Malekzadeh v Southern Cross University
[2024] NSWPICMP 227
•17 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Malekzadeh v Southern Cross University [2024] NSWPICMP 227 |
| APPELLANT: | Mona Malekzadeh |
| RESPONDENT: | Southern Cross University |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 17 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant relied on grounds for appeal provided in section 327(3)(b), (c) and (d); whether the additional relevant information on which the appellant sought to rely to establish s327(3)(b) was available to appellant and could not reasonably have been obtained by the appellant before the medical assessment; whether Medical Assessor (MA) considered all the evidence; whether MA correctly weighed the evidence; whether MA’s ratings of appellant’s impairment in psychiatric impairment rating scale (PIRS) for self-care and personal hygiene, social functioning, travel, and concentration, persistence and pace available on the evidence; whether the deduction MA made under section 323(1) of 50% available on the evidence; Appeal Panel held the additional relevant information was available to appellant and could reasonably have been obtained by the appellant before the medical assessment and section 327(3)(b) not established; Appeal Panel held MA considered all relevant evidence and his ratings of appellant’s impairment in self-care and personal hygiene, social functioning, concentration, persistence and pace was available on the evidence, and consequently no error in the MA’s ratings for these PIRS, but MA’s rating for appellant’s impairment in PIRS not available on evidence, and consequently Medical Assessment Certificate (MAC) contained a demonstrable error; MA’s deduction of 50% under section 323(1) also not available on the evidence, and was an error; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 December 2023 Mona Malekzadeh, 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 6 December 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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 for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment as a lecturer with Southern Cross University, the respondent, in February 2018 working in the engineering faculty at the Lismore campus. In September 2019 a new chair of engineering was appointed. Due to several interactions that occurred thereafter between the appellant and the new chair, the appellant suffered a psychological injury.
The appellant claimed compensation from the respondent under s66 of the Workers Compensation Act 1987 (the 1987 Act) for 26% whole person impairment (WPI) following her injury. She relied on a report of consultant clinical and forensic psychiatrist Dr Glenn Smith dated 10 November 2022.
To respond to that claim the respondent’s solicitor arranged for the appellant to be examined by consultant psychiatrist Dr Mukesh Kumar on 13 June 2023. He advised in a report dated 6 July 2023 that he had assessed the appellant had 17% WPI from her injury.
The respondent’s solicitors subsequently wrote to the appellant’s solicitors on 15 August 2023 advising that the respondent offered to settle the appellant’s claim for compensation under s 66 of the 1987 Act by paying her compensation for 17% WPI. That offer was not accepted and the appellant subsequently instituted proceedings in the Personal Injury Commission (Commission) seeking determination of her claim for compensation. Thereupon, the matter was referred to the Medical Assessor to assess several medical disputes, including the degree of the appellant’s permanent impairment from her injury and whether any proportion of her permanent impairment was due to a pre-existing condition and if so the extent of that proportion.
MEDICAL ASSESSMENT CERTIFICATE
The Medical Assessor examined the appellant on 21 November 2023 to conduct that assessment. In the MAC he issued on 6 December 2023, he certified that he assessed the degree of the appellant’s permanent impairment was 9% WPI, that the appellant had a pre-existing condition, specifically major depressive disorder with anxiety, that the pre-existing condition contributed to half of the appellant’s permanent impairment, and that the degree of the appellant’s permanent impairment from her psychological injury referred for assessment was 5% WPI.
The Medical Assessor provided the following summary of the appellant’s injury and his diagnosis of it:
“Ms Malazadeh [sic] was difficult to assess because she had a very specific way of relating her injury to her employment, which seems to be inconsistent with the other records on file, regarding pre-existing psychopathology, even not very long before the professor joined the department. The history from all of the reports, confirmed her work injury started after the professor joined the department.
There was evidence of problems relating to Ms Malezadeh's (sic) family, grief reaction, problems with her partnerships and relationship with people, and some of these problems appeared to date back to her early life, even in her school years.
In addition to her psychological injury, she has several physical health issues and she also developed unusual chronic pain, which are not assessable in the PIRS.
Overall, my view is that she suffered an aggravation of pre-existing Major depressive disorder, however, it is a simplistic conceptualisation of a complex psychiatric presentation.”
The Medical Assessor applied the criteria of chapter 11 of the Guidelines to assess the appellant’s permanent impairment from her injury. That required him to rate the seriousness of the effects of the appellant’s injury in six areas of activity and conduct which together is termed the Psychiatric Impairment Rating Scale (PIRS).
In her appeal against the MAC the appellant challenges that the Medical Assessor’s rating of her impairment in the PIRS for self-care and personal hygiene, travel, social functioning, and concentration, persistence and pace. The Medical Assessor rated the appellant’s impairment in each of those PIRS as Class 2. His reasons for his ratings were as follows:
Self care and personal hygiene
2
Ms Malezadeh's [sic] self-care has declined. She said her weight has been stable in 2023. She re-heats premade meals and orders things online. She showers without prompting. Ms Malezadeh's [sic] physical injuries and pain are not assessable in the PIRS. From a psychological perspective, she is capable of independent living.
Travel
2
Ms Malezadeh [sic] can go out on her own and she avoids crowded places.
Ms Malezadeh [sic] has poor walking tolerance and her physical injuries and pain are not assessable in the PIRS.
Social functioning
2
Ms Malezadeh's [sic] relationship with her last partner was problematic and distressed her. She ended that relationship and felt better.
She is anxious and socially avoidant, and ceased contact with all of her friends.
The relationship with her general family overseas is reasonable, but some relationships are strained due to non-psychiatric reasons and therefore, set aside from my assessment.
Concentration, persistence and pace
2
Ms Malezadeh [sic] reported major problems with her concentration.
I performed the same cognitive tests Dr Glen Smith performed. In my assessment, her cognitive testing are invalid and cannot be interpreted, and set aside. Her mental state examination is consistent with 1 or 2.
Relevant to the Medical Assessor’s rating of the appellant’s impairment in self-care and personal hygiene, the Medical Assessor also recorded under the subheading “social activities/ADL” in the MAC that the appellant had reported that she is in bed or on the couch every day because of pain and that NDIS support workers do her cooking and shopping. The Medical Assessor further recorded that the appellant had reported that she does not shower every day and that she feels pain when she lifts her hair dryer and that a support person assists her with washing her hair. The Medical Assessor said that he had regard to the history the appellant provided in her statements regarding her daily functioning. That was a reference to statements the appellant had signed on 31 October 2022 and 15 September 2023.
The Medical Assessor noted that Dr Smith had rated that the appellant’s impairment in self-care and personal hygiene as Class 3 and noted that Dr Smith’s explanation for his rating included that the appellant bathed daily but relied on a support worker from NDIS to prepare her meals. The Medical Assessor observed, when contrasting his rating with Dr Smith’s rating, that he had noted that the appellant showers on her own without prompting but needs assistance to wash her hair. The Medical Assessor further noted that the appellant wanted to have better self-care and personal hygiene, that she does not cook and can order food, that she heats premade meals to eat, and that she maintains a specific diet for irritable bowel syndrome.
The Medical Assessor noted that the appellant had said in her statement of 31 October 2022 that her meals were prepared by a NDIS support worker and that due to her having irritable bowel syndrome and digestive problem she maintained a specific diet. The Medical Assessor noted that the appellant heated up meals that had been prepared for her and eats those meals. The Medical Assessor also noted that the appellant used to mow her lawn with an electric mower but now relies on a NDIS support worker to do that for her. The Medical Assessor noted that the appellant said that she now shops online.
The Medical Assessor noted the appellant’s treating psychiatrist in a report dated 5 April 2022 said that the appellant had no physical limitations in functioning and that the appellant was claustrophobic in some items of clothing especially tight clothing and that her clothes remind her of work.
Relevant to the Medical Assessor’s rating of the appellant’s impairment in social functioning, the Medical Assessor recorded in the MAC that the appellant had reported that she had ceased several relationships because they were toxic. The Appeal Panel observes that the cessation of these relationships preceded the appointment by the respondent of its new chair in engineering whose interaction with the appellant precipitated the appellant’s injury.
The Medical Assessor also recorded that following the appellant's mother's death a rift developed between her and her sister because her sister did not wait for her to go to Iran to be at the burial of her mother. The Appeal Panel notes that the burial of the appellant’s mother, and the consequent rift with her sister, occurred prior to the respondent appointing its new chair of engineering.
The Medical Assessor recorded that the appellant has no family in Australia.
The Medical Assessor when comparing his assessment with the assessment Dr Smith had made, noted that Dr Smith had rated the appellant's impairment in social functioning as Class 3 and that Dr Smith had noted that the appellant had marked social isolation and was unable to develop relationships and has no friends. The Medical Assessor said that he found it difficult to clarify with the appellant her relationship and her problems with her partners, but said that “overall there's a pattern of relationship difficulties long before her work injury, and possibly from school age”.
The Medical Assessor noted that the appellant had a previous toxic relationship and following its termination had felt better. The Medical Assessor said that his view was that the appellant's “partnership problem is not related to the psychiatric injury”. The Medical Assessor also said that the appellant related well to her support worker, and that she still has some contact with some of her family oversees.
The Medical Assessor noted that the appellant has a reasonable relationship with her brother.
Relevant to the Medical Assessor’s rating of the appellant’s impairment in concentration, persistence and pace, the Medical Assessor noted that the appellant in one of her statements said that she experiences a brain fog and that she does not find it easy reading a book and struggles with audio books. The Medical Assessor recorded that he found from his clinical examination of the appellant, which was done by video, that the appellant exhibited no psycho motor slowing or abnormal movements. The Medical Assessor found the appellant spoke spontaneously and fluently and that her thoughts were not distorted. The Medical Assessor found that the appellant exhibited good cognitive ability and was attentive and that she remained focused throughout the assessment and maintained a steady pace.
The appellant in her appeal against the MAC also contends the deduction the Medical Assessor made under s 323(1) of the 1998 Act of 50% for the proportion of her permanent impairment that the Medical Assessor found was due to a pre-existing condition was excessive. Relevant to that issue, the Medical Assessor noted in the history he obtained that the appellant had seen a psychologist in 2015 following the end of a long distance relationship. The Medical Assessor also noted that the appellant's general practitioner in July 2018 had recorded the appellant had many psychological symptoms. The Medical Assessor noted that the appellant had completed a depression, anxiety and stress scale (DASS) which indicated that she had significant symptoms.
The Medical Assessor recorded that the appellant's general practitioner on 13 July 2018, which was before the new chair in engineering was appointed, had referred the appellant to a psychologist following the death of the appellant's mother and a relationship breakup two days prior to the referral. The Medical Assessor noted the appellant's general practitioner recorded that the appellant had been “depressed a lot since, fatigue, loss of energy every day, worthlessness, diminished ability to think or concentrate”. The Medical Assessor noted that a mental health care plan was completed on 13 July 2018 in which the appellant's “K 10 score” was recorded as 41/50.
The Medical Assessor recorded that the appellant's psychologist wrote to the appellant's general practitioner on 5 September 2018 noting that the appellant had depression and anxiety, distress from relationship discord with partner, and had recommended CBT, interpersonal therapy and communication analysis. The Medical Assessor noted that a further mental health care plan completed on 10 September 2018 recorded the appellant had depression and anxiety and panic attacks and that her K 10 score that was 31/50 and the appellant had symptoms present either some of the time or most of the time.
The Medical Assessor noted that the appellant’s general practitioner recorded the appellant had acute stress disorder in early 2019, and that the appellant had said, regarding that, that her general practitioner did not document things correctly.
The Medical Assessor noted the appellant psychologist had recorded on 14 January 2019 that the appellant had “10 sessions and noted a short-term dysfunctional relationship and symptoms exacerbated by constant disagreement and diagnosis of ASD”. The Medical Assessor noted that the psychologist recommended CBT, IPT, acceptance commitment therapy and schema therapy. The Medical Assessor commented that the appellant's psychologist's impression was that the appellant's relationship that had caused her psychological distress and that the ending of that relationship had helped her and that this was not caused by her psychological injury. The Medical Assessor also noted that schema therapy is designed to manage personality related difficulty, longstanding behavioural patterns, and was suggestive of longstanding pre-existing psychological difficulties.
The Medical Assessor recorded that the appellant’s general practitioner on 16 July 2019 had referred the appellant for grief counselling. The Medical Assessor noted that a further medical health care plan was completed on 16 July 2019 noting the appellant’s K 10 score was 30/50 with the appellant having depression and anxiety and grieving.
As mentioned earlier, the Medical Assessor identified the appellant had a pre-existing condition consistent with a major depressive disorder with anxiety. The Medical Assessor said that that pre-existing condition directly contributed to the appellant’s WPI in the following way:
“Ms Malezadeh's [sic] pre-existing condition contributed to her current impairment, because her pre-existing psychological symptoms before and after the subject psychological injury are very similar. I also noted her Kessler Psychological Distress Scale (K10) self-reported symptoms and scores are similar before and after the professor joined, but there has been a deterioration as a result of work stress. She had high K10 scores for a significant period of time before work stress commenced.”
The Medical Assessor explained that he considered the proportion of the appellant’s permanent impairment that was due to that pre-existing condition was a half. He said that a 1/10th deduction would be at odds with the evidence as that would suggest a small contribution from her pre-existing condition.
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 appellant to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for it to determine the appeal.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that there was additional relevant information available, being a NDIS application form that the appellant's general practitioner Dr Alex Skill had completed. The Appeal Panel observes this was dated 10 March 2022. The appellant submitted that neither Dr Smith nor did Dr Kumar had “discounted her pain as a reason to ignore the need for support workers under NDIS”, whereas the Medical Assessor had noted “pain is not accessible in the PIRS, but then appeared to discount her need for assistance from the NDIS because of pain symptoms”. The appellant submitted that “it now appears that the NDIS application is relevant”.
The appellant submitted that the Medical Assessor failed to consider adequately or at all the evidence she provided in her statements signed on 31 October 2022 and 15 September 2023. The appellant highlighted several paragraphs from her statements relating to her self-care and personal hygiene, travel, social functioning, and concentration, persistence and pace.
The appellant submitted that with respect to the Medical Assessor's rating of her impairment in self-care and personal hygiene, the Medical Assessor did not give appropriate weight to the evidence regarding her need for a NDIS support worker, her ability to prepare food, and the fluctuation in her weight since January 2021.
With respect to travel, the appellant submitted that the Medical Assessor did not give appropriate weight to her evidence regarding her need for a support worker to travel outside of her home.
With respect to social functioning, the appellant submitted that the Medical Assessor did not give appropriate weight to the evidence relating to her contact with her siblings.
With respect to the Medical Assessor rating of her impairment in concentration, persistence and pace, the appellant submitted that the Medical Assessor did not give appropriate weight to her evidence regarding her difficulty in concentration, reading and the fact that she only watches television shows with which she is familiar and forgets what she is doing halfway through a task.
The appellant also submitted, with respect to the Medical Assessor rating of impairment and concentration, persistence and pace, that the Medical Assessor did not explain why the cognitive tests the Medical Assessor performed were inconsistent and invalid. The appellant submitted that the Medical Assessor said that he excluded the results of those tests but then referred to them in the PIRS rating form.
The appellant submitted that the Medical Assessor provided inadequate reasons for his rating of her impairment in the PIRS for self-care and personal hygiene, travel, social functioning, and concentration, persistence and pace.
The appellant submitted that the Medical Assessor relied solely on the ending of and unrelated romantic relationship prior to her injury and her interpersonal conflict with her sister following the death of her mother as a basis upon which he made a deduction under s 323(1) of the 1998 Act. The appellant submitted that the Medical Assessor did not identify the evidence that considered was at odds with assuming, in accordance s 323(2), that the deductible portion for the purpose of s 323(1) was 1/10. The appellant submitted that the Medical Assessor consequently did not provide adequate reasons regarding this.
The appellant submitted that the Guidelines do not allow for cognitive assessments to be undertaken. The appellant submitted that the Medical Assessor “purports to not rely” on the cognitive testing he did. The appellant submitted that “there is little else that he relies in on [sic] assessing the appellant's concentration, persistence and pace category”. The appellant submitted that “the cognitive functioning test were procedurally unfair, and the result of same should not be relied on as it is not necessary to assess the appellant's mental condition”.
The appellant submitted that “the Medical Assessor’s focus on the appellant's previous relationships, in the absence of a complete assessment of all PIRS categories applicable to her prior to the claimed injury, was procedurally unfair and leads to a demonstrable error”.
In reply, the respondent submitted that the additional information on which the appellant seeks to rely to establish the ground for appeal provided in s 327(3)(b) of the 1998 Act is not qualitatively different from the information that was available to the Medical Assessor. The respondent submitted that that evidence, if before the Medical Assessor, would not have varied his opinion. The respondent submitted that the information was available and could reasonably have been obtained by the appellant before the medical assessment.
The respondent submitted that the Medical Assessor had regard to the appellant’s need for a NDIS worker. The respondent submitted that the Medical Assessor had regard to the appellant's evidence. The respondent submitted that the Medical Assessor was entitled to rate the appellant's impairment as Class 2 in the PIRS for self-care and personal hygiene.
The respondent submitted that the Medical Assessor, based on the evidence before him and the appellant's presentation upon assessment, was entitled to rate the appellant's impairment in travel as Class 2.
The respondent also submitted that based on the evidence before the Medical Assessor and the appellant's presentation at assessment, the Medical Assessor was also entitled to rate the impairment in social functioning as Class 2.
The respondent submitted that the history the Medical Assessor obtained at the time of assessment was consistent with a rating of Class 2 in concentration, persistence and pace.
The respondent submitted that the Medical Assessor was permitted to determine what weight he should give to the evidence before him, including the documents that related to the appellant's medical history and her symptoms.
The respondent submitted the Medical Accessor explained in depth the reasons for the deduction he made under s 323 and the deduction was supported by the appellant's medical records.
The respondent noted that the Medical Assessor “set aside” the cognitive testing. Consequently, there was no lack of procedural unfairness by him conducting cognitive tests.
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.
Additional relevant information
The “additional relevant information” that the appellant submitted has now become available, being the information within the NDIS application form, was available to the appellant and could reasonably have been obtained by her before the medical assessment certificate. This is because the date of the document is 10 March 2022. Consequently, the information within the document cannot substantiate the ground for appeal listed in s 327(3)(b) of the 1998 Act. Further, the Appeal Panel is unable to receive the document as “fresh evidence” under s 328(3) because that evidence was available to the appellant and could reasonably been obtained by her before the medical assessment was conducted.
Consequently, the ground for appeal that provided in s 327(3)(b) of the 1999 Act is not established.
Regard to the appellant’s evidence
The Appeal Panel rejects the appellant's submission that the Medical Assessor did not have regard or did not have adequate regard to the evidence she provided in her statements. It is clear from the MAC that the Medical Assessor did have regard to that evidence because he specifically mentions this evidence in the MAC. Further, the Appeal Panel considers that the Medical Assessor has composed his clinical history relating to the appellant by reference to that evidence. Again, this is because he has said so in the MAC. In the Appeal Panel's view what the Medical Assessor has done is detailed in the history in the MAC what was relevant from the evidence to the assessment he needed to make of the appellant's permanent impairment.
Self care and personal hygiene
The Appeal Panel considers that when the MAC is considered a whole, it is apparent the Medical Assessor had regard to all relevant matters when rating the appellant’s impairment in self-care and personal hygiene. This included that the appellant can shower and can heat meals that have been prepared for her. The Medical Assessor was aware that the appellant's weight had fluctuated since 2021 but when rating the appellant's impairment in self-care and personal hygiene, took account of the fact that her weight had been stable in 2023.
The Medical Assessor also took into account the history he obtained that the appellant showers without prompting.
In accordance with paragraph 11.5 of the Guidelines that the Medical Assessor was correct not to include in his rating any allowance for the appellant's pain. Hence, insofar as the Medical Assessor concluded that the appellant's need for a NDIS support was a consequence of pain from an organic impairment he was correct not to rate it when assessing the appellant's impairment relating to her psychological injury. The Medical Assessor explained that this is what he did when rating the appellant's impairment in self-care and personal hygiene. In other words, he had regard only to her dysfunction in this activity arising as a consequence of her psychological injury.
The Appeal Panel considers that the Medical Assessor has not omitted consideration of any relevant clinical matter. His reasoning for why he rated the appellant’s impairment Class 2 has been exposed in the MAC. The Appeal Panel considers that the Medical Assessor’s rating of the appellant's impairment as Class 2 and self-care and personal hygiene was open to him to make, and consequently the Appeal Panel considers there is no error in it.
Social functioning
Similarly, the Appeal Panel considers that the Medical Assessor has made no error with respect to his rating of the appellant's impairment in social functioning. He has had regard to the appellant's statement and again the history he obtained and detailed in the MAC was composed having regard to the appellant's statement.
The Medical Assessor took account of the fact that the appellant's strained relationship with her sister is not a consequence of her psychiatric injury.
The Appeal Panel considers that the Medical Assessor had regard to all matters relevant to rating the appellant's impairment in this PIRS and that he did not consider any irrelevant matter. His reasoning for his rating has been exposed. The Appeal Panel considers it was open to the Medical Assessor to rate the appellant’s impairment as Class 2, and consequently it discerns no error with it.
Concentration, persistence and pace
The Medical Assessor, although he conducted cognitive tests, did not use results of them when rating the appellant’s impairment in concentration, persistence and pace. That is clear because that is what he said in the MAC. He explained that he did not use the results of the test because they did not produce valid results. Given that the results of these tests played no part in his assessment of the appellant’s impairment, there can be no procedural unfairness to the appellant from the fact that the Medical Assessor conducted these tests.
The Medical Assessor's reasons for rating the appellant's impairment as Class 2 in concentration, persistence and pace are somewhat scant. That may be due to the appellant being an unreliable historian. Whatever be the case, it seems to the Appeal Panel that having regard to the findings the Medical Assessor recorded from his mental state examination of the appellant that a rating of Class 2 in concentration, persistence and pace is correct. The Medical Assessor recorded that over the 1 hour 10 minutes of his examination of the appellant, the appellant spoke spontaneously and fluently and did not exhibit any thought disorder and exhibited good cognitive ability and was attentive and remained focused throughout the examination and maintained a steady pace. Whilst the Medical Assessor recorded in the PIRS rating form that the appellant reported major problems with concentration, the appellant’s self report of this symptom is not a consistent with the Medical Assessor’s findings from his mental state examination of her. The Medical Assessor was entitled to rely on his clinical observations in preference to the appellant’s self-report of symptoms.
Hence, although the Medical Assessor’s reasoning for his assessment of the appellant’s impairment in concentration, persistence and pace was scant, the Appeal Panel considers that a Class 2 rating was nevertheless correct.
Travel
The Appeal Panel considers that the Medical Assessor did err with respect to his rating of the appellant's impairment in travel. What he described was, in substance, the appellant being unable to travel without a support person due to anxiety. That accords with a Class 3 rating.
Section 323
The Appeal Panel also considers that the Medical Assessor erred with respect to making a deduction of ½ under s 323(1) for the proportion of the appellant’s permanent impairment that was due to a pre-existing condition. The Appeal Panel considers that the Medical Assessor was correct to conclude the evidence establishes that the appellant had a pre-existing condition. That evidence is what the Medical Assessor disclosed in the MAC, specifically the content of the medical records that the Medical Assessor summarised.
That evidence revealed the appellant was experiencing symptoms from her pre-existing condition preceding the time from which she was exposed to stressors in her workplace that resulted in her work injury. Nevertheless, with the exception of her functioning in the social domain, she was performing well in all other elements of her functioning. She was working in a job which involved a high level of intellectual rigour. She was managing her self-care. She was travelling. She participated in social and recreational activities. Her workplace injury resulted in a substantial decomposition in her pre-existing condition such that she is now unable to travel outside of home without a support person and is unable to work.
In the Appeal Panel’s view, a 50% deduction under s 323(1) does not weigh properly the respective contributions to her current impairment of the appellant’s pre-existing condition and the decomposition she experienced upon suffering her workplace injury.
Nevertheless, the Appeal Panel considers, given the extent to which her pre-existing condition at the time of the appointment of the new chair engineering was affecting her capacity in the social domain, the degree to which her pre-existing condition contributes to her permanent impairment is now more than 10%. Her pre-existing condition is a substantial contributor to her current impairment but not the major contributor, such that the contribution it makes is greater than 10% but less than 50% in the Appeal Panel’s view. In the circumstances, the Appeal Panel considers that the correct deduction for the purpose of s 323(1) is 20%. The most significant contributor to her current impairment is her workplace injury.
The Appeal Panel notes that the appellant made a submission invoking AusGrid Management Pty Ltd v Fisk[1] as an authority. That case is not analogous to the current case. That matter involved a circumstance where the Commission had determined that the worker had suffered a secondary psychological injury and the only matter that was referred to the Medical Assessor to assess was the degree of permanent impairment from the appellant from a psychological injury. No such determination has been made in this case, and the referral to the Medical Assessor only related to a psychological injury. The Medical Assessor has indicated in the MAC that he has only assessed the appellant’s permanent impairment relating to a psychological injury and has not, in accordance with paragraph 11.5 of the Guidelines, assessed any impairment due to pain.
[1] [2023] NSWPICPMP237.
Criteria
The Medical Assessor has also applied the correct criteria to assess the appellant's degree of permanent impairment in that he has applied the criteria of Chapter 11 of the Guidelines and s 322 of the 1998 Act.
Outcome
As the Appeal Panel has found that the Medical Assessor did make two errors, that is rating the appellant’s permanent impairment in travel as Class 2 and making a deduction of 50% under s 323(1) of the 1998 Act, the Appeal Panel must correct those errors. It corrects those errors by rating the appellant's impairment in travel as Class 3 and making a deduction under s 323(1) of 20%.
That results in the median score of the appellant’s PIRS ratings increasing to Class 3 and her aggregate score increasing to 17, which correlates with 19% WPI. When a 20% deduction is made under s 323(1) for the proportion of the appellant's impairment that is due to her pre-existing depressive disorder with anxiety, 15% WPI is obtained. The Appeal Panel assesses the appellant's permanent impairment to be that.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 December 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7830/23 |
Applicant: | Mona Malekzadeh |
Respondent: | Southern Cross University |
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 WorkCover Guides | 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/ Psychological disorder | 31/01/2021 | 11 | - | 19% | 1/5 | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0