Qantas Airways Limited v Kelly

[2023] NSWPICMP 494

DETERMINATION OF APPEAL PANEL
CITATION:	Qantas Airways Limited v Kelly [2023] NSWPICMP 494
APPELLANT:	Qantas Airways Limited
RESPONDENT:	Mark Leslie Kelly
APPEAL PANEL
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	5 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Appeal from assessment of whole person impairment in respect of a primary psychological injury; whether assessor erred in assessing the psychiatric impairment rating scales in self-care and personal hygiene, social and recreational activities or social functioning; whether he erred in failing to make a deduction for the effects of a pre-existing secondary psychological injury or condition; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. The appellant employer, Qantas, appeals from the Medical Assessment Certificate of Medical Assessor Takyar dated 6 April 2023. He examined Mr Kelly on 21 March 2023, and assessed a 24% whole person impairment (psychological) as a result of injury on
   22 May 2019 (deemed date).

2. He assessed three of the psychiatric impairment rating scales (PIRS) as follows:

   (a)    Self care and personal hygiene:               Class 3 impairment;

   (b)    Social and recreational activities:             Class 3 impairment, and

   (c)    Social functioning:  Class 3 impairment.

3. Qantas submits that the assessment of these three scales demonstrates error and the application of incorrect criteria. it says that in each case the evidence supports a class 2 impairment.

4. It also submits that the Medical Assessor erred in failing to make a deduction for a pre-existing psychiatric condition pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998.

5. The Appeal Panel conducted a preliminary review of the Medical Assessor’s medical assessment in the absence of the parties and in accordance with the Guidelines.

Submissions

1. The parties made written submissions which have been taken into account. It is unnecessary to repeat them in full. The appellant’s submissions may be summarised briefly as follows:

   (a)    In respect of Self care and personal hygiene, the respondent worker is ‘more accurately assessed under Class 2’, as:

   (i)he is capable of living independently, and has done so for 18 years;

   (ii)he is able to maintain a minimum level of hygiene and nutrition, and

   (iii)he ‘does not make any mention of … missing meals or requiring assistance or prompting from family members or community nurses’.

   (b)    In respect of Social functioning, the worker ‘more appropriately fits the class 2 category’, because:

   (i)he walks his dog daily;

   (ii)he speaks to a close friend weekly by phone, and

   (iii)he is able to go out alone without a support person, including to shops.

   (c)    In respect of Social and recreational activities, ‘the MA should have assessed a class 2 on the basis that’:

   (i)the worker is able to maintain a relationship with his niece whom he sees weekly, and other acquaintances, even if he has lost some friendships;

   (ii)he says hello to people when walking down the street, and

   (iii)his not being in a relationship since the injury does not support a class 2 impairment because he has been celibate for 31 years. We interpret that submission to mean since before the deemed date of injury, and before the onset of psychological symptoms following injury to his neck in 1997.

   (d)    A deduction for a pre-existing condition was warranted because:

   (i)‘his psychological symptoms commenced following a neck injury (to the cervical spine …) in December 1997’,

   (ii)he was taking antidepressant medication and anxiety medication when seen by treating neurosurgeon Mr Davies on or about 13 March 2001;

   (iii)in reports dated 5 August 2003 and 19 September 2005, treating GP
   Dr Chung expressed the view that psychological symptoms resulted or may have resulted from injury to his neck in 1997;

   (iv)he was diagnosed with chronic pain and depression as early as
   3 February 2006 by Dr Chung in his referral to Dr Morgan, and

   (v)on 20 April 2007, treating pain physician Dr Gorman expressed the view that his deconditioning and anxiety was associated with soft tissue injuries to the cervical spine and shoulder.

   (e)    The failure to make a deduction amounted to error, because:

   (i)on the evidence, the worker suffered a secondary psychological injury as a result of injury to neck in 1997;

   (ii)that condition pre-existed injury on 22 May 2019 (deemed date);

   (iii)the Medical Assessor failed to consider the issue of a pre-existing condition, and the material which supported it, and

   (iv)he failed to give reasons for not making a deduction.

2. The respondent submits in brief summary as follows:

   (a)    In respect of each of the three rating scales:

   (i)the appellant submits that a class 2 impairment was more appropriate than class 3 as assessed. That does not amount to an allegation of demonstrable error, and

   (ii)in making an assessment, the Medical Assessor is not restricted to examples of activities represented by the descriptors in each impairment class. The descriptors are examples only: Guidelines [11.13]. They are not prescriptive: Jenkins v Ambulance Service of NSW [2015] SWSC 633. A key principle of assessment is that it involves ‘clinical assessment of the claimant as they present of the date of assessment taking account of the claimant’s relevant medical history and all available relevant medical information’: Guidelines [1.6].

   (b)    With respect to Self care and personal hygiene, on 23 October 2020 Dr Canaris assessed a class 2 impairment three years previously, but Medical Assessor Takyar recorded that the worker still misses meals despite having diabetes, and considered that, even though he showers daily, his impairment in this regard was moderate. That finding was open to him on the evidence.

   (c)    With respect to Social and recreational activities and Social functioning:

   (i)an assessment of class 2 impairment was not ‘glaringly improbable’ because Dr Canaris made the same assessment, and

   (ii)there is no medical opinion to support a contrary assessment.

   (d)    With respect to the proposed deduction for a pre-existing psychological condition:

   (i)in circumstances where, as here, the date of injury is deemed by statute, section 323 applies only if the pre-existing condition existed prior to employment with the respondent: Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 at 51, 53 and 57;

   (ii)on the evidence, psychological symptoms followed injury to the cervical spine in 1997, after employment had commenced. Symptoms from that date forward cannot prove the existence of a condition prior to the commencement of employment, or attract the operation of section 323;

   (iii)the current condition, as diagnosed, is Major Depressive Disorder with anxious distress. There is no evidence of a diagnosis of a pre-existing condition;

   (iv)it is impermissible to assume that the cervical spine injury contributes to impairment: Cole v Wenaline [2010] NSWSC 78. There is no evidence that the cervical spine injury now contributes to impairment or makes it greater than it would other have been;

   (v)in any event, the worker continued working after the 1997 injury, and complaints of anxiety only arose between 2001 and 2007, in the context of alleged mistreatment at work, and

   (vi)the appellant’s section 78 notice dated 20 November 2019 disputed psychological injury. It contained no allegation that impairment resulted from a secondary psychological injury, or that a section 323 deduction was available. In the absence of such as dispute, the Medical Assessor was not required to consider a deduction for a secondary psychological injury.

Self care and personal hygiene

1. The criteria for rating class 2 and 3 impairment in Self care and personal hygiene are as follows:

Class 2	Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3	Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.

1. In his PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 3 impairment – emphasis added:

   “Mr Kelly has lived in his current apartment for 18 years, which he rents (he said he owns the one next door, and after his injury he found the pool too noisy, so he moved). He gets up at 9am as his dog wakes him, usually getting out of bed right away and then gives his dog (heart) medication, makes breakfast and takes his own medicines. He reported not eating breakfast preinjury, but said he has to as he has diabetes. Mr Kelly reported watching television for “12 hours a day”, but with poor focus and will “fiddle with me phone, go on the Internet”. He typically eats one or two meals a day, with his portions “half” of what he ate pre-injury, with lowered enjoyment (“to be honest I eat because I have to. If I didn’t have diabetes I wouldn’t… no interest in food”) and he is “about two stones heavier” since the injury. He bathes and changes his clothes daily. He previously enjoyed cooking and said he now cooks “very rarely – sandwiches are very interesting”, once or twice a week (sandwiches, chicken schnitzel, or something in the air fryer). He buys groceries weekly, noting, “some days I feel overwhelmed – I don’t like crowds anymore” and an acquaintance looks after his dog when he is out as he said it has separation anxiety. He struggles with chores (“shocking at the moment”) due to low motivation and energy, and pre-injury was “very house proud – I have vacuumed once in six months – ashamed to say it”. I ascertained that if he did not need to eat to manage diabetes, he would miss meals due to a lack of interest in eating and he may miss bathing at times if his mental state is poorer.”

2. It was the task of the Medical Assessor to determine in which category the behavioural consequences of psychological injury best fit, by applying the descriptors in each class of impairment as examples: Guidelines at [11.12].

3. In summary, the Medical Assessor found that the appellant prepared and ate food in compliance with the requirements of his diabetic condition, even if he lacked the appetite for it or for more varied cooking activities as before, that he makes his own breakfast daily, takes his medication daily, bathes daily (at least usually), changes his clothes daily, and buys groceries weekly, even though he feels overwhelmed on some occasions and no longer engages in his pre-injury house-cleaning routine.

4. There is no evidence that a nurse visits his home. Given the regularity of his regime, no finding could reasonably have been made that a nurse should do so. There was no evidence that the worker frequently misses meals (noting that he eats sufficiently to cause weight gain), that he fails to shower daily or to wear clean clothes, or that he could not live independently without regular support.

5. In all the circumstances, the evidence satisfied the criteria for a class 2 impairment, and not those for a class 3 impairment. On the proper application of the criteria to the evidence, a class 2 assessment was not reasonably open. It was not a case where learned minds might differ, or whether the exercise of clinical judgment would justify the selection of a class 2 impairment. This demonstrates error, correction of which requires assessment by a member of the Panel.

Social and recreational activities

1. The criteria for rating class 2 and 3 impairment in Social and recreational activities are as follows:

Class 2	Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3	Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.

1. In his PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 3 impairment – emphasis added:

   “Mr Kelly sees what he described as “an acquaintance”, Helen about weekly; he has known her for three years, but said his only close friend is Anna, who he has known since his Intercontinental days though he has not seen her in person in three years – they speak on the phone weekly. He said he had lost friends since the injury and that his only hobby is walking his dog for 20 minutes a day (previously more) and his pre-injury hobbies (gardening, cooking, reading and property investment) have all ceased. Cooking is rudimentary these days. He used to attend church every Sunday, and he spoke of religion being important to him but said he has not attended for 18 years. He did not feel that he could attend a party these days because of his psychiatric symptoms, and stated that he needs his dog with him where possible.”

2. Each of the PIRS relates to a distinct set of behavioural consequences of psychological injury. As the Court of Appeal found in Ballas v Department of Education (State of NSW) [2020] NSWSC 86 at [95] to [96]:

   “In the present case, it was plainly “arguable”, to use the language of Vannini, that the AMS took into account an irrelevant consideration in relation to the scale “social and recreational activities’ when he made reference in his reasons to ‘[s]ees one friend regularly... This is because there is a separate scale entitled ‘Social functioning (relationships)’ to which that conduct is more directly relevant.

   Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by s 11.15 of the Guidelines to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the ‘Social functioning (relationships)’ scale.”

3. In assessing Social and recreational activities, the Medical Assessor took into account the worker’s ongoing social interactions with two friends. This fell within the scale, ‘Social functioning’, and was irrelevant to his assessment of “Social and recreational activities”. That demonstrates error, requiring that the Medical Assessment Certificate be set aside.

4. Though it is unnecessary to identify further errors in the assessment of impairment on this scale, we note there is no evidence that the worker’s previous cooking activities (which were taken into account) were of a ‘social’ nature, and that, though regular church attendance might be described as a social activity depending on the circumstances, his decision to cease it pre-dated injury by some years, providing no evidence that it was a behavioural consequence of injury, as distinct from normal pre-injury functioning.

Social functioning

1. The criteria for rating class 2 and 3 impairment in Social functioning are as follows:

Class 2	Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3	Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.

1. In his PIRS form attached to the Medical Assessment Certificate, the Medical Assessor gave the following reasons for assessing a class 3 impairment – emphasis added:

   “Mr Kelly said that the only family he sees is his niece and her husband, who live in Concord, roughly two years. However he noted, “she’s a lovely girl, but she annoys me”. He was not in a relationship at the time of the injury and stated that he has not had one since the injury adding, “I’ve been celibate for 31 years”. He described difficulty forming new relationships since the injury, describing himself as “a friendly person, say hello to people in the street – but I don’t let anyone get close to me. I don’t have a very good image of myself and I’ve lost all confidence – every ounce of confidence.”

2. It was the task of the Medical Assessor to determine in which category the behavioural consequences of psychological injury best fit, by applying the descriptors in each class of impairment as examples: Guidelines at [11.12].

3. On the evidence, the worker continued to see his niece and her husband, even if to some degree she annoyed him. He continued to be friendly with people he met in the street. However, he tended not to ‘let anyone get close to me’. He explained that, pre-injury, he had been celibate, and had remained so for 31 years. He gave no history that prior to injury he had allowed people to get close to him. This provided no evidence that his social reserve – both in terms of celibacy and less intimate relationships - resulted from injury at all. On the evidence, so far as it went, it appeared to be part of his normal, pre-injury functioning.

4. In order for behavioural effects to be assessable under this scale (as with any other scale), the assessor must be satisfied that the effects result from injury. In circumstances where, as here, the behaviour predated injury, it was incumbent on the assessor to explain why it resulted from injury. He did not do so. The Panel is left in a position where it does not know how he came to that conclusion, or whether the reasoning process involved error.

5. The inadequacy of reasons demonstrates error in the assessment of this scale. The absence of any evidence to support the conclusion that the behaviour resulted from injury also demonstrates error.

Deduction for pre-existing conditions

1. The appellant argues, in effect, that the Medical Assessor should have determined that a secondary psychological injury resulted from injury to the neck in 1997, and made a deduction for its contribution to permanent impairment. A determination of that kind lies within the exclusive jurisdiction of the Commission: State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [22]. An omission by a Medical Assessor to make such a determination demonstrates neither error nor the application of incorrect criteria.

2. Even if it were within his power to determine the existence of a secondary psychological injury in these circumstances, no deduction would be available unless the Medical Assessor was satisfied that, but for the pre-existing secondary psychological injury, the impairment flowing from the primary psychological injury would be less: Ryder v Sundance Bakehouse [2015] NSWSC 526. The appellant points to no medical evidence capable of supporting a conclusion either that a secondary psychological injury now contributes to impairment. In our view, no deduction would be warranted, even if there were a secondary psychological injury. This ground of appeal fails.

Report of Medical Assessor Hong

1. Having identified error of the kind identified above, the Panel referred the worker for examination to one of its members, Medical Assessor Hong. His examination report follows.

   “1. HISTORY RELATING TO THE INJURY

   ·    Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

   Mr Kelly had worked at Qantas between 1995 and 2008. He started as a cabin crew and became the flight service director in 1997. After he left Qantas, he has not attempted other work.

   Mr Kelly had not suffered from a psychiatric disorder or had any psychological/psychiatric treatment before he joined Qantas.

   He reported that he sustained a neck injury from turbulence in December 1997 and has suffered persisting neck pain since that injury. In 2004, he slipped on a wet marble floor at Sydney Airport and his neck was re-injured.

   Mr Kelly said he consulted a neurosurgeon, a pain specialist and then had surgery, however, his supervisor did not believe he suffered a genuine injury and claimed that he was faking his injuries. He was subjected to repeated bullying behaviour until he stopped working in 2008.

   He gave many examples of the bullying behaviour, and intermittently returned to discuss different instances of being mistreated during the assessment today. He reported that he became very anxious on his way to work and he felt like he was going to throw up, and the thought of his supervisor looking over his shoulder made him very anxious at work. He was having nightmares and problems sleeping and started taking sleeping pills. He said that similar issues went on for years and by 2001, he started having treatment with a psychologist. He said that it was self-funded as he did not want his employer to find out and use it against him.

   He has chronic anxiety and depressive symptoms, and his symptoms have not resolved over the years.

   ·    Present treatment:

   Mr Kelly is taking:

   ·    Duloxetine 60 mg

   ·    Zopiclone

   ·    Neurontin

   ·    Mirabegron for his bladder

   His last consultation with a psychiatrist was in 2013, and his last session with a psychologist was a few years ago.

   ·    Present symptoms:

   Mr Kelly has chronic depression with amorphous depressive symptoms with low energy levels, poor concentration and memory, ruminative thoughts about bullying and harassment and low self-esteem.

   He feels anxious.

   He said he is irritable and that he internalises it, and stated his irritability has worsened since the stroke.

   Mr Kelly had been withdrawn from people for several years now.

   He has chronic sleep problems and Obstructive sleep apnoea, which is not currently treated.

   He has chronic fatigue symptoms and poor concentration.

   He reported that he had put on some weight, maybe 3kg this year, and he is not sure why - he said sometimes he comfort-eats.

   He has intermittent suicidal thoughts.

·    Details of any previous or subsequent accidents, injuries or condition:

Mr Kelly does not have a past psychiatric history before his employment with Qantas.

·    General health:

He has diabetes, hypertension and irritable bowel syndrome.

He does have a cardiac condition.

In terms of his work injury, Mr Kelly reported that he suffered from chronic C5/6 nerve entrapment causing neck and shoulder pain.

He had a stroke in June 2022 and consulted Professor Brew, neurologist. He still has slight left arm weakness. He recalled he had pins and needles and weakness affecting his left face, arm, leg and toes. He said he had two or three cerebral MRIs showing evidence of a stroke.

He has had recurrent falls, including another fall two weeks ago. He said he does not know why he has a recurrent fall problem.

He reported that physically, he is often tired and in the last few years, he often sleeps in the afternoon.

He said he has brain fog, which he related to chronic severe sleep apnoea. He said he cannot tolerate the CPAP machine, but because the neurologist told him that the sleep apnoea likely caused the stroke, he is going to try another device to manage the sleep apnoea.

Mr Kelly had a cortisone injection and reported that his physical tolerance is not bad overall. He can walk for as long as he wants, provided he is careful so he does not fall over. He is right-handed and does not have significant problems with that hand. He said that his left hand is weak from the stroke and he can still carry the shopping, but does not know how much he can carry.

·    Work history including previous work history if relevant:

He was a pastry chef and worked in catering.

He has not worked after leaving Qantas.

·    Social activities/ADL:

Mr Kelly is 62 years old and lives on his own. He has no dependents.

He walks the dog for about 20 minutes a day. He said he worries about his elderly dog, who is 12. The dog cannot walk for long.

He reported that he does not eat junk food and tends to eat sandwiches or cook simple foods, such as steak and vegetables.

Mr Kelly goes to the shops every two weeks and said that he has to drop his dog off at a friend/acquaintance’s place when he does the shopping, because his dog has separation anxiety.

He showers every day but only shaves twice a week. He changes to clean clothes regularly.

In the past, he liked to travel and enjoyed gardening and cooking, and reading books. He does not read books or listen to music now. He still cooks but does not derive much enjoyment from it anymore. He does not do gardening anymore. He said he has not had a passport for about 15 years and that he does not want to travel because travelling reminds him too much of working at Qantas. His other interest was property investment. He has not purchased a property for 20 years now and does not read the property news either. He has three apartments and reported that he cannot tolerate the noise in the apartment he normally lived in, and he rents the one next to it. He has an agent looking after his properties.

He does all the household chores. He eats breakfast and sometimes has a late lunch and does not tend to eat dinner, as he does not want to be overfull overnight.

He tends to only drive short distances and feels anxious when a large vehicle or a truck is near him. He drives to do the shopping.

The last time Mr Kelly had a proper partner was 31 years ago. Dr Takyar wrote he was single at the time of the subject injury. Dr Canaris noted he has been celibate since 1997. He said he chose to be celibate and explained that is partly because he is Catholic and he is not into casual relationships. He has no libido now.

Mr Kelly had many friends, who were all work colleagues and he explained he dedicated all of his time to work, and did not have many friends outside work. They used to eat out and travel together. He said since he stopped working, people do not contact him anymore. Even his best friend, who was a colleague at Qantas stopped contacting him. Mr Kelly said that his best friend had been warned by Qantas to not get involved in his case, and so his best friend had chosen his career over friendship with Mr Kelly.

He said he goes to the dog park and has a lot of acquaintances, that is, the other dog owners, and they talk when at the park but do not socialise otherwise. He talks to some of the neighbours but the conversation is superficial.

Mr Kelly has a friend that lives downstairs in the same apartment complex and he calls her almost every day. He had another good friend, but that friend had brain cancer and passed away a few months ago.

In terms of family, Mr Kelly has a niece who lives in Concord with her husband and their 9-year-old child and they have four cats. He explained that he is allergic to cats and therefore does not visit his niece's home. He also said that they are a very busy family and always away during the school holidays and weekends, so he talks to them regularly but does not see them.

He has a long-term friend, Ana and he has known her all his adult life. She lives in Earlwood. He said that she has stuck by him over the years and they talk to each other regularly. He has another friend, Helen, whom he has known for about three years, and he said she is more of an acquaintance, and she looks after his dog when he needs to go away.

He prefers to be at home on his own and he does not receive any visitors.

2.    FINDINGS ON PHYSICAL EXAMINATION

Mr Kelly attended the assessment on his own. He wore a collared shirt and a suit jacket. He had short greying hair and was clean-shaven. He was neatly attired and presented very well. He engaged well with the assessment. There was no psychomotor slowing. He had a slow gait and walked cautiously. He was not restricted in his affect. He smiled and laughed regularly and was good-natured and friendly. He was appropriately animated in facial expressions and gestures. He spoke spontaneously and was generally talkative. He was not thought disordered and spoke with a steady pace. He stated he was previously confident and not extravert, but now he is withdrawn from everyone.

3.    DETAILS AND DATES OF SPECIAL INVESTIGATIONS

No special investigations.

4.    SUMMARY

·    summary of injuries and diagnoses:

Mr Kelly developed depression and anxiety due to bullying and harassment from his supervisor and this is a Primary psychological injury, consistent with chronic Major depressive disorder.

There is no inconsistency in Mr Kelly's presentation.

In terms of a WPI assessment, Dr Takyar assessed Mr Kelly's self-care and personal hygiene as a 3.   I reassessed this scale and noted that he has been independent in living over the years, and attends to all self-care and personal hygiene without assistance or prompting and manages his self-care and personal hygiene at a reasonable level, and rated 2. He is almost a class 1 rating.

In terms of social and recreational activities, Mr Kelly has disengaged from his previous social and recreational activities and does not receive visitors, but he does enjoy some social interactions, and consistent with Dr Takyar and Dr Canaris, I rated a 3.

In terms of social functioning, Dr Takyar rated a 3 and noted he is a friendly person and says hello to people in the street, he maintains relationship with his family, and that he had been celibate for 31 years and has difficulty forming new relationships. Dr Canaris rated a 3 and noted that he had lost all his friends and has not been in a relationship since the bullying at work started and has been celibate since 1997, barring a brief relationship with another colleague in 1999. Mr Kelly said he is Catholic, he chose to be celibate and has not wanted to have a partner, as he is not into casual relationships. His libido is also low. There is a deterioration in his family relationships. He had lost most of his friendships. On the other hand, he is capable of maintaining several long-term relationships and made friends or at least acquaintances since his psychological injury. Overall, this is consistent with a rating of 2.”

Conclusion

1. Having regard to his expertise and clinical experience, the Panel accepts the findings of Medical Assessor Hong and his assessment of the three rating scales, for the reasons that he gives.

2. The Medical Assessment Certificate of Medical Assessor Takyar is revoked and replaced with the attached Medical Assessment Certificate.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W4305/22
Applicant:	Mark Leslie KELLY
Date of Assessment:	21 March 2023

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 Smith 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 NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Primary Psychological Injury	22 May 2019 (deemed)	Chapter 11	Not applicable Chapter 14	19%	Nil	19%
Total % WPI (the Combined Table values of all sub-totals)					19%

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE MEDICAL ASSESSMENT CERTIFICATE ISSUED BY THE APPEAL PANEL, PERSONAL INJURY COMMISSION.

PERSONAL INJURY COMMISSION

Table 11.8: PIRS Rating Form

Name	Mark Leslie KELLY	Claim/Reference number (if known)	4503/22
DOB	Age at time of injury	58
Date of Injury	22 May 2019 (deemed)	Occupation at time of injury	Qantas Airways Ltd – Customer Service Manager/Cabin Crew
Date of Assessment	21 March 2023	Marital Status before injury	Single

Psychiatric diagnoses

1. Major depressive disorder with anxious distress

2.

3.

4.

Psychiatric treatment

Antidepressant therapy, previous psychological therapy

Is impairment permanent?

Yes

PIRS Category

Class

Reason for Decision

Self Care and Personal Hygiene

2

Mr Kelly has lived in his current apartment for 18 years, which he rents (he said he owns the one next door, and after his injury he found the pool too noisy, so he moved). He gets up at 9am as his dog wakes him, usually getting out of bed right away and , makes breakfast and takes his medicines. He reported not eating breakfast pre-injury, but said he has to as he has diabetes.  He bathes and changes his clothes daily. Sometimes he misses a meal or a shower. He attends to household chores and shopping. He has been independent in living over the years, and attends to all self-care and personal hygiene without assistance or prompting and at a reasonable level.

Social and Recreational Activities

3

Mr Kelly has disengaged from his previous social and recreational activities and does not receive visitors. He still enjoys social interactions. He cooks less than in the past and derives some enjoyment from it.

Travel

2

Mr Kelly can drive 5km to the local supermarket but does not travel to new or unknown places usually; he drove to the city for today’s appointment, reporting that he does not need to use public transit and would avoid it if he did, in peak hours. His travel restrictions emanate from his mental state.

Social Functioning

2

Mr Kelly said that the only family he sees is his niece and her husband, who live in Concord, roughly two years. However he noted, “she’s a lovely girl, but she annoys me”. He was not in a relationship at the time of the injury and stated that he has not had one since the injury adding, “I’ve been celibate for 31 years”. Mr Kelly said he is Catholic, he chose to be celibate and has not wanted to have a partner, as he is not into casual relationships. His libido is also low. There is a deterioration in his family relationships. He had lost most of his friendships and some of this is because his colleagues would not contact him, and not due to his psychological injury. On the other hand, he is capable of maintaining several long-term relationships and made friends or at least acquaintances since his psychological injury.

Concentration, Persistence and Pace

3

Asked about his focus these days, Mr Kelly responded, “like I can’t read a book, I used to love reading, I can’t focus. I’ve got the TV on – I can’t remember… someone says what did you watch last night – I can’t remember… I was always reading a book”. These days, he can focus on reading for “under a minute” before he has to reread or abandons the task and can watch a show for around five minutes and said he can no longer multitask. His memory is “not good – my long-term is… I can remember what was done to me at Qantas like I’m watching a video”. Enquiring about short-term memory, he said it is poor and that he forgets names. He can shop but needs a shopping list, “and I end up forgetting to look at it”. He reported being detained for shoplifting in 2022 after paying for items as he forgot he had them.

Adaptation

5

Mr Kelly does not currently present with any realistic capacity for any employment for which he has skill, training or experience in the open and competitive labour market from a psychiatric stance.

Score

Median Class

2

2

2

3

3

5

= 3

Aggregate Score Impairment

Total

%

2+

2+

2+

3+

3+

5

= 17

19%