Westpac Banking Corporation v Enwia

DETERMINATION OF APPEAL PANEL
CITATION:	Westpac Banking Corporation v Enwia [2024] NSWPICMP 728
APPELLANT:	Westpac Banking Corporation
RESPONDENT:	Diana Enwia
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	22 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury where worker suffered a head injury in subsequent employment; causation of impairment; Secretary, New South Wales Department of Education v Johnson; re-examination; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 December 2023 Westpac Banking Corporation (Westpac) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Yu-Tang Shen, who issued a Medical Assessment Certificate (MAC) on 28 November 2023.
Westpac relies on the grounds of appeal under s 327(3)(c) and (d) 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 President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the Medical Assessor failed to have regard to a subsequent head injury when assessing Ms Enwia under the Psychiatric Impairment Rating Scale (PIRS). We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Enwia was employed by Westpac in an area described as Lender Connect. Her role was as a concierge, allocating leads from branches to lenders and making appointments for customers and lenders. She suffered a psychological injury on 11 January 2017 as a result of interactions with her team leader. At about the same time, she suffered an injury to her neck from the way she was required to hold her phone. The denial of her request for a Bluetooth headset forms part of the factual matrix of the psychological injury claim.
Ms Enwia returned to work after leaving Westpac though ceased in March 2020 when she fell and suffered a head injury which resulted in seizures.
The Medical Assessor assessed 19% whole person impairment (WPI) using the PIRS, assessing her in class 2 for self care and personal hygiene, and class 3 for each of social and recreational activities, travel, social functioning, concentration, persistence and pace and employability. The Medical Assessor did not make any additions to or deductions from the assessment.

PRELIMINARY REVIEW

We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, we determined that Ms Enwia should undergo a further medical examination. The Medical Assessor was required to assess the permanent impairment resulting from the psychological injury on 11 January 2017. The Medical Assessor failed to take an adequate history to permit an assessment of the permanent impairment arising from that injury alone.
Much of the medical material in the file was out of date and did not deal with the period after Ms Enwia’s head injury. The Medical Assessor had the opportunity to call for documents but did not do so. We determined that it was appropriate to call for documents, being:
(a) the records of the respondent worker’s general practitioner or general practitioners for the period from 1 January 2020 to date, and
(b) the records of any neurologist who has treated the respondent worker in the period from 1 January 2020 to date.
It was necessary for directions for production to be issued to obtain those documents and on 4 June 2024, the Division Head made orders with respect to service of the directions and access to documents. In addition to the brief sent to us, we have considered the documents attached to Westpac’s Application to Admit Late Documents dated 17 July 2024.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination, together with the material referred to above.
The parts of the MAC that are relevant to the appeal are set out below.
Medical Assessor Hong conducted an examination of Ms Enwia and reported to us. The report forms part of these reasons. Ms Enwia did not attend the first appointment on
17 July 2024 and the examination took place on 11 September 2024.

The MAC

The Medical Assessor recorded a somewhat confused history with respect to the onset of Ms Enwia’s psychological injury in January 2017 and the concurrent neck injury, resulting from an inadequate headset. He then said:
“She said she had a fall and cracked her head in 2020, and had a seizure and she was in hospital for 2 weeks. She has had seizures since then.”
The Medical Assessor summarised the treatment with respect to the psychological injury and the head and neck injuries, without explaining which treatment was for each condition. He said that Ms Enwia was not taking antidepressants. She saw a psychologist and had been referred to a new psychiatrist. She had been on an anticonvulsant but had ceased and was changing her neurologist.
The Medical Assessor summarised Ms Enwia’s social activities and activities of daily living:
“She said she has been with her partner on and off for the past 4 years, since just before the subject injury. She said that their relationship has been up and down, due to her struggling to communicate with her partner about her emotional struggles. She said they have been fighting frequently, but not physically violent. She said they have periods of separation, but they are not separated now.
She said her parents have been supportive of her, but they do not understand her emotional struggles, and she has been more distant from them.
She has no children.
She said she has two brothers, and she rarely sees her older brother. She said she was closer to her younger brother, but since the subject injury she has been more distant from him as well.
She said she has two friends now, and she previously had a lot more friends but she has withdrawn from them and she has stopped speaking to them. She said she speaks to her two friends every second week, and she sees them every 2-3 weeks. When they meet up, she said she will spend a bit of time with them, watching TV, but not much else, and they will remain at home, rather than leaving the house. She leaves the house to take her dog out for a walk, usually with her partner.
She said she showers most days, and she will wash her hair once a week. She said she doesn’t use make-up now. She said she gets frequent reminders from her family and partner to shower, but even without reminders she said she would still shower on her own. She said she doesn’t engage in any cooking now, and her parents prepare meals for her, though she can still organise simple meals, and she is no longer able to use the stove as she will forget to turn it off, which she has done four times before. She doesn’t do the grocery shopping as she cannot carry objects.
She is no longer driving due to her injuries and poor concentration and forgetting and running traffic stops. She doesn’t take public transport. She is now driven by other people.
She said her concentration has been poor and she struggles to read even text messages or a paragraph in an email. Her memory is also poor and she is easily forgetful, such as forgetting to turn off the stove, or forgetting what she was meant to get.
She has not worked since the subject accident. At the time, she was working in real estate, as a property manager, working 38 hours a week, on a fulltime basis. Since the subject accident, she had tried to return to work around 2 years after the subject accident, but had to abort this after another collapse. I pointed out there were references to her working at Sydney Airport, and EzyMart, which she acknowledged. She said after she was dismissed from Westpac, she had looked for other jobs; and she worked at Sydney Airport for 2 months as a groundsperson on a part-time basis, and she was fired due to excessive medication use, and she was at EzyMart going around different shops to do the orders, which she did for a couple of months, working 3 days a week, and she was fired as she was not able to undertake a full week’s worth of work. She said she has not returned to work since her head injury in 2020 as she is no able to physically and mentally, and the seizures will prevent her from returning to work.”
The Medical Assessor described his examination and said:
“She engaged cordially in the assessment and provided relevant answers to questions asked, spontaneously supplying detail. When inconsistencies were pointed out, she obliged with acknowledging and explaining them.
She told me she was feeling anxious, panicked and depressed.
She displayed some emotional reactivity, with periods of mild anxiety and dysphoria.
She spoke articulately and in a logical sequence most of the time, though required regular redirection to ensure she remained on-topic with her responses.
…
She was alert, and she was easily forgetful of specific details such as her treatment, and her past history.”
The Medical Assessor diagnosed persistent depressive disorder. He also diagnosed benzodiazepine disorder, opioid use disorder and cocaine use disorder, all of which were in remission and cannabis use disorder. He said there were significant inconsistencies in
Ms Enwia’s history which “include regarding her substance use history, pharmacotherapy, and her work history after the subject injury”.
The Medical Assessor assessed 19% WPI and said:
“My assessment is similar to Dr Takyar’s assessment, and differs from Dr Vickery, as I am more inclined to think she has sustained a psychiatric injury related to her work.”
In the PIRS rating form, the Medical Assessor quoted from the history set out in the MAC. With respect to self care and personal hygiene he rated her in class 2 and said:
“As she has been able to self-care independently still, albeit with a degree of self-neglect, she has mild impairment.”
Assessing Ms Enwia in class 3 for social and recreational activities, the Medical Assessor said:
“She rarely leaves the house, and usually with a support person, so she has moderate impairment.”
For travel, the Medical Assessor placed Ms Enwia in class 3 and said:
“As she has been reliant on others for transport, she has moderate impairment.”
For social functioning, the Medical Assessor assessed her in class 3 because:
“As she has a strained relationship with her partner, and has been more distant from her siblings, and loss of some friends, she has moderate impairment.”
Assessing Ms Enwia in class 3 for concentration, persistence and pace, the Medical Assessor said:
“She said her concentration has been poor and she struggles to read even text messages or a paragraph in an email. Her memory is also poor and she is easily forgetful, such as forgetting to turn off the stove, or forgetting what she was meant to get.
She was alert, and she was easily forgetful of specific details such as her treatment, and her past history.
As her concentration is not affected in a brief conversation, she has moderate impairment.”
Employability was the only table under which the Medical Assessor considered the impact of the head injury. Assessing Ms Enwia in class 3, he said:
“She said she has not returned to work since her head injury in 2020 as she is no able to physically and mentally, and the seizures will prevent her from returning to work.
There is evidence of her having the capacity for alternative, part-time work, prior to the subsequent head injury, so she has moderate impairment prior from the subject injury.”

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Westpac submitted that the Medical Assessor erred in his assessment under the PIRS tables for self-care and personal hygiene, social and recreational activities, travel and concentration, persistence and pace. Westpac said that the Medical Assessor did not have adequate regard to the effect of Ms Enwia’s head injury and subsequent seizures in respect of the categories other than employability.
With respect to self care and personal hygiene, Westpac referred to Ms Enwia’s statement where she said she needs assistance with bathing because of the risk of a spontaneous seizure, having had a seizure whilst bathing alone which caused her to fall. Westpac noted that Ms Enwia told Dr Vickery that her social and recreational activities were reduced and that she had lost friends “since her seizure” and, with respect to travel, that she no longer drives partly because of the risk of a seizure. Westpac set out the evidence which impacted on the assessment of concentration, persistence and pace.
Westpac said that the Medical Assessor erred in failing to take a complete history of the head injury and the subsequent patterns of episodic seizures, including the impact of that condition on Ms Enwia’s mental health, social functioning and cognitive functioning.
In reply, Ms Enwia submitted that it was not clear what relevance the Medical Assessor attributed to “any subsequent head injuries of which he may well have been aware”. She said that there was no evidence of the onset of seizures in the file so that none of the grounds of appeal were made out. If the President’s delegate determined that a ground was capable of being made out, then re-examination was warranted.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[1] the Court of Appeal held that an Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[1] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[2] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[2] [2021] NSWCA 304 at [26].

Psychological injury

There is limited material in the file from Ms Enwia’s treating practitioners and nothing from a psychologist which post-dates the head injury in March 2020.
There is no report from a treating psychiatrist. Ms Enwia saw Dr Furst who reported to solicitors on 15 October 2018 for the purpose of court proceedings when she was charged with “drive motor vehicle with illicit substance present in blood”. There is nothing in his report to indicate that he saw her for treatment. Dr Furst obtained a history of the work injury but also of other significant past trauma and current stressors. Dr Furst said that Ms Enwia had resorted to drugs of abuse as a “means of blocking out traumatic memories and escaping her emotional distress, anxiety and depression.”
Ms Enwia saw Dr Takyar, psychiatrist, at the request of her solicitors in 2019 and in
June 2020. Dr Takyar was not provided with any relevant history which pre-dated the injury. He was told that Ms Enwia had seen Dr Furst for treatment. Ms Enwia told Dr Takyar that she had last worked for a short period for NAB in 2018 and that she felt that her job had ended because a report had been sought from her previous managers. Based on the history he was given, Dr Takyar diagnosed adjustment disorder with mixed anxiety and depressed mood and said that Ms Enwia had no realistic capacity for employment. He said that she had only “had one session with her psychiatrist and requires further ongoing care.”
Dr Takyar saw Ms Enwia again and reported on 11 June 2020. He had some difficulty obtaining a work history but, as discussed below, he did obtain a history of the head injury. He again suggested regular psychiatric review. Dr Takyar assessed 22% WPI.
Westpac arranged for Ms Enwia to see Dr Vickery who reported on 15 May 2017. He recorded that there were no other significant personal stressors in the previous five years. He considered that Ms Enwia an acute adjustment disorder with anxiety as a result of performance review and discipline reaction by her employer.
Dr Vickery reported again on 16 March 2021. Ms Enwia okay, him that she felt down about what happened with his job and “the seizures” but said that she would return to work when cleared to drive again. Dr Vickery considered that Ms Enwia was no longer suffering a diagnosable psychiatric condition.
We called for a copy of up to date notes from Ms Enwia’s general practitioner. The general practitioners’ notes contain several referrals to Dr Leon, psychiatrist, but there are no reports from Dr Leon nor any reference to reports having been received. Dr Gavrilov, general practitioner, prescribed Pristiq on 21 February 2017. In November 2017 Dr Wassif prescribed Valium but changed the prescription to Lexapro in November 2018 when Ms Enwia was starting to work for Swissport at the airport. Valium was prescribed again consistently from January 2019 and in January 2020 Endone was prescribed for back pain. Lexapro was prescribed again from time to time. Those prescriptions appear to have ceased when Ms Enwia became pregnant in mid 2023.

Head injury

Ms Enwia’s submission that there is no evidence in the file about the onset of seizures is not correct. The discharge summary from Hornsby Hospital dated 17 March 2020 appears in her Application to Resolve a Dispute (ARD). The history reads in part:
“During syncope:
px was at a work site when she felt sweaty, dizzy and fell to the ground striking her head.
px had tonic-clonic seizure lasting for 30-60m ins with eyes rolled back, bite tongue shaking bilaterally
no personal history of syncope, seizures or epilepsy
Post syncope
amnesia lasting for 10-15mins
dizziness
nil nausea and vomiting”
In his second report dated 11 June 2020, Dr Takyar said, after setting out a recent history of work as a real estate agent:
“However, she reported that on 17 March 2020 she ‘collapsed at a client's house and hit the concrete stairs and had a seizure’. She reported that she was transported to the Hornsby Hospital, where she remained for 5 days of investigations. She stated that there was no conclusive diagnosis. She reported that she was planning to return to work once cleared by a neurologist.”
Dr Takyar recorded that Ms Enwia had worked full time until the seizure and before that time she had been travelling to work independently and walking in her local area. She was keen to return to work once she gained neurological clearance.

Ms Enwia prepared a supplementary statement dated 4 July 2023. She said that she had not worked since March 2020. The statement refers to the incident in March 2020 as an injury and Ms Enwia said that she was initially paid for a period, suggesting she received weekly compensation payments as a result of the head injury. She said:
“I need assistance to wash myself because of the risk of having a spontaneous seizure. I had a seizure previously while bathing alone and ended up falling onto the floor, requiring assistance to calm down and breathe.
…
“I refuse to drive due to the high number of unknowns and my mental state that would lead to a higher risk of accidents.
There is also the risk of having a seizure episode while driving.
…
I am unable to work and have not worked or received any working income since March 2020.”
In the documents for which we called, there are records from Ms Enwia’s general practitioner and notes from Dr Granot which deal with her head injury.
Ms Enwia was treated by Dr Chung at Hornsby Hospital during her admission following the fall in 2020.
Ms Enwia saw Dr Chung, neurologist, again in June 2020 who recommended that she not drive and proposed further investigations. In a report dated 30 September 2020, Dr Chung said:
“She reports orthostatic dizziness, likely reflect borderline resting blood pressure. This may lend support to the collapse episode in March being syncope complicated by convulsive feature and concussion. Exertional headache following minor physical exertion likely benign. I emphasized importance of avoiding recreational substance use.”
When Ms Enwia saw Dr Chung again in November 2020, she had undergone some but not all of the tests he had asked for.
On 29 March 2021 Dr Chung noted that Ms Enwia had improved. He recommended reducing pain killers to avoid medication overuse headache and considered that she was fit to resume driving.
A team care arrangement plan was completed on 30 March 2021 by Ms Enwia’s general practitioner in respect of chronic pain.
Rehabilitation plans were completed in respect of the head injury, confirming that it was the subject of a separate workers compensation claim against Goga Properties Pty Ltd.
Ms Enwia saw Dr Chung again in mid 2022. He recorded that Ms Enwia had switched to cannabis oil and smoked cannabis for sleep difficulties instead of taking Valium. Her headache had relapsed. Dr Chung recommended further investigations. After reviewing his previous correspondence, Dr Chung noted the different histories recorded and said “I can only conclude that it is difficult to be certain with Diana.”
Ms Enwia’s general practitioner, Dr Wassif, provided a certificate dated 2 August 2022 which read:
“Diana Enwia currently suffers from a head injury convulsive syncope seizures due to her current head injury which Diana Enwia is still undergoing treatments for her head injury.
Diana Enwia must have her medication which is now medical cannabis and must and is required to have her medication which was caused due to her head injury seizure that occured to Diana Enwia on the 17/03/2020.” [sic]
Dr Wassif provided a similar certificate addressed to iCare on 7 September 2022 and requested that the insurer pay for that medication, again confirming a separate claim in respect of the head injury.
The general practitioners’ notes are unclear as to who prescribes and monitors the medical cannabis use though there are two referrals from Dr Wassif to Dr Mohamed in mid 2022 for “review regarding cbd oil”.
Dr Granot, neurologist, began to see Ms Enwia in March 2023 for investigation of possible seizures. He obtained a history of seizures over the 6 to 12 months following the incident in March 2020, followed by migraine headache. She also suffered “blank spells”. Valium was prescribed for sleep and Endone for headaches but by the time of the consultation, Ms Enwia was taking medical cannabis. She was not prescribed anti-convulsants. Dr Granot recommended investigations.
At the next consultation on 24 July 2023, Dr Granot noted that Ms Enwia was pregnant. Numerous “episodes” were noted on ambulatory EEG, leading to a diagnosis of non-epileptiform episodes, which Dr Granot considered were possibly vasovagal or even anxiety related. He also obtained a history of severe neck pain with radiation down Ms Enwia’s right arm which had recently worsened. Dr Granot suggested further investigations.
Dr Granot did not see Ms Enwia again until 9 May 2024 when his diagnosis was depression and non-epileptiform episodes. He recommended urgent review by a psychiatrist and a repeat ambulatory EEG. He said:
“We may then need to move more definitively along the lines of a Functional Neurological Disorder as the cause of the non-epileptiform episodes, but psychiatric review is critical in this circumstance.”
The general practitioner’s notes suggest that another referral was made to Dr Leon in June 2024, though no consultation had taken place by the time of Dr Hong’s examination.

Re-assessment

The Medical Assessor’s history was inadequate and he failed to consider the role of the head injury in the activities measured by the PIRS. As the passage quoted at [18] above highlights, the confusion in the MAC as to “the subject accident”. The failure in history taking is highlighted by the Medical Assessor’s comment that Ms Enwia had no children though failed to note that she was pregnant at the time of the examination, which was undertaken about six weeks before the birth of her daughter.
In Secretary, New South Wales Department of Education v Johnson[3] Emmet JA said:
“Two causation tests are involved in a medical assessment of permanent impairment under Pt 7 of Ch 7 of the Management Act. The first test arises from the provisions of ss 9 and 9A of Compensation Act. That is to say, it must be shown that the injury that gave rise to the impairment in question arose out of or in the course of employment that and that the employment was a substantial contributing factor to the injury. The second test arises from the provisions of ss 319(c) and 326(1)(a) of the Management Act. That is to say, it must be shown that the permanent impairment is as a result ofthe injury.
The phrase ‘the degree of permanent impairment of the person as a result of an injury’ appears in both ss 319(c) and s 326(1)(a) of the Management Act. That composite phrase requires an enquiry as to the causal connection between the degree, or percentage, of assessed permanent impairment of a worker, on the one hand, and the compensable injury, on the other. That is to say, it was necessary for the AMS and the Appeal Panel to assess the degree, or percentage, of whole person impairment of the Worker that was caused by or is attributable to the First Injury. In doing so, common law principles of causation in tort are to be applied.”
[3] [2019] NSWCA 321 at [54]-[55] (Johnson).
In this case there is no evidence of any causal connection between the psychological injury on 11 January 2017 and the fall in March 2020.[4] The latter must be excluded from any assessment of the impairment resulting from the psychological injury as must any impact of the neck injury suffered concurrently.
[4] Johnson at [70].
The Medical Assessor’s task was to assess the permanent impairment resulting from the psychological injury only and to take a careful history to identify the cause of the impairment of functioning. He was also required to exclude any impairment resulting from chronic pain. The failure to use the appropriate methodology required a re-examination.
Medical Assessor Hong examined Ms Enwia on behalf of the Appeal Panel and his report is attached to this statement of reasons. We adopt his report.[5] We have considered only those tables of the PIRS which were the subject of the appeal.
[5] Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [88].
With respect to self care and personal hygiene, the Medical Assessor assessed Ms Enwia in class 2. The reasons he gave for assessing a mild impairment were that she did shower but did not cook because she was no longer able to use the stove as she would forget to turn it off. He said she did not do grocery shopping because she was unable to carry objects. The inability to carry objects relates to her physical injuries and pain and not to her psychological injury.
Medical Assessor Hong’s assessment shows that Ms Enwia's self-care has declined since her psychological injury. She eats once a day only and has fluids regularly. Her erratic eating pattern is consistent with her psychological injury. She showers irregularly because she needs a person present to ensure her physical safety. From a psychological perspective, Ms Enwia is independent in all self-care and personal hygiene tasks and independent in activities of daily living and there is no error in the Medical Assessor’s assessment of a mild impairment.
The Medical Assessor assessed Ms Enwia in class 3 for social and recreational activities because she rarely leaves the house and usually with a support person. Ms Enwia told Medical Assessor Hong that she prefers not to go out because of the risk of falls. She participates in recreational activities at home, such as playing video games and watching documentaries on TV for extended periods. She did say that she can go out and enjoy activities within her physical capacity, such as visiting friends at their hair salon, as shown in surveillance evidence. Because the primary reason for not going out is Ms Enwia’s neurological injury, and she has retained the psychological capacity to enjoy activities which do not aggravate her physical condition, the correct assessment in class 2. Ms Enwia’s need for a support person does not arise from her psychological injury.
The Medical Assessor assessed Ms Enwia in class 3 for travel because she was no longer driving. She was able to do so after the psychological injury and the fact that she now does not is a result of suffering seizures or the fear of seizures. She is able to leave the house though does not venture far from home and remains in her local area. The appropriate assessment is class 2.
Westpac did not appeal with respect to the Medical Assessor’s assessment in class 3 for social functioning and for employability. We agree those assessments are appropriate.
The Medical Assessor assessed Ms Enwia in class 3 for concentration, persistence and pace, though he said she was alert and engaged cordially and spontaneously in the assessment process. It was important for the Medical Assessor to exclude any impairment resulting from Ms Enwia’s chronic pain and head injury but he did not clearly do so. Her reported inability to read even text messages or a paragraph in an email is inconsistent with the Medical Assessor’s own observations.
Table 11.5 assesses a worker’s ability to maintain concentration and persist with cognitively demanding tasks and measures the pace of their cognitive processes. The assessment under this table is different to the other tables of the PIRS because the consultation allows the Medical Assessor to form his or her own opinion as to the worker’s ability to concentrate and respond during the examination and his findings on the mental state examination are relevant. The consultation is itself a cognitively demanding task.
Medical Assessor Hong’s observations and the history Ms Enwia provided to him support assessment in class 2. Ms Enwia remained focused for 70 minutes during the examination and was attentive and gave a clear history. Medical Assessor Hong’s report shows there were no significant impairments during the assessment or on her mental state examination. Ms Enwia's physical injuries and pain are not assessable in the PIRS. From a psychological perspective, she has mild impairment and can focus on intellectually demanding tasks for more than 30 minutes, including on watching documentaries. The correct assessment in class 2.
When the scores as we have amended them are arranged in ascending order as required by paragraph 11.14 of the Guidelines they are: 2, 2, 2, 2, 3 and 3. The total is 14 and the median score is 2. Under Table 11.7, the aggregate score converts to 7% WPI.
For these reasons, we have determined that the MAC issued on 28 November 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W2063/23
Applicant:	Diana Enwia
Respondent:	Westpac Banking Corporation

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Yu-Tang Shen and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Psychological injury	11.1.2017	Chapter 11	N/A	7	0	7%
Total % WPI (the Combined Table values of all sub-totals)					7%

PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W2063/23
Appellant:	Westpac Banking Corporation
Respondent:	Diana Enwia
Examination conducted by:	Michael Hong
Date of Examination:	11 September 2024

Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:

I confirmed the work injury history, Ms Enwia had worked at Westpac for several years, and from September 2016 until around January 2017, she was a full-time assistant and in that position for less than six months. She reported that she was bullied ever since that promotion. Other workers prevented her from getting the headset she needed, and then she suffered a neck injury in 2017 and issues at work deteriorated. She stopped working there in 2017 and was subsequently terminated.

She then worked at NAB but was terminated after a few months. She said she was taking too much time off to see doctors and was taking medications and they could see that she was struggling because of her illness.

Ms Enwia's next job was at the airport for about a month before she was fired in 2018. The next job was at Ezy Mart for maybe six months. She was taking orders and said she couldn't make it to work on time and was let go.

She said that an ex-manager from Westpac approached her and she started working in real estate, and started a full-time property management role. However, in the second week, she collapsed with a seizure, and had several seizures since after that, and has not been able to work since.

She said that the last time she had a major seizure where she fell and passed out was less than a year ago. She has a lot of blanking episodes when she is non-responsive to others, without falling (possibly petit mal seizure) and recently, on a daily basis. This happens for three or four minutes, usually once a day.

She was taking cannabis and cocaine and she said it was nothing to do with the work but after her neck problem, work stress and bullying, she was using more. She is on medicinal cannabis and does not use non-prescribed drugs now.

Physically, Ms Enwia has a lot of problems and has constant headaches and neck pain. She said her neck locks up especially on the right, and there's a cracking noise. Pain is there all day especially at night and in the in the morning, and makes it hard to sleep and she finds it hard to get out of bed in the morning. She said that she can lift two kilograms in the left-hand side but less than that with the right arm due to the neck problem. She also suffers back pain and finds it hard to stand up and to move around, and cannot cook or clean or do any household chores. Ms Enwia said she tried running and then started huffing and puffing and her whole body hurts, so she doesn't do it anymore.

She can take a walk and walk the dog. She does it slowly and sometimes feels like she needs to lie down, and explains she has a sudden sensation that goes through her head and she does feel like she's spinning, and then she would collapse or need to get on the ground, without passing out. She said that she needs her family and her mother with her all the time because she does not know when she would fall down and faint. She cannot look after her baby. She worries she would drop her baby as she has no control of her body. She tries to help with the baby, but does not feel comfortable to do it on her own, as she is not even comfortable to manage herself out on her own, as she could fall.

Present treatment:

Ms Enwia is on medicinal cannabis and a sleeping pill. She previously took Endone, Avanza and Diazepam, but not on these medications for a few years now. She does not know what anti-convulsant medications are, and is not sure if she has ever taken them.

She consults her psychologist, Jane weekly, but never consulted a psychiatrist for treatment.

Present symptoms:

Ms Enwia described experiencing dysregulated and depressed moods, stating that these symptoms were worse for a while, and are the same for a long time now but her mood symptoms fluctuate. She also reported anxiety, particularly when having exams like today, and while reading her claims paperwork. She said that during daily conversations with her family, she is often triggered due to a lack of memory regarding what she previously said. Additionally, she noted that noises and light act as triggers for her as well.

She said that she is unable to do anything at present. She stated that she has not experienced suicidal ideation or thoughts of self-harm for a while.

She recounted that when her episodes of blanking were more frequent, her psychologist conducted welfare checks.

She reported experiencing concentration and memory problems, which she related to her daily blanking episodes.

She has sleep problems, stating that her body sometimes shuts down, preventing her from sleeping for up to four days, and she is unsure of the cause. She added that her head hurts, and she has difficulty sleeping.

Since giving birth seven months ago, she has lost weight and is nearly back to her pre-pregnancy weight, although she is uncertain of her current weight. She does not eat regularly, citing difficulty swallowing and a strange taste in her mouth as the reason. She indicated that it is painful to swallow and that this has affected her eating habits.

She said that she is “violent to herself,” punching objects, although she does not remember doing so and relies on others to inform her about these incidents. She stated that she is not aggressive towards others, but during her episodes, her arms may thrash about, and she does not recall these actions. She stated that she has no control during these episodes and frequently blanks out.

She has panic attacks.

Social activities/ADL:

Ms Enwia is 36 and living with her parents and brother. She said her partner comes and goes and he stays with his parents sometimes, and they live quite far away. She has a seven-month-old daughter as well.

Ms Enwia said she tried to make baby food and left the stove on, because she had a blanking episode.

Previously she said she was very active. She had lots of friends. They would hang out. She goes to the gym and plays sports, for example tennis with her friends but she can't do anything physical now, due to her physical injuries.

She said even taking a walk with her dog, and her dog walked too fast, she almost fell and she had to come home very quickly.

Ms Enwia said she usually eats only once a day and drinks a lot of fluids, including water and juice. She struggles with solid foods, and can manage yoghurt as it is not solids, and is unaware of liquid food replacements. She eats when she feels hungry.

The longest period she has gone without showering is one week, as her body does not permit her to do so, and she once fainted while coming out of the shower. Consequently, she said she needs someone to be around while she showers, and she uses a chair in the shower. She confirmed that, without prompting. She does not shower for up to a week because of her physical condition. She stated that, if necessary, she can get up and shower on her own accord, but she still needs someone to be present. She also said she does not actually go a week without shower, since her mother is always around.

Ms Enwia reported that she is not safe to cook due to her fainting episodes. She said she cannot perform household chores.

She does not do the shopping, explaining that going out causes her anxiety and increases the risk of falls. She also avoids people and prefers not to see others.

She spends most of her time at home, she said “doing nothing”, except sitting with her puppy.

She plays video games, particularly a farming game on her phone, and engages in this activity regularly during the day, for up to a couple of hours at a time.

She said that she gets along with her family, including her parents and two brothers, and her older brother does not visit that often. She spends time with her younger brother and parents at home, but said she does not engage in any activities with them.

Ms Enwia has been in an on-and-off relationship with her partner for five years. At one point, she left him. They now have a daughter together, and she said the last time they separated was three months ago. She explained that she could not manage the relationship or meet his expectations of being a “normal person,” although she could not elaborate further. She confirmed that there has been no domestic violence. The pregnancy was unplanned.

She reported that she does not have contact with any friends, with the last contact occurring two or three years ago, as she does not know how to communicate with people.

She does not have a driver’s licence, as her neurologist advised her against driving due to her episodes of blanking.

Ms Enwia said she goes out on her own, sometimes walking around the block with her puppy. She also goes out alone when she wants to smoke, although she rarely goes out without her puppy.

She could not specify how long she can go out without experiencing an episode of fainting or fall but reported a preference for having someone with her at all times.

She watches Netflix, particularly enjoying documentaries, such as investigation shows, missing person cases, and law and order type programmes. She can watch a few episodes at night, each lasting about an hour, for up to a couple of hours. She recently watched a documentary related to the Olympics, focusing on athletes.

Ms Enwia had previously seen the photo and surveillance material and we discussed some of the recorded activities:

·She said she was out with her puppy and drove, and that she lost her driver’s licence about a year ago.
·She stated that the photo of a person with a motorcycle helmet was not her, as she does not ride motorcycles.
·She said that her doctor is in Maroubra and is uncertain whether the woman in the surveillance in Maroubra is her.
·Regarding the photo with a bag, we discussed that her face was not visible, but another photo with her face showed the same attire, hair colour, and dog. She said that the Black Mercedes is her partner’s car.
·Regarding ‘House of Beauty by A&J’, at Rockdale, she stated that she knows the family who runs the salon but does not have her hair done there and could not remember why she was there. She identified them as family friends and is friends with the owner’s four daughters. After I discussed she had said she had no contact with any friends in the past 2-3 years, she confirmed the photo of her visiting the hair salon was for social contact rather than a hair appointment. She then acknowledged that she still has friends in her life but said she does not spend time with them regularly. She could not recall that particular encounter in Rockdale, even though she said she had seen the surveillance material from her lawyer.

FINDINGS ON MENTAL STATE EXAMINATION

Ms Enwia was assessed by video. She was at home on her own during the assessment. Her parents and partner were also at home. She was assessed over 70 minutes.

She did not wear cosmetics and had neatly shaped eyebrows. She engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. She was mildly restricted in her affect range and smiled appropriately. She spoke spontaneously. She was not thought disordered.

Ms Enwia was attentive and gave a clear history and provided clarification when asked. She remained focused throughout the assessment. She maintained a steady pace during the entire assessment.

Before I completed the assessment, I asked her for additional information that she wanted to add and she discussed she has daily struggles with her brain.

SUMMARY

In summary Ms Enwia has suffered a workplace injury consistent with a persistent depressive disorder. Her condition has not changed and the treatment has not changed since the examination by the medical assessor. She suffered a physical injury and pain behaviour, which are not assessable in the PIRS.

[2024] NSWPICMP 728

22 October 2024