JWC Formwork Pty Ltd v Poorbabaiyan
[2025] NSWPICMP 546
•25 July 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | JWC Formwork Pty Ltd v Poorbabaiyan [2025] NSWPICMP 546 |
| APPELLANT: | JWC Formwork Pty Ltd |
| RESPONDENT: | Mohammad Poorbabaiyan |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 25 July 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether the Medical Assessor (MA) took account of impairment of function respondent had from physical injuries when rating the respondent’s impairment in self-care and personal hygiene, social and recreational activities, travel, and employability; whether MA correctly rated the respondent’s impairment in these categories; Held – MA’s rating in self-care and personal hygiene were correct and accorded with the evidence; MA did not obtain sufficient history regarding the respondent’s function in travel and in employability to justify the ratings made; respondent re-examined; based on history obtained and findings made during re-examination Appeal Panel rated the respondent’s impairment in travel and in employability the same as the MA had; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 March 2025 JWC Formwork Pty Ltd, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Gerard Walsh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 February 2025.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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 (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).
RELEVANT FACTUAL BACKGROUND
The appellant employed Mohammad Poorbabaiyan, the respondent, as a carpenter. On
3 February 2023 the respondent was working in a basement on a job site in Parramatta when he lost control of a circular saw causing him to amputate his left index finger. He also suffered a psychological injury from that incident that was diagnosed as post-traumatic stress disorder.Consultant psychiatrist Dr Michael Hong examined the respondent at the request of the respondent’s solicitors to advise on various matters relating to the respondent’s injury, including the degree of permanent impairment he had from his psychological injury. In a report dated 23 August 2024 Dr Hong advised that he examined the appellant via video on 16 August 2024. He confirmed a diagnosis of post-traumatic stress disorder. He advised that he assessed the degree of the respondent’s permanent impairment from his psychological injury is 19% whole person impairment (WPI). That assessment was done by reference to the psychiatric impairment rating scale (PIRS), which is detailed in Chapter 11 of the Guidelines. Dr Hong’s ratings of the several categories comprising that scale were Class 2 for self-care and personal hygiene and for social functioning and for travel, Class 3 for social and recreational activities and for concentration persistence and pace (CPP), and Class 5 for employability.
Relying on that report of Dr Hong, the respondent claimed compensation from the appellant’s insurer under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 19% WPI resulting from his injury.
Neither the insurer nor the appellant responded to that claim which precipitated the respondent filing with the Personal Injury Commission (Commission) an Application to Resolve a Dispute dated 13 November 2024. Following the appellant filing a response to that application, the matter was referred to the Medical Assessor to assess the degree of the respondent’s permanent impairment from his psychological injury.
To that end the Medical Assessor examined the respondent on 19 February 2025 over the course of 1.5 hours. As said, he issued the MAC on 24 February 2025. He noted in the MAC that the respondent used an interpreter during the examination. He also noted that the respondent was born in Iran and arrived in Australia in 2013. The Medical Assessor diagnosed the respondent’s injury as post-traumatic stress disorder.
The Medical Assessor certified he assessed the degree of the respondent’s permanent impairment is 22% WPI. That was based on his rating the respondent’s impairment as Class 2 for self-care and personal hygiene, and for travel, Class 3 for social and recreational activities, for social functioning, and for CPP, and Class 5 for employability.
In its appeal against the MAC the appellant has challenged the Medical Assessor’s ratings of the respondent’s impairment in self-care and personal hygiene, social and recreational activities, travel, and employability.
The reasons the Medical Assessor provided in the PIRS rating form within the MAC for rating the respondent’s impairment in self-care and personal hygiene as Class 2 are:
“Class 2 and not Class 1 was selected because he currently lives independently but relies on takeaway food.
He had mild impairment
Bathing: He said he washes and dresses himself. He showers every two to three days. When asked, he said nobody had complained about his level of hygiene.
Cooking: The Claimant said he has not cooked since the injury because he did not want to see a knife. He has daily meal delivery. He reported having physical limitations in cooking because he is only able to use one hand.
Household chores: He reported that he vacuums but does not do other household chores. He uses single-use dishes so he does not have to wash
them. He goes to the laundromat to wash his clothes.
Shopping: He stated that he orders food online and goes shopping once a week for food for his cat.
The Claimant said a support person is not required for any of these activities.
He stated that before the injury, he was completely independent in bathing, grooming, household chores and shopping.”
The symptoms the Medical Assessor detailed in the MAC that the respondent currently experiences included his having a poor appetite and eating one meal a day only. The Medical Assessor also noted that the respondent’s hair was unbrushed and he was unshaven during his examination of the respondent. The Medical Assessor noted that a report prepared by psychologist Carl Nielsen on 11 May 2023 documented that the respondent relied on takeaways and had difficulty with domestic chores. The Medical Assessor also noted that Dr Hong had rated the respondent’s impairment in self-care and personal hygiene as Class 2 on the basis that the respondent neglected his nutrition and skipped showers, but went shopping and bought groceries.
The reasons the Medical Assessor provided in the PIRS rating form for rating the respondent’s impairment in social and recreational activities as Class 3 are:
“Class 3 and not Class 2 was selected because he does not go out socially.
He had moderate impairment
Hobbies: He said he has not gone to the beach since 1 ½ years ago.
Exercise: He stated that he has not gone to the gym since the subject injury. He feels fearful of going out.
Frequency of socialising: He did not recall the last time that he went out socially. He said he feels embarrassed by the physical appearance of his hand and so does not go out. He said he buys coffee on his way from the supermarket.
He feels anxious when out. When asked about Dr Hong’s report that he occasionally went out with a friend for coffee, he said that was incorrect. He
said he did not have an interpreter for that assessment and misunderstood the questions.
The Claimant said a support person is not needed to go out.
He stated that before the injury, he enjoyed going to the gym most days a week. He went out with friends almost daily to the beach every week at the weekend.”
The Medical Assessor also noted in the MAC that Dr Hong rated the respondent’s impairment in social and recreational activities as Class 3 on the bases that the respondent had ceased all his usual recreational activities, avoided social events, and avoided people generally although he went out for coffee with a friend rarely. The Medical Assessor noted that Mr Neilsen in his report of 11 May 2023 described that the respondent is socially withdrawn and participated in regular activities less.
The Medical Assessor’s reasons as detailed in the PIRS rating form for rating the respondent’s impairment in travel as Class 2 are:
“Class 2 and not Class 1 was selected because he only travels locally without a support person.
He had mild impairment
The Claimant said a support person is not required to travel.
He said he drives himself locally for five minutes in his automatic car. He can drive to
appointments around ten minutes every few months. He said he does not have any interest in driving and does not like driving with one hand.
Holidays – He said he has not left Australia since 2013.
He stated that before the injury, he could travel interstate anywhere without any problem.”
The Medical Assessor noted within the MAC that Dr Hong also rated the respondent’s impairment in travel as Class 2 on the bases that the respondent was anxious and avoided places that triggered his anxiety such as noisy places, and had not gone overseas since arriving in Australia 12 years ago.
The Medical Assessor’s reasons for rating the respondent’s impairment in employability as Class 5 are:
“Class 5 and not Class 4 was selected because he could not work at all.
He had total impairment
Work: He said he has not worked since the subject injury.
Volunteering: He stated that he has not done any unpaid work. He said his rehab consultant informed him about voluntary work but did not think he was ready for that yet.
He said the barriers to returning to work were difficulty going out into the public because of his appearance. He said he takes medications and has difficulty going to the bathroom.
He stated that there were never any issues with employment before the injury.”
Within the MAC the Medical Assessor recorded within the history he detailed for the respondent that the incident in which the respondent suffered injury caused an amputation of his left index finger for which the respondent had surgery. The Medical Assessor recorded that the respondent’s current symptoms included feeling fatigued every day, having poor concentration, avoiding walking past building sites or noisy machines, and being easily startled by noises.
The Medical Assessor noted that Mr Neilsen in his report of 11 May 2023 said that the respondent’s loss of confidence, fatigue, poor concentration and diminished stress tolerance presented barriers to his returning to work. The Medical Assessor also noted that Dr Hong had rated the respondent’s impairment in employability as Class 5 on the basis that the respondent had no work capacity because of poor concentration and inter-personal difficulties.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the respondent should undergo a further medical examination. This is because the Appeal Panel found, for reasons explained below, the MAC contained a demonstrable error, which the Appeal Panel will need to correct. To that end, the Appeal Panel considered it required further clinical data from the respondent that it could only obtain from further examination of him. Medical Assessor Douglas Andrews, a member of the Appeal Panel, was appointed to conduct that examination, which he did on 9 July 2025. Medical Assessor Andrews’ report to the Appeal Panel is copied below.
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 erred by rating the respondent’s impairment in self-care and personal hygiene as Class 2, rather than Class 1. The appellant submitted that the respondent’s inability to cook is due to his physical limitations arising from the injury to his left hand rather than an impairment of his function from his psychological injury. The appellant highlighted that the respondent is able to maintain his house, laundry and appearance. The appellant submitted that the Medical Assessor when rating the respondent’s impairment in self-care and personal hygiene that results from his psychological injury, also had regard to the limitation on the respondent’s function that is due to his physical injury, and that is an error.
The appellant submitted that the Medical Assessor also erred by rating the respondent’s impairment in social and recreational activities as Class 3 rather than Class 2. The appellant submitted that the reasons the Medical Assessor provided for rating the respondent’s impairment in social and recreational activities as Class 3 do not line up with a Class 3 impairment. The appellant submitted that the Medical Assessor had regard to the impact of the respondent’s physical injuries when rating the respondent’s impairment in social and recreational activities and, by doing that, the Medical Assessor erred.
The appellant submitted that the Medical Assessor erred by rating the respondent’s impairment in travel as Class 2, rather than Class 1. The appellant noted that the Medical Assessor recorded the respondent does not require a support person to travel, can drive himself locally for 5 minutes in an automatic car or 10 minutes to appointments every three months, has not left Australia since 2003, and does not have any interest in driving as he does not like driving with one hand. The appellant submitted that the Medical Assessor again took into account the limitations on the respondent’s ability to travel that are due to his physical injury in that the Medical Assessor had regard to the respondent not wanting to drive because he drives with only one hand. The appellant submitted that the Medical Assessor ought only to have had regard to the impairment of the respondent’s function that results from his psychological injury.
The appellant submitted that the Medical Assessor erred by rating the respondent’s impairment in employability as Class 5, rather than Class 4. The appellant submitted that the Medical Assessor again erred by including impairment of the respondent’s function in employability that is the result of his physical injury. The appellant submitted that the respondent’s inability to return to work relates to his physical injury rather than his psychological injury.
In reply, the respondent submitted that the Medical Assessor’s findings are consistent with his having a mild impairment in self-care and personal hygiene. The respondent submitted that the appellant did not refer to any evidence to support its contention that the Medical Assessor took into account impairment from his physical injuries when rating his impairment in social and recreational activities. The respondent further submitted the Medical Assessor made no error by assessing a Class 2 impairment in travel. The respondent submitted that the Medical Assessor did not err by rating his impairment in employability as Class 5.
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.
Within paragraph 11.12 of the Guidelines are six tables numbered 11.1-11.6 that provide examples of impaired conduct or function for the various classes of severity available to a Medical Assessor to rate a worker’s impairment in each of the scales of behaviour comprising the PIRS. Paragraph 11.12 of the Guidelines makes clear that the examples of impaired function or behaviour are only that- examples. They are not prescriptive and are intended only to provide guidance for a Medical Assessor when determining the extent of seriousness of a worker’s impairment within each of the scales comprising the PIRS.[1] Whilst only providing an example of the types of conduct or impaired behaviour a Medical Assessor may consider, a Medical Assessor must have regard to them to the extent relevant. Nevertheless, the history given to the Medical Assessor and other facts established by the evidence before a Medical Assessor can surmount a particular example in terms of how a Medical Assessor is to rate a worker’s impairment. Ultimately, a Medical Assessor must apply his or her clinical expertise when evaluating the evidence at hand, which includes the history the Medical Assessor has obtained, to rate how severe a worker’s impairment is in a particular scale.
[1] Jenkins v Ambulance Service of NSW [2015] NSWSC 633 at [65]; Rogers v Health Services Union NSW [2025] NSWSC 291 at [43]-[45]
The Appeal Panel notes that for each of the scales comprising the PIRS, the descriptor provided for a Class 1 rating is or includes “no deficit, or minor deficit attributable to the normal variation in the general population”.
The history the Medical Assessor obtained from the respondent included that he has not cooked since he suffered his psychological injury and physical injury because he does not want to see a knife. The Medical Assessor noted that the respondent has a daily meal delivered to him. The Medical Assessor also noted that his capacity to cook is also limited due to the effect of his physical injury in that he can only use one hand.
The Appeal Panel notes that the Medical Assessor also observed the respondent’s hair was unbrushed at the time of examination and that the respondent was unshaven. His unkempt appearance at the time of examination is not a consequence of his physical injury. The respondent is right hand dominant, whereas his physical injury was to his left hand.
Whilst the history the Medical Assessor obtained, and indeed the other evidence that was before the Medical Assessor, demonstrates that the respondent has limitations consequent upon his physical injury that inhibit his function in self-care and personal hygiene, his psychological injury also adversely affects his function. His anxiety about knives is not due to his physical injury but due to the symptoms of his post-traumatic stress disorder. Further, before his injury he was completely independent in bathing, grooming, household chores and shopping. The respondent now showers every two to three days. That reduction in his self-care is likely not due to his physical injury but is most likely a consequence of his post-traumatic stress disorder.
The respondent consequently does have a deficit in his self-care and personal hygiene and that deficit is not minor such that it could be attributable to the normal variation of the general population. The descriptors provided for a Class 2 impairment are “able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on takeaway food”. For the reasons the Medical Assessor provided in the PIRS rating form, the respondent’s impairment arising from his psychological injury squarely accord with a severity of the impairment described by those examples. The Medical Assessor made no error with respect to his rating of the respondent’s impairment in self-care and personal hygiene. The Medical Assessor applied the correct criteria to make his rating.
The examples provided in Table 11.2 of the Guidelines for a Class 2 and Class 3 impairment in social and recreational activities are:
Class 2
Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3
Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
No doubt it would be the case that the respondent’s injury to his left hand would impede to some extent his ability to exercise at a gym. However, the history the Medical Assessor obtained and on which he relied to reason the respondent’s impairment in social and recreational activities is Class 3, included that the respondent does not go to the gym because he is fearful of going out. That is a consequence of his anxiety, and not due to the physical injury he suffered to his hand. Further, the respondent’s embarrassment of his physical appearance, which also impedes his ability to socialise, is a consequence of his psychological injury. While it is the case that if he had not suffered his physical injury he would not experience that embarrassment, because he would not have anything to be embarrassed about, it nevertheless does not follow from that that his embarrassment is not attributable to his psychiatric illness. His psychological injury is a direct and material factor in his experiencing embarrassment.
The respondent, based on the history the Medical Assessor obtained, is rarely going to social events.
The respondent’s impairment best accords with a severity of impairment described by the examples for a Class 3 impairment, rather than a Class 2 impairment. In the Appeal Panel’s view, the Medical Assessor took into account relevant matters when assessing the respondent’s impairment in social and recreational activities, and did not take into account any irrelevant matter. It cannot be demonstrated from the reasons the Medical Assessor provided for his rating that he was under any misunderstanding.
The Appeal Panel considers that the Medical Assessor correctly rated the respondent’s impairment in social and recreational activities and that he applied the correct criteria to do so.
The examples provided in Table 11.3 for a Class 2 rating are: “mild impairment: can travel without support person, but only in familiar areas such as local shops, visiting a neighbour”.
The Appeal Panel considers that the history the Medical Assessor obtained relating to the respondent’s capacity in travel is insufficient to support his reasoning for his rating of the appellant’s impairment in this category of function. It cannot be known from the Medical Assessor’s reasons, in the Appeal Panel’s view, whether the respondent has an impairment in travel and, if so, whether that is solely a consequence of his physical injury or whether his psychological injury also is a factor. The Medical Assessor not obtaining a sufficient history is an error such that the MAC contains a demonstrable error.
The examples provided in Table 11.6 of the Guidelines for a Class 4 and Class 5 impairment in employability are:
Class 4
Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5
Totally impaired: Cannot work at all.
The Appeal Panel again considers that the history the Medical Assessor obtained does not sufficiently reveal to what extent the respondent is impeded from engaging in employment due to his physical injury or his psychological injury. That also is an error on the part of the Medical Assessor such that the MAC contains a demonstrable error.
As noted earlier, the Appeal Panel must correct these errors and to that end it would need to obtain further information to enable it to do so. As also said, the Appeal Panel appointed Medical Assessor Andrews to conduct an examination of the respondent to obtain that information, which he did on 9 July 2025, and below is his report:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W28690/24 |
Appellant: | JWC Formwork Pty Ltd |
Respondent: | Mohammad Poorbabaiyan |
Date of Determination: | 9 July 2025 |
Examination Conducted By: | Douglas Andrews |
Date of Examination: | 9 July 2025 |
1.The workers medical history, where it differs from previous records
Mr Poorbabaiyan is a 35-year-old carpenter who came to Australia from Iran in 2013. He migrated to Australia as a refugee, leaving his parents and brother in Iran.
He was injured in an industrial accident on 3 February 2023 when he deeply lacerated his left index and middle fingers using a circular saw. He has subsequently had 3 surgeries, the last on 16 May 2024. These surgeries have had limited benefit, and he struggles to use his left hand because of stiffness and pain.
He lives alone with three cats in a granny flat in Auburn.
He has not worked in any capacity, paid or voluntary, since his injury.
He was diagnosed with post-traumatic stress disorder by IME psychiatrist Dr Michael Hong on 23 August 2024. Medical assessor Gerald Walsh also determined this diagnosis on 25 February 2025. Dr Hong had assessed a 19% whole person impairment, and Medical Assessor Walsh determined a 22% whole person impairment. Dr Hong spoke of vulnerabilities arising from Mr Poorbabaiyan’s experiences in Iran, but did not diagnose a pre-existing condition, nor did Dr Walsh.
2.Additional history since the original Medical Assessment Certificate was performed
Mr Poorbabaiyan is cared for by his general practitioner and a psychologist, Kathy. He sees his GP in person every 2 months and by phone on the alternate months. He consults with Kathy by video conference because he feels more comfortable and less anxious at home.
His current medication regimen is fluoxetine 20 mg daily, gabapentin 300 mg daily, melatonin 2 mg at night and quetiapine 25 mg at night. Recently, Mr Poorbabaiyan’s general practitioner has discussed referral to a psychiatrist, but Mr Poorbabaiyan has not yet consulted a psychiatrist for treatment.
Mr Poorbabaiyan has recently developed palpitations and shortness of breath and describes a “stabbing” sensation in his chest. His general practitioner is investigating these symptoms, which are likely anxiety-related.
He is limited in his ability to use his left hand. He described it as stiff and unable to make a fist. He can’t carry things and doesn’t use the hand when attending to chores or self-care.
He stopped drinking alcohol one year ago.
3.Findings on clinical examination
Current symptoms:
Mr Poorbabaiyan said there had been no improvement in his mental state since the accident. He believes that he would have deteriorated except for the support of his psychologist, which helps maintain the status quo.
He has prominent anxiety, has lost confidence and hope for the future. His mood is low without diurnal variation. He said that he was “fearful, everything has changed.… I am worried all the time, especially when I go out; I don’t want people to see my hand.” He is embarrassed about his circumstances and doesn’t want to be asked about them.
He is bothered by intrusive thoughts about the accident and tends to ruminate about alternative but serious outcomes.
He has subjective problems with concentration and memory.
When asked about self-harm or suicide, Mr Poorbabaiyan said, “I don’t have the courage, I wish I could go to sleep and not wake up.”
He has impaired sleep with initial and middle insomnia.
His appetite has decreased, and he has lost approximately 9 kg. He estimated his weight at 54 kg, down from 63 kg at the time of his accident. At 178 cm, his BMI is 17.0, in the underweight range.
Activities of daily living:
Before his injury, Mr Poorbabaiyan had lived with his girlfriend, and they planned to get married. She left the relationship a few months after his injury, frustrated with Mr Poorbabaiyan’s mental state, increasing arguments and his physical limitations.
Mr Poorbabaiyan spends most of his time at home, taking some pleasure in sitting in the garden with his three cats.
He does minimal housework but can vacuum. He does laundry about once a month. He doesn’t cook or prepare meals. He gets by on biscuits and orders a meal through Uber Eats every other day.
He showers twice weekly.
Before becoming unwell, Mr Poorbabaiyan was active with a small group of friends and his fiancée. They visited each other for meals and went to the seaside most weeks. It has been several months since he has had contact with his friends, and he no longer goes out socially.
He leaves the house to see his GP every two months and goes to local shops to pick up essential items. He will drive himself, but never leaves the local area. He does not use public transport. He is anxious away from home. When he goes to the supermarket, for example, to buy cat food, he often picks up a takeaway coffee and drinks it on the way home. He has not left his local area in the last 12 months.
He contacts his mother in Iran weekly by video. His father is deceased, and he has one older brother with whom he has little contact. He has recently found it more challenging to contact his mother because of the recent war. He has had no other intimate relationship since his fiancée left.
He may follow some news about Iran on television. He occasionally watches movies but often loses focus and has to rewind segments. He doesn’t read books but may do some reading on the Internet. He has no projects or hobbies at home.
Mental state examination:
Mr Poorbabaiyan was interviewed with the assistance of a Farsi-speaking interpreter, Sonia Gewaris. The interpreter had technical difficulties and arrived five minutes late. Once she was online, we had an excellent connection between the three parties, and I was able to do a comprehensive assessment, lasting 65 minutes.
Mr Poorbabaiyan presented as a thin man, casually attired in a grey sweatshirt. He had unkempt hair and a beard.
He was cooperative during the interview and answered my questions spontaneously and openly. He described himself as anxious and depressed. His affect was restricted, consistent with a depressed mood.
There were no apparent cognitive or memory challenges during the interview.
Diagnoses:
My diagnosis concurs with that of IME Dr Hong and MA Dr Walsh. Mr Poorbabaiyan fulfils the DSM-5 criteria for PTSD.
He had an industrial accident, sustaining a severe injury to his left hand.
He has continuing intrusion symptoms with distressing memories of the traumatic event and possible flashbacks. He has intense psychological distress when confronted with reminders of his injury.
He avoids people because he doesn’t want to be asked about his injury, even though the injury would not be readily apparent to a casual observer. He has negative alterations in cognition and mood, with concern about his future, embarrassment, and shame about his injury and circumstances. He has detached himself emotionally from others and has a reduced capacity to experience positive emotions. He has problems with concentration and significant sleep disturbance.
His symptoms are stable and entrenched. The symptoms and his impairment will not change significantly in the next 12 months, with or without further medical treatment.
He has not had a significant or complete elimination of his impairment with treatment. He says that he has not improved overall at all. There is no indication for an adjustment for treatment effect, and the MA gave none.
Whole person impairment:
The employer appealed four categories in the PIRS table: self-care and personal hygiene, social and recreational activities, travel, and employability. The appeal panel found no error in the first two categories: self-care and personal hygiene, and social and recreational activities.
Travel – Mr Poorbabaiyan is anxious about travelling away from home. However, he is independent with local travel, driving himself to the supermarket and to his general practitioner. He does not use public transport and has not travelled out of his local area in the last 12 months. His anxiety limits him. This supports a mild impairment (Class 2) as was determined by the MA.
Employability – Mr Poorbabaiyan has moderately severe symptoms of PTSD that have led him to isolate himself and cause him to be anxious away from home. He has lost confidence and hope for the future. He has subjective problems with concentration and struggles to motivate himself and persist at tasks. He has not worked in any capacity for more than 2 years since his injury. For these reasons, I consider him to be unfit to work. (Class 5). This supports the assessment of the MA.
The class ratings are unchanged across all six categories. Sequentially, they are 2, 2, 3, 3, 3 and 5. The aggregate is 18, with a median of 3, resulting in a 22% whole-person impairment.
4.Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations have been done.”
The Appeal Panel is of the view that Medical Assessor Andrews’ examination of the respondent was thorough, and the Appeal Panel adopts the history he detailed in his report to the Appeal Panel and his findings from his examination of the respondent.[2] The Appeal Panel also considers Medical Assessor Andrew’s diagnosis of post-traumatic stress disorder is correct for the reasons Medical Assessor Andrews provided.
[2] Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [88].
The Appeal Panel agrees with Medical Assessor Andrews’ rating of the respondent’s impairment in travel. As Medical Assessor Andrews noted the respondent does not use public transport and has not travelled out of his local area for the last 12 months due to his anxiety. That is a consequence of his psychiatric illness. That accords with a severity of impairment described by the examples for a Class 2 impairment in Table 11.3. The situation is that the respondent has a deficit in his ability to travel that is greater than minor and that cannot be attributable to the normal variation of the general population.
The Appeal Panel also agrees with Medical Assessor Andrews’ rating of the respondent’s impairment in employability. He has no capacity to work and that is a consequence of the symptoms he has from his psychiatric illness. That clearly accords with the descriptor provided for a Class 5 impairment.
The Appeal Panel notes that neither party challenged the Medical Assessor’s rating of the respondent’s impairment in social functioning and in concentration, persistence and pace. As that was not an aspect of the medical assessment that was challenged the Appeal Panel must accept the Medical Assessor’s ratings of the respondent’s impairment in those PIRS categories.[3] As noted earlier the Appeal Panel cannot find any error in the Medical Assessor’s ratings of the respondent’s impairment in self-care and personal hygiene and in social and recreational activities, and indeed the Appeal Panel agrees with the Medical Assessor’s ratings. Consequently, and as Medical Assessor Andrews noted in his report to the Appeal Panel, the aggregate of the respondent’s PIRS scores is 18 with a median of 3, which converts to 22% WPI.
[3] Queanbeyan Racing Club Ltd v Curtin [2021] NSWCA 304 at [26]-[35]; Secretary, Department of Communities & Justice v Taane & Ors [24] NSWSC 54 at [67].
Hence, even though the MAC contained a demonstrable error, upon re-assessment by the Appeal Panel there is no difference in the outcome.
For these reasons, the Appeal Panel has determined that the MAC issued on
24 February 2025 should be confirmed.
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