Khano v Akropolis Food Services Pty Ltd
[2024] NSWPICMP 706
•9 October 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Khano v Akropolis Food Services Pty Ltd [2024] NSWPICMP 706 |
| APPELLANT: | Ashour Khano |
| RESPONDENT: | Akropolis Food Services Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Deborah Moore |
| MEDICAL ASSESSOR: | Graham Blom |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 9 October 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Appellant submits that the Medical Assessor (MA) erred in failing to have regard to all of the evidence and provide adequate reasons, in particular, failure to follow the determination of the Personal Injury Commission’s (Commission) Member as to causation, failure to have regard to the Member’s determination, and failure to provide any or any adequate reasons; Medical Appeal Panel (Panel) agreed that the MA’s reasons were inadequate but as there was no challenge to the impairment assessment this failure in our view does not render the Medical Assessment Certificate (MAC) null and void; without an identified error in the psychiatric impairment rating scale (PIRS), the Panel cannot disturb the ratings and has no power to reassess the appellant in relation to the PIRS; Held – MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 26 July 2024 the appellant, Ashour Khano 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 28 June 2024.
The appellant relies on the following ground 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 (section 327(3)(c)), 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 14 February 2024 Member Wynyard issued a Certificate of Determination wherein he determined that the appellant sustained an injury to his lumbar spine and that “the onset of Mr Khano’s post-traumatic stress disorder was a primary psychological injury pursuant to s 65A of the 1987 Act”.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, the Panel is satisfied that we have sufficient evidence before us to enable us to determine this appeal for reasons we shall set out shortly.
EVIDENCE
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in failing to have regard to all of the evidence and provide adequate reasons, in particular:
(a) failure to follow the determination of the Personal Injury Commission’s (Commission) Member as to causation;
(b) failure to have regard to the Commission Member’s determination, and
(c) failure to provide any or any adequate reasons.
In reply, the respondent submits that the factual determination of Member Wynyard as to causation would have no bearing on the degree of impairment such that there is no demonstrable error.
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 appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological injury on a date of injury of
5 December 2019.The Medical Assessor obtained the following history:
“Summary of the documentation provided:
On 05 December 2019, the Claimant was receiving delivery work. He was standing on the tines of a forklift raised about 3-4 metres above ground level. As he reached for one of the boxes in the storage area, he lost his balance and fell to the floor, landing on his feet. He also jarred his back and shoulders. He suffered bilateral calcaneal fractures. An ambulance was called, and he was taken to Fairfield Hospital and then transferred to Liverpool Hospital. He was admitted under the care of Dr Jay Dave with back pain and bilateral shoulder girdle pain as well as foot and ankle pain. The x-rays of the feet confirmed bilateral calcaneal fractures which required open reduction and internal fixation on 02/12/2019.
The claimant’s report of injury of 5 December 2019
The Claimant said he was working in delivery for bakeries and pizza businesses. He said he was standing on a forklift, trying to reach for something above his head. He lost balance and thought he would jump off the forklift to prevent himself from falling and hitting his head. He recalled how he landed on his legs and fractured both heals. He was taken to Fairfield Hospital and the Liverpool Hospital. He said he was in a wheelchair for 4 months and then 2 months in crutches.
He stated that his mood and sleep before the injury were good. He said the first time problems with his mood and sleep occurred was around 6 months after the accident and have continued since. He never had suicidal thoughts but thought about the purpose of being alive 6 months after the injury.
He said his concentration and memory were good before the injury. He said he could read a whole newspaper in half an hour and enjoyed reading novels. Problems with his concentration began around 6 months after the injury.
Before the injury, he used to help with chores and shopping if he was not working. He stated that before the injury, he used to enjoy reading novels and books and playing soccer once a month. He said that at the weekends he used to go to his wife’s family on Sundays and do activities with his family. He used to see his friends every day after work.
He stated that before the injury, he could travel anywhere without any problem.
He said he enjoyed working and never had any issues with employment before the injury. He said his life had always been about work and not being able to work negatively affects his mood.”
Current symptoms were noted as follows:
“Mood Symptoms:
He described his mood as low over the past few weeks but has remained persistently low since the 6 months after the injury. Appetite - He reported a poor appetite, and he mainly only eats lunch. Sleep He described his sleep as poor. It takes him half an hour to get to sleep. He sleeps only 3 or 4 hours at night and wakes around 8 times during the night. He said he feels anxious and has nightmares about the accident or dreams of falling from a height. He said he has those nightmares 4 or 5 times a week. Fatigue He stated that he has to rest for half an hour some days. Concentration He said his concentration was currently poor. He said he could not concentrate on the television, and he did not read. He lacks the motivation and focus to read. Suicidal He said he never experienced suicidal thoughts or plans to harm himself. However, he asks why he needs to be alive.
Anxiety Symptoms
Frequency He said anxiety episodes occur 4 times a day. Duration He said anxiety symptoms can last up to an hour. Triggers He could not identify any triggers for anxiety episodes. Improved by To improve anxiety, the Claimant goes and smokes a cigarette in the garden. The Claimant reported that symptoms of anxiety include feeling nervous and something is wrong. He has increased heart rate, shaking, shortness of breath, and chest discomfort. He said the first time his anxiety symptoms occurred was 6 months after the injury. He used the crutches. when not getting much better when moving off the crutches.”
The Medical Assessor then set out details of the appellant’s treatment regime.
The Medical Assessor then turned to consider the impact of Mr Khano’s injuries on his social activities and activities of daily living (ADL’s) and said:
“Self-care and personal hygiene:
He said that before the injury, he was completely independent in bathing and there has not been any change since then. Before the injury, he used to help with chores and shopping if he was not working.
Bathing: He said he bathes every second day. He does not require prompting from his wife.
Cooking: The Claimant said he does not do any cooking but sometimes assists his wife. Household chores: He reported that he does not do any of the chores because of the pain, not because of his mental health. Shopping: He stated that he would get one or two items from the shops if needed.
Social and recreational activities:
He stated that before the injury, he used to enjoy reading novels and books. He used to play soccer once a month. He said at the weekends, he used to go to his wife’s family on Sundays and do activities with his family.
Hobbies: He said he has not read much since the accident due to his concentration issues.
Exercise: He stated that he has not played soccer since the accident. Frequency of socialising: He does not go with his wife to see her family as he did in the past. The last time he went out to a family event was 2 weeks ago. He goes out socially once a month. Involvement when out: He reported that he could engage in conversations with his family when out.
Travel:
He stated that before the injury, he could travel anywhere without any problem. The Claimant said he does not require a support person when he drives. He said he felt better without anyone in the car. He can drive an automatic car for up to 30 minutes, but usually only manages 15 minutes due to the pain. He said problems driving included difficulty focusing on the road.
Social functioning:
He stated that before the injury, he was able to go out going out often with family and friends. He used to see his friends every day after work. Relationship with his wife: He said his wife is supportive and helpful. He said he lacks patience which causes some strain in the relationship. There have not been periods of separation or domestic violence. Relationship with children: He said the relationship with his 11-year old son is ‘cold’ because he lacks the motivation to spend time with him. The Claimant said he wants to be alone and isolates himself. Relationship with siblings: The Claimant said he speaks to his siblings. His younger brother visits once a week. His older brother and sister visit once a month. He goes to see his siblings once a month. He has a sister in Sweden and another sister in Syria, but it has been some time since they spoke. Relationship with friends: He stated that he has not communicated with friends since the accident. He said they stopped asking about him and contacting him.
Concentration persistence and pace:
He said his concentration was currently poor. He said he could not concentrate on the television, and he did not read. He lacks the motivation and focus to read. He said his concentration and memory were good before the injury. He said he could read a whole newspaper in half an hour and enjoyed reading novels. Problems with his concentration began around 6 months after the injury.
Employability:
He said he enjoyed working and never had any issues with employment before the injury. He said his life had always been about work and not being able to work negatively affects his mood. Work: He said he has not worked since the injury. Volunteering: He stated that he does not do any voluntary work. He said the barrier to returning to work was the chronic pain in his legs and back. He thought he would be psychologically better if he worked.”
Findings on mental state examination were reported as follows:
“Behaviour: There was no psychomotor disturbance and he appeared relaxed in his chair. There was good eye contact with the videoconference camera.
Speech: Speech was spontaneous and was normal in volume, rate, rhythm, and prosody.
Mood: He described his mood as lower over the past few weeks but has remained persistently low since 6 months after the injury.
Affect: His affect was warm, reactive, and appropriate, with a normal range.
Thought form: The thought form was logical with no formal thought disorder noted. Thought content: The main themes were about the effects of the injury on his life and how working was positive for his mental health.
There were no delusions noted. He said he never experienced suicidal thoughts. However, he asks why he needs to be alive, but he does not have a plan to harm himself. Perceptions: There was no perceptual abnormality described and he did not appear to be responding to any abnormality on observation. Cognition: Formal testing of cognition was not performed. He attended alone but his cousin assisted him in setting up the internet connection for the assessment. His cousin did not stay for the assessment. He attended at the correct time. A reasonable history was obtained with the help of the interpreter. He was able to manage the assessment which lasted 1 hour and 15 minutes.”
The Medical Assessor diagnosed:
“Major Depressive Disorder, single episode, moderate severity. I did not diagnose PTSD as the nature of the injury does not satisfy Criterion A.”
The Medical Assessor assessed 19% WPI.
He then turned to consider the other medical opinions and material before him.
We do not intend to set out in detail all that material since it covers both the physical and psychological injuries, and is not relevant to the issues in dispute.
More importantly, we note that the appellant does not challenge any of the psychiatric impairment rating scale (PIRS) assessments, only the diagnosis.
Discussion
In the DSM 5 criterion, Criteria A is described as: “A traumatic event that involved: actual or threatened death, serious injury, OR. threat to physical integrity.”
The Medical Assessor concluded that “I did not diagnose PTSD as the nature of the injury does not satisfy Criterion A.”
The Certificate of Determination issued by Member Wynyard on 14 February 2024 noted: “The Applicant suffered a post-traumatic stress disorder in the incident. This was a primary psychological injury.”
The appellant is correct in stating that post-traumatic stress disorder had specifically been decided, and was binding on the Medical Assessor.
In our view, the Medical Assessor was wrong in stating that a diagnosis of post-traumatic stress disorder did not satisfy Criteria A.
Having said that, as the respondent correctly points out, “the Commission is not bound by DSM criterion, but they remain a useful clinical tool for an assessor.”
In this case, reading the MAC as a whole, it seems to us that the Medical Assessor has concluded that Mr Khano’s principal current diagnosis is MDD.
Clause 1.6 of the Guidelines notes that the task of a Medical Assessor is to assess a claimant as they present on the day of the assessment. (our emphasis).
A different diagnosis would not result in any change to the impairment.
As we said earlier, there is no dispute by the appellant as to the Medical Assessor’s characterisation of impairments pursuant to the PIRS.
As the respondent also points out, “the appellant appears to be cavilling with the clinical judgment of the assessor: Chalkias v State of New South Wales [2018] NSWSC 1561 rather than showing demonstrable error.”
Regardless of the differential diagnosis, the injury remains compensable, and in the absence of any challenge by the appellant to the PIRS assessments, we cannot see how those different diagnoses can have any bearing on the ultimate assessment.
The appellant has referred to a number of authorities relevant to his arguments.
The appellant submits:
“Relevant authorities are Allianz v Francica [2012] NSWSC 1577 at [17] and Campbelltown City Council v Vegan [2006] NSWCA 284 at [121]. It is essential for a PIC medical assessor to analyse the evidence which would identify the nature of the basis for any symptoms and to demonstrate how that basis is or is not related to the effects of the accident.
More detailed reasons are required in respect to conflicting evidence (Tyack v Cain [2007] NSWWCCPD 119). A failure to indicate why one party’s evidence had been accepted over another may be an error (Vandenberg v Department of CorrectiveServices [2014] NSWWCCPD 17).
The Applicant simply cannot understand the reasoning and has to make surmises as to it. The purpose of reasons is for an Applicant to understand why he lost. He simply cannot do so from the Medical Assessment Certificate (Kosovic v Star CityPty Ltd [2010] NSWWCCPD 107). The failure to provide adequate reasons discloses that the Medical Assessor has failed to undertake his statutory duty.”
There is some merit to these submissions in that we agree that the Medical Assessor did not adequately explain his “differential” diagnosis nor why he made such a diagnosis.
A failure to provide adequate reasons is indeed a demonstrable error, but in this case, because no challenge is made to the PIRS assessments, this failure in our view does not render the MAC null and void.
Without an identified error in the PIRS, the Panel cannot disturb the ratings and has no power to reassess the appellant in relation to the PIRS.
In these circumstances, we of course could revoke the MAC on the basis of this demonstrable error, but for the reasons set out above, there seems no real practical reason to do so.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 June 2024 should be confirmed.
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