DETERMINATION OF APPEAL PANEL	
	
CITATION:	Habak v State Emergency Services [2022] NSWPICMP 388	
		
APPELLANT:	Joseph Habak	
		
RESPONDENT:	State Emergency Service (SES) NSW	
		
Appeal Panel		
		
MEMBER:	Marshal Douglas	
		
MEDICAL ASSESSOR:	Dr Michael Hong	
		
MEDICAL ASSESSOR:	Dr Patrick Morris	
		
DATE OF DECISION:	6 October 2022	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Appellant worker assessed for permanent impairment resulting from primary psychiatric injury; appellant also suffered physical injury in same incident from which he suffered primary psychiatric injury; Medical Assessor (MA) found appellant did not suffer physical injury; MA did not have regard to Medical Assessment Certificate (MAC) of a differently constituted Appeal Panel who found the appellant suffered physical injury and assessed the appellant to have a permanent impairment resulting from that physical injury; Held – MAC revoked. 

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 24 May 2022 Joseph Habak, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Samson Roberts, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 April 2022.
2.	The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act): 
•	the MAC contains a demonstrable error.
3.	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 ground(s) of appeal on which the appeal is made. 
4.	The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.
5.	The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). 
RELEVANT FACTUAL BACKGROUND
6.	The appellant was employed by State Emergency Services (SES) NSW (the respondent) as a permanent employee, working in communications. On 3 September 2016 he was using a Motorola radio console when he heard an extremely loud sound. He experienced pain in both ears and became aware of loud tinnitus on both sides. He feared that electricity may have come through the console and he might be electrocuted. Subsequent to this acoustic event he experienced persisting ear pain, constant pounding noise and hyperacusis. 
7.	The respondent’s insurer organised for the appellant to be examined by ear, nose and throat surgeon Professor Paul Fagan. That examination occurred on 13 September 2017. In a report of 20 September 2017 Professor Fagan advised the insurer that the appellant had suffered “acoustic shock syndrome” as a consequence of the incident. Professor Fagan also advised that, based upon audiology conducted by audiologist Mrs Edit Segal, the appellant had 13% whole person impairment (WPI). Professor Fagan advised the insurer that the appellant had tinnitus secondary to his hearing loss.
8.	The appellant consulted solicitors. His solicitors organised for him to be examined by ear nose and throat physician Dr Joseph Scoppa on 14 November 2017. In a report of that same date Dr Scoppa provided the appellant’s solicitors, Dr Scoppa advised that he had attempted pure tone audiometry without success. As a consequence of being unable to obtain a reliable audiogram he recommended to the appellant’s solicitors that the appellant have cortical evoked response audiometry (CERA). Dr Scoppa declined to assess the appellant’s hearing loss, tinnitus and hyperacusis until that testing had been done.
9.	On 29 March 2018 ear nose and throat surgeon Dr Brian Williams conducted a CERA examination. The appellant’s solicitors provided the audiogram from that examination to Dr Scoppa under cover of a letter dated 1 May 2018 and requested Dr Scoppa provide a supplementary report on the appellant. Dr Scoppa did so on 5 May 2018. In that report Dr Scoppa advised that the CERA audiogram revealed a hearing loss that Dr Scoppa considered was probably caused by cochlear injury the appellant suffered in the acoustic event on 3 September 2016. Dr Scoppa also considered that the appellant had developed tinnitus and hyperacusis secondary to his posttraumatic hearing loss. Dr Scoppa assessed the appellant had 12% WPI from his loss of hearing and tinnitus. 
10.	The appellant’s solicitors also organised for the appellant to be examined by consultant psychiatrist Dr Christopher Canaris. That occurred on 1 February 2019. In a report of 11 February 2019 to the appellant’s solicitors, Dr Canaris advised that the appellant showed “evidence of both a primary and secondary psychological injury”. Dr Canaris advised that those injuries “are in fact indistinguishable”. Dr Canaris diagnosed the appellant had Posttraumatic Stress Disorder, or alternatively a Major Depressive Disorder with prominent anxiety. Dr Canaris advised that he assessed the appellant to have 22% WPI as a consequence of psychological injuries.
11.	On 12 June 2019 the appellant’s solicitors wrote to the respondent advising it that the appellant intended to initiate proceedings for work injury damages and that “in addition to the claim for acoustic trauma (which is being assessed and will be made shortly) we now make a claim for 22% WPI in the sum of $56,860”. That was obviously a reference to a claim the appellant was making for compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act). The appellant’s solicitors enclosed with their letter a copy of Dr Canaris’s report of 11 February 2019, amongst other documents. 
12.	The respondent’s solicitors thereupon organised for the appellant to be examined by consultant clinical and forensic psychiatrist Dr Glen Smith, which occurred on 22 August 2019. In a report of 24 August 2019 to the respondent’s solicitors Dr Smith advised that, in the context of the appellant being exposed to very loud noises in September 2016 and suffering hearing loss, tinnitus and persistent hypersensitivity to noise, the appellant developed severe emotional distress and marked depressive symptoms. Dr Smith advised that he had diagnosed the appellant to have Persistent Depressive Disorder with Persistent Major Depressive Episode with Anxious Distress. Dr Smith advised that “the main causative events that have given rise to his psychiatric disorder are the persistent pain, the hypersensitivity to noise, hearing loss, the impact on his relationship, the impact on his ability to work, and his ability to parent”. Dr Smith advised that in his opinion the appellant had not sustained a primary psychological injury and had sustained a significant secondary psychological injury in the context of his physical injury.
13.	On 12 September 2019 the insurer wrote to the appellant, care of his solicitors, notifying him under s 78 of the 1998 Act that it disputed liability to pay him compensation for permanent impairment resulting from his psychological injury. The reasons it advised the appellant for its decision included that Dr Smith did not believe he had suffered a primary psychological injury but had suffered a secondary psychological injury in the context of his audiological injury. The Appeal Panel notes that s 65A(1) of the 1987 Act stipulates that no compensation is payable for a permanent impairment that results from a secondary psychological injury - and hence the insurer’s decision.
14.	On 28 November 2019 Dr Williams carried out a repeat CERA audiogram on the appellant. On 18 November 2019 the appellant’s solicitors wrote to Dr Scoppa requesting a further supplementary report on the appellant and provided Der Scoppa with a copy of the repeat CERA audiogram. On 30 November 2019 Dr Scoppa wrote to the appellant’s solicitors advising that “there is objective evidence that his hearing loss has deteriorated in both ears since my initial assessment of 2017”. He advised that he assessed the appellant’s WPI from hearing loss and tinnitus to be 19%. 
15.	It would seem that the appellant’s solicitors provided that report to the respondent’s solicitors, who arranged for the appellant to be examined again on 22 January 2020 by Dr Fagan. Dr Fagan reviewed numerous audiograms the appellant had undergone, including those Dr Williams performed. On 13 March 2020 Dr Fagan wrote to the respondent’s solicitors advising them that he did not believe there was an organic cause to explain the appellant’s hearing loss or tinnitus. Professor Fagan considered that the appellant had experienced “a finite episode of acoustic shock”.
16.	On 20 March 2020 the respondent’s insurer again wrote to the appellant notifying him under s 78 of the 1998 Act that it denied it was liable to pay him compensation for any permanent impairment from his injury of Industrial Deafness. It advised him this was because he did not have a permanent impairment from that injury that exceeded 10% as is required under s 66(1) of the 1987 Act for him to be entitled to compensation for permanent impairment from an injury. The insurer provided fuller reasons for its decision that also included it preferring the report Professor Fagan than the opinion of Dr Scoppa. 
17.	The appellant subsequently initiated proceedings in the Personal Injury Commission (Commission) seeking a determination of his claim for compensation under s 66. In his application he particularised that he had 19% WPI due to “hearing” and 22% WPI due to “psychiatric and psychological disorders”. The Appeal Panel notes that in accordance with s 65A(4) of the 1987 Act that in the circumstance where a worker receives a primary psychological injury and a physical injury in the same incident the worker is only entitled to receive compensation under s 66 for impairment resulting from one of those injuries and that the degree of permanent impairment from each injury is to be assessed separately and the worker will receive compensation for the impairment from the injury that results in a greater amount of compensation being paid to the worker.
18.	It is apparent that the medical dispute between the parties relating to the appellant’s WPI from his injury of hearing loss and tinnitus was referred firstly to Medical Assessor Kenneth Howison. Neither the referral to Medical Assessor Howison nor the MAC he issued is before the Appeal Panel. However, the appellant appealed against the MAC that Medical Assessor Howison issued and the Appeal Panel has had regard to the Appeal Panel’s determination of that appeal. 
19.	The Statement of Reasons the Appeal Panel published for its decision revealed that Medical Assessor Howison considered the appellant did not sustain any WPI as a result of the injury of hearing loss on 3 September 2016. The Appeal Panel found that the MAC Medical Assessor Howison issued contained a demonstrable error because Medical Assessor Howison had not obtained a reliable audiogram and had relied on the findings of Dr Scoppa which he used to conclude the appellant did not have any WPI as a result of the injury. That Appeal Panel appointed one of its members, namely Medical Assessor Payten, to re-examine the appellant. Following Medical Assessor Payten’s re-examination, the Appeal Panel revoked the MAC Medical Assessor Howison had issued and issued a fresh MAC in which it certified the appellant had 13% WPI from an injury of hearing loss.
20.	Thereupon the matter was referred to member Mr Richard Perrignon to determine whether the appellant suffered a primary psychological injury as a result of the acoustic event on 3 September 2016. On 21 January 2022 Member Perrignon made the following findings and determination that were recorded in a Certificate of Determination:
 “1. 	Finding that the applicant suffered a primary psychological injury as a result of the events of 3 September 2016.
2. 	Noting the parties’ agreement that the applicant also suffered a secondary psychological injury as a result of the events of 3 September 2016, the matter is remitted to the President for referral to a medical assessor to assess whole person impairment (psychological) as a result of injury on 3 September 2016.
3. 	The Registry is requested to furnish the medical assessor with the following documents:
a. 	Application to Resolve a Dispute
b. 	Reply
c. 	Report of Ms Milne, psychologist, dated 15 Nov 21.”
21.	A delegate of the President on 28 February 2022 referred the following medical dispute to MA Roberts to assess:
 “1. MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
 	the degree of permanent impairment of the worker as a result of an injury (s319(c))
 	whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
 	whether impairment is permanent (s319(f))
 	whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 3 September 2016
Body part/s referred: Psychological
Method of assessment: Whole Person Impairment”
22.	As mentioned Medical Assessor Roberts issued a MAC on 29 April 2022. He assessed the appellant had 0% WPI from a psychiatric injury. 
MEDICAL ASSESSMENT CERTIFICATE
23.	Medical Assessor Roberts examined the appellant on 23 March 2022. The examination was done remotely using the software platform Zoom. Medical Assessor Roberts obtained a history from the appellant regarding the incident on 3 September 2016, the treatment that the appellant received and the physical and psychological symptoms the appellant presently suffers. Medical Assessor Roberts, under the heading “summary of injuries and diagnoses” said the following:
“The history presented by Mr Habak reflected his very significant distress characterised by depressed mood, anger and anxiety in response to the impact on his career and personal circumstances arising as a result of symptoms attributed to harm due to a very loud noise being transmitted into his headset through faulty equipment in the workplace.
In his Medical Assessment Certificate, Dr Kenneth Howison concludes that no physical pathology could be ascribed to the work incident. Consideration of a diagnosis of Posttraumatic Stress Disorder relies on the nature of the precipitant event. The type of incidents fulfilling Criterion A of the DSM-5 diagnostic criteria, namely events necessary to make the diagnosis ‘include, but are not limited to, exposure to war as a combatant or civilian, threatened or actual physical assault (eg physical attack, robbery, mugging, childhood physical abuse), threatened or actual sexual violence (eg, forced sexual penetration, alcohol/drug-facilitated sexual penetration, abusive sexual contact, noncontact sexual abuse, sexual trafficking), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war, natural or human made disasters, and severe motor vehicle accidents.’
In the absence of a traumatic incident consistent with Criterion A of the DSM-5 criteria, a diagnosis of Posttraumatic Stress Disorder cannot be made. Unlike DSM-IV, DSM-5 requires that the incident is of an objectively traumatic nature and therefore subjective distress in the absence of an objective trauma does not fulfil this Criterion. Notwithstanding Mr Habak’s experience of a sudden very loud noise, Dr Howison’s conclusions do not reflect a Criterion A trauma.
Having regard for the history presented by Mr Habak, the DSM-5 diagnosis that best explains his condition is Conversion Disorder (Functional Neurological Symptom Disorder). The DSM-5 diagnostic criteria are fulfilled on the basis that he has experienced symptoms of altered sensory function. Objective clinical findings have demonstrated incompatibility between the symptoms described by Mr Habak and any recognised neurological or medical condition. The physical symptoms described by Mr Habak are not attributable to another medical condition nor are they attributable to another mental disorder and he has experienced clinically significant distress in addition to impairment in social and occupational functioning.
Conversion Disorder (Functional Neurological Symptom Disorder) is one of several psychiatric diagnoses in the category of Somatoform Disorders. This represents a primary psychiatric diagnosis which, according to the Guidelines, cannot be assessed using the Psychiatric Impairment Rating Scale. Therefore, there is no assessable psychiatric diagnosis.”
24.	Medical Assessor Roberts said that his assessment of the appellant’s WPI was based on the history he obtained from the appellant, the appellant’s presentation during mental state examination, the documents he had reviewed, and his specialist understanding of the nature of the diagnosed condition. It seems that Medical Assessor Roberts was not provided with the Appeal Panel’s decision to set aside the MAC Medical Assessor Howison had issued or the MAC that the Appeal Panel issued in substitution for that. Medical Assessor Roberts specifically noted that he took into consideration the MAC Medical Assessor Howison had issued. Medical Assessor Roberts observed that Medical Assessor Howison was unable to identify any injury attributable to the incident on 3 September 2016. 
25.	Medical Assessor Roberts noted that Dr Canaris, Dr Smith and psychologist Sam Borenstein had diagnosed the appellant to have Post-traumatic stress disorder. Medical Assessor Roberts said that those clinicians made that diagnosis unaware that there had been a finding that there is no physical pathology to account for the symptoms Mr Habak described. Medical Assessor Roberts said that “this information is of fundamental relevance in forming an understanding of the nature of the subject incident and the nature of the psychiatric response to it”. 
26.	As indicated above in [23], based on Medical Assessor Roberts’ acceptance of Medical Assessor Howison’s finding that there was no physical pathology arising from the incident on 3 September 2016, Medical Assessor Roberts diagnosed the appellant to have Conversion Disorder which, according to the Guidelines, cannot be assessed using the Psychiatric Impairment Rating Scale (PIRS). Hence, Medical Assessor MA Roberts assessed the appellant to have 0% WPI from his psychiatric injury.
PRELIMINARY REVIEW
27.	The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
28.	As a result of that preliminary review, the Appeal Panel determined that it was necessary for the appellant to undergo a further medical examination. This is because both parties agreed that the MAC contained a demonstrable error. For reasons the Appeal Panel will explain below, the Appeal Panel found that was the case. As a consequence of that, the Appeal Panel would need to reassess the medical dispute that had been referred to Medical Assessor Roberts for assessment. The Appeal Panel considered it would need to re-examine the appellant in order to be able to perform that task.
29.	The Appeal Panel appointed Medical Assessor Michael Hong of the Appeal Panel to conduct that examination, which he did on 16 September 2022 by video. Medical Assessor Hong subsequently reported his findings to the Appeal Panel and the relevant parts of his report are set out below under Findings and Reasons.
EVIDENCE
30.	The Appeal Panel has before it all the documents that were sent to Medical Assessor Roberts   for the original medical assessment and has taken them into account in making this determination. 
SUBMISSIONS 
31.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
32.	In summary, the appellant submitted that Medical Assessor Roberts failed to have regard to the determination of Member Perrignon that he suffered a primary psychological injury. The appellant submitted that the Certificate of Determination that recorded Member Perrignon’s determination was not forwarded to Medical Assessor Roberts. 
33.	The appellant further submitted that Medical Assessor Roberts relied upon the MAC that Medical Assessor Howison issued which a differently constituted Appeal Panel had revoked and which Appeal Panel issued a new MAC certifying the appellant had 13% WPI from an injury of hearing loss.
34.	The appellant submitted that Medical Assessor Roberts utilised DSM-V to come to his diagnosis of Post-traumatic stress disorder whereas the Medical Assessor ought to have adopted the criteria in 
DSM-IV as Dr Smith had done. The appellant submitted that Medical Assessor Roberts failed to consider a differential diagnosis of Persistent Depressive Disorder with Persistent Adjustment Disorder and Anxiety Disorder as Dr Smith had done. The appellant submitted that Medical Assessor Roberts provided no reason for not considering that diagnosis. 
35.	In reply, the respondent accepted that the MAC contained a demonstrable error because Medical Assessor Roberts did not have regard to the determination of Member Perrignon and had relied upon the revoked MAC that Medical Assessor Howison had issued rather than the MAC the differently constituted Appeal Panel issued. The respondent submitted however that Medical Assessor Roberts made no error in relying upon DSM-V to make a diagnosis. The respondent further submitted that an MA is required to assess a worker based upon his or her clinical skills and judgment and does not make an error by not coming to the same diagnosis that an independent medical examiner may have. The respondent submitted that because Medical Assessor Roberts made an error by relying upon the revoked MAC and not having regard to the determination of Member Perrignon with respect to injury that the MAC should be revoked and a new assessment take place.
FINDINGS AND REASONS 
36.	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. 
37.	In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
38.	The referral issued to Medical Assessor Roberts noted that he was provided with a copy of the Certificate of Determination that recorded Member Perrignon’s finding that the appellant suffered a primary psychological injury. Further, it is apparent from the MAC that Medical Assessor Roberts proceeded with the assessment of the appellant’s permanent impairment on the basis that the appellant had suffered a primary psychological injury, namely Conversion Disorder. 
39.	Critical to Medical Assessor Roberts’ diagnosis the appellant had Conversion Disorder was his acceptance of the findings of Medical Assessor Howison that the appellant had no WPI from a physical injury. That MAC was subsequently overturned. A differently constituted Appeal Panel overturned that MAC and found that the appellant suffered a noise induced hearing loss and severe tinnitus from the acoustic event on 3 September 2016 and also suffered acoustic shock which manifested in symptoms of hyperacusis, pain in the appellant’s ear, headache, vertigo, anxiety and depression. 
40.	Medical Assessor Roberts’ diagnosis that the appellant had Conversion Disorder is accordingly wrong and as a consequence the MAC contains a demonstrable error.
41.	As mentioned, because the MAC contains a demonstrable error the Appeal Panel must revoke it and consequently reassess the medical dispute that has been referred to Medical Assessor Roberts for assessment. The report of Medical Assessor Hong provided the Appeal Panel included the following:
“1.	HISTORY RELATING TO THE INJURY
•	Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: 
Mr Habak had started work at SES in 2009. He has not performed work after 2017. He receives Job seeker payment from Centrelink, and said that he has always had medical exemptions from job seeking due to nausea, vertigo and his psychological symptoms.
He was a team leader at SES and worked fulltime. Normally he would perform 12-1/2-hour shifts. He was a rescue communication officer and worked in the state headquarters and was responsible for the entire New South Wales. They received rescue jobs from the police, the ambulance service, generally about missing persons or fatal accidents. He said that it was important for him to capture all the critical information, and they wore an earmuff headset to listen to the radio messages. 
He recalled on 3 September 2016, he was working in a night shift, it was 21:06. There were two motor vehicle accidents and the police called in and reported a fatality. He knew it was going to be a long job, because when a fatality was involved it usually took a few hours to process it. He was listening attentively and said out of the blue there was a massive sharp sound in his building level. It was only some time later he realised that the sound came from the Motorola radio console. He recalled he grabbed his ears and threw the headset away and he fell to the ground. He recalled all the other workers in the rescue pod were grabbing their ears, and they were affected by this sudden loud sound. He said he still remembers the look on his colleagues’ face, and he looked like a ghost.
Mr Habak explained there had been problems with the console before, but never a loud sharp sound to that severity. He said that the console was meant to be replaced and there was funding available already by 2013, but because of management problems it was not replaced. He said there was also sound shielding that was faulty to allow this acoustic incident to happen. 
He recalled he saw the doctor not long after that incident, and his doctor told him that his ear canal was full of blood.
Mr Habak recalled being fearful immediately after he realized the sound came from the console, and thought that the electricity had come through the console and he was going to be electrocuted. 
He said because of his persisting ear pain, the constant pounding noise and hyperacusis, he spiralled and developed severe depression and anxiety. He said the pounding noises never alleviated overtime. He recalled that his son was only a baby at that time, and even his son’s baby voice sounded different, like a robot or a machine, and this was very upsetting for him.
He was off work maybe six to a month, then he returned to work for a few months and recalled he struggled because it was noisy, he was having piercing pain in his ears, he was suffering vertigo and balance problems. He was doing maybe three hours a day, two days a week and could not cope, and subsequently he was medically retired. 
I asked Mr Habak whether the initial shock and the worry about electrocution had a bigger impact, or the subsequent painful sounds that affected everything he did and caused him to ‘spiral’ into depression, has a bigger impact on his psychological health now. He said he really could not be certain because both of them have major impact, and these have not changed over time.
•	Present treatment: 
Mr Habak is taking:
•	Fluvoxamine 50 mg
•	Amitriptyline 10 to 20 mg
•	Chlorpromazine 5 to 10 mg
•	Setear 
•	Moduretic
•	Ondansetron as needed
•	Serc as needed
•	Diazepam, 2 mg at night 
He has been consulting Sue Milne, psychologist, for 4 to 5 years recently every 2 weeks. He had an assessment with a psychiatrist regarding an admission, but there was no approval and he has not had further psychiatrist assessment or treatment.
•	Present symptoms: 
Ever since the incident, Mr Habak said he has not been the same person and said that he lost emotional attachment to his wife and children. He stated nobody understands the constant piercing pain and the pounding noise in his ears. He said that he cannot walk outside, because the wind against his face creates a whooshing sound in his ears and cannot tolerate it. He cannot run or jump because of balance problems. 
He reported a loss of intimacy in the marital relationship. 
He avoids situations that will increase his anxieties, e.g. noisy places and crowded places, machines and devices that cause vibration, as these would increase his anxiety and heighten his sound sensitivity. 
He reported having depressed mood. 
He reported an inability to enjoy things he would normally enjoy. 
He described being forgetful and uses reminders on his phone.
He is easily fatigued. 
He gained 30kg in the first 2 to 3 years after the subject incident, and his weight has been stable since. 
He felt he has lost confidence. 
He has suicidal thoughts and he has never attempted suicide. 
He reported having sleep problems; he has nightmares at times and reported the noises are there 24/7, even in his sleep and therefore he cannot sleep well. 
He has panic attacks.
He has been irritable. 
He avoids social situations due to his anxieties and due to sound sensitivity. 
•	Background history:
Mr Habak was born in Australia and grew up with his parents, and was the second of four siblings. He grew up in Wollongong. He does not have a family history of psychiatric illness. He does not have recreational drug or alcohol problems. He has no other relevant health issues.
•	Social activities/ADL: 
Mr Habak is 47. He is living with his wife who works at Department of Communities and Justice. They have a 9-year-old son and 7-year-old daughter.
He spends time on the lounge and would lie down regularly during day time. He enjoys spending some time in the garden and on the phone. He avoids being out. 
Previously, he was very fit and active. He said he played cricket all his life. He was doing fitness training with his wife at Zest Fitness. He tried to do training after his injury, but said that he could not do the box jump, he kept falling over and realised that he was a liability in the gym. He said he had to sell his buggy, his boat and 4-wheel drive. He cannot even take a walk on a beach because the waves cause the pounding noise to become worse, and he cannot tolerate it.
He stated sometimes he opens the door for a bit of fresh air, but then cannot tolerate the background noises. There might be sounds of cars and buses, and everything is ‘amplified in my ears’. His hearing has been affected and he has hearing aid, and he said that he also has tinnitus, ringing, whistling and a drum-like sound, especially when it is quiet at night.
He cannot watch the children play sports or play soccer because the other parents would yell during the games. He cannot do the school pickup because he cannot tolerate being near cars.
He cannot go to the cinema and has not gone for about six years due to the noise.
He stated he wants to take his wife to the club or a restaurant, to celebrate their wedding anniversary, to go out with the children, but he cannot do any of these recreational activities as he cannot tolerate the noise in restaurants and public places. 
He has not gone to any of his cousins’ weddings, and said now people do not invite to him anymore. 
His parents-in-law visit, but they have been coming less as he does not want to socialise with people. One of his brothers live in Sydney, he tried to drive to visit him but he had to pull over five times on the road, and so stopped driving to Sydney. He said the most he can manage is probably about 10 or 15-minutes driving now.
He has another brother living nearby, but he does not really see him either and explained that his brother has two noisy autistic kids, and his brother knows that he cannot handle the noise. The last time he had contact with that brother was probably in Easter.
He has been married since 2010, and said that they live under the same roof but they are not properly married anymore because he gets angry and yells sometimes. He said he cannot help her with things and she has to do everything.
His wife has always done the housework. He avoids shopping centre or shopping as even the air-conditioning sounds are too much for him.
2.	FINDINGS ON PHYSICAL EXAMINATION
Mr Habak was assessed by video. He was at home and his wife Lorraine Habak was present during the assessment. The assessment took 60 minutes.
Mr Habak had short greying hair and a light beard. He engaged well with the video assessment process. There was no psychomotor slowing. He gestured regularly. He presented as emotionally fragile and distressed, as he discussed the impact from the acoustic incident on his life. He was moderately restricted in his affect range and reactivity. He smiled and laughed briefly. He discussed he is not the same person, not the husband or the father he was. 
Mr Habak provided a coherent history and elaborated on various aspects of his history as needed. He was consistently focused throughout the assessment. He did not perseverate and there was no set-shifting difficulty. He demonstrated reasonable speed and pace. 
3.	SUMMARY
•	summary of injuries and diagnoses: 
Mr Habak had no prior psychiatric injury. He reported after the acoustic incident on 3 September 2016, he developed immediate fear and worried that he could be electrocuted. He described symptoms which evolved into Post-traumatic stress disorder. Subsequently his anxiety and depression were further increased, and he said it ‘spiralled’ because of the ongoing pounding noises and sensitivity to any kind of sounds when he is out, and he is no longer able to do the things he normally he would do with the family.
•	consistency of presentation
Mr Habak presented in a consistent manner.”
42.	The Appeal Panel observes from Medical Assessor Hong’s report that the appellant’s initial psychological response to the acoustic event on 3 September 2016 involved significant fear. The appellant re-experiences the incident and his fear has not significantly improved. The Appeal Panel considered various diagnoses that the appellant’s treating clinicians and independent examiners had made, including Adjustment Disorder, Post-traumatic stress disorder, Persistent Depressive Disorder and Major Depressive Disorder. The Appeal Panel observes from Medical Assessor Hong’s report that the appellant’s initial psychological response to the acoustic event on 3 September 2016 involved the appellant experiencing significant fear. The Appeal Panel notes that the appellant re-experiences the incident and that his fear has not significantly improved. The Appeal Panel considers that the appellant’s symptoms have evolved into Post-traumatic stress disorder. 
43.	The Appeal Panel also observes from Medical Assessor Hong’s report that the appellant described major anxiety symptoms related to sound sensitivity, which generalised to almost everything the appellant does and that the appellant has significant symptoms of anxiety. These symptoms stem from the ongoing physical symptoms the appellant experienced from the acoustic event. The Appeal Panel observes that the appellant’s worrying thoughts regarding his physical condition and his somatic symptoms are consistent with the additional psychiatric diagnosis and reach the criteria for a generalised Anxiety Disorder. 
44.	The Appeal Panel considers that the impairment the appellant described and his avoidant behaviour related to sound “including relatively minor sound that other people would not be concerned with” and not just a fear of electrocution represents an additional impairment beyond the impairment caused by Post-traumatic stress disorder.
45.	The Appeal Panel assesses the appellant’s psychiatric impairment under PIRS as follows for the following reasons:
PIRS Category	Class	Reason for Decision	
Self-care and personal hygiene	2	The appellant has been neglecting his self-care. He does not shower regularly as the water makes the noise worse. He said he does not care how his hygiene is. He showers without prompting, but not daily. He skips meals and maintains a steady weight. 	

			
Social and recreational activities	3	The appellant used to have an active social life and went out with his friends regularly. 
He stopped attending social gatherings and weddings, as he is anxious and has no motivation to go.
He does not eat out with his friends or go to restaurants.
His physical injuries and pain are not assessable in the PIRS and set aside.	

			
Travel	2	The appellant is anxious and is avoidant of crowded places.
He is independent in travel around familiar area.	
			
Social functioning	2	The appellant’s relationship with his wife has been strained as he starts arguments with her.
He is anxious and socially avoidant, and no longer has contact with his friends.
The relationship with his children has deteriorated as well. 	

			
Concentration, persistence and pace	2	The appellant described having impaired concentration. He does not read books because if he remains in the same spot the pounding in his ear gets worse. He does not engage in intellectually demanding tasks day-to-day. 	

			
Employability	5	The appellant attempted to return to work and could not tolerate being at work.
From a psychological perspective, he has no work capacity as he is highly avoidant and anxious. 	

			
46.	The Appeal Panel observes that the median of those scores is 2 and the aggregate of those scores is 16 and that in accordance with Table 11.7 of the Guidelines that equates to 9% WPI.
47.	Section 65A(2) of the 1987 Act stipulates that when assessing the degree of permanent impairment of a worker resulting from a primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychiatric injury. Section 65A(5) defines primary psychological injury to be a psychological injury that is not a secondary psychological injury. Secondary psychological injury is defined within that subsection to mean a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury. 
48.	As the Appeal Panel has discussed above, it is of the view that the appellant suffered a psychological injury as a consequence of his sensitivity to sound that followed the physical injury he suffered in the acoustic event on 3 September 2016. That injury is in addition to the Post-traumatic stress disorder he suffered as a consequence of the particular event. Were the appellant not to have suffered the second psychiatric injury, which has developed into a generalised anxiety disorder, his present psychiatric impairment would not be as great. The symptoms he has from each injury, which is from the Post-traumatic stress disorder and the Generalized Anxiety Disorder, intermingle, but the Generalized Anxiety Disorder that the appellant has suffered as a consequence of his physical injury has made his present psychiatric impairment worse. Saying that another way, but for his Generalized Anxiety Disorder the degree of his permanent impairment would not be as great. A part of his impairment and psychiatric symptoms result from his Generalized Anxiety Disorder and, consequently to the extent it does, the Appeal Panel must disregard it. 
49.	The Appeal Panel considers that the appellant’s Post-traumatic stress disorder symptoms and impairment are significant and existed before his secondary psychiatric injury. In that circumstance the Appeal Panel considers that the primary psychological injury has caused a greater impairment for the appellant than his secondary psychological injury, however it is not the case where the secondary psychological injury has had a small effect only. In that circumstance the Appeal Panel considers that two-thirds of the appellant’s present permanent impairment from his psychiatric condition ought to be attributed to the primary psychological injury in the form of Post-traumatic stress disorder and one-third to the secondary psychological injury in the form of Generalized Anxiety Disorder.
50.	For these reasons, the Appeal Panel has determined that the MAC issued on 29 April 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 PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number:	W5260/20	
Applicant:	Joseph Habak	
Respondent:	State Emergency Service (SES) NSW	
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Samson Fredrick Roberts and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI) 
PERSONAL INJURY COMMISSION
MEDICAL ASSESSMENT CERTIFICATE
Table 2 - Assessment in accordance with AMA5 and NSW workers compensation guidelines for the evaluation of permanent impairment for injuries received after 1 January 2002
This Certificate is issued pursuant to s 325 of the Workplace Injury Management and Workers Compensation Act 1998.Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides
	% WPI 	WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)	
1. Psycho-logical 	10/12/2019	11
pages 55-60	14	6%	0
	6%	
Total % WPI (the Combined Table values of all sub-totals)	6%