Mouhajer v The Star Entertainment Group Ltd
[2022] NSWPICMP 100
•2 May 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Mouhajer v The Star Entertainment Group Ltd [2022] NSWPICMP 100 |
| APPELLANT: | Kenaan Mouhajer |
| RESPONDENT: | The Star Entertainment Group Ltd |
| APPEAL PANEL: | Member John Wynyard Dr Douglas Andrews Dr Nicholas Glozier |
| DATE OF DECISION: | 2 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal seeking additional whole person impairment for the effects of treatment against an assessment of 13% regarding psychological claim; Held- Medical Assessor (MA) explicitly referred to the relevant guideline and explained his reasoning; MA under no obligation to ask the appellant the questions suggested in his submissions; Chan and Wingfoot considered; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 October 2021 Kenaan Mouhajer, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 28 September 2021.
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):
· the assessment was made on the basis of incorrect criteria,
· 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.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 16 June 2021 this matter was referred to the MA for an assessment of WPI caused by psychological/psychiatric disorder which occurred on 13 January 2020. Mr Mouhajer was employed as a security supervisor who suffered a psychiatric injury as a result of the circumstances in which he was working at the respondent’s premises.
The MA assessed a 13% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant sought to be re-examined by an MA who was a member of the Appeal Panel. However, as no demonstrable error has been established, the request is declined.
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 which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan) 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.
Mr Mouhajer raised one issue on appeal, that the MA fell into error when he made no adjustment pursuant to chapter 1.32 of the Guides for the effects of treatment:[1]
[1] Appeal papers p 24.
The MAC
The MA made the following observations regarding the history of the appellant’s condition:
“At this time [the time Mr Mouhajer left the Casino] Mr Mouhajer saw his GP, Dr Matter who referred him to a psychologist whom he has been seeing on a weekly to fortnightly basis since then. He said his GP commenced him on Pristiq medication. Mr Mouhajer said his GP referred him to a psychiatrist, Dr Chen whom he saw from June to December 2020 on a three-monthly basis. Dr Chen continued him on the Pristiq and the dose was increased to 150mg daily. He has also been prescribed Axit 15mg which he uses when he is very depressed; Melatonin 2mg and Prazosin 2mg at night if he needs help to sleep; and Propranolol 40mg if he feels a panic attack is about to occur.
Mr Mouhajer has continued to suffer with depression and anxiety symptoms. He said that he has attended Bankstown Hospital on three occasions with panic attacks including symptoms of chest pain, shortness of breath, heart racing, sweating and shaking. He has been diagnosed with anxiety attacks by the hospital staff. The last time he attended hospital was about three weeks ago.[2]”
[2] Appeal papers from p 24.
The MA described the appellant’s treatment and present symptoms as follows:[3]
“Present treatment:
Mr Mouhajer sees his psychologist by telehealth consultations every one or two weeks. He sees his GP Dr Matter about every three months. He takes the medications Pristiq 150mg in the morning. He takes Axit 15mg once a day if his depression is very severe. He takes Melatonin 2mg; Prazosin 2mg at night once or twice each week or fortnight to help with his sleep and Propranolol 40mg when required to help reduce panic symptoms.
Present symptoms:
Mr Mouhajer reports feeling depressed most of the time….He is frequently tearful…He reports having very poor sleep at night with frequent nightmares
relating to his work experiences at Star Casino. He feels hopeless and that life is not worth living…He reports feeling frequently restless and has had severe panic attacks which have required him to be assessed at hospital on three occasions.”
[3] Appeal papers p 26.
The MA explained his reasoning in the following terms: [4]
“I have given Mr Mouhajer a whole person impairment rating of 13% according to the PIRS rating form. I have not made an adjustment for the effects of treatment as in my opinion there has been no apparent substantial or total elimination of Mr Mouhajer’s level of permanent impairment as a result of his long term psychiatric and psychological treatment.[5]
Despite stopping work and having continuing psychological therapy and antidepressant medication, his condition remains clinically significant.”
[4] Appeal papers pp 26-27.
[5] Appeal papers p 28.
In considering the opinion of Dr Oldtree Clark, the appellant’s qualified expert psychiatrist, the MA said:[6]
“Dr Clark made a 1% adjustment for the effects of treatment which I have not done as I believe there has been no apparent total or substantial elimination of Mr Mouhajer’s permanent impairment as a result of his long-term treatment.”
SUBMISSIONS
[6] Appeal papers p 28.
The appellant
The appellant submitted that it was critical that the MA had diagnosed Mr Mouhajer with a major depressive disorder with anxious distress. The findings by the MA would result, it was submitted, in a presumption that the medication Axit assisted Mr Mouhajer when he has severe depression, and that the medication Propranolol assists him when he suffers a panic attack. Criticism was made of the MA that he made no other comment about the effectiveness or otherwise of this medication.
It was submitted that the MA did not indicate that he had asked the appellant regarding his views on the effectiveness of the medication bearing in mind that the appellant took Pristiq and other treatments in the successful treatment a previous episode of depression in 2017, so that “it must be assumed” that the medication and treatment “generally” was effective.
Mr Mouhajer’s capacity to organise and drive trucks was evidence, it was submitted, of improvement in his condition due to treatment.
The appellant submitted that “there was simply no foundation” for the finding by the MA that there should be no adjustment for the effects of treatment. We were referred to Makita v Sprowles[7] in support of the appellant’s contention that the MA had given “an unreasoned conclusion.”
[7] [2001] NSWCA 305.
It was submitted that the MA was obliged to consider the matter in more detail, particularly as to the appellant’s perception about the effectiveness of the medication, as to why he took the medication “if it is of no benefit”, and as to what happened if he had ever stopped taking medication. The issues were advanced by way of rhetorical questions, the last of which was:
“Why is it not at such a level as to be ‘substantial’ elimination of the permanent impairment.”
We were referred to an opinion of Dr Oldtree Clark on 16 September 2020 in which Dr Oldtree Clarke allowed a 1% adjustment pursuant to the guideline. Dr Oldtree Clark was the appellant’s medico-legal specialist.
We were also referred to the opinion of Dr Whetton of 29 June 2020, which the appellant speculated could be interpreted to support an opinion that “treatment would provide substantial remission.” We would note that Dr Whetton was talking about a future event which has clearly not eventuated.
We were also referred to a report from Dr George of 19 December 2020 who did not make any comment on treatment effect.
We were also referred to a report from Dr Mattick of 18 December 2020. It was submitted that “it appears” that there was improvement in the appellant’s state as he was having less nightmares.
The respondent
The respondent referred to chapter 1.32 of the Guides and to chapter 11.8 of the Guides, both of which were concerned with how an MA is to assess the effects of treatment.
The respondent submitted that the MA had considered the issue of the effective treatment in detail, noting that the appellant had been admitted to hospital with relevant symptoms only three weeks prior to the assessment.
The respondent submitted that even on the appellant’s own description of his symptoms, which continued to be present and clinically significant, it could not be said that the appellant’s treatment qualified for any adjustment pursuant to chapter 1.32 of the Guides.
We were referred to dicta from Merza v Registrar of WCC[8] and Pitsonis v Registrar Workers Compensation Commission[9] as to the definition of a demonstrable error.
[8] [2006] incorrect citation.
[9] (2008) NSWCA 88 – improperly cited – the case is entitled Marina Pitsonis.
DISCUSSION
Chapter 1.32 of the Guides provides relevantly:
“1.32 Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values.”
Chapter 11.8 of the Guides states:
“Effects of treatment
11.8 Consider the effects of medication, treatment and rehabilitation to date. Is the condition stable? Is treatment likely to change? Are symptoms likely to improve? If the injured worker declines treatment, this should not affect the estimate of permanent impairment. The psychiatrist may make a comment in the report about the likely effect of treatment or the reasons for refusal of treatment.”
It can be seen that the operative guideline is chapter 1.32, which requires that the treatment result in “apparent substantial or total elimination of the claimant’s permanent impairment.”
We note the appellant’s submissions to the effect that the MA ought to have asked Mr Mouhajer certain questions, and note that the appellant was unable to cite any authority for the proposition that such an obligation existed. We have cited Vegan at the outset of these reasons, and the requirement therein discussed of the obligation by an MA to give reasons.
It was not submitted, nor could it be, that the MA had failed to give adequate reasons, as he addressed the issue in terms, and explained clearly why he did not give any added WPI. To repeat, he said:
“...I have not made an adjustment for the effects of treatment as in my opinion there has been no apparent substantial or total elimination of Mr Mouhajer’s level of permanent impairment as a result of his long term psychiatric and psychological treatment.”
The appellant was thus left with the challenges that the MA had ignored the advice by Dr Oldtree-Clarke that a 1% allowance was appropriate, and that the rhetorical questions the appellant asked should have been put to him by the MA. Both challenges are not maintainable in the face of the dicta of Adams J in Western Sydney Local Health District v Chan.[10]At [13] His Honour cited the High Court decision of Wingfoot Australia Partners Pty Ltd v Kocak[11]:
“In Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, the High Court considered the task of a Medical Panel responsible for determining a medical dispute pursuant to s 68 of the Accident Compensation Act 1985 (Vic). The Medical Panel’s task in that case is analogous to the role of the AMS under the Act, insofar as both are responsible for determining medical disputes by forming medical opinions based on their own inquiries as well as reports provided by both parties to the dispute. The Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) held that –
‘[47] The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions [cf Masters v McCubbery [1995] VICSC 209;[1996] 1 VR 635 at 645]. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
[48] The reasons that s 68(2) of the [Accident Compensation] Act obliged the Medical Panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the Medical Panel to form the opinion that the Medical Panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself.’
This, the first defendant contends, supports the proposition that an AMS need not deal with in his or her reasons all the material that was made available. Rather, the task is to set out the reasoning process based on his or her own medical expertise and observations. This was the approach taken by Dr Parmegiani, thus the decision of the Appeal Panel to uphold his report for a lack of ‘demonstrable error’ as not illogical or irrational.”
[10] [2015] NSWSC 1968.
[11] [2013] HCA 43.
The path of reasoning by the MA was clear, and his explanation was devoid of any ambiguity. We concur with his reasoning that Mr Mouhajer has not shown any apparent substantial or total elimination of his level of permanent impairment, which is the qualifying test for this entitlement. The appellant did not engage with this requirement and the appeal is accordingly dismissed.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 September 2021 should be confirmed.
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