Jamei v 22 Degrees Air-Conditioning Services Pty Ltd

[2024] NSWPICMP 463

DETERMINATION OF APPEAL PANEL
CITATION:	Jamei v 22 Degrees Air-Conditioning Services Pty Ltd [2024] NSWPICMP 463
APPELLANT:	Jassem Jamei
RESPONDENT:	22 Degrees Air-Conditioning Services Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Professor Nicholas Glozier
DATE OF DECISION:	17 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) considered all the evidence and provided sufficient reasons with respect to his ratings of the appellant’s permanent impairment in self-care and personal hygiene and in concentration, persistence and pace; Held – MA considered all relevant evidence and provided sufficient reasons; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 10 May 2024 Jassem Jamei, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 15 April 2024.

2. 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.

3. 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.

4. 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.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

1. The appellant was born in Iran in 1982 and migrated to Australia on a refugee visa in 2013.  He commenced employment as an air conditioner installer in 2019 with 22 Degrees Air-conditioning Services Pty Ltd, the respondent.  On 30 July 2019 he was working in a roof space.  He fell a distance of 3m from a truss on which he was working.  He suffered physical injuries and also a psychological injury as a consequence of that incident.

2. The appellant’s lawyers arranged for the appellant to be examined by psychiatrist Dr Ben Teoh on 4 May 2023. In a report dated 8 May 2023 Dr Teoh advised the appellant’s lawyers that he diagnosed the appellant’s injury as a chronic adjustment disorder with depressed mood. Dr Teoh also advised that he assessed the appellant’s degree of permanent impairment from his psychological injury was of the order of 19% whole person impairment (WPI). That assessment was done by reference to the Psychiatric Impairment Rating Scale (PIRS) as detailed in Chapter 11 of the Guidelines. On 4 July 2023 the appellant’s lawyers wrote to the respondent’s insurer advising it that the appellant claimed compensation from it pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 19% WPI.  They provided the insurer with a copy of Dr Teoh’s report of 8 May 2023 to support the appellant’s claim.

3. To respond to that claim the respondent’s insurer arranged for the appellant to be examined by psychiatrist Dr Timothy Berry on 17 November 2023.  In a report Dr Berry issued on that date he advised the respondent’s lawyers that he diagnosed the appellant’s psychiatric injury is persistent depressive disorder.  He also advised he assessed, in accordance with PIRS, the appellant had 9% WPI from his injury.

4. The insurer then wrote on 19 December 2023 to the appellant to notify him, in accordance with s 78 of the 1998 Act, that it disputed it was liable to pay him compensation under s 66 of the 1987 Act for permanent impairment from his injury. It advised him its reason was that the degree of his permanent impairment from his injury did not exceed the threshold imposed by s 65A(3) of the 1987 Act of at least 15% for him to be entitled to compensation for permanent impairment. It provided him with a copy of the report of Dr Berry dated 17 November 2023. It advised him that it considered Dr Berry’s report to be “a more accurate reflection of your current psychological impairment”.

5. A medical dispute thus arose between the parties regarding the degree of the appellant’s permanent impairment from his injury.  The appellant’s lawyers lodged with the Personal Injury Commission (Commission) on 22 February 2024, on behalf of the appellant, an Application to Resolve a Dispute (ARD) seeking determination of his claim for compensation for permanent impairment.

6. A delegate of the President of the Commission referred the matter to the Medical Assessor.  The Medical Assessor conducted an examination of the appellant on 26 March 2024 by an audio-visual link.  In the MAC she issued on 15 April 2024 she certified she had assessed the degree of the appellant’s permanent impairment from his injury is 9% WPI.  She stated in the MAC that in making her assessment she took account of her clinical interview with the appellant, the appellant’s mental status at examination and the documentation the Commission had provided to her.  It is apparent from Tables 2 and 11.8 of the MAC that she assessed the degree of the appellant’s permanent impairment by reference to PIRS. 

7. In his appeal against the MAC the appellant has challenged the Medical Assessor’s ratings of his permanent impairment in the PIRS for social functioning and the PIRS for concentration, persistence and pace (CPP), in both of which the Medical Assessor rated the appellant’s impairment as Class 2. 

8. The Medical Assessor provided the following reasons within Table 11.8 of the MAC for rating the appellant’s impairment in social functioning as Class 2:

   “Mr Jamei reported that he talks to his family members back in Iran, however, there has been a slight reduction in the frequency with which he talks to them. He has been well supported by his friend with whom he lives. Mr Jamei reported that he has a lot of friends all around Australia and they call him and try to help him, but he lacks motivation to engage with them. He travelled to Melbourne with a friend for two to three days in 2023. He also travelled to Adelaide with a friend in 2022 for a short holiday but did not enjoy that.”

9. Within the body of the MAC the Medical Assessor also recorded the appellant has friends that come to his place but the appellant feels anxious and likes to be by himself as he gets tired very quickly.

10. The Medical Assessor also observed within the MAC that her rating of the appellant’s impairment in social functioning was different from Dr Teoh’s rating and noted that Dr Teoh had mentioned in support of his rating that the appellant “has strained relationships due to irritability and lacking communication”.  The Medical Assessor contrasted that with what the appellant had reported to her, which was that he continues to have good relationships with his family members in Iran but with a slight reduction in the frequency with which he talks to them; that he is well supported by his friend with whom he lives; and that he has lost some friendships because he had to move to Adelaide because of visa requirements, as distinct from any mental health condition.

11. The Medical Assessor provided the following reasons within Table 11.8 of the MAC for rating the appellant’s impairment in CPP as Class 2:

    “Mr Jamei said that he is unable to focus on long films but can focus on short films. He said that he forgets where he keeps things, however, during today's assessment, he was able to focus and maintain concentration and attention throughout the assessment which lasted over an hour. Mr Jamei was not distracted and was able to reply to the questions adequately without having any difficulties.”

12. Within the body of the MAC the Medical Assessor also noted that she found from her physical examination of the appellant that his thoughts were logical and goal directed and that he spoke fluently and spontaneously.  The Medical Assessor also noted the appellant had reported to her that he tired easily and found it hard to focus and got distracted easily.  The Medical Assessor observed that Dr Teoh had rated the appellant’s impairment within CPP differently from what she had rated the appellant’s impairment and she also observed that Dr Teoh had mentioned in support his rating that the appellant was preoccupied with chronic pain and physical difficulty and had been worrying about his future and his physical condition.  The Medical Assessor said she disagreed with Dr Teoh’s rating because she did not find that the appellant had any difficulties in attention or concentration during her examination of him, which lasted an hour.  She also observed Dr Teoh had found from his mental status examination of the appellant that there was no evidence of short or long term memory impairment.

PRELIMINARY REVIEW

1. 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.

2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established the ground for appeal on which it relied, and consequently there was no reason for the Appeal Panel to examine the respondent.[1]

   [1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

EVIDENCE

1. 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   

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. In summary, the appellant submitted that the Medical Assessor failed to provide sufficient reasons for rating his impairment in social functioning as Class 2 rather than Class 3.  The appellant submitted that the Medical Assessor did not acknowledge that he lacks motivation to engage in social relationships with friends. 

3. The appellant referred to various entries that his psychologist, Mr Tindaro Fallo, had made in the clinical records that Mr Fallo kept relating to his consultations with Mr Fallo. One of these was made on 9 October 2020 and was to the effect that the appellant had not made many friends.  Another was made on 30 October 2020 when the appellant reported having suicidal ideations.  Another was made on 14 April 2020 when the appellant reported feeling hopeless and having no future.  Another was made on 6 December 2020 which again related to the appellant having suicidal ideation and also to having low concentration and being forgetful, having anxiety and fear of the unknown, getting confused and anxious when crossing the road, and thinking that something bad is about to happen.

4. The appellant submitted that the Medical Assessor failed to consider that evidence which he contended had “considerable medical significance”.  The appellant submitted that the Medical Assessor’s failure to consider that evidence in her “decision making rationale” is an “evident lapse, and as a consequence, a demonstrable error”.  The appellant submitted that had the Medical Assessor considered that evidence her conclusions regarding her rating of his impairment would have been different.

5. The appellant submitted that the Medical Assessor also failed to provide sufficient reasoning regarding her assessing his impairment in CPP as Class 2.  The appellant submitted that had the Medical Assessor “diligently examined the documented evidence of Mr Fallo and their implications for the appellant’s mental health, she would likely have arrived at a more nuanced understanding of his condition”.  The appellant submitted that the Medical Assessor did not recognise the severity of his struggles and their impact on his concentration.

6. In reply, the respondent submitted that the entries from Mr Fallo’s clinical records to which the appellant referred are largely irrelevant to the appellant’s impairment in social functioning.  The respondent noted that the Medical Assessor’s assessment of the appellant’s rating in social functioning correlated with Dr Berry’s assessment.

7. The respondent submitted that the appellant made no particular submission about the Medical Assessor’s assessment of his impairment in CPP.  The respondent submitted the appellant did not point to any particular evidence or articulate how the Medical Assessor’s assessment should be different but rather “simply suggested” that had the Medical Assessor properly examined Mr Fallo’s records the Medical Assessor would have identified a greater impairment in concentration. 

FINDINGS AND REASONS

1. 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.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.

3. The examples for a Class 2 and Class 3 impairment provided in Table 11.4 of the Guidelines for social functioning are:

Class 2	Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3	Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.

1. Most of the entries the appellant highlighted from the records of Mr Fallo in support of his submissions relating to the Medical Assessor’s rating of his impairment in social functioning are not germane to the appellant’s conduct in social functioning.  The entries that the appellant highlighted, in the main, related to the appellant experiencing suicidal ideation, feeling hopeless, and being worried about his future.  Those symptoms are not relevant to his ability to maintain social relationships. 

2. The Medical Assessor was aware that the appellant experienced symptoms of anxiety and is worried about his future.  She noted this in the MAC.  The Medical Assessor also recorded in the MAC she had “noted the notes for his visits, Psychologist, various dates”.  What this reveals, in the Appeal Panel’s view, is that the clinical history the Medical Assessor detailed in the MAC, by reference to which she assessed the appellant’s impairment, was composed by her having regard to what the appellant reported to her during her examination of him and the documentation she had been provided, including the records of Mr Fallo.  She exercised her expertise and judgement to compose that clinical history and what she detailed in the MAC was what she considered relevant for assessing the degree of the appellant’s permanent impairment. 

3. The Appeal Panel can discern no error with respect to the relevant clinical history the Medical Assessor composed and detailed in the MAC relating to the appellant. 

4. The Appeal Panel can discern no error in the Medical Assessor’s reasoning for rating the appellant’s impairment in social functioning as Class 2.  She noted that he maintains relationships with his family members in Iran but with less frequency than what he previously did and that he is supported by his friend with whom he lives, which clearly indicates, in the Appeal Panel’s view, that he is able to maintain a relationship with that friend.  The Medical Assessor noted that the appellant has friends around Australia who try to help him but he lacks the motivation to engage with them.  She noted that in the past he has travelled away from Adelaide to visit friends.

5. The Appeal Panel also notes from the records of Mr Fallo made that on 9 October 2020 the appellant reported having lost connections with most of his friends in Sydney following his move to Adelaide nine months previously.  The Appeal Panel notes that Mr Fallo recorded on 19 November 2020 that the appellant had in the previous week attended a friend’s wedding and that the appellant was surprised how much spending time with his friends could lift his spirit.  What this indicates to the Appeal Panel is that as from as far back as 2020, in the year after the injury, the appellant was able to maintain relations with friends. 

6. In the Appeal Panel’s view these matters indicate an impairment in social functioning that accords with the descriptors provided for a Class 2 impairment and hence the Medical Assessor was correct to rate the appellant’s impairment in social functioning as Class 2 for the reasons she provided.  There is no evidence of the appellant having severe strain in his prior relationships or periods of separation or experiencing domestic violence, such that his impairment would accord with the descriptors provided for a Class 3 impairment.  As said, the matters that the appellant highlighted from the records of Mr Fallo are largely relevant to his impairment in social functioning, and that which are relevant would support a Class 2 rating.

7. The descriptors provided in Table 11.5 for a Class 2 impairment for CPP are:

   “Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace.  Can focus on intellectually demanding task for periods of up to 30 minutes, then feels fatigued or develops headache.”

8. The descriptors provided for a Class 3 impairment are:

   “Moderate impairment:  unable to read more than newspaper articles.  Finds it difficult to follow complex instructions (e.g. operating manuals, building plans) make significant repairs to motor vehicles, type long documents, follow a pattern for making clothes, tapestry or knitting.”

9. Again, it is apparent to the Appel Panel that the clinical history the Medical Assessor provided in the MAC relating to the appellant was composed by her after having regard to the clinical notes of Mr Fallo.  Those notes revealed that on 9 October 2020 the appellant reported to Mr Fallo that he had low motivation and that on 1 December 2020 he reported to Mr Fallo that he had low concentration, was forgetful, had fear of the unknown and anxiety.  The Appeal Panel notes that the Medical Assessor recorded in the MAC that the appellant currently feels as though he lacks energy and gets tired very easily and finds it is hard to focus and gets distracted quickly.  Those symptoms correlate, substantially, with the symptoms that Mr Fallo recorded some years ago. 

10. The Medical Assessor also noted that when the appellant wakes, he feels fatigued and is unable to work.  The Medical Assessor also recorded that the appellant reported being unable to read more than one paragraph and is limited to watching short videos.  In contrast to that, the Medical Assessor recorded that over the one hour that she examined the appellant he was able to engage well with the examination and spoke fluently and spontaneously with insight into his condition and had intact judgment.  She noted that his thoughts were logical and goal directed.  In her clinical judgment, that indicated that the appellant did not have any difficulties with his attention or concentration.  She noted that the appellant was not distracted and was able to answer questions adequately and without difficulty.

11. The examples of impaired conduct provided for the various class ratings in the several PIRS Tables are just that- examples.[2]  They are not prescriptive.  A worker may exhibit impaired conduct that correlates with an example provided for one of the class ratings of a PIRS category and also exhibit other impaired conduct that correlates with an example for another of the class ratings of that particular PIRS category.  The fact that a worker may exhibit conduct described in one class rating, does not necessarily compel a Medical Assessor to rate the worker’s impairment within that class.  A Medical Assessor must evaluate all the material before him or her, including the clinical history the Medical Assessor has composed, to determine what the level of impairment of the worker is in a particular PIRS category.  That is, a Medical Assessor must weigh all relevant conduct of the worker relating to the particular PIRS category in order to evaluate the degree of seriousness of the worker’s function in the particular category. That involves the exercise by the Medical Assessor of his or her clinical expertise and judgement.  That will permit some latitude of opinion.

    [2] Jenkins v Ambulance Service of NSW [2015] NSWSC 633 (Jenkins) at [65].

1. Whilst the symptoms that the appellant reported to the Medical Assessor indicate that the appellant may not be able to read a newspaper article, which is one of the examples provided for a Class 3 impairment, when his function overall with respect to CPP is considered, which is what the Medical Assessor did, the Appeal Panel can discern no error in the exercise by the Medical Assessor of her clinical judgment in rating the appellant’s impairment in this PIRS as Class 2.

2. For these reasons, the Appeal Panel has determined that the MAC issued on 15 April 2024 should be confirmed.