Elmi-Anvari v ComfortDelGro Corporation Australia Pty Ltd
[2024] NSWPIC 389
•22 July 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Elmi-Anvari v ComfortDelGro Corporation Australia Pty Ltd [2024] NSWPIC 389 |
| APPLICANT: | Foad Elmi-Anvari |
| RESPONDENT: | ComfortDelGro Corporation Australia Pty Ltd |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 22 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Determination of whole person impairment (WPI) by member without referral to a Medical Assessor (MA); whether the application should be referred to an MA for determination of the WPI of the applicant; Held – award for the applicant in respect of 24% WPI; reasons for exercise of discretion explained. |
| DETERMINATIONS MADE: | The Commission determines: 1. There will be an award for the applicant pursuant to s66 in the sum of $66,310.00 in respect of a 24% whole person impairment arising from an injury of 23 June 2021 (deemed) in the respondent’s employment. |
STATEMENT OF REASONS
BACKGROUND
Mr Elmi-Anvari (the applicant) was employed by ComfortDelGro Australia Pty Ltd (the respondent) during which employment the applicant suffered a psychological injury.
The respondent has not issued a Notice of Dispute.
The only dispute between the parties to date has been the disputed obligation of the applicant to attend testing by a psychologist to resolve “…uncertainties with diagnosis”[1].
[1] Respondent solicitor’s email dated 21 December 2023.
The applicant seeks a determination as to the whole person impairment suffered by the applicant as a result of that injury.
MATTERS IN DISPUTE
The issue in these proceedings for determination by the Personal Injury Commission (Commission) is whether the application should be referred to a Medical Assessor for determination of the whole person impairment of the applicant or whether alternately the Commission should issue an award in that respect.
PROCEDURE BEFORE THE COMMISSION
Mr Carmine Santone, solicitor, of Santone Lawyers appeared for the applicant. Mr Greg Guest, solicitor, of Sparke Helmore Lawyers, appeared for the respondent.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
On 15 May 2024 I issued an Order referring the applicant to a Medical Assessor without requiring the applicant to attend for tests to be conducted by a psychologist as requested by the respondent. That Order was appealed and a decision delivered.[2]
[2] [2024] NSWPICPD 34.
The issue on appeal was whether a psychologist was a medical practitioner. That issue was resolved in the negative. It was determined that a psychologist is not a medical practitioner and that the applicant was therefore not required to attend for the testing sought by the respondent. The application was remitted to me to deal with remaining issues.
The respondent has since requested Directions for Production be issued to the applicant’s treating practitioners.
The matter was relisted before me on 25 June 2024. On that occasion the applicant sought that I issue an award for the applicant for the percentage of whole person impairment agreed by both the applicant’s and respondent’s psychiatrists at 24%. The respondent sought that the applicant be referred to a Medical Assessor in accordance with my previous Order. I heard oral submissions and issued a further Order requiring the exchange of written submissions.
I vacated the existing appointment with a Medical Assessor.
EVIDENCE
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply to ARD (Reply) and attached documents;
(c) respondent’s submissions dated 1 July 2024, and
(d) applicant’s submissions dated 4 July 2024.
In the circumstances of this application I have considered it necessary to extract sections of the medical reports to a greater extent than would be usual in an application of this kind.
The applicants evidence
The applicant relies on the report of Richa Rastogi.[3] Dr Rashogi had available to her, and took into account, the material listed below in preparing her report and providing her opinion.
“(a) Statement of events – undated.
(b) Medicolegal report of Dr Anupam Polkharel dated 29 March 2022
(c) Medical Report of Peter J Allen dated 11 October 2022
(d) Medical Report of Dr Farangis Houshmand dated 25 January 2022
(e) Clinical notes of Our Medical Home Marsden Park – various dates.
(f) Clinical notes of Dr Muhammad Khurram Malik – various dates.”
[3] Report dated 23 March 2024 ARD page 30.
His current symptoms and functioning were recorded as follows.
“Current symptomatology
• Sleep issues with initial and middle insomnia
• Poor frustration tolerance
• Irritability and lack of intimacy impacting his relationship with wife
• Hopelessness, worthlessness and amotivation
• Loss of interest in activities
• Hypervigilance, arousal and startled
• Fearful of safety and paranoid
• Social reclusiveness
• Uncertainty about his future
• Loss of confidence and poor self esteem
• Anxiety and poor stress tolerability
• Insomnia with flashbacks and nightmares
• Severe Tics and coarse tremors
Current Functioning
• Driving - He does not drive since the accident, and he relies on his wife to drive him places.
• ADLs - He needs full showering assistance, and his wife instructs him to have showers. He needs prompting with meals, and he cannot cook or live independently. His wife feeds him.
• Socially, he is very isolated and stopped outings. He remains extremely paranoid.
He has distanced himself from friends and lost friendships.
• He struggles with focus and attention and is easily distracted. He cannot complete simple tasks, and often struggles making decisions.
• There is relationship conflict as he is experiencing relationship strain with his wife, and a lack of intimacy. There is role reversal.”
Dr Rashogi reviewed the applicant’s documentation as follows.
“Review of documentation
• AHRR by his psychologist Peter Allen dated 30th June 2023 stated severe chronic adjustment disorder with anxiety and severe PTSD symptoms with a diagnosis of major depressive disorder. His anxiety symptoms are extreme being homebound, having body shakes a threat of harm bordering on paranoid psychosis living in constant fear for his and his wife's life. He is unable to comply with exposure tasks and gets distressed discussing the work-related traumatic events. It has been recommended he consider hospital-based treatment but remains very anxious that the alleged perpetrator will find out pressing him at further risk.
• Report of Dr Anupam Pokharel on behalf of the insurer dated 22nd March 2022 stated a diagnosis of severe generalised anxiety disorder contributed to the workplace with no capacity to work currently and timeframes for recovery unable to be asserted. He may benefit from workplace mediation however the relationship may not be salvaged. He may not have the capacity to work with the same employer and it is possible he may not regain the capacity to work with the preinjury employer. “
Dr Rashogi diagnosed the applicant with post-traumatic stress disorder with anxiety.
“Post Traumatic Stress Disorder with anxiety
Mr Elmi-Anvari stated that over a period of two years, he was subjected to bullying, manipulation, intimidation, verbal threats an unfair treatment by his manager, Sunny.
Sunny targeted and victimised him. His had multiple attempts at submitting grievances to HR and management, although he was continually dismissed. This made Mr Elmi-Anvari powerless and an unsafe at work. The incident on 23rd June 2021, where Sunny intimidated and threatened to kill him, was the last straw resulting in severe anxiety and fear of workplace. He was continued to be unsupported by management following this. He developed a pervasive fear of returning to workplace. He has since then developed symptoms of post-traumatic stress disorder with fear of immediate threat to his safety, hyper vigilance, arousal, startled feelings and marked emotional dysregulation. This has been perpetuated by unresolved grievances, betrayal and discrimination by his employer. The safety of his workplace has been compromised. He has responded poorly to treatment so far with minimal shift of symptoms. He has not worked since 2021 to date and continues to display active symptoms of PTSD, with marked function decline. His prognosis is significantly guarded, and it is unlikely he would return to preinjury duties.
He reported symptoms of PTSD with intrusive nightmares, arousal, avoidance, excessive fears and catastrophic thinking with reactivity. He reported emotional dysregulation, startled responses and avoidance of high stimulus environment with high levels of irritability. His sleep, appetite and motivation are poor and lacking.
He Fulfills DSM V diagnosis of PTSD characterised by:
Criteria A - exposure to threats event where he felt her life was in danger
Criteria B - recurrent intrusive dreams, flashbacks, dreams of accident and
physiological reactivity
Criteria C - persistent avoidance of work, inability to recall certain aspects of
accident, decreased interest in activities, restricted range of affect
Criteria D - insomnia, irritability, difficulty with concentration, startled
Criteria E - lasting for more than a month
Criteria F - Causing significant distress”
The doctor concluded that the applicant’s employment with the respondent was the main contributor to his current psychological injury and impairments. He recommended inpatient admission and concluded that his prognosis was guarded and poor despite treatment.
Dr Rashogi assessed the applicant’s whole person impairment at 24%.[4]
[4] ARD page 39.
The respondent’s evidence
The respondent relies on the two reports of Dr Ahmed.[5]
[5] Reports dated 11 October 2023 ARD page 41 and 14 November 2023 ARD page 49.
In considering and preparing his report Dr Ahmed relied upon the applicants claim form, his statement and the Notice of Claim dated 31 May 2023.
Dr Ahmed made the following findings on his examination on 3 October 2023.[6]
[6] Reports dated 11 October 2023 ARD page 45.
“Mental State Examination:
Foad was assessed via interpreter through telehealth and could see him shoulders up. I could see severe shaking of hands/arms, more on left side than right. He was constantly rocking his head and was crying most of the time; in a severe agitated state.
Foad presented as male of stated age; casually dressed, reasonably kempt, and had a small beard with frontal baldness. He was crying throughout interview and his wife was comforting, as well as helping with interview process by explaining/exploring questions and Foad was nodding to confirm the history, most of the time. There was evidence of psychomotor agitation.
He described his mood as ‘low’, while objectively mood was depressed and apprehensive. His affect was restricted and constricted. He was not thought disordered or exhibit psychotic symptoms, though he did report symptoms suggestive of PTSD. He denied any thoughts of harming self or others now. He presented with functional decline and apparently struggling with his day-to-day life activities.
He was oriented to time, place and person, and his memory seems okay, though attention and concentration levels were low. His presentation was prominent with depressive cognition. He had reasonable insight and judgement into his condition and predicament, as well as his functional capacity. He is accepting treatment, both biological and psychological, though limited improvement in mental state and overall functioning.
Diagnosis/Impression:
In my professional opinion, based on history provided during the assessment and relevant mental state examination, Foad fulfils the DSM 5 criteria of Post- Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD).
…..
In my professional opinion, the Claimant's employment was a substantial contributing factor to the injury, as he had no previous mental health diagnoses or issues/concerns. He reported different incidents to Depot Manager as well as Union Delegate. He presented with severe psychological symptoms, fulfilling criteria for major mental health diagnoses. There are no evidence of any other factors in his life responsible for his current presentation.
…..
The Whole Person Impairment (WPI) calculated results fully from the injuries sustained in the course of employment with the respondent. No proportion of the impairment is due to previous injuries, pre-existing conditions or abnormalities.”
Dr Ahmed assessed the applicant’s whole person impairment at 24%.[7]
[7] ARD page 47.
Dr Ahmed provided his supplementary report at the request of the respondent’s solicitors.
He was provided with two reports from Dr Dowler dated 12 and 19 November 2022. The respondent suggested the possibility of an alternate diagnosis of paranoid schizophrenia arising from Dr Dowler’s documents and investigations. Dr Ahmed was asked if it was possible that the workers current psychological complaints might relate to a constitutional diagnosis being paranoid schizophrenia. Dr Ahmed commented as follows:
“Following access to and thorough review of Dr Dowla’s documentations and investigations (MRI and Nerve conduction study), I am unsure whether the diagnosis of Paranoid Schizophrenia has been used instead of Post Traumatic Stress Disorder diagnosis, as the worker denied any past mental health issues or diagnoses to me.
However, the possibility of Movement Disorder which Dr Dowla opined to either medication related or there could be a functional manifestation most likely is very important.
As both MRI result and Nerve Conduction Study is normal while Dr Dowla did not find any major abnormalities on examination, combined with the fact that Dr Dowla documented that.
Cranial nerve functions were normal. He had obvious tremor in his left upper and lower limbs that resolves with hand elevation (likely to be functional). Sometimes they arc variable and only affecting the left upper limb and then move to the both lower limbs. Despite that tremor, he does not have any incoordination and he is able to walk and even run at a full speed. There was no rigidity or cogwheeling in right or left side. There was no laryngeal tremor which also varied in severity.
When I reviewed the worker on October 3, 2023, I noticed:
I could see severe shaking of hands/arms, more on left side than right. He was constantly rocking his head and was crying most of the time; in a severe agitated state.
In my professional opinion, It seems less likely Paranoid Schizophrenia as a diagnosis especially he did not report anything to me during assessment which happened via interpreter, in the presence of his wife. These kinds of tremors could come from medications, but I am not fully convinced that it could be the side effects from the prescribed medications as the worker’s wife believes that this is part of his anxiety following alleged death threats from the supervisor, along with constant bullying and harassment at workplace.”
Dr Ahmed recommended the testing which was refused by the applicant, and which refusal was upheld on appeal, as a diagnostic tool.
SUBMISSIONS
The applicant’s submissions
The applicant submitted that there is no present medical dispute between the parties in this application. It submitted that there had never been a medical dispute in this application. No section 78 Notice has ever been issued.
It was not the applicant’s primary submission but, in the alternative, the applicant submitted that, arising from the removal of a previous prohibition in s 65 of the Workers Compensation Act 1987 (the 1987 Act), a member is empowered to determine whole person impairment and can make an award in appropriate circumstances without referral to a Medical Assessor.
The respondent’s submissions
The respondent submitted that the Commission, having issued an Order prior to the appeal that the applicant attend a Medical Assessor, was bound to adhere to that Order. The Order was not set aside by the President’s decision because it was not the subject of the appeal.
The respondent also submitted that the applicant’s present application to have the Commission determine the matter without referral to a Medical Assessor was an abuse of process.
The respondent submitted that the application was not remitted to me to revisit my previous Order but only for the purpose of attending to procedural issues.
CONSIDERATION
I have considered the medical reports before the Commission.
Dr Rastogi for the applicant provided an assessment of whole person impairment at 24%.
Dr Ahmed for the respondent provided an assessment of whole person impairment at 24%.
It was in Dr Ahmed’s second report of 14 November 2023 that he suggested Minnesota Multiphasic Personality Inventory (MMPI) testing by a psychologist to confirm a diagnosis. It was a referral for this testing which was the subject of the appeal to the President.[8]
[8] NSWPICPD 34
The applicant submitted that “There is no end to the list of tests of any condition which could conceivably be carried out. However, Dr Ahmad was nevertheless able to reach a diagnosis, and does not seek to resolve from it in his supplementary report.”[9]
[9] Applicant’s Submissions 4 July 2024 paragraph 10.
The degree of the applicant’s whole person impairment is not in dispute. It is in fact causation that the respondent wishes to dispute without actually issuing a notice to that effect. The respondent submitted that the applicants treating evidence suggests two alternative diagnoses, being a movement disorder and paranoid schizophrenia. It submitted that the respondent’s medical expert had indicated that these potential diagnoses may be relevant to an assessment of whole person impairment and has sought leave to issue directions to treating doctors.
A Commission member is required to deal with the application as it is stands before them on the occasion it is listed and on the issues which arise for determination on that date.
On 25 June 2024 an application was made that I determine the whole person impairment suffered by the applicant as result of his injury. That is the issue I intend to determine.
I am not persuaded that I am bound by the Order issued by me prior to the appeal which was then determined by the President.
I am not persuaded that Mr Santone’s application is an abuse of process. An abuse of process is an allegation of professional misconduct. It should not be made lightly. I can identify no basis for such an allegation on the facts before me. The application made by Mr Santone was available to him and it is perfectly proper for him to press an application which he perceives to be in his client’s best interests. There is no abuse of process.
I did not order the applicant to attend for psychological testing as requested by the respondent because a psychologist is not a medical practitioner and the applicant had no obligation to attend. It is unlikely that I would have obliged the applicant to attend in any event. A one-off attendance for such testing would be unlikely to resolve any complex diagnostic issue.
The respondent seeks by way of Directions for Production of Documents to identify a cause for the applicant’s illness other than that which has been determined to exist by both psychiatrists. I do not intend to issue Directions to Produce Documents as requested. There is no Notice of Dispute in relation to causation and, in any event, it would have been appropriate to ask that such directions be issued at the first telephone conference, not at this late stage of proceedings.
The prohibition against members issuing assessments of whole person impairment was removed. It is reasonable to presume that the Parliament expected the power to be exercised. A member’s power to issue an award without referral to Medical Assessor must be exercised with circumspection. However, the power is not a toothless tiger. When there are circumstances which justify its use consideration must be given to its exercise. I am persuaded that this is an application where the exercise of that power is appropriate.
I consider it appropriate in the circumstances of this application to issue an award in relation to the applicant’s whole person impairment without referral to a Medical Assessor.
Psychiatrists qualified by both the applicant and the respondent have had the benefit of a review of the applicants treating doctor’s reports. Both psychiatrists have determined that the applicant is suffering a psychiatric injury and has found a whole person impairment of 24% as a result. The degree of permanent impairment is a settled matter between both psychiatrists.
The applicant’s position is dire. His personal presentation is distressing. His reliance on his wife is total. Any examination is highly likely to cause him agitation.
Members of this Commission are obliged by the Objects of the Act to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible. Its members are to promote public confidence in the decision-making of the Commission and the conduct of its members.
I have considered the state of the applicant’s health and the trauma to which he would be subjected by a further medical assessment. I am satisfied that the referral of the applicant to a Medical Assessor in the circumstances of this case, having considered the medical evidence and the absence of any Notice of Dispute, would not be in accordance with the Objects of the 1987 Act.
I will issue an award.
SUMMARY
For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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