Interactive Community Care Pty Ltd v Tsoprow; Tsoprow v Interactive Community Care Pty Ltd
[2025] NSWPICMP 211
•27 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Interactive Community Care Pty Ltd & Anor v Tsoprow; Tsoprow v Interactive Community Care Pty Ltd & Anor [2025] NSWPICMP 211 |
| APPELLANTS: | Interactive Community Care Pty Ltd, Dynamic Ability Support |
| RESPONDENT: | Michael Tsoprow |
| APPELLANT: | Michael Tsoprow |
| RESPONDENTS: | Interactive Community Care Pty Ltd Dynamic Ability Support |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | John Baker |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 27 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC) psychological injury; referral to Medical Assessor provided two dates of injury; State Government Insurance Commission v Oakley applied; injury fell within second category and first respondent responsible; Held – MAC revoked and issued a new certificate. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 February 2025 Interactive Community Care Pty Ltd and Dynamic Ability Support lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Michael Hong, who issued a Medical Assessment Certificate (MAC) on 17 January 2025.
On 14 February 2025, Mr Tsoprow lodged an Application to Appeal Against the Decision of a Medical Assessor.
All parties rely on the grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out in respect of each appeal, being that the MAC contains a demonstrable error. We conducted a review of the original medical assessment, 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).
RELEVANT FACTUAL BACKGROUND
Mr Tsoprow began working for Interactive Community Care Pty Limited (ICC) as a youth worker in 2013. He ceased work on about 13 September 2020, having suffered a psychological injury. He sought medical treatment after ceasing work and has remained under active psychological treatment since that time.
ICC’s insurer initially accepted liability then disputed it in January 2021. Mr Tsoprow then began working for Dynamic Ability Support (DAS) as a NDIS worker working 24 hours per week. On 13 September 2021, ICC agreed to resume voluntary weekly payments.
Mr Tsoprow ceased employment with DAS when an allegation was made against him. Though he was exonerated, he suffered a downturn in his mental health and has not worked since November 2022. ICC disputed Mr Tsoprow’s entitlement to compensation from that time.
Mr Tsoprow commenced these proceedings seeking permanent impairment compensation. ICC and DAS were represented by the same solicitors.
On 15 November 2024, with the assistance of a Member of the Personal Injury Commission (Commission), Mr Tsoprow entered into consent orders with ICC and DAS under which they agreed that the matter would be remitted to the President for referral to a Medical Assessor in respect of an injury deemed to have been suffered in the employ of ICC on 2 October 2020 and an injury deemed to have been suffered in the employ of DAS on 17 November 2022.
The referral to the Medical Assessor did not accurately reflect the Consent Orders in that it suggested that two assessments were required, one in respect of each of those deemed dates.
The Medical Assessor said at the beginning of the MAC that the referral was in respect of the injury in the employ of DAS on 17 November 2022. The Medical Assessor said:
“Mr Tsoprow's psychological condition has now stabilised. I have assessed his current WPI, as a single injury arising, as the PIC referral noted the assessment is for the psychological injury from both employments.
Whether Mr Tsoprow has suffered a new psychiatric injury with Dynamic ability is for the commission to determine and not for the MA to determine. I further noted there is no provision for assessing a subsequent injury in the certificate itself.
In the event the Personal Injury Commission accepts Mr Tsoprow has a subsequent psychological injury, which is caused by new circumstances in the second employment:
· My view is this new psychological injury would be consistent with an Adjustment disorder due to his second employer’s actions in relation to complaints and general management.
· In this case, the WPI caused by the second employment (the subject employer in this case), is the current WPI minus the pre-existing WPI from the first employment.”
The Medical Assessor assessed 19% whole person impairment (WPI) as at the date of his examination. He assessed the impairment immediately before the second incident at 7%, and deducted it, resulting in an assessment of 12% WPI. He said:
“In this situation, the WPI caused by the first employment is complicated (with the first employment is the subject injury). The WPI is may or may not be 7%, since the first injury probably has not resolved and the Oakley principles would need to be considered – this is a matter for a legal determination.”
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Mr Tsoprow to undergo a further medical examination because there is sufficient information in the file to determine the appeal.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out where relevant.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, ICC and DAS submitted that the Medical Assessor did not apportion the assessment between them and said that he provided an assessment inconsistent with the terms of the referral. In response, on the first appeal, Mr Tsoprow agreed that the Medical Assessment should be set aside.
Mr Tsoprow also appealed. He said that there was an inconsistency in the MAC, including in the assessment under the Psychiatric Impairment Rating Scale (PIRS). He said that the Medical Assessor failed to provide an apportionment and did not determine the degree of impairment suffered in the employ of ICC or say whether it was exacerbated during his employment with DAS.
Mr Tsoprow said that his symptoms did not abate after ceasing employment with ICC and that his role with DAS was very different. He said that the Medical Assessor failed to determine what part of the current level of impairment is attributable to employment with ICC, “perhaps exacerbated” during the employment with DAS. He said that it was consistent with his statements that the predominant cause of his impairment was the employment with ICC, and this was consistent with the opinions of Dr Allan and Dr Honey, both independent medical examiners.
ICC and DAS did not accept that there was an inconsistency in the MAC and said that no specific grounds had been raised with respect to the PIRS. They said it was evident from the MAC that the Medical Assessor considered that the WPI should be apportioned and that the Medical Assessor considered that Mr Tsoprow’s WPI did not reach the threshold in s 65A(3) of the Workers Compensation Act 1987 in respect of either employer.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[1] the Court of Appeal held that an 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.
[1] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [2021] NSWCA 304 at [26].
There is no appeal with respect to the overall assessment of 19% WPI as at the date of the Medical Assessor’s examination. We therefore proceed on the basis that is the correct assessment.
The employers cited the principle that the Medical Assessor’s reasons should be read as a whole and not “construed minutely and finely with an eye keenly attuned to the perception of error” referring to the High Court decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[3] and cases which have cited it.
[3] [1996] HCA 6, 185 CLR 259, 272.
However, a comparison of the MAC with the referral shows that the Medical Assessor misunderstood his task. He assessed 19% WPI and sought to attribute 7% WPI to the first injury and 12% to the second. He then went on to say that the WPI caused by the first incident may not be 7% because the “Oakley principles” need to be considered which is a matter for legal determination, thereby not making a determination at all as to apportionment and falling into error.
In State Government Insurance Commission v Oakley[4] (Oakley) Malcolm CJ in the Supreme Court of Western Australia set out three categories in which determination of the issue of causation requires consideration of the effect of a subsequent injury. The principles were applied in a workers compensation context in Secretary, New South Wales Department of Education v Johnson[5] (Johnson) where Emmet JA said:
“… the appellant invoked, and placed heavy reliance on, the decision of Malcolm CJ in State Government Insurance Commission v Oakley (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003. In that case, the Chief Justice identified three categories where the issue of causation involves consideration of the effect or impact of a subsequent injury on the determination of the cause of an earlier injury (or, perhaps more accurately, the assessment of damages consequential upon an earlier injury). The observations were made in the context of proceedings at common law in which negligence is alleged, but are equally applicable to the assessment of the degree of permanent impairment resulting from injury under no-fault legislation such as the WC Act. His Honour identified the three categories as:
‘(1)where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
(2)where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and
(3)where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.’”
[4] (1990) 10 MVR 570.
[5] [2019] NSWCA 321.
In this case, apportionment is appropriate only if the third category is relevant. The task of a Medical Assessor may involve the determination of questions of causation.[6] Here, the parties agreed that Mr Tsoprow suffered two injuries but the analysis of which injury caused permanent impairment was a medical question rather than a question for determination by the Commission. The Court of Appeal said in Johnson that it was necessary for the relevant Appeal Panel to consider which of the Oakley categories was relevant. It follows that it is the task of the Medical Assessor in appropriate circumstances.
[6] Bindah v Carter Holt Harvey Woodproducts Pty Ltd [2014] NSWCA 264, at [110].
In this case, the Medical Assessor was asked to consider the impairment arising from two accepted injuries. The history contained in Mr Tsoprow’s statement and the reports from his treating doctors should have alerted the Medical Assessor to consider whether apportionment was appropriate before turning his mind to respective contributions. In the end, he resiled from any apportionment in his reference to Oakley.
History in the MAC
Mr Tsoprow told the Medical Assessor that his mental health started to decline from 2014 whilst employed by ICC but he did not have any treatment until 2020 because of shame. The Medical Assessor noted that “he said that with hindsight and treatment with psychologist he realised he had had PTSD since 2014.” He left work due to “cumulative trauma and client aggression” and he “had complaints from some clients over time. he related a major incident towards the end of ICC with numerous knife attacks”.
The Medical Assessor recorded that Mr Tsoprow started working for DAS because his claim for weekly compensation was rejected and he had no money. The Medical Assessor recorded that Mr Tsoprow worked 24 hours per week in “NDIS level 2 support work.” The Medical Assessor said:
“He started in April 2021 and persisted for around 1.5 years, until November 2022 but couldn't cope after that, as his trauma symptoms were aggravated and he also developed severe depression. There was no problem with the clients or managing the clients. They were disabled clients but they were not violent. He said in his second employment, the problem was that when his shifts were changed without notice or with short notice, he started to worry what's going to happen. He felt triggered by the employer's behaviour and started having anxiety attacks. He also received accusations from some clients that he assaulted clients, and said this was very similar to the accusations and the way he was managed in ICC, which led to him stopping work with the second employer. In the NDIS job, Mr Tsoprow said his role was to support clients. He took them to the café and to the dog park. Some clients had brain injuries, some had drug problems. Initially, he could focus working more than 30 minutes at a time, and each shift was 4 to 6 hours. Mr Tsoprow said with the complaint at Dynamic ability, the NDIS commission investigated and dismissed it because there was never any base for it.”
After setting out his examination findings, the Medical Assessor summarised the injuries and diagnoses:
“Mr Tsoprow does not have a previous psychiatric condition and never received treatment until 2020. Mr Tsoprow said his psychological injury started in 2014, when working for ICC, although it was six years before he sought help in 2020. I noted there is no objective evidence of a psychological injury until 2020. He developed Post-traumatic stress disorder from cumulative trauma in ICC.
Because of financial difficulty, after a six-month gap, Mr Tsoprow then started working with Dynamic ability, in a different position involving client management, in fewer hours a week. However, even though there was no particular problem with the clients, he said that due to the complaints made against him and the way his employer managed him, it caused a psychological decline and he developed severe depression, he had to stop working. His previously trauma symptoms were also triggered.”
The Medical Assessor set out the conclusion cited at [13] and [14] above, including that the diagnosis following the second injury was consistent with adjustment disorder.
The Medical Assessor summarised some of the material in the file, focussed on the assessment of permanent impairment rather than causation. He assessed Mr Tsoprow under the PIRS in class 2 for self-care and personal hygiene, travel and social functioning, class 3 for social and recreational activities and concentration, persistence and pace and class 5 for employability. He said:
“The current WPI is PIRS 232 235, 19%, as explained in the PIRS table at the end of this certificate.
The pre-existing WPI (psychiatric impairment immediately before the second employment), is PIRS 232 223, median 2 and aggregate 14, 7%. This is because when he commenced with the second employer, he was symptomatic with PTSD and there is sufficient information to complete a PIRS. He was capable of working 24 hours per week in a lower-stress role but not in his pre-injury duties, consistent with employability rating 3. When he commenced employment with the second employer, he had reduced concentration, persistence and pace but could focus on intellectually demanding tasks for 30 minutes, as he managed complex clients and supported them more than 30 minutes at a time, and this is consistent with rating of 2. The other impairments were present when he commenced the second employment.
The WPI caused by the second employment is 19-7=12%.”
The difference between the “pre-existing WPI” assessed by the Medical Assessor and that on the day of his examination is the increase in the assessment for concentration, persistence and pace and employability.
The evidence in the file
The Amended Application to Resolve a Dispute nominates two dates of injury and describes the injury:
“The Claimant sustained a psychological injury in the course of his employment with the First Respondent being Interactive Community Care with date of injury. This being a being deemed date of injury of 2 October 2020.
Whilst working on suitable duties at the Second Respondent, the Claimant then suffered an increase in symptoms and/or an aggravation to this psychological injury resulting in a date of injury being 17 November 2022. The First Respondent asserts that a new injury (disease aggravation) was suffered with the Second Respondent.”
Mr Tsoprow’s statements stress that he sought treatment in 2020 for the injury suffered whilst employed by ICC and that he commenced employment with DAS because he needed money and that he considered the work less stressful than that at ICC.
His statement dated 26 May 2021 described his duties at ICC and events that occurred in some detail. He spoke of an “unjustified and unsubstantiated complaint” in 2014 which led to a heightened level of anxiety and a further allegation in 2015. He contrasted the duties at DAS with those he performed for ICC.
In his statement dated 1 June 2023, Mr Tsoprow described how he gained a better understanding of his condition as his treatment progressed, from an initial diagnosis of adjustment disorder. He said that he performed his duties at DAS while struggling to manage his symptoms until a complaint was made against him, causing him to relive his traumatic experiences at ICC, exacerbating his symptoms and leading to a deepening crisis in his mental health. He conceded that the requirement to investigate the complaint that was made was fair and reasonable.
Mr Tsoprow began to consult Mr Pinchbeck, psychologist in April 2022 and Dr Kalava, psychiatrist, in September 2022. It is important to consider their reports because they began to treat Mr Tsoprow while he was working at DAS.
Mr Pinchbeck reported to Mr Tsoprow’s general practitioner on 16 September 2022 after eight sessions of treatment. His diagnosis was major depressive disorder (episode), binge eating disorder and other specified trauma-and-stressor related disorder. He said that Mr Tsoprow presented with:
“persistent depressed mood, anhedonia, poor emotional regulation, restlessness, irritability, hyperarousal, hypervigilance, poor sleep, and exhaustion. These symptoms progressively developed following Michael's repeated exposure to adolescents with disordered psychopathology and severe mental health disorders during vocation as a support worker whereby he specifically reported receiving negative evaluations from consumers and experienced interpersonal difficulties. Michael's experiences were further reported to be dismissed by his employers and further his mood and symptoms worsened following initial rejection of his worker's compensation claim.
Michael has since developed maladaptive coping. These include disordered restricting and binging eating behaviours, severe self-criticalness, pervasive paranoia and mistrust in others, avoidance to social and community environments, obsessive beliefs and compulsive behaviours associated with weight loss, inflexibility of cognitions and beliefs, and thinking errors and judgemental evaluations of others.”
Mr Pinchbeck supported Mr Tsoprow’s engagement in his return to work plan, which is consistent, chronologically, with his employment with DAS.
In his clinical notes for a session on 21 November 2022, Mr Pinchbeck observed that Mr Tsoprow “appeared overwhelmed and experienced difficulty in regulating his emotions following his receipt of a complaint from a participant alleging physical violence. … This has led to a triggering of his abuse/persecution, belief associated with his workplace, trauma, (rejection of experience)”. Mr Pinchbeck described a deterioration in Mr Tsoprow’s condition.
Dr Kalava diagnosed an adjustment disorder in her first report dated 28 September 2022, recording that Mr Tsoprow described multifaceted trauma. By 30 March 2023, she said that his symptoms met the criteria for the diagnosis of post-traumatic stress disorder.
In her detailed report dated 6 July 2023 Dr Kalava said:
“On further review, it appears that he was struggling with symptoms of feeling unsafe, at risk of harm to his life, hypervigilant, while at work – he was attacked in various ways by various clients numerous times, and the support he got from his supervisors/management was inconsistent and confusing in commending his actions or being punitive towards his decision-making. He also reported cognitive impairment since then, which was slowly worsening.
I had initially diagnosed Michael with an adjustment disorder on the background of a workplace based injury. But given the severity of his symptoms, experience of life threatening risks, ongoing trauma response, I have diagnosed him with post-traumatic stress disorder.”
The tenor of Dr Kalava’s reports is that the injury was suffered in the employ of ICC. She did not refer to the employment with DAS as being causative.
A pre-admission assessment for Brisbane Waters Private Hospital dated 23 March 2023 recorded Mr Tsoprow’s diagnosis as depression. He was admitted on 8 May 2023 under the care of Dr Kavala, with a diagnosis of post-traumatic stress disorder.
Medico-legal reports
We are not required to adopt or choose between the opinions of psychiatrists who have seen Mr Tsoprow at the request of the parties[7] but it is instructive to consider them and the contemporaneous histories they contain, especially because Dr Allan’s first report which was prepared on 20 April 2021, very soon after Mr Tsoprow began working for DAS.
[7] State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at[25]-[26].
In that report, Dr Allan diagnosed an adjustment disorder with depressed and anxious mood and considered that the move to a new employer had been beneficial. Dr Allan said that the duties were substantially different, as were his clients. He said that the only restrictions he would place on Mr Tsoprow were that he does not return to work with ICC and not work in the same types of scenarios he experienced there.
Dr Allan saw Mr Tsoprow again and reported on 26 May 2022. Mr Tsoprow said that he was coping with his role and having good feedback though felt anxious and overwhelmed at times, worrying about new clients and the problems he might encounter before meeting them. His work was generally manageable and he did not have interactions with challenging clients as in the past. Dr Allan maintained the diagnosis of adjustment disorder as assessed 19% WPI.
On 6 June 2023 Dr Allan noted that Mr Tsoprow’s mental health had worsened since the last assessment. He said that adjustment disorder was no longer the appropriate diagnosis and said:
“At no time had these symptoms abated since my last review and I believe that the incident what he was accused of inappropriate conduct in the workplace in November of 2022 acted as an exacerbating factor on that condition. It is my opinion that a combination of his original injury related condition naturally worsening in the context of the new investigation, and the new investigation itself, led to his overall worsening in both symptoms and level of impairment.
Dr Allan’s diagnosis was major depressive disorder and post-traumatic stress disorder. He considered that the conditions arose as a result of the environment at ICC with an exacerbation of mood with difficulties at DAS. He assessed 26% WPI.
Dr Miller’s report dated 17 November 2020 can be disregarded because she did not consider that Mr Tsoprow had suffered an injury whilst employed by ICC and ICC now accepts that he did.
Mr Tsoprow saw Dr Clarke on 6 September 2022. He was working at DAS and the allegation of assault had not then been made. Though Dr Clarke did not identify “the insured” in the report, the context shows that it is ICC. She recorded that Mr Tsoprow observed the development of his symptoms over time and regretted not seeking treatment before 2020. She noted that Mr Tsoprow’s then current employment with DAS was not as interesting as his previous employment but “not problematic”. Dr Clarke considered that Mr Tsoprow did not the meet the criteria for a psychiatric diagnosis but that his history may reflect adjustment disorder in remission. She considered that any injury had resolved.
Dr Clarke examined Mr Tsoprow again on 9 May 2023. She was provided with documents and asked a series of questions about them, focussed on whether a downgrade in Mr Tsoprow’s capacity from 23 November 2022 resulted from the 2020 injury or was a new injury. Dr Clarke said she was unable to form an opinion.
Dr Honey saw Mr Tsoprow and reported on 15 March 2024. He said that the date of injury was 17 November 2023 when an allegation was made that Mr Tsoprow had assaulted a client. Though his employer supported him and the NDIS investigation cleared him a week after the allegation, he had not been able to return to work and was “going through stuff from my previous employer.” Dr Honey then set out a history of the injury with ICC. Dr Honey said:
“This man is suffering from significant psychological symptomatology due to the cumulative effects of working in very stressful situations, virtually since 2012. I believe that his symptoms really came to the fore due to the stress of an allegation made against him by a client when he was at work with his last employer, DAS.
I believe that it triggered symptoms which had long been kept just in abeyance and in my opinion, he is suffering with a posttraumatic stress disorder which was preexistent, and which was aggravated by the event of 17 November 2023.” [sic]
Consideration
None of the doctors who have seen Mr Tsoprow at the request of the parties has been required to grapple with the issue of causation by reference to the principles in Oakley. The pleading in the amended Application to Resolve a Dispute contemplates a disease injury. If Mr Tsoprow suffered the aggravation of a disease, DAS would be responsible as the last relevant employer. The Consent Orders reflected an agreement that there were two injuries and the nature of the dispute as revealed in the documents in the file required the Medical Assessor to consider the three categories in Oakley. The referral asked the Medical Assessor to make two assessments, which may have caused confusion. As Leeming JA said in Skates v Hills Industries Ltd:[8]
“The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. …
… But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute.”
[8] [2021] NSWCA 142 at [48]-[49].
The Medical Assessor was alert to the nature of the determination required but mistaken as to his responsibility to undertake it.
The contemporaneous evidence in the file shows that the injury suffered by Mr Tsoprow in the employ of ICC was significant, as a result of cumulative trauma. The role at DAS was different. It involved reduced hours and was accepted by ICC’s insurer to be a suitable role for a return to work program. Mr Tsoprow told doctors while he was doing the job that it was within his capacity. That changed in November 2022 when a complaint was made, resulting in a significant downturn in his mental health and causing him to cease work.
We consider that the injury falls within the second of the categories in Oakley. The allegation of assault made in November 2022 was of a kind which may cause anxiety, depression or an adjustment disorder in a person in normal health. The Commission routinely deals with cases where that has occurred. The NDIS investigation found the allegation unsubstantiated, and Mr Tsoprow was supported by DAS. In those circumstances, a person of normal health would be expected to recover in a reasonably short time frame. In Mr Tsoprow’s case, because of the trauma suffered as a result of the complaints made during his employment with ICC, the allegation resulted in a far more significant condition and leading to Dr Kavala’s diagnosis of post-traumatic stress disorder in 2023. The Medical Assessor also diagnosed post-traumatic stress disorder.
We consider that the injury suffered in November 2022 definitionally does not meet criterion A for the diagnosis of post-traumatic stress disorder, however the multiple assaults Mr Tsoprow suffered at ICC certainly do meet these requirements.
Oakley concerned an award of damage as a result of a defendant’s negligence. Adopting the language appropriate to that kind of claim, the “damage” suffered by Mr Tsoprow as a result of the injury in the employ of DAS is greater because of the trauma suffered in the employ of ICC. ICC is therefore responsible for the permanent impairment suffered. The application of the second category in Oakley means that the date of injury is 2 October 2020 and ICC is responsible to pay compensation reflecting 19% WPI.
Because that principle applies, it was neither necessary nor appropriate for the Medical Assessor to attempt to assess Mr Tsoprow’s functioning under the PIRS as at the date he commenced employment with DAS.
For these reasons, we have determined that the MAC issued on 17 January 2025 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: | W24459/24 |
Applicant: | Michael Tsoprow |
First Respondent: | Interactive Community Care Pty Ltd |
Second Respondent: | Dynamic Ability Support |
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 Michael Hong 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 NSW workers compensation guidelines | 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 injury | 2 October 2020 | Chapter 11 | Not applicable | 19% | Nil | 19% |
| Total % WPI (the Combined Table values of all sub-totals) | 19% | |||||
0
7
0