Tofighian v The University of Sydney

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Tofighian v The University of Sydney [2022] NSWPIC 662
APPLICANT:	Omid Tofighian
RESPONDENT:	The University of Sydney
Member:	Michael Wright
DATE OF DECISION:	30 November 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation in respect of psychological injury; only issues in dispute were capacity and credit; submissions against applicant’s credit considered; Finney Pty Limited t/as Cut Price Car Rentals v Chequer considered; Held – applicant’s credit not impeached and his statements were accepted; found no capacity for work; award for applicant for weekly compensation.
determinations made:	1. The applicant had no current work capacity from 24 December 2019 to 28 December 2021. 2. Respondent to pay the applicant pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) weekly compensation at the rate of $1,432.15 per week for the period 24 December 2019 to 28 December 2021. 3. General order that the respondent pay the applicant’s medical, hospital and related treatment expenses pursuant to s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (the ARD), Mr Omid Tofighian (the applicant) claimed lump sum compensation, past medical expenses and weekly compensation in respect of psychological injury as a result of his employment with the University of Sydney (the respondent) sustained on 22 March 2017.
In a s 78 notice dated 15 January 2020, the workers compensation insurer disputed that the applicant was entitled to weekly compensation and medical expenses on the basis that the applicant did not have total or partial incapacity for work nor that medical expenses were reasonably necessary as a result of an injury. In a s 78 notice dated 28 April 2021, the workers compensation insurer disputed eligibility for permanent impairment lump sum compensation on the basis that the relevant threshold had not been met, and also that there was no entitlement to weekly payments or medical expenses as previously notified. In a s 287A review notice, the workers compensation insurer maintained its dispute notice dated 28 April 2021.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The applicant’s claim for permanent impairment compensation was referred by the Commission to Medical Assessor Blom, who issued a Medical Assessment Certificate dated 30 June 2022 of these proceedings. Medical Assessor Blom assessed 7% whole person impairment in respect of psychological injury. That assessment was not appealed. The matter was thereafter referred to the Commission for determination of the applicant’s claim for weekly compensation and medical treatment expenses.
At the conciliation/arbitration of this matter on 13 October 2022, the applicant was represented by Mr McEnaney of counsel, instructed by Ms Ryan, solicitor, and the respondent by Mr Alan Parker, of counsel, instructed by Ms King, solicitor.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
At the conciliation/arbitration leave was granted to the applicant to amend the claim for weekly compensation to close the period of weekly compensation claimed at 28 December 2021, that is the claim for weekly compensation in issue was for the period 24 December 2019 to 28 December 2021 (the relevant period). The only issues in dispute were capacity for work and credit.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission:
i)      ARD and attached documents;
ii)     Reply and attached documents, and
iii)    Applications to Admit Late Documents dated 10 May 2022, 8 June 2022 and 10 October 2022, and attached documents.

Oral evidence

There was no application to cross examine or to give oral evidence.

Documents

The applicant’s statements

The applicant provided statements dated 1 May 2017, 21 August 2021 and 7 October 2022.
In his statement dated 1 May 2017, the applicant stated that he was born in Iran and came to Australia in 1982. He was educated at high school in Campbelltown in Sydney and he obtained an honours degree at the University of Sydney in philosophy and studies of religion. He completed a PhD in philosophy at a university in the Netherlands. He returned to Australia at the end of 2010. He initially worked on casual teaching contracts at the universities of Western Sydney, Wollongong and Sydney before working exclusively for the respondent from the middle of 2014. He commenced a fixed term contract on 6 February 2017 as a Senior Project Officer at the National Centre for Cultural Competence within the office of the Deputy Vice Chancellor (Indigenous Strategy) on a full time basis.
The applicant stated that his duties were to manage a project described as the culturally competent leadership programme. He stated that this involved meeting milestones, managing the project and ensuring that content is designed and matches the standards of the university and is delivered to professional and teaching staff.
After sustaining injury that is the subject of these proceedings, the applicant went off work on 22 March 2017. He consulted a general practitioner (GP) at the Ramsey Street Medical Centre at Haberfield. The applicant said that at that time he did not believe he could return to work.
In his statement dated 21 August 2021, the applicant stated that he submitted a certificate of capacity in December 2019 in which he was certified unfit for work until 24 January 2020 as a result of the subject work injury.
The applicant stated that after he sustained his psychological injury he did his best to create a distance from academic work in Australia so that he could recover and he tried to avoid engaging with persons or institutions that triggered his experience, although he had difficulty disconnecting. He stated that he had many sessions with Dr Ziedni in this regard. He said that he first discussed overseas travel with Dr Ziedni in about May 2017 and he went on a trip to Cairo and the Emirates in September 2017. The applicant said that when he returned he told Dr Ziedni about the possibility of doing some teaching work in Egypt and Dr Ziedni recommended that the applicant to try it to see if he had the capacity to return to work back in Australia. The applicant stated that he put his workers compensation payments on hold and returned to Cairo at the end of October 2017 for about 1½ months before returning to Sydney. The applicant said that over the next year and half (after 2017) he continued to travel to Cairo and other places and continued to do some teaching work to see how he would cope over a longer period and to see if his mental health was improving.
He stated that up until December 2019 he returned to Australia for a few months at a time on a number of occasions but always felt paranoid and vulnerable and he could not wait to return overseas. He said that while he was abroad he did not feel that his health was improving but he did not have the same level of depression and anxiety as in Sydney. He said that he felt that he would be returning for good in December 2019, although he also travelled to Europe and the United States in February 2020 and returned in March 2020. He stated that he did not work while he was in Europe and the United States in that period. He said that he felt comfortable knowing that his travels were supported by his psychologist and that he had friends and family in various places who would meet him at airports or drop him off and would sometimes travel with him for support. He said that if his visits in various places lasted for more than a week he would become irritated and antisocial. He said that such visits, while healing to a certain extent, made him angry and sad about his situation in Australia. He stated that he wanted to see in such visits whether he was permanently ill, but on the occasions that he returned to Australia he slipped back into deep depression and anxiety and felt an urgent need to travel abroad again to get some distance. He stated that the thought of returning to work in Australia petrified him.
The applicant stated that he had only translated one book which he began before his injury. He also stated that “A Letter from Manus Island” was an article and not a book. He stated that he had published articles and translated work by people in indefinite detention and this was a product of his rage and his resistance to an abusive system. He stated that this was not a conventional form of academic work and the production of publications for Australian academic institutions was a sickening thought for him. He said that his visits to Manus Island in 2017, 2018 and 2019 were all a form of activism and also reflected the extent of his own trauma and need for therapy. He stated that his articles and work were mostly completed prior to his injury and after the injury he mainly did light editing work and corresponding with the publisher by email and books normally take a long time to publish after the actual writing.
The applicant stated that most of the publications that he had put out since the injury involved only short emails and no serious social contact with people, including being listed as co-editor of “Refugee Filmmaking; Alpha Ville: Journal of Film and Screen Media” (2019). He stated that the articles he did for that work were drawn from work he did before his injury. He said that he also had minimal engagement with the other editors and in any event, he had a serious fallout with them towards the end of the project and he has had no further contact with them He stated that this is important because most of his relationships, whether with academics or outside academic circles, ended over a dispute and with ill feelings. He stated that he cannot seem to keep any relationships and even his relationship with his mother is somewhat strained.
He stated that none of this writing and publishing that he did generated income or contributed to a career in any way as publications were random and expressions of his feelings at the time and were not traditional or practical academic work.
In his statement dated 7 October 2022, the applicant reviewed and commented upon the respondent’s Application to Admit Late Documents dated 10 May 2022 containing the applicant’s bank statements. The applicant stated that deposits dated 20 February 2020, 1 May 2020, 2 July 2020 and other deposits described as “offshore telegraphic transfers”, were not payments made to him for work performed, but were rather for other reasons which he described. He also stated that other deposits made with the description “translation rights” and “Pan McMillan” were made to him for publications that he had worked on prior to his subject injury.

Dr Oldtree Clark

In his report dated 16 December 2020, Dr Clark noted that
“In 2017, Mr Tofighian requested his claim be postponed, while he took a break from ongoing psychological treatment. He went abroad and returned around August 2017. He said he was coming and going and came back to Australia in mid-December 2019.
…
Since he returned from overseas, he has been withdrawn and living “like a hermit,” he said. He sees his brother once a week.”
Dr Clark diagnosed persistent depressive disorder. He was of the opinion that the applicant was unfit for employment at present. In relation to the Psychiatric Impairment Rating Scale (PIRS) assessment in relation to permanent impairment, Dr Clark was of the opinion that the applicant’s employability was severely impaired, having regard to the definition that the worker could not work more than one or two days at a time, less than 20 hours per fortnight and pace is reduced and attendance erratic.
In his report dated 20 October 2021, Dr Clark disagreed with the permanent impairment assessment of Dr George. Dr Clark diagnosed persistent depressive disorder. In his assessment of permanent impairment with respect to the PIRS category of employability, Dr Clark was of the opinion that the applicant was not presently employable and that from a psychiatric perspective this was a severe impairment.

Dr George

In his report dated 9 May 2017, Dr George diagnosed an adjustment disorder with depressed mood. He was of the opinion that currently the applicant did not have capacity for work and he may only have capacity to work when the applicant was engaged with ongoing therapy and that return to work should be left up to the GP and treating psychologist.
In his report dated 10 March 2021, Dr George noted that
“Mr Tofighian said that, several months after my assessment in May 2017, he left for overseas. He said he went to the Emirates where he visited family and friends and he remained there for several weeks. He then moved onto Egypt where again, he stayed with family and friends for a few months according to his descriptions. He said that he returned to Australia in December 2017.
He said that in February 2018, he returned to Egypt for two months and then, he said that he spent time visiting Italy and the UK for short trips. He returned in April 2018.
He said that in all he may have had six trips to Europe, the UAE and Egypt until he came back to Australia in November 2019. At that stage, he returned from London. He has not been out of the country since then.”
Dr George also noted that
“Mr Tofighian said that he was not working. He said that because of what occurred for him at Sydney University, he believes he would find it extremely difficult to get a job in academia. He has not been able to overcome the fact that he was discriminated against in a job application process on ethnic/cultural grounds. It did appear that his story was substantiated over time.
He said that he has retained an interest in work related to translation but also he has an interest in advocacy for both refugees and immigrants.
He said that he was able to travel overseas because he would stay with family and friends and did not have to pay for accommodation wherever he visited. He said he used to do a lot of travelling when he was younger.
…
He was asked how he spent his time generally. He said that he would spend much of his time at home. He said that he does some reading and some writing. He said there are periods where he cannot focus his attention and concentration but then other periods where he could work for a week or so. He seemed to indicate that his ability to attend and concentrate was quite variable.”
Dr George was of the opinion that the applicant
“…has continued with what would best be described at this point as a persistent depressive disorder. One could see this as a chronic adjustment disorder with mixed anxiety and depressed mood, but because of the time period involved, the diagnosis of a persistent depressive disorder is more appropriate and it is a DSM-V diagnosis.
…
The diagnosis is one whereby a person is depressed much of the time over a period of two years or more. There is variation in the mood state, but the general tone of mood is one of depression. I believe this is best applied to him at this stage. He remains preoccupied about what has happened to him. He finds himself ruminating about it regularly. As a result, he has disturbed sleep and generally has become quite socially withdrawn and cannot work on a consistent basis.”
Dr George regarded the applicant “as being incapacitated to a degree. The area of academia appears to have been an area in which he believes he will not be successful, either now or in the future…” He was of the opinion that the applicant did not appear to be psychological fit to perform his preinjury duties and hours. He was of the opinion that the applicant “has very specific skills and he has a Ph.D. in a highly specialised area. I do not believe that he has capacity to work the hours which you suggest.” Dr George, in assessing permanent impairment in relation to employability, considered that the applicant “appears impaired in his ability to work full-time in any consistent occupation. He has not worked in any real capacity since last seen. He appears capable of part-time work.”

Mr Ziedni

Mr Ziedni, treating psychologist, provided a number of reports in which the detailed treatment in respect of the subject injury.
In his report dated 20 October 2017, Mr Ziedni noted that the applicant intended to have a break from ongoing treatment with a view to resuming therapy in the future. He was of the opinion that the applicant’s intention to spend some time overseas was “reasonable and appropriate considering that as part of his recovery and healing process”. He was of the opinion that the applicant currently had no capacity to return to his preinjury duties.
In his report dated 10 July 2021, Mr Ziedni noted that the applicant had been diagnosed with adjustment disorder with mixed anxiety and depression. However, there was also the opinion that the applicant displayed symptoms that resembled post-traumatic stress disorder. Mr Ziedni noted that the applicant had “participated in volunteer work and individually directed activities such as writing and translating to maintain his intellectual capacity.” He was of the opinion that the applicant “currently has no capacity to work and has not completed any return to work program as managed by the insurer. He has poor prognosis and showed tendency to be more traumatised to return to the preinjury duties”.

Dr Afroze and Dr Vago

Dr Afroze, the applicant’s GP, in an “Attending Doctor’s Statement” dated 17 February 2021, diagnosed reactive depression/adjustment disorder with mixed anxiety and depressive mood, with current symptoms of anxiety, amotivation, depressed mood, insomnia and heartburn. Dr Afroze was of the opinion that the applicant was “unable to get back to work – anxious when exposed to work colleagues, finds it difficult to focus/concentrate, becomes more depressed”. Dr Afroze noted that the applicant “may be able to work from home that involves performing own research provided research fund/grant” but was of the opinion that the applicant was not ever likely to resume his own or any other occupation in the future for the reasons that the applicant suffered “anxious, amotivation, somatic symptoms of anxiety adjustment disorder since workplace incidence in 2017”.
Dr Afroze also provided a medical certificate dated 24 December 2019 which certified the applicant had no current work capacity for any employment from 24 December 2019 to 24 January 2020.
Dr Vago, GP, issued Certificates of Capacity certifying no capacity for work, with the last period recorded as being from 3 April 2022 to 3 May 2022.

Dr Briere

Dr Briere provided an “Interpretive Report” in respect of a “Detailed Assessment of Post-traumatic Stress” dated 16 February 2022. This appeared to be an interpretation of psychological testing of the applicant in respect of post-traumatic stress disorder. Dr Briere recorded his qualification as PhD, but did not detail his psychological qualifications. The report did not record a history of injury or onset of symptoms.

Medical Assessment Certificate

Medical Assessor Blom issued a Medical Assessment Certificate (MAC) in this matter dated 30 June 2022. Medical Assessor Blom assessed the degree of permanent impairment of the applicant in respect of psychiatric/psychological disorder in respect of injury on 22 March 2017.
Medical Assessor Blom noted that the applicant
“…said he continued to feel depressed, anxious and became more withdrawn during 2017. Nevertheless, he was able to publish a number of academic articles based on material from his previous work. He said that he managed this even though his concentration was somewhat impaired. He managed to undertake the writing and preparation of these articles by working he said in short bursts. In August 2017 he visited Manus Island as he had become concerned and interested about the refugees that had been placed there. He was involved in various forms of advocacy and eventually visited Manus Island on two further occasions, once in January 2019 and then later in 2019. He has subsequently written multiple articles in 2019, 2020 and 2021, related to this. Some of these publications were in conjunction with other authors and some involved him translating the writing of refugees. He found that travelling to Manus Island and engaging in this activity somewhat assisted his overall mental health. He was encouraged therefore by his psychologist to further eave Australia to see if this helped his symptoms.”

Medical Assessor Blom also recorded that
“… In late 2019 he again travelled to the UAE and Egypt. Because of the tension and conflict he had experienced previously, he stayed with a different group of friends however he retained contact with the first group of friends. He again worked briefly in Egypt in academia. On his return to Australia is further travel was restricted due to the initiation of the covert 19 locked down in 2020. His symptoms somewhat deteriorated during this time. He felt unable to obtain work in Australia, he said, although as mentioned previously he continued writing various academic articles for journals. He said he felt he had failed his attempt to find long-term work. This was made significantly worse by the fact that he had experienced a disruption in his Workers Compensation payments which had come about because he had discontinued the payments whilst he had been travelling overseas and working. When he attempted to reinstate the Workers Compensation payments there was some delay, which resulted in an increase in stress and anxiety for him.
Since the COVID lockdown he said that he has remained in Australia and has not worked. He describes ongoing irritability and suspiciousness which has caused some tension and conflict with his mother with whom he still lives. He said that he has become more withdrawn and avoidant because of his anxiety. He describes feeling quite overwhelmed after encounters with his friends, that takes him sometimes several days to recover from. He describes considerable feelings of self-doubt. It would appear that his symptoms have somewhat deteriorated over this time because of the period of enforced lockdown and I suspect also the chronicity of his low grade symptomatology. He has continued to have treatment with his psychologist on a regular basis…
…
…Subsequently to leaving work he has worked on a couple of occasions as mentioned in the history, in Cairo at the American University in casual academic positions. He has had multiple articles published in 2019, 2020 and 2021 although says that he is not currently undertaking any academic work.”
Medical Assessor Blom also noted that
“Mr Tofighian has said that he has recently struggled to write papers because of his anxiety and loss of motivation although I do note that he had at least five publications in 2021. He has experienced some withdrawal and loss of motivation most likely associated with the COVID pandemic, lockdowns, and his inability to travel, but as the capacity to undertake travel increases, I believe he will again be able to travel if he wishes. The academic community that he works in is a very limited one, but he wishes to remain within it. To obtain work he would need to apply for positions away from Sydney University. However, given his previous history of being able to work in the American University in Cairo, his extensive academic writing as well previous engagement in a variety of academic activities (workshops, cultural events), I believe that he is still able to return to work in a less demanding and more supportive position. I would think that he would not be able to work more than twenty hours/week and as mentioned some relocation would be required. However, I believe that this is all possible given his previous demonstrated capacity to travel extensively, and the fact that there has not been a marked deterioration in his overall symptoms as reflected in his overall presentation at this interview.”
Medical Assessor Blom observed that
“Mr Tofighian’s presentation was consistent with the documentation I read and the history that I took. It did appear however that he wished to some degree minimise his capacity to engage in social and employment related activities when overseas although was forthright and truthful when I discussed with him the documentary evidence available to me.”
Medical Assessor Blom commented upon the report of Dr Oldtree Clark dated 16 December 2020. Medical Assessor Blom noted
“…that from Dr Oldtree Clark’s history that it would appear at the time of Mr Tofighian presentation he may have been more ill than he is at this time given that this history was taken approximately eighteen months ago. However it is apparent that Dr Oldtree Clark did not obtain the history of Mr Tofighian’s very significant travel in the preceding eighteen months. I am not sure why he did not obtain this history, but I believed this would have substantially impacted on his PIRS class ratings if he had been made aware of it.”
Medical Assessor Blom also commented that
“In regard to Employability Dr Oldtree Clark rates Mr Tofighian Class 4 saying he is severely impaired and that he is ‘not presently employable’. This is clearly inaccurate as he had only a few months prior been working overseas in an academic position at the American University in Cairo albeit casually. I believe that Mr Tofighian under the right circumstances still would be able to work in a casual position at less than twenty hours/week provided the job was structured in such a way as to reduce his stress. As such I think Class 3 is more appropriate.“

Bank statements, other financial documents and other documents

In evidence were a number of the applicant’s bank statements, invoices over a period from 6 April 2020 to 17 September 2020 of Jane Novak, literary agent, and payslips of the American University in Cairo of October and November 2019, Western Sydney University remittance advice of 4 December 2020, and payslips of the University of Sydney over a period from July 2017 to 1 February 2018.
The applicant’s bank statements for the relevant period recorded, in my view, sporadic or intermittent entries for payments from various persons, but there was nothing specific in those bank statements as to what the payments were for. The invoice of Jane Novak of 6 April 2020 provided details of a fee for the applicant’s participation in a “scheduled event”, possibly in respect of a “Displaced Voices panel” noted in a separate invoice of the same date, although the recipients of each of these invoices were different entities. Other invoices of Jane Novak were addressed to the applicant and detailed payments for various consultancies and engagements, although without details as to dates and the activities, if any, of the consultancy or engagement; as well as invoices for royalties, again without detail as to whether this was for work actually done in the relevant period. The remittance of the University of Western Sydney did not provide details as to what the payment was for. The payslips of the University of Sydney ceased well before the relevant period.
Attached to the Reply were documents including a “Desktop database search” conducted by an investigator briefed by the insurer, a “Curriculum Vitae”, undated, and attributed to the applicant, and a “List of publications and appearances/media releases”, drafted by the respondent’s solicitors “as at 26 April 2021”.
The desktop database search relevantly detailed two social media posts in February 2021 and 9 March 2021, said to have been posted while on Manus Island, although without detail that I could discern as to specific activities. The same search also revealed Internet entries in which the applicant was described as a philosopher and honorary research associate at the University of Sydney, although again without detail as to whether such description was current and applicable to current activities, if any.
The curriculum vitae was not signed and was not dated. It referred to a period in 2017 to 2018 at the American University in Cairo which described employment as an “Assistant Professor, Philosophy”, but did not give details as to periods worked and specific duties undertaken. There were no publications, or other activities such as lectures or media participation, listed after 2018.
The list prepared by the respondent’s solicitors as at 26 April 2021 was not signed, nor was it dated, nor adopted by the applicant nor attested to by any other person. It contained references to a number of publications and appearances or releases without explanation or detail as to when any work may have been performed by the applicant in this regard, other than to list the year of publication, and the nature of such work. In respect of appearances, there were references to dates and often general descriptions in the relevant period such as Blue Mountains Writer Festival and generic descriptions such as “film screening in Oxford” and “on ABC radio”, again without description of the specific activity undertaken by the applicant. There were some “Notes on contributors” referring to the applicant but without a clearly identified author, subject matter of the contribution, if any, date, other than the date at the top of the page which may or may not have referred to the subject matter. There was also an entry in respect of the applicant relating to the Blue Mountains Writers Festival, again without a clearly identified author, subject matter of the applicant’s contribution, if any, and date other than the date of the top of the page which may or may not have referred to the subject matter. Also attached was a “commentary” by the applicant of August 2019, although it was unclear whether this was the date of publication in respect of an earlier commentary. It referred to the applicant’s acceptance in 2019 of an award on behalf of an author, Mr Boochani, in respect of Mr Boochani's book, “No Friend But the Mountains” for which the applicant was the translator.

Reasons

The respondent attacked the applicant’s credit, in what I would summarise as referring in detail to the various payment entries in the applicant’s bank statements, the invoices of Jane Novak, and the other documents referred to above, to assert that the applicant did have capacity to work in the relevant period and could and did work in an academic capacity. The respondent submitted that the applicant provided his explanation as to these matters in his later statements only after the Reply, with the relevant documents, was filed in these proceedings, and hence his explanation should not be accepted. The respondent also referred to, among the other reports noted above, the Medical Assessment Certificate of Medical Assessor Blom, which was critical of the history recorded by Dr Oldtree Clark, and also in which Medical Assessor Blom noted that the applicant tended to downplay his activities until he was confronted with specific details, at which time he became more forthcoming and truthful.
The applicant objected to the respondent’s submissions as to credit, on the basis that the respondent had not sought to cross examine the applicant to seek an explanation of these matters, in circumstances where the applicant had provided an explanation and where the respondent was seeking to rely upon financial documents which had otherwise not been explained. The applicant referred to the decision in Finney Pty Limited t/as Cut Price Car Rentals v Chequer (Finney)[1]. The applicant also submitted that the documents relied upon by the respondent and its submissions were an attempt to ask the Commission to infer or assume capacity, when such documents did not do so.
[1] [2021] NSWPICPD 13 at [70]-[72].
I do not accept the respondent’s submissions as to the applicant’s credit, for two reasons. The first is that the various financial and other documents referred to above do not provide sufficient or any detail as to when the applicant performed a relevant activity, and if indeed such an activity in the relevant sense of a work activity was in fact performed, which was disputed by the applicant as noted above. In summary, the respondent invited me to infer or assume that the applicant had performed activities which were work activities on the basis that these documents, in effect, spoke for themselves. In my view, the financial and other documents noted above did not speak for themselves for reason of the lack of detail or explanation that I have previously noted. I will deal with the reports of Medical Assessor Blom and Dr Clark below.
The second reason is that in my view the reasoning of the decision of Finney applies in this matter. In my view, the need for cross examination was not obviated by the extensive documentation exchanged by the parties and statements of the applicant, at least without giving the applicant the opportunity to be heard on an application for cross examination, and thereafter to put these matters to the applicant. The respondent in its submissions had invited the Commission to make substantial findings against the applicant’s credit that he had not been candid in his evidence as to his activities in the sense of work activities in the relevant period, and he had only been more forthcoming after he was confronted with the various documents provided by the respondent in these proceedings, as distinct from matters of inconsistency, incoherence or other factors in which the Commission might justifiably have refused to accept evidence. The respondent’s submissions were in my view an invitation to make findings of “such a serious character” that such findings should not be made unless the applicant was confronted with the matters alleged. This, in my view, is all the more important where the details in respect of the various entries and invoices were either absent or not clear.
In relation to the MAC of Medical Assessor Blom, the respondent, in addition to the submissions noted above, also submitted that the comment by Medical Assessor Blom, noted at paragraph 37 above, was a typographical error and the Commission should infer that Medical Assessor Blom was of the view that the applicant could work not less than 20 hours per week, as this was consistent, the respondent said, with earlier comment by Medical Assessor Blom in the MAC. The applicant submitted that this was a matter that was stated by Medical Assessor Blom in a MAC and that such an inference was therefore not available and in any event the respondent had had the opportunity to seek clarification in this regard but apparently had not done so.
I decline to accept the respondent’s submission that there was a typographical error in the comment by Medical Assessor Blom, as noted at paragraph 37 above. To the extent that there was inconsistency in the opinion expressed by Medical Assessor Blom, it was not clear in which direction any such inconsistency should be resolved. In this case, inconsistency, is not sufficient reason to read different words into a MAC without further evidence. This is not an alleged mere arithmetical error or error of transposition such as in “left” for “right”. This is, indeed, consistent with a PIRS “employability” category class 3.
The MAC of Medical Assessor Blom, although conclusively presumed to be correct in respect of his assessment of the degree of permanent impairment, is evidence, but not conclusive evidence, in the current proceedings in respect of the applicant’s capacity.
In assessing the degree of permanent impairment, Medical Assessor Blom had regard to the various PIRS categories, including the category of “employability”. Medical Assessor Blom referred to the reports of Dr Clark and Dr George in considering the various impairment classes within the PIRS categories. In my view, the assessment by Medical Assessor Blom of the PIRS category of “employability” for the assessment of the degree of permanent impairment is distinct and different from a consideration of whether or not the applicant has any current capacity for work within the meaning of s 32A of the 1987 Act for the purposes of consideration of weekly compensation pursuant to s 37 for the relevant period. The former was a consideration and assessment by Medical Assessor Blom at the time that he assessed the applicant with respect to permanent impairment, that is an impairment that was not likely to substantially alter within the subsequent 12 months, whereas the latter is a consideration of current capacity having regard to the statutory definition. Medical Assessor Blom did not assess the applicant’s current work capacity in the relevant period. He assessed the applicant’s “employability”, among other matters, as at the time of assessment in June 2022 and also commented upon the history recorded by Dr Clark and Dr George and the applicant’s consistency.
Medical Assessor Blom commented that the applicant presented consistently with the documentation that he had read and history that he had taken, although it appeared that the applicant seemed “to some degree” minimise his capacity to engage in social and employment related activities when overseas although he was “forthright and truthful” when the documentary evidence was discussed. In my view, Medical Assessor Blom did not substantially cast doubt on the applicant’s credit and Medical Assessor Blom’s comment that history recorded by Dr Clark was in certain respects untrue did not make any comment as to why this was so. Medical Assessor Blom also commented that the history relied upon by Dr Clark in respect of employability was “inaccurate”, but in my view this is made in the context of Medical Assessor Blom justifying why a class 3 was preferred rather than the class 4 that was assessed by Dr Clark, with no comment in relation to the applicant’s credit in this regard. Indeed, Medical Assessor Blom noted that from the history recorded by Dr Clark that at the time of that assessment he may have been more ill than he was at the time of the assessment by Medical Assessor Blom, given the passage of 18 months between the assessments, although Medical Assessor Blom noted what he regarded as the inaccurate history noted by Dr Clark.
Medical Assessor Blom also recorded history that after visiting Manus Island in 2017, the applicant had become concerned and interested about the refugees that had been placed there and he became involved in various forms of advocacy and subsequently wrote multiple articles in 2019, 2020 and 2021 related to this. However Medical Assessor Blom later recorded that after the 2020 COVID lockdown the applicant continued writing various academic articles for journals. This does not appear to me to be the history provided by the applicant to Medical Assessor Blom in respect of his writings in respect of advocacy. In his statements the applicant said that he regarded these articles as advocacy and not rigourous academic work. This was not challenged and I accept the applicant’s explanation in this regard. I do not place significant weight on the opinion of Medical Assessor Blom in respect of capacity for work, which was of course not the purpose of his assessment, other than in respect of the PIRS category of employability. I also note that Medical Assessor Blom’s view that the applicant may have sustained a deterioration with the Covid lockdown in 2020 does not coincide with the medical certificate issued in December 2019 in which the applicant was certified unfit for work.
Medical Assessor Blom also referred to the applicant’s previous engagement in a variety of academic activities such as workshops and cultural events. However, it is not clear to me that this was the history provided by the applicant to Medical Assessor Blom. Medical Assessor Blom assessed the applicant in the current proceedings in respect of his claim for permanent impairment, and the documents that were forwarded to him included the Reply and subsequently documents provided by the respondent, including the list prepared by the respondent’s solicitors referred to above, as well as the desktop report also described above. I do not place weight on either of these documents. The desktop report in my view is short on detail and is not persuasive. The list prepared by the respondent’s solicitors is in my view unpersuasive for reasons of the lack of detail noted above in terms of the applicant’s activities, and in any event is not in acceptable form for evidence. Further, the applicant’s explanation in this regard seems not to have been recorded by Medical Assessor Blom.

Medical Assessor Blom was not of the opinion that the applicant was able to perform his preinjury job. Medical Assessor Blom was of the opinion that the applicant would be able to return to work “in a less demanding and more supportive position” and “under the right circumstances” the applicant would still be able to work in a “casual position” at less than 20 hours per week, provided the job was structured in such a way as to reduce his stress. Medical Assessor Blom did not elaborate upon what he meant by a “casual position” in terms of matters such as frequency of engagement. Medical Assessor Blom also did not elaborate upon the hours per week that he thought the applicant could perform, nor the duties of some alternative work. This was in keeping with the purpose of the assessment of the degree of permanent impairment, rather than consideration of the applicant’s current work capacity in the relevant period.
The history recorded by Dr Clark was brief. Dr Clark did not record a history of overseas travel, nor history of writing articles, nor history of working at the American University in Cairo in 2019. However, in respect of the PIRS category of “employability”, Dr Clark assessed class 4, severe impairment, endorsing the criterion “cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic”. He commented that the applicant was “not presently employable. From a psychiatric perspective, this is a severe impairment”.
Dr George in his March 2021 report did record a history of overseas travel, but not a history of employment, nor of involvement in producing research or similar papers.
The respondent submitted that the history recorded by Dr Clark and Dr George was contrary to that recorded by Medical Assessor Blom and the only reason that the applicant provided that history to Medical Assessor Blom was that the applicant had been exposed by the documents provided by the respondent in these proceedings. The applicant submitted that in the absence of these matters being put to the applicant in cross examination, within the wider context of a lack of cross-examination as discussed above, it could not be said that the applicant was untruthful to both doctors, as it was also the case that both doctors could have recorded the history incorrectly or inadequately.
I do not accept the respondent’s submissions. I decline to assume or find that the applicant was obliged to provide a proper history to Medical Assessor Blom after he was “exposed” by the documents provided by the respondent in these proceedings. In my view this is not an assumption that can be made in a case where there is no dispute that the applicant has sustained a psychiatric injury from which he continues to suffer symptoms, and where the respondent has not sought to put this allegation to the applicant in cross examination. This was not an allegation of inconsistency or similar. It was an allegation that the applicant provided a correct history to Medical Assessor Blom after his earlier incorrect histories to Dr Clark and Dr George had been exposed. In my view this was a serious allegation. It was also an allegation that in my view was not obvious on the papers before it was made in submissions.
In my view, the applicant’s credit has not been impeached in this matter. I accept the applicant’s evidence as contained in his statements, particularly the matters referred to at paragraphs 11 to 16 above.
In relation to capacity for work, the applicant submitted that he had no capacity for work, that is he was not fit for work in the relevant period. It was submitted that in these circumstances the respondent had the onus of showing the applicant’s level of capacity for work and it has not put on evidence in that regard.
The respondent submitted that the payslip of November 2019 of the American University in Cairo showed that the applicant worked in the faculty of English for a salary of US dollar $3,208 per month. The respondent also submitted that an invoice for payment advice of Jane Novak of 30 April 2020 recorded payment from the University of Sydney Law conference in the sum of $800 and payment of royalties to 31 December 2019. The respondent submitted that these and other payments indicated that the applicant did not have total incapacity for work. The respondent also submitted that no explanation has been provided by the applicant in respect of the absence of reports of Dr John Roberts, psychiatrist, or of the Royal North Shore Hospital.
I do not accept these submissions by the respondent. I decline to make an inference in respect of any reports by Dr Roberts or the Royal North Shore Hospital. It is not clear whether or not such reports or documents have been requested or obtained. In relation to the payslip of November 2019, it does not explain the applicant’s hours of work, days of work, and duties, nor does it assist in respect of the applicant’s symptoms, mental state or actual capacity to perform duties at that time. The applicant has provided an explanation, which I accept, that he was trying to do some academic work, but not in Australia, as part of trying to recover from his illness in consultation with his psychologist, Mr Ziedni. This was not successful, following which the applicant was certified unfit for work in December 2019. Similarly, the payment advice of Jane Novak of 30 April 2020 did not detail the date of the conference, nor of the applicant’s activities, if any, at that conference. In respect of the royalty payment of the same payment advice, there was a reference to a “share of royalties to 31 December 2019”, but there was no reference to the work, the nature of the work and when the work was performed other than a cryptic reference to “House of Anansi”. This exemplifies the difficulties with the various financial documents which I have described above.
In my view, there is no persuasive medical evidence that the applicant was fit for alternative duties in the relevant period. Dr George provided an opinion within the relevant period that he thought that the applicant appeared to be capable of part-time work but did not provide an opinion as to alternative duties nor did he endorse a proposition that there were alternative jobs consistent with the applicant’s skills and qualifications. Dr Clark was of the opinion that the applicant was not presently employable, an opinion which was provided within the relevant period. The opinion of Medical Assessor Blom has been discussed above.
The applicant’s GP, Dr Afroze, provided a medical certificate dated 24 December 2019 in which the applicant was certified unfit for work from 24 December 2019 to 24 January 2020. Dr Afroze also provided an “attending doctor’s statement” dated 17 February 2021 in which he provided an opinion that the applicant had not been able to perform suitable duties since becoming unfit for work and was unable to get back to work due to his psychological symptoms, and he was of the view that the applicant was not ever likely to resume in his own or any other occupation in the future. Mr Ziedni, the applicant’s treating psychologist, was of the opinion in his report of 10 July 2021 that the applicant currently had no capacity to work.
Having regard to the definitions of s 32A and schedule 3, cl 9, of the 1987 Act, in my view the medical evidence noted above supports the finding that the applicant was not able to return to work in his preinjury employment in the relevant period. I find that in the relevant period the applicant was not able to return to work in his preinjury employment.
In relation to suitable employment, there was no medical evidence that the applicant was fit for suitable employment in the relevant period having regard to matters including his age, education, skills and work experience. Medical Assessor Blom and Dr George did not identify what suitable duties could be performed by the applicant, and Dr Clark and Dr Afroze were of the opinion that the applicant was not fit for suitable duties and was not fit for employment at the relevant time. In circumstances where there was no dispute that the applicant had sustained psychological injury which he continued to suffer symptoms and restrictions at the relevant time, on balance I accept the opinion of Dr Clark notwithstanding the shortcomings of the history recorded. In any event, it is the case that Dr Afroze was of the opinion that in the relevant period the applicant had no capacity for work. The opinions of Dr George and Medical Assessor Blom did not identify suitable employment having regard to the applicant’s age, education, skills and work experience. In the absence of such opinion, I accept the opinions of Dr Afroze and Dr Clark, and also Dr Vago in relation to his certificates of capacity. I find that in the relevant period the applicant was not able to return to work, either in his preinjury employment or in suitable employment, and accordingly he had no current work capacity at all material times.
The weekly compensation claim was for the period 24 December 2019 to 28 December 2021. Pre-injury average weekly earnings was agreed by the parties at $1,790.19. The s 37 rate is 80% of $1,790.19, being $1,432.15 per week. The applicant also claimed a general order in respect of s 60 expenses and an order will be made accordingly.

[2022] NSWPIC 662

30 November 2022