Ghahfarokhi v Secretary, Department of Education
[2022] NSWPICMP 63
•30 March 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ghahfarokhi v Secretary, Department of Education [2022] NSWPICMP 63 |
| APPELLANT: | Shahrokh Moghaddas Ghahfarokhi |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL: | Member John Wynyard Dr Nicholas Glozier Dr Michael Hong |
| DATE OF DECISION: | 30 March 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal by worker against 19% whole person impairment assessment for psychological injury: whether additional information should be admitted, whether Medical Assessor (MA) erred in his assessment regarding categories in the Psychiatric Impairment Rating Scale, whether MA erred in assigning the same factual conduct to 2 separate categories; Held- additional evidence inadmissible; Lukacevic applied; no error established as to the assessment value ascribed to each category; Ferguson, Jenkins, Parker applied; factual conduct assigned to categories of self-care and personal hygiene, and social functioning relevant to each; Ballas considered; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 November 2021 Shahrokh Moghaddas Ghahfarokhi, the applicant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr James Baker, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 6 October 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
· 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.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 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
We note with sadness the advice from Mr Ghahfarokhi’s solicitors dated 9 March 2022 that he has passed away. We extend our condolences to his family.
On 30 July 2021 this matter was referred to an MA for an assessment of WPI caused by a psychiatric/psychological disorder which occurred on a deemed date of 15 October 2020.
Mr Ghahfarokhi was employed as a high school teacher and suffered his injury after being bullied and harassed by students, teachers and senior management in the school he was teaching at. He was falsely accused and exposed to vexatious complaints by students. He endured prolonged investigations, and was publicly humiliated by staff and students. He suffered a mild cardio infarction whilst working as a teacher.
The MA assessed a 19% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The applicant did not seek to be re-examined by an MA that was a member of the Appeal Panel. For reasons set out below, no demonstrable error was established and therefore no re-examination was required.
ADDITIONAL/FRESH EVIDENCE
The appellant sought to have admitted before the Panel a number of documents annexed to the application.
Annexure “A”
This consisted of the clinical notes from the Wallsend Medical Practice, which listed
Mr Ghahfarokhi’s past history from 19 August 2016, his immunisation since 10 May 2017 and his prescriptions from 31 August 2016. Also listed were investigation requests from 5 May 2017 and technical data regarding Mr Ghahfarokhi’s pulse rate, blood pressure, height and weight from 19 August 2016.Consultations records were also included from 13 April 2021 to 8 October 2021.
Annexure “B”
The appellant also lodged a supplementary statement dated 1 November 2021.
Mr Ghahfarokhi stated that he had been offered Telehealth appointments by his general practitioner (GP) since the COVID 19 pandemic began in Australia in 2020.
Mr Ghahfarokhi however said that he preferred to have face-to-face appointments and had “not been particularly concerned about COVID 19 and preferred face-to-face appointments”.Mr Ghahfarokhi said that since August 2021 he had been asking for Telehealth appointments “because I have felt too anxious to leave the house”. Mr Ghahfarokhi said he was not anxious about COVID 19 but that he was worried that he might “see a school or someone in a school uniform”. Although it had been suggested by the Practice that he had a face-to-face appointment, Mr Ghahfarokhi said that he had either taken the Telehealth appointment or had booked a face-to-face appointment and then changed it to Telehealth a few days later “because I am too anxious to attend the practice”.
Mr Ghahfarokhi said that at the time of his assessment in September 2021 he was unaware that booking Telehealth appointments would become a regular occurrence. He explained that he had been able to attend his GP face-to-face, “I thought I would be able to do it again and I was just having a bad month or so. Therefore I told [the MA] I was able to leave the house to attend my medical appointments”.
Mr Ghahfarokhi explained however that it was now some four months since his assessment and that he still did not feel well enough to leave the house to attend his GP. He intended to continue having Telehealth appointments.
He said his next appointment in mid-November was a Telehealth appointment because “the thought of leaving home and being around people causes me significant anxiety”.
Mr Ghahfarokhi then explained (from paragraph 10) that his wife and he owned two properties and that he would occasionally live away from the family home and live at their other property in Wallsend “because we did not want to rent out the property”.
Mr Ghahfarokhi explained that there had been occasions when he lived at the Wallsend property for other reasons ‘such as my vulnerability of COVID 19’ and because his wife and son were still working.
He said he moved to Wallsend in 2020 as a means of isolation.
He said at [12] that “almost a year ago” he moved to the Wallsend property permanently as he could no longer tolerate being around anybody and he felt that he was being a burden to his wife and son. Mr Ghahfarokhi alleged that he advised the MA of this arrangement but that the MA did not record it.
He said that he now lived alone and “do not really go anywhere”. His son visited the house to bring him food two times a week and assisted him with his self care and personal hygiene.
Mr Ghahfarokhi explained that he did not previously disclose these arrangements because it was a matter that was “deeply personal to me and I did not wish to speak with him about that aspect of my personal life”.
Annexure “C”
Mr Ghahfarokhi filed supplementary submissions, seeking to have admitted a WorkCover certificate issued by Dr Faisal Khan on 9 November 2021, which was identified as annexure “C”. It was an unusually detailed certificate, including a chronology of attendances since 15 June 2020. On that date Dr Khan stated that “Insurance company must look into the option as per legislations as I cannot instruct that and it is beyond my expertise…”. On that date Dr Khan thought Mr Ghahfarokhi’s job loss had been due to COVID.
His chronology showed essentially “nil changes” from 8 January 2021 until the date of the certificate, 9 November 2021, although the development of OCD was noted on 14 May 2021. The entry of 9 November 2021 noted “severe agoraphobia, not leaving his house, feels people judging him when look at him, had not left his house for 21 days now, depending on family to help his daily chores, causing extreem stress and anxiety due to side effects f previous anti anxiety…” (as written).
Submissions as to admissibility
The appellant submitted that the “new information” contained in annexures A and B was relevant to the categories of “travel” and “social and recreational activities” in the psychiatric impairment rating scale (PIRS).[1] The travel category was implicated because Mr Ghahfarokhi had not recently been able to attend Telehealth appointments in person because he was too anxious to leave home. This anxiety began one month prior to the assessment with Dr Baker, 17 September 2021.
[1] The PIRS will be considered in more detail in the substantive reasons given below.
Annexure A showed, it was submitted, that Mr Ghahfarokhi lived 600 metres from his GP at the Wallsend Medical Practice, and that he had been attending the practice since 2016. Therefore, it was argued, the practice was clearly “a familiar location”. Annexure B was tendered to show that at the time of his appointment with the MA,
Mr Ghahfarokhi did not realise that face-to-face GP appointments would become an ongoing concern for him, but that since the assessment this had changed.At the time of the assessment the appellant admitted that he told the MA “I was able to leave the house to attend my medical appointments”. This subsequent change of circumstances would now justify a Class 3 rating in this category, and not the Class 2 given by the MA.
With regard to the category of social and recreational activities, the appellant submitted that the statement showed that Mr Ghahfarokhi had moved out of the family home which, it was submitted, was evidence that would justify a change in the class value assigned by the MA to this category from class 3 to class 4. The additional information also showed that Mr Ghahfarokhi could not tolerate being around people, even his GP.
With regard to the self care and personal hygiene category, this additional information indicated that a class 3 valuation was more appropriate.
The appellant put on a further set of submissions in its application to admit annexure “C”. The certificate showed that the appellant’s ability to travel was compromised, and that a Class 3 assessment was justified for the travel category. Similarly it provided further justification for a Class 4 value in the social and recreational activities category, and further, that it justified an upgrade from Class 2 to 3 in the self-care and personal hygiene category.
The respondent objected to the admission of the three annexures.
DISCUSSION
Section 328(3) of the 1998 Act provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
The tender of the clinical notes we apprehend was for the purpose of providing a factual basis for Mr Ghahfarokhi’s allegation that he no longer feels well enough to leave the house to attend his GP, whereas at the time of the assessment with the MA, he did not feel that way.
Such a development, were it proved, would not constitute either ground of appeal pleaded by the appellant, as it does not relate to the application of incorrect criteria or a demonstrable error. If this allegation had been established, it would have been relevant to the provisions of s 327(3)(a), namely:
“(a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment,..”
Nonetheless, the allegation has some relevance when we assess the reliability of
Mr Ghahfarokhi’s statement, Annexure B.We do not accept that the contents of the clinical notes support Mr Ghahfarokhi’s contention at all. The clinical notes had the following entry recorded regarding the appellant’s visits on 13 April 2021, 11 June 2021, 22 June 2021, 10 August 2021, 10 September 2021, and 8 October 2021:
“Telehealth phone consult on the back ground of COV/D 19 in an effort to minimise the exposure of patient and healthcare professionals to face-to-face contact during the exceptional circumstances of Covid 19.
This consultation was conducted by telephone
…
Patient identified”
The notes showed that Mr Ghahfarokhi attended in person only on 14 May 2021 and 9 July 2021.
We note that the notations at the start of the Telehealth consultations emanated from the practice. There was no suggestion that Mr Ghahfarokhi did not attend because he had become too anxious to attend the practice in the one consultation recorded subsequent to the assessment on 17 September 2021. His attendance on 8 October 2021 was part of a pattern of attendances that were mainly through telehealth.
The probative value of Mr Ghahfarokhi’s statement was also compromised by his comments that he was “not particularly concerned about COVID 19”, and that he “was not anxious because of COVID 19” in paragraphs [3] and [4]. These statements contradict his evidence at paragraph [11] that he moved away from his family because he was anxious that he was vulnerable to COVID 19 during 2020.
The certificate in annexure “C” showed that Mr Ghahfarokhi did not have any significant change in his condition until 9 November 2021, after the MAC had issued on 6 October 2021.
The evidence of a worker who has an interest in the outcome of the assessment must be approached with caution. Mr Ghahfarohki’s supplementary statement was made after the publication of the MAC, and evidence of this nature has been discussed in Lukacevic v Coates Hire Operations Pty Limited[2]. The majority (Handley AJA with whom Hodgson JA agreed) upheld the Appeal Panel’s decision to reject a statement made after the publication of the MAC on consideration of the policy of the legislation and its relation to the particular matters raised. Hodgson JA at [78] said:
“A dispute by the worker as to the history set out in the Certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. ….., in my opinion it would be reasonable for an AP (Appeal Panel) not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the Certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
[2] [2011] NSWCA 112 (6 May 2011)
We are not satisfied that the evidence has the substantial prima facie probative value referred to by Hodgson JA. There is no independent support for the allegation regarding the subsequent onset of his agoraphobia save for the WorkCover certificate of Dr Khan dated 9 November 2021, which we note post-dated the issue of the MAC. In that regard there was no corroborative evidence from the appellant’s family members, which might reasonably have been expected. Neither was there any explanation for its absence, which did not assist the appellant’s case.
We note further that the entry of 8 October 2021, that is to say some weeks after the assessment, recorded that Mr Ghahfarohki was meeting his IMP, which is common shorthand for independent medical practitioner. There has been no evidence from that source.
Mr Ghahfarokhi’s assertion that he had permanently moved to his second property at Wallsend because he could no longer tolerate being around anyone, and felt he was a burden to his family, is also problematic.
Firstly, Mr Ghahfarokhi did not actually say when he moved for this reason. Neither did he give the address of his other property. The clinical notes of the Wallsend Medical Practice showed an address of 8 Andrews Way, Fletcher, which we assume was his address when he first consulted the practice in 2016. However, the Application to Resolve a Dispute (ARD) was lodged on 15 July 2021 and showed his current address, so it is apparent that he was living permanently there at the time he was assessed by the MA. Accordingly, the evidence could reasonably have been given in Mr Ghahfarokhi’s earlier statement of 13 July 2021.[3]
[3] Appeal papers p 87.
Secondly Mr Ghahfarokhi stated that he lived “at home with my wife and son” in that earlier statement, which raises an inference that the address he gave in his ARD was his home address. The submission by the appellant that Mr Ghahfarokhi had been attending his GP, who was 600 meters away, for five years, also raises some doubt as to the accuracy of the appellant’s assertion that he had only moved to Wallsend permanently “almost a year ago”.[4]
[4] Appellant’s submissions: Appeal papers p 15 at [3.11].
Thirdly, as indicated, Mr Gahfarokhi’s statement that he moved to Cowper Street on occasions because of his “vulnerability to COVID-19” (at [11]) does not sit well with his earlier assertion in the statement that he was “not particularly concerned about COVID-19” (at [3]), and “not anxious because of COVID-19” (at [4]).
We also note that Mr Ghahfarokhi claimed that he told the MA that he had moved to Wallsend because he was a burden to his wife and son and thus placed less of a burden on them. The MA did not take any history that Mr Ghahfarokhi now lived alone. His comments in the ‘self-care and personal hygiene’ category that Mr Ghahfarokhi did not participate in cleaning the house, bathroom or his bedroom indicated that
Mr Ghahfarokhi was still living with his wife and son.[5][5] Appeal papers p 76.
Lastly, it is unlikely that Mr Ghahfarokhi would have refrained from telling either his lawyers or his medical practitioners that he was living alone because it was “deeply personal to me and I did not wish to speak to them about that aspect of my personal life”. Mr Ghahfarokhi had discussed many aspects of his personal life – indeed he described in considerable detail his personal embarrassment and shame in going out from his house when discussing his circumstances in his statement of 13 July 2021[6], and combined with the reservations we have already expressed about this assertion gives us strong reservations as to its plausibility.
[6] Appeal papers p 92 at [20].
The additional statement by the appellant lacks substantial prima facie probative value and accordingly it is rejected, as are the clinical notes of the Wallsend Medical Practice and Dr Farah’s certificate of 9 November 2021.
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.
Medical Assessment Certificate
The parts of the medical certificate given by the MA 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 appellant alleged that the MA fell into error in the assessment of the behavioural consequences of Mr Ghahfarokhi ‘s injury. In four of the categories set out in the PIRS. Mr Ghahfarokhi also contended that a factual matter was assigned by the MA by the wrong PIRS category.
We firstly set out the principles as discussed in the authorities to be applied to such submissions.
The Psychiatric Impairment Rating Scale
The PIRS is established as the rating criteria for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12 provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[7] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.”
[7][2017] NSWSC 887.
The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[8]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].
[8] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd, another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
· if the categorisation was glaringly improbable;
· if it could be demonstrated that the AMS was unaware of significant factual matters;
· if a clear misunderstanding could be demonstrated; or
· if an unsupportable reasoning process could be made out.
In Ballas v Department of Education[9] the Court (Bell P, Payne JA, Emmett AJA agreeing) held that the conduct assessed must be consigned to the correct category (or scale), and failure to do so would result in an appellable error.
[9] [2020] NSWCA 82.
DISCUSSION
As we have noted, the appellant’s case was largely dependent upon the success of his application to admit additional information. As that application has been rejected, it is convenient to deal with each category challenged. Our reasons incorporate many of the respondent’s submissions, and it is not necessary to rehearse them separately.
Travel
We were referred to Jenkins and Ferguson, and the appellant acknowledged that an MA had a discretion in evaluating the degree to which the behavioural consequences of the injury affected the six mandated categories, but it was submitted that the categories limited the boundaries of that discretion.
We were referred to Project Blue Sky Inc v Australian Broadcasting Corporation[10] as to the principles of statutory interpretation and their application to delegated legislation, which are uncontroversial and well known.
[10] [1998] HCA 28.
The MA assessed a Class 2 value for this category. He said:[11]
“Mr Ghahfarokhi was able to travel to local and familiar locations. He was able to travel to his medical team for treatment. He was able to walk outside of his home
alone. He would not travel to unfamiliar locations without a support person.”
[11] Appeal papers p 76.
The appellant kindly set out the examples given in table 11.3 of the Guides:[12]
“Class 2 Mild impairment: Can travel without support person, but only familiar area
such as local shops, visiting a neighbour.
Class 3 Moderate impairment: Cannot travel away from own residence without
support person. Problems may be due to excessive anxiety or cognitive
impairment."
[12] Guides p 56.
The appellant submitted that the additional information supplied the basis for altering the MA’s assessment from a class 2 to a class 3 evaluation. As we have rejected the additional evidence, this ground falls away.
The assessment by the MA was open to him on the evidence and, as indicated, the challenge in any event was that there had been a deterioration, which was not raised as a ground of appeal.
It was also submitted that the MA had made a demonstrable error as it was possible to draw an inference that because the appellant’s son brought food to him a few times each week, Mr Ghahfarokhi’s ability to travel had been further curtailed, which should have caused the MA to make a Class 3 award.
We reject that submission. It is based on speculation, and there was no evidence before us that that would justify a finding that because Mr Ghahfarokhi’s son would bring food to the home a few times each week, the appellant was unable to go to the local store.
That is not the history that was recorded by the MA and it contradicts the appellant’s statement 11 July 2021 that he would leave the house to go to the shops if he needed something.
This ground is rejected.
Social and recreational activities
The appellant again relied on the additional information to justify this challenge to the findings by the MA, who assessed a Class 3 value.
The MA noted:[13]
“Mr Ghahfarokhi reported he had stopped attending all of his religious festivals and regular attendance at the temple. He reported he would become agitated and avoid large crowds. He felt shame when attending his social group. He no longer socialised with any person outside his home. He had stopped watching television and had stopped following world news. He reported he preferred to be alone as he no longer enjoyed participating in these family events.”
[13] Appeal papers p 76.
A Class 3 assessment is described in Table 11.2 of the Guides:
“Class 3 Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
A Class 4 is described as:
“Class 4 Severe impairment: rarely goes out to social activities that are age, sex and culturally appropriate] and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
This ground was based on the assertion in the additional evidence that the appellant had left home but not told anyone. Again, as we have rejected that evidence, this ground also fails.
The appellant also submitted that the MA had erred in his assessment of this category because the history taken aligned more closely with a Class 4 assessment.
The appellant alluded to his statement of 11 July 2021 at [22]:
“I used to attend all my religious meetings. They hold a meeting every 19 days, but often have more meetings in between such as activities with the children or youth. I generally used to attend and be involved in all meetings. However, I no longer attend any extra meetings. I still go to the main meeting every 19 days but I am not self-motivated to attend. My son often needs to convince me to go. Attending the meetings makes me feel anxious because I am around other people.”
It would seem that the MA took an updated history that in fact the appellant did not attend any religious meetings, and indeed mentioned that fact in his reasons. The appellant was simply cavilling with the assessment, which was open to the MA on the evidence. The submission reflected no more than a difference of opinion on which reasonable minds might differ.
It was not suggested that the MA was unaware of any relevant facts, nor that he had overlooked them. The MA demonstrated a commendable attention to detail which was apparent in a thorough and well-reasoned MAC.
The Ballas point
The sixth submission raised the principle discussed in Ballas. The basis of this submission was that the MA had said in his reasons for assigning a class 2 under the ‘social functioning’ category:[14]
“Mr Ghahfarokhi reported his relationship with his wife since the onset of this work-related injury was characterised by increased verbal arguments. He is cared for by his son aged 31 years. He reported becoming overwhelmed by angry distressing thoughts about the vexatious allegations made against him by his students and co-workers. He had a strained relationship with his daughter aged 29 years”.
[14] Appeal papers p 77
In Ballas Bell P and Payne JA, Emmett AJA agreeing stated from [93]:
“93. Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to ‘social and recreational activities’ on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.
94. Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.
95. In the present case, it was plainly ‘arguable’, to use the language of Vannini, that the AMS took into account an irrelevant consideration in relation to the scale ‘social and recreational activities’ when he made reference in his reasons to ‘[s]ees one friend regularly’ (see [9] of the submissions to the Delegate, extracted at [81] above). This is because there is a separate scale entitled ‘Social functioning (relationships)’ to which that conduct is more directly relevant.
96. Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by s 11.15 of the Guidelines to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the ‘Social functioning (relationships)’ scale.”
The appellant submitted that the MA’s statement “he has cared for his son aged 31 years” was an irrelevant consideration, as we understood him. We have discussed the evidence regarding the appellant’s son above when dealing with the submissions regarding travel, and note that the basis of the appellant’s contention was that the son’s involvement in getting food for his father properly belonged in the ‘travel’ category.
The appellant now submits that the reference to his son caring for him properly belonged in the ‘self-care and personal hygiene’ category. In that category, the MA said:
“[The appellant] was assisted by his son who would bring food to the home a few times each week”.
We are thus faced with a submission that the son’s involvement properly covered three categories. Although we have rejected the ‘travel’ submission, nonetheless the appellant has referred to the son’s involvement in two categories in the reasons given by the MA – namely ‘self-care and personal hygiene’ and ‘social functioning (relationships)’. The appellant’s submission that the reference to the son’s care in the ‘social functioning (relationships)’ category is an irrelevant consideration we have some reservations about. The category is concerned with relationships, and a finding that
Mr Ghahfarokhi’s son cared for him we have difficulty in finding to be irrelevant.Similarly, the reference to the appellant’s son bringing food to the home is relevant to the category of “self care and personal hygiene”, as the MA found. The question thus resolves itself to a consideration of whether the MA has erred in referring to the same activity in two categories.
It cannot therefore be said that the MA has infringed the findings in Ballas. It cannot be said that the conduct was wrongly ascribed to one category (scale) when it should have been assigned to another. We do not read the dicta in Ballas as a prohibition on the same conduct being considered in different categories. What must be established is that the conduct be relevant to each category, and in that regard, each case must turn on its own facts.
Self care and personal hygiene
At the conclusion of his first submissions Mr Ghahfarokhi challenged this category as well. We put to one side the submissions based on the additional information which we have rejected, and consider the substantive ground that did not rely on that material.
The MA noted:
“Mr Ghahfarokhi reported that would shower about 2 to 3 times each week. His nutrition was poor and he had lost about 15 kg in weight. He was unkempt and his hair was not groomed and his beard unshaved. He mainly eats pre-prepared food or take-away food. He does not participate in cleaning the house, bathroom or his bedroom. He does not help with vacuuming. He was assisted by his son who would bring food to the home a few times each week.”
The Guides provide:
“Class 2 Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3 Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure a minimum level of hygiene and
nutrition."
It was submitted that the MA did not “appear to give any reasons” as to the class 2 impairment in this category. Such a submission turns a blind eye to the reasons given by the MA. The issue of self-care and personal hygiene relates to the behavioural consequences of the psychological condition on a claimant’s ability to look after his personal appearance and nutrition together with the hygiene he uses as a part of doing that.
The reasons given by the MA dealt with those aspects. Again, the appellant is simply cavilling with the MA’s assessment. The submission that a higher classification should have been made is no more than an observation that other reasonable minds might have ascribed a different value.
This ground is rejected.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 October 2021 should be confirmed.
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