Yacoub v MJS Quality Constructions Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Yacoub v MJS Quality Constructions Pty Ltd [2022] NSWPICMP 260
APPELLANT:	Fadi Yacoub
RESPONDENT:	MJS Quality Constructions Pty Ltd
APPEAL PANEL:
MEMBER:	William Dalley
MEDICAL ASSESSOR:	Julian Parmegiani
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	22 June 2022
CATCHWORDS:	WORKERS COMPENSATION – Appellant worker alleged incorrect criteria and demonstrable error in respect of the assessment of psychiatric injury with respect to three of the Psychiatric Impairment Rating Scale (PIRS) areas of function; asserting that the evidence did not support the assessment in each case and further asserting that where there was uncertainty as to which class an area of function should be assigned the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021) (Guidelines) required the medical assessor to assign the higher class in reliance on paragraph 1.9 of the Guidelines; Held– the Panel was satisfied that paragraph 1.9 of the Guidelines did not apply to the assessment of psychiatric injuries as there was only one method of assessment prescribed; the reasons provided by the Medical Assessor in respect of two of the areas of function did not support the class assigned; following re-examination of the worker the Panel came to the same conclusion as to the overall level of impairment although for different reasons.

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 December 2021 Fadi Yacoub lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr J Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 December 2021.
The appellant relies on the following grounds of appeal under section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant, Fadi Yacoub, commenced employment as a roof carpenter with the respondent, MJS Constructions Pty Ltd, in January 2016. On 9 March 2016 Mr Yacoub suffered a power saw injury to the right thigh in the course of his employment. He also suffered a primary psychological injury.
Mr Yacoub came under the care of an orthopaedic surgeon, Dr Richard Walker following his admission to Liverpool Hospital. On his release he undertook physiotherapy, hydrotherapy and a gym based exercise program. Mr Yacoub also experienced psychiatric symptoms and was ultimately referred to a psychiatrist, Dr Sam Anis, for treatment.
Mr Yacoub was not able to return to his pre-injury employment or to work within his trade as a carpenter. He was able to undertake limited cleaning work in his wife’s cleaning business.
On 21 October 2021 Mr Yacoub was assessed by a psychiatrist, Dr Paul Friend, at the request of Mr Yacoub’s solicitors. Dr Friend diagnosed Mr Yacoub as suffering major depressive disorder and post-traumatic stress disorder in partial remission. He assessed
Mr Yacoub as suffering 17% whole person impairment (WPI) as a result of the subject injury.
Mr Yacoub was also assessed by an orthopaedic surgeon as suffering impairment in respect of injury to the right lower extremity and a consequential condition in the lumbar spine.
Mr Yacoub’s solicitors made a claim in accordance with those assessments. The insurer disputed that Mr Yacoub had suffered a consequential condition in the lumbar spine and noted a mathematical error in Dr Friend’s assessment of the psychiatric injury which the insurer asserted, when corrected, would result in an assessment of 13% WPI.
At the request of the insurer, Mr Yacoub was examined by a psychiatrist, Dr Peter Whetton, who diagnosed Mr Yacoub as suffering a chronic adjustment disorder with anxiety and depression and post-traumatic stress disorder. Dr Whetton assessed Mr Yacoub as having 7% WPI as a result of psychological injury.
The dispute proceeded to hearing in the Commission and the primary psychological injury was referred for assessment of whole person impairment to the Medical Assessor Baker. The dispute in respect of impairment in respect of the right lower extremity, scarring and the lumbar spine was referred to an orthopaedic specialist Medical Assessor for assessment. This appeal does not concern the latter assessment.
The Medical Assessor examined Mr Yacoub on 12 November 2021. The Medical Assessor diagnosed Mr Yacoub as suffering with post-traumatic stress disorder and major depressive disorder and assessed 7% WPI as a result of psychological injury.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination because the error found on review suggested inconsistencies between the history provided to the Medical Assessor at the time of examination, the documentary material in evidence and the reasons which the Medical Assessor recorded in the Psychological Injury Rating Scale (PIRS).

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Further medical examination

Dr Michael Hong of the Appeal Panel conducted an examination of the worker on 22 May 2022 and reported to the Appeal Panel. His report to the Panel is set out below.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor’s assessment in respect of three of the areas of function in the PIRS, “self-care and personal hygiene”, “social and recreational activities” and “social functioning” were not open and were contrary to the weight of the evidence. The appellant further submitted that, where there was uncertainty as to which class an area of function should be assigned, the Guidelines required the Medical Assessor to assign the higher class.
In reply, the respondent submits that the assessment in respect of each area of social function was open to the Medical Assessor on the evidence available to him and was consistent with that evidence. The respondent further submitted that the Guidelines did not require assignment of a higher class of impairment where there was doubt as to the appropriate classification.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[1] the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[1] [2006] NSWCA 284.
The Medical Assessor assessed Mr Yacoub in accordance with Chapter 11 of the Guidelines. The Guidelines require that the worker be assessed with respect to six areas of function, “self-care and personal hygiene”, “social and recreational activities”, “travel”, “social functioning (relationships)”, “concentration, persistence and pace” and “employability”.
The injured worker is to be assessed as falling within five classes in each of the areas of function, ranging from no or minor deficit to total impairment[2].
[2] Guidelines, paragraph 11.11.
The appellant submits that the Medical Assessor has fallen into error in assessing the areas of function “self-care and personal hygiene”, “social and recreational activities” and “social functioning (relationships)”. In respect of each of those three areas of function the appellant submits that the assessor, if in doubt as to which class of impairment should be assigned, should choose the higher class, relying on paragraph 1.9 of the Guidelines.
The Panel does not accept that submission. Paragraph 1.9 provides:
“The Guidelines may specify more than one method that assessors can use to establish the degree of a claimant’s permanent impairment. In that case, assessors should use the method that yields the highest degree of permanent impairment. (This does not apply to gait derangement – see paragraph 3.5 and 3.10 in the Guidelines).”
Chapter 11 of the Guidelines does not “specify more than one method that assessors can use to establish the degree of a claimant’s permanent impairment”. The chapter provides for a single method of assessment by way of the PIRS only. In that respect the respondent’s submission that paragraph 1.9 does not apply to psychological injury is correct, there being only one method of assessment.
The Panel notes that paragraph 11.12 of the Guidelines provides that the “examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the persons age, sex and cultural norms”. The assessment of the worker as falling within a particular Class is a matter of clinical judgement based on the evidence. As noted by the respondent in its submissions, Campbell J in Ferguson v State of New South Wales[3] cited with approval the decision of the Appeal Panel in NSW Police Force v Daniel Wark[4]:
“The judgement as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face.”
[3] [2017] NSWSC 887 at [23].
[4] [2012] NSWWCCMA 36 at [33].
Upon examination, the Medical Assessor noted the history of injury to the leg and the psychological injury. Apart from the physical effects of the injury to the right leg, the Medical Assessor recorded Mr Yacoub’s psychological symptoms. He diagnosed post-traumatic stress disorder and major depressive disorder attributable to the subject injury.
With respect to the activities of daily living, the Medical Assessor recorded:
“Mr Yacoub reported he had stopped being actively involved in indoor football. He had less interest in his local church community. He had lost interest in reading news or watching television. He had lost interest in his young children as their noisy play distressed him. He was not interested in participating in family events and celebrations with his extended family.
Mr Yacoub was able to leave the home alone to attend the local shops. He could drive to familiar work sites alone. He would never travel long distances from home as he would become too anxious and become distressed whilst driving.
Mr Yacoub reported that his marriage has good days and bad days. He stated he had lost some of his friends since the onset of this work-related injury. He reported tension and arguments in his relationships within his home. He lived with his grandmother, mother, brother, wife and two children. He reported he had angry outbursts when he could no longer be stoical in front of this transgenerational household.
Mr Yacoub becomes frustrated and easily agitated when attempting to concentrate on any complex task. He suffered impaired concentration that prevented him from persisting with complex tasks. His pace of completing any task was reduced. He had not completed any study or certificates at a re-training course as he found it difficult to follow complex instructions and type long documents. He reported that he had stopped reading newspapers as he had lost interest in news events. His wife organised all of his personal finance needs.
Mr Yacoub was unable to return to his primary substantive role due to fear that he would be injured in the same way again. He could work less than 20 hours per week in a different role that was less skilful and less stressful. He currently worked about 15 hours per week cleaning in his wife’s business.”
The Medical Assessor noted Mr Yacoub’s statement and the reports and clinical records in evidence. His observations with regard to the relevant areas of function are noted below.
It is appropriate to consider the respective submissions separately in respect of each of the areas of function which are the subject of the appeal.

Self-care and personal hygiene

The Medical Assessor assessed Mr Yacoub as falling within Class 2 (mild impairment) in respect of this area of function. The Medical Assessor gave as his reason:
“Mr Yacoub reported that he would shower twice daily. He had lost interest in his nutrition and eats food prepared and cooked by his wife, mother, or grandmother. He skips meals if he is not hungry, and he reported his appetite was poor. He does not participate in cleaning the house, bathroom or his bedroom. He does not help with vacuuming. He was able to manage his medication regimen without his daily assistance. He does not maintain the garden outside of the house. Mr Yacoub is able to live independently at the time of this assessment.”
The Medical Assessor noted Mr Yacoub’s observations with regard to symptoms of crying, panic attacks, disturbing dreams and preoccupation with laceration, flashbacks and inability to sleep. He noted the assessment by Dr Friend, observing that he did not agree with that doctor’s assessment and further noting the arithmetical error in Dr Friend’s report. The Medical Assessor also noted the contents of the reports of Dr Whetton who had assessed
Mr Yacoub as having 7% WPI.
The appellant submitted that the Medical Assessor had made inconsistent findings, noting that the Medical Assessor had recorded “the appellant had lost interest in nutrition and had family members preparing his meals” and “the appellant did not participate in any domestic cleaning or maintenance”, which, it was submitted, was contrary to the Medical Assessor’s conclusion that Mr Yacoub was capable of living independently.
The appellant submitted that frequently missing meals, not preparing meals, requiring family members to live with him to ensure minimum hygiene and nutrition supported a finding of inability to live independently and hence warrant assessment of moderate impairment (Class 3). The appellant noted that the descriptors set out in Table 11.1 of the Guidelines relevantly provided:
“Class 2: Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3: Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.”
The respondent submitted that there was no basis for assessment of Class 3, submitting that “there is no evidence that the appellant cannot live independently without regular support”. The respondent submitted:
“While the appellant may eat food prepared by those whom he lives with and not engage in cleaning the house, there is no evidence before the Commission that he undertook these tasks prior to the injury on 9 March 2016, nor that he now requires this assistance due to the effects of the psychological injury.”
The respondent’s reasoning may well be correct, but it does not address the appellant’s submission that the reasons set out by the Medical Assessor in the PIRS Table are inconsistent with mild impairment (Class 2) in respect of this area of function. The reasons recorded by the Medical Assessor, taken by themselves, cannot support Class 2 assessment and the Panel is satisfied that demonstrable error is made out in this respect.

Social and recreational activities

The Medical Assessor assessed Mr Yacoub as falling within Class 2 (mild impairment) in respect of this area of function. He gave as his reason:
“Mr Yacoub reported he had stopped being actively involved in indoor football. He had less interest in his local church community. He had lost interest in reading news or watching television. He had lost interest in his young children as their noisy play distressed him. He was not interested in participating in family events and celebrations with his extended family.”
The appellant submitted that Mr Yacoub should be classified as Class 3 (moderate impairment) in respect of this area of function, submitting:
“i. He was not actively involved in events that are age, sex and culturally appropriate, as under Class 3.
ii. He rarely (or in the case of indoor football, stopped) going out to such events as under Class 3.
iii. He remained quiet and withdrawn as under Class 3, including at home with close family members.”
The appellant noted the relevant descriptors (Table 11.2) in respect of this area of function:
“Class 2: Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3: Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.”
The respondent submitted that there was evidence available which supported the assessment of mild impairment (Class 2). The respondent pointed to the assessment by
Dr Whetton and Dr Friend who had both assessed mild impairment. The respondent submitted:
“In the absence of any evidence that the appellant will not go out without a support person, the respondent submits that this category was also appropriately assessed by the MA. The evidence supports the MA’s class 2 assessment [noting the relevant descriptor].”
As in the previous area of function, “self-care and personal hygiene”, the Panel is of the view that the reasons given by the Medical Assessor in the PIRS Table support a Class 3 (moderate impairment) rather than the Class 2 (mild impairment class) assigned. The respondent raises doubts as to whether the reasons provided by the Medical Assessor are consistent with the evidence but on the face of the document, the reasons do not support the classification assigned and the Panel is satisfied that demonstrable error has been made out in this regard.

Social functioning

The Medical Assessor assessed Mr Yacoub as falling within Class 2 (mild impairment) in respect of this area of function. He gave as his reason:
“Mr Yacoub reported that the union to his wife has good days and bad days. He stated he had lost some of his friends since the onset of this work-related injury. He reported tension and arguments in his relationships within his home. He lived with his grandmother, mother, brother, wife and two children. He reported he had angry outbursts when he could no longer be stoical in front of this transgenerational household.”

The appellant submitted:
“In his reasoning for decision, AMS [sic - Medical Assessor] Baker stated that the appellant had lost some of his friends since the onset of his workplace injury. This was contrary to the appellant’s signed statement dated 19. 07. 2021 that he had but one friend remaining. AMS Baker never put to the appellant that his statement was incorrect.”
The appellant noted loss of friends, tension and arguments in relations at home, good and bad days in the union with the appellant’s wife and reported angry outbursts when
Mr Yacoub “could no longer be stoical in front of his transgenerational household”.
The appellant submitted that the Medical Assessor should have assessed moderate impairment in respect of this area of function. The appellant submitted that all three elements of the rating Scale for Class 3 assessment were met by the findings:
“i. Previously established relationships severely strained: the Appellant had lost all but one friendship following injury.
ii. Relationship strain evidenced by domestic violence: the Appellant reported angry outbursts towards his family and wife, indicating assault through the apprehension of harm tantamount to domestic violence.
iii. Spouse and relatives caring for children: evidenced in report findings.”
The appellant noted the relevant descriptors in Table 11.4 of the guidelines:
“Class 2: Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3: Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.”
The respondent submitted that the reasons provided by the Medical Assessor were consistent with, and supported by evidence of mild impairment (Class 2).
The Panel accepts the submission of the respondent with respect to this area of function. The Medical Assessor had noted the loss of friends and recorded tension and arguments between Mr Yacoub and his wife. He noted that the relationship between husband-and-wife was continuing. There was no suggestion of family violence and the Panel does not accept that outbursts of anger necessarily constitutes domestic violence.
The assessment was supported by the opinion of Dr Friend and Dr Whetton who both assessed mild impairment in respect of this area of function. The Panel is of the view that the reasons expressed by the Medical Assessor were consistent with the evidence and supported an assessment of mild impairment (Class 2) in respect of this area of function. Demonstrable error and/or application of incorrect criteria has not been made out in respect of this area of function.
The Panel is satisfied that demonstrable error has been established in respect of the areas of function “self-care and personal hygiene” and “social and recreational activities” and it is necessary that the Panel review the evidence, including the report of the Medical Assessor member of the Panel, Dr Hong, to assess the appropriate level of impairment. Dr Hong reported:
1.   “HISTORY RELATING TO THE INJURY
·    Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
On 9 March 2016, Mr Yacoub was using a power saw at work and the power saw malfunctioned, and injured his right leg. He was taken to Liverpool Hospital and stayed for two or three days and had surgical procedures. There were no subsequent operations. He has had rehabilitation and gained some physical improvement, but he reported that he is nowhere near how he was before and the improvement in his leg has plateaued. He still experiences right thigh pain and right leg weakness. He reported his left leg started to become painful from overuse and he has a pressure sensation, and sometimes pins in the lower back.
He described having intrusive thoughts about the accident and feared he would die. After the subject injury, when he drives he keeps thinking what if he gets killed or dies, and he reported those thoughts are never far from his mind. When he walks, he would think he might get hit by a car.
He has had regular treatment, but his symptoms have persisted and he has not gained full remission over the years.
·    Present treatment:
Mr Yacoub is taking:
·    Pristiq 50 mg
·    Fluoxetine 20 mg
·    Temazepam
He consulted Dr Sam Anis, psychiatrist, for around 2 years and the last consultation was in 2021.
He has not had treatment with a psychologist or psychiatrist in 2022, and does not recall the details of his psychologist treatment.
·    Present symptoms:
Mr Yacoub said he keeps talking to himself, and says to himself “how I am going to get better?” His wife works and he is home in the daytime and he said he feels lonely and feels like he is “in a cage” and feels like he cannot do anything and is always upset.
Going near construction sites or being near power tools make him very anxious. If people move things that belong to him, he gets angry. When there is a change in routine, he said he becomes frustrated and anxious. He gets angry with his wife.
He reported having depressed mood ever since the subject injury.
He has reduced enjoyment and motivation.
He continues to enjoy some activities e.g. spending time with his family and doing things with his brother-in-law.
He described having reduced concentration and memory overall.
He felt he has lost confidence in his ability.
He has suicidal thoughts and he has never attempted suicide.
He was 65kg before the subject injury, and was at one point 90kg after the subject injury. He started to diet and has been 75kg around 12 months.
He reported having sleep problems. Cold weather aggravates his leg pain at night. He also has nightmares around 2-3 times per week. His nightmares are about random danger, e.g. people attack him.
He described intrusive memories related to power saw accident.
He has panic attacks.
He has been irritable at times.
He described having hypnogogic hallucination, of someone talking to him when he is half asleep and denied ever having true psychotic symptoms.

· Details of any previous or subsequent accidents, injuries or condition:

Past psychiatric history:
Nil.
Subsequent psychological injury:
Nil.
Background history:
Mr Yacoub does not have recreational drug or alcohol problems. He was born in Iraq and came to Australia at age 9 as a refugee. His father was killed in Iraq when he was 8 and he felt traumatised, and he did not develop a specific psychiatric injury. He grew up with his mother, being the eldest of three siblings. He does not have a family history of psychiatric illness.
Mr Yacoub has been married 4 years.
·    General health:
No other relevant medical conditions.
·    Work history including previous work history if relevant:
Mr Yacoub completed year 10 and started work as a motor mechanic when he was 16, and he did some fencing work and labouring work. At age 17, he started carpentry work.
Mr Yacoub's employment predominantly involved carpentry work and he has never completed a trade. At the time of the accident, he had been working at MJS construction for three months, eight hours a day, five days a week doing carpentry and framing work. He has not been able to return to similar work since the subject injury.
He has been working in his wife’s cleaning business. He would clean with one or two other cleaners, doing two to three hours shifts, five days a week, usually nightshift. He estimated doing about 16 hours per week consistently. He goes to offices, wipes down the tables, occasionally he will do some vacuuming and clean out the bins.
I asked him what other jobs he could do. He said he has no other qualification and that cleaning work is the only work that would not aggravate his leg pain.

· Social activities/ADL:

Mr Yacoub is 27 years old and living with his wife, who works in Service Stream, an electrical company and has her cleaning business. They have two children aged 3 and 1.
His mother, grandmother and brother were living with them and moved out in February 2022. He explained that he has been irritable and they wanted to give him some space.
Physically, Mr Yacoub is sensitive to heat and reported that he must wear double pants as he always feels cold. He walks with a limp, and he can walk about half an hour - he reported he would struggle to walk beyond that. He said there is no problem with lifting, but if he lifts a heavy item he feels that his right leg would “give up” or become weak. When he sits down more than 10 to 15 minutes, his leg would become numb. He can stand up for a long time, provided he can change posture regularly.
Mr Yacoub is working as cleaner and said that he often feels bored during the day, waiting to start work, and would walk around at home as he is restless. He explained that his wife works and the children are in day care centre, so he spends most of the time at home watching movies, but does not feel like there is enough to do.
When the weather is warm, he would take the children to the beach or to the park. They would play in the backyard pool and he might do a bit of exercise in the pool. Because it is cold recently, and his leg is sensitive, he does not want to go out at all.
Before the subject injury, Mr Yacoub said he had a lot of friends, and he has known them from school. They would meet up and play indoor soccer or go fishing. He would see his brother-in-law and they would do things around their shared interest with the car. He said now, he only maintains contact with one friend, who is his best friend. Sometimes, they go out for lunch or dinner. He regularly talks to his two cousins but does not tend to see them in person. He sees his brother-in-law regularly, sometimes eat out or go to a café.
As a family, Mr Yacoub would visit his parents-in-law once or twice every week. He enjoys going there. Sometimes, they would have dinner together or drink coffee and chat.
In terms of social events, Mr Yacoub said in 2021 he might have gone to one or two weddings. He recalled he went to a cousin’s wedding, and could not estimate how many people attended. He recalled the reception was in a venue in Lidcombe. In terms of birthday party functions, he said he has attended home parties and he might have attended one or two in 2021, and there has not been any birthday party this year yet. Mr Yacoub said that he only goes to social events involving his family.
I asked Mr Yacoub when was the last time he went out to a party, he cannot remember. I asked him about the boat party in January 2019, the nightclub in December 2019, parties in 2018, May 2020, and April 2019. He has no specific recollection of these events, and said he does not want to go out to these activities anymore.
Mr Yacoub showers twice a day. He reported having a healthy diet and is watching his weight. He eats two meals a day. He said he cooks when he wants to, he would make rice and vegetables for himself, but never cooks for the family. He tends to do shopping with his wife. If he needs something urgently, he would go and buy it for himself.
He does minimal housework. Sometimes, he would use a handheld Dyson to do vacuuming, and said he cannot be bothered to do more cleaning. I asked him about doing paid cleaning work and why he does not do more at home. He explained he is already cleaning at work and therefore does not want to do more at home.
Mr Yacoub lost his driver’s licence around 2010 for driving without a licence. He has since regained his driver’s licence. He reported he failed the first two knowledge tests and passed on the third attempt, and then completed the driving test. He reported he has been careful driving and can drive on his own for 45 minutes before he needs to get out and stretch his leg. He never drives long distances.
The relationship with his wife has deteriorated and he said they have good and bad days. When he is angry, he becomes quiet, he does not swear but tends to speak in an angry way.
He would use the leaf blowers and does not mow the lawn. His brother-in-law or neighbour would do the lawn.
Mr Yacoub does not go to the church regularly. He reported he has gone maybe twice this year, including Easter.
He has been reading a book online by Steve Harvey, who is an American comedian and the book is about how he has become the person he is. He would read between 15 to 30 minutes, and has been reading two to three times a week. He watches the news on TV and reads the news on the phone. He does not use social media anymore.
2. FINDINGS ON PHYSICAL EXAMINATION
Mr Yacoub was assessed by videolink. He was alone, and his wife and children were also at home during the assessment. The assessment took 55 minutes.
Mr Yacoub had neatly combed hair and carefully trimmed beard. He engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements. He was mildly restricted in his affect range and was frustrated at times. He spoke spontaneously and was generally talkative, and was not thought disordered.
He provided a good history and recalled reasonable amount of detail. He remained attentive during the assessment and was not distracted. He maintained a normal processing speed.
At the end of the assessment, I asked Mr Yacoub for additional information that he thought may be relevant and he discussed that people look down on him now, he loved carpentry work and he cannot perform similar roles now, he lost his career and is always upset and down in his mood.
3. SUMMARY

· summary of injuries and diagnoses:

Mr Yacoub described having experienced trauma as a child and never developed a psychiatric injury. He described having good psychological health and he had enjoyed various social and recreational activities with his friends, and he has always enjoyed carpentry work.
After the accident on 9 March 2016, Mr Yacoub has suffered chronic pain, depression, anxiety symptoms and classic symptoms of post-traumatic stress disorder. He developed Major depressive disorder and he has not gained substantial remission over time. His condition has stabilized and MMI has been reached.
In terms of Mr Yacoub's WPI assessment, I noted Medical Assessor Dr Baker had rated 7%; Dr Paul Friend had rated 15% (incorrectly calculated as 17%, as his ratings were 2, 2, 2, 3, 3, 3 and translated to 15% WPI), and Dr Whetton had rated 7% (in his first WPI, he made a calculation error and wrongly rated 15%). Overall, my assessment is comparable to Dr Baker’s assessment, although I did find his concentration, persistence and pace to be less impaired.

· consistency of presentation

I have found no inconsistency in Mr Yacoub's presentation.
Table 11.8: PIRS Rating Form

PIRS Category

Class

Reason for Decision

Self-care and personal hygiene

2

Mr Yacoub showers regularly but does not eat regularly. He has maintained a stable weight in the past 12 months and he cooks basic food for himself and buys what he needs from the shops when needed.

He is capable of independent living without regular support.

Social and recreational activities

2

He used to have an active social life and went out with his friends regularly.

He described mild impairment as a result of his psychological injury. He continues to enjoy regular recreational activities with his best friend, brother-in-law and sometimes they eat out at a restaurant or café.

He is anxious in social settings, and continues to attend some family functions, such as birthday home parties and weddings, and can engage with others but not to the same degree as he used to.

He visits the in-laws regularly and he enjoys spending time with his brother-in-law.

He cannot play sports due to his physical injuries and pain, and this is not assessable in the PIRS.

Travel

2

Mr Yacoub is anxious and avoids long distance driving   and avoids construction sites.

Social functioning

2

Mr Yacoub's relationship with his wife has deteriorated overall, and there has been no domestic violence.

He is anxious and socially avoidant, and no longer has contact with most of his friends.

He is able to maintain long-term relationship with a school friend, his cousins and his brother-in-law.

He can look after the children, e.g. take them to the beach and family activities.

Concentration, persistence and pace

2

Mr Yacoub described having poor concentration.

He reads books online, around 15-30 minutes regularly.

His mental state examination is consistent with 2.

Employability and Adaptation

3

Mr Yacoub has been managing 16 hours per week in a lower stress role, as a cleaner.

Score

       Median Class

2

2

2

2

2

3

=2

Aggregate Score Impairment

      Total

      %

2+

2+

2+

2+

2+

3 = 13

7

Pre-existing injury

0

Treatment effects

No substantial or total elimination of impairment with treatment, and therefore no treatment uplift.

0

Final WPI

7%

The assessment to be undertaken by the Panel is required to be carried out in accordance with the Guidelines[5] . The Guidelines provide that;
“Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information…”[6]
[5] 1998 Act, section 322 (1).
[6] Guidelines, paragraph 1.6a.
Chapter 11 of the Guidelines provides that the worker is to be assessed in accordance with that chapter. Paragraph 11.11 provides:
“Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment:
1.    Self-care and personal hygiene (Table 11.1)
2.    Social and recreational activities (Table 11.2)
3.    Travel (Table 11.3)
4.    Social functioning (relationships) (Table 11.4)
5.    Concentration, persistence and pace (Table 11.5)
6.    Employability (Table 11.6)”
Having regard to those requirements, the Panel has considered each of the areas of function.

Self-care and personal hygiene

The Panel notes the report of Dr Hong with respect to this area of function. Dr Hong assessed Mr Yacoub as having mild impairment (Class 2). Dr Hong provided reasons
“Mr Yacoub showers regularly but does not eat regularly. He has maintained a stable weight in the past 12 months and he cooks basic food for himself and buys what he needs from the shops when needed”. On that basis Dr Hong concluded that Mr Yacoub was capable of living independently.
The Panel accepts that assessment as being supported by the evidence. The Panel accepts that Mr Yacoub maintains a good level of personal hygiene. On examination by his treating psychiatrist, Dr Anis, he was noted to be “casually and appropriately dressed”. Dr Whetton, in his report dated 9 February 2021 reported that Mr Yacoub had presented as “a basically groomed, bearded man of the stated years”.
Dr Hong reported that Mr Yacoub had presented with “neatly combed hair and carefully trimmed beard”. There is no evidence in any of the material before the Panel suggesting that Mr Yacoub presents as unkempt or as having less than appropriate level of hygiene.
Mr Yacoub informed Dr Hong that he was capable of cooking for himself, although he left this task to others.
The Panel notes that the descriptors in respect of this area of function are examples only. The Panel accepts the opinion of Dr Hong with respect to this area of function. That assessment is consistent with the assessment by the Medical Assessor and by Dr Whetton.
Dr Friend assessed Mr Yacoub as moderately impaired in respect of this area of function. His reasons were:
“Mr Yacoub lives with his wife, mother, grandmother and brother. He relies on his wife to do the cooking and to organise his life. He has lost interest in doing or household duties and struggles to get out of bed. He would be unable to live independently without regular support from someone.”

Dr Friend does not appear to have considered whether Mr Yacoub is capable of caring for himself in the sense of meeting his day-to-day needs, but has instead concentrated on the fact that Mr Yacoub has the benefit of having his meals provided by other members of his household. For that reason the Panel gives less weight to the opinion of Dr Friend with respect to this area of function.
The Panel is satisfied that Mr Yacoub is appropriately assessed as falling within Class 2 in respect of this area of function.

Social and recreational activities

Dr Hong noted that Mr Yacoub had previously enjoyed an active social and recreational life. Dr Hong assessed Mr Yacoub as having mild impairment (Class 2) in respect of this area of function. He reported:
“He continues to enjoy regular recreational activities with his best friend, brother-in-law and sometimes they eat out at a restaurant or café. He is anxious in social settings, and continues to attend some family functions, such as birthday home parties and weddings, and can engage with others but not to the same degree as he used to. He visits the in-laws regularly and he enjoys spending time with his brother-in-law. He cannot play sports due to his physical injuries and pain, and this is not assessable in the PIRS.”
The Panel accepts that assessment as appropriately based on the relevant evidence. The Panel accepts that, following the subject injury, Mr Yacoub has lost contact with all his friends except for his best friend. Mr Yacoub does, however, maintain a level of social contact with that friend and with other members of his family. The Medical Assessor mentions “If he and his wife are going on a picnic or somewhere else, all the preparations need to be made the night before or else he feels impatient and on edge the next day”.[7] (The fact of limited social contact over the past two years is of little assistance in assessing this area of function, given the restrictions imposed by the Covid pandemic).
[7] MAC page 4.
The assessment of mild impairment is consistent with the opinion of Mr Yacoub’s independent medical expert, Dr Friend, who assessed Mr Yacoub as having mild impairment in this regard, noting:
“Mild impairment. Mr Yacoub visits his in-laws and will see a friend or have a friend visit him but otherwise has markedly reduced his social activities and has little interest in undertaking social activities.”
Dr Whetton, who examined Mr Yacoub on behalf of the respondent, agreed with that assessment, noting:
“He has one close friend otherwise his other friends he said have drifted away. He is [sic] contact with that friend once a week who will come over to his house and spend time together. He will go out with this friend to eat and is able to attend a social gathering but finds that because of his state of mind it was hard to get along with people. He has lost his previous interest in sports and gardening.”
The Panel is satisfied that Mr Yacoub is appropriately assessed as falling within Class 2 in respect of this area of function.

Travel

Dr Hong noted on examination that “He reported he has been careful driving and can drive on his own for 45 minutes before he needs to get out and stretch his leg. He never drives long distances”. He noted that Mr Yacoub is anxious and avoids construction sites when driving. Dr Hong assessed Mr Yacoub as having mild impairment (Class 2) in respect of this area of function.
That assessment accords with the assessments of the Medical Assessor and by both independent medical experts, Dr Friend and Dr Whetton. Dr Friend reported “He has regained his drivers licence since the work accident, but needs to be accompanied of [sic] driving outside the local area, feeling not confident to do so”. In reaching the same conclusion as to the level of impairment, Dr Whetton reported:
“He is able to drive his car locally. However, describes fearfulness of loss of the function of his leg which he describes as ‘giving away’. With numbness of his leg he does not have the confidence to drive distances. He will go shopping together with his wife.”
Neither party has disputed the Medical Assessor’s conclusion with regard to this area of function and the Panel accepts that Mr Yacoub was appropriately assessed as falling within Class 2.

Social functioning

Dr Hong assessed this area of function as falling within Class 2. His reasons were:
“Mr Yacoub's relationship with his wife has deteriorated overall, and there has been no domestic violence. He is anxious and socially avoidant, and no longer has contact with most of his friends. He is able to maintain long-term relationship with a school friend, his cousins and his brother-in-law. He can look after the children, e.g. take them to the beach and family activities.”
The Panel notes that, following the subject injury, Mr Yacoub and his wife have married and had two children. Although there is evidence that Mr Yacoub loses his temper and becomes angry in the home at times, there is no evidence that this anger is directed at his wife. The Panel does not accept the appellant’s submission that expression of anger is to be considered domestic violence. The Panel accepts that, as reported by Mr Yacoub, the relationship has its up “ups and downs”, but this is not necessarily an indication of psychological impairment.
The Panel notes the supplementary statement by Mr Yacoub and accepts his explanation that his postings on social media do not accurately reflect his state of mind and that he is attempting to put a good face on the situation. However, posting on social media sites is indicative of an attempt to maintain relationships and does indicate a level of social functioning. Those postings have now ceased but this appears to follow the respondent drawing attention to them in Dr Whetton’s subsequent report[8].
[8] Application to Admit Late Documents by the respondent dated 20 July 2021.
Dr Friend assessed Mr Yacoub as falling within Class 2 in respect of this area of function. He reported: “Mild impairment. Mr Yacoub has a good relationship with his wife but has a strained relationship with his mother and sister and brother. He has lost contact with most of his friends”.
Dr Whetton and the Medical Assessor reached a similar conclusion. The reasons for assessment given by the Medical Assessor are set out above. Dr Whetton reported: “He maintains a good relationship with his wife and family. However, reports a loss of libido which has put strains on their relationship but there have been no separations”.
Accepting that Mr Yacoub has lost friendships that he previously had, and accepting that he has maintained a relationship with only his best friend, the evidence nevertheless supports a conclusion that Mr Yacoub suffered a mild level of impairment in respect of this area of function. He has maintained a workable relationship with his wife and members of his family and although he may find it difficult, he does participate in furthering those social relationships by participating in family activities and use of social media.
The Panel agrees with the assessment of the Medical Assessor, Dr Friend, Dr Whetton and Dr Hong that Mr Yacoub is appropriately classified as falling within Class 2 with respect to this area of function.

Concentration, persistence and pace

Based upon his observations on examination of Mr Yacoub, Dr Hong assessed Mr Yacoub as falling within Class 2 in respect of this area of function. Dr Hong observed:
“He engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements. He was mildly restricted in his affect range and was frustrated at times. He spoke spontaneously and was generally talkative, and was not thought disordered.
He provided a good history and recalled a reasonable amount of detail. He remained attentive during the assessment and was not distracted. He maintained a normal processing speed.”
The Medical Assessor assessed Mr Yacoub as falling within Class 3 in respect of this area of function. He gave as his reason:
“Mr Yacoub becomes frustrated and easily agitated when attempting to concentrate on any complex task. He suffered impaired concentration that prevented him from persisting with complex tasks. His basic completing any task was reduced. He had not completed any study or certificates for any retraining course as he found it difficult to follow complex instructions and type long documents. He reported that he had stopped reading newspapers as he had lost interest in news events. His wife organised all of his personal finance needs.”
Dr Friend and Dr Whetton both assessed Mr Yacoub as having moderate level of impairment (Class 3) with respect to this area of function. Dr Friend reported:
“Moderate impairment. Mr Yacoub has failed the drivers licence knowledge test on two occasions which he previously passed on the first attempt. He feels that he is forgetful needing his wife to remind him of all appointments and other important matters. He will forget what he needs to buy in the supermarket. He feels incapable of learning any new information. He was able to sit through an examination that lasted 75 minutes but often struggled to provide his account in a logical and coherent fashion and needed to be prompted to clarify a lot of matters and provide more specific information such as about treatment and progress since the injury.”
Dr Whetton reported as his reason for assigning Class 2: “He is able to watch a movie but will get distracted. He is less interested in things than he used to be and describes himself as being forgetful”.
The history obtained by Dr Hong indicates that there has been some improvement in this area of function since the MAC. The Panel notes the relevant descriptors[9]:
“Class 2 – Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3 – Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans) make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
[9] Guidelines Table 11.5, Page 57.
The history obtained by Dr Hong shows an improved ability to function in this area. The Guidelines require Mr Yacoub to be assessed in accordance with the presentation on the day of examination. Dr Hong’s observations regarding Mr Yacoub’s ability to concentrate during the extended period of the examination showed improvement over that recorded by the earlier assessors. Dr Hong also noted that Mr Yacoub, at the time of examination, was reporting that he was able to read online books for periods up to 30 minutes.
The Panel accepts that the presentation of Mr Yacoub on examination on 22 May 2022 warrants assessment of Class 2 with regard to this area of function.

Employability

The Medical Assessor, Dr Friend, Dr Whetton and Dr Hong agree that Mr Yacoub is appropriately assessed as suffering moderate impairment (Class 3) in respect of this area of function.
Dr Kwong reported that Mr Yacoub was “managing 16 hours per week in a lower stress role, as a cleaner”. The Medical Assessor gave his reasons for assigning moderate impairment:
“Mr Yacoub was unable to return to his primary substantive role due to fear that he would be injured in the same way again. He could work less than 20 hours per week in a different role that was less skilful and less stressful. He worked about 15 hours per week cleaning in his wife’s business.”
Dr Friend recorded:
“Moderate impairment. Mr Yacoub works 16 hours per week doing a cleaning role as an employee in his wife’s company. This is significantly less skilful than the previous employment as a carpenter. He is too scared to return to his previous job in the building industry even if he were physically able to do so.”
Dr Whetton reached a similar conclusion, noting:
“He is restricted by his physical problems but as well lacks the endurance to be able to manage his previous occupation and fearfulness around tools and the possibility of being injured. He is able to manage the 16 hours per week. This appears to be his limit.”
The Panel is satisfied that classification within Class 3 is appropriate having regard to the evidence that psychological symptoms restrict Mr Yacoub’s ability to participate in the workplace, as well as his physical symptoms.

Assessment of impairment

The Panel accepts that Mr Yacoub is appropriately assessed as falling within Class 2 with respect to each area of function other than employability where he is appropriately assessed as falling within Class 3.
The classes listed in ascending order are 2, 2, 2, 2, 2, 3 and the median value is 2. The scores total 13. Applying Table 11.7, Mr Yacoub is accordingly assessed as having 7% WPI.
The Panel accepts that there is no evidence of any previous injury or pre-existing condition or abnormality which would warrant a deduction pursuant to section 323 of the 1998 Act. There has not been “apparent substantial total elimination of the claimant’s permanent impairment” and there is no basis for any adjustment for the effects of treatment[10].
[10] Guidelines paragraph 1.31, page 6.
Although error has been identified, the Panel is satisfied that the MAC under review constitutes an accurate assessment of the degree of permanent impairment of the worker as a result of the subject injury (section 319 (c)) of the 1998 Act, whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality (section 319 (d)), whether impairment is permanent (section 319 (f)) and whether the degree of permanent impairment is fully ascertainable (section 319 (g)), although for the reasons set out herein.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 December 2021 should be confirmed.

[2022] NSWPICMP 260

22 June 2022