Janissen v Halfway Hamburgers Pty Ltd
[2024] NSWPICMP 326
•23 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Janissen v Halfway Hamburgers Pty Ltd [2024] NSWPICMP 326 |
| APPELLANT: | Jesse Janissen |
| RESPONDENT: | Halfway Hamburgers Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 23 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Whether Medical Assessor’s (MA) ratings of appellant’s impairment in psychiatric impairment rating scale categories of social functioning, concentration persistence and pace, and employability correct based on the evidence; Appeal Panel held MA did not have regard to all the evidence; appellant re-examined; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 March 2024 Jesse Janissen, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 February 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 for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for 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 Halfway Hamburgers Pty Ltd (the respondent) as a crew trainer. He worked at a McDonalds Store in Wagga Wagga. Due to events that occurred in his workplace he suffered a psychological injury. He claimed compensation for permanent impairment from that injury, relying on a report of psychiatrist Dr Ashwinder Anand dated 2 November 2022, who had assessed the appellant had 22% whole person impairment (WPI) from his injury.
To respond to the appellant’s claim, the respondent’s solicitors organised for psychiatrist Dr Abdul Virk to examine the appellant on 14 January 2023. In a report dated 7 February 2023 he advised he assessed the degree of the appellant’s permanent impairment from his injury was 20% WPI. Dr Virk was subsequently requested by the respondent’s solicitors to review of various clinical records relating to the appellant and also a “desk top investigation report”. Following his review of that material, and without further examination of the appellant, he revised his assessment of the appellant’s permanent impairment from his injury to 7% WPI.
On 18 April 2023 the respondent’s insurer notified the appellant under s 78 of 1998 Act that it disputed it was liable to pay him compensation for permanent impairment from his injury. It advised him that its reason for disputing liability was that the degree of his permanent impairment did not exceed the threshold required under s 65A(3) of the Workers Compensation Act 1987 (the 1987 Act) for him to be entitled to compensation for permanent impairment.
The appellant then commenced proceedings in the Personal Injury Commission (Commission) seeking determination of his claim for compensation for permanent impairment. A delegate of the President of the Commission referred the matter to the Medical Assessor on 18 December 2023.
The Medical Assessor examined the appellant on 31 January 2024 to conduct the assessment. He assessed the degree of the appellant’s permanent impairment by reference to the Psychiatric Impairment Rating Scale (PIRS), as set out in paragraphs 11.11 and 11.12 of the Guidelines. He rated the appellant’s impairment in selfcare and personal hygiene as Class 1, in social and recreational activities as Class 3, in travel as Class 2, in social functioning as Class 1, in concentration persistence and pace (CCP) as Class 2 and in employability as Class 3.
The Medical Assessor observed that the medium of his Class scores is 2 and that the aggregate is 12, which converts to 6% WPI. He certified he assessed that was the degree of the appellant’s permanent impairment from his injury.
In his appeal against the MAC the appellant has challenged the Medical Assessor’s rating of his impairment in the PIRS categories for social functioning, CPP and employability.
In the PIRS Rating Form within the MAC the Medical Assessor provided the following reasons for rating the appellant’s impairment in social functioning as Class 1:
“He was dating someone at time of injury and she cheated on him, and the relationship ended in 2019. He has been with his current partner for the last 7 months. He has a good relationship with family and his partner. His dad passed away in 2021, he has one good mate who visits him mostly but has lost few friends, as none of them believe him about what happened at work.”
The Medical Assessor’s reasons for rating the appellant’s impairment in CPP as Class 2 were as follows:
“At age of 2 years he has been diagnosed with ADHD. Has a very short concentration, only on things he likes, was on medication but it was stopped as he was better. Since the injury his focus is down, doesn’t drive much, gets distracted easily. His mind is always busy, can’t focus, does not remember much when he talks due to distraction. When at work he feels better, feels independent and it helps him to pay his bills, and feels a better person.”
The Medical Assessor also noted in the findings he recorded in the MAC from his examination of the appellant that the appellant was able to provide a clear account of his symptoms and difficulties and was oriented and had clear sensorium.
The Medical Assessor provided the following reasons in the PIRS rating form for his rating of the appellant’s impairment in employability as Class 3:
“He doesn’t trust males, likes to work, but would like to work where his job involves cars. He can start part time to begin with, and slowly increase the hours of work. He is ready for working less than 20 hours a week in a different position. He can’t work at all in same position.”
The Medical Assessor also detailed in the history he set out in the MAC that the appellant had completed a work capacity assessment on 27 October 2021 and that this assessment “confirmed” the appellant had capacity for suitable employment. The Medical Assessor also recorded that the appellant’s nominated treating doctor, subsequent to the work capacity assessment, “upgraded” the appellant’s capacity for employment to “35 hours per week of suitable duties”. The Medical Assessor further recorded that the appellant had worked in his father’s lawnmowing business and that, following the appellant’s father’s death, the appellant tried to sustain the operation of that business.
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 the appellant should undergo a further medical examination. This is because, for reasons explained below, the Appeal Panel found the MAC contained demonstrable errors, and in order to correct the errors the Appeal Panel required further clinical data that it considered it could only obtain by re-examining the appellant. The Appeal Panel appointed Dr Graham Blom, who is one of the medical assessors constituting the Appeal, to conduct that examination.
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.
Paraphrasing the appellant’s submissions, by way of summarising them, they are that the evidence demonstrated that he had been in several romantic relationships that lasted only a short time and also demonstrated that there had been conflict between him and his mother with his mother asking him to move out on occasion. The appellant submitted the evidence also demonstrated that in a period of three years between 2020 and 2023 he was named in 13 criminal court matters.
According to the appellant, given this evidence, the correct rating of his impairment in social functioning is Class 3 or Class 4.
The appellant submitted that the Medical Assessor did not obtain a comprehensive history with respect to his CPP and did not give proper consideration to the extent of his symptoms and his background in education and work.
The appellant submitted that his working for his father mowing lawns was work that was done in a controlled environment where he did not interact with any other person besides his father, with whom he had a close relationship. The appellant submitted that the evidence revealed he is unable to trust males and his hypervigilant around adult males. The appellant submitted that he is unable to do work where adult males are present.
The appellant submitted that the correct rating of his impairment in employability is Class 5.
In reply, the respondent submitted that comorbid issues caused the appellant’s impairment in social functioning rather than his work-related injury but also submitted that the Medical Assessor based his assessment on the correct criteria and that his rating of the appellant’s impairment in social functioning did not contain a demonstrable error.
The respondent submitted that there was extensive evidence that the appellant is able to fix cars and that this supports the Medical Assessor’s rating of the appellant’s impairment in CPP as Class 2. The respondent referred to evidence that indicated the appellant was able to undertake various activities and the respondent submitted that the appellant’s ability to do that activity required an ability to concentrate. The respondent also referred to the appellant having “baby sat” a five-week-old child and the respondent submitted that that would require a level of CPP. The respondent also referred to evidence that the appellant had completed Centrelink paper work and passport paper work.
The respondent summited that the Medical Assessor conducted an appropriate examination and that his clinical judgment ought not to be cavilled with.
The respondent submitted that the Medical Assessor assessed the appellant based on how he presented at the time of assessment and the Medical Assessor considered all the evidence relating to the appellant’s symptoms and deficits and how they would affect his ability to work.
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.
The Appeal Panel considers that the Medical Assessor did not give proper consideration to the appellant’s history of violence which had apparently only occurred since his injury and specifically whether that was related to his posttraumatic stress disorder which the Medical Assessor diagnosed as the appellant’s injury. The Appeal Panel observed that the evidence indicated that the appellant had charges against him relating to violence, including with his mother. Potentially, this could be related to his posttraumatic stress disorder. The Medical Assessor did not explore this issue, and consequently did not explain whether or not there is a connection. That amounts to an error with respect to the Medical Assessor’s rating of the seriousness of the appellant’s impairment in social functioning because violence the appellant exhibits to others may affect his capacity to maintain relationships.
The Medical Assessor’s lack of proper consideration of this matter results in the MAC containing a demonstrable error.
The Appeal Panel also considers that the reasons the Medical Assessor provided for rating the appellant’s impairment in CPP as Class 2 do not support that rating. There is insufficient detail provided to determine whether the severity of the appellant’s impairment in CPP correlates with an impairment fitting the descriptors provided in Table 11.5 of the Guidelines for a Class 2 impairment or a Class 3 impairment. That is an error because the path of the Medical Assessor’s reasoning is not sufficiently explained to determine whether the rating the Medical Assessor made is or is not correct.
The Appeal Panel also considers that the Medical Assessor also erred with the appellant’s impairment in employability. The reasons the Medical Assessor provided for rating the appellant’s impairment in employability indicate that the appellant may be unable to be employed in jobs in which other males are employed. If that is the case, then essentially there would be no suitable job in which the appellant could work. That is a total impairment, and not a moderate impairment that the Medical Assessor assessed.
Given that the Appeal Panel identified demonstrable errors in the three PIRS categories the appellant has challenged, the Appeal Panel is required to correct those errors. As indicated earlier, to do that the Appeal Panel considered it needed further clinical data, and to obtain that clinical data it would need to re-examine the appellant. Medical Assessor Blom was appointed to do that, and he carried out his examination on 13 May 2024.
Dr Blom’s report to the Appeal Panel on his examination is as follows:
“The worker’s medical history, where it differs from previous records.
Mr Janissen had not read the previous Medical Assessment but agreed with the substance of it when I presented a précis.
He noted that he had been living with his current partner Carla, for approximately nine months and that they had been in a relationship for about 1½ years. He and Carla are currently living at his mother’s house, with his mother’s partner and his older sister, who suffers from autism. Carla is 31 years of age and herself has a son, aged 14, who has Down’s syndrome and currently resides with Carla’s mother. I clarified how he met Carla given that he rarely leaves his house, and he explained that she was a close friend of a mate of his who was visiting and assisting Jesse rebuild a car. Carla had visited with his mate on one occasion, they had been attracted to each other, and she had begun coming to his house regularly following this
He also clarified his work history since his father’s death. His father died in May 2021. Prior to that Jesse had been working with him intermittently in his lawn mowing business. After his father’s death, the business was eventually sold to a mate of his father who offered employment to Jesse. Jesse attempted this but said that he only lasted a few weeks because he was triggered by working in the business where his father had died as well as the difficulties of working with an older male. As mentioned in Dr Singh’s report Jesse had witnessed his father’s death from a myocardial infarction. He ceased work and has not worked at all since 2022.
I also enquired about the outcome of the criminal trial against his abuser. He said that multiple victims had eventually come forward and that subsequently the man had been convicted and sentenced, according to Jesse to a total of 27 years in prison. Despite the fact that the man is now in prison, Jesse still feels anxious and fearful of the potential for abuse.
Additional history since the original Medical Assessment Certificate was performed
The most significant change in Jesse’s circumstances since the MA, is the fact that he and Carla have found that she is pregnant, approximately 13 weeks, Jesse said. He said that this was a planned pregnancy and that both he and Carla were very excited.
There have been no recent episodes of Jesse becoming enraged and/or violent. As mentioned in Dr Singh’s report, he and his mother have had periods of considerable conflict since his injury, and especially since his father’s death. In August of last year this conflict erupted into a violent argument where Jesse punched a hole in the wall and subsequently his mother called the police. He was arrested spent a few hours in jail and has subsequently been placed on an AVO to not harass or argue with his mother. This seems to have had a salutary effect and there has been no marked conflict with his mother in the last six months. Nevertheless, the relationship remains strained and tense.
Jesse continues to be withdrawn and avoidant and particularly fearful of contact with older men. He said that he still rarely leaves the house because of his fearfulness and the fact that he continues to have panic attacks.
Current Symptoms.
Jesse said that he continues to experience anxiety and flashbacks about the abuse that he experienced. He said that mostly these are triggered by his own thoughts and ruminations which he finds very difficult to control. He said that this is associated with depressed mood and low self esteem – ‘I feel low about myself’. However this mood fluctuates, primarily driven by the frequency and severity of his rumination and flashbacks.
He continues to have reasonably regular nightmares, about 3 – 4/ week. He very frequently wakes in panic from his nightmares. He has difficulty with sleep even without nightmares, particularly initial insomnia.
He has a history of self-harming behaviour, including punching objects as well as self-cutting although has not done either of these for many months.
He feels that his memory is very poor and he generally struggles with concentration and focus. He has difficulty initiating activity and sustaining it.
His appetite is variable but his weight has been stable.
He occasionally experiences hypervigilance but has generally controlled this by avoidance and withdrawal which seems to be his primary method of dealing with his anxiety generally.
He previously was using very high levels of alcohol but has generally reduced this, because he realises that it tends to make his anxiety and depressive symptoms worse as well as exacerbate his tendency to irritability and anger. Generally, he said that he has been much more irritable since the injury although he is able to contain this to some degree by abstinence. Nevertheless, he said that occasionally he still has episodes of very heavy drinking (greater than 10 standard drinks at a setting) but these episodes now only occur every couple of months.
He struggles with energy and motivation as he often feels fatigued but is engaging more actively in the last few months. He works on his car and does some work around the house and in the yard.
Current treatment.
Jesse is currently receiving no treatment at all for his symptoms.
Findings on clinical examination
Jesse was seen via audiovisual means, using the Teams app. The quality of the reception was good, and I was able to undertake an adequate examination. Jesse was in his car using a phone for the interview. He said that he conducted the interview in his car because this gave him a place to be alone. There was no one with him throughout the interview.
Jesse presented as a slightly unkempt man who looked younger than his stated age. He had notable tattoos on his neck and arms (when visible) and a nose ring. His hair was short cropped and he had a faint moustache and beard. He presented as an honest witness who cooperated with and engaged in the interview. He appeared mildly anxious throughout the interview.
He did not appear overtly depressed and there was no flattening of his affect. He was not suicidal.
There was no evidence of psychotic phenomena, in particular there was no evidence of formal thought disorder, delusions or hallucinations.
Jesse was somewhat vague and distractible and on occasions his answers were somewhat difficult to follow. This did not appear to reflect organic cognitive disorder and to some degree I suspect reflected personality style.
Diagnosis.
Jesse continues to meet the DSM 5 diagnostic criteria for Post Traumatic Stress disorder – chronic.
Review of the Matters under Appeal.
Three of the PIRs categories were appealed by the worker – these were the categories of: – Social functioning.
Concentration, Persistence and Pace.
Employability.
Social functioning: Jesse clearly has considerable conflict with his mother that has been ongoing. At times this has led to deliberate self-harm by Jesse in particular punching solid objects which at least on one occasion led to a broken hand. This reflects his rage but also an attempt to focus it away from others. Nevertheless, this appears to have settled considerably over the last six months, probably due to his marked reduction in alcohol intake, as well as perhaps the calming influence of his current relationship. In any case the relationship with his mother would best be described now as very tense and strained. Jesse also said that he has lost contact with several friends because they were unable to either accept or understand what had happened to him. However, he has formed and sustained a new intimate relationship – this probably reflects his greater comfort with women, particularly younger women whom he does not experience as threatening.
CPP: Jesse described being able to spend several hours working on motor vehicles doing reasonably complex repairs/rebuilds. He described that currently he is working on his Ford Ranger adding -lift to the car (raising the suspension, I believe) as well as extending the tray. He did state however that because of fluctuations in his capacity for persistence and, his concentration that he is only able to work on his vehicle when he feels up to it. He also struggles with more visual concentration – for example he said that whilst he enjoys looking at YouTube videos, he can only persist for 5 to 10 minutes. At the interview he was clearly distractible and at times vague. Unquestionably his long-standing ADHD has had some impact on this although I think it is also clear that from his description, his overall concentration and particularly persistence and pace has deteriorated since his injury.
Employability: On the history that I took, Jesse was unable to persist in work with his father’s friend. In part this was due to the memories of his father’s death that were very fresh but also reflected his difficulty dealing with men in general. This is an ongoing and substantial issue and would be very problematical for a young man who only has capacity for semiskilled, physical types of work. Moreover, Jesse continues to be irritable and prone to substantial episodes of anxiety and panic. He generally seems to cope by using significant avoidance and withdrawal. Moreover, he has not worked for two years and feels completely unable to even approach the idea of regular engagement in work, that he cannot control.
Results of any additional investigations since the original Medical Assessment Certificate
There were no additional investigations”
The Appeal Panel considers that Medical Assessor Blom’s examination of the appellant was thorough. The Appeal Panel adopts the history Medical Assessor Blom has provided in his report, including the history to the appellant’s function in the PIRS categories that have been challenged in the appeal. The Appeal Panel also adopts Medical Assessor Blom’s findings from his clinical examination and Medical Assessor Blom’s diagnosis.
Based on the matters Medical Assessor Blom has detailed in his report the Appeal Panel scores the appellant’s impairment in social functioning as Class 2. There is clear strain between the appellant and his mother, but they are still able to reside together so their relationship cannot be characterised as severely strained. The appellant has also been in a steady relationship with his partner for 18 months and they cohabit in his mother’s residence. There is no evidence of any strain in that relationship. The Appeal Panel considers that these matters indicate that the appellant’s severity in social functioning correlate with a Class 2 impairment.
The Appeal Panel considers that the appellant’s impairment in CPP is to be rated as Class 2. The appellant is able to spend several hours working on his motor vehicle, doing complex repairs and rebuilds. He does however only work on his car when he feels up to it. The appellant also struggles with visual concentration such that he can only persist with watching You Tube videos for 5 to 10 minutes. Medical Assessor Blom also found the appellant was distractable and at times vague during his examination of the appellant. These matters correlate with the descriptors provided in Table 11.5 for a mild impairment. They indicate that the appellant is unable to focus on intellectually demanding tasks for more than 30 minutes when he feels up to doing so. They indicate he would have no difficulty following complex instructions and certainly has no difficulty making significant repairs to motor vehicles, such that his impairment could be rated as moderate.
The Appeal Panel considers that the appellant’s impairment in employability is total, that is Class 5. The history Medical Assessor Blom obtained confirmed that the appellant has difficulty dealing with men and that the appellant is irritable and prone to substantial episodes of anxiety and panic. The Appeal Panel is unaware of any workplace that would not have a male present. Given that, and given the appellant’s likelihood of suffering anxiety and panic were he to be placed in a workplace with a male, the Appeal Panel considers that the appellant has no capacity for work and hence his impairment in employability is totalled.
Consequently, the appellant’s Class scores in the PIRS categories are 1 for self-care and personal hygiene, 3 for social and recreational activities, 2 for Travel, 2 for social functioning, 2 for CPP and 5 for employability. The median class of those scores is 2 and the aggregate is 15. That converts to 8% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 7 February 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W8844/23 |
Applicant: | Jesse Janissen |
Respondent: | Halfway Hamburgers 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 Himanshu Singh 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) |
| Psychiatric and psychological disorder | 24/12/2018- deemed | Chapter 11 | - | 8% | - | 8% |
| Total % WPI (the Combined Table values of all sub-totals) | 8% | |||||
0