Taleb Dehkordi v ACE Demolition & Excavation Pty Ltd
[2025] NSWPICMP 828
•24 October 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Taleb Dehkordi v ACE Demolition & Excavation Pty Ltd [2025] NSWPICMP 828 |
| APPELLANT: | Seyed Taleb Dehkordi |
| RESPONDENT: | ACE Demolition & Excavation Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | John Lam-Po-Tang |
| DATE OF DECISION: | 24 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal against 7% whole person impairment (WPI) for psychological injury; whether social and recreational activities class 2 was erroneous; whether the Medical Assessor (MA) had examined the claimant when the ‘Findings on physical examination” templated paragraph had not been completed; whether mistaken attribution of fact a demonstrable error; whether finding that claimant visited retail shops consistent with a social or recreational activity; Held – many of the claimant’s submissions were misconceived; in psychiatric discipline no assessment possible if there had been no mental state examination; mistake of fact that different person referred to compromising bank statements not fatal to reasons; said statements raised inference that claimant active over a wide geographical area in a wide variety of shops; claimant shown to be unreliable; Botha v Secretary, NSW Department of Customer Service, and Lancaster v Foxtel Management referred to; inference available that activities not affected; finding that visiting eateries and shops relevant to a recreational activity in these circumstances; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 June 2025 the appellant, Seyed Taleb Dehkordi lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ankur Gupta, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
16 May 2025.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). “WPI” is reference to whole person impairment. “Baseline WPI” is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.
RELEVANT FACTUAL BACKGROUND
On 2 May 2025 a further amended referral was made seeking a WPI assessment of a psychological/psychiatric disorder that occurred on 27 October 2022.
Mr Dehkordi was employed as a machine operator.
On the date of injury he was operating a three tonne excavator which caused some concrete to hit the left side of his face, below the eye socket, which caused a fracture and nerve damage. He underwent two bouts of surgery and refused a third procedure.
The Medical Assessor found that Mr Dehkordi was suffering from a persistent depressive disorder, assessing 7% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because no error was found in the MAC.
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 which have been considered below by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The MAC
In describing Mr Dehkordi’s social activities in the body of his report, the Medical Assessor noted relevantly that Mr Dehkordi lived with his partner, with whom he goes out when his partner pushes him to do so. The Medical Assessor noted:[1]
“….. He says he goes to the shops alone and with his partner. He says he has no “fun” with his partner. He's lost contact with friends because he has stopped socializing. He goes to restaurants with his partner ‘sometimes’.”
[1] Appeal papers page 31.
At [5] the following appeared:
“Findings On Physical Examination
Not applicable”
At [10a] the Medical Assessor reviewed the evidence before him, which he surveyed in over 22 paragraphs. Relevantly, he said:
“Bank statements from the Commonwealth Bank from 01/01/23 to 30/06/24 were provided. It appears that he has been spending money at food establishments in a wide area across metropolitan Sydney, including Parramatta, Merrylands, Chatswood, Castle Hill, Baulkham Hills, Northmead, Silverwater, Waterloo, Brighton and Fairfield. It also includes transactions at stores such as Target, Bing Lee, Aldi, and Woolworths.
…….
Dr Kumagaya provided an updated report dated 15/04/2025. He noted that a report had been provided by Dr Honey dated 26/03/2025, which raised concerns regarding
Mr Dehkordi's report of functional impact from the psychological injury. There was reference made to bank records, which Dr Honey stated suggested Mr Dehkordi's day-to-day activities and capacity to engage in activities had not been impaired.
Dr Kumagaya noted that a sizable proportion of bank transactions reflected food procurement. He noted that bank statements demonstrated repeated transactions at McDonald's, Office Works, and food venues. He stated that that was in keeping with
Mr Dehkordi's report regarding his capacity to travel. It was further noted that Mr Dehkordi stated that he was able to attend familiar locations on his own but needed a support person in unfamiliar places. Dr Kumagaya stated that there was no reason for him to change his impairment rating as provided in his original report.……….
An independent medical examination report was provided by injury management consultant and occupational physician Dr Gregory Cameron. This is dated 02/04/2024. Dr Cameron noted that Mr Dehkordi lived independently and ordered food online. He noted the presence of nightmares and other emotional symptoms. He stated that on a typical day, Mr Dehkordi ordered food online, sat on the couch, watched movies, and did online shopping.
…………
Dr Honey provided a supplementary report dated 29/10/2024. He noted in this report that Mr Dehkordi had been in full-time employment as a machine operator for the past year and therefore he could not be considered as having a significant psychiatric condition.
An investigation report from Procare dated 21/10/2024 was provided. It was noted that Mr Dehkordi had applied to lease a property and provided a statement in which he reported full-time employment for one year with the BTS group as a machine operator.
…
At [10c], the Medical Assessor said:
“My opinion is consistent with that of other specialists in terms of diagnosis. However, the impairment rating is different from that provided by another specialist, as explained in the attached psychiatric impairment rating scale.”
In his Table 11.8 psychiatric impairment rating scale (PIRS) rating form with regard to the one challenged assessment of the social and recreational activities, the Medical Assessor said:
“As described in the main body of the report there is mild impairment. He can go out independently and with his partner but does not socialise as much as he
used to. It has been noted in the Procare investigative report and by Dr Kumagaya that he has been visiting eateries and shops regularly. He has reduced contact with his friends.”
Appellant’s submissions
Mr Dehkordi listed nine issues in which the assessment was challenged.
Ground one
There was no record in the MAC of any mental state examination and it was not apparent that such an examination had taken place.
Ground two
Failure to report on an examination offended the terms of Chapter 11 .1 of the Guides, requiring that a medical examination be carried out.
DISCUSSION
These submissions may be dealt with shortly. We note that the template used by the Medical Assessor was entitled “findings on physical examination” and was intended for the assessment of physical injury. The template for psychological injury is entitled “mental state examination.” However, nothing turns on whether the correct form was used.
Whilst it would be preferable for a Medical Assessor to comply with the template – even to describe the mental state examination under the physical injury examination template - the essential question is whether an examination actually took place. We have above set out the relevant portions of the reasons given by the Medical Assessor, and his assessment could not have been made if he had not actually conducted a mental state examination. Such an examination is integral to the function of assessing psychiatric/psychological disorders. These submissions are rejected.
Ground three
In the alternative, the Medical Assessor, it was alleged, made a finding of fact that was not justified based on the material in the Procare investigation. The finding, it was submitted, was inconsistent with the evidence in the reply.
We were referred to the Procare Investigation and to the statement by the Medical Assessor in the Table 11.8 PIRS for social and recreational activities, in which the Medical Assessor noted that Mr Dehkordi had “been visiting eateries and shops regularly.”
DISCUSSION
This submission may also be dealt with shortly. In his reasons, the Medical Assessor said:[2]
“As described in the main body of the report there is mild impairment. [Mr Dehkordi] can go out independently and with his partner but does not socialise as much as he used to. It has been noted in the Procare investigative report and by Dr Kumagaya that he has been visiting eateries and shops regularly. He has reduced contact with his friends.”
[2] Appeal papers page 37.
The Medical Assessor clearly erred, as the Procare Investigation did not mention that
Mr Dehkordi had been “visiting eateries and shops regularly”, nor did it refer to the bank statements. However, Dr Kumagaya’s report of 15 April 2025 was concerned with the bank statements, and the inferences that Dr Honey took from them in his report of26 March 2025.[3][3] Appeal papers page 504.
Mr Dehkordi has not thereby established that a demonstrable error has been made, as the error as to who raised the inferences arising from the content of the bank statements does not affect the assessment by the Medical Assessor. It does not raise a question as to whether there has been a mistake of fact which has infected the MAC. The mistake alleged is not that such inferences were never raised, but rather that they were raised by a different person. This submission is rejected.
Ground four
Mr Dehkordi submitted that the Medical Assessor had made a further error in finding that by paying for takeaway food, he was attending a social or recreational activity.
Mr Dehkordi submitted that the self-care and personal hygiene category was relevant to whether a person was eating takeaway food, whereas the social and recreational activities category is concerned with a person's ability to attend “events.”
DISCUSSION
Again, this submission is misconceived. It is correct that the PIRS category for self-care and personal hygiene has as one of its descriptors for a class 2 rating at Table 11.1, the behaviour that a claimant “sometimes misses a meal or relies on takeaway food.” This is in fact one of the reasons given by the Medical Assessor for his assessment of a class 2 rating for the category of self-care and personal hygiene, where he said:
“As described in the main body of the report, there is mild impairment. He eats without prompting. He orders takeaway food as needed…”
Mr Dehkordi was incorrect however to submit that the Medical Assessor had found that he was “paying for takeaway food” when he gave his reasons for assessing a class 2 rating in the social and recreational activities category. The Medical Assessor, as can be seen from the reasons he gave, stated that Mr Dehkordi was “visiting eateries and shops regularly.” This is a different factual finding, which will be discussed below. This submission is rejected.
Ground five
Mr Dehkordi also submitted that the Medical Assessor erred by finding that visits to stores such as Aldi, Woolworths, Target, Bing Lee or Officeworks were social or recreational activities, and in any event he had not considered other innocent explanations, such as online shopping.
Mr Dehkordi said that a descriptor for the category was that a claimant had to be “going out.” It could not be said, it was argued, that visiting the stores with the expense indicated was “appropriate” to the category.
Ground six
Similarly, the Medical Assessor, it was submitted, had also erred by including Mr Dehkordi’s reduced contact with his friends as a matter that was relevant to the category of social or recreational activity. It was submitted that it was more relevant to the category of social functioning and inconsistent with the descriptors for social or recreational activity.
Ground seven
Mr Dehkordi submitted that there was an inconsistency between what the Medical Assessor reported as being in “the main body of the report” in his Table 11.8 PIRS reasons, and what in fact appeared there.
We were referred to 16 separate symptoms from which Mr Dehkordi was said to be suffering by the Medical Assessor in his report, and it was submitted that there was no description therein of any impairment. Nor was there any evidence that contradicted the Medical Assessor’s comment in the body of the report that he had “stopped socialising.”
The severity of Mr Dehkordi’s condition was more consistent with what the Medical Assessor there recorded, and accordingly rated a class 3 finding, it was submitted.
Ground eight
It was alleged that the Medical Assessor had misunderstood himself when he gave a class 2 rating in the face of his own finding in the body of the report that Mr Dehkordi had “stopped socialising.”
This, it was argued, had the effect of his misleading himself on his path of reasoning, and “especially when applying the PIRS categories to those findings.”
Further, it was submitted that in the PIRS rating form, the Medical Assessor had recorded in an imprecise way that which he had noted in the main body of the report. It was submitted that the Medical Assessor had not properly recorded the evidence before him and that, rather than record that Mr Dehkordi did not socialise as much as he used to, the Medical Assessor ought to have found that he never socialised, which should have prompted a class 3 rating.
We were referred to the descriptors described in Table 11.2 of the Guides, defining class 2 and class 3.
Ground nine
Mr Dehkordi noted that this ground would only be material if Ground 6 were unsuccessful. He argued in that case that in giving his reasons for decision, the Medical Assessor recorded an approximation of what he said in the body of the MAC.
THE RESPONDENT
We have rejected grounds one to four of the appellant’s submissions above.
Ground five
The naming of the retail stores as a non-exclusive list of goods or services which
Mr Dehkordi’s bank statements evidenced, corroborated that Mr Dehkordi did indeed attend shopping centres or participated in activities that fit within these criteria.We were referred to Dr Honey's opinion that Mr Dehkordi’s bank records suggested very strongly that his account of his day-to-day activities were not reflected by that documentary evidence.
Ground six
The respondent repeated its submission that the descriptors were examples only in response to the submission that the Medical Assessor had erred by including reduced contact with friends as a social recreational activity when it was properly a factor in assessing the category of social functioning. In submitting that the descriptors were examples only, we were referred to chapter 11.12 of the Guides and Parker v Select Civil Pty Limited, which we refer to below.
Ground seven
The respondent observed that the Medical Assessor used the expression “as described in the main body of the report” consistently in five out of the six categories he was assessing. The phrase was a figure of speech, it said, but in any event, the evidence in the body of the MAC itself did reflect the classifications that the Medical Assessor made in the Table 11.8 PIRS rating form.
We were again referred to the observation of Dr Honey that the bank records strongly suggested that Mr Dehkordi was a good deal more active than he appeared at the consultation with Dr Honey.
We were referred to Merza v Registrar of the Workers Compensation Commission and Anor[4] to the effect that a Medical Assessor was required to balance the evidence together with his own clinical observations and that a disagreement with the opinion of another Medical Assessor was not a demonstrable error.
[4] [2006] NSWSC 939 at [6] and [39].
Ground eight
The respondent again submitted that the descriptors were examples only and not intended to be exclusive and referred us to Ferguson v State of New South Wales, which we refer to below.
The respondent submitted that the class 2 rating for this category was open to the Medical Assessor and that he was not bound to agree with the findings of Dr Kumagaya as a minimum starting point for his own assessment.
Ground nine
The respondent submitted that the details on which the Medical Assessor made his classification was adequately detailed in his actual path of reasoning and that no error had been made.
DISCUSSION
The psychiatric impairment rating scale
The PIRS is established as the rating system for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in severity from 1 to 5. Class 1 relates to a situation where there is no functional deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[5] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[5] Guides page 55.
The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[6]
[6] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[7] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[8]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[7] [2017] NSWSC 887.
[8] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[9] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“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. (Ferguson [24])…..”
[9] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated; or
(d) if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[10] Basten AJ noted at [88-89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[10] [2022] NSWSC 929.
The tension between these descriptors in the many different possible scenarios within the six categories of the PIRS and the classifications thereof, is the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples, giving a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allowing a wider discretion to be applied than if the descriptors were intended to be strict criteria.
Mr Dehkordi put a strong emphasis on the language used by the Medical Assessor in stating that he had “stopped socialising” when describing Mr Dehkordi’s social activities, namely:
“….. He says he goes to the shops alone and with his partner. He says he has no “fun” with his partner. He's lost contact with friends because he has stopped socializing. He goes to restaurants with his partner ‘sometimes’.”
In the PIRS rating form, the Medical Assessor had relevantly said “…. [Mr Dehkordi] does not socialise as much as he used to….”
We read Mr Dehkordi’s submission with interest. It was alleged that the Medical Assessor had misunderstood himself when he gave a class 2 rating in the face of his own finding in the body of the report that Mr Dehkordi had “stopped socialising.”
The submission, however, overlooks a number of factors. Firstly, in that part of the body of the report concerned with “social activities/ADLs,” the Medical Assessor is doing no more than recording the complaints made by Mr Dehkordi. It by no means signalled that the Medical Assessor accepted at face value what he was being told.
Secondly, the function of a Medical Assessor is not to choose between competing arguments, nor to opine on the correctness of other opinions, but to form and give his own opinion by relying on his own medical experience and expertise.[11] It follows that a Medical Assessor is not obliged to follow the self-report of a claimant.
[11] [11] Sydney Local Health District v Chan [2015] NSW SC 1968 at [13] citing Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.
Thirdly, whilst the Medical Assessor noted at [10c] of the MAC that his opinion was consistent with other specialists’ diagnoses, he gave a different impairment rating “as explained in the attached psychiatric impairment rating scale.” As described above, his reasons within that Table included that “…It has been noted in the Procare investigative report and by Dr Kumagaya that he has been visiting eateries and shops regularly.”
As we indicated above, the Medical Assessor made an error of fact in stating that the information came from ProCare, but, as will be seen, the inferences drawn by Dr Honey on 26 March 2025 which were traversed by Dr Kumagaya, were before the Medical Assessor. He also noted the bank statements at [10a] of the MAC and it is clear that he regarded the activities recorded there as being relevant to his assessment of the behavioural consequences of Mr Dehkordi’s psychiatric disorder.
Fourthly, we were unable to appreciate the significance of the 16 separate symptoms described as being relevant to the assessment of Mr Dehkordi’s social and recreational activities within the PIRS. Again, those symptoms were a recording of the self-report made to the Medical Assessor and we have already ruled on the one symptom Mr Dehkordi relied on from that list, being that he told the Medical Assessor he had “stopped socialising.”
Accordingly, we find no inconsistency between what was said in the body of the Medical Assessor’s report, and that which appeared in the PIRS reasons regarding the social and recreational activities category.
The submission that those reasons were nonetheless inappropriate to base a rating within this category was based on Mr Dehkordi’s assertion that they were more apposite to the social functioning category, in so far as they related to his reduced contact with friends, and insofar as the bank statements indicated that he was involved in shopping, such an activity was not mentioned in the descriptors and did not seem to be concerned with his capacity to attend “events.” Mr Dehkordi did not refer to any authority, and it is necessary to examine the evidence in some more detail in order to consider this submission.
Statements of Mr Dehkordi
Mr Dehkordi made two statements dated 20 December 2024 and 13 April 2025.[12] In his first statement he described that he immigrated to Australia from Iran in either 2014 (paragraph 3) or 2013 (paragraph 8). He described that he worked as a delivery driver for two months and a labourer for a year before commencing with the respondent in September 2016.
[12] Appeal papers pages 50 and 510 respectively.
He described the subject injury of 27 October 2022 and his medical treatment. He said that he been receiving psychological support since 17 November 2022. He has not worked since 27 October 2022.
From [71] of this statement, Mr Dehkordi gave his “response to insurer factual report.” He noted that in a rental application he had stated that he had been employed by BTS Group Pty Ltd for one year. He said at [72] “this is not true.” He said that he had been under a lot of stress and pressure financially, and used “details of my friends” in this application.
Mr Dehkordi reiterated that he was desperate, that he felt uncomfortable with what he had done, which felt like “the only option.”Mr Dehkordi’s second statement was contained in an Application to Admit Late Documents, and followed a report from the respondent’s expert, Dr Honey regarding the content of
Mr Dehkordi’s bank statements.Dr Honey’s opinion, which had been consistently favourable to Mr Dehkordi in his reports of 16 February 2023 and 22 August 2024,[13] was revised in his report of 26 March 2025, once he had access to the bank statements. Dr Honey said in answer to questions:[14]
[13] Appeal papers pages 487 and 449 respectively.
[14] Appeal papers page 504.
“The provided material, including bank records suggests very strongly that the
claimant's account of his day-to-day activities and his capacity to engage in day-today
activities does not reflect at all his actual ability. This casts doubt on the
credibility of his report of the effects upon him of the accident in question, and ability
to carry out everyday activities.
2. Assuming the bank records are correct and demonstrate the Applicant’s attendance at and expenditure at destinations throughout the metropolitan area, please comment on the reliability of the Applicant’s reported psychological symptoms at his IME assessments. Please provide detailed reasoning for your opinion.
attendance at and expenditure at destinations throughout the metropolitan area, please comment on the reliability of the Applicant’s report
3. If you feel comfortable doing so, please provide your assessment of whole person impairment which results from the Applicant’s injuries sustained on 27 October 2022. Please provide relevant references to the AMA-V Guides, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th Edition) and any relevant worksheets.
Given the above, I do not feel in a position to give an assessment of a whole person impairment, due to the unreliability of his report, capacity to engage in everyday activities and his description of the symptoms he claims to experience in general.”
In his statement of 13 April 2025, Mr Dehkordi explained that when he had said that he had been employed for a year, it was because of the stress of trying to obtain a new residential lease. He referred to his travel habits, noting that he travelled where possible with his girlfriend, Ms Abolghassemi. He explained that her apartment was small and next to a major construction site in Alexandria. He would “often feel the need to get out of her apartment and drive to somewhere quieter to have a coffee or something to eat although my eating was irregular in frequency and in my timing of meals.”
Mr Dehkordi said that he followed a similar pattern when he was living at Northmead until the middle of 2024 when his rent went up. He “tended to have food delivered to eat at home but still in random fashion.”
Mr Dehkordi also said that he was still in a relationship with Ms Abolghassemi and that they shared living costs, which included the use of his Commonwealth Bank MasterCard, “so whilst it is not a joint account and most of the expenses appearing in the statements are mine, some are hers.”
As indicated, Dr David Kumagaya, Mr Dehkordi’s expert, issued a report dated
15 April 2025,[15] following receipt of the two statements from Mr Dehkordi, and reports from Dr Honey, along with a copy of the Desktop top Investigation report of 21 October 2024.[15] Appeal papers page 511.
The Medical Assessor’s précis of this report was accurate, and we note Dr Kumagaya’s statement that:[16]
“Having considered the totality of the available evidence, including the subject bank records, such do not raise concern regarding significant discrepancies in the reported severity of Mr Dehkordi’s psychological symptoms and their correlative psychosocial impacts.”
[16] Appeal papers page 513.
Dr Kumagaya’s reasoning was that “a sizable proportion of the bank transactions appear to reflect the procurement of food.” Dr Kumagaya did not consider those bank transactions that did not reflect the procurement of food, although Dr Kumagaya acknowledged that the bank statements also showed that Mr Dehkordi went to “McDonald’s, Officeworks, and food venues.” Dr Kumagaya linked that evidence with Mr Dehkordi’s capacity to travel, and with his second statement that he would “attend a quieter locale for a meal or beverage to distance himself” from Ms Abolghassemi’s residence because it triggered his post-traumatic stress disorder.
There are some difficulties in the way of accepting that opinion. The first difficulty lies in a perusal of the bank statements themselves.[17]
[17] They begin at appeal papers page 62.
In January 2023, they showed that Mr Dehkordi was using his Commonwealth Bank card in the following suburbs:
· Castle Hill;
· Merrylands;
· Homebush;
· Northmead;
· Wentworthville;
· Bass Hill;
· North Parramatta;
· Parramatta;
· Baulkham Hill;
· Guilford;
· Burwood;
· Sydney;
· St Marys, and
· Coogee.
The purpose of the card use in January 2023 varied, including payments at:
· Rose market;
· Supermarket;
· Nike;
· 7-Eleven;
· Target;
· Hungry Jacks;
· PAG Petroleum;
· Uber Eats;
· IGA;
· Ampol;
· Puma;
· KB Chickens;
· Chemist Warehouse;
· So Fresh Operations;
· Aldi;
· Northmead Pizzeria;
· Wilson Parking;
· Yaseen Cake Shop;
· GM Taxis;
· Coles Express;
· Officeworks;
· El Jannah;
· Beauty Gift Variety;
· Mumbai Express;
· Coles;
· Woolworths;
· Nari Nari;
· BP;
· McDonalds;
· So fresh;
· Merrylands tobacco;
· George’s Cellar;
· Rebel;
· Fancy Fions, and
· Kmart.
The same rate of use of Mr Dekordi’s bankcard was evidenced in the subsequent months, and the same wide geographical area was covered. In February 2023 the card was used in Goulburn, and in Collector.
Mr Dehkordi sought to make a distinction with when he had to move out of Northmead because of the rental increase. He said that was in the middle of 2024, and the bank statements produced did not go beyond 30 June 2024. There is no utility in further reproducing the bank statements for that month. They showed the same wide geographic area and the same diverse use of the card.
In the light of this short analysis of the bank statements, Dr Kumagaya’s report can be seen as a vague, generalised opinion which is not supported any detailed analysis of the evidence on which he relied. We have little difficulty in dismissing his opinion.
We note that the ProCare investigative report, whilst not referring to the bank statements, did advise that Mr Dehkordi had made an application for a tenancy in June 2024 and accompanied it with a statement that he had been in full-time employment for one year with another employer.[18] This is the statement that Mr Dehkordi admitted had been untrue, as he was trying to find rental accommodation. Whilst credit must be given to Mr Dehkordi for his frank admission, nonetheless it demonstrates that he has the capacity to mislead in circumstances where he is under stress, which litigation is known to cause.
[18] Appeal papers page 461.
We are accordingly satisfied that the evidence justified the finding by the Medical Assessor that Mr Dehkordi was indeed visiting eateries and shops both regularly and frequently.
In these circumstances we are satisfied that the class 2 rating was open to the Medical Assessor. In Botha v Secretary, NSW Department of Customer Service[19] Stern JA, sitting in the Supreme Court referred to Chapter 11.12, saying at [20]:
“That recognises what would in any event be expected, namely that a Medical Assessor will bring their own special expertise to bear in assessing a worker using each PIRS. In Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [64] Basten AJ referred to this paragraph in support of his Honour’s observation that it is “self-evidently, no function of this Court to review the classification [in that case by an Appeal Panel].”
[19] [2024] NSWSC.
In considering the challenge before her, which, as in the present case, concerned the social and recreational activities category, her Honour said at [66]:
“…It is plain from reading the terms of the Medical Assessor’s findings, in particular those … explaining why he assessed the plaintiff as falling within Class 2 on the Social and Recreational PIRS, that he had regard to the plaintiff’s attendance at social activities both inside out outside of her home in support of his conclusion as to categorisation on the Social and Recreational PIRS. In these circumstances, the word “attends” in the Medical Assessor’s conclusion as to categorisation on the Social and Recreational PIRS should be read as encapsulating attendance at social activities both inside and outside of the plaintiff’s home.”
In Lancaster, Basten JA, also sitting in the Supreme Court said at [72]:
“The plaintiff’s reading of Ballas would have surprising consequences. It would mean that every time a medical specialist considered under one scale an activity which a court determined properly fell under another scale, he or she committed jurisdictional error which could be the subject of review in the Supreme Court. The proposition that gambling (or running) may fall within the descriptor “social and recreational activities” if carried out in company (whatever that might imply) but not if carried out alone, and the assessment by a medical specialist whom a court determined had failed to apply that distinction so as to render his or her determination a nullity would be a surprising consequence. It would involve reading down the term ‘recreational’ by reference to the generic and imprecise exemplars in the class descriptions, so as to impose a legal constraint on the valid exercise of power by the medical specialist. A similar exercise would potentially be available for each of the other scale descriptors.”
The evidence in the present case concerns a claimant, whose evidence self-evidently cannot be relied on. The bank statements revealed that his statements, and the histories given to the experts, are so contrary to their content that, regrettably, Mr Dehkordi’s credit has been compromised. It follows that if Mr Dehkordi’s activities were as widespread as the bank statements indicated, then his capacity to attend social and recreational activities was probably not affected to any more than a mild extent. The bank statements do indicate such a wide spread activity and there was no error in the Medical Assessor’s acceptance of that inference. The extent of his ability to visit shops on a regular and widespread basis was compatible with a recreational activity in these circumstances.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 May 2025 should be confirmed.
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