Mates Workforce Pty Ltd v Hassan - [2023] NSWPICMP 495

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWPICMP 495
Decision Date: 5 October 2023

CaseChat Overview and Summary

Mates Workforce Pty Ltd has appealed against a decision of the Workers’ Compensation Notional Panel, which affirmed a decision of the Workers’ Compensation Commissioner. The dispute revolves around the extent of Mr Hassan’s psychological injuries, specifically whether they were primary or secondary, and the impact of these injuries on his ability to work. Mr Hassan had sustained a primary psychological injury as a result of a workplace incident. The parties were in agreement that the Medical Assessor (MA) had correctly determined the impairment resulting from the primary psychological injury. However, the appellant contested the MA's handling of Mr Hassan's secondary psychological injury, asserting that there was no evidence to support such a condition.

The primary legal issue was whether the MA had erred in concluding that Mr Hassan suffered from a secondary psychological injury. The MA had determined that, while there had been no formal diagnosis of a secondary psychological condition, there was substantial evidence that Mr Hassan also experienced such an injury. This was based on Mr Hassan's account of witnessing violence and discrimination against his family in Myanmar, which had occurred prior to his arrival in Australia. The appellant argued that Mr Hassan had not been directly exposed to the traumatic events in Myanmar and, therefore, could not have sustained a secondary psychological injury. The court needed to determine whether the MA's conclusion was supported by the evidence and whether the secondary psychological injury was a compensable condition.

The court considered the evidence presented by Mr Hassan and the MA's analysis. The MA had noted that although there had been no formal psychiatric diagnosis of a secondary psychological condition, the evidence indicated that Mr Hassan had been deeply affected by the traumatic events he had witnessed and heard about concerning his family in Myanmar. The court applied the principles established in Ausgrid Management Pty Ltd v Fisk, which held that a secondary psychological injury can be established even in the absence of a formal psychiatric diagnosis, provided there is sufficient evidence of the impact of the traumatic events on the individual. The court found that the MA had correctly concluded that Mr Hassan had suffered from a secondary psychological injury, which was a result of the trauma he had experienced and witnessed prior to his arrival in Australia. The court affirmed the decision of the Workers’ Compensation Notional Panel, which had upheld the MA's assessment and confirmed the Medical Assessment Certificate.

The court's decision upheld the Workers’ Compensation Notional Panel's affirmation of the Workers’ Compensation Commissioner's decision. The Medical Assessment Certificate was confirmed, recognising Mr Hassan's primary and secondary psychological injuries. The appeal was dismissed, and the original decision was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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