El Masri v D&J Formwork (Aust) Pty Ltd
[2024] NSWPICMP 396
•20 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | El Masri v D&J Formwork (AUST) Pty Ltd [2024] NSWPICMP 396 |
| APPELLANT: | Ahmad Ali El Masri |
| RESPONDENT: | D&J Formwork (AUST) Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 20 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from claimant alleging psychological injury as a result of shoulder injury in 2018; whether maximum medical improvement (MMI) reached; Held – MMI not reached; claimant underwent fourth shoulder surgery two weeks before assessment; claimant invited to consider his condition immediately prior to that surgery; claimant came to Australia from Lebanon aged 25, functionally illiterate and with little insight into his condition; moreover only commenced treatment two months prior to assessment; Medical Assessment Certificate revoked and no MMI found. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 January 2024, the appellant, Ahmad Ali El Masri, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 15 December 2023.The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 13 October 2023 the delegate referred this matter for assessment of WPI caused by injury on 30 November 2018 which caused the onset of a psychiatric/psychological disorder.
The face of the referral contained the following:[1]
“Note for assessor:
The parties agree that the applicant in addition to a primary psychological injury has suffered from a secondary psychological injury as a result of physical injuries sustained on 30 November 2018. The Medical Assessor is to disregard any impairment or symptoms resulting from the secondary psychological injury suffered by the applicant in accordance with section 65A (2) of the 1987 Act, in addition to any section 323 deduction.”
[1] Appeal papers page 32.
Mr El Masri had been employed with the respondent since 2010. On 30 November 2018 he fell into a hole in a building site which had been covered by a piece of plywood he had removed without realising the hole was there.
He injured his right shoulder. He said that he had developed recurring thoughts that he might have died in the accident, and he also said he was scared because he did not want to be operated on.
Notwithstanding, he came to surgery on 5 January 2019 following which his mood deteriorated. He has undergone three subsequent operations on his shoulder.
He became upset and frustrated, worried that he would not recover or be able to work, with the resultant implications for his family.
Mr El Masri started treatment by a psychiatrist three or four months prior to the medical assessment on 15 December 2023. He had seen the psychiatrist about three times.
He has never before then, consulted a psychologist nor had any psychotherapeutic treatment.
The Medical Assessor assessed a total of 7% WPI, which he apportioned one half to the primary injury and one half to the secondary injury.
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.
The appellant requested to be re-examined by a Medical Assessor who is a member of the Appeal Panel but we determined that such a re-examination was not required as not enough time has passed since Mr El Masri’s last surgical procedure to consider whether he has attained maximum medical improvement.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The MAC
The Medical Assessor took an accurate history of the development of Mr El Masri’s condition. He noted that there had been four shoulder operations, the last of which had occurred two weeks before the assessment. The Medical Assessor said:[2]
“I asked him to concentrate on his psychological symptoms and activities for the 6 weeks leading up to his latest surgery because the acute phase of surgical recovery is temporarily affecting his mental state and activity levels. Since the surgery, he has had severe pain with restricted movement.”
[2] Appeal papers page 23.
Under “General Health” the Medical Assessor recorded that Mr El Masri had had surgeries to his right shoulder on 5 January 2019, 17 March 2020 and 14 December 2021 with Professor George Murrell and the fourth surgery two weeks ago with a different surgeon.
The Medical Assessor noted Mr El Masri’s domestic situation with his wife and three children.
The Medical Assessor said:[3]
“Mr El Masri has had severe long-standing pain and restriction of movement in his right shoulder. This limits his activities; for example, he cannot lift and carry, use his right arm to drive a car, shower or dress himself without assistance. Because his shoulder is frozen, this limits activities he might do around the house, and he can no longer participate in pastimes such as playing soccer or fishing. I have excluded limitations caused by pain and physical limitations in my impairment assessment.”
[3] Appeal papers page 24.
The Medical Assessor noted Mr El Masri’s physical restrictions as a result of his shoulder condition. He could not fish or play soccer. He is close to his extended family and his brother, uncle and cousins would visit him or he would visit them once or twice a month. He was limited in his ability to drive because the seatbelt caused arm pain.
In reporting on Mr El Masri’s mental state the Medical Assessor noted that there were two sessions – one for 65 minutes when then reception was lost, and a further consultation of 30 minutes, with an interpreter present on both occasions.
In his summary at [7] of the MAC the Medical Assessor said:[4]
“Mr El Masri was injured in an industrial accident and stated that he believed that his life was at risk. This is sufficient to meet Criterion A for PTSD. He has continuing intrusion symptoms in the form of unwanted memories and psychological distress cued by reminders of his accident. He has some avoidant symptoms. He has negative alterations in cognition and mood with exaggerated and negative beliefs about his circumstances and future. He has alterations in arousal and reactivity with irritability and expressed anger, problems with concentration and sleep disturbance.
His situation is complicated by ongoing severe pain and physical limitations. He is frustrated by his lack of recovery and has realistic concerns about having persistent pain and physical disability, affecting his work ability and financial situation. This has led to his sense of hopelessness, anxiety and continued depression.
Mr El Masri has a primary psychological condition, PTSD, and a secondary psychological condition, a persistent depressive disorder with an ongoing major depressive episode and anxious distress.
He also has severe pain and physical limitations, which impact his daily living; I have excluded impairment due to pain and physical limitations in my assessment.
Mr El Masri has a secondary psychological condition that would exist and cause significant impairment regardless of whether he had had the primary psychological condition or not. In fact, the secondary condition is more severe than the primary condition and causes at least half of the psychological impairment.”
[4] Appeal papers page 26.
At the templated paragraph 8b, the following appears:[5]
“b. Have all body parts/systems stabilised/reached maximum medical improvement?
Yes. Mr El Masri has been unwell for more than 5 years. His symptoms are entrenched, and although he has had inadequate treatment for his psychological condition, it will not change significantly over the next 12 months, with or without further medical treatment.”
SUBMISSIONS
[5] Appeal papers page 27.
The appellant
Mr El Masri submitted that there were a number of material errors relating to the certificate. It was submitted firstly that the Medical Assessor should have certified that Mr El Masri had not reached maximum medical improvement, given that he had only just started psychiatric treatment three or four months prior to the assessment. It was argued that this was insufficient time for the treatment to have had any affect. It was noted that the Medical Assessor conceded that Mr El Masri had received inadequate treatment for his psychological condition but had “prophesised” that Mr El Masri’s condition would not change significantly over the next 12 months.
Secondly, it was submitted that the Medical Assessor had not adequately explained his path of reasoning for diagnosing a persistent depressive disorder with an ongoing major depressive episode and anxious distress, which had constituted the secondary psychiatric condition.
We were referred to Momand v Allianz Australia Insurance Ltd[6] and Minister for Immigration and Citizenship v Li.[7] A further material error was alleged in that there was no evidence that either the post-traumatic stress disorder or the major depressive disorder were secondary to the physical injuries, and the Medical Assessor had not exposed his path of reasoning sufficiently to explain why the secondary condition also included the major depressive disorder, as we understood the submission. It was submitted that “There is no evidence either from the assessment or from case notes that would justify such a decision.” We were referred by footnote to a supplementary report by Dr Mukesh Kumar of 15 August 2023 in that regard.
[6] [2023] NSWSC 1014 at [71].
[7] (2013) 249 CLR 33.
Mr El Masri then submitted (presumably in the alternative) that the Medical Assessor had “improperly considered the evidence”. It was submitted that the rating for each of the categories of the psychiatric impairment rating scale (PIRS) should have been assessed as follows:
· self-care and personal hygiene – class 2;
· social and recreational activities- class 2;
· travel – class 2;
· social functioning - class 2;
· concentration, persistence and pace - class 3, and
· employability - class 3.
Mr El Masri renewed his submission that the Medical Assessor had not adequately explained his path of reasoning when he apportioned 3% of the total WPI to his secondary psychiatric condition.
The respondent
The respondent referred us to the provisions of Chapter 1.15 of the Guides and Chapter 1.16 of the Guides, which set out the Guides for assessing whether maximum medical improvement had occurred.
The respondent submitted that there was no evidentiary basis for the submission that Mr El Masri’s medication had not been prescribed in full and sufficient time to allow a finding of maximum medical improvement. We were referred to the precise templated question within the MAC enquiring about maximum medical improvement and the Medical Assessor’s answer.
The respondent submitted that the Medical Assessor had considered that question therefore and that his decision was inconformity with Chapters 1.15 and 1.16 of the Guides.
The respondent submitted that the Medical Assessor had indeed given adequate reasons which showed his path of reasoning. We were referred to various statements by the Medical Assessor extracted above.
With regard to the apportionment between the primary and second psychological injury we were referred to the provisions of s 65A(2) of the 1987 Act.
The respondent noted that its qualified expert, Dr Bisht, had identified the secondary psychological injury, and indeed the parties had acknowledged that the Medical Assessor was charged with determining this issue by virtue of the note on the face of the referral as indicated above.
The respondent then turned to the submissions made by Mr El Masri as to the individual rating for each category under the PIRS. The respondent submitted that the class rating contended for by Mr El Masri would not in any event result in an entitlement to compensation as it would only have reached 14%.
It was submitted however that the Medical Assessor was “meticulous” in his assessment for each category of the PIRS.
We were referred to the evidence in the body of the MAC and the detailed consideration of the reports of the respective qualified psychiatric experts Dr Bisht and Dr Kumar.
The respondent submitted that the appellant had not discharged it’s onus and failed to demonstrate appellable error.
Finally, with regard to the apportionment made with the Medical Assessor we were referred to State of NSW (NSW Department of Education) v Kaur.[8]
[8] [2016] NSWSC 346 at [85].
It was submitted throughout the entirety of the MAC, the Medical Assessor had accurately recorded Mr El Masri’s symptomatology, he had distinguished the symptoms arising from the secondary psychological injury, the physical injury and the primary psychological injury and had balance those complaints in his summary.
DISCUSSION
Chapter 1.15 and 1.16 of the Guides provide:
“Maximum medical improvement
1.15 Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement.
This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.
1.16 If the medical assessor considers that the claimant’s treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation – subject to paragraph 1.34 in the Guidelines.”
We acknowledge the arguments put forward by both parties, but are satisfied that it cannot be said that maximum medical improvement has been achieved. In that regard we note the force of Mr El Masri’s argument that his psychiatric treatment had only commenced three or four months prior to the assessment. Although, as the Medical Assessor noted, the appellant had been unwell for over five years, we have some reservations as to whether it could be said that the “inadequate treatment”, as the Medical Assessor described it, would not have changed his condition in the next year.
More importantly, however, is the fact that Mr El Masri had come to further surgery only two weeks prior to the assessment. Mr El Masri was born and raised in Lebanon, and is functionally illiterate, having no schooling beyond year 5. He came to Australia when he was 25 and has been a formwork labourer since. We note that he has been anxious about his condition since the subject injury, and has developed at least one psychiatric condition as a result. His insight into his mental state is limited, and with respect, we doubt whether he could reliably have complied with the Medical Assessor’s invitation to “concentrate on his psychological symptoms and activities for the 6 weeks leading up to his latest surgery.” We agree that the acute phase of surgical recovery was very probably affecting Mr El Masri’s mental state and activity levels. We observe however that it is highly doubtful that Mr El Masri had the intellectual capacity to make the distinction asked of him. We also note that the Medical Assessor had determined that Mr El Masri suffered a secondary injury of PTSD with ongoing major depression. It is highly likely that his recent surgery had exacerbated this condition and that this condition was likely to result in further distortion of Mr El Masri’s capacity to reflect on his condition prior to the recent surgery.
It would be appropriate for Mr El Masri to wait for at least a year from when he commenced his recent psychiatric treatment before an assessment as to maximum medical improvement could reliably be made.
For these reasons, the Appeal Panel has determined that the MAC issued on
15 December 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W6705/23 |
Applicant: | Ahmad Ali El Masri |
Respondent: | D&J Formwork (Aust) Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Douglas Andrews and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric | 30 November 2018 | Chapter 1.15-16 | n/a | n/a | n/a | n/a |
| Total % WPI (the Combined Table values of all sub-totals) | Maximum medical improvement has not been achieved | |||||
0
3
0