Ishkhanian v Workforce Recruitment and Labour Services Pty Ltd
[2024] NSWPICMP 605
•27 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ishkhanian v Workforce Recruitment and Labour Services Pty Ltd [2024] NSWPICMP 605 |
| APPELLANT: | Hoseph Ishkhanian |
| RESPONDENT: | Workforce Recruitment and Labour Services Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 27 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor (MA) erred with his ratings of appellant’s impairment in social and recreational activities, social functioning and concentration, persistence and pace; Held – MA erred with this rating of appellant’s impairment in social functioning but not with the other categories; no difference in outcome upon correction; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 4 July 2024 Hoseph Ishkhanian lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Professor Nicholas Glozier, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 June 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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).
RELEVANT FACTUAL BACKGROUND
The appellant was employed by Workforce Recruitment and Labour Services Pty Ltd, the respondent, for a three and a half year period ending in February 2020 and then again as a casual tow truck offsider from May 2021 until 2 September 2021. Due to the actions of other employees of the respondent, the appellant suffered a psychological injury.
On 31 August 2022 the appellant’s solicitors wrote to the respondent’s workers compensation insurer advising it that the appellant claimed compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 19% whole person impairment (WPI). The appellant’s solicitors attached with its correspondence a report of psychiatrist Dr Abdal Khan dated 29 August 2022 to support the appellant’s claim. Dr Khan had examined the appellant by video conference on 29 August 2022 and then assessed the appellant’s permanent impairment was of the order of 19% WPI.
On 10 February 2023 the respondent’s solicitors wrote to the appellant’s solicitors advising it that their client would be making “no offer of settlement” in response to the appellant’s claim. They advised that this was because of a report they had obtained from psychiatrist Dr John Albert Roberts dated 7 December 2022. The Appeal Panel notes that this report is not in evidence.
On 15 February 2023 the appellant’s solicitors lodged with the Personal Injury Commission (Commission) on behalf of the appellant an application to resolve the dispute seeking the Commission determine the appellant’s claim for compensation for permanent impairment. The matter was referred to the Medical Assessor who on 24 May 2023 issued a medical assessment certificate in response to that referral. In that certificate he said, “I do not certify that the impairment is permanent and that the degree of permanent impairment is fully ascertainable”. That statement was in response to two of the medical disputes enumerated in s 319 of the 1998 Act that had been referred to the Medical Assessor, namely whether the appellant’s impairment is permanent and whether the degree of his permanent impairment is fully ascertainable. The Medical Assessor’s reason for certifying that the appellant’s permanent impairment was not fully ascertainable was because the Medical Assessor considered the appellant had received very little evidence-based or guideline psychotropic intervention for someone with his psychiatric condition. The Medical Assessor considered that the appellant’s medication regime required review and optimisation.
Section 322(4) of the 1998 Act permits a Medical Assessor to decline to make an assessment of degree of a workers’ permanent impairment until such time as the Medical Assessor is satisfied that the impairment is permanent and that the degree of the permanent impairment is fully ascertainable. Relying on that provision, the Medical Assessor indicated in the medical assessment certificate if 24 May 2023 that he declined to assess the degree of the appellant’s permanent impairment. The Medical Assessor expressed his view that the appellant could be reassessed 6 months after his medication regime has been reviewed and optimised according to the Royal College treatment guidelines.
On 1 December 2023 the appellant’s solicitors provided the Commission with a further report of Dr Khan dated 30 October 2023 in which Dr Khan advised that he had considered the appellant had reached maximum medical improvement and that a re-examination by Medical Assessor Glozier for permanent impairment would be appropriate. The respondent’s solicitors subsequently wrote to the Commission on 20 December 2023 advising that the respondent did not object to the matter being referred back to Medical Assessor Glozier. That occurred by way of an amended referral dated 30 April 2024 that a delegate of the President issued to the Medical Assessor. The MAC the Medical Assessor issued on 11 June 2024 responds to that referral.
In the MAC the Medical Assessor certified the appellant’s impairment is permanent and that the degree of his permanent impairment is fully ascertainable. The Medical Assessor assessed the degree of the appellant’s permanent impairment by reference to the Psychiatric Impairment Rating Scale (PIRS), as detailed in the paragraph 11.11 and 11.12 and Tables 11.1 – 11.6 of the Guidelines. Based on his ratings he certified the appellant had a permanent impairment of the order of 7% WPI. He certified that a proportion of the appellant’s permanent impairment is due to a pre-existing condition of depressive disorder, and further certified that that proportion is 1/10th, which he assumed was the case in accordance with s 323(2) of the 1998 Act. Upon making a deduction for that proportion in accordance with s 323(1) of the 1998 Act, he certified that the degree of the appellant’s permanent impairment from his injury is 6% WPI.
In his appeal against the medical assessment, the appellant has challenged the Medical Assessor’s ratings of his impairment in the PIRS categories of social and recreational activities, social functioning, and concentration, persistence and pace (CPP).
The Medical Assessor rated the appellant’s impairment in social and recreational activities as Class 2, and provided the following reasons for his rating in the PIRS rating form within the MAC:
“He goes to the gym once or twice a week which has a recreational component as well as a selfcare component. He went to a dance music festival interstate on his own which lasted for a couple of days and last went out for dinner with his friend only a few days ago, as well as having had dinner with his brother a week or so ago.”
Within the relevant clinical history he detailed body of the MAC, the Medical Assessor also recorded that the appellant goes to a gym and does a range of different activities depending upon his mood and motivation. The Medical Assessor recorded that prior to his injury the appellant enjoyed a social life going out for coffee and meals with his friends, dating regularly and going for walks. The Medical Assessor recorded that the appellant now has one close friend and that they go out for coffee, meals and movies, with the most recent occasion being the previous Friday. The Medical Assessor recorded that at the dance music festival the appellant attended in Melbourne the appellant did not get involved as much as he done in the past with the hours of dancing and spent times during the festival on the grass outside of the dance concert.
The Medical Assessor rated the appellant’s impairment in social functioning as Class 2, providing the following reasons in the PIRS rating form for doing so:
“He was somewhat inconsistent but reports minimal contact with some parts of his family although continues to see his brother and has one close friend who provides significant support.”
In the body of the MAC the Medical Assessor also recorded, relevant to the appellant’s capacity in social functioning, that the appellant stated that he had visited his parents more regularly whereas in his initial statement made after the injury the appellant said that he does not speak to his family much. The Medical Assessor also recorded that the appellant, other than his close friend, “has not had any further relationships”, and reports few other friends.
The Medical Assessor also recorded, relevant to the appellant’s capacity in social functioning, that the appellant initially reported he does not see his family and has not seen them since the new year, but he did have dinner with his brother in the preceding week. The Medical Assessor recorded that his contact with his mother and his sister appears less and that the appellant can be vindictive and angry towards them.
The Medical Assessor rated the appellant’s impairment in CPP as Class 2 providing the following reasons in the PIRS rating form for his rating:
“Although he reports cognitive difficulties, none are overt on assessment and he spends hours each day on his computer, applying for jobs, watching several episodes of Alone (each episode is 50 minutes) and today reported that he could watch a movie. He misplaces things and could be distractible and forgetful but there was no overt objective cognitive deficits in the assessment today and a similar objective/subjective inconsistency last time.”
The Appeal Panel notes that the findings the Medical Assessor recorded in the body of the MAC from his mental state examination of the appellant included that the appellant demonstrated good focus, concentration and attention over the hour of the examination. The Medical Assessor recorded that the appellant struggled with very specific dates. The Medical Assessor remarked that there appeared to be a discrepancy between his observations of the appellant’s cognitive function and the appellant’s perception of his function. The Appeal Panel also notes that the Medical Assessor also remarked in the PIRS rating form in the MAC that there found a similar inconsistency on the last occasion he examined the appellant between the appellant’s subjective perception of his function and what he had observed.
The Medical Assessor recorded in the history he detailed in the MAC that the appellant watches several hours of YouTube programs and programs on SBS. The Medical Assessor recorded that the appellant applies for up to 15 jobs a day and spends several hours on Seek and other websites looking for work, although he had not received any interviews in response to the applications he has made. The Medical Assessor also recorded that the appellant reported intermittent loss of focus and perceived short-term memory such as forgetting where he has placed things, misplacing events and misusing items, but the Medical Assessor said “this description, even from that in his documentation, does not appear to be enormously different than many people in the community but there is certainly a significant focus on this by him”.
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 it was not necessary for the appellant to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for the Appeal Panel to deal with the appeal.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor’s reasoning for rating his impairment in social and recreational activities was insufficient to establish that his going to the gym is a recreational activity. The appellant submitted that absent his socialising at the gym, the activity is not recreational. The appellant referred to matters in a statement he signed on 7 April 2024 to the effect that he is anxious at the gym and has to leave at times because of that anxiety, which the appellant submitted indicates there is no recreational component in his going to the gym.
The appellant further submitted that the Medical Assessor was mistaken to find that he had attended a music festival for two days. The appellant submitted that the duration of the concert was a few hours.
The appellant submitted that his having dinner with his brother cannot be characterised as a social and recreational activity because there is no evidence that he was social or that the event was recreational.
The appellant submitted that prior to his injury he had an active social life but now he has only one close friend who is a support person.
The appellant submitted that the Medical Assessor’s rating of his impairment in social functioning as Class 2 involved an error. The appellant highlighted that the Medical Assessor had recorded that he has not seen his family since the new year other than having dinner with his brother in the week preceding the assessment and that he is vindictive and angry towards his mother and sister. The appellant submitted that the only interpretation of that is that apart from seeing his brother he has not seen his family since the new year.
The appellant also referred to the Medical Assessor recording that he has one close friend and has had no further relationships and that he has few other friends. The appellant submitted that those matters revealed that there is severe strain in his relationship with family members and a significant loss of friendships, which accords with a Class 3 rating.
The appellant submitted that the Medical Assessor’s rating of his CPP as Class 2 also involved error. The appellant submitted that there is no evidence that he can focus on intellectually demanding tasks for periods of up to 30 minutes before feeling fatigued or developing headache. The appellant submitted that the Medical Assessor made no finding on his ability to focus for that period. The appellant submitted that the Medical Assessor did not assess him properly and that it appeared he relied on the fact that he watches television for hours as the basis for rating his impairment as Class 2. The appellant submitted there is no evidence that he adequately focuses when watching television as opposed to mindlessly watching television.
The appellant highlighted that the job applications he has prepared have not resulted in a single offer of employment, which he submitted questions the quality of the applications.
In reply, the respondent submitted that going to a gym, a music festival and dinner are social activities that are sex, age and culturally appropriate. The respondent submitted that the Medical Assessor’s conclusions regarding the appellant’s impairment in social and recreational activities are not improbable or ignorant of any relevant factual matter and are supported by a path of clinical reasons. The respondent submitted that the Medical Assessor’s rating involved no error and is in accordance with the relevant criteria.
The respondent also submitted that the Medical Assessor’s conclusions regarding the appellant’s impairment in social functioning are also not improbable or ignorant of relevant factual matters or unsupported by a path of clinical reasons. The respondent submitted that the appellant maintaining some relationships with friends and family members accords with a Class 2 impairment.
With respect to CPP the respondent highlighted that the appellant is applying for 15 jobs a day across several websites. The respondent submitted that the appellant not achieving a positive result from those applications is not relevant to the criteria by which his impairment is assessed regarding CPP. The respondent again submitted that the Medical Assessor’s conclusions regarding the appellant’s capacity in CPP are not improbable or ignorant of relevant factual matters or unsupported by a path of clinical reasons.
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.
Social and recreational activities
The Appeal Panel considers that the Medical Assessor was correct to conclude that going to a gym is conduct that involves a recreational component. The Appeal Panel considers it was not necessary for the Medical Assessor to provide reasons as to why the appellant attending regularly a gymnasium is a recreational activity because, in the Appeal Panel’s view, it is apparent that it is. It is a physical activity done for enjoyment. It is akin to walking, swimming or other similar physical activity.
The Appeal Panel observes that the appellant does not require support in order to do this activity. He does not require prompting by family or close friends to do this. He goes regularly to the gym.
The appellant attending a music festival is also a recreational activity. The appellant participated in this event without the prompting of others or without a support person. Irrespective of whether he participated in the event for only a couple of hours or for a few days, it was a recreational activity in which he engaged. The Medical Assessor was correct to have regard to it, when rating the appellant’s impairment in social and recreational activities.
The Medical Assessor also detailed in the history he set out in the MAC that the appellant enjoys listening to music. That also is a recreational activity.
The Appeal Panel also considers the Medical Assessor was correct to consider, when rating the appellant’s impairment in social and recreational activities that the appellant had dinner with his brother and also goes out to dinner with a friend Going to dinner with family or friend involves conduct that is both social and recreational.
The Appeal Panel also notes that the relevant clinical history the Medical Assessor detailed in the MAC included that the appellant goes out to have coffee or a meal or to watch movie, and did so as recently as the Friday night before the Medical Assessor conducted his examination of the appellant. That also is conduct that is both social and recreational.
The Appeal Panel considers that when the MAC is read as a whole, which includes the history the Medical Assessor obtained relating to the appellant going to movies and having meals and coffee with his close friend, and his having dinner with his brother and his regularly attending a gymnasium, that there is no error in the Medical Assessor’s rating of the appellant’s impairment in social and recreational activities as Class 2. The matters the Medical Assessor detailed in the MAC reveal that the appellant has an impairment in this PIRS that best correlates with an impairment described by the examples for a Class 2 impairment. His impairment is not as severe as that described by the examples provided for a Class 3 impairment given that he goes to both social and solitary recreational activities without prompting and without a support person and involves himself in both social and recreational activities.
Social functioning
The Appeal Panel considers that the Medical Assessor has made an error by rating the appellant’s impairment in social functioning as Class 2, rather than Class 3.
The clinical history that the Medical Assessor detailed in the MAC included that the appellant now has no contact with his mother or sister and that he is vindictive and angry towards them. The content of the MAC indicates that the appellant now only maintains a relationship with one of his family, that is his brother. He has otherwise only been able to maintain a close relationship with one friend.
The fact that there is severe tension and strain, to the point of no longer having contact in his relationship with his mother and sister means, in the Appeal Panel’s view, that severity of his impairment in social functioning correlates with an impairment described by the descriptors for a Class 3 impairment, and not by those provided for a Class 2 impairment.
Consequently, in the Appeal Panel’s view, the exercise by the Medical Assessor of his clinical judgement in his rating the appellant’s impairment in social functioning miscarried. It was not open to him to rate the appellant’s impairment as Class 2 based on the matters he set out in the MAC.
CPP
The Appeal Panel considers that the Medical Assessor did not make any error with respect to his rating of the appellant’s impairment in CPP. The Medical Assessor noted that the appellant is applying for 15 jobs a week. Irrespective of the outcome of that, the process of the appellant attending to this task necessarily involves concentration and persistence.
The Medical Assessor noted that the appellant watches shows on television lasting over 50 minutes and watches movies. The Medical Assessor noted that the appellant does so for hours. That necessarily involves concentration in order to follow the show or movie that he is watching.
The Medical Assessor had regard to the appellant being forgetful and distractable and having intermittent loss of focus in that he forgets where he places things and sometimes misuses items. The Medical Assessor in his expertise as a psychiatrist considered that these deficits were not enormously different from those experienced by many people in the general community. In other words, those particular deficits in concentration were minor. The Appeal Panel finds no error in the Medical Assessor’s conclusion on this issue.
The Medical Assessor also had regard to his findings from his mental examination of the appellant, the duration of which was one hour, and during which the appellant did not exhibit any objective cognitive deficits. The Medical Assessor recorded in the MAC that the appellant showed good focus in concentration and attention for the duration of his examination.
All that demonstrates that the severity of the appellant’s impairment in CPP correlates with that described by the examples for Class 2 impairment. It does not match a severity of impairment by the examples described for a Class 3 impairment. The fact that the appellant was able to show concentration and focus over the hour the Medical Assessor conducted the examination without any objective cognitive defects and the fact that he prepares up to 15 job applications a day indicates that he is able to focus on intellectually demanding tasks for periods of more than 30 minutes and is able to read more than a newspaper article and follow complex instructions.
As the Appeal Panel found the Medical Assessor made an error with respect to his rating of the appellant’s impairment in social functioning, the Appeal Panel must correct that error. It does so by rating the appellant’s impairment as Class 3. When that is done, the median of the appellant’s Class scores remains 2, but the aggregate increases to 14. In accordance with Table 11.7 of the Guidelines, that converts to 7% WPI, which is the same as the Medical Assessor’s assessment of the appellant’s permanent impairment from his injury.
The appellant did not challenge the deduction the Medical Assessor made under s 323(1) of the 1998 Act and the Appeal Panel considers that the Medical Assessor was, for the reasons he explained in the MAC, correct to make that deduction.
Consequently, notwithstanding that the Appeal Panel has found a demonstrable error in the MAC, the Appeal Panel’s correction of it makes no difference to the outcome.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 June 2024 should be confirmed.
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