Soliman v Secretary, Department of Education
[2024] NSWPICMP 582
•19 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Soliman v Secretary, Department of Education [2024] NSWPICMP 582 |
| APPELLANT: | Adel Soliman |
| RESPONDENT: | Secretary, Department of Education |
| APPEAL PANEL | |
| SENIOR MEMBER: | Kerry Haddock |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 19 August 2024 |
| DATE OF AMENDMENT: | 16 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); worker sustained psychological injury; Medical Assessor (MA) assessed 13% whole person impairment (WPI); worker lodged appeal on the grounds that the assessment was made on the basis of incorrect criteria; Held – Medical Assessor had incorrectly applied clause 1.26 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 by rounding up the deduction made pursuant to section 323(1) of the 1998 Act, rather than rounding up the assessment of impairment after the deduction had been made; the assessment of 13% WPI was increased to 14% WPI; MA had not erred in placing the appellant in Class 2 for social functioning under the psychiatric impairment rating scale (PIRS), rather than in Class 3 o; Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 May 2024 Mr Adel Soliman (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
18 April 2024.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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
The appellant has sustained a psychiatric/psychological injury, the date of the injury being
19 April 2021.The appellant claimed permanent impairment compensation, pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), claiming that his injury had resulted in 17% whole person impairment (WPI).
The respondent disputed that the appellant’s condition had stabilised, such that he had reached maximum medical improvement.
The appellant lodged an Application to Resolve a Dispute with the Personal Injury Commission (Commission) on 14 February 2024.
The respondent lodged its Reply on 7 March 2024.
The medical dispute was referred to Medical Assessor Singh, who assessed the appellant on 22 March 2024.
On 18 April 2024, Medical Assessor Singh issued a MAC, in which he assessed the appellant’s WPI as 13%. The appellant appeals that assessment.
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 appellant to undergo a further medical examination because there was sufficient information in the papers to enable the Appeal Panel to make its own assessment after identification of the error below.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
In summary, the appellant submits that:
(a) The Medical Assessor incorrectly applied guideline 1.26 of the Guidelines, by rounding up the deductible proportion of the assessment, rather than rounding up the assessment of WPI after the deduction of the deductible proportion.
(b) The correct calculation would result in a total of 14% WPI.
(c) The Medical Assessor erred in his assessment of the Psychiatric Impairment Rating Scale (PIRS) for social functioning.
(d) On the available evidence, Class 3 of the PIRS best described his social functioning, primarily because his family relationships had been severely strained and prior friendships were non-existent as a result of the injury.
(e) The AMS [sic] had failed to give proper weight to the evidence relating to his relationship with his wife and children.
(f) The assessment had the potential to increase the aggregate score by 2% and was material to the final assessment of WPI.
In reply, the respondent submits that:
(a) In accordance with the decision in Phillip John Carmody v Walter Merriman & Sons Pty Ltd[1] “a medical assessment is entirely a matter for the AMS, who has the medico-legal reports from both parties before him or her…and has frequently had the benefit of a personal examination of the worker…”
[1] [2003] NSWWCCPD 27.
(b) There is no evidence that the examination by the Medical Assessor was in any way materially defective, and the examination amounted to a proper medical examination.
(c) The Medical Assessor made the appropriate deduction pursuant to s 323 of the 1998 Act and provided appropriate reasoning for the deduction.
(d) The appellant erred in assuming that the Medical Assessor made a one-tenth deduction. It is clear that the Medical Assessor believed the deduction pursuant to s 323 of the 1998 Act to be greater than one-tenth.
(e) The pre-existing injury, pre-existing condition or abnormality must cause or contribute to the impairment. If a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even where the pre-existing condition was asymptomatic prior to the injury.[2]
[2] D’Aleo v Ambulance Service of New South Wales NSWCA 12 March 1996, unrep; Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole); Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254.
(f) The case law is clear that it does not matter if the pre-existing condition was asymptomatic. If the loss is to some extent due to the pre-existing condition, there must be a deduction of the deductible proportion for that loss.[3]
(g) The MAC clearly evidenced compliance with the substance of the test in Cole. The Medical Assessor firstly identified a level of impairment as a result of the injury as being 15% WPI. The Medical Assessor secondly identified a proportion of that impairment that he considered was due to a pre-existing condition. The Medical Assessor thirdly identified what that pre-existing proportion was, being 2% WPI.
(h) On the basis of the above, the Medical Assessor made an appropriate deduction. A one-tenth deduction would be at odds with the significant available evidence.
(i) The Medical Assessor’s assessment of the pre-existing condition under s 323 of the 1998 Act is correct and based on his independent assessment of the appellant.
(j) There has been no demonstrable error in the Medical Assessor’s assessment and the MAC was not based on incorrect criteria.
(k) The assessment of Class 2 for social functioning is accurate.
(l) In accordance with Class 2, the Medical Assessor has demonstrated that the appellant’s existing relationships were strained. In comparison to Class 3, the Medical Assessor had noted there had been no period of separation or domestic violence.
(m) The Medical Assessor assessed and engaged with the evidence in coming to a finding of Class 2 for social functioning.
(n) The Medical Assessor assessed the appellant according to the Guidelines and the PIRS categories.
(o) There has been no demonstrable error in the Medical Assessor’s assessment of the appellant’s impairment and the MAC was not based on incorrect criteria.
[3] Ellul vGovernment Cleaning Service [1996] NSWCC 3; (1996) 12 NSWCCR 631.
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 & Ors[4] 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.
[4] [2006] NSWCA 284.
The role of the Appeal Panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW.[5] The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
[5] [2008] NSWCA 116.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales[6] Davies J considered that the form of words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
[6] [2013] NSWSC 1792.
Medical assessment certificate
The parts of the MAC issued by the Medical Assessor that are relevant to the appeal are set out, where relevant, below.
Under “History relating to the injury, at p 2 of the MAC, the Medical Assessor recorded:
“…Mr Soliman told me that from about 2020 Mr (Noel) Dixon was the principal at the school…Mr Soliman believed that he had a good relationship with Mr Dixon…Later Mr Soliman was directed to stop assisting Mr Dixon by the then principal Linda O’Brien.
Later when Mr Dixon approached Mr Soliman then [sic] he was no longer able to assist Mr Dixon, Mr Dixon was not happy and from that time Mr Soliman observed a change in his attitude, he stopped to chat [sic] and ignored Mr Soliman.
…
[Mr Dixon] would make comments such as ‘when are you going to retire’ and ‘when are you going to transfer to another school’.
…Mr Soliman tried to ignore this and focus on teaching but there were days when Mr Soliman would be travelling to school and would feel anxiety rising inside him.
…
Mr Soliman was told that if he took any time off then he would not be doing HSC marking. Mr Soliman did not hear anything more on this and he undertook HSC marking that year. Mr Soliman’s mental health was getting affected. He was sleeping poorly, and binge eating and had low mood.
…
Mr Soliman became overwhelmed and decided to take leave for the entire 2021…He started to work as a casual teacher at [a] school in his area and started to feel like himself again.
…
In March 2021 Mr Soliman had applied to be an exam marker for the HSC, something which he had done for more than 20 years…On 31 March 2021, Mr Soliman received a telephone call from Mr Dixon informing him that he would not approve his application for HSC marking and told him that he can [sic] submit a complaint.
Mr Soliman felt a wave of despair and started to have chest pain with difficulty breathing and could not sleep that night. Mr Soliman was apprehensive about going to work and interacting with Mr Dixon that day. Mr Soliman attended the staff meeting that was chaired by Mr Dixon, but his heart was racing and [he] felt unwell. Mr Soliman tried to continue working but was extremely anxious and had to call the department well-being support line and was counselled and told to go home. Mr Soliman left the school and saw his doctor on 19 April 2021 and has not returned to work since that day.”
Under “Present symptoms” at p 3 of the MAC, the Medical Assessor recorded:
“Mr Soliman gets sharp pain in his stomach, gets chest pain, has been asked to do investigations and advised not to take a lot of pain killers.
…He feels numb in his hand, has dry mouth all the time, gets chest pain and takes medication for them. He has trouble to sleep, wakes up [a] few times in the night, may hit himself and has been crying most of the time. He has been low in appetite and has lost weight as well. He told me that nothing has changed with the treatment. He has four teachers in the family and feels ashamed about this. He feels like an animal. He told me that he has lost relationship with his wife and didn’t see his daughter for a long time.
After the…injury, Mr Soliman did spiritual training last year from 11/11/2023 till [sic] end of December. He did some voluntary spiritual work at church, talking to older people and is paid $1000 allowance every month for expenses. He would do this 3 times a week, and sometimes for 2-4 hours. Mr Soliman said, ‘He ruined my life, I was in a very difficult school for 20 years and was told to retire or go to another school. This thought keeps going on in my head’.”
Under “Details of any previous or subsequent accidents, injuries or condition”, at p 3 of the MAC, the Medical Assessor recorded:
“…
During 2007-08 there was upheaval at the school, the principal left the school, acting principal took sick leave, and several teachers went on stress leave. As Mr Soliman had been at the school longer than other teachers, he took on more duties and his stress levels went up.
In about February 2008 Mr Soliman…was closing [a] heavy glass door…one of the students in his care ran towards the door attempting to slide under it. Mr Soliman managed to stop the door from closing but became quite distressed thinking what could have happened…
That same month while at a meeting of executive staff Mr Soliman felt unwell with chest pain and thought he was having a heart attack. The ambulance was called, and he was told that it was stress related and had to take some time off. Mr Soliman took a few days off and while at home he found himself teary and agitated. He consulted his general practitioner Dr N. Kodsi and his doctor referred him to Dr Deidre Horne psychiatrist, whom he consulted once or twice and was prescribed medication and later continued working.
In 2011 there were multiple stabbing incidents in school among students and that of violence against teachers. It was [an] extremely stressful environment…Mr Soliman saw [sic: sought] treatment from Dr Horne again. He had discontinued taking the medication prescribed, he was counselled and his medications were changed.
…
Mr Soliman had psychiatric symptoms in 2016…when he stopped a fight between school students. He was scared that a knife may be pulled on him. It triggered an anxiety attack with palpitations and breathlessness, and he was taken to Auburn Hospital Emergency Department and told it was due to the stress. He was off work for about four months. His psychiatrist and psychologist treated him. He used Dothep 25mg. He was diagnosed with anxiety and depression. After six months, he recovered fully and was off therapy and back to work.
There was another accident in 2017. A student spat at him, and his deputy principal ignored his complaint. He was off work for seven months. He was treated again by the same psychologist and psychiatrist. Allegedly, he recovered fully and was back to work.”
Under the heading “Past history”, at p 4 of the MAC, the Medical Assessor recorded:
“Mr Soliman has previous history of anxiety and depression following stressful events. He would see his GP, psychiatrist and psychologist, prescribed medications, had counselling and went to work normally. No history of self-harm or suicide or mania or psychosis in the past.”
Under the heading “Social activities/ADL”, at p 5 of the MAC, the Medical Assessor recorded:
“Mr Soliman has no hobbies these days and is socially withdrawn. He was a soccer referee one of the tops in Australia, and this stopped after the injury.”
Under the heading “findings on mental state examination”, at p 5 of the MAC, the Medical Assessor recorded:
“Mental state examination done through video conference.
Mr Soliman was a 65-year-old male, who was well kempt and dressed appropriately, had a grey beard and was bald in front, appeared clean and well groomed. He was cooperative and rapport was well established. Good eye to eye contact maintained and had spontaneous speech. He got agitated and heightened during interview and showed his certificates and achievements. Mood described was ‘not good’ and had a restricted affect. ‘It was unfair for me to be treated in this way, very upsetting, and I told him to leave me alone’. There was no formal thought disorder and no symptoms of psychosis. He denied thoughts or intents of self-harm or suicide. He was worried as he is not able to work, worried that he may be homeless, or may end his life. He was oriented and alert during the assessment.”
Under the heading “summary of injuries and diagnoses”, at p 5 of the MAC, the Medical Assessor recorded:
“In my opinion, Mr Soliman presented with symptoms consistent with DSM-5 diagnosis of major depressive disorder following work related psychological injury…”
32. Under the heading “Evaluation of permanent impairment” at p 6 of the MAC, the Medical Assessor recorded:
“My answers to the following questions regarding the assessment of impairment and or whole person impairment in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment with respect to injury suffered in the accident are:
a. Is the worker claiming for any body part/system outside your field of expertise? If so, please indicate the body part/system No
b. Have all body parts/systems stabilised/reached maximum medical improvement? Yes
c. If not, please list those injuries not yet stable/at maximum medical improvement N/A
d. If stabilisation/maximum medical improvement of any or all injuries has not been reached, when, in your opinion, will this occur? N/A
e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? No
f. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality N/A”
Under the heading “The facts on which the assessment is based, at p 6 of the MAC, the Medical Assessor recorded:
“…
Clinical interview
Mental status examination
Documentation received including previous IME.”
Under the heading “Reasons for assessment, at p 7 of the MAC, the Medical Assessor recorded:
“…
c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs:
I have noted from various letters by Dr Blagoje Kuljic, consultant psychiatrist stating that Mr Soliman got distressed when the rehab providers contacted him.
In the letter by Dr Blagoje Kuljic (22 June 2022) – Mr Soliman still attends psychologist. He was overseas. While overseas, with cousins and friends felt very well. Took himself off medication. Made decision not to go back to work in school. Mr Soliman is not willing to use antidepressant medication. He prefers to continue psychology session and treatment with GP (general practitioner).
I have noted the independent medical examination report by Dr Blagoje Kuljic, consultant psychiatrist, dated 29 July 2023 – Dr Kuljic made a diagnosis of severe depression. The total degree of permanent impairment of those injuries resulting from work-related psychological injuries, which I have assessed, is 17%.
In my opinion Mr Soliman has a diagnosis of major depressive disorder and the final WPI is 13%, I differ in the category of social functioning, class 2 and have made a 1/10th deduction of pre-existing impairment.
…”
Under the heading “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing conditions or abnormalities”, at p 9 of the MAC, the Medical Assessor has recorded:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
Mr Soliman has been diagnosed with anxiety and depression before the index injury and was on and off treatment as well.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
[The MA has again recorded the events under the heading ‘Details of any previous or subsequent accidents, injuries or condition’]
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of s 323(2) I assess the deductible proportion as one tenth.
Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence.” [sic]
The Medical Assessor issued the following PIRS Rating Form (Table 11.8):
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
2
Mr Soliman told me that his wife has to remind him to shower and change clothes. He showers 1-2 times a week. He can’t mow the grass and can’t clean the house now.
Social and recreational activities
3
Mr Soliman does not go out much, some days goes to the church, 2-3 times a week, does not go to gatherings or family events, and spends time sitting at home. He is not actively involved and remains withdrawn.
Travel
2
Last year when Mr Soliman’s younger brother passed away then he went to Egypt for 4 weeks. He drives locally on his own. He went for haircut recently on his own.
Social functioning
2
Mr Soliman’s wife is unhappy, they are still married but she spends a lot of time out of home. He does not talk to her that much and gets upset. There was no period of separation or domestic violence. He told me that he feels he has lost relationship with his wife, and didn’t see his daughter for a long time.
Concentration, persistence and pace
3
Mr Soliman reads the bible, may read same thing 2-3 times, sometimes he may get up and forgets about why he got up. He struggles with his memory and can’t remember things as well as he used to do. He can’t focus on simple chores, loses focus and unable to complete tasks.
Employability
3
Mr Soliman cannot work at all in the same position. He can perform less than 20 hours per week in a different position. He can start with less hours and gradually increase the working hours.
Score Median Class
2
2
2
3
3
3
2.5 = 3
Aggregate Score Impairment Total %
+
+
+
+
+
15
15%
Pre-existing impairment = 1.5% rounded off to 2%
Effects of treatment = 0%
Final WPI = 13%
Appellant’s evidence
The appellant’s statement is dated 13 February 2024.
The appellant has given evidence about the issues at the school that were recorded by the Medical Assessor.
The appellant felt sad and depressed. He slept for three to four hours and was always tired. He had little motivation. There was no enjoyment in life. He felt worthless.
The appellant did not take much interest in his appearance. His wife reminded him to shower. His appetite was poor, but due to lack of exercise, he had put on weight.
The appellant avoided driving, as his concentration was poor. He did not socialise anymore. Friends had stopped visiting and he did not go to them.
The appellant used to be a soccer referee and really enjoyed this. He no longer refereed. He had little energy. His relationship with his wife and daughter was strained.
The appellant found solace in his religion and had recently obtained part-time work with the church. It was the only place that for a short time he found peace. Once he was back home, the sadness overwhelmed him. He thought about Noel Dixon and his treatment of him a lot and became teary and depressed.
The appellant stopped seeing Dr Kuljic in about August 2023 and had stopped taking the medication he prescribed. The medication made him feel confused and unable to think properly. He preferred to continue treatment with the psychologist.
Medical evidence
Dr Blagoje Kuljic – consultant psychiatrist
Dr Kuljic reported on 29 July 2023.
The appellant lived with his wife, daughter, and his daughter’s family on a property owned by his daughter.
Dr Kuljic recorded that the appellant married at the age of 27 to “a very supportive lady”.
Dr Kuljic recorded a history of injury that was consistent with that recorded by the Medical Assessor.
The appellant complained of feeling sad, rated 1/10. He did not look forward to tomorrow and was easily upset. He was not happy even when he was with his “grandkids”. He had no motivation even to go for a walk.
The appellant’s appetite and sleep were poor. He always felt tired.
The appellant reported thoughts of worthlessness. He hit himself but did not think about suicide. He is Christian, and that is against the Bible.
On the PIRS scale, Dr Kuljic rated the appellant as follows:
“Self-care and personal hygiene
Class 2 (mild impairment): the appellant used to shower daily, but now showered only once a week. He did not ask for food. However, he had gained weight because he did not move much.
Social and recreational activities
Class 3 (moderate impairment): in the last three months, the appellant had stopped even walking, which he had done before with his wife. He had no activities throughout the day. He did not socialise. He went out only for a church service twice or three times a week, just for the service. Most of the time, he went with his wife.
Travel
Class 2 (mild impairment): the appellant could drive for up to 20 minutes. 99% of the time he travelled with his wife. She did not trust him to go anywhere alone.
Social functioning/relationships
Class 3 (moderate impairment): the appellant had no friends anymore. He used to have friends and visit them. He used to scream and yell at his wife, to the extent that she got used to it. Most of the time that was his fault. His daughters dealt with him as with a sick person. They appreciated what he had done for them and tolerated him.
Concentration/pace/persistence
Class 3 (moderate impairment): the appellant used to be a soccer referee. He could only focus on the ladies’ World Cup games for 10 to 15 minutes. He could not focus on simple chores such as arranging the table for lunch. He lost focus and did not complete the task.
Adaptation
Class 3 (moderate impairment): the appellant’s last working day was 31 March 2021. He did not work. He could do something easy, up to 15 hours per week. His church asked him to help with Bible studies. Although he agreed initially, he did not do it. He could do something easy in a different environment, but not go back to school.”
Dr Kuljic assessed the appellant with 17% WPI. He made no deduction pursuant to s 323 of the 1998 Act, or for the effect of treatment.
Dr Alexey Sidorov – consultant forensic psychiatrist
Dr Sidorov’s most recent report is dated 19 November 2023.
Dr Sidorov recorded a history that the appellant continued to reside in his own home with his wife. He continued to receive workers’ compensation. He was to shortly commence part-time employment in his church. This was an administrative role, and the appellant would be working up to three hours per day, three to four times per week.
The appellant’s mood continued to be low, and he did not enjoy much. His energy levels were generally low, and he lacked motivation. His appetite was reduced, and he did not take pleasure from eating. His sleep continued to be intermittently disturbed.
The appellant continued to ruminate regarding the injustices in his workplace. When he did so, he further dropped and experienced significant anxiety and distress. At times he felt hopeless, but denied any thoughts of self-harm, suicidal ideation, or harm to others. There was no evidence of mania or psychosis.
The appellant continued to see Dr Kuljic. He had stopped taking medication, as he was worried about side effects, and had not noticed any difference in his mood since discontinuing the medication.
Dr Sidorov recorded that the appellant showered and brushed his teeth regularly, although at times of low mood he was less motivated to do so. His wife generally cooked. He ate once or twice per day. He was able to leave home independently, although he had been avoiding that, aside from going to church or medical appointments. He had travelled to Brisbane with his wife to see his daughter.
The appellant stayed at home most of the time, taking part in religious-related writing and reading the Bible. He had some friends from church but did not socialise with them outside that setting. Dr Sidorov recorded “likely” strains in the appellant’s relationship with his wife, but no periods of separation. The appellant’s daughter and her children visited regularly, and he maintained a good relationship with his daughter.
The appellant described finding it difficult at times to concentrate and focus, particularly when he was preoccupied with his thoughts. He felt that his memory had been affected. He was scared to return to work in a school or to any kind of teaching, but was willing to trial working in his church, which would give him some purpose in life.
Dr Sidorov diagnosed the appellant with major depressive disorder. He had partial capacity for employment, in a different setting from a school, and not in a teaching capacity.
Dr Sidorov opined that the appellant required assertive psychiatric treatment, with antidepressant medications, under the supervision of a consultant psychiatrist. He had not reached maximum medical improvement because his treatment had not been optimised.
Ground one – calculation of deductible proportion
The appellant did not take issue with the Medical Assessor having applied a one-tenth deduction to the assessment of WPI, but rather asserted that the Medical Assessor made an error in his application of clause 1.26 of the Guidelines.
Clause 1.26 of the provides as follows:
“Rounding
Occasionally the methods of the Guidelines will result in an impairment value which is not a whole number (eg an assessment of peripheral nerve impairment in the upper extremity). All such values must be rounded to the nearest whole number before moving from one degree of impairment to the next (eg from finger impairment to hand impairment, or from hand impairment to upper extremity impairment) or from a regional impairment to a WPI. Figures should also be rounded before using the combination tables. This will ensure that the final WPI will always be a whole number. The usual mathematical convention is followed where rounding occurs – values less than 0.5 are rounded down to the nearest whole number and values of 0.5 and above are rounded up to the next whole number. The method of calculating levels of binaural hearing loss is shown in Chapter 9, paragraph 9.15, in the Guidelines.”
The correct application of cl 1.26 of the Guidelines required the Medical Assessor to firstly calculate the appellant’s WPI. He was then required to apply any applicable deductible proportion. Should that calculation result in a number that was not a whole number, then the final figure would be rounded up or down, as appropriate.
The Medical Assessor assessed the appellant’s WPI as 15%. He then applied a deductible proportion of one-tenth (1.5%), which he rounded up to 2%, so that the final figure was 13% WPI.
The correct calculation of the appellant’s WPI is as follows:
WPI = 15%
Less deductible proportion of one-tenth (1.5%)
Total = 13.5%
The figure of 13.5% is rounded up, so that the appellant has 14% WPI.
The assessment was made on the basis of incorrect criteria.
Ground one of the appeal is upheld.
Ground two – error in assessment of social functioning
The Medical Assessor was required to interview the appellant and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusion, as well as the evidence referred to above.
The concept of a demonstrable error as provided for in s 327(3)(d) of the 1998 Act was discussed by Gleeson JA in Vannini v Worldwide Demolitions Pty Ltd.[7] His Honour observed that for an error to be demonstrable, it needed to be material, apparent on the face of the certificate, and an error for which there is no information or material to support the finding, rather than a difference of opinion.
[7] [2018] NSWCA 324.
In Parker v Select Civil Pty Ltd,[8] Harrison AsJ at [66] said:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense.”
[8] [2018] NSWSC 140.
The appellant submitted that the Medical Assessor made a demonstrable error by wrongly placing him in Class 2, rather than Class 3, of the PIRS scale for social functioning.
The examples under Table 11.5 of the Guidelines for 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.”
The Medical Assessor took a thorough history from the appellant and reviewed the available medical evidence.
The Appeal Panel has considered the evidence discussed above.
Dr Kuljic recorded a history that the appellant and his wife lived with one of their two daughters and her family. The Medical Assessor recorded a history that he and his wife lived in their own home, and their daughters lived independently, so the family’s situation may have changed between July 2023 and November 2023.
In any event, the appellant and his wife live together. Their relationship may be described as “strained”, but there is no history of either separation or domestic violence. He used to yell and scream at his wife, which suggests that this was in the past. She “got used to it”.
The appellant’s wife cooks for him and prompts him to shower and change clothes, although “he does not talk to her that much”. She was described by Dr Kuljic as very supportive.
The Medical Assessor recorded that the appellant did not see his daughter for a long time, which also suggests that this occurred in the past. It is noted that the appellant had travelled to Brisbane to see his daughter.
The appellant’s daughters dealt with him as a with sick person and tolerated him. This suggests that the relationship may have been strained, but it was obviously being maintained.
Dr Sidorov recorded that the appellant’s daughter and his grandchildren visited regularly, and he maintained a good relationship with his daughter.Dr Kuljic recorded that the appellant used to have friends. Dr Sidorov recorded that the appellant had some friends from church but did not socialise with them outside that setting. This is consistent with the loss of some friendships.
The Medical Assessor recorded that the appellant had done some voluntary work at church, and this involved him talking to older people. This was relationship-based, and evidence that the appellant was able to engage with others.
In the Appeal Panel’s assessment, a Class 2 was the best fit rating for social functioning.
The Appeal Panel was not satisfied that the Medical Assessor’s assessment of social functioning was affected by demonstrable error.
Ground two of the appeal fails.
The appellant has succeeded on ground one of the appeal.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 April 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: | W1233/24 |
Applicant: | Adel Soliman |
Respondent: | Secretary, Department of Education |
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 Himanshu Singh 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. Psychiatric/psychological disorder | 19 April 2021 | Chapter 11 Guidelines 11.1-11.3 11.4-11.6 | Guidelines 11.11, 11.12 Table 11.1, 11.2, 11.3, 11.5, 11.6 | 15% | One-tenth | 14% | ||
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||||
0
9
6