Serendipity (WA) Pty Ltd v BIY

DETERMINATION OF APPEAL PANEL
CITATION:	Serendipity (WA) Pty Ltd v BIY [2023] NSWPICMP 238
APPELLANT:	Serendipity (WA) Pty Ltd
RESPONDENT:	BIY
Appeal Panel
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	2 June 2023
CATCHWORDS:	wORKERS cOMPENSATION - The appellant sought to introduce fresh evidence that it said contradicted the assertions made by the worker as to his current social functioning; the Panel accepted the evidence but found that it did not contradict the worker’s evidence regarding social functioning; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 30 March 2023 Serendipity (WA) Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 2 March 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        the assessment was made on the basis of incorrect criteria, and
·        the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) a desktop investigation of BIY (the respondent) by Quantum Corp dated 2 February 2023.
The appellant submits that the evidence is relevant and should be considered by the MA as it contradicts the assertions made by the appellant as to his current social functioning.
The appellant submits that the evidence was not available and could not reasonably have been obtained because the report was not provided to the solicitors for the appellant until 8 February 2023 and it was not until review of the MAC, and consideration was had to the respondent's current reported functioning, that its relevance became apparent. It is directly related to the decision which was required to be made by the MA.
The respondent submits that “The fresh evidence should either be rejected or given such minimal weight that it does not affect the outcome.”
The Appeal Panel determines that the evidence is relevant and should be received on the appeal:

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the fresh evidence contradicts the assertions made by the appellant as to his current social functioning. The appellant’s submissions are restricted to this category in the Psychiatric Impairment Rating Scale (PIRS).
In reply, the respondent submits that no errors were made.

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 was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury occurring on a deemed date of injury of 16 April 2019.
The MA obtained the following history:
“BIY reported that he commenced his employment with this employer on 2 April 2018. Whilst working for this employer he completed his Mental Health First Aid course on 9 April 2019. He was injured on 16 April 2019 – deemed. BIY documented many incidents of bullying, harassment and racial discrimination from his employer. He stated he was humiliated, shamed and verbally injured with his senior manager calling him a ‘dirty nigger’. BIY explained that the racist slur was damaging to his self-esteem, work hardiness and workplace resilience. He reported that he was fearful of the senior manager who had made this racist comment. He became depressed, hopeless and felt worthless. He described leaving the US to avoid the racial intolerance he experienced.
BIY reported that whilst he was employed by this employer he had experienced a client committing suicide. He felt shame and guilt that he was unable to prevent this event. He developed nightmares involving the death and the conflict in his workplace. He suffered from poor sleep with him developing intrusive, depressive ruminations about him being helpless and disempowered by his employer. He reported that he became too socially isolated himself as he feared that he would be further shamed by people in the small community where he lived and worked. He became overwhelmed by his manager directing him to drive excessive distances for more than 2 hours prior to work and the 2 hours return from work each day to work in a small distant northern rural town outside of his home city. He feared for his safety driving long distances in the twilight of each day as he was aware that native animals were most active around dawn and dusk on rural roads. He requested not to drive; the request was denied.
BIY became increasingly depressed and suffered intrusive suicidal thoughts. He commenced self-harming. He suffered from hazardous alcohol use. He drank increasing amounts of alcohol up to one x 700ml bottle of Caribbean rum each day. His depressive symptoms deteriorated. He lost interest in his marriage. He was agitated and distressed in the family home. His wife separated, and divorced him whilst she attempted to forge a new career in Gympie QLD.
BIY attempted to complete suicide by taking a potentially lethal overdose of 160 tablets from four x seven day blister packs that had been dispensed to him in one attendance at his chemist. He attended Armidale Hospital and was admitted to psychiatric hospital. The discharge summary reported him having drug induced manic symptoms. The general practitioner has documented that Citalopram had induced a manic psychosis. One episode of manic psychosis is sufficient to diagnose a person with Bipolar I disorder.
BIY became unemployed, isolated from his community and separated from his daughters who moved with his wife to Gympie. He moved to Gympie and rented a room in Gympie. He was unable to sustain his rental accommodation due to conflict within the house. He was placed in a small side room and had been given 30 days’ notice to vacate by the property owner at the time of this assessment. He stated he was too irritable and agitated with the other house residents and he had not been able to make friends. He reported that he had commenced looking for future accommodation close to his daughters. He reported that his hazardous drinking of alcohol continued most days.”
After setting out details of the respondent’s present treatment regime, the MA then noted present symptoms as follows
” BIY reported continuing to suffer from the following psychiatric symptoms:
• Intrusive, anxious distressing memories
• Disrupted sleep
• Angry outbursts
• Poor concentration with inability to learn new skills
• Recurrent involuntary and intrusive, distressing memories of the client who committed suicide
• Low energy with loss of interest in socialising outside with his daughters
• Nightmares about the death of the client
• Negative mood states associated with hypervigilance, startling and depressed mood and distress when recalling the fall and injuries sustained
• Recurrent feelings of shame and guilt
• Thought of death, hopelessness and worthlessness
• Anhedonia
• Shame that he is unable to work and assist support his daughters as he had prior to the onset of this primary psychological injury
• Permanent loss of his relationship with his now ex-wife
• Difficulty initiating sleep with loss of restorative sleep
• Panic attacks
• Persistent negative cognitions of confusion and guilt that he had let his family down
• Recurrent suicidal thoughts
• Hazardous drinking of alcohol most days.”
The MA then set out details of BIY’s prior injuries and condition which we do not intend to repeat here as it is not relevant to the issues in dispute. Similarly with the MA’s details regarding BIY’s general health and work history.
As regards BIY’s activities of daily living, the MA said:
“BIY was living independently. He stated he rented a small room in a share house. He had been given notice to leave his accommodation prior to this assessment. He was attempting to find new accommodation to remain close to his children in Queensland. He appeared unkempt at the time of this assessment. He was unshaven. He was wearing clean clothes. He was reliant on take-away food.
BIY rarely goes to social events. He did not celebrate Christmas 2022 or New Year’s Eve. He draws most days. He demonstrated a sketch of a hummingbird that he was sketching during the assessment. He reported that his art enabled him to maintain his mindfulness. He listened to music that he enjoyed.
BIY can travel to local and familiar places alone. He travels to and from the children’s school to collect them most days. The school is a short distance from his accommodation. He had panic attacks whilst travelling and kept his travel to local and familiar locations since his arrival in Queensland.
BIY reported that he is divorced from his wife. He followed her and the children to Queensland so he could be close to the children. His primary relationship with his now exwife is unreconcilable. He is isolated and alone except to collect his children from school and care for them until the children’s mother attends to collect them after her work is finished. BIY reported that his relationship with his mother is poor. BIY had lost all friendships.
BIY reported that he could not read more than a brief newspaper article. He found it difficult to follow complex instructions. He could not concentrate and required extended time to answer specific questions. He made simple errors in attempting to manage his finances. He is reliant on his mother to organise and pay his rent and other bills.
BIY was unable to work in any capacity.”
Findings on mental state examination were reported as follows:
“BIY was sitting alone in his room in Gympie, Qld. He said he left Armidale to travel to Queensland on 15 August 2022. He appeared unkempt. He was anxious and agitated. He described suffering from panic attacks whilst travelling. He would avoid crowded shopping centres and only shopped when he expected no crowds.
BIY was asked to describe his mood. He stated that he was angry, depressed and distressed…
BIY said he was often too anxious to eat regular meals. He said he preferred to drink Caribbean rum and that he would still experience nightmares about the suicide of his client. BIY stated he was unsure of his future. He said he still had suicidal thoughts. He had acted on his suicidal thoughts on a number of occasions since the onset of this primary psychological injury. He said his panic attacks impaired him in public. He felt shamed and embarrassment by his psychological injury.
BIY demonstrated shame whilst he spoke about the racial discrimination he had experienced in the workplace….
BIY had difficulty establishing rapport. Rapport had to be re-established on a number of occasions as the assessment slowly progressed. His concentration waned soon after commencing the assessment. He explained that he would experience distressing memories of his experience in the workplace that caused him to lose his concentration and slowed his pace of performing any complex task. He demonstrated a sketch of a hummingbird. He reported he would trace over his lines repeatedly in an attempt to divert his thoughts away from his depressive themes.”
In summarising the injuries and diagnoses, the MA said:
“BIY developed three new co-morbid conditions caused by his employment with this employer:
• 6B40 Post traumatic stress disorder.
• 6A60.4 Bipolar type I disorder, current episode depressive, moderate without psychotic symptoms.
• 6C40.23 Alcohol dependence, sustained partial remission.”
As regards consistency of presentation, the MA said:
“BIY’s presentation was consistent with his diagnosed psychiatric condition. He was unable to return to work or any lesser work role due to the persistent psychiatric symptoms caused by this primary psychological injury.”
The MA assessed 19% WPI, from which he deducted one-tenth in respect of BIY’s pre-existing condition.
He added:
“BIY had pre-existing psychiatric conditions. A one tenth (1/10th) deduction was made in accordance with current guidelines.
BIY was treated with evidence-based psychological treatment and evidence based pharmacological treatment for his primary psychological injury. He had not improved in his psychological functioning to enable him to return to any employment. He had suffered from significant and serious side-effects of the treatment provided to manage his primary psychological injury. He had made some improvement however he remained permanently psychiatrically impaired…”
The MA then turned to address “the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs.” He set out in considerable detail a summary of all the evidence he had before him.
Relevantly he said:
“Dr Michael Prior psychiatrist report dated 16 August 2022.
In regard to pre-existing psychiatric impairment, there, in my opinion, would have been some degree of pre-existing psychiatric impairment associated with to his pre-existing psychiatric status. This is difficult to measure precisely so a deductible portion of 10%, in my opinion, is appropriate. Therefore, final whole person impairment equals 24% whole person impairment minus 10% of this (2.4%) equals 21.6%, which is rounded up to 22%.
Dr Brian Potter psychiatrist dated 13 July 2022.
BIY's Complex Post-Traumatic Stress Disorder can be accepted clinically as a lifelong disorder which will wax and wane.
Dr Brian Potter psychiatrist dated 7 November 2022.
In accepting that there was bullying and harassment in BIY’s workplace, this theoretically could have precipitated or enhanced his underlying emotional fragility most likely from the Complex Post-Traumatic Stress Disorder, a chronic condition.
Work Cover Certificate dated 16/04/2019. Dr Louise Fisher. Injury: Major depression /complex PTSD triggered by workplace bullying. Injury Mechanism: prolonged intimidation at work, denial of payments due under his contract, refusal to allow association with other staff…”
The MA awarded a Class 3 for social functioning and said:
“BIY reported that he is divorced from his wife. He followed her and the children to Queensland so he could be close to the children. His primary relationship with his now ex-wife is unreconcilable. He is isolated and alone except to collect his children from school and care for them until their mother attends to collect them after her work is finished. BIY reported that his relationship with his mother is poor. BIY had lost all friendships.”
The report from Quantum Corp dated 2 February 2023 was summarised by the appellant in its submissions as follows:
“The desktop investigation report details several social media posts relating to the Respondent which we summarise as follows:
(a) On 19 December 2022, on Facebook, the Respondent was tagged in a post by BJN with five others which states - ‘The Leviathan was conquered including Sanura… loved it but once is enough its insane!’
(b) On 20 December 2022, on Facebook, the Respondent was tagged in a further post by BJN with five others, which states – ‘Day 2. Off to seaworld to get some braids and pat the stingrays again before heading out to wetnwild for the afternoon.’
(c) On 24 December 2022, on Facebook, the Respondent was tagged in a post by BJN with five others which states – ‘What day is it? Happy birthday for Ulan! Morning at Seaworld before dinner at the main beach at Hurricaines!’
(d) On 15 April 2022, the Respondent uploaded a photograph of food – which would appear to be out in an eatery.
These social media posts are relevant when consideration is given to the comments made by the MA with respect to his assessment under the PIRS category for Social Functioning.
The appellant told the MA that ‘He is isolated and alone except to collect his children from school and care for them….’ and ‘BIY had lost all friendships.’
These assertions are not supported and are contradicted by the desktop surveillance of the appellant's social media which show the appellant at restaurants, sharing a meal with others. The social media posts all suggest that the appellant visited a theme park with others.
The MA assessed the appellant under Class 3 based on the appellant's reports that he was isolated, alone and had lost all his friendships. However, these assertions are contradicted by the social media pictures where the appellant is depicted sharing a meal with friends. The social media posts also indicate the appellant visited theme parks with others.”

The Quantum Corp report noted: “The claimant has a Facebook profile.”
On 9 October 2022: the claimant updated his cover photo with the following: “I went back to being invisible. Being nobody. Nothing.”
The report continued:
“24 December 2022: The claimant was tagged in a post by BJN with 5 others. The claimant was depicted in several photographs and the post states: ‘What day is it? Happy Birthday for Ulan! Morning at SeaWorld before dinner on Main Beach at Hurricanes!’”
BJN appears to be BIY’s ex-wife. And the post was sent by her.
There is a photograph of BIY apparently at a restaurant, the date of which is unclear.
The report then said:
“On 20 December 2022: The claimant was tagged in a post by BJN with 5 others and the post states: “Day 2. Off to seaworld to get some braids and pat the stingrays again before heading out to wetnwild for the afternoon…
19 December 2022: The claimant was tagged in a post by BJN with 5 others and the post states: ‘The Leviathan was conquered... including Sanura... loved it but once is enough it's insane!.’
30 January 2021: The claimant updated his profile picture with the following:’I hate me too.’
6 October 2021: The claimant posted a photograph of two inner forearms with tattooed writing on each. The left forearm was tattooed with ‘Always My Fault’ and the right forearm was tattooed with ‘Always The Bad Guy’. It could not be confirmed if the arms were that of the claimant.
1 October 2021: The claimant was tagged in a post by BJN with 14 others. The post referenced the Black Dog Institute and One Foot Forward and states: ‘Help support our team at APVMA for Mental Health support!’
The claimant also commented on the post: ‘Hmmm’
On 1 October 2021 BJN posted: ‘Please support my walk for Australians impacted by mental health and suicide.’
19 July 2021: The claimant posted the following on his timeline: ‘I don’t belong in this world. There is nobody and nothing in it for me. I’m too weak to survive here. I’m nothing and a failure.’
19 July 2021: The claimant updated his profile picture with the following: ’Pain changes people, it makes them trust less, overthink more and shut people out.’
19 July 2021: The claimant updated his cover photo with the following: ‘I’m hiding what I’m feeling but I’m tired of holding this inside my head.’
The claimant has an Instagram profile. Perusal and link analysis of this profile, as well as close associates / family, found the following content post the date of injury, being 16 April 2019. 1 October 2022: The claimant posted the following photograph and stated: ‘Sad for attention and I pay to advertise my misery I've been told. Words I'll never forget….’”
In summary, the Panel noted that most of the posts were not in fact from BIY, and there were references to a mental health support group.
BIY’s own posts described a man who regarded himself as “nothing and a failure.”
Contrary to the appellant’s submissions, the Quantum Corp report confirms that BIY has limited social functioning.
As the respondent correctly points out: “The post neither alleges nor proves that the Respondent rode the Leviathan or even attended Sea World that day. All we know is that the Respondent was tagged in that post.”
The respondent’s submissions provide more clarity regarding BIY’s attendance at a restaurant. The respondent submits:
“We also know that the Respondent went out to dinner at Hurricane’s Grill and Bar in Surfers Paradise on his birthday with his 2 daughters and presumably his ex-wife. Obviously his 2 daughters are not his friends but his children and it is not unexpected that he would spend some time with his daughters on his birthday. Whether the Respondent and his ex-wife remain friends or amicable acquaintances is beside the point. BJN is the mother of his children and that connection is a permanent one. It is obviously in the interests of the children that the Respondent and BJN maintain a harmonious relationship. It is curmudgeonly of the Appellant to begrudge the Respondent having dinner on his birthday with his 2 daughters and his ex-wife. It is noted that the Respondent is not smiling on these birthday photographs: he looks depressed.”
We agree with this submission and also note that in our view, BIY did indeed appear unsmiling and not happy.
The respondent adds:
“The appellant notes that on 15 April 2022 the Respondent uploaded (to Instagram) a photograph of food ‘which would appear to be out in an eatery.’ The Respondent has not alleged that he has forsaken eating. What is notable about the post are the words ‘Be the first to like this’. Not one person has liked the post. This corroborates the Respondent’s history to Dr Baker that he has no friends. The Respondent couldn’t manage to score one Instagram hit despite the allure of the delicious food depicted in the photograph. As the old saying goes, a picture tells a thousand words. This man is lonely and cannot garner some online attention even when he tries.”
The Instagram post by the respondent on 1 October 2022 shows “A perfect looking beer in the photograph but again the words “Be the first to like this” appear at the bottom of the post. Not a soul has liked this attractive post. This speaks volumes as to how isolated and alone the respondent really is. Note the respondent’s comment or by-line for his post which reads “Sad for attention and I pay to advertise my misery I’ve been told. Words I’ll never forget.” The pathos is palpable. This is not a photograph of him smiling and out drinking with friends. Many depressed people use alcohol as a way to self-medicate and unfortunately the Respondent falls into that category.
The respondent cites various other posts referred to by Quantum Corp and they in general support the view we have taken that BIY is significantly impaired in the category of social functioning.
For example:
“On 9 October 2022 the respondent updated his Facebook cover photo. The new photo is in black and white. Stark white words jump out against a drab grey background. The words read: ‘I went back to being invisible. Being nobody. Nothing.’ These are very dark words. Again this entry supports the respondent’s history to the MA that he feels isolated, alone and without friends.”
The descriptor for a Class 3 rating reads: “Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The descriptors are examples only, but it is clear on all the evidence that BIY’s “previously established relationships are severely strained.” He has separated from his wife and has gone to great lengths to maintain some sort of relationship with his children.
In our view, BIY’s condition comfortably fits the Class 3 descriptor.
For these reasons, the Appeal Panel has determined that the MAC issued on 2 March 2023 should be confirmed.

[2023] NSWPICMP 238

2 June 2023