Kurido v Dulux Group (Australia) Pty Ltd
[2024] NSWPICMP 465
•17 July 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Kurido v Dulux Group (Australia) Pty Ltd [2024] NSWPICMP 465 |
| APPELLANT: | Idris Ali Kurido |
| RESPONDENT: | Dulux Group (Australia) Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 17 July 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against medical assessment whole person impairment; psychological injury; application to rely on statement about conduct of examination declined; alleged error in assessment of social functioning under the permanent impairment rating scale; Lukacevic v Coates Hire Operations Pty Limited, Petrovic v BC Serv No 14 Pty Ltd, and State of New South Wales v Ali; Held – evidence supports the history obtained and assessment made by Medical Assessor; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 February 2024 Idris Ali Kurido lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Surabhi Verma, who issued a Medical Assessment Certificate (MAC) on 2 February 2024.
Mr Kurido relies on the following grounds of appeal under s 327(3)(b) and (d) 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), and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that in s 327(3)(d). We conducted a review of the original medical assessment, limited to the grounds 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) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Mr Kurido was employed by Dulux Group Pty Ltd (Dulux) as an apprentice maintenance assistant when he suffered a psychological injury, which is deemed to have occurred on 20 August 2020. On 20 July 2021 a member of the Personal Injury Commission determined that Dulux was liable to pay compensation to Mr Kurido.
The Medical Assessor diagnosed an exacerbation of post-traumatic stress disorder. Assessing Mr Kurido under the Psychiatric Rating Scale (PIRS), she placed him in class 2 for each of self care and personal hygiene, social and recreational activities, travel and social functioning. She assessed him in class 3 for concentration, persistence and pace and class 5 for employability. Those scores convert to 9% whole person impairment (WPI). The Medical Assessor deducted one-tenth of the total under s 323 for a pre-existing post-traumatic stress disorder and issued a MAC certifying 8% WPI.
PRELIMINARY REVIEW
We 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, we determined that it was not necessary for Mr Kurido to undergo a further medical examination because the MAC does not disclose error.
Additional relevant information
Mr Kurido relies on the ground of appeal in s 327(3)(b) and seeks to admit a supplementary statement dated 14 February 2024 commenting on the MAC and the examination.
Section 327(3)(b) provides that the availability of additional relevant information is a ground of appeal but only if the evidence was not available before the medical assessment and could not reasonably have been obtained before that medical assessment.
Mr Kurido relied on a statement by Fleming DP in Ross v Zurich Workers Compensation Insurance[1] in which she set out the principles for reliance on fresh evidence on an appeal at common law. Fleming DP went on to say why those principles were relevant to but not determinative of an application under a statutory scheme.
[1] [2002] NSWWCCPD 7.
The only reason offered in support of admission of the statement was that it could not have been obtained earlier because it dealt with the way Mr Kurido’s responses were handled by the Medical Assessor. Mr Kurido said there was probative value in the statement, referring to the decision of another appeal panel in Serco Australia Pty Ltd v Cadman.[2] That decision referred to Lukacevic v Coates Hire Operations Pty Limited[3] (Lukacevic), discussed below and the material sought to be admitted was a certificate of capacity, not a statement about the examination.
[2] [2023] NSWPICMP 697 at [22].
[3] [2011] NSWCA 112.
In Petrovic v BC Serv No 14 Pty Limited[4] Hoeben J observed that if a statement going to the way in which a medical assessment was conducted was additional relevant information as defined in s 327(3)(b) “it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal”.
[4] [2007] NSWSC 1156 at [31].
In Lukacevic, Hodgson JA said:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds. Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”[5]
[5] At [78].
In the same case, Handley JA said that evidence of what took place at the examination was additional rather than fresh evidence.[6] His Honour said:
“The Panel's reasons for refusing to receive the new evidence … referred to the importance of finality in litigation, that procedural fairness for the respondent would entitle it to seek a response from the AMS, and the fact that the issues raised were ‘not contemplated as part of the appeal mechanism’. In my judgment these were relevant considerations in the exercise of the Panel's discretion, and it cannot possibly be said that its decision was irrational.”
[6] At [100].
Mr Kurido said that his new statement was entirely consistent with his statement dated 13 November 2023. That is not a reason to admit it. In State of New South Wales v Ali[7] Harrison J said:[8]
“First, the information … is neither additional nor relevant as properly understood. The expression ‘additional relevant information’ contemplates or anticipates a qualitative addition to the information otherwise previously available. It is not concerned with the information being merely quantitatively different, in the sense that there is more of the same. That is made plain by the words in parentheses, which emphasise that the additional relevant information must also qualify as information that could not reasonably have been obtained before the medical assessment appealed against. As a matter of plain language, that does not mean or refer to something that could not have been obtained simply because it came later in time. Everything that occurs later than an earlier event is by definition additional in a temporal sense. That is obviously so in the present case, in which the so-called additional relevant information consists of the investigation reports, which uncontroversially ‘could not reasonably have been obtained ... before’”
And:[9]
“Section 327(3)(b) limits that right of appeal to circumstances where additional relevant information is available but only if the additional information was not available to, and could not reasonably have been obtained by, the plaintiff before the medical assessment appealed against. That clearly anticipates the existence of a provable state of affairs at the time the decision is made. Section 327(3)(b) cannot be read in any other way: it deals with the circumstances in which an appeal will lie from an assessment that was allegedly made without the benefit of information that existed at the time. It is not concerned with offering an aggrieved party the chance to run the assessment again because circumstances have since changed.”
[7] [2018] NSWSC 1783.
[8] At [32].
[9] At [39].
Based on those authorities, we do not agree that Mr Kurido’s statement has probative value or otherwise fulfils the requirements of additional relevant information in s 327(3)(b). We decline to admit it.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but we have considered them.
In respect of the appeal under s 327(3)(d), Mr Kurido submitted that the Medical Assessor made a demonstrable error in her assessment of social functioning, referring to the definition of a demonstrable error in the decision of a medical appeal panel in Evangelista v Coles Supermarkets Australia Pty Ltd.[10] We note that the same form of words was found to be an inaccurate statement of the law in Tasevski v Westpac Banking Corporation.[11]
[10] [2021] NSWPICMP 124.
[11] [2024] NSWSC 41.
Mr Kurido said that the Medical Assessor based her assessment on an incorrect history and that the history she obtained was at odds with his evidence. The Medical Assessor said that Mr Kurido had a good relationship with his son but the evidence in his statement is otherwise. He also referred to the Medical Assessor’s history about sexual and erectile dysfunction which he said was affecting his married life and said that it was inconsistent for the Medical Assessor to record that history and then to say that he has a good relationship with his wife. He said that he has separated from his current wife and has a poor relationship with his son and referred to evidence in his recent statement that he did go to mow his ex-mother in law’s lawn as proposed because of his anxiety.
Mr Kurido said that he should have been assessed in class 3 for social functioning. He did not cavil with the Medical Assessor’s deduction of one-tenth under s 323.
In reply, Dulux opposed the admission of Mr Kurido’s further statement, citing some of the authorities we have set out above. Dulux said that the Medical Assessor did not make a demonstrable error. It submitted that the Medical Assessor provided reasons for saying that Mr Kurido has a good relationship with his son, ex-mother-in-law and ex-wife. The fact that Mr Kurido may have an aversion to engaging with his son does not preclude a good relationship. With respect to Mr Kurido’s relationship with his wife, Dulux said that the argument that Mr Kurido is separated is inconsequential because his wife lives in Ghana. The Medical Assessor recorded a consistent history that Mr Kurido was able to travel to Ghana to visit his wife, have a wedding and attend to family affairs. Dulux noted that the Medical Assessor referred to Mr Kurido’s general practitioner’s notes about his enjoyment in visiting Ghana.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton[12] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[12] [2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[13] the Court of Appeal held that an 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.
[13] [2006] NSWCA 284.
The MAC
The Medical Assessor set out a detailed history of the circumstances leading to the injury and described the events which caused his pre-existing post-traumatic stress disorder. The Medical Assessor said:
“He said that he has been married twice. He said that he met his wife in 2008 which is when he migrated to Australia from Spain on a spouse visa. They have a son age [sic] 14 years. He separated from his wife about 13 years back. He remarried and has been married for the last two to three years. His wife lives in Ghana and they have a
10-month-old child. He said that he communicates with his wife over the internet.”The Medical Assessor set out Mr Kurido’s current symptoms including:
“He said that because of his depression, he also experiences sexual dysfunction and has erectile dysfunction in particular. He said that this was affecting his married life.”
Describing his social activities and activities of daily living the Medical Assessor said:
“Mr Kurido said that he used to play soccer and used to socialise with his friends. He said that he no longer socialises with his friends as he is quite anxious of leaving home. He is not actively involved even in attending a religious meeting at his mosque. He was, however, able to marry and attend the wedding and family affairs in Ghana. He reported that he enjoyed activities with his son, example basketball. He is able to leave home to get his food, cigarettes and other things for his daily living.
…
Mr Kurido reported that he does not have much support as he has no friends. He, however, has been seeing his son and has a good relationship with his son and his ex-mother- in-law, and he plans to visit his ex-mother-in-law and ex-wife to mow her lawn tomorrow. He added that he has a good relationship with his current wife and family even though they live in Ghana.”
The Medical Assessor compared her assessment to that of Dr Smith (who saw Mr Kurido at the request of his solicitors) in respect of social and recreational activities and social functioning. Noting that Dr Smith recorded that Mr Kurido was scared to be around people the Medical Assessor said:
“I have noted he however was able to marry and attend the wedding and family affairs in Ghana. He enjoys activities with his son, example basketball, which warrants mild impairment. He is also able to go out without a support person and is fairly independent.
Social Functioning: I have noted that Dr Smith has marked social functioning as moderate impairment and as mentioned, Mr Kurido said that he has been in relationship with his wife for two years and he hopes she will come over to Australia. He described the relationship as tumultuous because of anxiety and depression. I have noted that he reported that he has a good relationship with his son and his ex-mother-in-law and has been involved in their day-to-day functioning like mowing their lawn. There have been no periods of separation or domestic violence or spouse, relative or community looking after children which would warrant moderate impairment. Hence, I believe that his impairment is more consistent with mild impairment in the PIRS category social functioning.”
The Medical Assessor observed that Mr Kurido’s general practitioner had recorded on 15 December 2022:
“Telephone consult with patient
Enjoying Ghana
Happy to be with family
Having some counselling over there too
Discussed re rehab
Discussed re food / ETOH safety
Review when return…”
Consideration
In Tasevski, Schmidt AJ said, in relation to the definition of demonstrable error on which Mr Kurido relies, that it was common ground that the relevant panel has misstated the effect of the decision in Vannini v Worldwide Demolitions Pty Ltd.[14] Her Honour said:[15]
“Vannini was an appeal from a judge of this Court. It concerned whether another appeal panel had fallen into jurisdictional error by substituting its own view for that of the assessor, without having found an error of the kind specified in s 327(3). The grounds there advanced were also that the assessment had been made on the basis of incorrect criteria or contained a demonstrable error. The issues on that appeal concerned the power of the appeal panel on review under ss 327 and 328 and the meaning of ‘demonstrable error’.
Gleeson JA explained that ‘demonstrable error’, a term which is not defined, is intended to convey the degree of strictness of scrutiny to which the disputed assessment may be subjected. As such, a finding of ‘error alone is not sufficient’. The error must be ‘material’ and apparent in the certificate, although there is no limit on the material to which the Panel may have regard when assessing whether the certificate ‘contains’ a demonstrable error: at [77]-[78].
An error is also not demonstrable merely because the Panel disagrees with the assessor’s opinion: at [87]. An error for which there is no information or material to support the finding made, rather than a difference of opinion, will establish a demonstrable error.”
[14] [2018] NSWCA 324.
[15] At [15].
We have considered this matter in light of that description of demonstrable error.
Table 11.4 of the PIRS assesses a worker’s ability to form and sustain relationships. It is important to remember, as with any assessment under the PIRS, that class 1 contemplates that there is a variation in the general population. Class 2 is appropriate for a mild impairment where, for example, existing relationships are strained, there is tension or arguments with close family and some friendships have been lost. A worker will be assessed with a moderate impairment where, for example, previously established relationships are severely strained, evidenced by periods of separation from a partner or children. There are two important relationships to be considered under Table 11.4 – Mr Kurido’s relationship with his son and his relationship with his wife.
Mr Kurido’s son
In his statement dated 13 November 2023 Mr Kurido said:
“My relationship with my son is not very good. I want to spend time with him because his my son. But the relationship I have with him now is very different than what it use to be. I am very embarrassed to have a conversation with him because there is not much I can say to him.
I use to play basketball with him at the park. But now, I don’t do that with him anymore. I don’t enjoy playing basketball with him. I feel very anxious and restless when I take him. It upsets me very much that I don’t feel joy with playing basketball with him.
When I text my son and ex-wife to arrange a time to see my son, I am actually hoping that they give me a reason that I can’t see him. It does happen, they say his busy or he has a basketball game and I feel very relieved.”
Dr Smith recorded that Mr Kurido’s son lives in Melbourne.
Mr Kurido’s 2023 statement records he has returned to Melbourne for a fresh start, despite the “perpetual fear that seems to be emanating from his past experience of being involved with the police, drug raids and being fired upon”.
Mr Kurido’s 2023 statement is at odds with the history obtained by Dr Cassimatis, who saw him on behalf of the insurer on 3 October 2023. Dr Cassimatis recorded:
“Currently he visited his son every so often for a weekend and they will play basketball, go to a park and enjoy their relationship. He has an amicable relationship with his ex-wife.”
Both Mr Kurido’s statement dated 13 November 2023 and the history taken by the Medical Assessor confirm that there have been changes in Mr Kurido’s relationship with his son as a result of the injury. Despite that, he maintains a relationship, not only with his son but with his ex-wife and her mother, for whom he does some tasks. The fact that he may be reluctant to see his son sometimes is consistent with a mild impairment.
Mr Kurido’s wife
Since the injury in 2020, Mr Kurido has travelled to Ghana to marry and he has had a child. He told the Medical Assessor that he hopes his wife will come to Australia. In his statement dated 13 November 2023, Mr Kurido said:
“My wife and I have only been married since March 2022. I don’t feel like I can lean on her for emotional support because she does not know me.
My wife lives in Ghana. She tells me that my family is worried about me and what is happening with me is very unlike me.
She tries to call and speak to me every day. I do talk to her over video occasionally. But there are many occasions where I don’t feel like talking to her, so I just tell her that I’ve run out of data and I can’t talk to her.”
He said:
“When I have these nightmares [about the events at Dulux], I thrash around in bed. When I went to visit my family in Ghana, I would sleep with my wife. However, she would kick me out of bed because I thrashed around and she couldn’t sleep. I have attacked her because I thought I was in a confrontation with Wayne. So while I was in Ghana, I would sleep on the couch.
My wife has said to me that she is scared to sleep with me because of these attacks.”
That evidence also confirms that Mr Kurido maintains a relationship with his wife, even though she lives overseas. The comment by his general practitioner when he was in Ghana in 2022 that he enjoyed being there supports that conclusion and the relationship needs to be viewed in the context of her living in Ghana. Inevitably, the relationship will be different to how it would be if she lived in Australia because they have effectively been “separated” for almost their entire relationship.
There is scant information about Mr Kurido’s marriage in the medical evidence and it appears that he also has a middle child aged 7 or 8 who lives in Ghana, from another relationship. He and his wife have a child who was born sometime in early-mid 2023 from the descriptions of her age and dates of recording her age in the reports. The timing of the pregnancy is consistent with Mr Kurido’s travelling to see his family in Ghana for six months in September 2022.
In August 2022 Dr Nguyen wrote “Consider a short holiday to reunite with patient’s mother for further family support.” Dr Nguyen’s notes are current only to the end of 2022.
Dr Shahzad who saw Mr Kurido for an injury management consultation and reported on 11 May 2023 said:
“He went overseas in November 2021 and came back to Australia in March 2022. He consulted Dr Albert Nguyen (General Practitioner) who diagnosed acute stress disorder. He referred him to a psychologist. He subsequently started undergoing psychology sessions consisting of CBT and mindfulness. In September 2022, he went back overseas advising that he had to take care of his sick mother, and returned to Australia in March 2023. During this time, he was undertaking psychology sessions through telehealth.
…
He states, ‘Physically I want to work but mentally it is just hard.’ He wants to learn air conditioning and would like to go back to Ghana.
…
He reports he had a partner who lives back home in Africa.”
The determination that Mr Kurido suffers a mild impairment in social functioning is confirmed by statements made to Dr Smith who saw Mr Kurido at the request of his solicitors in June 2023. Dr Smith said:
“He said that in late 2022, he returned to Ghana and he felt less anxious being away from Australia but he returned to Australia in early 2023 to be closer to his son…”
Dr Smith recorded that Mr Kurido had been in his current relationship for about two years and that he had briefly been in a relationship with the mother of his daughter.
Mr Kurido saw Dr Bateran at the request of Dulux’s insurer in September 2023. Dr Bateran recorded:
“Mr Kuridu [sic] reported that he had gone back to Ghana to visit his partner and his two children including his 6-month-old and 7-year-old daughter. He denied having any psychosocial or intercurrent stressors or life events, although his daughter has been born since his psychological injury. It is also noted that he has previously reported returning to Ghana to help care for his sick mother which he did not disclose during this examination.”
Only three months before the examination by the Medical Assessor, Dr Cassimatis recorded:
“Several years ago he had travelled to Africa and married by arrangement. They have been married for the past two years but his wife remained in Ghana. They now also have a seven-month-old child. He communicates via the internet frequently.”
Dr Cassimatis assessed Mr Kurido in class 2 for social functioning. He said:
“All existing relationships have some sort of tension due to his situation but he has a good relationship with his son, his ex-mother-in-law and his second wife and family even though they live interstate or in another country.”
All of those histories confirm that Mr Kurido has an ongoing relationship with his wife.
Mr Kurido’s submissions focussed on an alleged inconsistency between his history of erectile and sexual dysfunction and the Medical Assessor’s assessment of a mild impairment of social functioning. Those matters are not necessarily inconsistent, particularly where Mr Kurido’s wife lives overseas. The sexual relationship is not the only matter to be taken into account in the assessment of social functioning under the PIRS, and any dysfunction has not prevented him fathering another child with his new wife.
Based on the evidence and the history the Medical Assessor obtained, the assessment in class 2 for social functioning was correct.
For these reasons, we have determined that the MAC issued on 2 February 2024 should be confirmed.
0
10
0