Ibrahim v DHL Express (Australia) Pty Ltd
[2023] NSWPICMP 471
•26 September 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ibrahim v DHL Express (Australia) Pty Ltd [2023] NSWPICMP 471 |
| APPELLANT: | Jawdat (Joe) Ibrahim |
| RESPONDENT: | DHL Express (Australia) Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Nicholas Glozier |
MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 26 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from 2017 Medical Assessment Certificate (MAC) of psychological injury of 7%; MAC never made the subject of a Certificate of Determination; claimant sought increase on account of deterioration over the years since; Held – claimant re-examined as Panel has no power under s 329 to order AMS (as he then was) to re-assess; deterioration found to have occurred and alcohol use disorder acquired as a result; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 17 May 2023 an amended decision was issued by the delegate of the President regarding a Medical Assessment Certificate (MAC) issued by Dr Julian Parmegiani, Approved Medical Specialist (AMS), on 20 November 2017.[1]
[1] Medical Assessors were then called AMSs. We will describe Dr Parmegiani as “AMS” in these reasons.
The AMS assessed the appellant as having 7% whole person impairment as a result of a psychological injury on 1 December 2016.
This situation is unusual in that although Dr Parmegiani issued his MAC on
20 November 2017, no Certificate of Determination was issued following the issue of the MAC.On 22 December 2022 Member Elizabeth Beilby considered an Application for Reconsideration of the MAC issued by the Medical Assessor.[2] The application was rejected, as there was no order for the Personal Injury Commission (Commission) to reconsider.
[2] Appeal papers page 83.
The learned Member suggested that an avenue for the appellant was to appeal against the medical assessment pursuant to s 327 of the 1998 Act. This provides:
“327 APPEAL AGAINST MEDICAL ASSESSMENT
(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.
(2) A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.
(3) The grounds for appeal under this section are any of the following grounds-
(a) deterioration of the worker's condition that results in an increase in the degree of permanent impairment,
(b)availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c) the assessment was made on the basis of incorrect criteria,
(d)the medical assessment certificate contains a demonstrable error.”
Member Beilby noted that there was no time limit imposed on applications for the first two grounds under s 327(3), that is to say, the injured worker was able at any time to seek a review of the MAC on the basis that there had been a deterioration.
Thus, on 20 February 2023 Jawdat (Joe) Ibrahim lodged an Application to Appeal Against the Decision of the AMS.
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):
· deterioration of the worker’s condition that results in an increase in the degree of permanent impairment, and
· 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 delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) 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
An amended Referral for Assessment was made on 30 October 2017 by the delegate of the Registrar. It sought an assessment of whole person impairment for a psychological/psychiatric disorder caused by injury on “1 December 2016 for nature and conditions of employment”.
Mr Ibrahim was employed by the respondent as a Regional Sourcing Manager. He began work for the respondent in 1995. Over the years his manager began to bully him and make unreasonable demands of him. He first consulted a psychologist in 2014, and his general practitioner prescribed antidepressants in July 2016. Mr Ibrahim went on sick leave at that time and his position was terminated in December 2016.
The AMS assessed a WPI entitlement of 7%.
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.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination for the reasons given below.
FRESH EVIDENCE
In his application Mr Ibrahim indicated that the ground of appeal was that his condition had deteriorated, and that additional relevant information should be admitted.
Mr Ibrahim asked to be re-examined by a Medical Assessor who is a member of the Appeal Panel, and he sought leave to rely on additional information in the application.
The additional information was described as follows:
DOCUMENT
AUTHOR
DATE
PAGE
Grounds of Appeal/ Submissions
Stacks Goudkamp
10.05.2022
1
Medical Assessment Certificate
Dr Parmegiani
20.11.2017
3
Report
Dr Bisht
02.09.2021
13
Report
Dr Gertler
09.12.2021
23
Report
Dr Idris
01.11.2021 11.10.2022
30
31
Certificate of Determination – Consent Orders
Workers Compensation Commission
01.03.2018
33
Certificate of Determination – Consent Orders
Personal Injury Commission Workers Compensation Division
03.03.2022
35
Certificate of Determination/Statement of Reasons
Personal Injury Commission Workers Compensation Division
22.12.2022
36
The additional evidence is admitted
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.”
This is an unusual case, as in the final analysis the MAC from which Mr Ibrahaim appeals is uninformative as to the ground of appeal now relied on. Through some administrative oversight the assessment made by the AMS in 2017 has never been the subject of an order from the Commission, and thus, pursuant to s 326 of the 1998 Act, his opinion is no more than one that is conclusively presumed to be correct. Section 326 provides:
“(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned-
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
(2) as to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
However, as the assessment concerned Mr Ibrahim’s condition as at 16 November 2017, the matters that are so presumed to be correct have little relevance to the issue in this appeal, which is whether there has been any deterioration since that assessment was made. In essence, Mr Ibrahim has relied on further evidence to rebut the statutory presumption. Without having that evidence admitted, Mr Ibrahim would be deprived of the support on which he based his appeal. Clearly, the conditions of s 38(3) have been satisfied - the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before the medical assessment.
Accordingly we admit the reports of Dr Bisht dated 2 September 2021, Dr Gertler dated
9 December 2021, and Dr Idris dated 1 November 2021 and 11 October 2022. The other material referred to as additional information is admissible as of right.
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 Glozier of the Appeal Panel conducted an examination of the worker on
20 September 2023 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 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.
As indicated, the ground of appeal is that Mr Ibrahim’s condition has deteriorated since the assessment of 16 November 2017.
THE MAC
The AMS found Mr Ibrahim to be suffering from a 7% WPI when he was assessed on
15 November 2017. The basis of the assessment was set out in the Psychiatric Impairment Rating Scale (PIRS) as follows:“WORKERS COMPENSATION COMMISSION
Table 11.8: PIRS Rating Form
Name
Jawdat Ibrahim
Claim reference no.
992702213980033
D.O.B.
Age at time of injury
46
Date of injury
1 December 2016
Occupation before injury
Regional sourcing manager
Date of assessment
15 November 2017
Marital status before injury
Married
| Psychiatric diagnoses | Adjustment Disorder with Mixed Anxiety and Depressed Mood | ||
| Psychiatric treatment | Efexor XR 150mg per day, fortnightly appointments with psychologist | ||
| Is impairment permanent? | Yes | ||
| PIRS Category | Class | Reason for decision | |
| Self Care and Personal Hygiene | 2 | Mr Ibrahim reported a mild degree of self- neglect. He did not shower some days due to reduced motivation. He grew a beard over the past six months, despite his wife’s protestations. Mr Ibrahim did not maintain a healthy diet and he gained weight. On balance, he could live independently with a mild degree of neglect. | |
| Social and Recreational Activities | 2 | Mr Ibrahim went to his wife’s café daily. He spoke with his parents and brother for about two hours. Mr Ibrahim had regular contact with two close friends. They met on average once per fortnight. Mr Ibrahim stopped playing golf, and he and his wife rarely socialised with other couples. This indicated a mild degree of impairment. | |
| Travel | 1 | Mr Ibrahim was able to travel alone to unfamiliar areas. He travelled alone to the Sydney CBD to attend the medical appointment. | |
| Social Functioning | 2 | Mr Ibrahim’s marital relationship was strained. There were however no separations or episodes of domestic violence. He maintained regular contact with family members and two friends. | |
| Concentration, Persistence and Pace | 2 | Mr Ibrahim was able to spend up to one hour on the internet, reading online news and looking at other websites. He maintained concentration during the interview, which extended over an hour. | |
| Employability | 5 | Mr Ibrahim told me he attempted to work in his wife’s café for two hours per day. He was unable to continue because he could not tolerate delays in customers’ orders. He sometimes picked up cups and plates, but it is unlikely he could perform paid activities for another employer because of anxiety. | |
Classes in Ascending Order: Median Class
| 1 | 2 | 2 | 2 | 2 | 5 | = 2 |
Aggregate Score Impairment: Total %
| 1+ | 2+ | 2+ | 2+ | 2+ | 5 | 14 | = 7% |
Another 2% is added to compensate for the effects of treatment. Without medication, Mr Ibrahim’s impairment would increase substantially. His final WPI is therefore 7%.
Whole Person Impairment:
There is no addition to compensate for the effects of treatment, because the Guides require a substantial or total elimination of impairment, as a result of treatment, before 1-3% can be added to the final WPI.”
SUBMISSIONS
Mr Ibrahim submitted that pursuant to s 322A of the 1998 Act he was still only entitled to one assessment by a Medical Assessor. Mr Ibrahim also conceded that the claim was not determined in the Certificate of Determination of 1 March 2018.
However, as no Certificate of Determination had issued, the appellant was entitled to rely on s 327(3)(a) and (b) of the 1998 Act. The basis of the appeal accordingly devolves down to a consideration of the evidence relied on by the subsequent opinions of the expert reports by Dr Gertler which had been obtained by the injured worker and Dr Bisht which had been obtained by the respondent.
The appellant claimed that both experts agreed that there had been a subsequent deterioration in the appellant’s psychological state and that he now suffered from a WPI “in excess of 21%”.
Mr Ibrahim submitted that the panel was able to refer the matter pursuant to s 329 of the 1998 Act for a further medical assessment by Dr Parrmegiani, relying on s 327(6) of the 1998 Act.
The respondent
The respondent traversed the evidence that was before the AMS and then referred to the Certificate of Determination issued by the Commission following a hearing regarding the claim for weekly payments on 1 March 2018.
That Certificate of Determination, also made by Member Beilby, recorded consent orders. They were as follows:[3]
“1. Award for the applicant for weekly compensation as follows:”
(The learned Member then made orders for weekly payments and s 60 expenses).
[3] Appeal papers page 43.
The Certificate then stated:
“The following is not a determination of the Commission, however, I note that the parties have agreed the following:
a. The applicant agrees that there has been no deterioration in his work capacity beyond the date of the examination by the AMS (being 15 November 2017).”
The respondent noted that the Certificate of Determination was silent as to the outcome of the s 66 claim. That omission, it was submitted, was not explained by the parties who made the consent orders that were issued by the learned member. Usually an order would issue that there was no entitlement to lump sum compensation due to the assessment being below the threshold provided by s 65(3) of the 1987 Act.
The respondent noted that Dr Bisht on 2 September 2021 assessed a 14% WPI and, in reliance on that assessment, ceased weekly payments as Mr Ibrahim needed a 20% WPI assessment under the relevant legislation.
The respondent referred to the assessment by Dr Gertler on 7 December 2021, noting that Dr Gertler assessed a 22% WPI.
We were advised that an application by Mr Ibrahim in matter W528/22 for the purposes of obtaining an assessment as to whether the degree of permanent impairment was more than 20%, was discontinued on 3 March 2022. The respondent noted that the application for reconsideration of the MAC then followed before Member Beilby, and that on
22 December 2022 the application was dismissed.The respondent noted the assessments made by Dr Gertler of 22% WPI and Dr Bisht at 14% respectively and recounted that the reports before the AMS in 2017 were from Dr Bertucen of 26 April 2017 of 15% WPI and Dr Bisht of 3 August 2017 who advised at that stage that
Mr Ibrahim’s condition had not met maximum medical improvement (MMI).The respondent objected to the fresh evidence. It submitted that no submissions had been made by the appellant as to how the fresh evidence would have been likely to lead to a different result had it been available to the AMS. We were referred to Sleiman v AGI Tyres Pty Ltd.[4]
[4] [2022] NSWPIC at 496.
We were also referred to Baxter v State of NSW[5] and NSW Police Force v Daniel Wark.[6]
[5] [2019] NSWWCCMA 145.
[6] [2012] NSWWCCMA 36.
We were unable to see the relevance of this submission, as the respondent appeared to overlook the fact that the later reports of Dr Gertler and Dr Bisht were dated some years after the decision by the AMS.
As to the allegation of deterioration we were referred to Lizdenis v Centrel Pty Ltd.[7]
[7] [2006] NSWWCC 21.
We were also referred to Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission[8] in which Handley JA said at [122]:
“The ground does not authorise a challenge to the correctness of the certificate as at the date it was given. It is entirely focused on what has happened to the worker since.”
[8] [2007] NSWCA 149.
The respondent referred to the situation as it was before Dr Parmegiani in 2017 and the AMS’s explanation of how his finding differed between the experts then before him, namely Drs Bertucen and Bisht.
The respondent reiterated that there were no reasons given by the appellant as to the nature of the alleged deterioration and its impact on the PIRS. It was submitted that the appellant “simply” relied on the opinions of Drs Gertler and Bisht that returned higher overall assessments than did the AMS some four years before.
The respondent noted in passing that Dr Bisht’s assessment of 2 September 2021 was still lower than that of Dr Bertucen.
It was submitted that had Dr Bisht been asked to assess the degree of permanent impairment he may well have assessed an impairment in the vicinity of 14%, as was subsequently assessed in 2021.
We are unassisted by that submission as it is speculative and irrelevant.
The respondent then referred to the competing assessments as made in 2021, contending that they did not indicate how the psychological functioning had worsened when compared to Mr Ibrahim’s functioning in 2017. The respondent said “their assessment simply reflect their opinions as independent medical examiners” and did not of themselves “adequately establish the deterioration in the appellant’s condition since he was examined by the AMS”.
We were referred to Parsons v Dell Australia Pty Ltd,[9] a decision of Senior Arbitrator Glenn Capel. The respondent relied on the facts as found by the learned Senior Arbitrator and stated that accordingly the appellant had failed to discharge his required onus to prove there had been a deterioration.
[9] [2019] NSWWCC 210.
Discussion
The respondent’s reliance on Parsons does not have any relevance to the current facts. In Parsons orders had been made by the Commission, and Senior Arbitrator (as he then was) Capel was dealing with the question of whether a claim for deterioration pursuant to
s 327(3)(a) could be brought after the Commission had made orders based on the MAC, thus giving the statutory presumption provided by s 326 the force of a Certificate of Determination, from which no appeal lies to a Medical Appeal Panel.This was the basis of Member Beilby’s decision when an application was made for the Commission to reconsider the matter. As no Certificate of Determination had issued making an order, the Commission had nothing to reconsider. We presume the intention of the application had been to then refer the matter back to the AMS pursuant to s 329 of the 1998 Act.
The Panel has no power under s 327(6) of the 1998 Act to order that the Medical Assessor (“AMS” as he was then described) re-assess Mr Ibrahim.
Section 327(6) provides:
“(6) The President may refer a medical assessment for further assessment under section 329 as an alternative to an appeal against the assessment (but only if the matter could otherwise have proceeded on appeal under this section).
Note : Section 329 also allows the President to refer a medical assessment back to the medical assessor for reconsideration (whether or not the medical assessment could be appealed under this section).”
A Medical Appeal Panel’s powers are limited by s 328(5) of the 1998 Act:
“(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.”
It follows that the Panel has no power to order a re-assessment by the Medical Assessor/AMS, but to only either revoke or confirm the MAC.
To a large extent we are placed in the position of the AMS, in that a determination is required as to whether there has been a deterioration since 16 November 2017, and if so, its extent. The additional evidence appears to support that proposition, but we were unable to assess the competing opinions without first re-examining Mr Ibrahim.
Accordingly a re-examination was arranged with Medical Assessor Glozier of the panel for
20 September 2023. Medical Assessor Glozier’s report follows.
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W3477/12 |
Appellant: | Jawdat (Joe) Ibrahim |
Respondent: | DHL Express (Australia) Pty Ltd |
Date of Determination: | 20 September 2023 |
Examination Conducted By: | Professor Nicholas Glozier |
Date of Examination: | 20 September 2023 |
The worker’s medical history, where it differs from previous records
There was no differing history from the time of his injury and up to the time of his assessment by the previous Medical Assessor, Dr Parmegiani, in November 2017, nearly six years ago.
Additional history since the original Medical Assessment Certificate was performed
Mr Ibrahim reports a fairly continual low mood with high level of symptoms, alcohol abuse and impairment over the subsequent years. He reports his mood as having been fairly consistently poor, and declining relationships and function within his family, compounded by the lack of financial income on his part. Over time he and his wife’s relationship deteriorated, they became separated under one roof and a number of months ago separated formally. His wife has moved in with friends and he was driven up to Queensland by his brother to live with his parents. His son now lives in a rental apartment in Wollongong and his daughter lives in his parents’ other house in Campbelltown on her own whilst at TAFE. He maintains intermittent phone and occasional visual contact with them. His compensation payments from Allianz finished after five years and he then applied for the Disability Support Pension which commenced nearly a year ago. There have been significant financial problems, both due to reduced income and his excessive buying of objects on internet auction sites. He has been on sites such as Gray’s, Pickles, Lloyds and over time has bought such things as cars, coffee machines, appliances. He was unable to afford these and was banned from them but has found ways of getting back online. He continues to use these sites for many hours a day, buying online wine which he says he can afford. He recently was outbid on some computer components which he was thankful for, as he does not have funds to pay for this. His wife eventually left him, in part due to his function, as well as his symptoms, other impairment and the deterioration of their relationship.
His current treatment is a frequent telehealth review by his GP. He continues to have regular video psychotherapy appointments with Lindy Hodges on a fortnightly basis. Allianz still pay for this. Currently he describes this as being almost entirely supportive whereby he provides updates and she provides him with a space ‘to offload.’ He says he feels briefly better but this resolves soon after leaving, although he values the contact. He has a three-monthly appointment with Dr Idris at Lighthouse. Despite some six years of ongoing depressive symptoms and dysfunction, his treatment has barely changed and reportedly he has not been offered any of the more assertive treatments that would be expected under RANZCP standard guideline-based treatment for Major Depressive Disorder. He remains on Venlafaxine 150mg as he did six years ago. He had Agomelatine (Valdoxan) 50mg added to this some years ago. For the past two years this treatment has not changed. He said no-one has suggested to him the use of Lithium, atypical antipsychotics, any other augmenting medication, TMS, Ketamine, ECT or other standard approaches, and his treatment would appear to be somewhat perfunctory.
He describes the days as all fairly similar. He lives with his parents although has little interaction with them apart from some coffee, and his mum will often prepare meals and cook for him. They are due to return to Sydney next month and he will be remaining in their home in Bargara in Queensland on his own, managing his own affairs. He says that over the past couple of years he has been diagnosed with type 2 diabetes, hypercholesterolaemia and hypertension. He takes a medication for blood sugar and cholesterol but could not recall these. He has focused on managing his diet and has now lost 5kg in six months through better eating and reducing the amount, aided by his mother’s cooking which is different than that of his wife’s. He contributes some basic chores around the home and will go over the road to the local shops to buy small things when needed. He described reduced focus on his appearance. Whereas he used to dress very well, with quality clothes, colognes etc, he can no longer fit into them, having put weight on over the years. He is less meticulous but still continues to shower and wash although not on a frequent basis and has no interest in other forms of activity or self-care.
He stays up late watching TV and porn and surfing the internet on his phone after everyone has gone to sleep. He then tends to ‘crash’ on the sofa between 2am and 3am and then wakes up and takes himself to bed, waking up next between 8am and 8:30am, thus gaining around six hours of sleep. He may play on his phone for a bit before getting up, having breakfast. He spends most of the day online on his phone, on online auctions, browsing the internet or watching porn. Much of this is random but he bids online and spends many hours doing this. He prefers not to drive, and has not used his car since arriving in Queensland. He will go over the road locally for shopping. He says he makes a list for himself of small items, gets in and out quickly. This is not because he gets panicked or over-aroused but because he prefers to avoid people and not discuss his situation. He described how some time ago he had significant road rage when driving further in Sydney, e.g. from Campbelltown to Liverpool.
He starts drinking every day around 2pm or 3pm. He will drink up to three-quarters of a bottle of wine or several beers in the afternoon/ early evening. He will then spend some time outside, smoking his argileh, before coming back and starting drinking spirits in the evening, watching TV and surfing the internet. Some months ago he was using CBD oil but has not used this for five months he reports. He drinks a bottle of spirits a week and gets through 3-4 bottles of wine and several packs of beer, equating to 80-100 standard units per week. As a result he is significantly impaired from doing many activities throughout the afternoon and evening due to his alcohol intake.
He does no other activities, has not made any friends or acquaintances since arriving up in Queensland and has lost those from previously. The only people he knows locally are his sister and his nephew and he will see them when they come over to see his parents and engage with them when they do so but does not actively seek anything. He still believes and prays but no longer goes to church. He did not reply to his old pastor’s reaching out for ‘R U OK Day.’ He has not looked at any courses online, describes problems focusing at length, and with his alcohol intake this would be quite difficult for many hours of the day, although he says this can also be present during the morning. He described significant increased tolerance/salience, some afternoon cravings and ongoing use despite noting its effects on him, indicative of a Substance Abuse Disorder.
He reports his mood as chronically low and miserable. He does not tear up unless he thinks about his situation and life, but even such simple things as his kids calling him can trigger this. He is an hedonic, enjoying nothing, and has numerous negative cognitions about himself and at times has had suicidal ideation although not followed this through, in part due to his Christian beliefs. He has a low-normal sleep duration, ongoing anergia, concentration and focus difficulties, in part enhanced by his alcohol intake. He is not angry or dysphoric in that sense, and describes himself as ‘not an angry person.’ He is avoidant not through anxiety but because of not wanting people to see him in this state and denied any panic attacks.
Findings on clinical examination
Mr Ibrahim was casually-dressed, bearded and overly-unkempt. He had a low restricted affect, and was frequently tearful. He showed occasional retardation and needed to remind himself of some facts such as his dosage. He describes both cardinal features of depression, significant other biological cognitive features with some avoidance but no marked arousal, tension, panics or PTSD phenomena. I could not elicit any psychotic phenomena. He was at times hesitant in the interview although reasonably coherent and followed the pace of the interview for the hour or so.
Results of any additional investigations since the original Medical Assessment Certificate
Mr Ibrahim has been assessed by two IMEs. These were over two years ago now and the discrepancies between them and duration since conducted (during COVID lockdowns) occasioned this re-assessment.
In September 2021 he was assessed by Dr Bisht, consultant psychiatrist for the insurer. At the time he was still living under the same roof with his wife although their marriage was deteriorating. He described similar minimal function, getting up, spending time on the computer and some Covid-related restrictions. He apparently appeared more anxious than depressed at that time. Dr Bisht thought he had a whole person impairment of 15%, from which he deducted 1% due to the Covid pandemic which is not allowable under the guidelines. I agree with Dr Bisht’s ascertainment of the classes of self-care and personal hygiene, travel, and concentration, persistence and pace. In terms of social and recreational activities, he spends many hours a day on the internet-based recreational activities, following auctions, watching porn, although these have no social content. He does not have any social activities with friends but will interact with family members when they come around: a severe impairment. In terms of his social functioning, his relationship with his wife has finally deteriorated to the point of separation although he has a reasonable relationship with his children, is well supported by his parents, and has good (although less frequent) contact with his brother, sister and nephew whom are all supportive: a moderate impairment. Finally in terms of employability, he describes no constructive activities that would be remunerable on the open job market and symptoms of amotivation, anergia and avoidance that would prevent him from undertaking any retraining currently: severe impairment.
Report by Dr Gertler, consultant psychiatrist for the applicant’s lawyers, dated 9 December 2021. Some 21 months ago Dr Gertler described someone more similar to that seen today. Since then Mr Ibrahim has begun to address his weight and his diet through reducing intake and has lost weight as he has improved his self-care to some extent. Conversely his marriage has finally ended although he remains well supported and engaged with his biological family. The mental state was more similar to that of today. I disagree with Dr Gertler’s ascertainment of the classes of social and recreational activities for the same reasons as I do with Dr Bisht, where now he would appear to have a class 4 severe impairment; and disagree in terms of self-care and personal hygiene where he does maintain some level of self-care, has been addressing his weight, reduced this with better diet although in part aided by his mother, is able to shop, contributes some to the family home and will be living independently for the coming months when his parents return to Sydney: a mild impairment.
The Panel adopts Medical Assessor Glozier’s report.
Mr Ibrahim continues to meet the criteria for a major depressive disorder with both cardinal features and significant other features to warrant that of a moderate to severe nature. He has had little extra treatment over time as his condition has deteriorated over that time. He now has an alcohol use disorder which has developed out of this deterioration.
Medical Assessor Glozier compiled a PIRS chart which we also adopt, as follows:
PIRS Category
Class
Reason for decision
Self-Care and Personal Hygiene
2
He does maintain some level of self-care, has been addressing his weight, reduced this with better diet although in part aided by his mother, is able to shop, contributes some to the family home and will be living independently for the coming months when his parents return to Sydney
Social and Recreational
Activities
4
He spends many hours a day on internet-based activities, following auctions, watching porn, although these have limited social content. He does not have any social activities with friends but will interact with family members when they come around
Travel
2
He prefers not to drive and is basically limited to leaving the home, going over to the local shops, where he does so quickly, getting in and out.
Social Functioning
3
His relationship with his wife has finally deteriorated to the point of separation although he has a reasonable relationship with his children, is well supported by his parents, and has good (although less frequent) contact with his brother, sister and nephew whom are all supportive.
Concentration, Persistence and
Pace
3
Although he uses the internet for hours on end, he says this is done in a distracted fashion at times and there were some overt cognitive deficits, slight retardation and difficulties with recollection in the interview today.
Employability
5
He describes no constructive activities that would be remunerable on the open job market and symptoms of amotivation, anergia and avoidance that would prevent him from undertaking any retraining currently
Classes in Ascending Order: Median Class
2
2
3
3
4
5
= 3
Aggregate Score Impairment: Total %
2+
2+
3+
3+
4+
5
19
= 24%
Whole Person Impairment:
24%
For these reasons, the Appeal Panel has determined that the MAC issued on 20 July 2017 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | 3477/17 |
Appellant: | Jawdat (Joe) Ibrahim |
Respondent: | DHL Express (Australia) Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Julian Parmegiani 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) |
| Psychological/ psychiatric | 1.12.2016 for nature and conditions of employment | Chapter 11, pp 55-60 | 24% | nil | 24% | |
| Total % WPI (the Combined Table values of all sub-totals) | 24% | |||||
0