Kasim v State of New South Wales (Northern Sydney Local Health District)

DETERMINATION OF APPEAL PANEL
CITATION:	Kasim v State of New South Wales (Northern Sydney Local Health District) [2024] NSWPICMP 649
APPELLANT:	Mohamed Haroon Kasim
RESPONDENT:	State of New South Wales (Northern Sydney Local Health District)
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	12 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appeal against the assessments of self care and personal hygiene, concentration, persistence and pace, and employability under the psychiatric impairment rating scale (PIRS); assessments allegedly made on the basis of incorrect criteria and contained demonstrable error; Held – error found in the assessment of employability; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 May 2024 Mahomed Haroon Kasim (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 April 2024.
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):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        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, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

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.
The appellant sought a re-examination by a Medical Assessor who is also a member of the Appeal Panel. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although the Appeal Panel found error there was sufficient material before the Appeal Panel to enable it to make a determination.

EVIDENCE

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) report of Mr Damien Rayner, the appellant’s treating psychologist, dated
2 May 2024.
The appellant submits that the evidence is relevant. The appellant submits that the evidence was not available and could not reasonably have been obtained because it concerns the manner of the conduct of the assessment itself.
The respondent objects to the admission of the additional evidence.
The Appeal Panel determines that the evidence should not be received on the appeal because the appellant has had the opportunity to put evidence from Mr Rayner before the Medical Assessor and indeed there was a report from Mr Rayner before the Medical Assessor and to which he has had regard in making his assessment on the day of examination. The Medical Assessor is entitled to apply his own clinical expertise in the conduct of the assessment and there is a presumption of regularity in the conduct of the assessment.

Documentary 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.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

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

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. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor by the Commission as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
·    Date of injury: 8 March 2018
·    Body parts/systems referred: Psychological\Psychiatric disorder
·    Method of assessment: Whole person impairment”
The Medical Assessor issued a MAC as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psycho-logical	8 MARCH 2018	11 page 55-60	14	7	0	7
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					+1% treatment uplift =8%

The assessment of impairment was based on the Medical Assessor’s findings as per the psychiatric impairment rating scale (PIRS) as follows:

“Table 11.8: PIRS Rating Form

Name	Mohamed Haroon Kasim	Claim reference number (if known)	W8561/23
DOB	XXXXX X	Age at time of injury	47-year-old
Date of Injury	8 MARCH 2018	Occupation at time of injury	State of New South Wales (Northern Sydney Local Health District)
Date of Assessment	16/4/2024	Marital Status before injury	Married

Psychiatric diagnoses

1. Major depressive disorder

2.

3.

4.

Psychiatric treatment

Psychologist

Psychiatrist

Medications

No psychiatric admission

Is impairment permanent?

Yes

PIRS Category

Class

Reason for Decision

Self-care and personal hygiene

2

Dr Kasim's self-care has declined. He told me he has a stable weight and looks after himself at an adequate level. He skips meals and does not always shower daily. He does a small amount of household chores.

He is capable of independent living without regular support, and does not need prompting with self-care.

Social and recreational activities

3

He rarely attends recreational activities but he needs a support person, e.g. in EID.

Travel

2

Dr Kasim has anxiety and reported he can go to familiar places without difficulties, e.g. Sydney CBD. He went overseas twice on his own without difficulties.

This is almost 1.

Social functioning

2

Dr Kasim's relationship with his wife has declined.

He is anxious and socially avoidant, and rarely talks to his friends.

The relationship with his general family and daughter has deteriorated as well.

Concentration, persistence and pace

2

Dr Kasim struggled with documents and does not read books as he has no interest now.

He participated in various activities online, podcast and by writing, and his psychological injury has further improved further since then.

He could manage complex questions during the assessment.

His mental state examination is consistent with 1 or 2.

Employability

3

Dr Kasim has not worked for a few years and would need a graduated return to work plan.

Dr Kasim's perception is he could return to work in his pre-injury duties with the same employer, however, it seems unlikely to me that this would be a durable option.

His work capacity is untested, but he demonstrated a capacity for logically developing a narrative in a persuasive manner, which is an important part of being capable of working.

My view is, he could manage 20 hours per week in a low-stress role with a different employer.

Score

Median Class

2

3

=2

Aggregate Score Impairment

Total

%

+

14

7

Pre-existing injury

0

Treatment effects

There has been mild substantial elimination of impairment with treatment and he said he improved in the past few years, possibly even in the past 12 months.

1

Final WPI

8

The worker appealed.
There was no deduction made by the Medical Assessor under s 323 to take into account any pre-existing injury, condition or abnormality. This aspect was not the subject of any complaint on appeal.
There was a 1% whole person impairment (WPI) allowance for treatment effect and this aspect was not the subject of complaint on appeal.
The appeal concerns the assessments made under three of the PIRS categories being self care and personal hygiene, concentration, persistence and pace and employability.
In summary, the appellant submitted on appeal that the Medical Assessor made a demonstrable error and/or assessment on the basis of incorrect criteria for reasons which include the following:
(a)    by assigning a Class 2 for self care and personal hygiene when a Class 3 should have been assessed;
(b)    by assigning a Class 2 for concentration, persistence and pace when a Class 3 should have been assessed, and
(c)    by assigning a Class 3 for employability when a Class 5 should have been assessed.
In summary the respondent employer State of New South Wales (Northern Sydney Local Health District) (the respondent) submitted on appeal that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The Medical Assessor took a history as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Dr Kasim had worked at the Northern Sydney Local Health District as a hospitalist in the Medical Assessment Unit between January 2011 and March 2018.
Dr Kasim was born in India and came to Australia in 2002. After school, he trained in medicine and received an MRCP medical degree and then came to Australia. He undertook the senior hospital training program and chaired various committees and was a conjoint lecturer at the University of Newcastle. He started working at NSLHD and reported his role with the LHD involved two primary roles, firstly, coordinating admissions for complex cases and secondly because the patients often have multiorgan disease, he would coordinate care from the different disciplines and talk to different medical specialists. Dr Kasim's role was to improve patient safety and patient care and he said he was being trained to become a unit director and to undertake clinical governance; however, he said he was not allowed to progress his career and his contribution was not recognised and that he was being bullied for five years and subjected to psychological abuse.
Dr Kasim referred to his statement and gave me a history that there were three main people involved in bullying; the director of the medical services and his own director, and later the general manager as well. He said over time there were many false accusations made against him and HR became involved, and this meant that he was not achieving his career progression. Dr Kasim said he should be able to function independently, but this was not recognised. He was given work overload, for example, being assigned two things in one day, which made him very exhausted because they managed very complex matters.
When Dr Kasim raised concerns with management, he said that he realised there were only two ways that the hospital management would address it. Firstly, investigate the issue properly or secondly malign the person that raised concern, which was him. He gave several examples in 2013, 2015 and 2017 whenever he raised concerns about how the unit operated, and should be improved to achieve better patient outcomes. He said that they retaliated with bullying behaviour. Dr Kasim reported he had good references and the 360 feedback was all good, so they started targeting his patient care and made claims that he didn’t see patients.
In 2015, they transferred to a bigger unit with increased workload. A patient had died, and he wrote a letter at the time to tell management about his psychological struggles and also about concerns that patient care was being compromised; however, he said that they then made a Junior medical officer lodge a false complaint against him that he didn’t go and see a patient, even though the record showed that he saw the patient. When he checked he said the JMO didn’t even work that day and never could have known if he saw the patient or not. He recalled the Health service union became involved and that the complaint against him was not substantiated. The policies that they should have investigated why a vexatious complaint was made against him, but HR didn't do this.
He reported after that incident, they became more and more brazen because they knew that when they made false accusations, there will be no adverse consequences to them. They never offered him any apology. Similar behaviour repeated several times. He was also subjected to verbal abuse and he reached a point he couldn’t cope any more and stopped working.
Dr Kasim remembered after being abused at work, he was shaking; he started putting weight on and lost interest in doing things. He said that initially he did not have the insight to know what was happening. It was only after he saw the psychologist that he realised that he had suffered depression.
· Present treatment:
Dr Kasim has been consulting Damien Rayner, psychologist since 2018 and recently every 2 to 4 weeks. He consulted Dr Michael Diamond, psychiatrist briefly in 2020, who advised him antidepressant was not indicated. He took Mirtazapine briefly and it was ineffective. He has not had psychiatric admissions.
· Present symptoms:
Dr Kasim reported he still suffered depression, anxiety and agitation. With treatment, he stated he feels better able to navigate his symptoms and no longer has suicidal thoughts. He said it takes him a long time to do anything, for example, he wrote a document to the College of Physicians, which is five to six pages, but it took him one or two months to do it, to get it done right and make revisions.
He has concentration and memory problems. He said he is easily frustrated without anger problems.
He has sleep problems. He said he was 87kg in 2018, 94kg in 2022 and maintained a similar weight since, and is 94kg currently.

· Details of any previous or subsequent accidents, injuries or condition:

Dr Kasim does not have a past psychiatric history.
There is no subsequent psychological injury identified.
In terms of developmental history, he grew up with his parents, being the eldest of three siblings. His father passed away in 2008, he stated from medical mismanagement. His two brothers are in India. He does not have a family history of psychiatric illness.
There is no forensic history.
He does not have recreational drug or alcohol problems.
Dr Kasim has been in the current relationship since 2000 and has an adult daughter. He said his communication with his wife has declined and they are seeing a marital counsellor.
· General health:
No relevant medical conditions.
· Work history including previous work history if relevant:
As noted previously.

· Social activities/ADL:

Dr Kasim is living with his wife, who is a homemaker.
He reported getting overwhelmed once he gets up in the morning and goes through the same cycle every day. He said that he is hoping someone will call him, and say come back to work, and they will address the concern he raised. During the day, he will lie down on the sofa. He would try to write something, but then feels tired. Dr Kasim watches movies or TV and then goes to sleep at night-time.
Dr Kasim believes he can return to work now, but there has been no acknowledgement of the problems that happened. He believes he can return to his normal duties once there has been acknowledgement and that they must take ownership of the bad things they had done to him. He stated they breached policy and that there has been no justice done yet.
Dr Kasim reported that he decided to change from a full practicing registration to a non-practicing registration in 2021, which meant that he could no longer be on any kind of board, committee or other appointments. Dr Kasim discussed the Desktop surveillance and the events that were recorded. He said that he is a human rights advocate and in 2020, Amnesty International wanted the COVID vaccination patent to be waived to allow everybody to receive equal medical care, so they contacted him. He said that all he did was take a photo with the minister and told people what he felt about the issue, that the tariffs on the vaccination should be removed. Dr Kasim went to the city for the event and said that the whole Sydney CBD is very familiar to him so he could go without any problem.
Regarding the podcast, Dr Kasim said that he has an interest and was the chair of Internet of things Alliance Australia and he gave a talk about artificial intelligence on health care, which was a very short talk. He said just because he suffered an injury, it does not negate the prior knowledge he had.
He also discussed other surveillance material, about human rights in India and persecution of the Muslims. He said that for the 2022 online forum, all he did was talk up about things that he knew already and he didn’t “hug anybody, there was no social relation with people involved” and it was not a social and recreational activity.

He said previously he like to read books, play music, go hiking and exercise but he is not interested and doesn’t do these activities now.
Dr Kasim's wife tried to get him to take a walk with her. He did it for a few weeks and then stopped. He does a minimal amount of housework such as washing up, making the bed and his wife does most of it. Sometimes he does a bit of shopping. He has not done gardening for a long time. Dr Kasim says he showers most days but sometimes he will go one or two days without showering, but he is never smelly.
He says he does go to some family activities and religious events such as the EID, but he gets overwhelmed. He doesn’t really talk to people.
Since his injury, Dr Kasim has been overseas twice only. He said normally he would go overseas once a year. In 2019, he had a problem with a property in India and at the time he had no income protection and was in financial difficulty, so after talking to his treating team, he went back there for about one and a half months to sort out the properties and change the titles. He went by himself. In 2023 his mother passed away and he went back by himself for a week to India.
He said he is hardly in contact with any friends now because his friends have got on with their career and he is stuck in this life and doesn't know what to talk to them about.”

The Medical Assessor recorded his findings on mental state examination as follows:
“Dr Kasim was assessed by video. He was at home during the assessment. I assessed him from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the assessment. The assessment took 60 minutes.
Dr Kasim was bespectacled and neatly attired. He wore a collared shirt and had short hair. He gestured regularly and was talkative, and gave a clear history. He engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. He was not restricted in his affect range and reactivity. He smiled and laughed intermittently. He spoke spontaneously and fluently. He maintained a steady pace.
Before I completed the assessment, I asked him for additional information that he wanted to add and he discussed there has been no acknowledgement of wrongdoing and no justice. He asked about recording the assessment at the end of the assessment, and I discussed the PIC guidelines. He asked about when my report would be released and I discussed this is best addressed with PIC staff.”
The Medical Assessor made the following diagnosis:

“summary of injuries and diagnoses:

Mr Kasim had no prior psychiatric problems and described after years of mismanagement, excessive workload, false accusations and bullying and harassment, he sustained a psychiatric injury consistent with Major depressive disorder.
He had treatment and gained some improvements, however, his overall functioning has not changed for several years now. He had suicidal thoughts initially and this has since subsided.
I noted evidence from the IMEs and his treating psychologist and his statements. In terms of self-care and personal hygiene, Dr Allan rated 3 but the overall evidence from Dr Kasim is more consistent with a 2. Dr Bisht rated 2. Dr Allan noted Dr Kasim's reported self-care was relatively preserved but at times required encouragement, which is different to requiring prompting or having regular support.
In terms of concentration, persistence and pace, Dr Bisht rated 2 and Dr Allan rated 3 and said Dr Kasim is perseverative and lacks focus on other tasks. He does not attend to any complex activities, which is at odds with the online activity and certainly on assessment today, he did not present as having difficulty with complex questions or speed of recall, and therefore, I rate a 2.
In terms of employability, Dr Allan rated 5, however, he did not consider Dr Kasim's perspective or the online material. Dr Kasim himself thought that he could return to work in the same duty once there has been acknowledgement; however, taking into account the lack of engagement in the workplace for several years now, it is unlikely he could immediately return to work full-time, but nevertheless, my view is that a graded return-to-work program with assistance from a supportive employer, he is capable of working up to 20 hours per week and therefore, I rated 3.

· consistency of presentation

I have found no inconsistency in Dr Kasim's presentation.”

The Medical Assessor made brief comment about the other evidence before him as follows:
“I received 1296 pages of focus.
Dr Kasim's statement noted he was subject to bullying, harassment, victimisation and false accusations to discredit his professional competency. This was excessive workload, unfair treatment and there is a toxic workplace culture that led to his injury. He provided many statements discussing the prolonged exposure to psychosocial hazards, his performance, the way he was managed, his concerns not addressed and a lack of procedural fairness. Dr Kasim said his psychiatric injury made it a challenge for him to complete daily tasks and basic ADLs such as getting in and out of bed, chores such as gardening, washing clothes, vacuuming, mopping and relying on his wife. He said his reaction with his friends became very limited. Dr Kasim has decreased desire to interact with other people. He withdraws from conversation. He feels like a burden, whereas previously he had many hobbies, he enjoyed travelling to his home country, hiking, music, reading books, poetry and exercising. He feels hopeless.
Dr Martin Allan, IME psychiatrist report dated 25 August 2020 diagnosed major depressive disorder due to his work and provided a WPI, which came to 22%.
Dr Bala, GP, 16 May 2022 noted the workplace problem causing psychiatric injury with a chronic adjustment disorder and additional major depressive disorder. He remains at risk of harassment and bullying within the workplace. In the last four years evident he continues to pursue his passion of promoting safety and equality of patient care and continues to hold a conjoint position at University Newcastle and contributed to a higher level of policy documents at the Royal Australian College of Physicians and received commendation for the same from the president elect and therefore, he believes Dr Kasim has a good chance to be able to function well in the workplace once his employer can provide assurance of a safe return to work.
Mr Rayner provided several psychologist reports. 23 April 2022 noted bullying and harassment causing psychiatric injury. Treatment started in 2018 and was ongoing. His social life suffered greatly, much less able to engage with friends and family and missed his daughter’s secondary school years. There were no prior pre-existing problems.
Comment:
I noted Mr Rayner discussed the reports from Dr Bisht and Dr Allan in reference to concentration, self-care and employability, and the diagnosis of PTSD and said that his psychiatric injury will continue indefinitely unless he is afforded appropriate acknowledgement of the issues.
In terms of concentration, his perspective is that it is well-known concentration is a necessary requirement to access memory and compared to previous excellence, his function is extremely low by comparison.
I also noted Dr Kasim described a capacity to engage in intellectually demanding tasks.
In terms of self-care, he said that Dr Kasim needs some encouragement from the family to attend to a self-care routine.
In terms of employability, he stated a professional re-entering the workforce after injury will not start five days a week as suggested by Dr Bisht.
GP record has been noted.
Income protection document had been noted.
Certificates of capacity noted workplace injury with no pre-existing factor, being certified unfit for work.
Dr Yajuvendra Bisht IME psychiatrist provided a report dated 30 August 2021 diagnosed major depressive disorder and PTSD and provided a WPI that came to 7%. He discussed Dr Allan’s assessment of concentration but noted that he can communicate via email with the stakeholder as well, communicate with the college and advisory groups, write a document relating to a claim, do his financial management independently and therefore, felt that 2 was more appropriate. In terms of self-care, Dr Yajuvendra Bisht said that his wife was doing most of the housework even before the current condition and that he also took a history from him that he can take care of himself and therefore, he does not agree with Dr Allan’s assessment.
Desktop intelligence report 31 January 2024 - Online activity had been noted and discussed with him. We discussed contribution to the news portal interview with a Sydney criminal lawyer in February 2022, participating in the anti-Hindu India online event and the podcast online and the podcast about AI on healthcare.”
The appellant submitted that Dr Allan, the IME qualified to provide an opinion on his behalf assessed 22% WPI as per reports dated 25 August 2020 and 29 April 2022. Dr Bisht, the IME qualified to provide an opinion on behalf of the respondent in a report dated
2 August 2021 certifies a 7% WPI. The appellant submitted:
“Since the time of the above mentioned independent medical examinations, the claimant’s injuries and disabilities have remained ongoing and this is reflected his medical and clinical records. The claimant continues to suffer injuries, psychological symptoms and restrictions despite his diligent participation in treatment since the date of injury over 6 years ago.
Noting above, it is respectfully submitted that it is inconceivable that there has been such a dramatic improvement in the injured worker’s psychological condition and degree of impairment, that a MAC is issued for 8% WPI for his psychological injuries.”
The above submission is misconceived. It points to the two differing IME opinions (Dr Allan at 22% WPI and Dr Bisht at 7%). It also identifies that the IME assessments date back between three to four years prior to the medical assessment (2020 to 2022). Then seemingly it expresses incredulity at the overall outcome of the medical assessment stating that it is “inconceivable” that the Medical Assessor could have assessed 8% WPI in 2024 when the appellant’s condition has not improved. The IME report from 2020 rated a significantly higher WPI, whilst the more recent IME rated a very similar WPI to that rated by the Medical Assessor. Regardless the role of the Medical Assessor is to conduct his own independent assessment on the day of examination in accordance with the criteria in the PIRS Table for each of six heads of assessment of impairment. The submission that the overall assessment of 8% WPI must be in error because it is “inconceivable” that the appellant’s condition could have so dramatically improved since an assessment by an IME of impairment that is nearly four years old cannot be sustained on any view. The Medical Assessor must conduct an independent assessment on the day of examination and apply his own clinical expertise. Error is not found by comparing the overall assessment of impairment by the Medical Assessor with the overall total found by the IME qualified on behalf of the appellant. Error can only be found in this appeal by finding a demonstrable error or the application of incorrect criteria in the assessment of impairment in each of the PIRS categories noting the s 323 deduction and allowance for treatment effects are not the subject of complaint on appeal. To this end, the appellant goes onto submit that the Medical Assessor did indeed err or make an assessment of the basis of incorrect criteria in three of the PIRS categories namely self care and personal hygiene, concentration persistence and pace and employability and the Appeal Panel will deal with each of these in turn.
In respect of self care and personal hygiene, Table 11.1 of the Guides provides as follows:
Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene

Class 1

No deficit, or minor deficit attributable to the normal variation in the general population

Class 2

Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.

Class 3

Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.

Class 4

Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.

Class 5

Totally impaired: Needs assistance with basic functions, such as feeding and toileting.

The Medical Assessor rated a mild impairment at Class 2 with the following reasoning:
“Dr Kasim's self-care has declined. He told me he has a stable weight and looks after himself at an adequate level. He skips meals and does not always shower daily. He does a small amount of household chores.”
The appellant is capable of independent living without regular support to an adequate standard. Although meals are skipped, his weight has remained stable reinforcing that he is caring for himself to an adequate level. This fits within the criteria for a mild impairment.
The Medical Assessor had regard to the opinions of the other experts, Dr Allan who was qualified to provide an opinion on behalf of the appellant had assigned a Class 3 for self care and personal hygiene and Dr Bisht who was qualified to provide an opinion on behalf of the respondent had assessed Class 2. The Medical Assessor noted:
“Dr Yajuvendra Bisht IME psychiatrist provided a report dated 30 August 2021 diagnosed major depressive disorder and PTSD and provided a WPI that came to 7%. He discussed Dr Allan’s assessment of concentration but noted that he can communicate via email with the stakeholder as well, communicate with the college and advisory groups, write a document relating to a claim, do his financial management independently and therefore, felt that 2 was more appropriate. In terms of self-care,
Dr Yajuvendra Bisht said that his wife was doing most of the housework even before the current condition and that he also took a history from him that he can take care of himself and therefore, he does not agree with Dr Allan’s assessment.”
The MAC must be read as a whole. Earlier in the MAC the Medical Assessor had also explained:
“I noted evidence from the IMEs and his treating psychologist and his statements. In terms of self-care and personal hygiene, Dr Allan rated 3 but the overall evidence from Dr Kasim is more consistent with a 2. Dr Bisht rated 2. Dr Allan noted Dr Kasim's reported self-care was relatively preserved but at times required encouragement, which is different to requiring prompting or having regular support.”
The Medical Assessor has to make an independent assessment. The appellant is clearly on the history given on the day of assessment able to look after himself and live independently to a standard which supports the conclusion that he is mild impaired in this regard. The panel can discern no error in the Class 2 rating.
In respect of concentration, persistence and pace, Table 11.5 of the Guides provides as follows:

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.
Class 2	Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3	Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
Class 4	Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.
Class 5	Totally impaired: needs constant supervision and assistance within institutional setting.

The Medical Assessor rated a class 2 with the following reasoning:
“Dr Kasim struggled with documents and does not read books as he has no interest now.
He participated in various activities online, podcast and by writing, and his psychological injury has further improved further since then.
He could manage complex questions during the assessment.
His mental state examination is consistent with 1 or 2.”
The MAC must be read as a whole. As set out above a detailed history has been taken. It is evident from the above history that the Medical Assessor has taken from the worker a careful and detailed history relating to the online activities, podcast and written. He records:
“Desktop intelligence report 31 January 2024 - Online activity had been noted and discussed with him. We discussed contribution to the news portal interview with a Sydney criminal lawyer in February 2022, participating in the anti-Hindu India online event and the podcast online and the podcast about AI on healthcare.”
Careful regard has also been had to the other evidence. The Medical Assessor has not relied on self report alone.
The Medical Assessor has recorded his findings on mental examination as set out above.
He had regard to the IME opinion of Dr Allan and Dr Bisht. He explained:
“In terms of concentration, persistence and pace, Dr Bisht rated 2 and Dr Allan rated 3 and said Dr Kasim is perseverative and lacks focus on other tasks. He does not attend to any complex activities, which is at odds with the online activity and certainly on assessment today, he did not present as having difficulty with complex questions or speed of recall, and therefore, I rate a 2.”
The Medical Assessor was required to make an independent assessment.
The Medical Assessor is entitled to rely on his findings on the day of examination to which he applies his clinical judgment having due regard to the other evidence and opinion before him. The Medical Assessor identified the discrepancy between the appellant’s self-report of his function in this domain and both the Medical Assessor’s objective assessment and the cognitive activities identified in the desktop report (which he discussed with the appellant). This has very clearly been done here with an adequate path of reasoning demonstrated by the Medical Assessor.
Assessment cannot be based on self-report alone. The Medical Assessor has to make an independent assessment on the day of examination using his clinical expertise. The Medical Assessor has done that here and has based his assessment on the correct criteria and the Appeal Panel can discern no error in the assessment of Class 2 which is the best fit.
In respect of Employability, Table 11.6 of the Guides provides as follows:

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training. The person is able to cope with the normal demands of the job.
Class 2	Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3	Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
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 Medical Assessor rated Class 3 with the following explanation:
“Dr Kasim has not worked for a few years and would need a graduated return to work plan.
Dr Kasim's perception is he could return to work in his pre-injury duties with the same employer, however, it seems unlikely to me that this would be a durable option.
His work capacity is untested, but he demonstrated a capacity for logically developing a narrative in a persuasive manner, which is an important part of being capable of working.
My view is, he could manage 20 hours per week in a low-stress role with a different employer.”
The Medical Assessor noted that Dr Allan had assigned a Class 5 but noted in this regard as follows:
“In terms of employability, Dr Allan rated 5, however, he did not consider Dr Kasim's perspective or the online material. Dr Kasim himself thought that he could return to work in the same duty once there has been acknowledgement; however, taking into account the lack of engagement in the workplace for several years now, it is unlikely he could immediately return to work full-time, but nevertheless, my view is that a graded return-to-work program with assistance from a supportive employer, he is capable of working up to 20 hours per week and therefore, I rated 3.”
Whilst the Appeal Panel considers that the Medical Assessor was correct in pointing out why a Class 5 was not appropriate, the Appeal panel considers that the Medical Assessor erred in assigning a Class 3 or moderate impairment.
The appellant submitted that a Class 5 should have been assigned which represents a total impairment, that he cannot work at all.
It is clear from the history taken by the Medical Assessor and the other evidence before him, that the appellant has been able to undertake work like tasks including convening committee meetings for a State political party, hosting podcasts, establish a political justice advocacy and undertaking written work of some complexity up to late 2023 which represents an ability to engage remunerable vocational activity. The Appeal Panel notes the length of time that the appellant has been absent from paid employment that requires regular attendance. The Appeal Panel considers that the evidence shows the appellant capable of undertaking employment for several hours, one or two days per week, but that the symptoms recorded by the Medical Assessor indicate variable and erratic function over the week. This is consistent with a severe impairment or Class 4 for employability rather than a class 3 or moderate impairment.
This means the aggregate becomes 15 and the median remains at 2 which gives 8% WPI as follows:

Score								Median Class
2	2	2	2	3	4		=2
Aggregate Score Impairment						Total			%
+	+	+	+	+	15			8

The Medical Assessor made no deduction under s 323 which was not the subject of complaint on appeal. The Medical Assessor allowed 1% WPI for treatment effect which was not the subject of appeal, which means the overall WPI is 9% as a result of injury on
8 March 2018.
This means that the MAC will be revoked and a new MAC issued.
For these reasons, the Appeal Panel has determined that the MAC issued on
22 April 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W8561/23
Applicant:	Mohamed Haroon Kasim
Respondent:	State of New South Wales (Northern Sydney Local Health District)

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Michael Hong and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psycho-logical	8 MARCH 2018	11 page 55-60	14	8	0	8
2.
Total % WPI (the Combined Table values of all sub-totals)					+1% treatment uplift =9%

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

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Citations

Kasim v State of New South Wales (Northern Sydney Local Health District) [2024] NSWPICMP 649

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Cases Cited

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Statutory Material Cited

4

Campbelltown City Council v Vegan [2006] NSWCA 284

[2024] NSWPICMP 649

12 September 2024