Mates Workforce Pty Ltd v Hassan

DETERMINATION OF APPEAL PANEL
CITATION:	Mates Workforce Pty Ltd v Hassan [2023] NSWPICMP 495
APPELLANT:	Mates Workforce Pty Ltd
RESPONDENT:	Abdul Hassan
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	5 October 2023
CATCHWORDS:	WORKERS COMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in respect of the manner in which he dealt with a secondary psychological injury; the Panel noted that the MA, based on the referral, determined impairment as a result of the primary psychological injury; although there had been no determination that the respondent sustained a secondary psychological condition, there was ample evidence that he also suffered from a secondary psychological condition; Ausgrid Management Pty Ltd v Fisk applied; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 June 2023 Mates Workforce Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 May 2023.
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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in respect of the manner in which he dealt with a secondary psychological injury.
In reply, Abdul Hassan (the respondent) submits that the Medical Assessor was required to deal with a discrete primary psychological injury, as determined by the Personal Injury Commission (Commission), independent of any consequences that may have arisen following the physical injuries he sustained, and that no errors were made.

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 respondent was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury occurring on a deemed date of injury of 23 August 2018.
The Medical Assessor obtained the following history:
“I assessed Mr Hassan over 3 sessions. The first time, there was a delay due to technical problems and the interpreter was only booked for 30 minutes. The second time, I assessed him for 1 hour 20 minutes but due to his unstable mental state and severe pain, the assessment could not proceed properly and I ended it before a full assessment can be completed. I assessed him again on 11/5/2023.
Mr Hassan has not done any work in Australia, except on the farm for Mates Workforce between 2017 and 2018, but could not remember how long he was there for. He performed general duties, planting, harvesting the produce and also packaging. On 23 August 2018, he reported that they had a crew of seven people, they took a buggy to go to the car park so that they could drive to the town to get food during a break. He was a passenger and said that everybody got off except for the driver, and then the boss called out to him to move the bin. This was in front of the buggy, and the driver suddenly drove into him, three or four times. He felt frightened and said he was about to die and believed that the driver was trying to kill him.
I asked Mr Hassan why the driver would try to kill him, and he explained that he is a hard worker and the boss and the boss' family liked him, and increased his pay, however, some of the workers were there longer and were jealous. They tried to talk to the boss to get rid of him. Even though he believes the driver tried to kill him, he has not initiated any legal action against the driver.
He was taken to Royal Prince Alfred hospital and suffered significant physical injuries with rib fractures, liver lacerations and he still has ongoing physical problems. He had injuries to the right side of his torso and said that apart from the ribs, he also has back pain which makes it very hard to sleep. His right knee is very painful, and he has problems breathing, and said he is fed up with the pain. He said he wished he could cut out the right side of his body and throw it away so he would not have pain, and that pain has been persisting for the last five years. When the weather gets cold the pain becomes worse. He keeps thinking "why should I still be living? I cannot even lift a one litre water bottle". Aside from problems with his upper limbs, he said he also has a problem with his legs and back. He cannot put pressure on the right leg at all and does not know how long he can walk or stand for.”
After setting out details of Mr Hassan’s treatment, the Medical Assessor then noted present symptoms as follows:
“Mr Hassan has many worrying thoughts, such as other people can work and make money, but he is young and he cannot work, he cannot support his family and rely on insurance payments, and being in pain all the time and he feels like there is no hope for him.
He reported having chronically depressed moods.
He said he lost weight as a result of his injury and does not know how much, or what his current weight is.
He has intermittent suicidal ideation and has never attempted suicide.
He has been irritable and said he would become quiet and withdrawn, and not talk.
He reported having sleep problems and described having pain during the night and having nightmares sometimes.
He cannot control his worrying thoughts.
He described concentration and memory difficulties affecting everyday activities.
He thinks and dreams about the driver who drove into him, and does not have true hallucination or psychotic symptoms.”
When asked to provide “Details of any previous or subsequent accidents, injuries or condition,” the Medical Assessor said:
“Mr Hassan reported in 2017, the Myanmar government was killing people, burning houses and setting fire to entire villages, and this was related to racial discrimination. His parents and siblings were in the village targeted and they fled to Bangladesh. His brother was shot in 2017 and survived. At that time, Mr Hassan was in Australia already and he had worrying thoughts about his family, he felt low in moods, and did not seek help and he has never attended STARTTS (Service for the Treatment and Rehabilitation of Torture and Trauma Survivors). There were no pervasive depressive symptoms or impairment, and no treatment. There was no specific psychiatric diagnosis. He was not exposed to direct trauma or threat.
No other psychological injury.
Background history:
He reported he was born in Myanmar and came to Australia in 2013 on a protection visa.
He does not have a family history of psychiatric illness.
There is no forensic history.
He does not drink alcohol and does not use recreational drugs.
Mr Hassan has never married.”
The Medical Assessor then set out details of the impact of his condition on his social activities and activities of daily living, and said:
“He said he does nothing all day. He was going to the mosque every day and now he only goes once a week, but this depends on the level of his pain. He said he cannot stand up for very long and even collapsed when he was in the mosque.
Mr Hassan has casual friends in Australia, but none of the friends are close friends. He goes to community events and said that there have been two events this year, but he only went to one of them, and this was after Ramadan, and they provided food to break the fast.
He used to play soccer, but he does not anymore because physically he cannot.
He said, mostly he does his own thing at home. He cooks his food, he goes to the shops and buys his groceries, he cannot lift anything with his right hand and relies on his left hand to carry his shopping.
He said he has a driver's licence in Australia, but he has never purchased a car and therefore does not drive. I asked Mr Hassan whether there is any problem going to new places or unfamiliar places, and he reported that he would struggle because of the language difficulty. For example, if he caught a taxi he would not know how to explain how to get to certain places. He went back to Bangladesh in December 2022, with a friend. He said the friend went with him because he has been there three or four times and knows how to get around and has good language skills. From a psychiatric perspective, there was no specific impairment with travelling. He said that the only time that he has been overseas after coming to Australia was in December 2022.
Mr Hassan has no family in Australia. He talks to his family, who are all in a refugee camp in Bangladesh, including his parents and 14 siblings.
He said that he was not in a relationship when the accident happened and he has never been married. In the last two or three years, he has a girlfriend in Bangladesh. They talk two or three times every day, and the only time he has seen her was when he went to Bangladesh in late 2022.
Mr Hassan goes to the Mosque and remains quiet and withdrawn. He said he cannot go sometimes, as he cannot stand up for long and pain is severe at times. He generally stays home in bed, or lay down. He does not have any meaningful activities day-to-day.”
Findings on mental state examination were reported as follows:
“Mr Hassan was assessed by video. He was at his solicitor’s office during the assessment. I assessed him from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the assessment.
Mr Siraaj Amin was the interpreter in all 3 assessments.
Mr Hassan had dark colour hair and a full beard. He was talkative and spoke beyond the point at times. He was in severe pain at times, particularly during my second assessment. He was moderately restricted in his affect range and presented as tired and lacked vigour. He spoke spontaneously. He was softly spoken without latency in his reply. He had a disorganized narrative and was not thought disordered.”
In summarising the injuries and diagnoses, the Medical Assessor said:
“My view is that Mr Hassan does not have a pre-existing injury. He described being stressed in the past when his family was directly threatened and did not have a specific diagnosis arising from that. After the incident in August 2018, he developed Posttraumatic stress disorder with chronic depression and anxiety symptoms. He also suffered from severe chronic pain, which impacted his mental health. He has had treatment and there has been no major improvement for a long time, and overall his condition is considered stabilised.”
As regards Mr Hassan’s consistency of presentation, Medical Assessor said: “I have found no inconsistency in Mr Hassan's presentation”.
The Medical Assessor assessed 15% WPI.
The Medical Assessor then turned to comment on the other medical opinions and findings submitted by the parties and said:
“Mr Hassan's statement noted he has no drug and alcohol problems, or other health issues. His view is the collision was intentional. He has had physical treatment and pain management, and had psychological treatment. He developed an Adjustment disorder with ongoing psychological symptoms listed, including panic attacks, concentration and memory problems.
Dr Ben Teoh IME psychiatrist reported on 31/8/2021, noted the history of the accident, his treatment and psychiatrist Dr So prescribed antidepressant medication, there was no past psychiatric history or personal stressors recorded. He diagnosed Adjustment disorder provided a PIRS 132 335, the final WPI was 19%.
Dr Yajuvendra Bisht, IME psychiatrist provided a report dated 2/6/2022, reported Mr Hassan has a history suggestive of Posttraumatic stress disorder, in the context of his own trauma in Myanmar and his family’s trauma, with hypervigilance and recollections. He fled from Myanmar in 2011 and had traumatic experiences there.
Dr Bisht provided a PIRS 22222, the final WPI was 6%. He deducted 1/10 for pre-existing injury and further deduction for secondary psychological injury.
Comment:
Dr Bisht rated social and recreational activities as 2 noted Mr Hassan attends social and recreational activities but does not state what these activities are. In my assessment, I noted he maintained his faith and attended the Mosque and cultural events, but does not attend any social and recreational activities, and I rated 3.
Both IMEs rated travel as 2, without providing evidence of impairment. Based on my assessment, I rated 1.
Dr Bisht rated concentration, persistence and pace as 2 and explained he can focus on watching TV. In my opinion, this is not an intellectually demanding task. I rated 3 based as he presented on the day of assessment.
Dr Bisht assessed employability as 2 and advised he could work as a cleaner at the Mosque. My view is he is highly anxious and would not be able to perform full-time work, his performance would be erratic, and similar to his general practitioner's assessment, I rated him as 4.
In terms of secondary psychological injury, this is a matter for the Commission to determine.
In terms of Section 323, I noted Mr Hassan has never had a formal psychiatric diagnosis or had treatment in the past. Dr Bisht has not provided a detailed history of trauma, or the specifics of his symptoms and how this fulfilled the Posttraumatic stress disorder diagnostic criteria in the past. There is no evidence that he developed a psychological injury previously or that his previous psychological experience changes the outcome or increase his overall impairment, therefore, my view is that there is no Section 323 deduction…”
The appellant submits that a deduction of at least 50% ought to apply for the impact of the respondent’s secondary psychological condition, reducing the assessment to 8% WPI (rounded) resulting from the primary psychological injury.
Section 65A(2) of the Workers Compensation Act 1987 (the 1987 Act) reads as follows:
“In an assessment of 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.”
The term “primary psychological injury” is defined in s 65A(5) to mean a psychological injury that is not a secondary psychological injury. The term “secondary psychological injury” is defined in that same sub-section to mean a psychological injury to the extent that it arises as a consequence of or secondary to a physical injury.
The appellant’s submissions may be summarised as follows:
(a)    The Medical Assessor’s comments about the appellant’s physical injuries such as “He used to play soccer, but he does not anymore because physically he cannot” indicate his view that the respondent’s psychological condition is affected by a secondary psychological injury as well as the primary psychological injury.
(b)    The Medical Assessor’s views with respect to the secondary psychological injury are ambiguous and ought to have been made clear in his assessment of the respondent’s permanent impairment.
(c)    The Medical Assessor was required to conduct his assessment of permanent impairment in accordance with s 65A of the 1987 Act and the Guidelines and failed to do so.
(d)    The decision of Mercy Connect Limited v Kiely (Keily no 2) [2018] NSWSC 1421 requires a two-step process when assessing permanent impairment which was not followed by the Medical Assessor.
(e)    The Medical Assessor failed to assess the secondary psychological condition and make an adjustment for any impairment resulting from that injury in accordance with s 65A (2) and Keily.
(f)    There was ample medical evidence which establishes the presence of a secondary psychological condition resulting from the physical injuries sustained on 23 August 2018. For example, the respondent told the Medical Assessor that “his right knee is very painful…he is fed up with the pain.” He said that “he wished he could cut out the right side of his body and throw it away so he would not have pain.” “Why should I still be living? I cannot even lift a one litre water bottle.”
(g)    Despite recording a history that the respondent continued to suffer significant pain relating to his physical injuries, the Medical Assessor refused to provide an opinion in relation to the effect of the secondary psychological condition on his permanent impairment assessment.
(h)    The Medical Assessor failed to consider Dr Bisht’s deduction of one-half because Dr Bisht correctly followed the process in Kiely.
(i)    In Arthur TzanerosDiscretionary Trust & Luke Webber Trust v Saofalieta [2003] NSWPICMP 214, the Appeal Panel concluded that the Medical Assessor had failed to exclude impairment resulting from a secondary psychological condition.
(j)    The same reasoning should be applied in this matter.
(k)    Section 325(2) provides that a Medical Assessor must provide reasons for their assessment. The Medical Assessor has not explained his actual path of reasoning in failing to make any adjustment to his assessment of permanent impairment as a result of the secondary psychological condition.
(l)    The Medical Assessor did not need to be directed by the Commission to consider whether a deduction ought to be made for the presence of the secondary psychological condition.
(m)     In light of the medical evidence detailing the significance of the respondent’s secondary psychological condition, a deduction of at least 50% ought to have been made.

The respondent submits as follows:
(a)    The Medical Assessor was not tasked with determining whether there is a secondary psychiatric injury. He rightly states that if it is so this would be a matter for the Commission.
(b)    There can therefore be no error complained of whatsoever in circumstances where the Medical Assessor has appropriately applied the law. If there was any suggestion of a secondary psychiatric injury it would be necessary for the respondent in the proceedings to have challenged the findings in the Commission, prior to any referral having been made.
(c)    There is no real suggestion that there is evidence of a secondary psychiatric condition in any event.
(d)    The appellant complains of the reference in the MAC “he also suffered from severe chronic pain, which impacted his mental health” as though this has some significance as an alternative diagnosis or secondary psychiatric condition. It is no such thing chronic pain in and of itself is merely a symptom not a condition of any kind.
(e)    This same error – confusing symptoms with the conditions – is repeated in each of the references which appear at paragraph 2.19 of the appellant’s submissions.
(f)    It is submitted that the Medical Assessor has done exactly what he is required to do under s 319 (c) of the 1998 act which is to assess the degree of permanent impairment as a result of an injury. It is further submitted that the Medical Assessor has had no regard to any impairment or symptoms resulting from a secondary psychiatric injury. This is entirely what he is required to do pursuant to s 65A (2) of the 1987 Act.
In short, the Medical Assessor was required to deal with a discrete primary psychological injury that arose out of his employment and which was independent of the physical injury which happened on 23 August 2018. The Medical Assessor discounted any stress Mr Hassan had about threats to his family, and specifically stated: “No other psychological injury.” Thus there was no basis to make a deduction under s 323.
The appellant’s submissions are misconstrued for reasons that follow.
The Panel acknowledges the requirements of s 65A (2) and the authorities to which the appellant has referred.
However, in this case, as the respondent correctly pointed out, the Medical Assessor was not tasked with determining whether there was a secondary psychological injury.
When the Medical Assessor said that, as regards any secondary psychological condition,” this is a matter for the Commission to determine” he was correct. He was only required to assess any impairment from the undisputed primary psychological injury following the injury on 23 August 2018. Conversely all Medical Assessor’s should ascertain if there is another psychological/psychiatric condition, whether arising from a co-occurring physical injury (and thus a secondary psychiatric injury) or another physical comorbidity and deal with this when determining the WPI arising from the primary psychiatric injury.
It is fair to say that there is certainly evidence to suggest that the respondent demonstrated symptoms and signs consistent with a secondary psychological condition as the appellant suggests.
However, the terms of the referral specifically stated:
“Date of Injury: 23/08/2018 (deemed).
Body part/s referred: Psychological/ Psychiatric disorder.”
There was no mention of any secondary psychological injury. The referral was in respect of the primary psychological injury that both parties agreed had occurred on the date described.
The appellant had ample opportunity to challenge the terms of the referral if it considered that an amendment ought to be made, such as requesting an opinion as to the nature and extent of any secondary psychological injury.
A similar situation arose in Ausgrid Management Pty Ltd v Fisk[2023] NSWPICMP 237 (Fisk). In that case, an arbitrator found that Mr Fisk sustained a secondary psychological condition as a result of an injury to his cervical spine. The Panel found that the respondent’s secondary psychological condition did not pre-exist the respondent’s primary psychological injury that another arbitrator found the respondent had suffered, that was also deemed to have happened on the same date of injury. The primary psychological injury occurred over the same time frame as the secondary psychological condition. The Panel said:
“Consequently s 323(1) of the 1998 Act is not engaged in this matter. The Medical Assessor therefore did not base his assessment on incorrect criteria by not applying s 323(1) nor did the Medical Assessor make an error by not applying s 323.”
The Panel said as follows:
“The requirement of s 65A(2) is that a Medical Assessor have no regard to the impairment or symptoms resulting from a secondary psychological injury when assessing the degree of permanent impairment from a primary psychological injury. Her Honour Harrison AsJ in obiter dicta propounded in Kiely a two-step process by which a Medical Assessor could comply with the requirements of s 65A(2) to have no regard to impairment or symptoms from a secondary psychological injury. The first step is to assess the overall degree of permanent impairment of a worker in accordance with clauses 11.11 and 11.12 of the Guidelines. The second step is to assess separately the worker’s permanent impairment due to the secondary psychological injury by reference to the same clauses and then deduct the latter from the former.
The requirement of s 65A(2) to have no regard to any impairment or symptoms from a secondary psychological injury is to be interpreted as impairment or symptoms that can be isolated to the secondary psychological injury. If it were otherwise, then in a case such as this, where the impairment and symptoms from the primary psychological injury and the secondary psychological injury are indivisible and cannot be disentangled, to disregard the impairment and symptoms from the secondary psychological injury would mean to disregard the impairment and symptoms from the primary psychological injury. It would mean that a worker could be assessed to have no degree of permanent impairment resulting from a primary psychological injury when in fact a worker did have a permanent impairment from that injury. It would be a perverse result and contrary to the beneficial purpose of the legislation and also contrary to one of the express objectives of the legislation that injured works receive payment for permanent impairment.
All of the matters the Medical Assessor detailed in the PIRS table that formed part of the MAC to rate the respondent’s impairment in the several PIRS categories can result entirely from his primary psychological injury, with the possible exception of not riding a push bike. The Medical Assessor explained that the respondent not being able to ride a push bike was a factor relevant to how he rated the respondent’s impairment in the category of Social or Recreational Activities. Were that factor to be disregarded, the rating would still be the same for this category and hence it makes no difference to the assessment of the respondent’s permanent impairment from his primary psychological injury.
As said the requirement of s 65A(2) is to disregard the symptoms and impairment from the respondent’s secondary psychological injury. As the Appeal Panel has also said, that does not require the Appeal Panel or a Medical Assessor to disregard those impairments and symptoms if they also result from the primary psychological injury. The section does not require a Medical Assessor or an Appeal Panel to make a deduction for the extent to which a separate injury contributes to a worker’s permanent impairment, but rather and to repeat, it requires a Medical Assessor or an Appeal Panel to disregard impairment and symptoms. The two are different things. The sub-section cannot be interpreted to disregard whatever impairment and symptoms a worker has that result from a primary psychological injury even though they may also result from a secondary psychological injury.”
We concur with the findings and comments made by the Panel in Fisk, as again in this case any secondary psychological condition did not pre-exist the respondent’s primary psychological injury, but happened on the same date of injury.
As in the present case, although there had been no determination that the respondent sustained a secondary psychological condition, there was, as we said, ample evidence that he also suffered from a secondary psychological condition.
The Medical Assessor, based on the referral, determined impairment as a result of the primary psychological injury.
In the PIRS rating table, the Medical Assessor’s assessments in each category are entirely consistent with the impairment arising solely from respondent’s primary psychological injury, even though, as in Fisk, some aspects of such impairment may also result from a secondary psychological injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 May 2023
should be confirmed.

[2023] NSWPICMP 495

5 October 2023