Hamad v Express Glass 24 hour Service Pty Ltd
[2025] NSWPICMP 306
•5 May 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Hamad v Express Glass 24 hour Service Pty Ltd [2025] NSWPICMP 306 |
| APPELLANT: | Ghadir Hamad |
| RESPONDENT: | Express Glass 24-hour Service Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | John Lam Po-Tang |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 5 May 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychological injury; appellant employer alleged assessment on the basis of incorrect criteria and demonstrable error under four of the psychiatric impairment rating scale (PIRS) categories; self- care and personal hygiene, social and recreational activities, concentration, persistence and pace, employability; Held – Appeal Panel did not find error in any contested category; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 17 February 2025, the worker Ghadir Hamad (the appellant), lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 21 January 2025.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the 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 grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant requested that he undergo a re-examination. However, as a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel did not find error. Absent a finding of error the Appeal Panel has no power to require that the worker undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but 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 matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 10 February 2022
· Body parts/systems referred: Psychiatric/psychological disorder
· Method of assessment: Whole person impairment”
The Medical Assessor issued a MAC certifying as follows:
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Psycho-logical | 10 FEBRUARY 2022 | 11 page 55-60 | 14 | 7 | One-tenth | 6 |
| 2. | ||||||
| 3. | ||||||
| 4. | ||||||
| 5. | ||||||
| 6. | ||||||
| Total % WPI (the Combined Table values of all sub-totals) | 6% | |||||
The assessment was based on his assessment under the psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows: (emphasis in original)
“Table 11.8: PIRS Rating Form
| Name | Ghadir Hamad | Claim reference number (if known) | W27559/24 |
| DOB | 7/1/1988 | Age at time of injury | 35-year-old |
| Date of Injury | 10 FEBRUARY 2022 | Occupation at time of injury | Express Glass 24 hour Service |
| Date of Assessment | 10/1/2025 | Marital Status before injury | never married |
| Psychiatric diagnoses | 1. Post-traumatic stress disorder | 2. Pre-existing Adjustment disorder | |||||||||
| 3. | 4. | ||||||||||
| Psychiatric treatment | Psychologist Psychiatrist Medications No psychiatric admission | ||||||||||
| Is impairment permanent? | Yes | ||||||||||
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-care and personal hygiene | 2 | Mr Hamad said he generally eats 1 or 2 meals a day without prompting. His mother tells him to eat, and without prompting, he said he would eat 1-2 meals a day. He said he has lost weight, and is now around 70kg, previously he was 75kg. He is capable of independent living without regular support, and does not need prompting with self-care. | |||||||||
| Social and recreational activities | 2 | He enjoys fewer, but regular activities and he does not need prompting. He plays video games, watches TV and soccer games and videos. He said he only attended 2 parties in the past 12 months. | |||||||||
| Travel | 2 | Mr Hamad is anxious and avoids some places. He drives on his own locally. | |||||||||
| Social functioning | 3 | Mr Hamad's relationship with his partner had pre-existing problems, and ended with AVO after the subject accident. His psychological injury and irritability is partially the reason. | |||||||||
| Concentration, persistence and pace | 2 | Mr Hamad reported having subjectively, somewhat reduced concentration. | |||||||||
| Employability | 3 | Mr Hamad has not worked since the subject injury and his anxieties impact on his capacity to work. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 2 | 3 | 3 | =2 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| + | + | + | + | + | 14 | 7 | |||||
Treatment effects
I have assessed his functioning before and after treatment, and there were no apparent substantial or total elimination of his permanent impairment with treatment.0 Pre-existing injury
One-tenth Final WPI
6
The worker appealed. The appeal was against the assessments made in four of the PIRS categories. There was no appeal against the one-tenth deduction made under s 323 or the lack of an allowance for treatment effect.
In summary, the appellant submitted that the Medical Assessor made assessments on the basis of incorrect criteria and/or made demonstrable errors in the assessments he made under five of the PIRS categories, as follows:
(a) in assessing class 2 for self-care and personal hygiene when he should have assessed a class 3;
(b) in assessing class 2 for social and recreational activities when he should have assessed a class 3;
(c) in assessing class 2 for concentration, persistence and pace when he should have assessed a class 3, and
(d) in assessing class 3 for employability when he should have assessed a class 4 or class 5.
In summary, the respondent employer Express Glass 24 Hour Service Pty Limited (the respondent) submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self- report can be properly evaluated in the context of other evidence before the Medical Assessor.
The Medical Assessor took a history which he recorded as follows: (emphasis in original)
“● Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Hamad started working for Express Glass and did full-time work for about 3 years. In the first year, he studied and then became a fully qualified glazier. He said he worked in the field doing residential and commercial buildings.
Mr Hamad described being injured at work on 5 January 2022 and said it was just after the new year, and he was assigned 10 jobs to do in 8 hours, and there was high pressure. He had glass panels on his truck, which were secured with clamps. On the day, they working in a house on a hill, and his vehicle had leaned due to where it was parked. He was measuring the cut and the glass tilted, he tried to stop it but could not, and the 200kg glass fell towards him.
He discovered the apprentice was unfastening the clamp. He recalled he put his hand out and suffered cuts to his right hand, right knee, and cut to his quad tendon. He attended hospital and had surgery to his knuckle and his quadricep tendon.
He went back to work for a couple of months doing light duty but couldn't cope. He felt overwhelmed being back in the same environment, as there were loud noises and glass banging. He said that he waited for medical help and there was no medical help provided and so he stopped work after that.
Physically, Mr Hamad said he is not 100%, he has pain when it is cold. He only experiences pain intermittently now, and the pain affects his quad tendon. He said he is not fit for pre-injury duties physically, but could not explain why he could not work in terms of his physical and leg injury. Later, he said "maybe" he could work in his pre-injury duties, from physical perspective. He said he cannot work psychologically.
· Present treatment:
Mr Hamad is taking Valdoxan on some days. He previously took Mirtazapine. He has been consulting Joseph D’Silva, psychologist recently every few months. He had one session with Dr Faiz Noore, Psychiatrist.
· Present symptoms:
Mr Hamad reported chronically disrupted sleep. He siad depressed mood is there "always" and said he feels "hard done" from the injury. He said nothing makes him better.
He has been irritable.
I asked if there were concentration difficulties, he said "I suppose". He said his concentration is bit less since his injury. On discussion, he agreed he can focus well when doing things, e.g. during the assessment today and when watching videos.
He is anxious and worries.
I noted his eating patterns and weight below.
· Details of any previous or subsequent accidents, injuries or condition:
Background:
There is no subsequent psychological injury identified.In terms of family history, there is substance use disorder recorded.
In terms of developmental history, Mr Hamad was born in Australia and was one of four siblings. Growing up, he said there was a bit of a problem, his parents separated 20 years ago. He doesn't really see his father much since then. He said there was some domestic violence perpetrated by his father against his mother. He said school was "alright" and on further inquiry, he said he was in a bit of trouble for being a "nuisance". He said he might have seen the school counsellor but it was "nothing serious". I asked about suspension and he said he was suspended twice, as he went to a strict Catholic school, he was suspended for wearing hair gel. He said he could have been asked to leave school but he wasn't expelled and couldn't remember anything else about it.
I asked him why he didn't follow the rules at school and was suspended twice, he said he couldn't remember why he was suspended the second time, only that they were very strict.
Past psychiatric history:
In terms of past psychiatric history, I began by discussing that I have read the GP records and noted he has a pre-accident psychiatric history, and there were entries not long before the subject accident. Mr Hamad's response was before the accident, "there was nothing, it was ok, there was nothing diagnosed, just slight everyday stuff". He said he does not have anxiety and depression as his GP wrote, or maybe a bit depressed from COVID pandemic, "nothing significant". I noted contact with a psychologist 6 years prior too.
I discussed antidepressant and psychologist referral was recorded 4 weeks before the subject accident. He said he had a "working developmental disorder", as he had several driving fines, and there was an "option to have my fines paid" if he attended a psychologist. So he attended one time but could not remember what was said, he said he just ask him about his story and said it was a quick assessment. He does not remember any treatment recommended (I noted he saw Joseph D'Silva before and after the accident). In terms of antidepressant immediately before the subject injury, he said he could have been prescribed a tablet, but did not take it, and he only took it after the subject accident.
Substance history:
Before the accident, Mr Hamad said he used alcohol on weekends, sometimes during weeknights but not much. He also said that he used cannabis, again he said not much and only "every now and then" with a co-worker. After the accident, he said he tried cannabis briefly again. The last time he used cannabis was about 3 months ago at a cousin's party. He acknowledged he had misused opioids after the accident but not now.
Forensic history:
In terms of forensic history, it was difficult to obtain a full account but eventually, he said that he lost his driver's license 5 times with several losses before the subject accident. He thinks he had speeding fines. The last time he lost his licence was for 2 years and regained the license in May 2024. He said he was always a safe driver but sometimes he was speeding. He said since he regained his license this time, he is driving well.He said there was a domestic incident with a previous partner, maybe about 4 years ago, the relationship ended at that time and there was an Apprehended Violence Order taken out against him.
Mr Hamad had another partner, they were together “on-and-off” for about 3 years and ended about a year ago. They were not living together and they had Apprehended Violence Orders against each other. He said there is a court case coming up in February 2025 in relation to this. He said she was verbally abusive towards him and she made allegations that he called her names and therefore took out an AVO against him. He said he doesn't feel like he could have another partner since.
I asked about the forensic history relating to an assault in the pub. He said he doesn't remember when this happened, but the security apprehended him, he resisted and then he was charged. The court case was
finalized. I noted the incident happened before his work accident.He also had substance offences with cannabis possession, maybe 5 years ago. He was never incarcerated.
· General health:
He has a brain cyst all his life and does not have any problems from it.
· Work history including previous work history if relevant:
He has not worked since his work injury.
· Social activities/ADL:
Mr Hamad lives with his mother and has no dependents.
In terms of driving now, or since he regained his driver’s licence, he said he is a safe driver, he can only drive about 20 minutes by himself because his legs will then lock up and he feels fatigued.
He goes out occasionally and said he has no friends, he talks to no one. He goes to the shops, but avoids it sometimes. He buys things he needs, "grab my items and go".
Normally, Mr Hamad enjoyed soccer with his friends. He said he does not feel right, and does not think he could run, or run the same way since his injury so he does not play now. He said even looking at his leg, there are significant differences and one leg is bigger.
He said he had cannabis in October 2024 at a party with his cousins.
Later, I asked about going to parties in 2024, and he said he did not go to any social gatherings or parties. I discussed he said 3 months ago, in October 2024, he went to a party. He then said went a party 3 months ago, and 12 months ago for New year. In October 2024, it was a barbeque party at his cousin's home with around 10 people, mostly cousins around his age. He said he did it as it was family and his mother wanted him to go, but he did not enjoy it.
At home, he watches TV and uses the internet, and watches videos, game shows, eg Wheel of fortune. He watches videos for a couple of hours. He plays video games, FIFA soccer and basketball games, on his PlayStation, for a couple of hours. He follows Manchester United team, but does not follow every game now, generally only the highlights as he does not have Optus Sports subscription now - he said he cannot afford it.
He has never been one to read books.
He is reasonably close with his siblings, but does not see them much. He sees his siblings when they visit his mother, usually every 6 months. They call regularly.”
The Appeal Panel is satisfied that an adequately detailed history was taken. Medical Assessors have to obtain a focussed history and undertake a mental state assessment within a finite appointment time.
The Medical Assessor undertook a mental state examination and recorded his findings as follows:
“Mr Hamad was assessed by video. He was alone, and his mother was also at home during the assessment. I assessed him from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the assessment.
Mr Hamad wore a beanie and tee shirt, and tattoos were visible on his arm. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements.
He was mildly restricted in his affect range and reactivity. He smiled and laughed briefly. He spoke spontaneously and fluently. He was not thought disordered. He exhibited good cognitive ability and remained focused throughout the assessment. He was easy to interrupt and there were no set-shifting difficulties.At the end of the assessment, I asked for further information that may be relevant and he had nothing to add.”
The Medical Assessor summarised the injury and his diagnosis as follows: (emphasis in original)
· “summary of injuries and diagnoses:
In summary, Mr Hamad confirmed a history of behavioural disturbance and there was evidence of depression and anxiety not long before the subject's accident. There were previous substance use and cannabis related charges. He said he was fine and achieved remission and did not agree with everything in his GP records.
His pre-existing condition is likely an adjustment disorder and possibly a conduct disorder, and there may be specific personality features with repeated rule-breaking.
After the accident, he suffered symptoms consistent with Post-traumatic stress disorder, and for a period of time, substance use disorder. He has had sufficient treatment and his psychological injury has stabilized now.
I noted the report from Dr Kumagaya, however, the report was problematic. He did not identify or address any inconsistencies. There was not much history relating to his past psychiatric history, "working developmental disorder “, early life conduct problems or the forensic history, which meant that Dr Kumagaya would be in a poor position to determine the Section 323 contribution.
· consistency of presentation
It was difficult to obtain a clear history, e.g. related to his childhood and previous conduct issues and past psychiatric history, especially immediately before the subject injury. I have discussed all inconsistencies with him during the assessment.”
The Medical Assessor made an assessment of WPI in accordance with his assessment under the six PIRS categories as set out above noting that his assessment was based upon the following:
“The provided reports, Mr Hamad's reported history, and mental state examination.”
The Medical Assessor made brief comment on the other opinions as follows: (emphasis in original)
“My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs
Mr Hamad provided a statement and noted the accident causing slight back pain. He had treatment with a psychologist and a psychiatrist and was diagnosed PTSD. He takes Valdoxan before bed and describes his ongoing psychological symptoms. He avoids leaving home. He has trouble concentrating and remembering things and therefore cannot return to work due to his concentration problem and finds it hard to socialize.
Dr David Kumagaya, IME psychiatrist’s report dated 12th of March, 2024, noted some documentation including the vocational assessment. He noted after the accident Mr Hamad attended Sutherland Hospital and developed depression, anxiety and PTSD. He was not on psychiatric medication by that point. In terms of past history, about six years ago he had an assessment for working development disorder otherwise he denied any other past history (Comment: he was not aware of his GP entries related to anxiety and depressive symptoms immediately before the subject injury). There was a bit of cannabis use and opioid problem after his injury (Comment: There was nothing recorded about previous substance use before injury). In terms of forensic history, he acknowledged previous history of charges but denied any incarceration. He cannot concentrate longer than a few minutes. He also provided WPI 333, 335 which came to 26% with no other modification.
Dr Kumagaya noted the vocational assessment with jobs involving sales-representative, customer service, forklift driver but does not believe that Mr Hamad could perform any work due to problem with social functioning, travel, concentration and employability.
Comment:
The history Dr David Kumagaya had taken is quite different than what I obtained from Mr Hamad himself.In terms of self-care, Dr David Kumagaya rated 3 and said Mr Hamad cannot live independently. In my assessment, Mr Hamad told me that even though his mother prompted him, without prompting, he maintained basic nutrition and hygiene and is clearly quite independent. Therefore, I rated 2.
In terms of social and recreational activities he rated 3, and said that he had previous social outings and football but does not involve in anything. In my assessment, Mr Hamad tells me that he still enjoys videos, watch football games, but he doesn't think he can play physically. He contradicted himself and said he does not go to parties after he told me he had cannabis in a party, subsequently said he has been to a couple of social gatherings in the last 12 months. Given the inconsistency in the report activity, I believe the overall functioning is more consistent with a 2.
In terms of travel, he rated a 3 and said he cannot leave home without support. Mr Hamad tells me he can leave home and drive on his own. Unlike Dr David Kumagaya’s recorded history, he said he could always go out on his own. Therefore, I don't think he can be with any more than 2.
In terms of concentration, persistence and pace, he rated a 3 and said Mr Hamad can only focus for a couple of minutes. In my assessment, Mr Hamad tells me that he probably has a bit of concentration problem but nothing major. He can play video games, watch videos for a couple of hours at a time and presented quite well during my assessment. Therefore, I wrote a 2.
In terms of employability, given that Dr Kumagaya took the wrong history, or different history, in several categories, I believe there is some psychological capacity for employment.
Treating team records:
GP record from Dr Jeffrey Peng, 5th of January 2022. Noted depressed mood, anxious, stress at work, relationship problem, panic attacks, anxiety disorder and mental health care plan are given for Joseph D’Silva and prescribed Aropax. The K10 score was 29.
Joseph D’Silva entry in same records, 5th of January 2022. The psychologist noted child abuse, assault on security guard, court attendance in January 2022, anger issues, high level anxiety, low tolerance of stressor, anger management, exposure therapy. 12th of January 2022, the psychologist noted excessive worry about legal matters.
Next entry from GP, 23rd of March 2022, noted workplace accident.
Subsequently, psychologist noted nightmares and flashbacks.
Dr Sue Morgan, IME psychiatrist, 16th of July 2024. Discussed his pre-existing treatment record and the prescription of Aropax and the psychologist, long before the subject incident at work. He got charged with assault before the working injury but could not recall what it was. His partner hit him in the head and she was charged with assault after the subject accident. She diagnosed PTSD and measured depressed disorder and said this multifactorial, he has not reached MMI yet.
IOH, Vocational Assessment Report, 21st of October 2022, has been noted with some suitable work identified. At that time, his GP certified Mr Hamad fit for work despite psychological and physical injury with full-time work capacity including 26th of October 2022.
Certificates of capacity noted Mr Hamad's torn ligament and PTSD from the workplace accident. Being certified, unfit for work initially and later has capacity for normal hours including August 2022 and December 2022.
Mental health care plan, 20th of February 2023, noted K10 score of 26 which is not much different compared to the one before the accident.”
The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above.
The appellant complains that the Medical Assessor has erred in respect of four out of the six categories assessed, namely Self-care and Personal Hygiene, Social and Recreational Activities, Concentration, Persistence and Pace, and Employability.
The MAC must be read as a whole. The Appeal Panel cannot interfere with these ratings absent error by the Medical Assessor. The Appeal Panel cannot interfere with the rating because opinions might differ as to the best fit in each category. There must be error or assessment on the basis of incorrect criteria. The Appeal Panel will deal with each category complained about on appeal in turn.
In respect of self care and personal hygiene, Table 11.1 of the Guides provides as follows:
Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population
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 minimum level of hygiene and nutrition.
Class 4
Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.
Class 5
Totally impaired: Needs assistance with basic functions, such as feeding and toileting.
The Medical Assessor rated a mild impairment at Class 2 with the following reasoning: (emphasis in original)
“Mr Hamad said he generally eats 1 or 2 meals a day without prompting. His mother tells him to eat, and without prompting, he said he would eat 1-2 meals a day. He said he has lost weight, and is now around 70kg, previously he was 75kg.
His mother tells him to shower as he does not shower daily. He said he showers every 3 to 5 days without prompting from others. He buys what he needs from the shops. He does not help at home with anything, as he said his mother does everything.
He is capable of independent living without regular support, and does not need prompting with self-care.”The appellant submitted that a class 3 should have been assessed.
The Appeal Panel is not satisfied that an error was made in the assessment of Class 2 or a mild impairment. The Medical Assessor has taken an adequate history and appropriately addressed the correct criteria for assessing a mild impairment. The Appeal panel can discern no error in the assessment of Class 2 for self care and personal hygiene because there is no indication the appellant cannot care for himself adequately and live independently. On the history taken, the fact that he lives at home with his mother after separation from his partner does not mean that he is dependent upon his mother for support in the domain of self -care and personal hygiene.
In respect of Social and Recreational Activities, Table 11.2 of the Guides provides as follows:
Table 11.2: Psychiatric impairment rating scale – social and recreational activities
Class 1
No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2
Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
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.
Class 4
Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5
Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.
The Medical Assessor assessed a mild impairment at class 2 with the following reasoning:
“He enjoys fewer, but regular activities and he does not need prompting. He plays video games, watches TV and soccer games and videos. He said he only attended 2 parties in the past 12 months.”
The Medical Assessor made specific comment on why his rating of Class 2 differed from the rating of Class 3 by the IME qualified to provide an opinion on behalf of the appellant Dr Kumagaya as follows:
“In terms of social and recreational activities he rated 3, and said that he had previous social outings and football but does not involve in anything. In my assessment, Mr Hamad tells me that he still enjoys videos, watch football games, but he doesn't think he can play physically. He contradicted himself and said he does not go to parties after he told me he had cannabis in a party, subsequently said he has been to a couple of social gatherings in the last 12 months. Given the inconsistency in the report activity, I believe the overall functioning is more consistent with a 2.”
The appellant submitted that a class 3 or moderate impairment should have been assessed.
It is clear to the Appeal Panel that the Medical Assessor has conducted a thorough assessment in circumstances where the medical assessor reported difficulties in obtaining a consistent history and in accordance with the Guides has not made assessments based on self report alone but has had regard to the other evidence before him and has carefully put the inconsistencies in the evidence compared to the appellant’s self report to the appellant affording him the opportunity to respond.
The Appeal Panel considers there is no error in the rating of a mild impairment. The appellant is undertaking occasional social activity by attending parties without the need for a support person. He undertakes regular recreational activity in the form of playing video games. The Appeal Panel considers that there has been no error in assessment of a Class 2 or mild impairment rating for social and recreational activities.
In respect of Concentration, Persistence and Pace, Table 11.5 of the Guides provides as follows:
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame. |
| Class 2 | Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache. |
| Class 3 | Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting. |
| Class 4 | Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services. |
| Class 5 | Totally impaired: needs constant supervision and assistance within institutional setting. |
The Medical Assessor assessed a Class 2 with the following reasoning:
“Mr Hamad reported having subjectively, somewhat reduced concentration.
He can focus on watching videos and playing video games for a couple of hours.
His mental state examination is consistent with 1 or 2.”The Medical Assessor recorded the self report of the appellant as to his concentration difficulties as follows:
“I asked if there were concentration difficulties, he said, "I suppose". He said his concentration is bit less since his injury. On discussion, he agreed he can focus well when doing things, e.g. during the assessment today and when watching videos.”’
The Medical Assessor explained why his rating of Class 2 in this domain differed from that of the IME qualified to provide an opinion on behalf of the appellant Dr Kumagaya as follows:
“In terms of concentration, persistence and pace, he rated a 3 and said Mr Hamad can only focus for a couple of minutes. In my assessment, Mr Hamad tells me that he probably has a bit of concentration problem but nothing major. He can play video games, watch videos for a couple of hours at a time and presented quite well during my assessment. Therefore, I wrote a 2.”
The appellant submitted that a moderate impairment or class 3 should have been assessed.
Assessment cannot be based on self-report alone, and the Medical Assessor must make an independent assessment on the day of examination using his clinical expertise. The Medical Assessor has based his assessment on the correct criteria using his clinical expertise when undertaking a mental state examination of the appellant on the day of examination and the Appeal Panel considers that an assessment of class 2 is the best fit.
In respect of Employability, Table 11.6 of the Guides provides as follows:
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training. The person is able to cope with the normal demands of the job. |
| Class 2 | Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required). |
| Class 3 | Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful). |
| Class 4 | Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic. |
| Class 5 | Totally impaired: Cannot work at all. |
The Medical Assessor rated class 3 with the following explanation:
“Mr Hamad has not worked since the subject injury and his anxieties impact on his capacity to work.
I noted the physicians commented on inconsistencies in his physical capacity, and his physical injury is not assessable in the PIRS.
From a psychological perspective, he has capacity and can manage lower stress employment at around 20 hours per week, as he reported a general capacity for initiating activities and perform activities without support or prompting. He can no longer manage his pre-injury duties.”The appellant says the rating should have been a total impairment at class 5 as rated by Dr Kumagaya or at least a class 4 severe impairment.
In relation to Dr Kumagaya’s rating of Class 5 the medical assessor said the following:
“In terms of employability, given that Dr Kumagaya took the wrong history, or different history, in several categories, I believe there is some psychological capacity for employment.”
The ratings proposed by the appellant would mean that the appellant was unable to work at all (Class 5) or cannot work more than one or 2 days, less than 20 hours a fortnight) (Class 4). The appellant points to what they say are the impairments in the other domains to say that the inference the Medical Assessor has drawn that he can work for up to 20 hours is inconsistent with “the fact that the appellant does not shower for multiple days, cannot independently maintain standard nutritional needs nor appropriately socialise make any such inference unreasonable”. The appellant also submitted that there was insufficient reasoning by the medical assessor when commenting on why he differed from Dr Kumagaya in this domain.
The Appeal Panel considers that the Medical Assessor did not err in rating a Class 3.
The MAC must be read as a whole. The Medical Assessor has had regard to the vocational assessment and certificates of capacity as follows:
“IOH, Vocational Assessment Report, 21st of October 2022, has been noted with some suitable work identified. At that time, his GP certified Mr Hamad fit for work despite psychological and physical injury with full-time work capacity including 26th of October 2022.
Certificates of capacity noted Mr Hamad's torn ligament and PTSD from the workplace accident. Being certified, unfit for work initially and later has capacity for normal hours including August 2022 and December 2022.”
He notes the history that the appellant says he cannot work at all from a psychological perspective.
The Medical Assessor cannot base his assessment on self report alone. He has had regard to the other evidence before him and made an assessment using his clinical expertise on the appellant’s impairment in the domain of employability.
The assessment was open to the Medical Assessor and is in accordance with the correct criteria. Class 3 is the correct fit, and the appeal panel can discern no error in this rating.
In summary, the contested classes of self care and personal hygiene (class 2), social and recreational activities (class 2), concentration, persistence and pace (class 2) and employability (Class 3) as assessed by the Medical Assessor have all been confirmed on appeal.
For these reasons, the Appeal Panel has determined that the MAC issued on
21 January 2025 should be confirmed.
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