RFD Group Pty Ltd v Adebiyi
[2024] NSWPICMP 729
•22 October 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | RFD Group Pty Ltd v Adebiyi [2024] NSWPICMP 729 |
| APPELLANT: | RFD Group Pty Ltd |
| RESPONDENT: | Andrew Adebiyi |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 22 October 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Appeal against assessment of 19% whole person impairment (WPI) for a psychiatric injury deemed to have occurred on 5 June 2020; appellant submitted that the Medical Assessor (MA) failed on reconsideration to address the inconsistencies in the first Medical Assessment Certificate (MAC) dated 31 October 2023 when issuing the MAC dated 15 May 2024; Held – Medical Appeal Panel agreed that MA had taken an incorrect history and provided minimal reasoning in the assessment of impairment; MA failed to provide adequate reasons and applied incorrect criteria in the assessment of the psychiatric impairment rating scale (PIRS); worker re-examined; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On12 June 2024 RFD Group Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, Medical Assessor (Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 31 October 2023 and a subsequent MAC on 15 May 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):
· 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, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Andrew Adebiyi (the respondent) lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 21 August 2023 in which he claimed 22% whole person impairment (WPI) in respect of a psychiatric and psychological disorder as a result of an injury deemed to have occurred on 5 June 2020.
The matter was referred to Medical Assessor, Dr Gerard Chew (the Medical Assessor), for assessment.
The Medical Assessor examined the appellant on 26 October 2023.
In the MAC dated 31 October 2023, the Medical Assessor assessed 19% WPI resulting from psychological injury deemed to have occurred on 5 June 2020.
On 27 November 2024 the appellant made an application for reconsideration of the MAC pursuant to s 329(1A) of the 1998 Act. The appellant alleged that MAC contained comments which appeared to relate to a person other than the respondent worker.
In a decision dated 23 April 2024, the President’s delegate, Belinda Gamble, referred the matter back to the Medical Assessor for reconsideration.
On 15 May 2024, a Further Assessment or Reconsideration was issued in which the Medical Assessor assessed 19% WPI resulting from psychological injury deemed to have occurred on 5 June 2020.
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.
The appellant requested that the respondent be re-examined by a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that there was an error in the MAC and the respondent should undergo a further medical examination because there was insufficient information upon which to make a determination.
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.
Further medical examination
Dr John Baker of the Appeal Panel conducted an examination of the respondent on 4 October 2024 and reported to the Appeal Panel.
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 appellant’s submissions include the following:
(a) the appellant maintains the position outlined in those submissions dated 31 October 2023 in support of a reconsideration, being that the Medical Assessor appears to be referring to a person other than the respondent in the MAC dated 31 October 2023.
(b) In his response to the request for reconsideration dated 18 December 2023, the respondent failed to address any of the inconsistencies that the appellant identified in the MAC dated 31 October 2023
(c) The following comments do not clearly relate to the respondent:
(i)he has a girlfriend of one year and they spend two to three nights a week together: the Medical Assessor notes earlier in the MAC that the respondent lives with his ex-girlfriend. There is no other references to the respondent having a current girlfriend. (This would be relevant to the Psychiatric Impairment rating Scale (PIRS) assessment in respect of social functioning).
(ii)He enjoys riding motorcycles and skiing and last winter he went skiing twice. He drove to Perisher, once with his girlfriend and once by himself: there is no other reference to the respondent performing these activities, which would be relevant to the PIRS assessment in respect of recreational activities and travel.
(iii)He has two to three close friends who he sees approximately weekly and they catch up over coffee or a similar activity: the respondent is noted not to attend social gatherings in Dr Bisht and Dr Khan’s respective assessments. This would be relevant to the PIRS assessment in respect of social functioning.
(d) The Medical Assessor’s comments in the PIRS assessment on page 6 of the MAC do not align with the history that he took regarding social activities and activities of daily living discussed above.
(e) In determining the request for reconsideration, Delegate Gamble recorded the following (noting that the respondent worker is referred to in her reasoning as ‘the applicant’):
“I have reviewed the MAC. There are obvious inconsistencies in the MAC that require reconsideration by the Medical Assessor. The inconsistencies include, but are not limited to:
a.The Medical Assessor’s reference to the applicant not being previously married but being in regular contact with his ex-wife;
b.The Medical Assessor's reference to the applicant being in a ‘golden oldies’ rugby team, when the respondent [sic] is 36 years of age. I note the Applicant is only marginally older than Daly Cherry-Evans;
c.The Medical’s Assessor reference to the applicant being in regular contact with his ex-wife and three daughters when there is reference to him not previously being married; and
d. The Medical Assessor’s reference to the appellant having a girlfriend of one year, etc., is not consistent with him having being previously married, playing in the golden oldies and having three daughters.
5. The above inconsistencies demonstrate the medical assessment process in this matter has not been conducted thoroughly in accordance with the statutory scheme and has given rise to obvious errors that need to be reviewed and corrected.
6. The appellant ‘refuses’ a reconsideration application but does not propose how the obvious errors in the MAC are to be addressed. The applicant’s position is unhelpful. Clearly, a MAC with such errors needs to be addressed by way of reconsideration or referral to an appeal panel.”
(f) The Delegate, at paragraphs 4, 5 and 6 of her decision, refers to the MAC dated 31 October 2023 containing “obvious inconsistencies” and “obvious errors”. The Delegate clearly accepted, as part of her reasoning for granting the request for reconsideration, that the MAC dated 31 October 2023 contained demonstrable errors at paragraph 8(b) of her decision.
(g) The Delegate referred the matter back to the Medical Assessor for reconsideration. The documents referred were the ARD, Reply, MAC dated 31 October 2023, reconsideration application, response to reconsideration application and a copy of her decision.
(h) The Medical Assessor issued a Medical Assessment Certificate Further Assessment or Reconsideration dated 15 May 2024. Despite the Delegate’s reasoning provided above, the Medical Assessor did not address any of the issues raised in the appellant’s submissions and in the Delegate’s decision. He confirmed his assessment of 19% WPI without any elaboration on the previous MAC, or any acknowledgment of the inconsistent history provided in the previous MAC.
(i) The Medical Assessor has failed to acknowledge, explain and/or correct the “obvious inconsistencies” identified by the appellant in the request for reconsideration and confirmed by the Delegate in her decision.
(j) The Medical Assessor’s failure to address these issues constitutes a demonstrable error in the MAC dated 15 May 2023.
(k) Due to the erroneous history taken in the MAC dated 31 October 2023, and the complete absence of any history in the MAC dated 15 May 2024, it is not possible to verify whether the Medical Assessor’s PIRS assessment is accurate. This issue is exacerbated by the fact that the Medical Assessor has provided minimal detail in his reasoning for assessing each class rating in the PIRS assessment. In the absence of an accurate history and/or more detailed reasoning from the Medical Assessor, the PIRS assessment was made on the basis of incorrect criteria.
(l) For the reasons outline above, the MACs dated 31 October 2023 and 15 May 2024 should be revoked. Given the Medical Assessor has failed to correct the errors in the MAC dated 31 October 2023 on reconsideration, and noting the passage of time since the medical assessment examination on 26 October 2023, the appellant seeks reassessment of the respondent and issue of a fresh MAC.
The respondent’s submissions include the following:
(a) nowhere is it argued that the “obvious errors” as recorded by the Delegate and in the appellant’s submissions, were material to the outcome.
(b) In Raulston v Toll Pty Ltd [2011] 25 NSWWCCPD Roche DP said at [31]:
“…The error must be one that has affected the outcome (Leichardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRAS 409 at 419 cited in Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287 at [110]”.
There is no reason why those principles would not apply to a medical assessor decision.
(c) The appellant submits that the facts incorrectly recorded under social activities/Activities of Daily Living in the first MAC should have been relied upon to reach a lower impairment. As those mis-recordings were an obvious error in the first place and re-examination was not sought or required, the Medical Assessor did not err in briefly stating his reasons and confirming his previous evaluation.
(d) The appellant made a deliberate decision not to appeal against the MAC dated 31 October 2023. Lost rights cannot be “retained” in the manner referred to by the appellant, nor do they exist. Nor was s 327(5) referred to.
(e) The MAC should be confirmed.
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 appellant submits that the Medical Assessor issued a Medical Assessment Certificate Further Assessment or Reconsideration dated 15 May 2024 but despite the Delegate’s reasons of 23 April 2924 did not address any of the issues raised in the appellant’s submissions and in the Delegate’s decision.
The Appeal Panel agrees with the appellant that the Medical Assessor confirmed his assessment of 19% WPI without any elaboration on the previous MAC, or any acknowledgment of the inconsistent history provided in the previous MAC. The Appeal Panel agrees with the appellant that the Medical Assessor failed to acknowledge, explain and/or correct the ‘obvious inconsistencies’ identified by the appellant in the request for reconsideration and confirmed by the Delegate in her decision. The Appeal Panel accepts that the Medical Assessor’s failure to address these issues constitutes a demonstrable error in the MAC dated 15 May 2024.
The Appeal Panel agrees with the appellant that due to the erroneous history taken in the MAC dated 31 October 2023, and the absence of any history in the MAC dated 15 May 2024, it is not possible to verify whether the Medical Assessor’s PIRS assessment is accurate. The Appeal Panel also agrees that the Medical Assessor provided minimal detail in his reasoning for assessing each Class rating in the PIRS assessment. In the absence of an accurate history and/or more detailed reasoning from the Medical Assessor, the Appeal Panel considered that the PIRS assessment made by the Medical Assessor in the MAC dated 15 May 2024 is effectively devoid of reasoning and made on the basis of incorrect criteria.
The Appeal Panel concludes that it was necessary for the respondent to undergo a further medical examination because there is insufficient evidence on which to make a determination of degree of impairment of his psychiatric condition.
As noted above, Dr John Baker re-examined the respondent on 4 October 2024. Dr Baker provided the following report:
“1. The workers medical history, where it differs from previous records
Mr Adebiyi sustained a primary psychological injury in the course of their employment with a deemed date of 5 June 2020. Mr Adebiyi has been diagnosed with major depressive disorder by Assessor Chew in the MAC dated 31 October 2023.
Mr Adebiyi attended the assessment using MS Teams by videoconference on 4 October 2024. He was living at his parents’ home in Carlingford, NSW. He was assessed alone. He said he had not worked since the onset of this primary psychological injury. He said that his accommodation had been unstable since the onset of the injury with him living in three different locations. He said the first location was with his partner Ronia. This relationship commenced in June 2020 prior to the onset of the injury. The second location was in Byron Bay region with a friend, Phebe between 2021 until 2022. He then returned to live with Ronia for a second time during 2023 until 2024. The attempted reunion with Ronia failed. There are no children to the union, prior to the permanent separation in 2023. He then returned to live in with his parents and was living with them at the time of this re-examination.
2. Additional history since the original Medical Assessment Certificate was performed
Mr Adebiyi provided the following additional history at the re-examination.
Mr Adebiyi reported that his father was a 66-year-old business manager and is mother was a public servant working for the NSW Government in the Social Housing sector. He was the eldest of two sons. He had a younger brother aged 36 years who lived outside the family home. He explained that his father came from Nigeria and grew up in an area of this country that was traditionally Islamic. Mr Adebiyi said he did not have a strong tie to the religion. Mr Adebiyi was born in Princess Alexander Children’s Hospital Camperdown (closed). He attended Rydalmere Public School between kindergarten to Year 6. Then Carlingford High School between Year 7 to Year 12. He reported that he completed his Higher School Certificate. He played soccer as his sport. He enjoyed playing soccer and had been a team captain prior to the onset of this this primary psychological injury. He said he enjoyed playing social soccer. He also enjoyed attending friends’ events, and gatherings at local cafes and restaurants. He would read autobiographies for leisure. He progressed to Macquarie University and completed a double bachelor’s degree in commerce and law.
Mr Adebiyi said he would suffer from Asthma during cold weather, and he would infrequently use Ventolin as a puffer for these minor events of shortness of breath. He had never been hospitalised due to his Asthma. He sustained a torn hamstring to his right thigh many years prior to this primary psychological injury. His injury healed with conservative treatment and no impairment He said he had no allergies. He did not gamble or smoke tobacco. He rarely drank alcohol, and he would not use illicit substances.
Mr Adebiyi reported that he commenced work with this employer in about September 2019. His last day of work was in June 2020. He was employed to manage a small group of about 5 to 6 employees. He said he became the focus of bullying, harassment and racism. Mr Adebiyi said that he had informed his employer. He said he had asked for the racist anti-Islamic, sexist and homophobic comments directed towards him to stop. He said he was shown inappropriate images of white supremacists harming an African man. He said he was called a ‘nigger’ and was verbally denigrated and publicly humiliated. He reported that another co-worker would say verbal threats towards him including, ‘in his village they stone gay people.’
Mr Adebiyi reported he developed a depressed mood with intrusive distressing thoughts of hopelessness. He said he was unable to think about going to work without becoming increasingly agitated, tearful and distressed. His sleep became poor, and he suffered from poor concentration in his workplace. He was indecisive in his decision making and he was unable to manage the workload he was assigned as his depressive symptoms increased in severity and became more prominent. He suffered from low energy and would have distressing nightmares about the images he was exposed to whilst at work. He reported he would become increasingly overwhelmed by his emotions prior to attempting to work each day. He said that in June 2020 he was unable manage his depressive symptoms and ‘walked out of the workplace.’ He said he had not worked in any capacity since.
Mr Adebiyi attended his general practitioner the day after he left the workplace and reported the problem to him. His general practitioner wrote a NSW Workcover certificate as he was unfit for work. He said he was diagnosed with various conditions by various practitioners since the onset of the injury including:
·Anxiety disorder secondary to workplace harassment and bullying.
·Adjustment disorder with mixed anxious and depressed mood.
·Major depressive disorder with anxious distress and
·Major depressive disorder.
Mr Adebiyi’s general practitioner referred him to attend a clinical psychologist who provided treatment via a telehealth platform. He attended weekly for about 2 months. He completed cognitive behavioural therapy for major depressive disorder, as well as relaxation training and mindfulness. He was also referred to a psychiatrist. He was treated for major depressive disorder with anxious distress and was prescribed Fluoxetine 20mg daily. The dose was initially increased to two, 20mg capsules and then three, 20mg capsules (60mg) daily. This dose of Fluoxetine, (selective serotonin reuptake inhibitor) was unable to be tolerated by Mr Adebiyi. He developed nausea without vomiting and tremor of his limbs. He reported more agitation. His depressed mood failed to improve after a three-month trial. He was not trialled on other antidepressant medication. He was not prescribed any other evidence-based antidepressant medication or other treatments such as repetitive transcranial magnetic stimulation or inpatient psychiatric treatment.
Mr Adebiyi reported that his capacity to remain independent deteriorated. He reported he became increasingly dependent on his partner, Ronia. They had been living in a defacto relationship prior to the onset of the injury. Mr Adebiyi had expectations of marriage. He said he would require prompting to maintain his self-care and personal hygiene.
Mr Adebiyi said that he had an unplanned meeting with an old friend, Phebe. When Mr Adebiyi was about 18 years of age when he commenced teaching himself watercolour painting. Whilst working for Proctor and Gamble he was directed to work in Melbourne when he was about 22 years of age. In Melbourne he continued to paint water colours. He would take photographs and place his art on Facebook. He would sell his art frequently in this manner. Whilst selling his art he would deliver pieces to people who were living close-by. He met Phebe whilst pursuing his art. They enjoyed meeting in public places, to share meals. They never had an intimate relationship. Phebe was concerned for Mr Adebiyi as he had become more depressed and was more irritable. His relationship with his partner, Ronia was poor. He would verbally argue with Ronia. Intimacy was lost in the relationship with Ronia. Phebe offered accommodation and Mr Adebiyi travelled with her to her home in Byron Bay.
Mr Adebiyi said that whilst in Byron Bay, his major depressive disorder failed to recover. After about 12 months Phebe requested that Mr Adebiyi leave her home. Mr Adebiyi travelled again with Phebe and returned to the same accommodation and a plan for reconciliation was made with Ronia. The reconciliation failed, as Mr Adebiyi was still depressed in his mood, low in his energy, increased verbal arguments, loss of interested in socialising or playing soccer and was reliant of Ronia to prompt him to maintain his personal hygiene and self-care.
Mr Adebiyi reported that lacking any other option, he returned to his parental home as he could live in this accommodation without having to pay rent or provided food for himself. He said his mother would provide him with daily assistance and help.
3. Findings on clinical examination
Current Symptoms
Mr Adebiyi reported the following symptoms consistent with the primary psychological injury being best defined by DSM-5-TR F32.1 Major depressive disorder at the time of the re-examination.
Using DSM-5-TR criteria Mr Adebiyi’s primary psychological injury on 4 October 2024 was defined below:
Criterion A.
The following six symptoms have been present during the same two-week period and represent a change from previous functioning with Mr Adebiyi experiencing a depressed mood as well as the following:
·Depressed mood most of the day, nearly every day, as evidenced by the claimant’s feelings of sadness, hopelessness and worthlessness.
·Markedly diminished interest with inability to experience pleasure in almost all activities for most of the day, nearly every day as evidenced by the loss of his friendship circle, loss of his career and loss of his partner Ronia.
·Insomnia most nights with initial and terminal insomnia.
·Diminished ability to concentrate with marked indecisiveness as well as difficulty making decisions.
·Fatigue with loss of energy nearly every day.
·Recurrent thoughts of death and suicidal ideation with no specific plan to commit suicide.
Criterion B.
The symptoms cause clinically significant distress in Mr Adebiyi’s social and occupational functions.
Criterion C.
The episode is not attributable to the physiological effects of a substance or to another medical condition.
Criterion D.
The occurrence of the major depressive episode is not better explained by schizoaffective disorder, schizophrenia, schizophreniform disorder, delusional disorder, or other specified and unspecified schizophrenia spectrum disorder and other psychotic disorder.
Mr Adebiyi does not suffer from any of Criterion D. conditions as listed above.
Criterion E. There has never been a manic or hypomanic episode.
Mr Adebiyi has never suffered from any of Criterion E. conditions as listed above.
Mental State Examination
Mr Adebiyi presented on time. He was sitting in a dark room which was poorly lit. He assisted with the lighting of the room such at the re-examination could proceed with the assessor monitoring his affect throughout the assessment. Mr Adebiyi had a flattened affect. He spoke about how his self-esteem and workplace resilience had been broken by the bullying, harassment and racist behaviour he endured. He spoke about his lack of trust in workplaces where senior management would not support staff. He spoke about the workplace being unsafe for him to remain in due to his inability to sustain working rapport with unfamiliar co-workers.
Mr Adebiyi had a slow rate of speech. He was tearful when speaking about having trusted his co-worker with personal information about his family’s origin and then to be publicly shamed and denigrated by the same person in front of other coworkers. He spoke of intrusive depressive themes of loss of hope, worthlessness and shame. He spoke about suicidal thoughts that he would use his cognitive behavioural skills to avoid enacting. He did not describe delusional ideas or psychotic symptoms. His concertation would wane quickly. He did require prompting to remain on topic during the re-examination. He was insightful into his condition. His judgement was fair.
Current Functioning
Self-care and personal hygiene
Mr Adebiyi reported spending most days in bed. He could change his clothes and would re-wear lightly soiled clothing. His mother would provide and care for his nutrition. She would purchase and prepare all the family meals. He reported that he had no energy or motivation to care for himself. He would not assist his father with maintenance and cleaning the parental home. He appeared unkempt, unwashed and ungroomed. He could not live independently and required prompting to maintain a minimal standard of self-care and personal hygiene since the onset of this primary psychological injury. He was assessed as moderately impaired for this table of function. He was assessed as Class 3 for Table 11.1 of the current guidelines.
Social and recreational activities
Mr Adebiyi reported that he had not celebrated his birthday a few days prior to the re-examination. He said he did not receive any telephone calls from any past friends. He said he did not receive a communication from Phebe. He said he believed everyone has moved on. He said he was not interested in socialising with his brother. He said he would ‘death-scroll’ on his social media platform. He did not send messaged or participate in online games. He mainly looked for short topic memes. He said he would lose interest and then listen to music and nap during the day. He had stopped following television sport and no longer was in contact with his social soccer community. He was assessed as moderately impaired for this table of function. He was assessed as Class 3 for Table 11.2 of the current guidelines.
Travel
Mr Adebiyi reported that he was able to leave the parental home to attend his medical appointments when required. He said he could walk in his local area. He reported that when he travelled to and from Byron Bay he did not drive, as his friend Phebe, drove him. He was assessed as mildly impaired for this table of function. He was assessed as Class 2 for Table 11.3 of the current guidelines.
I note that Dr Bisht in his assessment of functioning for travel documented: ‘The client can travel without support person, if he is travelling to unfamiliar places. He travelled from northern NSW back to Sydney on his own, for example.’ This was different to the history provided by Mr Adebiyi where he confirmed he did not drive to Byron Bay and that he was supported by Phebe who drove him in both directions. Mr Adebiyi said that in the past prior to the onset of the psychological injury he could drive to and from his friend’s home in Byron Bay.
Social functioning
Mr Adebiyi said his relationship with his partner Ronia had ceased without any hope of reconciliation. He reported that he was too low in his energy and had lost interest due to his low libido. He said his depression caused him to have verbal arguments and the relationship was ceased prior to him attending his parental home in 2024.
Mr Adebiyi had lost all his friendships at the time of the re-examination.
Mr Adebiyi reported his relationship with his father was more strained than with his mother. He said his relationship with his brother was also strained with him avoiding any time spent together. He was assessed as moderately impaired for this table of function. He was assessed as Class 3 for Table 11.4 of the current guidelines.
Concentration, persistence and pace
Mr Adebiyi would no longer read his books for leisure. He would no longer manage his finances. His internet and mobile phone bill were on ‘autopay’. He spent most of his time looking at the short stories and memes. He said he did not write or play games as his concentration was too poor and he would lose interest within a short period. He was assessed as moderately impaired for this table of function. He was assessed as Class 3 for Table 11.5 of the current guidelines.
Employability
Mr Adebiyi ceased work in June 2020. He could not return to employment with this employer. He said the rehabilitation services had suggested volunteer work. He could not engage in volunteer work as a step towards employment. His self-esteem and trust in working in groups had been broken by the injury. He had made no progress in his return to work. He could not return to work performing lesser skills than his work he performed for his previous employer. He had not worked in any capacity since the onset of this primary psychological injury. He was assessed as totally impaired for all employment in any capacity at the time of this re-examination. He was assessed as Class 5 for Table 11.6 of the current guidelines.
I note that Dr Bisht documented in his assessment of employability, ‘Considering that the client (Mr Adebiyi) is able to plan his diet, listen to music regularly, and watch YouTube videos regularly, as well as travel on his own to unfamiliar places, there is some capacity, rather than no capacity, from a psychiatric perspective, especially if the client does not have to leave the house. The client would be able to work from home in a job that requires the worker to do simple tasks. The client would be able to work 2-3 hours a day 2-3 days a week.’
I note that Mr Adebiyi does not travel to unfamiliar areas alone. I note that Mr Adebiyi relies on his mother for his nutritional planning. I note that Mr Adebiyi is more severely impaired in his employability than as documented by Dr Bisht. Watching YouTube videos and listening to music are not typical exemplars for assessment of employability using current guidelines.
Treatment effects
Mr Adebiyi had received psychological and pharmacological evidence-based treatment. He reported the medication had not provided him with any therapeutic benefit. The stopping of the antidepressant medication because of significant clinical side-effects did not result in any further deterioration in Mr Adebiyi’s level of functioning. For these reasons the effects of treatment were assessed as nil or an adjustment of 0% WPI.
Pre-existing conditions
Mr Adebiyi had no pre-existing conditions and for this reason there was no deduction.
Explanation of whole person impairment assessment.
In my opinion Mr Adebiyi has a moderate whole person impairment as assessed using
the psychiatric impairment rating scale. From careful consideration of the forwarded documents as well as the finding of the re-examination, I note that no adjustment in the claimant’s whole person impairment for treatment effect is reasonable and not at odds with the evidence.
In my opinion Mr Adebiyi had a moderate impairment assessed at 24% whole person impairment.
Mr Adebiyi did not have a pre-existing psychological condition.
Mr Adebiyi did not have a pre-existing psychiatric or psychological condition. There was no adjustment for pre-existing condition. The adjustment for pre-existing condition was assessed as 0%WPI
Using PIRS assessment Mr Adebiyi’s whole person impairment was 24%WPI, plus no addition of treatment effect produced, 24% plus 0%WPI which equals 24% WPI (whole person impairment) minus 0%WPI for pre-existing condition produces a final permanent impairment of 24% WPI.
Score 2, 3, 3, 3, 3, 5
Aggregate 19
WPI 24% WPI
Apportionment for pre-existing condition 0% WPI
Adjustment for treatment effects 0% WPI
4. Results of any additional investigations since the original Medical Assessment Certificate
Mr Adebiyi had a number of specific questions placed before him to assist with the re-examination. The asking of these questions were to clarify matters around consistency of information between the MAC and other independent report writers.
Mr Adebiyi was asked about his work history. He spoke about having worked for Proctor and Gamble in marketing. He said it was whilst in Melbourne working for this employer he met Phebe. He confirmed Phebe is an older woman and a friend. He confirmed that they had never been in an intimate relationship. He confirmed that she was the person he was referring to and documented in Dr Bisht’s report as “Andrew told me – ‘I was living with an older lady’.”
Mr Adebiyi was asked about the application he had developed. He reported having designed an application called ‘Slide It’. He said that he worked with a small team of Indian programmers. He sold Slide It to a private investor and the application was removed from the public market. He said he had not followed up on the application’s progress as he had left the company. He had no further interest in this project.
Mr Adebiyi was asked about his travel capacity. He said prior to the onset of the primary psychological injury he had travelled to many different locations alone. He said he had travelled to all the commonly accessible regions of the world and that he had enjoyed travel.
Mr Adebiyi was asked about his sporting interests. He did not state that he had an interest in snow skiing.
Mr Adebiyi was asked about whether he had ever been married. He said that he was in a defacto relationship with Ronia. That he had hoped to marry however at the time of the re-examination the relationship had ceased. There are no children to this union.
Mr Adebiyi was asked about what type of football he played. He said he had played social soccer as documented in his statement forwarded with the referral. He did not play any other codes including any form of rugby.
Mr Adebiyi was asked about whether he had any other friends. He said he had been supported by Phebe, his friend from Byron Bay, for about one year. He reaffirmed that the relationship was not intimate and that he had known Phebe for many years prior to the onset of this primary psychological injury. Before returning to his now ex-partner’s home Ronia and finally his parental home in Carlingford.
Conclusion
Mr Adebiyi was open, honest and consistent with his report and the history he had provided in his statements. He was hesitant about initially talking about his friendship with Phebe. Once respect and rapport were established Mr Adebiyi was able to explain their common interest and the difficulties caused by the primary psychological injury, major depressive disorder has had on his interpersonal, occupational and social functioning.
The Appeal Panel adopts the report and findings of Medical Assessor Baker.
The Appeal Panel notes that Medical Assessor Baker assessed the respondent as having a moderate whole person impairment using the PIRS scales. The history and findings obtained by Medical Assessor Baker were evidence of a more significant impairment in the PIRS rating scales of self care and personal hygiene and employability. The Appeal Panel is satisfied that the respondent was, at the time of assessment by Medical Assessor Baker, dependent on his mother for his basic needs including adequate nutrition, and that he struggled with hygiene and spent most of his day in bed. In particular, the Appeal Panel noted that the respondent could change his clothes and re-wear lightly soiled clothing, his mother provided and cared for his nutrition, purchasing and preparing all meals. The respondent reported that he had no energy or motivation to care for himself, would not assist his father with maintenance and cleaning the parental home. Medical Assessor Baker noted that the respondent appeared unkempt, unwashed and ungroomed. The Appeal panel were satisfied that the respondent could not live independently and required prompting to maintain a minimal standard of self-care and personal hygiene.
The Appeal Panel notes that Dr Bisht, in a report dated 7 June 2023, assessed Class 2 for self care and personal hygiene and provided the following reasons: “The client is not as particular about grooming, but is keeping a healthy diet. He showers every 3-4 days”. However, the Appeal Panel noted that at the time of Dr Bisht’s assessment the respondent had moved back in with his girlfriend, whereas he now lives with his parents after the reconciliation with his girlfriend broke down.
Dr Abdal Khan in his report of 6 June 2022 also assessed Class 2 for self care and personal hygiene. At the time of Dr Khan’s assessment, the respondent was living with his partner. Dr Khan provided the following reasons for the Class 2 assessment:
“Mr Adebiyi brushes his teeth every one to two days but showers every three to four days. His reduced motivation has affected his attention to personal grooming and he often requires prompting from his partner to attend to his self-care. Mr Adebiyi is less involved in completing domestic tasks, including cooking, cleaning and grocery shopping”.
The Appeal Panel was satisfied that there has been a deterioration in self care and personal hygiene since the assessment by Dr Khan and Dr Bisht and the respondent should be assessed as Class 3.
In terms of employability, the Appeal Panel noted that the respondent does not work, does little activity at home, cannot adequately look after himself, cannot manage his finances or read. Given his global impairment, the Appeal Panel was satisfied that the respondent was unfit to work.
The Appeal Panel noted that Dr Bisht assessed Class 3 for employability and provided the following reasons:
“Considering that the client is able to plan his diet, listen to music regularly, and watch YouTube videos regularly, as well as travel on his own to unfamiliar places, there is some capacity, rather than no capacity, from a psychiatric perspective, especially if the client does not have to leave the house. The client would be able to work from home in a job that requires the worker to do simple tasks. The client would be able to work 2-3 hours a day 2-3 days a week”.
As Medical Assessor Baker noted above, the respondent has not worked at all in any capacity since the subject injury. The Appeal Panel agrees that the respondent is more severely impaired in his employability than as documented by Dr Bisht. The reasons provided by Dr Bisht in his assessment did not include typical exemplars for assessment of employability using the current Guidelines.
The Appeal Panel noted that Dr Khan assessed Class 5 for employability in his assessment of impairment. Dr Khan provided the following reasons: “Mr Adebiyi does not have capacity to work due to the pervasiveness of his mental health and cognitive difficulties.” The Appeal panel agreed with the assessment of Dr Khan for employability.
In summary, the Appeal Panel assessed Class 3 for self care and recreational activities, Class 3 for social and recreational activities, Class 2 for travel, Class 3 for social functioning, Class 3 for concentration, persistence and pace and Class 5 for employability. The median class was 3 and the aggregate score 19. This results in an assessment of 24% WPI.
For these reasons, the Appeal Panel has determined that the MACs issued on 31 October 2023 and 15 May 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W6049/23 |
Applicant: | Andrew Adebiyi |
Respondent: | RFD Group Pty Ltd |
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 Dr Gerard Chew 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 AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Psychological | 5/6/20 deemed | 11 | 11 | 24 | 0 | 24 |
| Total % WPI (the Combined Table values of all sub-totals) | 24% | |||||
0
2
0