Adler v State of New South Wales (Royal North Shore Hospital HealthShare NSW)

DETERMINATION OF APPEAL PANEL
CITATION:	Adler v State of New South Wales (Royal North Shore Hospital - HealthShare NSW) [2023] NSWPICMP 190
APPELLANT:	Sarah Ann Adler
RESPONDENT:	State of New South Wales (Royal North Shore Hospital-HealthShare NSW)
Appeal Panel
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	8 May 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether any error with Medical Assessor’s (MA) ratings of appellant’s impairment in psychiatric impairment rating scale (PIRS) categories of self-care and personal hygiene and concentration, persistence and pace; whether any error in MA making one third deduction under section 323(1); Held –MA based assessment on correct criteria and Medical Assessment Certificate (MAC) did not contain a demonstrable error; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 March 2023, the appellant, Sarah Ann Adler, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Michael Hong who issued a Medical Assessment Certificate (MAC) on 16 February 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
·the assessment was made on the basis of incorrect criteria, and
·the MAC contains a demonstrable error.
The 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.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment on 28 August 2017 with the respondent, State of New South Wales, working as a deputy manager of security at the Royal North Shore Hospital. She was re-assigned on 11 February 2018 to the position of security officer. She was thereafter subjected to sexual harassment and assault from a male colleague who had been assigned to train her in her new role. She suffered psychological injury due to this.
The appellant’s solicitors arranged for consultant psychiatrist and physician Dr Ben Teoh to examine the appellant on 29 July 2021. He provided a report to her solicitors on 3 August 2021 in which he advised he assessed the appellant had 15% whole person impairment (WPI) from her injury. On 18 January 2022, the appellant’s solicitors wrote to the respondent’s insurer notifying it that the appellant claimed compensation of $35,100 from it pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), for 15% WPI from her injury. The appellant’s solicitors enclosed a copy of Dr Teoh’s report with their correspondence.
The insurer’s solicitors thereupon organised for the appellant to be examined on 14 April 2022 by psychiatrist Dr Yajuvendra Bisht. Dr Bisht in a report dated 24 May 2022 advised he assessed the appellant’s permanent impairment from her injury was 14% WPI. A medical dispute consequently arose regarding the degree of the appellant’s permanent impairment from her injury.
The insurer notified the appellant by letter dated 7 June 2022 that it disputed liability to pay her compensation under s 66 of the 1987 Act because her permanent impairment from her injury was less than 15% WPI. The insurer also advised the appellant that by virtue of s 65A(3) of the 1987 Act her permanent impairment needed to exceed that threshold for her to be entitled to compensation under s 66 of the 1987 Act.
The appellant then initiated proceedings in the Personal Injury Commission (Commission) seeking determination of her disputed claim for compensation. A delegate of the President referred the matter to the Medical Assessor. As said, the Medical Assessor issued the MAC on 16 February 2023, in which he certified that the appellant’s permanent impairment from her injury was 11% WPI.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found, firstly, that the Medical Assessor assessed the appellant’s permanent impairment based on correct criteria and, secondly, that the MAC did not contain a demonstrable error. Consequently, the Appeal Panel is unable nor needs to examine the appellant[1].
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

EVIDENCE

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

MEDICAL ASSESSMENT CERTIFICATE

The appellant’s appeal relates to, firstly, the Medical Assessor’s assessment of her impairment in the Psychiatric Impairment Rating Scale (PIRS) categories of “self care and personal hygiene” and “concentration, persistence and pace”, secondly, the deduction the Medical Assessor made under s 323(1) of the 1998 Act for the proportion of her permanent impairment that he considered was due to pre-existing conditions and, lastly, the Medical Assessor not increasing the percentage of her WPI under [1.32] of the Guidelines for the affects of treatment.
The Medical Assessor assessed the appellant’s impairment in the PIRS category of self care and personal hygiene as class 1, which is no impairment or a minor deficit attributable to normal variation within the general population. The reasons the Medical Assessor provided for his assessment were these:
“Ms Adler eats regularly and showers daily without prompting or assistance. She cooks and does household chores. Sometimes, she may skip meals but she doesn’t generally not.
There is no deficit or minor deficit, attributable to the normal variation in the general population.”
The Medical Assessor asked the appellant about her eating disorders and her managing her weight. He noted that the appellant had eating disorders when she was young, and that she was presently maintaining a stable weight.
The Medical Assessor assessed the appellant’s impairment in the PIRS category of concentration, persistence and pace as class 2, that is a mild impairment. His reasons for doing so were:
“Ms Adler reported having reduced concentration. She stated that with Dexamphetamine, her concentration was better and she reads books, e.g. fiction or non-fiction books, self help books. She can read for 40-60 minutes. Her vision has deteriorated and she needs new glasses, and this is not assessable in the PIRS.
Her mental state examination is consistent with 1 or 2.”
The Appeal Panel observes that the Medical Assessor’s findings from his physical examination of the appellant included that the appellant spoke spontaneously and readily and was able to provide a coherent history and elaborate on various aspects of history. The Medical Assessor recorded that the appellant was consistently focused throughout the assessment and did not perseverate and that she spoke with a steady pace.
The Medical Assessor under a sub-heading “Present Treatment” recorded that the appellant’s present medication consists of Dexamphetamine 5-10mg daily and Ativan once a week. The Medical Assessor, as indicated above, did not make any adjustment for the effects of treatment when assessing the appellant’s permanent impairment from her injury. The Medical Assessor said that “Ms Adler’s treatment has had negligible effects in symptomatic relief and in functional improvement, and there is no substantial elimination of her impairment”. As already noted, the Medical Assessor recorded that the appellant considered her concentration was better after she commenced taking Dexamphetamine.
The Medical Assessor considered that the appellant had a pre-existing condition and that this condition directly contributed to the appellant’s post-injury permanent impairment. He set out the appellant’s previous psychiatric history in the MAC, which included depression, anxiety, anorexia and bulimia, a suicidal attempt, panic attacks and inattention problems. The Medical Assessor also noted that the appellant had lifelong attention deficit hyperactivity disorder (ADHD) symptoms and that she had recently been diagnosed with ADHD.
The Medical Assessor said that the appellant had “a significant pre-existing psychiatric injury that was present to a degree all throughout her life and she has had extensive treatment with pharmacotherapy and psychological treatment over the years”. The Medical Assessor said that the appellant “remained symptomatic in the years leading up to her work injury”.
The Medical Assessor briefly outlined in the MAC histories that had been obtained by psychiatrists who had examined the appellant on behalf of the respondent, which dealt with the appellant’s past psychiatric symptoms and diagnoses.
The Medical Assessor also noted that one of the appellant’s treating psychiatrist, namely Dr Kim Nguyen, obtained a background history when the appellant consulted him on 21 May 2019 of the appellant having generalised anxiety disorder that had got worse since 11 February 2018. The Medical Assessor noted that the history Dr Nguyen obtained also included that the appellant had been an excessive worrier since primary school and that she had suffered depression, anxiety and panic attacks. The Medical Assessor also noted that Dr Nguyen’s history included the appellant suffering low mood in 2012 after her former husband was unfaithful, at which time the appellant did a two-week course at the Pacific Private Hospital. The Medical Assessor noted that the history Dr Nguyen obtained also included the appellant’s father being physically and emotionally abusive to her. The Medical Assessor noted that Dr Nguyen diagnosed the appellant had post-traumatic stress disorder (PTSD), panic disorder and agoraphobia.
The Medical Assessor noted that another of the appellant’s treating psychiatrists, namely Dr David Hall, obtained a history from the appellant that she had panic attacks at 16 and sporadically over the years for most of her life, and that these had increased to two to three times a week subsequent to her injury.
The Medical Assessor detailed in the MAC events that her general practitioner (GP) had recorded in his notes relating to the appellant’s psychiatric history prior to her injury. These included that:
a.     on 18 July 2017 the appellant had anxiety and depression but no current suicidal thoughts;
b.     the GP prescribing Ativan for anxiety attacks;
c.     the appellant ceasing to see her psychologist because he was unhelpful;
d.     the appellant not being able to afford to see psychiatrist Dr Jovnova for support and counselling;
e.     her GP advising her to go to the emergency department if suicidal;
f.     the appellant was seeing a psychologist and having CBT in April 2017 and March 2017;
g.     the appellant in November 2016 having depression and anxiety and having been seen by three psychiatrists and a psychologist and taking Ativan and Cymbalta;
h.     the appellant experiencing anxiety in September 2015 and having a mental health care plan prepared in August 2015;
i.     the appellant trying to see a psychiatrist and having had a panic attack for which Valium did not help, and
j.     the appellant suffering depression and anxiety in July 2015.
The Medical Assessor assessed the appellant’s overall permanent impairment as at the date of assessment to be 17% WPI. He diagnosed her present illnesses to be aggravation of a PTSD, pre-existing ADHD, major depressive disorder and generalised anxiety disorder. he assessed that the proportion of the appellant’s impairment that was due to her pre-existing condition was one-third. He provided these reasons for that:
“My view is that there is a significant pre-existing contribution and there is a greater impairment as a result of the earlier injury. Her current anxiety and depressive symptoms are similar to previous anxiety and depressive symptoms. She has had multiple episodes with anxiety and depressive symptoms, and needed a range of psychological/psychiatric treatment in the past. There is a consensus amongst psychiatrists and psychologists, that in recurrent anxiety and depression, people generally develop greater impairment with each new episode.”

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor’s assessment of her impairment in the PIRS category of self care and personal hygiene as class 1 did not accord with the evidence in her statement that there are days that she does not eat at all and will go for days without eating and then binge eat.
The appellant submitted that the Medical Assessor appeared to have reduced his assessment of her impairment in the PIRS category of concentration, persistence and pace because she was on medication but the Medical Assessor did not provide “the benefit of the ‘treatment effect’”. The Appeal Panel’s understanding of this submission is that the appellant contends that her impairment in the category of concentration, persistence and pace is better than what it otherwise would be because she is taking Dexamphetamine, and because of that, the Medical Assessor ought to have increased the percentage of her WPI pursuant to [1.32] of the Guidelines.
The appellant also noted that she was now taking antidepressant medication which she only previously took briefly before her injury. She contended that “there was no suggestion that it was not working”. The appellant noted that she had eye movement desensitisation and was having fortnightly counselling. The appellant submitted there was no evidence that she was asked about the effectiveness of this treatment by the Medical Assessor. She submitted that the only evidence relating to the benefit of treatment is in relation to the pre-injury treatment which she said the Medical Assessor found was ineffective. She submitted that there was clear evidence of a treatment effect because her taking Dexamphetamine resulted in her having better concentration. The appellant submitted to the effect that the Medical Assessor did not provide adequate reasoning to conclude that she has not had a benefit from treatment, and his failure to provide adequate reasons is a demonstrable error.
The appellant submitted that the Medical Assessor did not give proper consideration to “the
s 323 issues”. The appellant noted that there was no evidence of her being diagnosed with ADHD before her injury or having treatment for that before her injury and that she was only diagnosed with ADHD after her injury. The appellant submitted that the Medical Assessor “has not considered the extent to which [her] current condition contributed to that diagnosis” of ADHD. The appellant submitted that the diagnosis the Medical Assessor made of her injury is unclear and also submitted that “the nature of the diagnosis is critical”. The appellant submitted that the Medical Assessor erred by not complying with [11.10] of the Guidelines.
In reply, the respondent submitted that the Medical Assessor’s assessment of the appellant’s impairment in the PIRS category of self care and personal hygiene accorded with what the appellant informed the Medical Assessor during the assessment, being that she will eat regularly but sometimes will skip a meal and is maintaining a stable weight. The respondent noted that the Medical Assessor obtained a description from the appellant of her other areas of self care and personal hygiene. The respondent noted that the Medical Assessor specifically queried the appellant regarding the appellant’s prior eating disorder and that the appellant reported that she had grown out of it as a teenager and had no subsequent problem. The respondent noted that the Medical Assessor recorded that the appellant had unsuccessful gastric banding surgery in 2010. The respondent submitted that the Medical Assessor’s rating of the appellant’s impairment in the PIRS category of self care and personal hygiene as class 1 was open to him based on the information available to him.
The respondent submitted that the Medical Assessor made appropriate references to the evidence of the appellant’s pharmacotherapy before the injury and that the Medical Assessor acknowledged in the MAC that he had reviewed all the material that had been provided to him. The respondent noted that the Medical Assessor made specific references to the appellant’s GP’s records. The respondent submitted that it was open to the Medical Assessor to find that the appellant had a history of extensive pharmacotherapy.
The respondent submitted that the Medical Assessor at page 12 of the MAC clearly stated his diagnoses. The respondent submitted that the evidence before the Medical Assessor established the appellant had pre-existing psychiatric conditions that included anxiety, depression, panic attacks, anorexia and bulimia.
The respondent submitted that [11.10] of the Guidelines cannot be applied if it is inconsistent with s 323 of the 1998 Act and referred to Marks v Secretary, Department of Communities and Justice (No 2)[2] (Marks).
[2] [2021] NSWSC 616.
The respondent submitted that the evidence before the Medical Assessor established a pre-existing condition and that the Medical Assessor calculated the extent to which that contributed to the appellant’s impairment.
The respondent submitted that the Medical Assessor’s conclusion that the appellant’s treatment for her work injury had negligible effects and symptomatic relief and functional improvement was correct and revealed no error.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[3] the Court of Appeal held that the Appeal Panel is obliged to give reasons.
[3] [2006] NSWCA 284.

PIRS ratings for “self care and personal hygiene” and “concentration, persistence and pace”

The Appeal Panel considers that the Medical Assessor did not make any error with respect to his assessment of the appellant’s impairment in the PIRS categories of self care and personal hygiene and concentration, persistence and pace.
With respect to the category of self care and personal hygiene the Appeal Panel observes that the appellant in a statement she signed on 27 September 2022 said that there are days when she does not eat at all and that she can go days without eating. She also said in that statement that there are days where she constantly binge eats.
The Appeal Panel further observes that the Medical Assessor said in the MAC that he based his assessment on his clinical examination of the appellant and his perusal of documentation submitted by the parties. Those documents included that statement of the appellant.

The Medical Assessor, when obtaining a history from the appellant, specifically enquired of her eating disorders. The appellant confirmed she had anorexia and bulimia nervosa but grew out of those as a teenager. The history the Medical Assessor obtained also included that the appellant had put on 15kg in weight after she stopped working but has since then maintained her weight at around 100kg. The history also included that the appellant eats regularly but sometimes skips a meal.
The Medical Assessor was entitled to base his assessment on the history he obtained at the time of examination. That history was obtained in the context of the Medical Assessor having considered the documentation he had been provided with, which included the appellant’s statement. Based on the history the Medical Assessor obtained, the Appeal Panel considers that the Medical Assessor was correct to conclude that the appellant’s functioning in the category of self care and personal hygiene was not outside the normal range for the general population and, consequently, the Medical Assessor was correct to rate the appellant’s impairment in this category as class 1, being that the appellant has no deficit or a minor deficit.
With respect to concentration, persistence and pace, the Appeal Panel also considers that the Medical Assessor, for the reason he articulated in the MAC, was correct to assess the appellant’s impairment in this category as mild. The descriptors in Table 11.5 of the Guidelines for a class 2 impairment, whilst only examples, are that a worker can undertake a basic retraining course or a standard course at a slower pace, can focus on intellectually demanding tasks for periods up to 30 minutes then feels fatigue or develops a headache.
The Appeal Panel notes that the appellant can read for 40 to 60 minutes at a time and that she was able to engage with the Medical Assessor for 55 minutes during the Medical Assessor’s examination of her and that during this examination she spoke spontaneously and readily and was able to provide a coherent history and elaborate on her history and remain focused. Given that, the Appeal Panel considers that the appellant’s impairment accords with the descriptors for a class 2 impairment. The descriptors for a class 3 rating, that is a moderate impairment, include a worker being unable to read more than a newspaper article and having difficulty following complex instructions or follow a pattern for making clothes, tapestry or knitting. The Medical Assessor’s findings from his clinical examination of the appellant indicated the appellant’s function was better than those descriptors.
The Guidelines at [1.6] instruct that an assessment of permanent impairment involves clinical assessment of a worker as the worker presents on the day of assessment taking account of the worker’s relevant medical history and all available relevant medical information. It requires a Medical Assessor to have regard to all the materials at the Medical Assessor’s disposal[4].The Medical Assessor was entitled to rely on his observations of the appellant during examination.[5]
[4] Jenkins v Ambulance Service of NSW [2015] NSWSC 663 at [56].
[5] Ferguson v State of NSW [2017] NSWSC 887 at [23] and Coenradi v The GEO Group Aust Pty Ltd [2022] NSWSC 864 at [135].
Given that, and noting that the Medical Assessor’s ratings of the appellant’s impairment in the categories of self care and personal hygiene and concentration, persistence and pace were open to him based on the data before and explained by the reasons he provided, the Appeal Panel can discern no error in the Medical Assessor’s exercise of his clinical judgment by his rating of the appellant’s impairment in the category of self care and personal hygiene as class 1 and in the category of concentration, persistence and pace as class 2.
The Appeal Panel also considers that the Medical Assessor applied the correct criteria when assessing the appellant’s impairment with respect to her function in concentration, persistence and pace and with respect to self care and personal hygiene and this is because the Medical Assessor applied the criteria as set out in Chapter 11 of the Guidelines to assess the appellant’s impairment.

Adjustment for the effects of treatment

Clause [1.32] of the Guidelines reads as follows:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
In the Appeal Panel’s view the treatment that the appellant is having has certainly not eliminated or substantially eliminated her permanent impairment. Notwithstanding the treatment she is having she remains significantly impaired. Given that, [1.32] of the Guidelines is not engaged in the appellant’s circumstances and hence, the Medical Assessor was correct not to increase the percentage of the appellant’s WPI pursuant to [1.32] of the Guidelines.

The s323 deduction

The Medical Assessor found that the appellant had a pre-existing condition and that a proportion of the permanent impairment he assessed the appellant to have was due to that pre-existing condition. He assessed that proportion was one-third.
The Appeal Panel considers that there was abundant evidence within the materials provided to the Medical Assessor to support his finding that the appellant suffered pre-existing conditions and that these conditions contributed to a proportion of the appellant’s impairment. That is to say the evidence supported a conclusion being reached that the appellant’s impairment from her injury was causally related to her pre-existing condition.
The Medical Assessor set out within part 10c of the MAC relevant parts from the clinical data within the material he had been provided that related to the appellant past psychiatric history. This included psychiatrist Dr Miller detailing in a report dated 22 July 2019, which Dr Miller provided to the respondent’s insurer, that the appellant had a psychiatric history of separation anxiety and eating disorders in her teenage years and had suffered pan-anxiety with her first panic attack at 17.
The Medical Assessor also detailed that psychiatrist Dr Yajuvendra Bisht in a report dated 24 May 2022, provided to the insurer’s solicitor, diagnosed the appellant had a recurrent adjustment disorder over the years and had a likely attention deficit disorder in the past.
The Medical Assessor also noted that psychiatrist Dr David Hall, who had treated the appellant, detailed in a letter to the appellant’s GP on 26 September 2019 that the appellant had panic at 16 and which had recurred sporadically over the years for most of her life. The Medical Assssor further noted that Dr Hall recorded the appellant had anorexia and bulimia from age 14 to age 18.
The Medical Assessor also detailed that the appellant’s treating psychiatrist Dr Kim Nguyen in a letter of 21 May 2019 to the appellant’s GP noted the appellant had a background history of generalised anxiety disorder and had previously suffered eating disorders and had been an excessive worrier since primary school and had suffered depression and anxiety and panic attacks. The Medical Assessor noted that Dr Nguyen diagnosed the appellant had PTSD, panic disorder and agoraphobia.
The Medical Assessor also highlighted entries from the appellant’s GP’s clinical records that detailed the appellant’s psychiatric history in the period just before she commenced employment with the respondent.
In addition to that material, the Appeal Panel observes that in 2015 the appellant was consulting consultant psychiatrist Dr Ramakrishna Bhavanishankar. In a letter dated 29 July 2015 to the appellant’s GP, Dr Bhavanishankar reported that the appellant had a long history of mental health issues having been diagnosed with panic disorder, agoraphobia and depression and PTSD. He noted that her agoraphobia had become worse over the last five years preventing her from leaving the house and driving alone. He reported that the appellant had periods of low mood and anhedonia and fleeting suicidal thoughts in the context of a disabling anxiety. Dr Bhavanishankar detailed that the appellant had panic attacks since age 16 and had seen several psychologists and had done a programme for PTSD, which arose as a consequence of sexual abuse from her father. The doctor also detailed that the appellant had developed an eating disorder and self harm as a way of coping with that abuse.
The Appeal Panel further observes that in September 2015 the appellant was consulting clinical psychologist Leslie Smyth, who in a letter to the appellant’s GP dated 7 September 2015 advised that the appellant met the criteria for panic disorder and agoraphobia and persistent depressive disorder.
The Appeal Panel considers that based on that material it is clear that the appellant suffered pre-existing conditions ranging from generalised anxiety disorder, panic attacks, depression, agoraphobia, suicidal anxiety and PTSD. It is also likely, given the problems the appellant had with attention in her early life, that she did have ADHD that was only diagnosed recently.
The diagnoses the Medical Assessor made were that the appellant had PTSD, pre-existing ADHD, major depressive disorder and generalised anxiety disorder. it was open to him to make those diagnoses based on the material before him and his clinical examination of the appellant. In any event, an impairment of a worker that results from a psychiatric injury is, consistent with [11.6] of the Guidelines, assessed by reference to a worker’s psychiatric symptoms and the effect that those symptoms have on a worker’s function in the several PIRS categories. Different clinicians may formulate different diagnoses of a worker’s symptom in that they may consider worker’s symptoms correlate better with a different diagnostic entity than that which the Medical Assessor concluded or other clinicians may conclude. The critical element in the assessment of a worker’s impairment is however the effect those symptoms have on a worker’s function. The diagnoses made from the symptoms is, in accordance with [11.16] of the Guidelines, nevertheless relevant in that it may inform the likely severity and possible duration of a worker’s impairment.
The Medical Assessor set out his rationale at part 11b of the MAC for concluding that the proportion of the appellant’s pre-existing condition to her permanent impairment from her injury was one-third and, in summary, was:
i.    the appellant’s permanent impairment from her injury was greater because of her pre-existing condition;
ii.   the appellant’s present psychiatric symptoms were similar to the symptoms she suffered before her injury;
iii.     the appellant has had multiple episodes in the past of anxiety and depressive symptoms and had a range of psychological and psychiatric treatment for those symptoms in the past, and
iv.     The consensus amongst psychiatrists and psychologists is that with each recurrent anxiety and depression a person’s impairment will be greater.
The Appeal Panel considers that rationale is sound. It reveals that the Medical Assessor was unable to make the assumption under s 323(2) of the 1998 Act that the contribution of the appellant’s pre-existing condition to her current impairment was one-tenth, as that would be at odds with the evidence of the appellant’s significant history of psychiatric illness, which in the Appeal Panel’s view resulted in her post-injury impairment being far worse than it would otherwise have been had she not suffered such illness.
It is the case, as the appellant submitted, that the Medical Assessor did not apply [11.10] of the Guidelines to measure the WPI from her pre-existing condition. In the Appeal Panel’s view, her WPI could not have been measured either on the day before she started employment with the respondent or on the date of her injury, and this is because there is no evidence with respect to her function on either of those dates. It is likely, having regard to what the Medical Assessor noted in the MAC with respect to the clinical data pertaining to the appellant’s past psychiatric history, and also what the Appeal Panel has noted above, that prior to the appellant suffering injury her psychiatric illnesses would have had a substantial effect on her functioning in social and recreational activities, travel, social functioning and concentration, persistence and pace, but be that as it may, the evidence is not sufficient to enable an accurate measure of her impairment.
Insofar as [11.10] of the Guidelines stipulates that in the deduction under s 323(1) must be one tenth, then it would be inconsistent with the stipulation in s 323(1) that there must a deduction for “any proportion” of a worker’s permanent impairment that is due to the pre-existing condition. In other words, where the evidence substantiates that the proportion is greater than one-tenth, [11.10] of the Guidelines is inconsistent with s 323(1) and cannot be applied[6].
[6] See for example Marks v Secretary, Department of Communities and Justice (2) [2021] NSWSC 616.
In short, the Appeal Panel considers the Medical Assessor applied the correct criteria to determine the deduction to be made under s 323(1) of the 1998 Act for the contribution the appellant’s pre-existing condition made to her permanent impairment from her work injury. Further, the Appeal Panel considers that the Medical Assessor did not make any error with respect to the deduction he made.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 February 2023 should be confirmed.

[2023] NSWPICMP 190

8 May 2023