Dnata Catering Australia Subsidiary 1 Pty Ltd v Bazzi
[2022] NSWPICMP 17
•11 February 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Dnata Catering Australia Subsidiary 1 Pty Ltd v Bazzi [2022] NSWPICMP 17 |
| APPELLANT: | Dnata Catering Australia Subsidiary 1 Pty Ltd |
| RESPONDENT: | David Bazzi |
| APPEAL PANEL: | Member Carolyn Rimmer Professor Nicholas Glozier Dr Patrick Morris |
DATE OF DECISION: | 11 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Respondent worker sustained primary psychological injury deemed to have occurred on 17 October 2018; parties agreed that respondent worker developed secondary psychological injury resulting from an injury to the back on 11 April 2019; Held- Medical Assessor erred in failing to address the secondary psychological condition; respondent worker re-examined; Medical Assessment Certificate revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 September 2021 Dnata Catering Australia Subsidiary No 1 Pty Ltd (the appellant) made an application to appeal against a medical assessment (the appeal) to the President of the Personal Injury Commission (the Commission). The medical assessment was made by
Dr John Baker, Medical Assessor (the MA) and issued on 6 July 2021.The respondent to the appeal is David Bazzi (Mr Bazzi).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
·the assessment was made on the basis of incorrect criteria pursuant to s 327(3)(c) of the 1998 Act, and
·the Medical Assessment Certificate (MAC) contains a demonstrable error.
The delegate was satisfied that, on the face of the application, a ground of appeal was capable of being made out in the appeal application. The appeal was referred to a Medical Appeal Panel for determination.
The Appeal Panel has conducted a review of the original medical assessments but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 reissued 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 Bazzi developed a primary psychological injury in the course of his employment with the appellant as a runner.
On 25 January 2021, Mr Bazzi commenced proceedings in the Workers Compensation Commission claiming 17% whole person impairment (WPI) pursuant to section 66 of the Worker Compensation Act 1987 (the 1987 Act). Mr Bazzi made a claim for two psychological injuries on 14 August 2016 and on 2 February 2019.
On 15 February 2021, the appellant filed an Application to Admit Late Documents (the AALD) enclosing medical evidence relating to a physical injury suffered by Mr Bazzi on 11 April 2019.
On 22 February 2021, the matter was listed for teleconference before Senior Arbitrator Glenn Capel. The Application to Admit Late Documents was admitted into the proceedings and it was agreed between the parties that Mr Bazzi had developed a secondary psychological condition resulting from the injury sustained on 11 April 2019.
On 22 February 2021, a Certificate of Determination – Consent Orders was issued. In paragraph 5, it was noted the parties agreed that Mr Bazzi had developed a secondary psychological condition resulting from the injury sustained to his back on 11 April 2019.
The matter was referred to the MA, Dr Baker, on 21 June 2021 for assessment of WPI of
Mr Bazzi’s psychological disorder attributable to the injury on 4 August 2016 and 10 February 2019 (combined).The MA examined Mr Bazzi on 18 June 2021 and assessed 19% WPI in respect of a psychological disorder. Therefore, the total WPI was assessed as 19% WPI as a result of injury on 14 August 2016 and 10 February 2019 (combined).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that Mr Bazzi be re-examined by a MA who is a member of the Appeal Panel. However, the appellant was “not opposed” to Mr Bazzi being re-examined by the Appeal Panel should the Appeal Panel determine a re-examination was required.
As a result of that preliminary review, the Appeal Panel determined that it was necessary for Mr Bazzi to undergo a further medical examination because there was sufficient evidence on which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Professor Nicholas Glozier of the Appeal Panel conducted an examination of Mr Bazzi on 9 February 2022 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the MA that are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) The MAC contained a demonstrable error as the MA failed to address the secondary psychological condition.
(b) The MAC contained a demonstrable error as the MA failed to record a proper history from Mr Bazzi or from the available evidence.
(c) The MAC contained a demonstrable error on the basis that the MA failed to address the proportion to which Mr Bazzi’s psychological deficits may derive from the secondary condition.
(d) The MA based his assessment on incorrect criteria as he failed to assess the degree of permanent impairment in accordance with s 65A(2) of the Workers Compensation Act 1987 (1987 Act). Section 65A(2) states in assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(e) Chapter 1.22 of the Guidelines provides that a primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work related condition (e.g. depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in paragraph 1.19, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined.
(f) Demonstrable error - In paragraphs 4, 5 and 10 of the MAC, the MA only took into account the history of the psychological injuries.
(g) In paragraph 4 of the MAC, the MA obtained an incomplete and inaccurate history. On page 2 the MA noted: “…His treatment enabled him to attempt a return to employment. The incident in 2019 resulted in further psychiatric injury”. This was inconsistent with the medical evidence and in particular the certificates of capacity that were attached to the AALD.
(h) In paragraphs 4 and 5 of the MAC, the MA only recorded symptoms of the psychological injuries. At no point did the MA refer to any symptoms or impact of the secondary psychological symptoms as a consequence of the injury to
Mr Bazzi’s back on 11 April 2019. There was no reference to the secondary psychological condition resulting from the physical injury suffered by Mr Bazzi on 11 April 2019.(i) The MA failed to address the extent to which Mr Bazzi’s physical pain may be relevant to his psychological state of mind. The MA failed to either take into account, did not express a view or provide reasons the following medical evidence:
(i)Dr Paisley’s opinion on the impact of the physical injury on Mr Bazzi’s functional capacity, pain, and employment (page 29 of the Reply);
(ii) Dr Smith’s history that Mr Bazzi complained of constant debilitating lower back and that his psychological condition deteriorated significantly after his lower back injury (page 36 of the Reply);
(iii) the Physio Interactive Progress reports documenting Mr Bazzi’s significant amount of pain in his lower back and left ankle. That he had gained weight and other health problems leading to more depressive symptoms (pages 52,55 ,58 and 61 of the Reply), and
(iv) Dr Diwan noting Mr Bazzi had continuing back pain and he required changes to his medication (page 67 of the Reply).
(j) In paragraphs 10 of the MAC, the MA diagnosed Mr Bazzi with a persistent depressive disorder with anxious distress as a result of the bullying and harassment. There was no refence to a diagnosis related to the secondary psychological condition.
(k) The history regarding Mr Bazzi’s present symptoms in the PIRS table does not reference symptoms related to the secondary psychological condition on 11 April 2019 nor distinguish symptoms between the effects of the primary and secondary condition.
(l) For the reasons outlined above the MA fell into error by:
(i)failing to record a proper history from the worker and/or the available evidence;
(ii)not assessing impairment in accordance with section 65A of the 1987 Act, and
(iii)failing to distinguish between the effects of the primary and secondary psychological condition in the PIRS table.
(m) Incorrect criteria - the appellant repeats the submissions referred to above. The MA based his assessment on incorrect criteria by:
(i)not assessing impairment in accordance with section 65A of the 1987 Act, and
(ii) failing to distinguish between the effects of the primary and secondary psychological condition in the PIRS table.
(n) The MAC should be revoked and a new MAC issued based on the evidence and the assessment of whole person impairment be assessed in accordance with section 65A of the 1987 Act.
Mr Bazzi’s submissions include the following:
· The MA stated the injury date as being “14.8.16 & 10.2.2019”. The MAC did not take into account any injury involving physical injury and subsequent psychological injury. The MAC concluded that the injuries on 14 August 2016 and 10 February 2019 resulted in 19% WPI.
· At 10c of the MAC the MA wrote: “according to the above guide Mr Bazzi’s percentage is 17% WPI. The WPI disability is a result of at work, especially the incident of 14.8.2016 when he left his employment”.
· While the appellant submitted that the MAC failed to address the secondary condition, the MAC did not take into account any secondary psychological condition in accordance with s 65(a)(2) of the 1987 Act. The MA concluded that the injury on 14 August 2016 and 10 February 2019 resulted in 19% WPI.
· The appellant submitted that the MA “failed to record a proper history of the worker and on the available evidence” but the appellant did not indicate by way of examples or incidents what was a proper history from the worker on the available evidence
· The appellant submitted that “his treatment enabled him to return to employment. The incident in 2019 resulted in further psychiatric injury”. Section 65A (2) of the 1987 Act provides that in assessing the degree of impairment that results from a physical injury, no regard is to be had to any secondary psychological injury.
· When the MAC states “2019 injury” this refers to the injury on 10 February 2019 as this is the only defined injury in 2019.
· The MAC does not refer to the impact of any secondary psychological injury because the MA followed the 1987 Act and did not take this into account.
· The MAC did not refer to a diagnosis of a secondary injury because of the provisions of the 1987 Act.
· The appellant submitted that the MAC failed to address the proportion to which the psychological injury deficits may derive from the secondary condition. The respondent relies on s 65a (2) of the 1987 Act which provides that in assessing the degree of impairment that results from a physical injury, no regard is to be had to any secondary psychological injury.
· The appeal should be dismissed.
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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the section 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The Medical Assessment Certificate
On page 3 of the MAC under “Work history including previous work history if relevant”, the MA wrote:
“Over more recent years since about 2013 onwards, he found himself recurrently bullied and harassed, mainly by one other male employee. He tried to persist with his employment. He partly improved form the injury in 2016 and returned to work, to be further injured in 2019. Mr Bazzi had worked at the Sydney airport for about 31 years.”
On page 4 of the MAC, under “summary of injuries and diagnoses” the MA wrote “persistent depressive disorder with anxious distress”. The MA noted that Mr Bazzi had been exposed to many episodes of bullying and harassment in his workplace.
At 8 (g) of the MAC after “Indicate whether there has been any further injury subsequent to the work injury. If this injury has caused any additional impairment this should not be included with the assessment of impairment due to the subject work injury” the MA wrote “Not applicable.”
At 10(b) of the MAC under “Reasons for Assessment” the MA wrote:
“Mr Bazzi had no further injury subsequent to the subject work injury. No adjustment was made for further injury after the subject work injury, due to this reason
Mr Bazzi had been diagnosed with number of different physical conditions throughout his 31-year career. He had always worked as a labourer for this employer during this time. Physical injuries and associated pain are not assessed as part of a PIRS assessment in accordance with current guidelines. These conditions are assessed by the appropriate assessor of these physical conditions.”
In commenting on other medical opinion at 10(c) of the MAC, the MA referred to the Application to Admit Late Documents and in particular the Physio Interactive Progress Report and the report of Dr Ashish Diwan, orthopaedic surgeon, dated 20 February 2020.
Discussion
The MA is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the MA, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Ground 1 – Failure to address secondary psychological condition
In the Certificate of Determination – Consent Orders dated 22 February 2021 at paragraph 5, Senior Arbitrator Capel noted the parties agreed that Mr Bazzi developed a secondary psychological condition resulting from the injury sustained to his back on 11 April 2019.
The appellant submitted that the MAC contains demonstrable error as the MA failed to address the secondary psychological condition and failed to record a proper history from the worker or the available evidence.
Section 65Aof the 1987 Act provides:
“65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note: If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply-
(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note: If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5) In this section--
‘primary psychological injury’ means a psychological injury that is not a secondary psychological injury .
‘psychological injury’ includes psychiatric injury.
‘secondary psychological injury’ means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
Chapter 1.22 of the Guidelines provides:
“A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work related condition (eg depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in paragraph 1.19, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined.”
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
Dr Whetton in a report dated 9 April 2019, described Mr Bazzi’s symptoms in the two months before the injury to the back on 11 April 2019.
Dr Paisley in a report dated 5 August 2020 expressed the opinion that Mr Bazzi’s current psychological symptoms were predominantly secondary to the physical injury sustained on 16 April 2019 and impairment due to secondary injury.
Dr Ian Smith, in a report dated 11 March 2020, referred to the fall on 16 April 2019 when Mr Bazzi injured lumbar spine and left ankle. Dr Smith reported that Mr Bazzi had constant lower back pain radiating down the left leg to the great toe with a burning sensation. Dr Smith noted that Mr Bazzi said that his psychological symptoms got worse after his back injury and that this related to his back pain, immobility and loss of work, and not specifically to the issues with his colleague, although with the deterioration in his mental health symptoms it had caused him to reflect of the prior situation. Said psychological symptoms got worse after the back injury.
The Appeal Panel was satisfied that the MA erred in failing to address the secondary psychological condition that the parties agreed had developed as a result of the injury
Mr Bazzi sustained to his back on 11 April 2019. The finding by the MA that Mr Bazzi sustained no further injury subsequent to the subject work injury was inconsistent with the agreement of the parties on 22 February 2021 and the evidence in this matter and no reasons were provided to explain such inconsistency.The Appeal Panel concluded that it was necessary for the appellant worker to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above, Professor Glozier re-examined the appellant on 9 February 2022.
Professor Glozier provided the following report:“1. The worker’s medical history, where it differs from previous records
The Appeal Panel found error in the AMS not taking into consideration a secondary psychiatric injury arising from the physical injury on 11 April 2019, as identified in the COD. As such I focused on his condition before and after the second primary psychiatry injury, the associated impairment and any subsequent exacerbation.
Mr Bazzi stated he had never really recovered from the initial harassment and bullying, what he termed ‘the injury’, in 2016. Mr Bazzi said that since then much of his social life had been affected. He had lost friends, stopped going to clubs or for a drink, and following rugby league as he had done previously. He said he had lost intimacy with his wife and would generally sleep in his son’s room because he remained somewhat low, fearful and anxious, even outside of work. He had not attended the mosque for many years and this was not influenced by any injury. He said his sleep was already affected by the shoulder injury from 2008 and he would appear to have symptoms of an undiagnosed obstructive sleep apnoea with snoring, nocturnal wakenings. However he said that when he slept in his son’s room, his son might comment on him being unwashed and smelly, and prompt him to wash himself. He remained able to drive into work but because of his arousal and anxiety did not drive further distances. His family were supportive but he said this was more them feeling sorry for him. He felt he was not concentrating as well at work, that his memory was impaired somewhat but he continued to work due to the financial stressors of a mortgage and having to support his family.
Today he described the second injury on 10 February 2019 as in the Quantum report. He said he was in a section with Mr Price and asked to do work he should not do. He felt that even at that stage he was not functioning completely at work as he had been asked to work in a different section so he would not work with Mr Price, and could not do his previous job in the same area. He said he was abused and had a panic attack, whereby he felt he might have a heart attack or fall to the floor. A colleague sat him down and then he later complained to the manager. He went to the canteen for a couple of hours, took some anti-anxiety medication and later went to his doctor. He said he had some brief sick leave but did not want to make a complaint to the company because he feared for the loss of his job. A few days later he took some weeks of annual leave, before briefly returning to his role. Whilst back at work he said he was highly anxious, aroused, panicky, fearful of further harassment and the abuse that had continued for many years. He was back only briefly before his physical injury.
Two of the contemporaneous documents are very germane if inconsistent.
1) Mr Bazzi made a statement on 28 March 2019, prior to the physical injury. He noted he had been transferred to a back to a setting that caused him ongoing anxiety and arousal and there were no external stressors. He noted an impaired social life with fatigue and described the incident as above. He also noted not enjoying his food, middle insomnia with rumination, fear and a sense of possibly being attacked at night and said that this was an aggravation caused by the second injury He said he was still able to drive, but had limited sleep due to middle wakening and some cognitive difficulties.
2) Report by Dr Whetton, consultant psychiatrist for the insurers, dated 9 April 2019. Dr Whetton notes that Mr Bazzi continued at work but was dysfunctional at home, thinking about the incident, remaining angry and offended. He would be anxious and aroused when not busy, ruminating about his treatment. He was noted to be able to drive his car to work, where he was employed fulltime, but it was suggested he had some limited interaction with his close family. It was recorded he would watch TV or go on his phone but there were no social activities noted. He was thought to be able to concentrate reasonably and his self-care was not compromised. Mr Bazzi contradicted this today, saying his self-care has not really recovered since 2016. However he was noted to be casually-dressed and groomed.
Dr Whetton was of the opinion there was no significant impairment although this was inconsistent with the report by Mr Bazzi in his statement of only two weeks prior.
2. Additional history since the original Medical Assessment Certificate was performed
Mr Bazzi had a physical injury on 11 April 2019. He said he was pushing a load on an uneven floor which fell on his ankle, knocking him to the floor, leading to a back injury. He was taken to the clinic at work and has not returned since. There are recurrent Workcover certificates attributing work incapacity to this physical injury. Mr Bazzi has been treated conservatively and with increasing, and now significant, amounts of sedating and cognitively-impairing painkillers over time. However he is now on a waiting list for neurosurgery and is hopeful that this will improve some of his physical function and pain. He is due to be re-assessed when the operating theatres open up after the current COVID restrictions. He reports the pain as being bearable, but constant, and that it is made worse by any minor physical activity. As a result he is now unable to do even the contribution he was doing around the home previously, and could not undertake any of his physical demands at work.
The pain now limits his sleeping further, such that he does not get to sleep until approximately 3am and will then sleep much of the day, such that he lives at slightly different times than the rest of his family. He says he really only gets to sleep now with the analgesic medication and did not sleep well last night because he did not use this as it is so sedating during the day. However he says that the back pain does not cause him any significant psychological worries or exacerbate his mood problems, concern, fears as these all pre-dated the injury and have not changed significantly since. As such, the impact of his back injury has been on sleep, some associated physical limitations, and the very sedating effects of his analgesic medications. He no longer drives because the analgesic medication for his back has reduced his concentration yet further. He has had car accidents and gained so many demerit points he now only has two points left on his licence. He is unable to pay the fines and so has stopped driving for this reason. He leaves the house little now because he also cannot walk far due to pain. He reported no significant impact from his ankle injury except if he walks long distances that may cause an increase in pain and says that this is prevented by his back injury.
Currently he continues to live at home with his wife and two sons. He says they are still supportive, and feel sorry for him, but he is not intimate with his wife or particularly close with his sons. He has some support from close family members and friends, e.g. the one who drove him here today. He does very little around the home when he gets up, walking around the house, staying in his own room, or watching TV. He said the kids have put some apps on his phone which he rarely uses but he watches the news for COVID information, as he cannot follow serials due to his sedation and cognitive impairment. The family had COVID infections last year and as a result he moved to sleep in his own room: he is the only member of his family not to have been infected. His travel is as above limited by analgesic medication side effects. He is able to use his phone and demonstrated basic tasks on it, but otherwise describes difficulties with memory, concentration that predated the sedating analgesics which have dramatically impacted his cognitive function yet further. He says his self-care was already poor but it has deteriorated yet further as he is now fearful in the shower of slipping and thus requires someone to help supervise him when he is in the shower now and following his back injury.
Current medication
Agomelatine 25mg and Suvorexant 20mg. He also takes Mobic 15mg, Tramal 100mg, and reasonable doses of Lyrica and Panadeine but could not tell me exactly what. He said today he had not taken the Tramal and Panadeine Forte because they sedate him so much during the day.
3. Findings on clinical examination
Mr Bazzi was dishevelled, appeared sedated and somewhat disengaged. At times there was some retardation and he lost his train of thought. There were also times when he spoke for prolonged time, particularly when describing the events at work. He moved slowly, sat in pain, and had to get up and move around at one stage due to this pain. There was no evidence any limp from an ankle injury. He spoke with little prosody, but was not irritable or overly anxious. He described his mood as predominantly being low and miserable with little enjoyment. He is somewhat avoidant of others but with reduced stressors there is minimal arousal or panic. He reported long-term difficulties, markedly exacerbated by his sedating analgesia, social withdrawal, minimal and delayed sleep, in large part due to the pain. He also describes quite obvious obstructive sleep apnoea symptoms which have been contributing to his sedation and cognitive function. He cannot see how he can carry on like this and needs help and is hopeful that the operation will provide some relief.
4. Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Summary
From the notes and Mr Bazzi’s history today, as well as his contemporaneous report prior to the physical injury of April 2019, his impairment in the classes of Self-Care, Social Functioning, Social and Recreational Activities, Travel, and Concentration, Persistence and Pace even then would appear to be similar to that reported by the Medical Assessor, with neither significant improvement or deterioration arising from a psychiatric condition since. Today Mr Bazzi reported that although the physical injury had led to some additional impairment in self-care and employability, as recorded above, it had not led to any marked exacerbation in his mental state. As such, I was unable to identify any significant clinical impairment from any associated secondary psychiatric injury. In fact, beyond the impact upon his pre-existing insomnia pattern, I could not identify any actual secondary psychiatric injury.
It is apparent that he was able to work fulltime, although in limited duties with restriction on who he could work with, up until the time of the second incident. From his report today he took significant periods of time off up until the time of the physical injury of April 2019 following the second primary psychiatric injury of February 2019. As such his employability attributable to the index primary psychiatric injuries is at least moderate as he was not working fulltime, was taking extra time off to try and manage his symptoms and avoid many colleagues, and there is no indication from the ongoing chronicity and severity of his symptoms that he would have been able to return to work on a consistent and fulltime basis. He is unable to work more than part time due to physical injury. Even now he reports that he would hope at some stage to return to some form of work following neurosurgery.
As such, the only error in the PIRS I can ascertain is that within Employability, where the impairment attributable to his primary psychiatric injuries is a class 3 – moderate, and the MA failed to take into account the physical injury of April 2019 in this category.
Classes in Ascending Order: 2,2,2,3,3,3
Total: 15
Median: 3
Final whole person psychiatric impairment: 15%”
The Appeal Panel has adopted the report and findings of Professor Glozier.
The Appeal Panel concluded that Mr Bazzi’s impairment in the PIRS classes of Self-Care, Social Functioning, Social and Recreational Activities, Travel, and Concentration, Persistence and Pace were similar to that reported by the MA, with neither significant improvement or deterioration arising from a psychiatric condition since. In terms of Employability, the Appeal Panel concluded that the impairment attributable to his primary psychiatric injuries was a class 3 – moderate. The MA had assessed this as Class 5 and failed to take into account the physical injury of 16 April 2019 in this category.
The MA made an assessment of 19% WPI in respect of a psychological injury. Taking into account the injury on 16 April 2019, the Appeal Panel has made the same ratings in respect of the scale for Self-Care, Social Functioning, Social and Recreational Activities, Travel, and Concentration, Persistence and Pace as the MA. However, the Appeal Panel has made a rating of 3 in the scale for Employability. Therefore, the assessment of total WPI by the Appeal Panel is 15% WPI in respect of the injury on 14 August 2016 and 10 February 2019 (combined).
For these reasons, the Appeal Panel has determined that the MAC issued on 6 July 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr John J 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 AMA5 Guides | % WPI | % WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality | Sub-total/s % WPI (after any deductions in column 6) |
| Psychological/ Psychiatric disorder | 14/8/2016 and 10/2/2019 (combined) | Chapter 11 Pages 60-68 | Chapter 14 | 15% | nil | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
Carolyn Rimmer
Member
Professor Nicholas Glozier
Medical Assessor
Dr Patrick Morris
Medical Assessor
11 February 2022
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