Australian Anatolian Community Services Co-Op Ltd v Denkgelen

[2023] NSWPICMP 163

DETERMINATION OF APPEAL PANEL
CITATION:	Australian Anatolian Community Services Co-Op Ltd v Denkgelen [2023] NSWPICMP 163
APPELLANT:	Australian Anatolian Community Services Co-Op Ltd
RESPONDENT:	Selda Tania Denkgelen
Appeal Panel
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	27 April 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor’s obligations to give reasons; principles of assessment under the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 and the Psychiatric Impairment Rating Scale (PIRS); section 323 deduction; Cole v Wenaline, Ryder v Sundance Bakery and Marks v Secretary, Department of Communities and Justice (No 2) referred to; Held – MAP revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 22 December 2022 Australian Anatolian Community Services Co-Op Ltd (AACSCL) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 November 2022.

2. AACSCL relies on the following 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.

3. The delegate was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.

4. 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.

5. 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

1. Ms Denkgelen suffered a psychological injury in the course of her employment with AACSCL which is deemed to have occurred on 14 August 2020.

2. The Medical Assessor issued a very brief MAC in which he assessed 17% whole person impairment (WPI).

PRELIMINARY REVIEW

1. We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.

2. As a result of that preliminary review, we determined that Ms Denkgelen should undergo a further medical examination because the MAC was so brief as to completely fail to disclose the Medical Assessor’s path of reasoning. The paucity of reasoning constituted a demonstrable error.

EVIDENCE

1. 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.

2. Prof Glozier conducted an examination of the worker on 19 April 2023 and reported to the Appeal Panel. His report forms part of these reasons.

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

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but we have considered them.

2. In summary and in submissions prepared by its solicitor Mr Lee, AACSCL submitted that the Medical Assessor failed to provide reasons for his diagnosis and assessment and in respect of s 323 of the 1998 Act. It said that he failed to take account of material in the Reply which suggested that non-work related factors may have contributed to her condition and failed to make a deduction in respect of a pre-existing psychiatric condition and previous and subsequent non-work related factors.

3. AACSCL also said that the Medical Assessor failed to provide reasons for his assessment and erred in his assessments under the Psychiatric Impairment Rating Scale (PIRS) tables for self-care and personal hygiene, social and recreational activities, social functioning, concentration, persistence and pace and employability. Each of those errors was said to relate to the Medical Assessor’s failure to consider prior and subsequent non-work related factors. For example, with respect to employability, AACSCL said that the Medical Assessor was in error to assess Ms Denkgelen in class 3 because he did not indicate if the classification was due to the work related injury or due to “subsequent” events with her family which required her to be admitted to hospital. It also submitted that the Medical Assessor was in error not to indicate the number of hours of work that the worker can perform.

4. AACSCL said that re-examination was necessary.

5. In reply and in submissions prepared by Mr Moffet of counsel, Ms Denkgelen submitted that the question of a deduction under s 323 was never placed in issue by AACSCL which had previously disputed injury, saying that the condition was the result of factors unrelated to employment. He said that Dr Rastogi, qualified for Ms Denkgelen, explained why no deduction was warranted and that Dr Kaplan made no assessment of impairment so that there was no dispute as to the deductible proportion.

6. Mr Moffet said that where Dr Rastogi provided an assessment of permanent impairment and the Medical Assessor agreed with her, it was adequate for the Medical Assessor to provide brief reasoning and not generate detailed reasons. He also said that the Medical Assessor was not required to provide reasons in support of his diagnosis because of the overlapping diagnoses made by Drs Rastogi and Kaplan. He said that it was not appropriate to take causation into account in the assessment of the PIRS.

FINDINGS AND REASONS

1. 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.

2. 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.

3. The MAC is quite remarkably brief and practically devoid of reasons for the Medical Assessor’s opinion. Section 325(2) of the 1998 Act sets out the requirements for a MAC:

   “(2)    A medical assessment certificate is to be in a form approved by the President and is to—

   (a)set out details of the matters referred for assessment, and

   (b)certify as to the medical assessor’s assessment with respect to those matters, and

   (c)set out the medical assessor’s reasons for that assessment, and

   (d)set out the facts on which that assessment is based.”

4. The Guidelines provide additional assistance to the Medical Assessor when they describe what is required by an independent medical examiner undertaking an assessment and preparing a report for the evaluation of permanent impairment. The principles apply to a MAC as much as a report prepared for one of the parties. Complying with those requirements obliged the Medical Assessor to write in sentences and not merely to briefly complete the template approved by the President for physical injury claims as if it was a form. One example is the Medical Assessor’s description of the facts on which he based his assessment of permanent impairment where he merely said “[h]istory, examination and collateral information.”

5. Paragraph 1.6 provides:

   “a.     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 to determine:

   ·whether the condition has reached Maximum Medical Improvement (MMI)

   ·whether the claimant’s compensable injury/condition has resulted in an impairment

   ·whether the resultant impairment is permanent

   ·the degree of permanent impairment that results from the injury

   ·the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality,

   ·if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.

   b.     Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.”

6. Paragraph 1.46 requires that the report be “accurate, comprehensive and fair”. Paragraph 1.47 reads:

   “The report should contain factual information based on all available medical information and results of investigations, the assessor’s own history-taking and clinical examination. The other reports or investigations that are relied upon in arriving at an opinion should be appropriately referenced in the assessor’s report.”

7. The Medical Assessor was also required to undertake his assessment in accordance with paragraph 11.6 of the Guidelines:

   “11.6 It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker’s psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the results of standardised tests – including appropriate psychometric testing performed by a qualified clinical psychologist and work evaluations – may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time. Percentage impairment refers to whole person impairment (WPI).”

8. The extent of the history set out by the Medical Assessor was:

   “The worker started at Australian Ana around March 2019. She described bullying and harassment by Sally. She developed anxiety and depression culminating in an overdose and hospital admission in October 2019.”

   And:

   ·        “Present symptoms: ongoing low mood, fleeting suicidal ideation, sleep difficulties, feelings of worthlessness, irritability, social withdrawal, anxiety, avoidance.

   ·        Details of any previous or subsequent accidents, injuries or condition: she had some additional stress more with her son’s in the eye in 2007, the death of her father in 2015 and the death of her mother in 2019.

   ·        Social activity/ADL: reduction ADLs. Dependent on family. Reduction of social activities. Minimal driving.”

9. In State of New South Wales (NSW Department of Education) v Kaur[2] (Kaur) Campbell J said:

   [2] [2016] NSWSC 346.

   “In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:

   ‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’

   Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:

   ‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”

10. It was necessary for the Medical Assessor to expose his reasoning so that the parties (and any Appeal Panel or Court) can understand why he reached the decision he did. He did not explain his reasoning at all. The MAC in respect of a psychological injury requires a description of any past psychological history, a detailed description of the injury and a history of the worker’s social activities and activities of daily living on which an assessment of WPI arising from the injury can be transparently made. The PIRS can only be completed on the basis of material which has already been set out in the body of the MAC.

11. The mental state examination should be described in detail. The Medical Assessor was required to explain why he agreed with and differed from the other opinions in the file – it was not sufficient merely to say that he agreed with Dr Rastogi’s assessment.

12. The Medical Assessor did not give any reasons for his assessment of the summary of injuries and diagnoses, and evaluation of the WPI in the body of the MAC. The reasons given in the PIRS Table are short statements taken from the examples in the Guidelines. For example, the Medical Assessor rated Ms Denkgelen in class 3 for self-care and personal hygiene but merely said “[r]equires support and prompting of family”.

13. The important part of the description of each class in the PIRS is the level of impairment – e.g. no deficit, mild impairment, moderate impairment. Rather than providing criteria for assessment, what follows in each class are examples of limitations on activities which are consistent with the level of impairment. In Jenkins v Ambulance Service of NSW[3] Garling J said:

    [3] [2015] NSWSC 633 at [65].

    “I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”

14. The Medical Assessor was required to explain the impact of the injury on Ms Denkgelen’s level of functioning in each of those categories and not merely to quote from the Guidelines. Contrary to AACSCL’s submission with respect to employability, he was not required to nominate the number of hours she was able to work. The numbers of hours in Table 11.6 are examples which indicate the level of disability.

15. The Medical Assessor was not excused from preparing a detailed report on the basis that only Dr Rastogi had provided an assessment of impairment. The Medical Assessor was required to assess Ms Denkgelen as she presented on the day of the examination and he was assessing her more than two years after Dr Rastogi’s permanent impairment assessment dated 23 September 2020.

16. Mr Moffet was correct to submit that Ms Denkgelen’s pre-existing condition is not relevant to assessment under the PIRS. The Medical Assessor was required to assess Ms Denkgelen as she presented on the day of the examination and evaluate the current WPI using the PIRS. Any s 323 deduction is made after the percentage impairment has been assessed.

17. The Medical Assessor’s reasons did not meet the standard set out in the legislation, Guidelines and case law and necessitated a re-examination. We adopt Prof Glozier’s report which is attached to these reasons.

Section 323

1. The Medical Assessor was required to consider s 323 of the 1998 Act in making his assessment. He is directed to do so by the Guidelines and it is irrelevant that AACSCL’s insurer had not placed the deduction in issue.

2. AACSCL was correct to submit that the Medical Assessor did not provide reasons for failing to make a deduction under s 323. In this case it is relevant to grapple with the other factors which may have contributed to Ms Denkgelen’s condition. The Medical Assessor barely acknowledged them and did not explain why no deduction was appropriate. Because of the prior and intercurrent history it was necessary that he do so clearly and explain why that history did or did not warrant a deduction.

3. It was not sufficient for the Medical Assessor to agree generally with Dr Rastogi’s opinion. The Medical Assessor did not acknowledge that Dr Rastogi originally said that no deduction was warranted and then explained why that was so in her reports dated 5 March 2021 and 16 November 2021 after considering the notes from Ms Denkgelen’s former general practitioner, Dr Nguyen and documents concerning Ms Denkgelen’s treatment in October and November 2019 and subsequently.

4. AACSCL submitted that the Medical Assessor was in error as to the cause of an overdose and hospital admission in October 2019 and that he failed to take into account a series of documents which recorded histories and detailed treatment in late 2019. In particular it referred to part of the notes from Liverpool Hospital, a Mental Health Discharge Transfer Summary dated 30 October 2019 the report of Dr Tran, cardiologist, dated 12 November 2019, a report by Ms Ladknai, psychologist dated 18 December 2019 While those documents required consideration, the Medical Assessor was required to do so in the light of the file as a whole and to ask the appropriate questions during his examination to allow him to determine if there should be a deduction and then to explain why that was so.

5. All of the documents which AACSCL says the Medical Assessor should have considered relate to the events in October 2019. Each of them were prepared for the purpose of treatment and in the context of an acute period of stress, including when she was admitted to hospital following an overdose. The documents should be read in the appropriate context. In Nominal Defendant v Clancy[4], Santow JA said:

   [4] [2007] NSWCA 349.

   “While clinical notes, … , may in common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive … clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document. It is fair to say a report to another doctor [or a medico-legal report] is likely to have been written with more deliberate consideration than rough notes.”

1. The Medical Assessor was not required to specifically deal with each of the reports in the file though he was required to engage appropriately with s 323 and to determine if a deduction was warranted. He was required to engage with the history of events in October and November 2019.

2. Ms Denkgelen said that she commenced working for AACSCL in March 2019 and continued working until the deemed date of injury of 14 August 2020. She said in her statement that she began to experience bullying and harassment soon after and that her employer was not supportive when her mother was ill. Her psychologist, Ms Stern, said in a report dated 9 December 2020 that the main incident which contributed to the injury occurred around the time that Ms Denkgelen’s mother was admitted to hospital in April 2019. She sought time off and her employer told her to “leave her personal problems at home and focus on work.”

3. Ms Denkgelen said that her employer was not empathetic and did not allow her time off to see her mother. Her employer had seemed sympathetic to her mother’s limited life expectancy in the interview. She said that she took an overdose of tablets in October 2019 and at that time she was constantly fearful of the managing director Ms Erdogdu but she also felt unsafe everywhere because there were also conflict from family members about her mother’s care and finances. Ms Erdogdu visited Ms Denkgelen while she was in hospital and told her that she needed to stop being weak and to return to work. Ms Denkgelen said she returned to work a week after her mother died and Ms Erdogdu told her to leave her personal life at home.

4. Ms Denkgelen continued to work until August 2020 and she described other interactions which contributed to her condition in her statement. She was on her way from work to visit her mother on 4 November 2019 when she was told that her mother had died. She suffered a panic attack on that day and another on the day of her mother’s funeral.

5. It does not necessarily follow that a pre-existing condition or vulnerability will result in a deduction. In Cole v Wenaline Pty Ltd[5], Schmidt J considered a case concerning a lumbar spine injury in which the medical members of an appeal panel found that a deduction under s 323 was warranted because spinal surgery had been undertaken as a result of a previous injury some years before. Her Honour said:

   [5] [2010] NSWSC 78.

   “The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.

   Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, It will always, ‘irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.[6]

   [6] At [29]-[30].

   …

   What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”[7]

   [7] At [38].

6. In Ryder v Sundance Bakehouse[8] Campbell J said:

   [8] [2015] NSWSC 526 at [45].

   “What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”

7. In Marks v Secretary of Communities and Justice (No 2)[9], a case dealing with a psychological injury, Simpson AJ said:[10]

   [9] [2021] NSWSC 616.

   [10] At [15]-[17].

   “It was contended (correctly) that it is not every case in which a pre-existing condition can be identified that will result in a deduction under s 323(1). It is always a matter for assessment whether any proportion of the impairment assessed is due to such a pre-existing condition. So much is uncontroversial and has long been recognised: see Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; (2000) 21 NSWCCR 34; Cole v Wenaline Pty Ltd [2010] NSWSC 78; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254; Ryder v Sundance Bakehouse [2015] NSWSC 526.

   The more important question, … , is whether a pre-existing condition, notwithstanding that it is asymptomatic at the time of the injury in respect of which the assessment is undertaken, may, nevertheless, contribute to the degree of impairment. In respect of physical injuries, it has long been held that it can: Government Cleaning Service v Ellul (1996) 13 NSWCCR 344; Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; (2000) 21 NSWCCR 34; Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liquidation) [2013] NSWSC 365 at [91] and [95].

   In the light of this consistent line of authority, s 323(1) must be construed as requiring deduction from the assessment of the degree of permanent impairment of any proportion of the impairment that is due to ‘previous injury … or … pre-existing condition or abnormality’, whether or not the pre-existing condition or abnormality is symptomatic at the time of injury. As noted in the preliminary reasons, the cases which have previously considered this question all related to physical injury. However, … , s 323(1) does not distinguish between physical and psychiatric or psychological injuries. It applies to all injuries equally.”

8. We agree with and adopt Prof Glozier’s consideration of s 323 in his attached report, based on a consultation and a review of all of the material in the file.

9. Ms Denkgelen had a pre-existing condition with variable levels of symptom presentation. While Dr Nguyen’s notes show some prior consultations for mental health issues, including a diagnosis of post-traumatic stress disorder in 2017, Ms Denkgelen had not sought treatment for more than two years. For a period around the time of her mother’s death, her symptoms were florid and she had a series of hospital admissions within a short period. Ms Denkgelen’s case is that the conditions in the workplace which led to her accepted injury were already impacting on her at the time of her mother’s death. Her condition settled and she returned to full-time work. It is not possible to look back and discern what was and was not relevant at the time. It is clear that there should be a deduction but in the circumstances it is difficult to determine the precise extent of the deduction so that the presumption in s 323(2) applies.

10. For these reasons, we have determined that the MAC issued on 25 November 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

MatterNumber:	M1-W5668/21
Appellant:	Australian Anatolian Community Services Co-Op Ltd
Respondent:	Selda Tania Denkgelen
DateofDetermination:	19 April 2023

ExaminationConductedBy:	Professor Nicholas Glozier
DateofExamination:	19 April 2023

1. The worker’s medical history, where it differs from previous records

The GP notes from Dr Nguyen indicate long-term recurrent presentations with headaches. In late 2016 she was assaulted (as was her son) and in February 2017 she was diagnosed with Post- Traumatic Stress Disorder and referred to a psychologist. The presentation with the overdose in October 2019 is recorded in the Liverpool Hospital notes. These indicate that she was admitted following an overdose in the context of a family altercation with her sister and a court case regarding her son and she was admitted on 25 October 2019. She was discharged on 30 October 2019 following the Nitrazepam overdose. The triggers to this are recorded as ‘a background of recent reactive depression in the context of psychosocial stressors and previous depressive episodes around 30 years ago.’ She was commenced on Mirtazapine at that time. She was discharged into the care of her husband and followed up by the Gold Card Clinic and Community Team. The notes from the Community Team make no mention of any workplace stressors, only those of her family, and she was discharged from them in November 2019. It was noted that she had a ‘history of anxiety and depression and had been treated in private sector.’ They also noted the recurrent presentations with panic and anxiety including the collapse at the mother’s funeral and some subsequent ED presentations in the context of her mother’s death, grief and family stressors. The discharge from the Gold Card Clinic provides a background history including ‘a historical diagnosis of Borderline Personality Disorder’ and also notes the family stressors, impending court cases but again makes no mention of any workplace stressors. It was thought that ‘her grief likely exacerbated pre-existing anxiety and panic symptomatology’ as well as historical BPD features (suicidality and self-harm).

It is however noted that over this period when she had moved to Sydney to help care for her mother that she did not find work supportive and both she and others corroborate the harassing and bullying behaviour over 2019. She returned to work after her mother’s death and continued to work through the early parts of Covid with increasing demands and difficulties encountered by those in the child sector as they coped with continuing to look after people during the Covid period and ongoing restrictions and difficulties. As Ms Denkgelen has recorded in her statement, over2020 she had repeated episodes that she felt harassed, bullied and threatened by, as well as problems with procedures including excess cleaning. She had a further anxiety attack in August 2020, was very distressed. She recalls being cut off from all communications to the service in late August 2020 and has not worked since 14 August 2020. She then underwent treatment from two separate psychologists, Sue Stern and Neil Balardie, both of who identified in late 2020 only the workplace stressors as the primary cause of her condition, although note that these also dated back to 2019.

In the assessment today Ms Denkgelen did acknowledge that prior to her mother’s death everyone in the family was on edge but she was unclear if it was just her sister who would have pushed her to suicidality and in retrospect thinks that there may be some contribution from the lack of support at work although the family issues were the determining factor. She noted that she had returned to New South Wales to be closer to her family with her mother’s death and that moving to Queensland in 2017 had not worked out. She moved back with her daughters and was splitting up with her then-partner, Sam, over 2019, as he remained in Queensland for some time.

She continues not to drink alcohol, smoke, vape or use illicit drugs. She does however take an anti-hypertensive for hypertension and noted that she continues to experience headaches.

1. Additional history since the original Medical Assessment Certificate was performed

This is not really ‘additional history’ given the paucity of information in the original MAC. Ms Denkgelen confirmed that in 2020 following the incidents where she was removed from work following many months of what she says was harassing and bullying behaviour. She says that she says that she was ‘broken’ with significant symptoms, sleep problems and finding it difficult to function. She saw one psychologist, Neil Balardie, from March 2020 over the period where the work stressors were building up. He saw her over 2020 until December that year. In September 2020 she also started consulting Sue Stern and for a time saw both psychologists but then continued with Ms Stern. She says that she is closer and she feels safe with her. She continues to see her weekly. Although I note Ms Stern’s description of CBT strategies, currently Ms Denkgelen reports that the sessions appear to be symptom-focused and supportive and that she gains little change in her symptoms or function from them but feels that Ms Stern is the only person that she can talk to and understands her. She has continued to take Mirtazapine 45mg, takes Fluoxetine 20mg, oddly at night as she perceives it is a sleeping tablet, and has continued with her antihypertensives.

She describes having developed a chronic low mood with dysphoria, difficulty enjoying things, withdrawal, hopeless, unable to tolerate any significant stressors and feels broken, undermined and overwhelmed. She describes frequently feeling unsafe and so tries to avoid leaving home unless she has to, e.g. to go shopping and frequent high levels of arousal and ongoing panic attacks which can be triggered by social interactions or even at times such things as a supportive text. She described classic panic attack phenomena but no longer calls ambulances for these as she realises the origin of these now. She spends much of her time in her room or sitting around the house and has a disrupted circadian rhythm, lying in bed in the evening, watching TV in a distracted fashion or looking at YouTubes and falling asleep when she feels the need to, rather than any specific routine. This can vary between early evening and early hours of the morning. She generally sleeps through until about 7am or 9am, gaining a variable amount of sleep and needs to push herself to get out of bed. She may nap again during the day. She describes significant anergia, lack of motivation and requiring prompting to do many tasks, She has withdrawn in part to her room and does not see why she should contribute to the household as she does not particularly utilise any of the kitchen or other rooms. She says she has the TV on much of the time but does not always focus on this.

She lives with her two daughters: Jade, and her younger daughter who has two children aged three and one, Amelia and Mary. Her sons come and go, depending upon whether they are working around New South Wales with their father Sam, who will also come by at the weekends. She has contact with her extended family who may come around at times but she does not go to family events anymore. Although religious, she will occasionally pray but does not attend mosque, has no intention of celebrating Eid and did not do so last year. She finds Ramadan fasting impossible. She says she spends much of the day ‘overthinking’, worrying about what has happened to her in the past, being bitter and resentful for how she has been broken by someone screaming at her and treating her badly, and that no-one should be allowed to get away with this. When she gets up she says she does little, may occasionally play with the grandchildren but never looks after them. She very occasionally gets into the pool but finds it not worth the time she has had to do to do so, even though she was once a swimming instructor. She will not teach her grandchildren to swim. She says she stopped cooking because she burned some pots but will get basic food such as cereals, patisserie, and fruit, and otherwise relies on Jade to cook for her or get takeaways. She did not contribute to household chores. Occasionally other people come over and she continues to be texted and contacted by friends although has not seen them for a long time, not wanting to be in touch with anybody. She will try and watch Turkish series on the television but after a couple of episodes will stop being able to follow the plots. She no longer does any social media or any other social activities. She will leave home if she has to, if no-one else is able to go shopping and generally walks to the local shops. She says that when she was driving, she began to lose focus and concentration, arriving at places not having quite recalled how she had got there because she is so lost in her own thoughts and so says she cannot be trusted to drive now. Otherwise she relies upon others to take her places but has not left the locale for many months. She may read some things on the internet or what pops up on the internet TV or news but is not able to follow those for long. She did try two rehabilitation sessions with the insurer which involved completing a diary of what she did day-to-day but found this so challenging as it represented the discrepancy between her previous life that it made her anxiety and depression worse. She stopped contacting the rehabilitation person despite the threats of withdrawal of payments from the insurer. She sees the way forward as by complying with her treatment but this involves little from her own initiative, not managing her diet, establishing any routine, doing any other psychosocial or lifestyle interventions beyond the adherence to her medication.

1. Findings on clinical examination

Ms Denkgelen was sitting on her bed, somewhat casually-dressed. She was immediately anxious, although polite, and kept apologising for being anxious. As the assessment continued she became more tearful and at the end when she was asked if anything else was missing, and she went through the discrepancies between her life previously, how she is now, how she believes that she has been broken, had everything removed from her by the manager at work and what she is left with, she became quite aroused, with hyperventilation, shortness of breath and needing to drink. She describes anhedonia, pervasive low mood, reduced motivation, energy/concentration, significant negative cognitions about her self-worth, guilt, burden, hopelessness, helplessness, high levels of anxiety, arousal, avoidance and withdrawal with frequent panic attacks. There are no psychotic phenomena. She herself does not know what is wrong with her, why she is like she is, or what she can do to change, despite many years of clinical intervention.

1. Results of any additional investigations since the original Medical Assessment Certificate

Nil.

Summary

Ms Denkgelen presents as someone who has deteriorated into a chronic Major Depressive Disorder with Anxious Distress with both cardinal features, virtually every other clinical feature and marked levels of anxiety, arousal and frequent panics. She reports being highly symptomatic and with this level of impairment for some time. It is apparent from the clinical notes that there had been symptoms of anxiety, depression and at one stage posttraumatic symptoms, warranting the diagnosis of Post-Traumatic Stress and a referral to a psychologist, as well as assertions in late 2019 (prior to the more overt bullying and harassing behaviour of 2020) that there were pre-existing anxiety/depressive symptoms and probable Borderline Personality Disorder. As such there appears to have been a pre-existing psychiatric condition of variable levels of symptomatic presentation associated with family and other stressors. Conversely she was caring for her mother, working fulltime, looking after her family and so for some period in 2019 there appears to have been little in the way of frank impairment and this pre-existing condition is thus contributing in an impossible-to-determine fashion to her current whole level of impairment, best dealt with under a Section 323 one-tenth deduction. I have attached the PIRS table with the reasonings for every class, given the paucity of reasoning within the MAC itself where each of the classes was deemed erroneous due to the lack of reasoning.

PIRS Category	Class	Reason for decision
Self-Care and Personal Hygiene	3	She requires prompting for many basic tasks including showering and even doing her teeth, with her daughter to cook although she will prepare some basic meals and can do some shopping but was withdrawn from other household chores. She says her children regulate her medication.
Social and Recreational Activities	4	She rarely leaves home now and reports no social functioning outside of it, not going to family events, any other activities and not acknowledging friends. She will tolerate family at home but even occasionally may find these highly anxiety- provoking e.g. her daughter’s boyfriend.
Travel	2	She prefers not to leave home but can go down to the local shops although can be aroused and panicky when doing so and has not left the locale for some time.
Social Functioning	2	She reported being well-supported by her daughters, her sons, although less intensely and even the relationship with her ex is amicable and he tries to prompt her. There has been some rapprochement with the family since her mother’s death but she has withdrawn from all of her friends.
Concentration, Persistence and Pace	3	She focused reasonably within the assessment today, can watch some episodes of Turkish soap operas but finds herself getting distracted fairly quickly, can follow some news on the internet but does little more in terms of reading or watching television.
Employability	5	With her avoidance, arousal, panic, circadian disruption and significant negative cognitions and poor tolerance of any stressors, she is unemployable on the open job market.

Classes in Ascending Order:  Median Class

2 2 3 3 4 5 = 3

Aggregate Score Impairment:  Total     %

2+ 2+ 3+ 3+ 4+ 5 19 = 24%

Interim Whole Person Impairment:

Less Section 323 (1/10^th) deduction:

Final Whole Person Impairment:

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W5668/21
Applicant:	Selda Tania Denkgelen
Respondent:	Australian Anatolian Community Services Co-Op Ltd

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 Dr Gerald Chew and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total % WPI (after any deductions in column 6)
Psychiatric and psychological disorders	14 August 2020	Chapter 11	N/A	24	1/10th	22
Total % WPI (the Combined Table values of all sub-totals)					22%