Syed v Orrcon Pty Ltd
[2021] NSWPICMP 114
•5 July 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Syed v Orrcon Pty Ltd [2021] NSWPICMP 114 |
| APPELLANT: | Mujeeb Syed |
| RESPONDENT: | Orrcon Pty Ltd |
| APPEAL PANEL: | Member Marshal Douglas Professor Nicholas Glozier Dr Julian Parmegiani |
| DATE OF DECISION: | 5 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant suffered psychological injury due to events that occurred during his employment with the respondent between 2005 and 2009; appellant also suffered subsequent and separate psychological injury due to several car accidents after his employment with respondent; Medical Assessor assessed appellant had 24% WPI, but made a “one-half deduction” for subsequent psychological injury and assessed the appellant had 12% WPI resulting from work injury; appellant submitted, relying on New South Wales Department of Education v Johnson, that MAC contained a demonstrable error because Medical Assessor did not apply common law principles of causation when assessing his permanent impairment resulting from work injury and, based on common law principles of causation, his permanent impairment from work injury ought to have assessed as 24% WPI; Held- Appeal Panel agreed; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 6 April 2021 Mujeeb Syed (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 March 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant commenced employment with Orrcon Pty Limited (the respondent) on 12 December 2005 as a quality assurance coordinator. He claimed he suffered a psychological injury as a consequence of several incidents to which he was exposed in the course of his employment until 6 August 2009. The respondent initially paid him weekly compensation for an incapacity from his injury, but on 4 September 2009 the respondent’s then insurer wrote to the appellant notifying him that it denied the respondent had any liability to pay him compensation. The respondent’s insurer contended that the respondent had not suffered an injury within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act). In the alternative, the respondent’s insurer contended that if the appellant had suffered an injury, that the injury was wholly or predominantly caused by reasonable action the respondent had taken with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of the appellant or the provision of benefits to the appellant, which, if so, had the consequence, under s11A(1) of the 1987 Act, of the appellant not being entitled to compensation.
On 2 October 2019, the appellant’s solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation of $41,250 under s 66 of the 1987 Act for 24% whole person impairment (WPI) that the appellant said had resulted from his psychological injury. Following the respondent’s solicitors seeking further particulars of the appellant’s claim and the appellant’s solicitors providing those particulars, the respondent’s insurer on 23 December 2019 wrote to the appellant, care of his solicitors, notifying him that it disputed it was liable to pay the appellant compensation under s 66. The reasons the insurer advanced were in substance the same as that which the insurer had notified the appellant in 2009.
On or around 25 August 2020 the appellant filed with the Commission an Application to Resolve a Dispute seeking determination of his claim for the respondent to pay him compensation under s 66 and also claims he had also made for weekly payments of compensation and compensation for medical expenses he had incurred. The matter was referred to Arbitrator Mr Ross Bell who, following an arbitration on 21 October 2020, issued a Certificate of Determination on 27 November 2020 recording that the Commission found that the appellant had suffered a “psychological/psychiatric injury” that was deemed to have occurred on 6 August 2019 and to which the appellant’s employment with the respondent was a substantial contributing factor. Arbitrator Bell further recorded that “the respondent’s defence under s 11A(1) of the Workers Compensation Act 1987 is not made out”. Arbitrator Bell made awards in favour of the appellant requiring the respondent to pay weekly compensation to the appellant and also to pay compensation to the appellant for expenses the appellant had incurred for treatment of his injury, subject to the appellant producing to the respondent accounts and receipts verifying the expense for his treatment. Arbitrator Bell also remitted the matter to the Registrar insofar as it related to the appellant’s outstanding claim for compensation under s 66 so that the Registrar could refer that to a Medical Assessor.
A delegate of the Registrar then issued a referral to the Medical Assessor to assess the medical dispute between the parties relating to the degree of the appellant’s permanent impairment resulting from his psychological injury. As indicated, the Medical Assessor issued a MAC in response to that referral on 10 March 2021. In that, the Medical Assessor certified that he had assessed the appellant had a permanent impairment of the order of 24% WPI but only half of that, that is 12% WPI, was the result of the appellant’s injury.
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 WorkCover Medical Assessment Guidelines 2006.
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. This is because the material before the Appeal Panel, including the history the Medical Assessor obtained and his findings from his examination of the appellant are sufficient to enable the Appeal Panel to determine the appeal and reassess the medical dispute referred for assessment.
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 Medical Assessor conducted an examination of the appellant by means of video on 26 February 2021. He noted within Part 4 of the MAC that the appellant reported that he currently experienced the following symptoms:
“● Constant depressive symptoms,
· Inability to enjoy things he would normally enjoy,
· Generally heightened emotions and reacting with anger and anxiety,
· Generalised anxieties and body tension,
· Possible suicidal ideation (he does not give a clear answer),
· Appetite problems and his weight fluctuated over time, by around 5 kilograms,
· Sleep disturbance and distressing dreams,
· Panic attacks or flashbacks,
· Being irritable.”
The Medical Assessor also noted within Part 5 of the MAC that subsequent to the appellant’s employment with the respondent the appellant drove a taxi until June 2015 to earn income and that within that time the appellant was involved in three motor vehicle accidents that affected the appellant’s psychological functioning. The Medical Assessor recorded the following in the MAC regarding that:
“After Orrcon, Mr Syed was off work for a few months and was having treatment for depression. He then started driving a taxi. Some time after that, when Uber came to Australia he started working for Uber by driving the taxi using the Uber account. He has never driven Uber in a private car. He said he had driven a taxi for about three years, and the last time he had driven was in June 2015. He has not been able to undertake any further paid employment or study after that, he stated because psychologically he could not cope and he also suffered a back injury. It is difficult to obtain a precise history of his psychological functioning, when driving taxi and before his car accidents, and there is evidence of some decline in interpersonal functioning and recreational activities. He had no significant impairment in travel as he regularly drove long distances and for a long time unaccompanied. He drove full-time.
After Mr Syed stopped working for Orrcon there have been three car accidents. In the file I noted the accidents happened in 2012, 2013 and 2015, but he tells me that the accidents happened in 2011, 2012 and 2015. In 2011, he had stopped at a traffic light. It was a wet day and an elderly person could not stop and rear ended his car. He thought he might have stopped work for about six months and returned to work but certified as fit for 50% load.
In 2012, Mr Syed said that he had a second accident. He had stopped to pick up a passenger, in Surrey Hills. The driver behind him did not stop and rear ended him. He said that the other car was written off from the impact and he recalled there was a loud bang. He was off work for 14 months and when he returned to work, he said he was certified fit for a 30% load. He said that when he first started driving, he would drive full-time, but the hours are now fixed for a taxi driver and a 30% load means that he could only pick three or four passengers in the one day.
In 2015, Mr Syed was certified as fit to drive a 30% load, and had a third accident. He had stopped to pick up a passenger when he was rear ended. He said there was a big impact and three cars were involved in this collision. He suffered a further back injury predominantly in the lumbar area. There was no head injury. He did not lose consciousness. Since then Mr Syed has never been certified fit to work.
I made an enquiry regarding the psychological impact of the car accidents on
Mr Syed's mental state and capacity to function. Despite saying that by the time of the third accident, psychologically he felt unable to return to any work anymore and that he could do work for about three years before the car accidents, Mr Syed maintained a fixed view that ‘all of my psychological problems came from Orrcon’. He said that ‘everything is caused by Orrcon’, ‘I blame Orrcon for everything’, and he does not accept the car accidents have a role to play in his current psychological incapacity.I discussed with Mr Syed his psychologist’s opinion. Given the overt inconsistencies with his psychologist’s documentation that he suffered a psychological decline, I did not think that Mr Syed's personal views could be taken at face value.
I discussed the incident when he was assaulted when driving. He said it was a minor incident in 2011 when a passenger refused to pay and he said he did not suffer any injury from that physically or psychologically.”
The Medical Assessor diagnosed the appellant had Major Depressive Disorder, Generalised Anxiety Disorder and Post Traumatic Stress Disorder. As mentioned, he assessed the appellant had a permanent impairment of the order of 24% WPI. That was based upon the Medical Assessor’s classifications of the appellant’s impairments in the six categories of Psychiatric Impairment Rating Scale (PIRS). In Table 11.8 attached to the MAC, the Medical Assessor provided the following reasons for his classifications:
PIRS Category
Class
Reason for decision
Self Care and personal hygiene
2
Mr Syed described having neglected his self care. His weight fluctuated. He has a poor diet and does shower regularly. He is capable of independent living without regular support.
Social and recreational activities
3
Mr Syed does not go to parties anymore, due to his anxieties. He does not have any social and recreational activities.
Travel
2
Mr Syed is anxious when he leaves his home and when he comes in contact with situations similar to his former employment. He can travel to unfamiliar places with significant anxieties and at times has avoided behaviour.
Social functioning
4
Mr Syed’s relationship with his wife deteriorated and they separated, reconciled and separated again completely as a result of his irritability. He is anxious and socially avoidant, and reported having ceased contact with most of his friends. His relationship with his daughter is good overall.
Concentration, persistence and pace
3
Mr Syed described having poor concentration. He has not undertaken study or retraining since the subject injury. His mental state examination is consistent with 3.
Employability and adaptation
5
Mr Syed has no work capacity from a psychological perspective
As mentioned, the Medical Assessor considered that half of the appellant’s permanent impairment was due to the car accidents in which the appellant was involved while driving taxis subsequent to his employment. The Medical Assessor considered these accidents had resulted in the appellant suffering a psychological injury that was “reasonably distinct” from the psychological injury the appellant had suffered whilst employed with the respondent. The Medical Assessor considered that this distinct injury was Post Traumatic Stress Disorder. Within the summary the Medical Assessor provided for the appellant’s injuries and diagnoses, the Medical Assessor set out his reasons for attributing half of the appellant’s permanent impairment to this subsequent psychological injury. It was as follows:
“Mr Syed has suffered depression, anxiety and paranoia in the context of bullying when working at Orrcon and his condition has been variously diagnosed as an Adjustment Disorder, Major depression, Generalized anxiety disorder and Delusional Disorder. On the day of my assessment, I noted that his depression and anxiety persisted and the ruminative thoughts and distress about Orrcon have persisted at a similar intensity and frequency since he ceased work. I have diagnosed Major depressive disorder and Generalized anxiety disorder as a result of his work injury.
I do not think he has a Delusional Disorder and certainly he was not preoccupied with paranoid thoughts on the day of my assessment. I acknowledge a cross-sectional assessment is not always as accurate as the treating clinician’s repeated assessments.
I note that Mr Syed has had three accidents which had caused increased disability and there has been a definite psychological decline. Mr Syed identified his psychological health as the main barrier preventing him return to work now, and whilst he attributed this completely to Orrcon, his view is in conflict with his treating Psychologist,
Mr Costello’s assessment. I have also independently assessed the nature of the three car accidents and his work injury, and I do not consider them to be minor car accidents, which would cause only transient psychological sequelae and which have subsequently resolved.Mr Syed's psychological injury sustained from the car accidents are reasonably distinct, they had a different mechanism of injury and can be reasonably separated from the earlier work injury. The psychological injury sustained at Orrcon had not been aggravated, in the sense that the same work injury had remained at the same intensity since he stopped working. The nature of the subsequent car accidents is such that they could produce a similar psychological injury in an otherwise healthy person, and his work injury had not made him more susceptible.
There were some psychological impairments after his work injury and before the car accidents, in the domain of social and recreational functioning and social functioning, and some impairment in employability (I do not believe when he drove the taxi full-time , that he had the mental fortitude to work at a pre-injury level or manage work at the same stress level as his duties at Orrcon). Since the car accidents, there has been increased psychopathology and he developed total psychological occupational impairment.
My view is that the subject work injury continues to cause significant psychiatric impairment and the work injury has never substantially remitted. I could not rely on
Mr Syed's own assessment regarding the relative impact of the subsequent injuries. I have drawn on my clinical experience and noted the relative nature of the work injury and subsequent psychological injury, and noted the supplied document, in making a one-half deduction for the subsequent non-work injuries. I do not believe his work injury is significantly greater than the psychological injury from the car accident. I do not believe the subsequent injury is significantly greater than his work injury. There is insufficient information to perform a PIRS before the car accidents. I do not believe there is another more appropriate scientific method to assess his work injury and subsequent injury.The car accidents have caused a primary psychological injury. His GP diagnosed Post-traumatic stress disorder and I believe this is a reasonable diagnosis, and it is not minor.”
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 Medical Assessor was wrong for making a deduction for an injury that occurred subsequent to the appellant’s employment with the respondent because the legislation only allows a deduction to be made for a prior injury or pre-existing condition or abnormality. The appellant submits, relying on Secretary, New SouthWales Department of Education v Johnson[1] (Johnson), that the Medical Assessor failed to apply the common law principles relating to causation when assessing the appellant’s permanent impairment resulting from his injury and ought to have attributed all the appellant’s permanent impairment as having resulted from the work injury. The appellant submits that the Medical Assessor was wrong not to find that the subsequent car accidents aggravated an existing pathology.
[1] [2019] NSWCA 321
The appellant submits that the Medical Assessor erred by finding that the appellant’s GP had diagnosed him as having PTSD as a result of the car accidents. The appellant submits that the Medical Assessor did not record what symptoms of PTSD the appellant had as a result of the car accidents and there was no evidence contemporaneous with the car accidents that indicated he had any symptoms relating to PTSD.
The appellant submits that the Medical Assessor was wrongly required by the Commission to indicate whether there has been any further injury subsequent to the subject work injury.
In reply, the respondent submits that it was incumbent upon the Medical Assessor to consider whether the motor vehicle accidents were causative of a psychological injury in order that he could assess the appellant’s WPI from the work injury. The respondent submits that the Medical Assessor made his own diagnosis that the appellant suffered PTSD due to the car accidents.
The respondent submits that the common law principles support the Medical Assessor’s “reduction of 50%”. The respondent submits that the Medical Assessor confirmed that there was a non-compensable permanent impairment arising from the subsequent injury the appellant suffered in the motor vehicle accidents. The Medical Assessor diagnosed that the appellant had a Major Depressive Disorder and Generalised Anxiety Disorder as a result of the work injury and that in making these differential diagnoses, the Medical Assessor had regard to the appellant’s presentation on the day of the examination and had relied on his clinical expertise, experience and medical evidence.
The respondent submits that the Medical Assessor provided cogent reasoning to support the 50% reduction and explained that the psychological injury the appellant had from the car accidents was reasonably distinct and arose from a different mechanism of injury and could reasonably be separated from the earlier work injury. The respondent notes that the Medical Assessor’s reasoning included that:
(a) the appellant would not have suffered transient psychological sequelae from the car accidents;
(b) the car accidents could have produced a similar psychological injury in an otherwise healthy person;
(c) the appellant’s work injury had not made the appellant more susceptible to suffering a psychological injury from the car accidents; and
(d) the appellant had impairments after his work injury and before the car accidents, but after the car accidents had increased “psychopathology” and had developed “total psychological occupational impairment” since the car accidents.
The respondent submits that the continuation or deterioration of a person’s workplace psychological injury does not mean that the person cannot be injured with respect to a separate psychological condition arising from separate aetiology.
The respondent submits that the Medical Assessor also took into account other stressors impacting upon the appellant.
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.
The symptoms and signs that manifest from a psychological injury impair a worker’s mind or psyche which results in a worker having an impaired ability to function. The Guidelines require a Medical Assessor to assess a worker's impairment from a psychological injury by reference to the effect the injury has in the six areas of behaviour, which comprise the PIRS.
Common law principles of causation in tort are to be applied to determine the degree of permanent impairment a worker has from a work injury.[2] It is trite that an impairment of a worker can have multiple causes.[3] Where, as here, a worker suffers a subsequent injury that has an impact upon the worker’s impaired ability to function, three potential scenarios may arise that will need to be considered to determine, based on common law principles of causation, whether a worker’s impairment is to be attributed to the workplace injury. Those scenarios are:
“● Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.
· Where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.
· Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained.”[4]
[2] Johnson at [55] and [124]
[3] Calman v Commission of Police [1999] HCA 60 at [38] – [40] (Calman); ACQ Pty Ltd v Cooke [2009] HCA 28 at [25]
[4] Johnson’s case at [70], see also [126]
The first and third scenarios do not, based on the evidence, arise in this case.
The evidence does not establish that the car accidents were due to the appellant’s impaired psychological condition consequent upon his workplace injury. Hence, the first scenario is not relevant.
In the Appeal Panel’s view, the evidence reveals that the appellant had chronic and impairing symptoms of anxiety and depression after suffering the injury in his employment with the respondent. The subsequent car accidents in which the appellant was involved worsened these symptoms and this worsening of his symptoms further impaired his functioning. The appellant’s impaired functioning consequent upon the car accidents therefore contains an element of aggravation of the appellant’s work injury, and hence the third scenario is not applicable.
With respect to the second scenario, as the Appeal Panel has said, the car accidents have resulted in a worsening of the appellant’s symptoms that arose from his work injury. In other words, the two causes have combined to produce the appellant’s current symptomology, from which he has impaired functioning. The Medical Assessor has not identified the discrete symptoms or impairment resulting from these subsequent injuries that are divisible from those he suffered from the work injury. The appellant became more anxious and more depressed following the car accidents. To repeat, the car accidents worsened the appellant’s symptoms from the work injury which then further impaired his ability to function.
True it is, as the Medical Assessor observed, the car accidents involved a different mechanism of injury than the circumstances that the appellant endured in his employment that gave rise to the injury that he suffered in that employment. The Appeal Panel also considers that it was open to the Medical Assessor to diagnose that as a consequence of the car accidents PTSD manifested in the appellant. That was a discrete injury from the injury he suffered as a consequence of his employment with the respondent. The Medical Assessor did not identify specific symptoms and impairment arising from this PTSD that were distinct from those arising from the work injury.
Nevertheless, the appellant’s present condition, in the terms of the symptoms he suffers, and his impaired functioning as a consequence of those symptoms, are the combined result of both the injury he suffered with the respondent and also the injuries he suffered in the car accidents. The Appeal Panel cannot accurately discern from the evidence or the MAC distinct elements of the appellant’s symptoms attributable solely to the car accidents and those attributable solely to the work injury. The symptoms described in part 4 of the MAC and Mental State Examination are potentially attributable to either or both. Where symptoms are attributed to an injury, e.g. intrusive thoughts, they are attributed solely to the work injury. The appellant’s impaired functioning consequent upon his symptoms cannot be disentangled into a part that relates solely to the car accidents and a part that relates solely to the work injury. Saying that another way, the constellation of the appellant’s symptoms from which he has impaired functioning is due both to the injury he suffered while working with the respondent and to the subsequent car accidents. In other words, the appellant’s symptoms are due to both the Major Depressive Disorder and Generalised Anxiety Disorder that results from the work injury and also from the Post Traumatic Stress Disorder that manifested from the car accidents. One part of his symptoms cannot be attributed to one injury and another part to the other injury.
It is the case that many symptoms are common to several disorders, and that these common symptoms can affect more than one domain of impairment, but if a work injury has contributed in a material way to all symptoms a worker suffers, or in other words unless some part of the symptoms a worker suffers relates discretely to a subsequent injury or event, the impairment of the worker will be attributable, based on common law principles, to the work injury.
Accordingly, in the Appeal Panel’s view, the Medical Assessor erred by apportioning half of the appellant’s permanent impairment to the injury he suffered with the respondent and half to the injuries he suffered in the car accidents. Consistent with the authorities of Calman and Johnson, the impairment the appellant has is to be attributed to the work injury.
The Appeal Panel agrees with the Medical Assessor’s classification of the appellant’s impairment in the several PIRS Category.
Consequently, the Appeal Panel finds the MAC does contain a demonstrable error and the Appeal Panel reassess the medical dispute referred for assessment and assesses the appellant has 24% WPI from the injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 March 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
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 Dr Michael Hong 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 WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Psychological | 6/8/2009 | Chapter 11 | Chapter 14 | 24% | - | 24% |
| Total % WPI (the Combined Table values of all sub-totals) | 24% | |||||
Marshal Douglas
Member
Professor Nicholas Glozier
Medical Assessor
Dr Julian Parmegiani
Medical Assessor
5 July 2021
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