodge her claim. This type of lack of concentration, persistence and pace impairment, is common in suffers of Major depressive disorder of recurrent type, where they make incomplete and disorganised attempts to complete complex tasks due to poor concentration with reduced persistence and pace.
Employability
(re-examined)4 At the time of this re-examination Ms Kalpakdjian’s capacity to work in any role would be erratic. The severity of her depression would cause her employability to be more impaired than described by some assessors prior to this re-examination. Ms Kalpakdjian’s loss of employability is severe. The reasons for this finding are that she is aware that she has no income as well as been entitled to income support however she lacked capacity to follow through in either seeking new work as she had done prior to employment with this employer or seek employment related assistance through either the Australian Government Jobseeker program. Her self-esteem was severely impacted by the bullying and harassment she experienced because of her employment with this employer, she felt like a burden to her adult children who were supporting her.
Score Median Class 1 2 2 3 3 4 3 Aggregate Score Impairment Total 15% +1 +2 +2 +3 +3 +4 15 15
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0
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