M R Waterproofing Technicians Pty Ltd v Kanozi

DETERMINATION OF APPEAL PANEL
CITATION:	M R Waterproofing Technicians Pty Ltd v Kanozi [2025] NSWPICMP 362
APPELLANT:	M R Waterproofing Technicians Pty Ltd
RESPONDENT:	Laith Kanozi
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	John Lam-Po-Tang
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	23 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal by employer from MAC finding of 19% for psychiatric injury; whether Medical Assessor (MA) erred by not considering whether any secondary psychiatric injury should be deducted; whether MA erred in assessment of self-care and hygiene class 2 rating and employability class 5 rating; Held – the referral was deficient and did not in turn instruct the MA to make a deduction for any secondary psychiatric injury; Skates v Hills Industries Ltd referred to and applied; worker re-examined by Appeal Panel; found that the secondary psychological injury of persistent depressive disorder was so intermingled with the primary post-traumatic stress disorder (PTSD) injury that it could not be isolated; ETM Projects Pty Ltd v Gregorgiou considered; Ausgrid Management Pty Ltd v Fisk considered and applied; self-care and hygiene category rating reduced to class 1; employability rating confirmed; MAC revoked and 17% substituted.

BACKGROUND TO THE APPLICATION TO APPEAL

On 11 December 2024 M R Waterproofing Technicians Pty Ltd, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 November 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):
· 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment. “Baseline WPI” is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.

RELEVANT FACTUAL BACKGROUND

On 10 October 2024 this matter was referred to the Medical Assessor for an assessment of WPI caused by psychiatric/psychological disorders which was sustained on 8 August 2018.
The respondent, Mr Kanozi, was employed as a waterproofer and on the date of injury suffered a fall of some 3.5m when the scaffolding he was on collapsed. He landed on both his feet and fractured his left ankle. He also twisted his right ankle.
On 20 June 2022 he obtained a MAC in respect of his physical injuries of 11% WPI.
Some six to seven months following his injury, Mr Kanozi developed psychological symptoms. He saw a psychologist but was also receiving treatment for his physical injuries and the intervention of COVID-19 prevented him from seeking further treatment.
Mr Kanozi was born in Iraq. He came to Australia in 1997, and moved to New Zealand in 2021 with his wife and two young children. There was history of domestic violence against
Mr Kanozi’s wife. The Medical Assessor noted:[1]
“He said that moving to New Zealand has not been stressful and he has found it more peaceful being able to isolate from his family and friends. He said there was a temporary worsening of his mental state from the stress from the domestic violence, but he was fined and put on a good behaviour bond, and so the stress from that has subsided.”
[1] Appeal papers page 21.
The Medical Assessor raised references to Mr Kanozi seeing a psychiatrist after Mr Kanozi stated that he had not seen a psychiatrist for treatment. The Medical Assessor was then told that in fact Mr Kanozi had consulted with an Australian psychiatrist on a monthly basis by telephone from 2021 to 2022. He could not recall the psychiatrist's name.
The Medical Assessor assessed 19% WPI.

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 worker should undergo a further medical examination because the Medical Assessor had fallen into error by failing to consider whether a secondary psychological injury had also been caused, and failing to make any deduction if that had been the case. A re-examination was thus required.

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.

Further medical examination

Medical Assessor Michael Hong of the Appeal Panel conducted an examination of the worker on 28 March 2025 and reported to the Appeal Panel.

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 which 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 MAC

The Medical Assessor did not refer to the instruction on the face of the referral that he was “to refer to the notations on the Certificate of Determination.”[2]
[2] Appeal papers page 32.
In taking Mr Kanozi’s history he said:
“[Mr Kanozi] said he has not seen a psychiatrist for treatment. He said he has been on tramadol, but he has not been recommended to have antidepressants. I then raised references of him seeing a psychiatrist….”
The Medical Assessor stated in considering Mr Kanozi’s work history:
“Since the subject injury, he said he has not been able to return to work. the physical or emotional resilience, and he said it is mainly the pain that prevents him from working, and he fears dying at work.”
With regard to Mr Kanozi’s selfcare and personal hygiene, the Medical Assessor said:[3]
“Since the subject injury, he said he is showering 2-3 days a week as he said he cannot stand in the shower for long without getting pins and needles in his feet and lower back. He said he has not been cooking as he finds it easier to get takeaway or getting Uber. He said he has not been cleaning, or doing the laundry.”
[3] At page 23 and repeated (relevantly) in the PIRS at page 29.
As to the psychiatric impairment rating scale (PIRS) category of employability, the Medical Assessor said:[4]
“Since the subject injury, he said he has not been able to return to work. He said he doesn’t have the physical or emotional resilience, and he said it is mainly the pain that prevents him from working, and he fears dying at
work.
He has not been able to return to work.”
[4] At page 30.
At [7] of the MAC, the Medical Assessor made the following diagnoses:
“Posttraumatic Stress Disorder (F43.10), due to meeting Criterion A via being involved in the subject accident; meeting Criterion B due to experiencing symptoms of intrusive recollections, and distressing dreams of the subject injury; meeting Criterion C due to avoidance of talking and thinking of the subject injury; meeting Criterion D due to a persistent feeling of anger, marked diminished interest in his previous activities, feeling detached from his family and friends, difficulties experiencing positive emotions; meeting Criterion E due to irritability with physical altercations with his wife, sleep disturbances, and problems with concentration; meeting Criterion F as the duration of his symptoms are more than 1 month; meeting Criterion G as he has had significant distress and there has been impairment with her social and occupational functioning; and meeting Criterion H as these conditions are not wholly attributable to any other conditions.
Persistent Depressive Disorder (F34.1), due to meeting Criterion A with his depressed mood; Criterion B due to appetite changes, insomnia, anergia, low self-esteem, reduced concentration and feelings of hopelessness; meeting Criterion D as there has been depressive symptoms longer than 2 years, and Criterion E and F have been met due to absence of manic episodes or psychosis; and meeting Criterion G as this episode is not attributable to another condition or effect of a substance; and Criterion H has been met due to significant functional impairment.”
The Medical Assessor stated at [10a] that he had made his assessment on his observations of “her” and information from the relevant documents, which he summarised as follows:
“…. The letter written by Dr Eric Lim, general practitioner, dated 15 April 2021.
He had a fall at work on 8 August 2018 and had surgery on his left ankle and another one a few years later. He has ongoing pain in his lower back and both legs as well as insomnia, frustration, depression, anxiety and suicidal thoughts. He was diagnosed with Posttraumatic Stress Disorder and recommended to see a psychologist and psychiatrist for his psychiatric injury.
The report written by Dr Brian Potter, psychiatrist, dated 13 November 2021.
The claimant was diagnosed with chronic Posttraumatic Stress Disorder. He sees a psychiatrist every two weeks whom he had started seeing in Australia. He lives at home with his wife and two children, aged nine and two. His wife does all the domestic activities. He has not returned to work since the injury, prior to which he was working as a mechanic. He continues to drive and helped by his wife who sits with him. He relies on his wife with self- care.
The report written by Dr Brian Potter, psychiatrist, dated 4 October 2022.
He has not received further psychiatric treatment. He is socially isolated and not seeing anyone. He is able to care for himself and attempt his own hygiene. He has cut all contact with friends. He has no problems with memory or concentration. He had no psychiatric diagnosis.
Vocational assessment report, dated 18 April 2023.
He sees a psychiatrist via Telehealth once a month and was advised to take antidepressants. He lives with his two children in Aukland. His four and a half years of job detachment was a barrier to securing employment and he currently holds no capacity for work due to his limited education, training, skills and experience as well as prolonged job detachment.
Psychology report by Carl Neilsen, psychologist, dated 31 May 2023.
He had no pre-existing psychiatric or substance use history. He had a fall at work on 8 August 2018, for which he had two surgeries and he had a deterioration in his mental state and was diagnosed with Posttraumatic Stress Disorder. He has had treatment including exposure therapy, cognitive and behavioural therapy, activity scheduling, behavioural activation and controlled breathing. He had a positive prognosis with current incapacity due to his psychological injury.
The report written by Dr Assad Saboor, psychiatrist, dated 29 November 2023.
There was no psychiatric history or substance use history prior to the subject injury. He was diagnosed with Persistent Depressive Illness, chronic Posttraumatic Stress Disorder and chronic pain syndrome. He has not had any medication. He saw a psychologist for over 12 months and stopped after Covid-19. He has not been on any medication apart from analgesia for pain. Self-care was mildly impaired, social and recreational activities was moderately impaired, travel was moderately impaired, social functioning was mildly impaired, concentration, persistence and pace was moderately impaired and employability was totally impaired with a whole person impairment of 22% and a deduction of secondary psychological injury of 2%, with a final whole person impairment of 20%.
The report written by Dr Brian Potter, psychiatrist, dated 20 May 2024.
He was diagnoses with chronic Adjustment Disorder with mixed depression and anxiety, maintained by chronic pain with a comorbid diagnosis of persistent Major Depressive Disorder. Self-care was moderately impaired, social and recreational activities was moderately impaired, travel was moderately impaired, social functioning was moderately impaired, concentration, persistence and pace was severely impaired and employability was totally impaired with a whole person impairment of 28% less pre-existing impairment of 3% with a final impairment of 25%.”

SUBMISSIONS

Appellant employer

The appellant employer first claimed that there had been a demonstrable error because the Medical Assessor had not differentiated between the primary and secondary psychological injury. We were referred to a Certificate of Determination dated 9 October from Member Karen Garner, which was a Consent Order and contained the following note:
“A. The parties agree that the applicant suffered a psychological injury on 8 August 2018, and that such injury was of both a primary and secondary nature.”[5]
[5] Appeal papers page 33.
The appellant employer submitted that the Medical Assessor had fallen into error by not making what is described as a deduction, but which more properly should be described as an apportionment (see below).
The existence of a secondary psychological injury was evident from the content of the MAC itself as well as the medical evidence, the appellant employer said. We were referred to:
·        the COD dated 9 October 2024;
·        the clinical notes from the Workers' Doctors, (5 entries);
·        a report from Dr Eric Lim of 1 December 2022 as well as a more generic reference to Dr Lim's “reports”;
·        a vocational assessment report from Changing Ways Consulting of 18 April 2023;
·        the report from treating psychologist Mr Carl Nielsen of 31 May 2023;
·        report of Mr Kanozi’s medico-legal expert Dr Sabor;
·        reports from Dr Potter, the appellant respondent’s medico- legal specialist, and
·        the diagnosis given by the Medical Assessor of persistent depressive disorder in addition to the post-traumatic stress disorder diagnosis.
We were referred to s 65A (1) and (2) of the 1987 Act and the decision of Mercy Centre Lavington Ltd v Kiely.[6] We were also referred to Arthurs Tzaneros Discretionary Trust & Luke Webber Trust v Salfaileta.[7]
[6] [2018] NSWSC 1421.
[7] [2023] NSW PIC MP 214 .
The appellant employer submitted that a deduction should have according been made for the presence of the secondary psychiatric injury. It noted that Dr Saboor had deducted 10%, but submitted that a larger deduction should be made in accordance with the evidence it had referred to.
The appellant employer then challenged the assessment with regard to categories of self care and personal hygiene and employability within the PIRS.
As to selfcare and personal hygiene, it argued that the comments by the Medical Assessor as to the restrictions whilst Mr Kanozi was having a shower were unrelated to the psychological injury, but had been caused by physical pain.
It was further submitted that although Mr Kanozi said he had not been cleaning or doing laundry, the Medical Assessor did not clarify whether this was because he was unable to do so on account of his physical symptoms.
The other impugned category of employability had similarly been assessed in error, it was submitted, as the Medical Assessor had found that “mainly the pain” prevented Mr Zanozi from working, which was a result of his physical injuries, and not the subject psychological injury.
The appellant employer submitted that, having diagnosed a persistent depressive disorder as well as post-traumatic stress disorder and found that Mr Kanozi had a significant functional impairment, the Medical Assessor demonstrated that the physical injury had clearly impacted Mr Kanozi’s condition and functioning. Again, the Medical Assessor had failed to exclude that aspect from his assessment.

Mr Kanozi

Mr Kanozi conceded that the Medical Assessor had not considered Mr Kanozi’s secondary psychological injury. It was submitted, however, that the notation on the referral was irrelevant to the task of the Medical Assessor. We referred to Haroun v Railway Corporation NSW[8] as authority for the proposition that findings by an arbitrator as to the nature of an injury were irrelevant, and it would be wrong for a Medical Assessor to adopt them.
[8] [2008] NSWCA 192.
Mr Kanozi submitted that the “essential flaw” in all of the appellant employer's submissions was the assumption that the Medical Assessor was bound to make a finding of secondary psychiatric condition and make an apportionment accordingly. However, Mr Kanozi submitted, the Medical Assessor was required to make his own diagnosis. The Medical Assessor had clearly made no diagnosis of secondary psychiatric injury, and accordingly, it was argued, the appellant employer’s submissions fell away.
We were referred to the evidence of Dr Lim and the vocational assessor which the appellant employer had relied on as to secondary psychiatric condition, but it was submitted that such evidence could not carry much weight as these practitioners were not “mental health care professionals”.
Mr Kanozi submitted that the Medical Assessor had clearly considered the relevant history, to the extent of questioning Mr Kanozi about the assertion that he had not seen a psychiatrist, and correcting him.
It was submitted that there was no failure by the Medical Assessor to consider a secondary psychiatric condition “as it just wasn't found” by him. He had not found that Mr Kanozi suffered from a chronic pain syndrome as had noted Dr Saboor’s view in that regard.
Accordingly, the authorities relied on by the appellant employer were not relevant, Mr Kanozi said.
The only matter that needed to be explained, Mr Kanozi argued, was the Medical Assessor's diagnosis. The Medical Assessor had the referral before him and all the evidence that was relevant to the finding of a chronic pain syndrome, but he did not make such a finding and therefore as we understood the submission he did not find there was a secondary psychiatric condition.
In response to the criticism of the two categories of the PIRS Mr Kanozi submitted that there was no basis in the “medial [sic – medical] evidence” for the appellant employer’s submissions.

DISCUSSION

Section 65A of the Workers Compensation Act 1987 (the 1987 Act) states relevantly:
“(1)    No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2)     In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) …
(4) …
(5)     In this section-
‘primary psychological injury’ means a psychological injury that is not a secondary psychological injury.
‘psychological injury’ includes psychiatric injury.
‘secondary psychological injury’ means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
In Kiely the effect of this provision was considered. From [95], Harrison As J stated:
“95. For convenience, s 65A of the Workers Compensation Act (which I have set out earlier in this judgment) requires a distinction to be drawn between primary psychological injury and secondary psychological injury. Under s 65A(1), no compensation is payable for permanent impairment that results from a secondary psychological injury. When an AMS (or Appeal Panel) assesses the degree of permanent impairment resulting from a primary psychological injury, no regard can be had to any impairment or symptoms resulting from a secondary psychological injury in accordance s 65A(2).
96. The statutory scheme comprising of the WIM Act and the Workers Compensation Act creates a two-step approach in assessing the degree of WPI for a psychological injury. The assessor must first calculate the entire degree of psychological injury in line with the PIRS categories. The secondary psychological injury must then be assessed and deducted in accordance with s 65A of the Workers Compensation Act, leaving the primary psychological injury remaining.”
At [97] her Honour noted that the referral stated the Medical Assessor was to exclude “any impairment or symptoms arising from or attributable to, the secondary psychological condition”.
In the present case, the referral approached the question a different way. The referral on its face did not seek such an exclusion, but rather attached asterisk marks to the referral in the following manner:[9]
“Psychiatric / psychological disorders ***”
[9] Appeal papers page 32.
The asterisks were repeated two lines below:
“***Medical Assessor to refer to the notations on the Certificate of Determination”
It would appear that the Medical Assessor did not notice that instruction, which we would observe was perhaps more subtle than it needed to be. The consent orders made in the Certificate of Determination by Member Karen Gardner on 9 October 2024, stated relevantly:
“1. The matter is remitted to the President for referral to a Medical Assessor for assessment as
follows:
Date of injury: 8 August 2018
Body parts: Psychological (refer Notation)
Method: Whole Person Impairment
….
Notations
A. The parties agree that the applicant suffered a psychological injury on 8 August 2018, and that such injury was of both a primary and secondary nature.”
It can be seen that, in terms, there was no instruction to the Medical Assessor to exclude “any impairment or symptoms arising from or attributable to, the secondary psychological condition” as was the case in Kiely. The appellant employer’s contention that the Medical Assessor failed to take into account a secondary psychological injury at all is correct, and the short answer is that no such consideration occurred because it was not asked for.
However, the terms of a referral, whilst an important part of the procedure for obtaining impairment assessments, are subordinate to the agreement regarding the medical dispute that the parties wanted resolved.[10] Mr Kanozi submitted that such a notation was irrelevant, as findings by an Arbitrator (as Members were called in the prior Workers Compensation Commission) could not bind a Medical Assessor, which is undoubtedly correct. However, the orders made by Member Garner were by consent, and the reference to the secondary/primary dichotomy was contained in the notation. It follows that the parties agreed that the note should be made, and it may be inferred that it was made because they wanted the distinction defined in s 65A to be considered by the Medical Assessor. It also follows that therefore that had he done so, and found that an adjustment pursuant to s 65A(2) was applicable, such a deduction was to be made.
[10] Skates v Hills Industries Ltd [2021] NSWCA 142.
Accordingly, no criticism can be made of the Medical Assessor for failing to do so, but we are satisfied that the obscure manner in which the referral and Certificate of Determination were constructed were nonetheless intended by the parties to have that result. Therefore we find that the Medical Assessor has fallen into error and this issue had to be determined. We determined that we could not do so without a re-examination. Medical Assessor Hong’s report follows:
“History:
Mr Kanozi is 37 years old and lives with his wife, who is a homemaker, and they have two sons, aged 5 and 12.
Mr Kanozi had an accident at work and recalled he worked 2 days as a waterproofer, when the subject accident happened on 8 August 2018. He fell 3.5 metres from the scaffolding as it collapsed, and sustained a left ankle fracture and had 2 surgeries.
After the second surgery, Mr Kanozi continued to have pain daily in his left ankle. He has right leg pain due to compensatory use, and back pain from prolonged immobility, as he relied on crutches between operations. Now, he can walk 15 minutes, then he said pain becomes 10/10, and he cannot use stairs. Mr Kanozi struggles with standing 15 minutes, and has "pins and needles". When walking, he is scared he would roll his ankle. His arms are fine but he cannot carry heavy items, due to weight bearing on his ankle. He avoids anything high, and worries he would fall from high places.
In the first 6-8 months after the accident, Mr Kanozi had severe pain, and said he gained weight due to inactivity. He did not have depression initially. He was anxious and avoided high places since the accident, and has intrusive memories related to the accident.
Mr Kanozi said his depression became a problem, around 6-8 months after the accident, in mid-2019, between the two operations. Mr Kanozi stated that between the 2 operation, pain was getting worse as his analgesic medications did not work. He said his doctor was worried he would become addicted to opioid analgesics, and he wanted to take analgesic medications 2 times per day but his GP only allowed once a day, and only gave him 12 tablets each time, so he had to see his doctor every week or two. Due to increased pain, and feeling hopeless, his depression became a problem then.
Mr Kanozi said his weight was 80kg at the time of the subject injury and now 115kg, as he cannot move or exercise. His weight slowly increased over time.
Mr Kanozi stated that he never used cannabis before the accident, but started using it twice a week after the accident to help manage pain. However, he can no longer afford it, so he does not use it anymore. Cannabis was not prescribed.
Treatment:
After Dr Yu-Tang Shen’s assessment, Mr Kanozi's psychological/psychiatric treatment has not changed. He takes Panadol and Nurofen. He has never taken antidepressant or anxiety medication. He took a sleeping pill in 2022 after his second operation, and not since. He had zoom sessions from New Zealand with a counsellor in Sydney, 3-4 times and only a couple of times, and this was more than 12 months ago.
Current symptoms:
Mr Kanozi reportedly said his sleep and nightmares have not changed. He still suffers from anxiety and trauma symptoms. He said his depression is either the same or worsening over time and explained after the second surgery, the pain was not better and has been worse, over time, the pain became more generalised due to altered gait and compensatory use of the other side, and he has more depression.
He described irritability and trauma symptoms. He avoids dangerous and high places.
He said he cannot bond with his children, and he screams at them when they are loud, and described sensitivity to noises at home.
Mr Kanozi has suicidal ideation without self-harm behaviour. He said he thinks about how he would do it. He said he is useless and broken, compared to what he was, he is now completely changed.
Previously Mr Kanozi stated that he was a gym junkie, he played soccer, he had sporting activities and outings with his family, and driving, but cannot do these now, and is upset by it.
Since moving to New Zealand, Mr Kanozi said his doctors in Australia would not prescribe opioid analgesics, so apart from Nurofen and Panadol, he has nothing else to help him with pain, and pain is not well controlled.
Lifestyle:
Mr Kanozi said he does not do much day-to-day, and everything is a struggle for him. He cannot walk or stand for long.
His wife does everything at home. He said he cannot do any household chores. He cannot cook as he cannot stand and on specific enquiry regarding cooking whilst seated, he said no one can sit and cook.
Mr Kanozi cannot wash the car or mow the lawn. He cannot pick up or do things with his sons, as “pain comes on quickly”.
Mr Kanozi reported that since the accident, he has not socialised. He said he has not gone out since November 2024 due to his anxiety.
He generally eats two or three meals a day, when hungry. He showers twice a week, and needs assistance from his wife. His wife gets him a chair in the bath, and he said he cannot scrub or do his back, so his wife has to help. He worries he would fall getting into the bath, so he waits until his wife is available, to ensure he does not fall.
Work history:
Regarding work history, Mr Kanozi said he has only completed 10 years of school, and said his reading and writing skills are not good. He completed 3 years of a 5-year Mechanical Apprenticeship, but did not continue with it because he started working, although he said he always knew he could return to complete it later. He did car washing work and then did waterproofing for about 12 months. Mr Kanozi only started work with the subject employer about 2 days when the accident happened.
We discussed some of the other potential jobs, such as spare parts interpretation, drawing on his previous car interests. Mr Kanozi said he cannot stand or walk, and therefore he will not be able to work in a workshop. We discussed using a computer and doing computer-based work related to cars. He said he cannot read or write well, and he is not good with technology, so it does not seem he can do it. Mr Kanozi has not done any work or studies since the accident.
Mental state examination:
Mr Kanozi was assessed by video. He was home and his wife and youngest son were home in another room. He was kempt and had a crewcut hairstyle with side fade and a full beard, and was casually attired in a tee shirt. He spoke spontaneously and readily, without latency nor evidence of psychomotor disturbance. He shifted his body with discomfort, and smiled briefly. There were no thought disorder or difficulties with concentration during the assessment.”
We adopt the report of Medical Assessor Hong. The following findings may therefore be made.
Mr Kanozi had no prior psychiatric disorder and reported that after the work accident, he developed trauma symptoms and anxiety consistent with a primary psychological injury of post-traumatic stress disorder.
Depression in the form of a persistent depressive disorder, was only diagnosable six or eight months after the accident, and this was between the two operations. His depression developed in the setting of increasing pain, inadequate analgesics, and feeling hopeless due to his physical disabilities. This is a secondary psychological injury and has not resolved over time, and its intensity correlates with his pain experience, but the severity is more than common distress, and reached criterion for a psychiatric diagnosis.
In terms of the secondary injury apportionment, even though there is evidence that the secondary injury occurred some months after the primary injury, the impairments are now intermingled and cannot be separated, and there is no discrete secondary injury impairment.
This is different to the Gregorgiou Panel decision,[11] where there was discreet impairment from secondary psychological injury, which was isolated and removed from the overall impairment assessment, using the 2 step method as described in Kiely. The Panel relies on the explanation in the Fisk Panel decision,[12] that only discreet impairment from secondary psychological injury can be removed (this is because if the primary and secondary psychological injury impairments are intermingled, by having no regard for a secondary psychological injury, no regard would also be had for the primary psychological injury).
[11] ETM Projects Pty Ltd v Gregorgiou [2024] NSWPICMP 45.
[12] Ausgrid Management Pty Ltd v Fisk [2023] NSWPICMP 237.
Accordingly, we find that there is no modification to the MAC on this ground.
In terms of self-care, Mr Kanozi eats two or three meals a day and he orders takeaway food. He gained weight from physical inactivity and being unable to move physically. Normally he cooks but not now, because physically he does not believe he has the capacity, even if he wants to. He presented as reasonably kempt, with no evidence of neglect. He reported that he always waits until his wife is available to shower, because he worries he will fall. He does not believe he needs to shower more regularly because he does not do much, so he does not get sweaty. He brushes his teeth daily and changes to clean clothes regularly.
Given that Mr Kenozi’s impairments are all related to physical injuries, and psychologically he remains independent and does not need prompting or assistance, there are only minor deficits seen in the general population. The Panel noted that the Medical Assessor recorded Mr Kanozi had reduced showering and finds it easier to get takeaway food. The showering problem is due to his pins and needles and lower back pain, but his physical injuries are not assessable in the PIRS. The Panel also noted that Dr Assad Saboor rated 2, on the basis that Mr Kanozi cannot have a shower but was having a bath daily, changing clothes every two or three days, brushing teeth daily, eating three or four times a day, but gained weight. There was no attempt to explain whether this is due to physical impairment. Similarly,
Dr Potter rated 3 but said Mr Kanozi could not survive without his wife, but did not explain why he could not, from a psychological perspective. The overall evidence is that there are only minor deficits attributable to the normal variation in the general population. This is consistent with a class 1 rating.
In terms of employability, Mr Kanozi has never worked since the accident. In view of general withdrawal from the public and poor ability to deal with stress, the panel does not believe he has any work capacity from a psychological perspective. There is no evidence he had some work incapacity caused solely by the secondary psychological injury. The class 5 rating is confirmed.
Thus the median class score for the PIRS remains at 3, and the aggregate score impairment is reduced to 16, which has the same resulting entitlement to 17% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
14 November 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:	W24966/24
Appellant:	M R Waterproofing Technicians Pty Ltd
Respondent:	Laith Kanozi

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 Dr Yu Tang Shen 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 AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Psychiatric injury	8 August 2018	Chapter 11, page 54	n/a	17%	nil	17%
Total % WPI (the Combined Table values of all sub-totals)					17%

[2025] NSWPICMP 362

23 May 2025