Etm Projects Pty Limited (In liquidation) v Gregorgiou
[2024] NSWPICMP 45
•2 February 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | ETM Projects Pty Limited (In liquidation) v Gregorgiou [2024] NSWPICMP 45 |
| APPELLANT: | ETM Projects Pty Limited (In liquidation) |
| RESPONDENT: | Alexandros Gregorgiou |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Michael Hong |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| DATE OF DECISION: | 2 February 2024 |
CATCHWORDS: | WORKERS COMPENSATION – Claim for primary psychiatric injury; matter referred for assessment noting that no regard was to be had to any impairment of symptoms resulting from secondary psychiatric injury; Medical Assessor erred in failing to adequately address secondary psychiatric condition; worker re-examined; Mercy Connect Limited v Kiely considered; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 August 2023 ETM Projects Pty Limited (in liquidation) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ash Takyar, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 July 2023.
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.
RELEVANT FACTUAL BACKGROUND
The respondent, Alexandros Gregorgiou (Mr Gregorgiou) developed a primary psychological injury in the course of his employment with the appellant.
The appellant commenced proceedings in the Personal Injury Commission (Commission) claiming 24% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 18 August 2020.
The matter was listed for hearing in the Commission before Member Burge who issued a Certificate of Determination on 28 March 2023. Member Burge made the following orders:
“1. Pursuant to section 162 of the Workers Compensation Act 1987, the Commission declares that the second respondent had entered into a contract of insurance for liability with the first respondent (or its agent) in respect of any liability under that Act, and that the second respondent has ceased to exist.
2. The Applicant suffers from a primary psychological injury and a secondary psychological injury as a result of an incident on 26 February 2019.
3. Matter remitted to the President to refer the Applicant to a Medical Assessor to assess the applicant’s degree of whole person impairment (if any) as a result of the primary psychological injury, noting that no regard is to be had to any impairment or symptoms resulting from the secondary psychological injury as follows:
Date of injury: 26 February 2019
Body system referred: Primary psychological injury
Method of assessment: Whole person impairment.”
The Medical Assessor examined Mr Gregorgiou on 20 June 2023. The Medical Assessor assessed 26% WPI as a result of the injury deemed to have occurred on 18 August 2020.
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 did not request that Mr Gregorgiou be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that there was an error in the MAC and that it was necessary for Mr Gregorgiou to undergo a further medical examination because there was insufficient evidence on which to make a determination.
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.
Further medical examination
Medical Assessor Michael Hong of the Appeal Panel conducted an examination of the worker on 18 January 2024 and reported to the Appeal Panel.
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. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions included the following:
(a) Ground 1- The referral to the Medical Assessor refers to the following body parts for assessment: “primary psychological injury (noting no regard is to be hard to any impairment or symptoms resulting from the secondary psychological injury)” The MAC contains a demonstrable error as the Medical Assessor failed to address the secondary psychological condition.
(a) Mr Gregorgiou relies on the report of Dr Smith, who assessed 26% WPI and considered Mr Gregorgiou had sustained a primary psychological injury diagnosed as post-traumatic stress disorder and a major depressive disorder. The appellant relies on the report of Dr Malik, who assessed 26% WPI but did not consider that Mr Gregorgiou had sustained a primary psychological injury and that the WPI was attributable to a secondary psychological injury. Dr Malik’s opined that the psychological injury developed in the context of not feeling supported, pain, anxiety and adjusting to his lifestyle modification following the accident.
(b) The Certificate of Determination dated 22 February 2023, found that
Mr Gregorgiou was suffering from both a primary psychological injury and a secondary psychological injury as a result of the incident on 26 February 2018. Accordingly, the Referral to the Medical Assessor specifically directed the Medical Assessor to not assess any WPI in relation to the secondary psychological injury.(c) The Medical Assessor failed to identify any WPI attributable to the secondary psychological injury despite the COD which found that Mr Gregorgiou was suffering from both a primary and secondary psychological injury.
(d) At paragraph 10.a. the Medical Assessor reports that the assessments of WPI by Dr Smith and Dr Malik both correlated exactly with the impairment the Medical Assessor had determined. The Medical Assessor failed to recognise that the assessment of WPI made by Dr Malik was in respect of the secondary psychological injury and not the primary psychological injury.Therefore, the Medical Assessor failed to provide his reasoning for why he has not provided any assessment of WPI for the secondary psychological injury and therefore why his assessment differs from the assessment of Dr Malik.
(e) The Medical Assessor should have identified, separated and excluded any permanent impairment resulting from the secondary psychological condition the worker was found to have sustained per the COD. The Medical Assessor had, in the assessment of permanent impairment, based his assessment on the worker’s entire psychiatric disorder which comprises both a primary psychological injury and a secondary psychological injury per the COD. The Medical Assessor erroneously included permanent impairment resulting from the secondary psychological injury which is not compensable by reason of s 65A(1) of the 1987 Act or Guidelines.
(f) Ground Two - The MAC contains a demonstrable error as the Medical Assessor failed to record a proper history, particularly having regard to the secondary psychological condition and failed to consider the available evidence.
(g) Dr Malik obtained a history of injury as follows: “…he [the worker] tells me about pain in his right side of body including back pain, ongoing depressive and anxiety symptoms. He spoke about some reliving of fall in the past but denied any pervasive symptoms of reliving the fall, in my professional opinion, on the balance of probabilities I do not believe he currently feels the criteria of post-traumatic stress disorder. Mr Gregoriou current predicament is best explained by major depressive disorder with anxious distress”.
(h) Order 2 of the COD determined that Mr Gregorgiou suffered from a primary psychological injury and a secondary psychological injury as a result of an incident on 26 February 2019. The Medical Assessor failed to obtain any history from the worker regarding the secondary psychological injury and failed to consider the available evidence. If the Medical Assessor had given appropriate consideration to the COD and the report of Dr Malik, then the Medical Assessor would have identified, separated and excluded an WPI resulting from the secondary psychological injury.
(i) Ground Three - The MAC contains a demonstrable error on the basis that the Medical Assessor failed to address the proportion to which the psychological deficits may derive from the secondary psychological condition.
(j) At paragraph 10.a. of the MAC, the Medical Assessor reports: “It is my view that impairment is stable and permanent and is assessable. The impairment determined relates to the primary condition and not the secondary psychiatric condition”.This is the only opinion provided by the Medical Assessor with respect to the secondary psychological injury.
(k) The Medical Assessor assessed Mr Gregorgiou with 26% WPI resulting from the injury sustained on 26 February 2019 and diagnosed post-traumatic stress disorder and major depressive disorder. Despite the findings on the COD, that
Mr Gregorgiou had sustained both a primary and a secondary psychological injury, the Medical Assessor failed to consider whether Mr Gregorgiou has a secondary psychological injury and then consider whether there was any WPI resulting from the secondary injury.(l) 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. 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.
(m) Her Honour Harrison AsJ in obiter dicta propounded in Mercy Connect Limited v Kiely [2018] NSWSC 1421 a two-step process by which a Medical Assessor could abide the mandate of s 65A(2) to have no regard to impairment or symptoms from a secondary psychological injury. The first step is to assess the overall degree of permanent impairment of a worker in accordance with clauses 11.11 and 11.12 of the Guidelines. The second step is to assess separately the worker’s permanent impairment due to the secondary psychological injury by reference to the same clauses and then deduct the latter from the former. The Medical Assessor failed to follow this process and in doing so has made a demonstrable error.
(n) Grounds Four and Five - The Medical Assessor based his assessment on incorrect criteria as he failed to assess the degree of permanent impairment in accordance with section 65A(2) of the 1987 Act, which states that assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had any impairment or symptoms resulting from a secondary psychological injury.
(o) The effects of the secondary psychological injury have been severe and continue to contribute significantly to the total assessed impairment. There is no evidence to persuade the Medical Assessor that the effects of the secondary psychological injury have abated. It was highly likely that they continued to contribute to permanent impairment, and that the effects of the major depressive disorder were seriously greater now than they would have been, but for the secondary psychological injury.
(p) The Medical Assessor applied incorrect criteria in failing to consider the impairment resulting from the secondary psychological injury and then failing to deduct this from the impairment resulting from the primary psychological injury. It follows that the Medical Assessor based his assessment on incorrect criteria as he failed to distinguish between the effects of the primary and secondary psychological conditions in the psychiatric impairment rating scale (PIRS) table.
(q) Conclusion - The Medical Assessor erred in the matters identified above and accordingly his assessment contains a demonstrable error and/or is based on incorrect criteria. The MAC should be set aside, and a new MAC be issued which provides appropriate consideration for the secondary psychological injury and adjusts the final WPI accordingly.
Mr Gregorgiou’s submissions include the following:
(a) The Medical Assessor on page 9 of the MAC under “Reasons for Assessment” wrote: “The impairment determined relates to the primary condition and not the secondary psychiatric condition”. The Medical Assessor provides detailed reasons for his assessment and outlines what documents he considered in reaching his assessment.
(b) The Medical Assessor is entitled to formulate a view that the impairment of 26% related to the primary psychiatric condition and not the secondary psychiatric condition. There was a significant amount of material which was referred to by the Medical Assessor which supports his finding. In those circumstances there is no error a difference of opinion is not a material error.
(c) It is clear that the Medical Assessor considered the secondary psychiatric injury because he referrs to it in his report and specifically states that the assessed WPI related to the primary psychiatric condition and not the secondary condition.
(d) A secondary psychiatric injury will not automatically result in a WPI assessment and the Medical Assessor determined that in this case any WPI is solely attributable to the primary psychiatric condition.
(e) The fact that the Medical Assessor noted that both Dr Malik and Dr Smith arrived at the same WPI score of 26% does not establish that the Medical Assessor was not aware that whilst Dr Smith determined a WPI of 26% for primary psychiatric injury. Dr Malik determined a WPI of 26% for secondary psychiatric injury. On page 12 of the MAC, the Medical Assessor noted that Dr Malik indicated that he did not feel that Mr Gregorgiou satisfied the criterial of post-traumatic stress disorder to qualify as a primary psychiatric injury.
(f) The fact that the Medical Assessor determines there was no WPI attributable to a secondary psychiatric injury means that there were no percentages to separate and exclude. The Medical Assessor considers the secondary psychiatric injury and references it when he determined that WPI was a result of the primary not secondary psychiatric error. There is no error.
(g) Ground 2 – It is clear that Dr Malik’s report has been read and considered by the Medical Assessor. The Medical Assessor refers to the letter from the treating specialist Dr Leslie Lim who found post-traumatic stress disorder which Dr Malik did not diagnose. The Medical Assessor accepts the opinions of the treating specialist, Dr Lim, who considered the opinion of Dr Malik in detail in his letter
7 October 2022.(h) The Medical Assessor is permitted to determine that any WPI is attributable to a primary not secondary psychiatric condition and he provides detailed reasons as to his assessment of WPI and there is no demonstrable error.
(i) Ground 3 – As noted under Ground 1 – the Medical Assessor specifically reports: “It is my view that impairment is stable and permanent and is assessable. The impairment determined relates to the primary condition and not the secondary psychiatric condition”.
(j) In circumstances where the Medical Assessor specifically refers to the secondary psychiatric condition, there is no error and as he attributes all the rateable impairment to the primary psychiatric injury, there is no need or cause to apportion WPI.
(k) There is no requirement in any of the cases to say what proportion of an assessment relates to a secondary psychiatric injury, only to consider such a condition when making a WPI assessment.
(l) Grounds 4 and 5 – The Medical Assessor made it clear that he has not considered the effects of any secondary psychiatric condition when determining WPI and concluded that the WPI arose from the primary psychiatric injury.
(m) The appellant refers to the comments of Dr Sheridan and Dr Yu, but did not show how any of the symptoms referred to would alter the scores of any of the PIRS categories that Medical Assessor assessed. For these comments to be of value they need to show how they would affect the PIRS assessments made and they do not (Secretary, Department of Education v Ryan [2023] NSWPICMP 227).
(n) Dr Malik’s opinion is defective in that his diagnosis did not include post-traumatic stress disorder which was the treating doctor’s diagnosis (Dr Lim) and the Medical Assessors. In addition, Dr Malik concedes that the clinical picture was clouded by the chronic pain Mr Gregorgiou is suffering from, and did not explain how the symptoms of “anxiety from the accident” and “adjusting to lifestyle modification” would affect any PIRS assessment.
(o) The appellant has not shown that the Medical Assessor did not consider the effects of any secondary psychiatric condition when determining 26% WPI for primary psychiatric injury.
(p) The appellant has not shown how any of the matters raised would change any of the PIRS scores assessed.
(q) 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.
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 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.
Discussion
Ground 1- error on the basis that the MA failed to address the secondary psychological condition
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.
Section 65A of the 1987 Act provides:
“(1) No compensation is payable under section 66 in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permnent impairment that results from a primary psychological injury, no regard is to be had to any impairment resulting from a secondary psychological injury.”
The Guidelines at 1.21 – 1.22 provide:
“Psychiatric and psychological injuries
1.21 Psychiatric and psychological injuries in the NSW workers compensation system are defined as primary psychological and psychiatric injuries in which work was found to be a substantial contributing factor.
1.22 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.”
In the MAC the Medical Assessor notes that the body parts/systems referred was a primary psychological injury.
Under “History relating to the Injury” the Medical Assessor wrote:
“He said that the injury had occurred on 26 February 2019. Mr Gregorgiou had started work at 6am that day, had collected a group of workers from a central level and transported them to the ground floor, with several stops. He then opened the hoist, stepped to let them out but stepped backwards and his right foot went through a hole in the floor, and he lost balance. He fell backwards, twisting and landing on the right side of his back, right arm, shoulder and a colleague had yelled to warn him as this happened. In this process, he twisted his ankle and had lower back pain.
Colleagues assisted him to his feet and he felt shocked, but he continued to work through the shift despite experiencing pain, however the pain intensified and he needed to take the next day off work.
He remained in pain on 28 February 2019, and was at work but could not complete his shift. He attended a medical centre and was referred to a physiotherapist in Liverpool. Mr Gregorgiou had to lodge his workers compensation claim for this treatment. He returned to work on light duties, after seven days off after the injury. He struggled at work, and his employer also had difficulty finding him light duties.
He described changes in his mental state over time following the injury, including
experiencing re-living flashbacks and nightmares of the actual incident, including ‘of those 5 inch nailsw’, which he said came close to impaling his face when he fell, and he realised he could have died; he was quite anxious and distressed as he spoke of this.”
The Medical Assessor notes that Mr Gregorgiou was referred to Associate Professor Mark Sheridan, neurosurgeon, for treatment in May 2019 and that Associate Professor Sheridan then referred Mr Gregorgiou to a Pain Management program under Dr James Yu from August 2020 at the Sydney Spine and Pain Clinic. The pain management program commeneced in November 2020 but Mr Gregorgiou only attended twice as he found the sessions triggered intrusive recollections of his own accident.
The Medical Assessor made a diagnosis of a major depressive disorder and post-traumatic stress disorder. Under “Summary of injuries and diagnoses” the Medical Assessor wrote:
“Mr Alexandros Gregorgiou is a 42-year-old man was assessed over an hour and 17 minutes with respect to an injury occurring in the course of his employment with ETM Projects Pty Ltd as a telehandler operator and a hoist operator. He described substantial trauma-related symptomatology, including previously more frequent intrusive re-experiencing of the event, with nightmares having ceased over time and flashbacks continue at a reduced frequency these days. He is easily startled by sounds, is hypervigilant near construction sites, and presents with persistent fear and worry, difficulty experiencing positive emotions, memory deficits in relating the injury history, and other hyperarousal changes, along with low interest and avoidance of internal and external reminders of the event, such as construction sites, including his local shopping centre when it was under renovations, along with coverage of industrial injuries on the television, machinery, motors and other situations as detailed in the history. Additionally, he has pervasive low mood with minimal enjoyment, fatigue, appetite degradation with weight gain, sleep difficulties, feelings of worthlessness at times and diminished concentration.
His symptoms reflect a major depressive disorder and a post-traumatic stress disorder (PTSD), per DSM-5. Impairment has been determined, given that condition is stabilised in my view thus and not likely to change by more than 3% in the next year with or without medical treatment – this is as he has had treatment by two psychiatrists over time, and is on a full dose of an antidepressant which has been prescribed for some years now. I note
that this diagnosis is congruent with the opinion of Dr Glenn Smith, who diagnosed a depressive disorder and a post-traumatic stress disorder, and I agree with Dr Malik that he has a major depressive disorder, though not with anxious distress – in my view the necessary criteria for PTSD per the DSM-5 are met.”
Under “Reasons for Assessment” the Medical Assessor wrote:
“My opinion and assessment of whole person impairment
It is my view that impairment is stable and permanent and is assessable. The impairment determined relates to the primary condition and not the secondary psychiatric condition.
I note that Dr Smith in his report of June 2022 determined impairment at 26%, with class scores 3, 3, 3, 3, 3, 5.
Dr Malik in his report of August 2022 determined impairment at the same 26%, also with class scores of 3, 3, 3, 3, 3, 5.
Both correlate exactly with the impairment I have determined, and the class scores I have assessed. All three PIRS assessments are the same.”
The Medical Assessor referred to the COD at Part 10c of the MAC and the determination that Mr Gregorgiou had suffered from a primary psychological injury and a secondary psychological injury as a result of the incident on 26 February 2019. However, when referring to the opinion of Dr Malik, the Medical Assessor did not refer to the fact that Dr Malik believed that Mr Gregorgiou’s psychological injury had arisen as a consequence of, or secondary to, the physical injury sustained on 26 February 2019 and the assessment of 26% WPI was made therefore in respect of a secondary psychological injury.
Apart from stating that the impairment determined related to the primary condition and not the secondary psychiatric condition, the Medical Assessor made no reference to the secondary condition. The Medical Assessor did not distinguish between a primary injury and a secondary condition when making his diagnosis. The Medical Assessor made no comment on Dr Malik’s opinion that all of Mr Gregorgiou’s impairment has arisen as a consequence of the physical injury on 26 February 2019.
In circumstances where the matter was referred to the Medical Assessor for assessment of Mr Gregorgiou’s degree of whole person impairment (if any) as a result of the primary psychological injury, with a notation that no regard is to be had to any impairment or symptoms resulting from the secondary psychological injury, the Appeal Panel is satisfied that the Medical Assessor failed to adequately address the secondary condition.The failure to adequately address the secondary condition is a demonstrable error.
Ground 2 - the Medical Assessor failed to record a proper history
The appellant submits that the MAC contained a demonstrable error as the Medical Assessor failed to record a proper history from Mr Gregorgiou, particularly having regard to the secondary psychological condition.
As noted above apart from stating that the impairment determined related to the primary condition and not the secondary psychiatric condition, the Medical Assessor made no reference to the secondary condition.
The Appeal Panel is satisfied that the Medical Assessor failed to take an adequate history from Mr Gregorgiou in relation to the secondary psychiatric condition.
Ground 3 - the MAC contained a demonstrable error as the Medical Assessor failed to address the proportion to which the psychological deficits may derive from the secondary psychological condition
The appellant submits that the MAC contains a demonstrable error on the basis that the Medical Assessor failed to address the proportion to which the psychological deficits may derive from the secondary psychological condition.
The Appeal Panel found above that the Medical Assessor failed to adequately address the secondary condition. It follows therefore that the Medical Assessor failed to address the proportion to which the psychological deficits may have derived from the secondary psychological condition.
Ground 4 – failure to assess the degree of permanent impairment in accordance with
s 65A(2) of the 1987 Act
The appellant submits that the Medical Assessor based his assessment on incorrect criteria as he failed to assess the degree of permanent impairment in accordance with s 65A(2) of the 1987 Act, which states that assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had any impairment or symptoms resulting from a secondary psychological injury (Ground Four).
The Appeal Panel found above that the Medical Assessor failed to adequately address the secondary condition. It follows therefore that the Medical Assessor failed to address the degree of permanent impairment in accordance with s 65A(2) of the 1987 Act.
Ground 5 – failure to distinguish between the effects of the primary and secondary psychological conditions in the PIRS table
The appellant submits that the Medical Assessor based his assessment on incorrect criteria as he failed to distinguish between the effects of the primary and secondary psychological conditions in the PIRS table.
The Appeal Panel found above that the Medical Assessor failed to adequately address the secondary condition. It follows therefore that the Medical Assessor failed to distinguish between the effects of the primary and secondary psychological conditions in the PIRS table.
In view of the failure to adequately address the secondary condition and assess any impairment that may have been caused by the secondary condition, the Appeal Panel considered that it was necessary for Mr Gregorgiou to undergo a further medical examination because there was insufficient evidence on which to make a determination.
As noted above, Medical Assessor Michael Hong re-examined the appellant on
18 January 2024. Medical Assessor Hong provided the following report:“UPDATE HISTORY RELATING TO THE INJURY
Mr Gregorgiou is living with his parents. He said that he has not gone back to live with his wife after the Apprehended Violence Order.
We discussed the history in Dr Takyar’s MAC dated 10 July 2023, and I confirmed the history was accurate. I explained to him the nature of my assessment as part of the Panel.
He recounted that he started working for ETM as a hoist operator and worked full-time, often 70 hours a week. On 26 February 2019, he was managing the hoist and stepped backwards and his right foot went through a hole and he lost balance. He fell and was in shock and suffered immediate back pain. He said another worker put his hands out and prevented a nail from going through his head and he could have died from the accident.
He tried to keep working that day but struggled to work after the accident. About two days later, he recalled pain was getting worse and that is when he saw the GP for help. In March 2019, he returned to work in light duties, however, he was not managing and said that in April 2019, his job was terminated.
He consulted Associate Professor Sheridan, Neurosurgeon, and did not have surgical treatment. He recommended cortisone injections, but there was no approval so he had never received it. He was referred to Dr James Yu, Pain specialist in August 2020, at the Sydney Spine and Pain Clinic. However, he said that despite treatment, his pain was getting worse at the clinic, and he was increasingly stressed.
In August 2019, Mr Gregorgiou said that he spoke to his GP because he was feeling down in his mood all the time and not feeling himself. His GP thought he had depression and then referred him to Dr Leslie Lim, Psychiatrist. He was prescribed antidepressant medication. I asked him why he sought help from a psychiatrist at that time, and he said he saw the GP because he was feeling down a lot. He explained his father is 70 and is still working in construction, but by that point, his pain was more severe and he could not work and struggled with light duties and then his employment was terminated, and that was why he wanted to see a psychiatrist because the depression was becoming a problem.
Right after the accident, he suffered anxiety and almost immediately, he was having sleep problems and nightmares related to the accident. The nightmares subsided over time. He had intrusive memories related to falling and that his head could have been punctured by a nail. There was no depression early on, but a few months later the depression became significant as the pain and physical injury were worse and did not respond to treatment. He has had depression treatment but depression has not remitted.
· Present treatment:
Mr Gregorgiou is taking:
· Duloxetine 120 mg daily
· Pregabalin 150 mg daily
· Medicinal cannabis
· The last opioid was in 2021
He consults Dr James Yu, Pain specialist. He consulted Dr Singh, Psychiatrist as Dr Lim retired. He has an appointment to see a new psychologist soon.
He does home exercises daily and hydrotherapy weekly.
· Present symptoms:
His anxiety symptoms are triggered by news about construction accidents and crowded places, and he described chronic anxiety and depressive symptoms. He has panic attacks.
He has sleep problems and said 5 hours would be a good night and sometimes he wakes up in a sweat. Nightmares have ceased over time. Suicidal ideation has resolved.
He described concentration and memory problems. He said he is not irritable anymore, but remains easily frustrated. He has intrusive memories related to the accident, especially when reminded of the subject accident.
· Social activities/ADL:
Mr Gregorgiou said that he normally enjoyed hunting and had a gun licence, and the licence was removed because of the AVO. He liked to snorkel but said that he cannot bear to be near water now as it causes him too much anxiety now. He used to like fishing. He wants to fish but said that because of his right shoulder injury and he is right handed, he cannot throw a fishing rod and so he has not been fishing. He said that he still can enjoy things, for example taking walks with his mother. He often stays at home and said that he tries to go out to the shops and engage with society.
He said when he tried to use the computer he could not focus, so he gave up.
I asked Mr Gregorgiou about the relative impact of the initial shock of the accident and the intrusive memories on his mental health, in comparison to his physical injury and pain arising from that accident on his mental health, and he said the main problem is to do with the shock and intrusive memory causing panic attacks. He said that if the other worker had not put his hand out, a nail would have gone through his head and he would have died. He said the depression is still there because he is in pain, but it is better managed now, but there are still some days when the pain is very severe and he cannot bear it, and he feels more depressed and starts thinking ‘why am I like this and why I can’t work’. He said he feels guilty, but now he knows it is not his fault and he does not blame himself. The antidepressant has helped.
Mr Gregorgiou reported that the AVO was taken out because he had stopped his opioid and psychiatric medications for four days and was not himself, and he has not been irritable in that way since then and takes his prescribed medications. He reported physically he suffered pain in the spine from his neck, especially on the right, to his lower back. He cannot run. He can walk for 10 to 20 minutes. He initially used a walking stick but does not use it now. Mr Gregorgiou finds it hard to sit and stand for long, maybe half an hour.
FINDINGS ON PHYSICAL EXAMINATION
Mr Gregorgiou was assessed by video. He was at home and his mother Helen Gregeogius was present during the assessment. He had short greying hair and a full beard. He engaged well with the assessment process. He shifted his posture to accommodate his pain throughout the assessment. He was tense all through the assessment due to pain. He was consistently restricted in his affect. He spoke spontaneously and had a disorganized narrative.
FILE REVIEW
Dr James Yu, pain specialist 30 March 2021, noted widespread body pain and associated psychological issues and referred to a psychiatrist.
Dr Nabil Malik, IME psychiatrist report dated 29 August 2022, reported psychological symptoms starting March 2022 in the context of not feeling supported. Anxiety from the accident and pain, adjusting to lifestyle modification.
Certificate Determination from Member Cameron Burge, 22 February 2023, noted the Applicant suffered a primary psychological injury and a secondary psychological injury from the accident on 26 February 2019.
Dr Takyar’s MAC noted the subject injury and said that he assessed Mr Gregorgiou from the perspective of the primary psychiatric injury only and the PIRS and noted his physical condition affecting some activities and that he would swim and fish twice a month prior to the injury, but stopped due to the physical injury and not because of mental health.
The Applicant’s referral letter for assessment by a Medical assessor, which was in
Dr Tayakry’s package, noted the accident caused a primary psychiatric injury and also multiple physical injuries and a secondary psychological injury arising from pain.Dr Malik, 22 reported on March 2019, noted his mental state fluctuated with depression and anxiety, but he does not believe Mr Gregorgiou currently has PTSD and diagnosed a major depressive disorder. He advised Mr Gregorgiou's psychiatric injury is a consequence secondary to the physical injury, in the context of not feeling supported and anxiety from the accident, pain and adjustment to lifestyle modification.
SUMMARY
Mr Gregorgiou experienced immediate anxiety, shock and developed re-experiencing of symptoms from the accident on 26 February 2019, and this later evolved into Post-traumatic stress disorder. His symptoms fluctuated with improvement with resolution of nightmares, but he has not achieved full remission at any point.
After the initial accident, his pain was increasingly severe and disabling, causing distress and reached a point where depression became clinically significant and he requested a referral to see a psychiatrist. Over time, this evolved into a Major depressive disorder and whilst there was some improvement with antidepressants, his depressive symptoms have not completely ceased. Because most of his psychopathology and impairments were already evident before depression became significant (which resulted from his physical injury), my view is that he suffered a primary psychiatric injury, being PTSD, and this accounts for the majority of his current psychological impairment. He also suffered a secondary psychiatric injury, a Major depressive disorder with onset a few months after the subject accident, which causes additional depression-related impairment and this is a relatively minor contribution.
As he was able to return to work with PTSD symptoms on light duties, the evidence showed he has a partial work capacity as a result of his primary psychological injury, PTSD, and has the capacity to work in a lower stress role and not all of his pre-injury duties until his job was terminated (employability 3), but following his Major depressive disorder, he became totally incapacitated for work (employability 5).”
The Appeal Panel has adopted the report and findings of Medical Assessor Hong.
The Appeal Panel agree with Medical Assessor Hong that Mr Gregorgiou developed a secondary psychiatric injury, namely, a major depressive disorder with onset a few months after the subject accident, which caused additional depression-related impairment. However, Medical Assessor Hong considered that this additional impairment was a relatively minor contribution. The Appeal Panel was satisfied that as Mr Gregorgiou was able to return to work with post-traumatic stress disorder symptoms on light duties, the evidence showed he has a partial work capacity as a result of his primary psychological injury, post-traumatic stress disorder, and has the capacity to work in a lower stress role and not all of his pre-injury duties until his job was terminated (employability 3). However, following the onset of the major depressive disorder, Mr Gregorgiou became totally incapacitated for work (employability 5). The Appeal Panel did not consider that there was evidence of any additional impairment caused by the secondary psychiatric injury in the other PIRS categories.
In Mercy Connect Ltd v Kiely [2018] NSWSC 1421 (Keily No 2) Harrison AsJ in obiter dicta set out a two step process by which a Medical Assessor could apply the provisions of
s 65A(2) of the 1987 Act to have no regard to impairment or symptoms from a secondary psychological injury. Her Honour said:“96. The statutory scheme comprising of the WIM Act and the Workers Compensation Act creates a two-step approach in assessing the degree of WPI for a psychological injury. The assessor must first calculate the entire degree of psychological injury in line with the PIRS categories. The secondary psychological injury must then be assessed and deducted in accordance with s 65A of the Workers Compensation Act, leaving the primary psychological injury remaining.
97. This two-step process accords with the referral of the Workers Compensation Commission on 24 October 2016. This referral provided for the AMS to assess the degree of WPI arising out of the primary psychological injury sustained by Ms Kiely as a result of the incident, excluding ‘any impairment or symptoms arising from or attributable to, the secondary psychological condition’.”
The Appeal Panel accept that the Medical Assessor is required to adopt a two-step approach, that is, to calculate the WPI using the PIRS and to then assess the impairment resulting from the secondary injury and to deduct it. The deduction is not a deduction to which s 323 of the 1998 Act applies.
However, the process described by Harrison AsJ in Keily No 2 is applicable only in circumstances where there can be a disentanglement of the impairment and symptoms a worker suffers due to a secondary psychological injury from the impairment and symptoms a worker suffers due to the primary psychological injury. In this case it was possible to isolate impairment from the secondary psuchological injury in regards to employability but in the other PIRS categories the impairment and symptoms from the primary psychological injury and the secondary psychological injury could not be disentangled and to disregard the impairment and symptoms from the secondary psychological injury would result in disregarding the impairment and symptoms from the primary psychological injury. Such an outcome would be contrary to the beneficial purpose of the legislation.
In Ausgrid Management Pty Ltd v Fisk [2023] NSWPICMP 237 the Appeal Panel in that matter wrote at [45]:
“As said the requirement of s 65A(2) is to disregard the symptoms and impairment from the respondent’s secondary psychological injury. As the Appeal Panel has also said, that does not require the Appeal Panel or a Medical Assessor to disregard those impairments and symptoms if they also result from the primary psychological injury. The section does not require a Medical Assessor or an Appeal Panel to make a deduction for the extent to which a separate injury contributes to a worker’s permanent impairment, but rather and to repeat, it requires a Medical Assessor or an Appeal Panel to disregard impairment and symptoms. The two are different things. The sub-section cannot be interpreted to disregard whatever impairment and symptoms a worker has that result from a primary psychological injury even though they may also result from a secondary psychological injury.”
Therefore, the Appeal Panel first notes the assessment by the Medical Assessor of the PIRS scores from total total impairment (Step 1) as 333 335. The Appeal Panel then assesses the effects of the secondary psychological injury as there were changes in employability from Class 3 to Class 5. The PIRS rating scales for the secondary injury are 111115 , mean is 1, aggregate is 10, and the WPI for the secondary injury is 2%. The impairment assessed for the secondary injury is deducted from his primary psychological injury (Step 2). Therefore, 2% is deducted from the assessment of 26% WPI which results in a total WPI of 24%.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 July 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
Applicant: | Alexandros Gregorgiou |
Respondent: | ETM Projects Pty Limited (In liquidation) |
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 Ash Takyar 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) |
| 1.Primary psychological injury | 26 February 2019 | Chapter 11 | Not applicable | 24% | Nil | 24% |
| Total % WPI (the Combined Table values of all sub-totals) | 24% | |||||
4
5
6