Star Waterproofing Pty Ltd v Daghagheleh
[2025] NSWPICMP 826
•23 October 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Star Waterproofing Pty Ltd v Daghagheleh [2025] NSWPICMP 826 |
| APPELLANT: | Star Waterproofing Pty Ltd |
| RESPONDENT: | Mahmoud Daghagheleh |
| APPEAL PANEL | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Ash Takyar |
| DATE OF DECISION: | 23 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); primary and secondary psychological injury section 65A of the Workers Compensation Act 1987, and Mercy Connect v Kiely (No. 2) considered; intermingling of impairment and symptoms Ausgrid Management v Fisk; importance of referral document; Skates v Hills Industries Ltd; re-examination; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 June Star Waterproofing Pty Ltd (Star) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor John Lam-Po-Tang, who issued a Medical Assessment Certificate (MAC) on 16 May 2025.
Star relies on the ground of appeal in s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – that the MAC contains a demonstrable error.
The President’s delegate was satisfied, on the face of the application, that the ground of appeal has been made out. We conducted a review of the original medical assessment but limited to the grounds 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
On 25 February 2020, Mr Daghagheleh was descending from a roof when the ladder lost its footing and tilted away from the roof and rotated, causing him to fall about 4m to the ground. In 2022 his physical injuries to his lumbar spine and right wrist and scarring were assessed by a Medical Assessor and he received compensation for 12% whole person impairment (WPI).
Mr Daghagheleh commenced proceedings seeking medical assessment for the purpose of a threshold dispute for a work injury damages claim. On 24 March 2025 a Member of the Personal Injury Commission (Commission) determined that Mr Daghagheleh suffered a primary psychological injury on 25 February 2020 as well as a secondary psychological injury as a result of his physical injuries. The Member held that the prior assessment of physical impairment did not prevent the referral of a medical dispute with respect to the primary psychological injury. He ordered that the “threshold dispute with respect to primary psychological injury is remitted to the President for referral to a Medical Assessor”. The Member also directed that his decision be sent to the Medical Assessor.
The form of referral prepared for the Medical Assessor asked only that the Medical Assessor assess “psychiatric and psychological disorders” as a result of an injury on 25 February 2020. A note was added to the referral which read:
“This matter is referred as a threshold dispute only - the Medical Assessor is to assess as the whole person impairment regardless of the date of injury.”
The Medical Assessor diagnosed post-traumatic stress disorder and persistent depressive disorder. Using the Psychiatric Impairment Rating Scale (PIRS) the Medical Assessor assessed 19% WPI. He deducted one-tenth under s 323(2) of the 1998 Act in respect of pre-existing symptoms from 2012 onward, reducing the WPI to17%. The Medical Assessor did not distinguish between the primary and secondary injuries.
PRELIMINARY REVIEW
We 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, we determined that Mr Daghagheleh should undergo a further medical examination because the Medical Assessor did not identify the impact of the primary and secondary psychological injuries.
EVIDENCE
We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
Medical Assessor Glozier of the Appeal Panel examined Mr Daghagheleh on 15 October 2025. His report forms part of these reasons.
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 we have considered them.
Star confirmed that it did not appeal the Medical Assessor’s PIRS assessment. In summary, Star submitted that the Medical Assessor made a demonstrable error in not apportioning Mr Daghagheleh’s permanent impairment between his primary and secondary psychological injuries. Star said that the Medical Assessor did not acknowledge that there were two injuries.
Star submitted that the documents in the file provided significant references to the symptoms stemming from Mr Daghagheleh’s physical injuries. Star noted s 65A of the Workers Compensation Act 1987 (the 1987 Act) and said that the Medical Assessor was required to undertake the two-step process set out in Mercy Connect Limited v Kiely[1] (Kiely No 2), which has been applied by Medical Appeal Panels.
[1] [2018] NSWSC 1421.
In reply, Mr Daghagheleh submitted that the Medical Assessor referred to symptoms arising from the secondary psychological injury being increased irritability, overvalued ideas of worthlessness, low motivation and enthusiasm and persistent insomnia. He said that the Medical Assessor diagnosed persistent depressive disorder as a secondary psychological condition but that the Medical Assessor determined that any WPI is solely attributable to the primary psychiatric injury of post-traumatic stress disorder.
Mr Daghagheleh sought to distinguish Kiely No 2 on the basis that the circumstances were different, the assessor having been specifically asked to exclude any impairment or symptoms arising from the secondary condition. Mr Daghagheleh said that the Medical Assessor was fully appraised of the controversy between the parties because the Member’s statement of reasons was provided to him. He said that the Medical Assessor diagnosed primary post-traumatic stress disorder and secondary persistent depressive disorder. Mr Daghagheleh submitted that the Medical Assessor attributed all of the impairment to the primary injury.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[3] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[3] [2021] NSWCA 304 at [26].
Legal issues
Section 65A of the Workers Compensation Act 1987 (the 1987 Act) provides:
“65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note—
If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply—
(a)the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b)the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c)the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note—
If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5) In this section—
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
In State of New South Wales v Kaur,[4] Campbell J said of s 65A:
“Looking at the language of s 65A(1), as matter of construction, it is, to adopt Emmett JA's phrase, ‘a disentitling provision’. This is made clear in my view by the language ‘no compensation is payable’ at the outset of s 65A (1). Similar language appears in s 9A and s 11A which are clearly recognised as ‘disentitling provisions’. It is true that s 65A is not found in a division dealing with general liability to receive compensation, as s 9A and s 11A are. Nonetheless, the language of s 65A is concerned with substantive rights rather than questions of the process of the quantification of the entitlement to monetary compensation dealt with in the other provisions of Division 4 of part 3 of the 1987 Act.”
[4] [2016] NSWSC 346 at [23].
The prohibition on recovery of compensation for both primary and secondary psychological injury is reinforced by the Guidelines which provide:
“Psychiatric and psychological injuries
1.21 Psychiatric and psychological injuries in the NSW workers compensation system are defined as primary psychological and psychiatric injuries in which work was found to be a substantial contributing factor.
1.22 A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work related condition (eg depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in paragraph 1.19, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined.”
In Kiely No 2, Harrison AsJ made obiter dicta comments about the assessment of a secondary psychological injury:
“For convenience, s 65A of the Workers Compensation Act (which I have set out earlier in this judgment) requires a distinction to be drawn between primary psychological injury and secondary psychological injury. Under s 65A(1), no compensation is payable for permanent impairment that results from a secondary psychological injury. When an AMS (or Appeal Panel) assesses the degree of permanent impairment resulting from a primary psychological injury, no regard can be had to any impairment or symptoms resulting from a secondary psychological injury in accordance s 65A(2).
The statutory scheme comprising of the WIM Act and the Workers Compensation Act creates a two-step approach in assessing the degree of WPI for a psychological injury. The assessor must first calculate the entire degree of psychological injury in line with the PIRS categories. The secondary psychological injury must then be assessed and deducted in accordance with s 65A of the Workers Compensation Act, leaving the primary psychological injury remaining.
This two-step process accords with the referral of the Workers Compensation Commission on 24 October 2016. This referral provided for the AMS to assess the degree of WPI arising out of the primary psychological injury sustained by Ms Kiely as a result of the incident, excluding “any impairment or symptoms arising from or attributable to, the secondary psychological condition.”
In Ausgrid Management Pty Ltd v Fisk[5] the Medical Appeal Panel referred to the steps outlined in Kiely No 2 and said:
“In this case however, that cannot be done. In this case, with the possible exception of one element of the respondent’s function, the impairments of function and symptoms the respondent has from both his primary psychological injury and secondary psychological injury are completely intermingled. His impairment and symptoms from one injury are indivisible from the impairment and symptoms from the other injury and cannot be disentangled. ...
The Appeal Panel considers that the requirement of s 65A(2) to have no regard to any impairment or symptoms from a secondary psychological injury is to be interpreted as impairment or symptoms that can be isolated to the secondary psychological injury. If it were otherwise, then in a case such as this, where the impairment and symptoms from the primary psychological injury and the secondary psychological injury are indivisible and cannot be disentangled, to disregard the impairment and symptoms from the secondary psychological injury would mean to disregard the impairment and symptoms from the primary psychological injury. It would mean that a worker could be assessed to have no degree of permanent impairment resulting from a primary psychological injury when in fact a worker did have a permanent impairment from that injury. It would be a perverse result and contrary to the beneficial purpose of the legislation and also contrary to one of the express objectives of the legislation that injured works receive payment for permanent impairment.”
[5] [2023] NSWPICMP 237.
That decision has been followed by other Medical Appeal Panels. [6]
[6] For example, Manly Fresh Pty Ltd v Bachal [2021] NSWPICMP 218.
The parties were alert to those issues and the Member’s findings were provided to the Medical Assessor. Unfortunately, the referral to the Medical Assessor prepared by the Commission was inconsistent with the Member’s decision, particularly because of the inclusion of the note asking the Medical Assessor to assess WPI regardless of the date of injury. In the circumstances of this case, that note added nothing to clarify the Medical Assessor’s task and its presence in the referral document was apt to mislead.
As Leeming JA said in Skates v Hills Industries Ltd:[7]
“The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. …
… But the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute.”
[7] [2021] NSWCA 142 at [48]-[49].
As we understand the Commission’s practice, the referral is sent to the parties for comment before the file is sent to the Medical Assessor. In this case, we consider that it was appropriate for the parties to take the opportunity to consider the form of the referral and request an amendment to attempt to avoid the kind of error which has occurred.
The nature of the evidence relied on by the parties meant that it was important that the referral accurately reflect the Member’s orders. Dr Way reported to Mr Daghagheleh’s solicitors on 5 March 2024. While Dr Way diagnosed both post-traumatic stress disorder and major depression, his report did not grapple with the question of whether there was a primary and/or secondary injury or seek to apportion compensation. Dr Pothala, who examined Mr Daghagheleh on behalf of Star and reported on 14 March 2025, diagnosed major depressive disorder with anxious distress but said it was an aggravation of his underlying depressive disorder secondary to the injury. He did not consider that Mr Daghagheleh suffered a primary psychological injury.
We do not agree with Mr Daghagheleh’s submission that Kiely No 2 can be distinguished on the basis that the Medical Assessor in that case was asked to exclude the impact of the secondary psychological injury. The Member’s findings clearly indicated that the Medical Assessor was to assess the primary psychological injury only. Inevitably that required the Medical Assessor to consider the impact of the secondary injury.
Reassessment
The Medical Assessor did not separately assess the primary and secondary psychological injuries, necessitating re-examination. He did identify the two conditions that Mr Daghagheleh suffers, being the primary injury of post-traumatic stress disorder and the secondary injury of major depressive disorder.
Medical Assessor Glozier assessed Mr Daghagheleh on behalf of the Appeal Panel. We adopt his report and his assessment. There is no utility in repeating all of the matters set out in it, noting the statement Ward P, with whom the other members of the Court of Appeal agreed, in Coca-Cola Europacific Partners API Pty Ltd v Pombinho:[8]
“The statutory provisions assume power on the part of a medical member of the Appeal Panel to carry out a re-examination and assessment of the worker. It may be inferred that the Appeal Panel, in adopting the report and findings, was endorsing the reasoning in that report since that is where the reasons are to be found. I do not accept that the Appeal Panel was required to deliver separate or distinct reasons as to why the Appeal Panel (or two of the three members of it, perhaps) accepted [the Medical Assessor]’s assessment in preference to the assessment of, say, the Medical Assessor. In my opinion, it was sufficient for the Appeal Panel to adopt [the Medical Assessor]’s assessment (for the reasons contained therein).”
[8] [2024] NSWCA 191 at [88].
As Medical Assessor Glozier has explained, the impairment arising from the primary and secondary psychological injuries are intermingled. His report shows that two-step process identified in Keily No 2 cannot be undertaken. The fact that the conditions are intermingled does not necessarily mean that no adjustment should be made. Most of the impairment arising from the injury, as assessed by the Medical Assessor under the PIRS is wholly attributable to post-traumatic stress disorder. The only PIRS table which is impacted by the lack of motivation arising from the secondary injury is self- care and personal hygiene. If not for the secondary injury, the impairment would be assessed in class 2 as mild. The appropriate way to take account of the impact of the secondary injury is to reduce the assessment for self care and personal hygiene from class 3 (moderate impairment) assessed by the Medical Assessor to class 2 (mild impairment).
Determination
For these reasons, we have determined that the MAC issued on 16 May 2025 should be revoked, and a new MAC should be issued.
The assessments are therefore class 2 for self care and personal hygiene, class 3 for social and recreational activities, class 2 for travel, class 2 for social functioning, class 3 for concentration, persistence and pace and class 4 for employability.
When those scores are arranged as required by paragraph 11.14 of the Guidelines, they are 2, 2, 2, 3, 3 and 4. The median score is 2.5, rounded to 3 and the aggregate is 16. Under Table 11.7, that converts to 17% WPI. When one-tenth is deducted under s 323, the result if 15.3%, rounded down under paragraph 1.26 of the Guidelines to 15% WPI.
The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR
MEMBER OF THE APPEAL PANEL
Matter Number: | M1-W560/25 |
Appellant: | Star Waterproofing Pty Ltd |
Respondent: | Mahmoud Daghagheleh |
Examination Conducted By: | Nicholas Glozier |
Date of Examination: | 15 October 2025 |
Mr Daghagheleh was assessed at his lawyer’s office. Initially there were some problems with the volume but he sorted this out before we started and was able to hear and see us perfectly clearly. The interpreter, Mohammed Nahas, NAATI number 9310, was present throughout.
The worker’s medical history, where it differs from previous records
This, as with many of the details, was quite difficult to elicit. Mr Daghagheleh was a high-context speaker, often wanting to describe his experiences rather than answer the specific question. This was also commented on by the interpreter although ultimately we managed to get sufficient information to complete the assessment.
He sees his GP, Dr Almansur, regularly. He sees a mental health specialist (the interpreter informed me that the word for psychiatrist and psychologist is the same in their language). I think this is the ‘Kasim Abaie’ who has been seeing him for over a decade and gives a piece of paper informing the GP what to prescribe. He says he no longer sees a surgeon, has not seen any physiotherapist for a long time, and has had no intervention for his arm and his long-term back pain.
Medication:
Oxycontin once daily at variable times. He says he doesn’t take any other painkillers. He has a blood pressure tablet of 16mg, takes 20mg of Escitalopram and Lyrica. He said he has tried a number of sleep medications but these do not work. He takes some form of supplement for his ‘colon.’ He said this was not constipation due to his Oxycontin use but referred to it as ‘stress’.
He says he takes no vitamins or supplements. On any exploration of other aspects of wellbeing, he said that he is ‘dead, not alive…what is life?’ He has no motivation or interest in doing any such activities due to his ‘depression.’ He says he eats once daily and does not weigh himself but thinks he may have lost a little bit of weight. He does not do any physical activity. He initially said he never leaves the home but then over the interview it became clear he does leave the home at times to go to appointments and obviously had left the home for today’s assessment. He does no meditation/praying, saying he has no connection with any religion.
He does not use alcohol, smoke or vape. He does not use hashish or argilehs or medicinal cannabinoids.
Additional history since the original Medical Assessment Certificate was performed
Current symptoms:
He describes that his pain is controllable with medication but he still cannot raise his right arm too far or lift heavy things with it. As such, when he showers or washes his hair, he tends to use his left arm for activities above his head.
He describes two main syndromal patterns:
1)A PTSD-type syndrome. He reports going to bed at variable times, somewhere between 10pm and 2am. He says it takes him 30-60 minutes to fall asleep as he is fearful of the dark and the nightmares that will ensue. After 3-3½ hours he wakes with a nightmare, short of breath, sweaty, soaking the sheets, such that his wife often does not sleep with him now because of this. He describes a number of nightmares, particularly those of falling. He says he is scared of the darkness and of the nights. When he wakes he may have to go outside on the balcony (although he later said he does not go on the balcony because of fear of heights). He usually does not get back to sleep and thus has a markedly reduced sleep duration. This affects his focus and concentration throughout the day. He describes difficulty focusing on things for more than 5 or 10 minutes and then will have to take a break before resuming. At times during the day he will think of the incident and it may have some intrusive features. He says he is avoidant of heights and dislikes even going down the stairs in his townhouse.
2)Additionally he has a more severe pervasive depressive syndrome. He describes the complete absence of mood seen in severe depression, being numb with a sense of not being alive, absolute anhedonia, no interest in anything/enjoyment in anything, and withdrawal and avoidance of interacting with people. Although he says in part this may be due to arousal, it is primarily because people would ask him about himself, his function, and now that he can no longer do anything and has had to stop work, he is ‘not a man.’ He describes himself as ‘weak’ because of having to go to the doctors so much and no longer ‘a real person.’ He lacks confidence, is hopeless about the future and feels helpless and unable to move on. He described a full range of depressive cognitions of a quite marked overvalued nature but no delusional component. He feels as though he is already dead and so did not answer specifically the question about self-harm. He is ‘worthless’ because he cannot contribute to the family, spends much of his time worrying about the future, his family, finances etc. He says he is no longer even able to care for his wife who he used to care for – for both physical and psychological problems – and that the burden has fallen on his daughter. Beyond feeling guilt about this, appears to have withdrawn from the family such that he feels less affected. He has no interest in watching the TV/movies etc due to his general anhedonia and amotivation. He says he does little during the day, has no interest or motivation to do any activities around the home, any home chores or other functions, and described minimal activity. The family will come and visit on occasion (the frequency changed during the assessment but it is not frequent) and he has little interest in talking to them as they ask him about his function and because he is so worthless now he removes himself.
Findings on clinical examination
Mr Daghagheleh was smart, casually-dressed, not unkempt, had a very neatly-trimmed beard and hair. He was difficult to engage, saying he was here ‘because it was mandatory.’ He took a break after 40 minutes to go and get a glass of water. He moved around a bit because he was uncomfortable but said this was ‘psychologically uncomfortable.’ He displayed no significant anxiety but had a miserable and anguished, restricted affect. The interpreter commented on his high-context speaking and communication style and the difficulty in eliciting specific answers. I am not of the opinion he was actually thought-disordered. He describes both cardinal features of depression with a marked severity of total anhedonia and a mood disturbance so great he has a sense of not even being alive although not delusional, associated with marked negative cognitions, physical features of depression such that he would currently exhibit all nine criteria for a major depressive disorder. As above, he also has intrusive re-experiencing, avoidance, some degree of hypervigilance, arousal and fears that represent a posttraumatic stress disorder.
Results of any additional investigations since the original Medical Assessment Certificate
Not applicable.
Summary
Mr Daghagheleh has a primary injury that comprises a posttraumatic stress disorder, as agreed by the parties and identified by all, characterised by the Criterion A event of a fall from four metres, recurrent intrusive re-experiencing phenomena of this fall and an avoidance of heights, preference to avoid stairs and some other anxiety, arousal and hypervigilant phenomena.
He has a marked sleep disturbance which appears to be part of the primary psychiatric disorder, given that it is induced by nocturnal nightmares, fear of darkness and going to sleep, that leads to daytime cognitive consequences with poor focus and concentration.
Consequent to his physical injury, the impact on his work and life, as well as chronic pain, he has had an exacerbation of his pre-existing mood disorder (and as identified by his treating clinicians) representing the secondary psychiatric injury. This is far more severe than the persistent depressive episode diagnosed by the MA, consisting of an intense marked loss of mood, almost a sense of being numbed, total anhedonia, over-valued negative cognitions in a range of areas, worthlessness, loss of confidence, negative cognitive triad, lack of energy, motivation and social withdrawal.
The actual rating of his whole person impairment has not been appealed. In disentangling the impact of the primary and secondary injuries on his current whole person impairment, there is only one category in which the symptoms arising from both the primary and secondary injury are not so co-mingled that the primary injury alone accounts for all of the ratings ascertained. This is of Self-Care And Personal Hygiene. He is able to shower himself but lacks motivation, a feature of his depressive disorder, to undertake other aspects of self-care, to look after his wife, compounded by a physical inability to undertake certain heavier tasks. He has no motivation to undertake home chores, and a loss of appetite due to his depressive disorder. The avoidance, intrusive phenomena, hypervigilance characterising his primary psychiatric disorder only contribute at most to a mild impairment as they have limited impact in this domain e.g. not affecting appetite or motivation to shower, and the additional impairment arises from his physical disorder, pain and the marked lack of initiative and motivation deriving from his secondary injury: the major depressive disorder.
In all of the other categories his fears of interaction, leaving the home, sense of harm from others, fear of heights, daytime concentration difficulties induced by his poor sleep consequent to his nightmares, could explain fully the moderate impairment rated by the MA in Social & Recreational Activities; Concentration, Persistence and Pace; and mild impairment rated for Travel.
His Social Functioning rating of 2 also has not been appealed and can be explained by some of the intolerance he displays with family, and the impact of his nocturnal PTSD features on his wife’s willingness to sleep in the same bed as him.
When asked about work, he said ‘how can I work with this arm?’ and then also went on to say that he cannot do so because of his mental state. The fears, difficulty living at home, concentration difficulties, and fatigue consequent to the nocturnal symptoms and associated impairment arising from his primary injury, can fully account for the severe rating ascertained by the MA.
I understand my role was to identify what the secondary psychiatric injury, as ascertained by the Member, is, and whether the current whole person impairment is entirely explicable by the primary injury or whether there is any additional component arising from the secondary psychiatric injury.
I note the Section 323 deduction has also not been appealed.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W560/25 |
Applicant: | Mahmoud Daghagheleh |
Respondent: | Mahmoud Daghagheleh |
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 John Lam-Po-Tang 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) |
| Psychiatric & psychological disorders | 25.2.2020 | Chapter 11 | N/A | 17% | 1/10th | 15% |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
8
0