Mekhayl v Sunshade Shutters & Blinds Pty Ltd
[2024] NSWPICMP 412
•25 June 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mekhayl v Sunshade Shutters & Blinds Pty Ltd [2024] NSWPICMP 412 |
| APPELLANT: | Mark Mekhayl |
| RESPONDENT: | Sunshade Shutters & Blinds Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | Ash Takyar |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| DATE OF DECISION: | 25 June 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; application of section 323; worker had history of substance use disorder and anxiety disorder; worker was being prescribed an antidepressant prior to work injury that was modified after injury; Matthew Hall Pty Ltd v Smart applied; whether Medical Assessor provided sufficient reasons; Held – no demonstrable error; worker suffered from previous conditions; section 323 appropriately applied; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 February 2024, Mark Mekhayl, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Steven Yeates, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 April 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):
· 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.
It is not clear what additional relevant information is being relied upon by the appellant. That ground has been relied on in form, but no submissions are attached addressing that point. It may be that a chronology prepared as part of submissions is intended to be lodged as additional information, as that has been addressed in the respondent’s submissions.
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, 4th ed
1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
Mr Mekhayl worked for his brother’s company, Sunshade Shutters & Blinds Pty Ltd (the respondent) in a role as a business development consultant. The business sold blinds and window shade products, and Mr Mekhayl’s responsibility was in sales, servicing potential and actual customers. Mr Mekhayl was ultimately offered a position with another company. He informed his brother who proceeded to wind up the business despite a large number of outstanding orders that were unfulfilled.
Dissatisfied customers began reaching out to Mr Mekhayl when they were unable to contact his brother. He was accused of being complicit in a scam and threats were made against him, his children, and his other siblings. This caused great distress, ultimately leading Mr Mekhayl to contact his general practitioner, which led to a claim being made for psychological injury.
Mr Mekhayl’s claim proceeded through the usual claims pathway, ultimately being referred to the Personal Injury Commission (Commission) for dispute resolution and the issue of the MAC currently under appeal.
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 sought and there was sufficient material to determine the issue raised on appeal.
Fresh evidence
As indicated above, the appellant, on completing the Application to Appeal form, indicated that they sought leave to rely on additional relevant information. No such evidence was attached to the Application to Appeal. The only possible material that could be considered as such is a brief chronology at [30] of the appellant’s submissions.
The respondent objects to the inclusion of the chronology on the basis that it has little relevance to the issues on appeal and fails to include relevant material. The Appeal Panel is of the view that the chronology does not constitute additional relevant information, but rather refers to material that is available before the Appeal Panel and that can be considered based on the original sources. The Appeal Panel has closely considered the material that was available before the Medical Assessor, including the clinical record referred to by the respondent at [22] of their submissions.
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.
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. They are not repeated in full, but have been considered by the Appeal Panel.
The issue on appeal is constrained to the deduction made by the Medical Assessor pursuant to s 323 of the 1998 Act.
In summary, the appellant submits that the Medical Assessor erred by determining that there was evidence of impairment related to pre-existing substance misuse. The appellant submits that the path of reasoning adopted by the Medical Assessor to conclude that there were pre-existing psychological symptoms was absent. Mr Mekhayl had no problem before his work injury.
The appellant submits that to infer any impairment from transient symptoms is not appropriate when determining whether a pre-existing condition contributed to the current degree of impairment. The appellant submits that there is no evidence that any previous stresses can be regarded as permanent or definitively seen to contribute to the current impairment, and that any such assertion is mere speculation. The current impairment entirely overwhelms any pre-existing symptoms or propensities to particular behaviours observed in a different context and in different circumstances.
In reply, the respondent submits that there has been no demonstrable error or incorrect criteria and the MAC should be confirmed. The material provided in the proceedings provided a basis for the Medical Assessor to reach the findings and support the conclusions made in the MAC. The reasons provided an adequate path for the deduction made and is evident from the material commented by the Medical Assessor.
The respondent submits that the Medical Assessor appropriately applied s 323 of the 1998 Act and the assessment was not made on the basis of incorrect criteria.
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. The appeal concerns the application of s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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 appellant challenges the Medical Assessor’s conclusion in respect of s 323 of the 1998 Act. The Medical Assessor made a deduction of one tenth for pre-existing condition. The appellant’s submissions, although not particularised with great specificity, appear to allege error in the following ways:
(a) there was no or insufficient evidence of impairment due to pre-existing condition;
(b) the Medical Assessor has not provided sufficient reasons for the conclusion reached;
(c) there is no evidence that the previous stresses were permanent or definitively contribute to the current degree of impairment, and
(d) the work condition overwhelms any pre-existing symptoms.
Both parties have referred to relevant case law including in relation to the definition of incorrect criteria and demonstrable error. There is no issue as to the meaning of those terms, which are undefined in the legislation. The parties have also referred to relevant authorities on the interpretation of s 323 of the 1998 Act, including Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq) [2013] NSWSC 365 (Elcheikh) and Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 (Smart).
Elcheikh, with reference to Cole v Wenaline Pty Ltd [2010] NSWSC 78 (Cole), set out three steps for determining whether a deduction should be made pursuant to s 323 of the 1998 Act. The first is to determine the extent of impairment following the work injury. The second is to determine whether a proportion of that impairment is due to a previous injury, or pre-existing condition or abnormality. The final step is to determine the extent or proportion of that contribution.
Justice Campbell, in Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder) summarises the application of the section:
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.” (at [54])
The Medical Assessor made a deduction of one tenth. There are various reasons throughout the MAC for that deduction, including the evidentiary basis for making it. The specific reasoning adopted by the Medical Assessor appears on pages 6 and 7 of the MAC. The Medical Assessor identifies two relevant previous injuries or pre-existing conditions: (i) pre-existing anxiety and depression symptoms and (ii) pre-existing substance misuse, including cocaine dependence. The Medical Assessor then determined that the identified conditions contributed to impairment in the following ways:
“(i) There is evidence of impairment related to pre-injury substance misuse, such as strained relationships and financial consequences, which is coherently connected to pre-injury underlying emotional symptoms such as anxiety and low mood. These symptoms are also documented in the provided medical records.
(ii) It is probable and based on the facts provided that there were pre-existing psychological symptoms which need to be accounted for in calculating the whole person impairment.”
The Medical Assessor proceeded to determine that the deduction was difficult or costly to determine and applied the assumption in s 323(2) of the 1998 Act.
The Medical Assessor’s consideration of the previous history of psychological issues is not confined to that part of the MAC. The specifics of the pre-existing anxiety disorder and substance misuse disorder are identified on page 5 of the MAC:
“There is clear evidence of a pre-existing anxiety disorder and substance misuse in the form of history and medical records. There are multiple consultations for psychological symptoms predating the injury which indicate that there were some pre-existing psychological symptoms. There is a clear history (given by Mr Mekhayl) of a pre-injury cocaine dependence in 2015 and regular cannabis use prior to that. However, these conditions did not lead to hospitalisation, psychotropic administration or lead to major functional impairment. However, it is reasonable to deduct a proportion because the pre-existing psychological symptoms are non-zero.”
The Medical Assessor also refers to previous consultations for mental health and emotional complains, a mental health care plan (albeit unutilised), and a history of five-year regular cocaine use, causing financial and relationship distress.
Pursuant to the authorities referred to above, the appropriate steps to be taken by the Medical Assessor, when applying s 323, are as follows:
(a) determine the extent of the existing impairment – in the present case, the Medical Assessor has done this, by first assessing 13% under the psychiatric impairment rating scales (PIRS), then adding 2% for the effect of treatment, for a total current whole person impairment of 15%;
(b) determine whether any proportion of that impairment is due to a pre-existing injury or condition or abnormality – here the Medical Assessor has identified two specific pre-existing conditions, being anxiety and depression symptoms and substance misuse, and
(c) determine the extent of that contribution – here the Medical Assessor has determined one tenth contribution, and the submissions do not take issue with that conclusion.
There are a number of issues the appellant has raised with regards to the above. The first is whether there is sufficient evidence to conclude that there was one or more pre-existing conditions contributing to the current impairment.
The Appeal Panel is satisfied that there is sufficient evidence that the appellant was suffering from relevant pre-existing conditions prior to his work injury. They have been identified by the Medical Assessor as anxiety and depression symptoms and substance misuse. The analysis of the evidentiary basis for the Medical Assessor’s conclusion in relation to previous conditions is set out on page 3 of the MAC:
“Mr Mekhayl has several documented periods of complaint for emotional and drug-related issues. There is a clear history from GP records and other expert reports of numerous visits for low mood and substance use issues that predate workplace injury. This includes substance misuse before 2013. A complaint of anxiety was raised in October 2013 as a cannabis dependence. Mr Mekhayl was presented for a GP consultation with cannabis dependence. There were several counselling consultations in 2014 and 2015 for various mental health and emotional complaints. A mental health care plan dated 5th October 2013 was given, but Mr Mekhayl did not utilise it. The mental state highlighted anxious distress and substance issues.
Mr Mekhayl gave a history of lifetime adult cannabis use, including in the present under medicinal cannabis prescription. His period of drug dependence on cocaine was 40 days in 2015. He consulted his GP for assistance with abstinence but managed to self-cease cocaine use. His cocaine use developed from weekend recreational use to daily use without occupational impairment. Mr Mekhayl experimented with but was never dependent on MDMA and other amphetamines. He has never injected drugs. He was never admitted for rehabilitation nor received pharmacotherapy for addiction or abstinence (e.g. anticraving medications or to treat withdrawal). There is documented regular cocaine use for five years, leading to financial and relationship stress.”
The Medical Assessor identifies the existence of diagnosed pre-existing conditions of cannabis and cocaine dependencies (fulfilling the criteria for substance use disorder). The Appeal Panel acknowledges the appellant’s submission that the identification of “numerous visits for low mood” and “pre-existing symptoms” do not in and of themselves identify an actual pre-existing disorder. However, when the MAC is read as a whole the Medical Assessor does identify such a condition, provided on page 5 of the MAC: “a pre-existing anxiety disorder”.
The appellant submits that there is no evidence that the previous stresses can be regarded as permanent or definitively seen to contribute to the current impairment, and that such a conclusion is speculation. This submission is both inconsistent with s 323 of the 1998 Act (and the case law interpreting it), and the evidence available before the Medical Assessor. There is no requirement in s 323 for there to be a “degree of permanence” in previous symptomatology due to a pre-existing condition to allow a deduction to be made. What is required is that there be a pre-existing condition and that condition contribute to the current impairment rated by the Medical Assessor. There are many circumstances where an asymptomatic condition may be contributing to impairment. In Smart it was held that “it does not matter that the pre-existing condition was asymptomatic”. That case concerned s 68A of the Workers Compensation Act 1987 which is in equivalent terms to the present s 323 of the 1998 Act. Smart has been applied to s 323, including in Cole.
In addition to the submission being inconsistent with the law, and thus unable to be accepted by the Appeal Panel, it is inconsistent with the medical evidence available that was before the Medical Assessor.
Mr Mekhayl suffered a psychological injury on 13 May 2022. As the appellant points out in the chronology provided as part of submissions, the symptoms reached their “nadir” in May of 2022, and the injury occurred after he informed his brother that he was leaving that month.
In a clinical note dated 14 July 2021, Mr Mekhayl attended his general practitioner Dr Soheyl Aran. It is recorded that “He does feel anxious. Poor Sleep. Does feel depressed. Not suicidal. It is an issue in the last 4/12”. At that time, Mr Mekhayl was prescribed Lexapro 10mg Tablet (Escitalopram Oxalate) 1 Daily, an antidepressant. His pre-existing anxiety condition at that time was severe enough to warrant medication, and reflected a clinically significant worsening of the sleep disturbance and depressive symptoms he presented with in November 2020.
The next record in the clinical notes is from 13 May 2022. That records “very depressed for the last 6 months”. Under the heading “actions” it is recorded “Lexapro 10mg Tablet ceased… New RX added: Zolof 50mg Tablet (Sertraline Hydrochloride) 1 Daily”. The crux of these two clinical records is that Mr Mekhayl was being prescribed Lexapro from 14 July 2021, prior to the date of injury and prior to the “nadir” of symptoms, until 13 May 2022, when that prescription was ceased and Mr Mekhayl was prescribed Zoloft.
This is evidence that Mr Mekhayl not only had a pre-existing condition prior to the work injury, that condition was sufficiently symptomatic to require the use of pharmacological intervention, which only ceased (by being a switch to a different antidepressant of the same chemical class) following the work injury. This condition constitutes the anxiety disorder / “pre-existing anxiety and depression symptoms” referred to in the MAC, which the Medical Assessor concluded “need to be accounted for in calculating the whole person impairment”.
In addition to the above is the appellant’s five-year history of cocaine use, sufficient to provide a diagnosis of a cocaine use disorder, which the Medical Assessor was of the view contributed to the current degree of impairment.
The appellant submits that the Medical Assessor failed to articulate a clear path of reasoning that might justify the presence of a pre-existing impairment. Reasons of Medical Assessor do not need to be extensive, but must be sufficient to enable a court to determine whether or not it involves an error of law (Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43). The Medical Assessor’s reasons are clear, when read as a whole and fairly. The Medical Assessor has identified two pre-existing conditions. These conditions are clearly identified in the medical evidence available before him. The Medical Assessor has explained the conditions he has relied on in making a deduction pursuant to s 323 and the reasons why those conditions contribute to the appellant’s present degree of permanent impairment. The Appeal Panel agree. Many of the symptoms and the impairment arising from the work injury are similar to those the appellant experienced prior to that injury. Those pre-existing symptoms arising from the pre-existing anxiety disorder and substance use disorder contribute to the impairment arising from the work injury.
The appellant’s final submission is that the current impairment entirely overwhelms any pre-existing symptoms. That conclusion was not reached by the Medical Assessor and given the ongoing issues Mr Mekhayl suffered with prior to his work injury, involving a prescription of Lexapro in July of 2021 until the injury, would have been a conclusion inconsistent with the evidence. Further, this construction suggest in submissions is inconsistent with the operation of s 323 of the 1998 Act, which requires consideration of the extent to which pre-existing conditions contribute to the current impairment. The Appeal Panel does not accept the appellant’s submission that in essence there were pre-existing conditions, but they did not contribute to impairment. The Medical Assessor has explained how they contribute, and the Appeal Panel agrees with that conclusion, which was open on the evidence. A history of anxiety and depression involving a prescription of Lexapro would undoubtedly have contributed to the current degree of impairment by making it worse. In circumstances where that contribution would be difficult or costly to determine, a deduction of one tenth, as made by the Medical Assessor was appropriate.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 April 2024 should be confirmed.
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