Ratewave Pty Ltd t/as Manly Pacific Hotel Sydney v Radim Radeck [2021] NSWWCCMA 6

On 11 May 2020, Dr Ashish Takyar, psychiatrist, in his capacity as an Approved Medical Specialist (now known as a Medical Assessor) issued a Medical Assessment Certificate (MAC) following an assessment of the Worker with respect to a primary psychological injury sustained by him in the course of his employment with the Employer on 20 March 2018 (deemed) which assessed the Worker as suffering from 19% whole person impairment (WPI). Notably, Dr Takyar had assessed the Worker as Class 3 on the PIRS with respect to ‘self-care and personal hygiene’ representing a moderate impairment and Class 5 for ‘adaptation’ representing a total impairment. It is noted that liability for the Applicant’s claimed injury on 20 March 2018 (deemed) was not in dispute in a statutory context and it was only the degree of permanent impairment which was in issue.

In taking a history of the Worker’s level of functionality with respect to his self-care and personal hygiene, Dr Takyar noted that the Worker was living with three other housemates and had been living at his current residence for approximately 10 years. He reported he could occasionally cook by himself but often relied on food delivery services noting that he had never utilised such services prior to his injury. In addition, he reported that he tried to minimise the frequency of his grocery shopping because of anxiety such that he would shop on a less regular basis. He also noted that he attended to chores on a shared roster with his housemates.

With respect to the Worker’s adaptation, Dr Takyar concluded that the Worker had no current psychiatric capacity for any employment for which he has skill, training or experience because of the severity of his depressive symptoms and anxiety, which were said to be entrenched.

On 5 June 2020 the Employer lodged an appeal of the MAC of Dr Takyar pursuant to s327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on the following bases:

1. The assessment was made on the basis of incorrect criteria; and
2. The MAC contained a demonstrable error.

In summary, the complaints on appeal by the Employer were that Dr Takyar had assessed the Worker on the basis of an incorrect criteria and/or that the MAC contained a demonstrable error for the following reasons:

1. The Worker’s evidence provided to the AMS is inconsistent with the evidence on file, particularly in respect to his reported functioning in respect to the PIRS categories; and
2. The AMS had failed to appropriately consider the entirety of the evidence before him.

The Worker opposed the appeal and sought to admit further evidence from his treating psychiatrist, Dr Cotgia, dated 29 May 2020. Leave was granted to the Worker to rely on the report of Dr Cotiga in circumstances where it was not reasonably available to him prior to the examination with Dr Takyar.

The Outcome

In considering the appeal of the Employer, the Appeal Panel (the Panel) observed that an AMS is to conduct an independent assessment taking a history, conducting a mental state examination, make a diagnosis and having due regard to other evidence and medical opinion that is before them. The assessment is not based upon self-report alone.

The Panel considered that Dr Takyar, in making his assessment, had little to no regard to the evidence before him about the Worker’s activities, particularly the fact that he had been able to conduct an AirBNB operation at his residence. Dr Takyar is mandated not to rely on self-report alone and should have had due regard to the other evidence before him and a proper history taken, which was found to have not been done in this particular matter. Consequently, a re-examination was ordered by the Panel and was conducted by a member of the Panel, Professor Nick Glozier, on 12 November 2020.

On re-examination, Professor Glozier took the following salient history:

• The Worker’s residence consisted of a number of bedrooms in the main house with the owner living in a separate apartment in the garden. The Worker was responsible for organising new tenants and had been advertising on Gumtree and AirBNB for a number of years, at least since 2015.
• Since his injury, the Worker had managed to continue to host AirBNB guests, manage their bookings etc, up until the decimation of the market following the COVID outbreak.
• The Worker described being able to converse with guests and has continued to do so even since his injury, enjoying this activity. He would do check-ins and check-outs, and the cleaning and checking of the apartments once guests had left.
• The Worker is responsible for his own shopping, cooking, cleaning although occasionally people will make larger meals for everybody at the residence.
• It was noted that the Worker was highly motivated to take care of himself and does a weekly yoga class as well as performing home practice using downloaded applications on his phone.

In consideration of the above, Professor Glozier ultimately concluded that there did not appear to have been any significant impact on the Worker’s capacity to operate the AirBNB business as a result of his psychological condition.

On review of the PIRS assessment of Dr Takyar with respect to ‘self-care and personal hygiene’ and ‘adaptation’ he considered that these more appropriately ought to have been assessed as Class 2 (mild impairment) and Class 4 (severe impairment) respectively in light of all the material available. This reduced the Worker’s assessment from 19% WPI to 8% WPI attributable to his injury on 20 March 2018 (deemed).

Lessons

The determination of the Panel in this matter underlines the importance of obtaining objective evidence to challenge the self-report of individuals with respect to their degree of functionality following psychological injuries, particularly as part of a whole person impairment assessments.

In the matter of Ratewave had the Employer not had available to it evidence which challenged the accuracy of the Worker’s self-report, it would have been open to Dr Takyar, and subsequently Professor Glozier, to accept the Worker’s account. Had this been the case, the Employer would have thereafter been faced with the prospects of a common law claim for work injury damages in circumstances where, at 19% WPI, the Worker would have been taken to have satisfied the relevant threshold pursuant to s151H of the Workers Compensation Act 1987.

Therefore, when investigating claims for lump sum compensation for psychological injuries, it is important that the following documents are requested at the outset:

1. Clinical records from treatment providers;
2. Tax returns, group certificates and Notices of Assessment;
3. Bank statements and credit card statements for all domestic and foreign financial services providers.

The availability of this information on examination with an Medical Assessor and an Independent Medical Examination is critical to ensuring that they are fully equipped to make an accurate assessment, particularly in circumstances where assessors are not permitted to rely on self-report if there is evidence challenging the accuracy of such reports.

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.