Dib v Sydney Tools Pty Ltd
[2024] NSWPICMP 542
•6 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Dib v Sydney Tools Pty Ltd [2024] NSWPICMP 542 |
| APPELLANT: | Mounir Dib |
| RESPONDENT: | Sydney Tools Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Isaksen |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| DATE OF DECISION: | 6 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment for psychological injury; worker challenges assessments of the psychiatric impairment rating scale (PIRS) for self-care and personal hygiene, social and recreational activities, and social functioning; Held – demonstrable error in assessment of self-care and personal hygiene only; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 March 2024 the appellant, Mounir Dib, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 February 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Dib sustained a psychological injury in the course of his employment with the respondent, Sydney Tools Pty Limited, as a result of having to work with an increased workload, with undue expectations, micromanagement, and constant belittlement from his work colleagues.
Mr Dib states that he ceased work in September 2021 due to his psychological injury and has not worked since.
Mr Dib has not had any treatment from a psychiatrist, but has attended Lynette de Salis, psychologist, for counselling and strategies to control some of his psychological symptoms.
Mr Dib made a claim for a lump sum payment for 15% whole person impairment (WPI) based upon an assessment made by Dr Rastogi, consultant psychiatrist, in a report dated 20 January 2023.
The allocation of classes in the PIRS categories made by Dr Rastogi was as follows:
Self care and personal hygiene Mild impairment Class 2
Social and recreational activities Moderate impairment Class 3
Travel Mild impairment Class 2
Social functioning and relationships Mild impairment Class 2
Concentration, persistence and pace Moderate impairment Class 3
Adaptation Moderate impairment Class 3
Dr Rastogi diagnosed Mr Dib as having an adjustment disorder with anxious distress in partial recovery.
Dr MacDonald, forensic and general psychiatrist, provided a report dated 11 July 2023 at the request of the respondent and in response to the applicant’s claim for lump sum compensation.
Dr MacDonald made an assessment of 10% WPI, which included 1% for the effects of treatment. The allocation of classes in the PIRS categories made by Dr MacDonald was as follows:
Self care and personal hygiene Mild impairment Class 2
Social and recreational activities Mild impairment Class 2
Travel Mild impairment Class 2
Social functioning and relationships Mild impairment Class 2
Concentration, persistence and pace Moderate impairment Class 3
Adaptation Severe impairment Class 5
Dr MacDonald made a diagnosis of adjustment disorder with mixed anxiety and depressed mood in partial remission.
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 it was not necessary for the worker to undergo a further medical examination because there was sufficient material to determine the issues which are the subject of the appeal.
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 Medical Assessor examined Mr Dib by video on 29 January 2024. The Medical Assessor found no evidence of any psychomotor agitation or retardation. She found that Mr Dib gave a clear account of his symptoms and difficulties. She found his affect slightly dysphoric. The Medical Assessor recorded that Mr Dib reported ongoing negative rumination, and feelings of hopelessness and worthlessness.
The Medical Assessor made a diagnosis of adjustment disorder with mixed anxious and depressed mood.
The allocation of classes in the PIRS categories made by the Medical Assessor was as follows:
Self care and personal hygiene Mild impairment Class 2
Social and recreational activities Mild impairment Class 2
Travel Mild impairment Class 2
Social functioning and relationships Mild impairment Class 2
Concentration, persistence and pace Moderate impairment Class 3
Adaptation Severe impairment Class 5Mr Dib submits that the Medical Assessor has erred in the assessments of the PIRS categories for self care and personal hygiene, social and recreational activities, and social functioning. The reasons provided by the Medical Assessor in selecting those classes are set out in the MAC as follows:
· Self care and hygiene: “Mr Dib reported that he showers every three to four days and changes into clean clothes when he goes out or every three to four days. He thinks late as he gets up very late. He said that his wife insists him to get haircuts as she is a hairdresser. He has been able to maintain his lawn and does that on a monthly basis. He misses his breakfast and relies on his wife to cook meals.”
· Social and recreational activities: “Mr Dib reported that he used to enjoy fishing, physical work out, hanging out with friends, family barbecues, taking kids to park, and spending time with them and coin collecting. He said that he attends a family barbecue when people come over to his house and he went out for a barbecue on Australia Day as well. He said that his wife ‘forces him’ to go to shopping and he goes to the gym. He said that he is has been going to the gym to lose weight which gives him something to look forward to. He is able to go to the gym and to attend the exercise physiologist and other appointments on his own.”
· Social functioning: “He currently lives with his wife and three daughters, aged 14, 13, and 11 years. He reported that his wife is supportive and understanding of what he is going through. He at times gets snappy but they have been working through the difficult situation. He reported that he has a good relationship with his daughters. There was no evidence of any domestic violence or separation or community services having to look after the children.”
The Medical Assessor added 1% for the effects of treatment and made an assessment of 10% WPI.
The Medical Assessor referred to other medical evidence. She noted that her assessment of social and recreational activities differed from the moderate impairment assessed by Dr Rastogi. Dr Rastogi recorded that Mr Dib was not socially involved, had one friend whom he occasionally engaged with, and preferred to stay home. The Medical Assessor recorded that Mr Dib was fine to socialise at his home, went out shopping with his wife, and was able to go to the gym. The Medical Assessor placed Mr Dib in class 2 for mild impairment for this category.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions
Mr Dib refers to Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324, wherein Gleeson JA said at [77-87] that for an error to be demonstrable then it needs to be material and apparent on the face of the certificate, rather than a difference of opinion.
Mr Dib submits that in relation to self care and hygiene, the assessment made by the Medical Assessor does not support class 2 and amounts to a demonstrable error because Mr Dib cannot live independently and look after himself adequately. Mr Dib submits that showering every three to four days and missing meals and relying on his wife to cook supports an assessment of class 3.
Mr Dib refers to both Dr Rastogi and Dr MacDonald recording him as being socially withdrawn. He submits that his condition has worsened since attending those doctors by reference to the record made by the Medical Assessor that his one friend has stopped coming to see him because there has been a disagreement between them.
Mr Dib submits that the details recorded by the Medical Assessor supports a finding of class 4 for social and recreational activities, although it would appear that he is referring to class 3 by the reference in the submissions to: “Not actively involved, remains quiet and withdrawn”. He submits that the assessment of class 2 by the Medical Assessor amounts to a material demonstrable error.
Mr Dib submits that the disagreement with his friend also supports a finding of class 4 for social functioning because it meets the examples given of ‘unable to form or sustain long-term relationships’ and pre-existing relationships ended (eg lost partner, close friends)’. Mr Dib submits that the assessment of class 2 made by the Medical Assessor is a material demonstrable error which is evident on the face of the MAC.
The respondent’s submissions
The respondent submits that an identification of an error requires more than the Appeal Panel simply reaching a different opinion to the Medical Assessor where the opinion of the Medical Assessor was reasonably available. The respondent refers to Parker v Select Civil Pty Limited [2018] NSWSC 140 (Parker), wherein Harrison AsJ said at [66]:
“In relation to the Classes of PIRS there has to be more than a difference of opinion on a subject about reasonable minds may differ to establish error in the statutory sense.”
The respondent also refers to Parker at [68]:
“…it is important to appreciate that the descriptors, or examples, describing Class 2 and Class 3 of impairment for self care and hygiene are ‘examples only’: see Jenkins. These descriptors are not intended to be exclusive and are subject to the variables that accompany a person seeking psychiatric help such as age, sex and cultural norms: see Ferguson.”
The respondent submits that the assessment of class 2 for self care and hygiene is not even a matter where reasonable minds differ because Dr Rastogi, Dr MacDonald and the Medical Assessor are all in agreement with the allocation of this class. The respondent submits that the details referred to by the Medical Assessor do not reach the level of moderate impairment where Mr Dib cannot live independently without regular support. Mr Dib does not require support for showering or to change clothes, and the role of cooking is taken by the wife and not due to any lack of ability by Mr Dib.
The respondent submits that in relation to social and recreational activities, the assessment of class 2 is supported by the details recorded by the Medical Assessor of Mr Dib regularly attending the gym and attending an Australia Day barbecue, as well as hosting barbecues at his home.
The respondent submits that the cessation of visiting by a close friend is irrelevant because it should only apply to the category of social functioning and there is no evidence that this has occurred as a result of Mr Dib’s impairment.
The respondent submits that social functioning is also a category where Dr Rastogi, Dr MacDonald and the Medical Assessor are all in agreement. The respondent submits that even if Mr Dib’s disagreement with his friend results from his injury or impairment, class 2 allows for loss of some friendships, and Mr Dib otherwise has a supportive relationship with his immediate and extended family.
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 has considered the assessment of the three PIRS categories which have been challenged by Mr Dib.
Self care and personal hygiene
The Medical Assessor places Mr Dib in class 2 for self care and personal hygiene, which is set out in the Guidelines as follows:
“Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on takeaway food.”
Class 3 in the Guidelines for self care and personal hygiene is as follows:
“Moderate impairment: can’t live independently without regular support. Needs prompting to shower daily and where clean close. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
The Appeal Panel concludes that there is a demonstrable error in the MAC in the assessment of Mr Dib having only mild impairment for self care and personal hygiene because it is apparent from the details recorded by the Medical Assessor that Mr Dib cannot live independently without regular support, and he is moderately impaired in his own self care.
The Medical Assessor records that Mr Dib relies on his wife to cook meals. This reveals a level of dependency far greater than the conclusion reached by Dr McDonald (and which is relied upon by the respondent in its submissions) that Mr Dib’s wife does the cooking because of her role in the house rather than any lack of ability to cook by Mr Dib. This indicates that Mr Dib cannot live independently, and instead needs regular support from his wife.
Other details recorded by the Medical Assessor of the prompting of Mr Dib by his wife reinforces a conclusion that Mr Dib requires regular support. The Medical Assessor records that Mr Dib’s wife has to insist on him getting his hair cut and “forces him” to go shopping.
There are other details recorded by the Medical Assessor which support a conclusion that class 2 for self care and personal hygiene is not appropriate, and that Mr Dib should be assessed as class 3. Mr Dib states: “I always miss meals”. The Medical Assessor records that Mr Dib “misses his breakfast”, which fits “frequently misses meals” within class 3, rather than “sometimes misses a meal” in class 2. The Appeal Panel notes that although Dr Rastogi assesses a mild impairment for self care, she also records that Mr Dib struggles with daily routine and skips showers and meals.
The Medical Assessor records that Mr Dib has put on excessive weight due to poor routine since his injury. That is also referred to by Dr Rastogi when she recorded in January 2023 that Mr Dib had gained 10 kgs in weight, and by Dr McDonald when she recorded some six months later that Mr Dib had gained about 15 kgs in weight.
The Medical Assessor records that Mr Dib smokes two to three packets of cigarettes each day. Dr McDonald records the same details and adds that this is a “significantly increased” level of consumption. Dr Rastogi records that Mr Dib “wakes up and smokes.”
The respondent submits that the assessment of class 2 for self care and hygiene should not be disturbed because Dr Rastogi, Dr MacDonald and the Medical Assessor are all in agreement with the allocation of this class. The respondent submits that this is not even a situation where reasonable minds might differ.
However, para 1.6 (a) of Chapter 1 of the Guidelines provides that: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taken into account the claimants relevant medical history and all available relevant medical information.”
The Appeal Panel concludes that the details recorded by the Medical Assessor in the clinical assessment of Mr Dib on the day he presented for assessment and which have now been referred to in this decision, supports an assessment of moderate impairment. The assessment of class 2 for self care and personal hygiene accordingly amounts to a demonstrable error and is not merely a difference of opinion between the Medical Assessor and the Appeal Panel.
The MAC will be revoked to allow for an assessment of class 3 for self care and personal hygiene.
Social and recreational activities
The Medical Assessor places Mr Dib in class 2 for social and recreational activities, which is set out in the Guidelines as follows:
“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 in the Guidelines for social and recreational activities is as follows:
“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.”
The Appeal Panel concludes that the details recorded by the Medical Assessor whereby she came to the assessment of class 2 for social and recreational activities does not amount to a demonstrable error or is based upon incorrect criteria.
The Medical Assessor records that Mr Dib goes to the gym, and attends an exercise physiologist and other appointments, on his own and without the need for a support person. In her assessment of the category of Travel, the Medical Assessor records that Mr Dib is able to drive to this gym, and doctors in Lakemba, which is about 35 kms from where he lives. She records that although Mr Dib prefers that his wife accompanies him, he is able to travel and drive without her. The Medical Assessor records that Mr Dib will attend a family barbecue if it is at his house and concludes that Mr Dib “is fine to socialise when people come over to his place.” The Medical Assessor records that Mr Dib did go out for a barbecue on Australia Day, which was only a week prior to her assessment.
Those details recorded by the Medical Assessor fit appropriately within class 2. Class 3 includes: “Will not go out without a support person”, whereas Mr Dib is able to go the gym, which is a recreational activity, without a support person.
Class 3 also includes: “rarely goes out to such events”, whereas the details of social and recreational activities recorded by the Medical Assessor indicates that attending events away from his home is more than just a rare occasion for Mr Dib.
There is no change to the assessment by the Medical Assessor of class 2 for social and recreational activities.
Social functioning
The Medical Assessor places Mr Dib in class 2 for social functioning, which is set out in the Guidelines as follows:
“Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.”
Class 3 in the Guidelines for social functioning is as follows:
“Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The Appeal Panel concludes that the Medical Assessor’s assessment of class 2 for social functioning does not contain a demonstrable error or is based upon incorrect criteria.
The record made by the Medical Assessor that Mr Dib sometimes gets snappy, but that he and his wife have been working through their difficult situation, is consistent with tensions and arguments referred to as part of the descriptor in the Guidelines for class 2. The details recorded by the Medical Assessor do not extend to the marital relationship being severely strained or there being periods of separation or domestic violence. Mr Dib takes Taladafil, which the Appeal Panel concludes is indicative of ongoing sexual intimacy.
The Appeal Panel agrees with the submission made by the respondent that there is no evidence that the disagreement between Mr Dib and his one friend has been as a result of his psychological injury.
There is no change to the assessment by the Medical Assessor of class 2 for social functioning.
Conclusion
The Appeal Panel confirms that the following PIRS categories now apply:
Self care and personal hygiene Class 3
Social and recreational activities Class 2
Travel Class 2
Social functioning Class 2
Concentration, persistence and pace Class 3
Employability Class 5
Score Median Class
3 2 2 2 3 5 3
Aggregate Score Impairment Total %
+3 +5 +7 +9 +12 +17 17 19%
Pre-existing deduction clause: Nil
Treatment effect clause +1% 20%
Final WPI = 20%.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 February 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: | W8600/23 |
Applicant: | Mounir Dib |
Respondent: | Sydney Tools Pty Limited |
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 Surabhi Verma 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) | ||
| 1. Psychological injury | 3/09/ 2021 | Chapter 11 Pp 54-60 | 20% | Nil | 20% | |||
| Total % WPI (the Combined Table values of all sub-totals) | 20% | |||||||
0
3
0