Amery v Calvary Community Care

DETERMINATION OF APPEAL PANEL
CITATION:	Amery v Calvary Community Care [2022] NSWPICMP 34
APPELLANT:	Nicholas Amery
RESPONDENT:	Calvary Community Care
APPEAL PANEL:	Member Catherine McDonald Dr Douglas Andrews Professor Nicholas Glozier
DATE OF DECISION:	3 March 2022
CATCHWORDS:	WORKERS COMPENSATION- Psychological injury; application to rely on a statement about history provided to Medical Assessor; Lukacevic v Coates Hire Operations Pty Limited; assessment in Psychiatric Impairment Rating Scale categories; Ferguson v State of New South Wales, Parker v Select Civil Pty Limited discussed; deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998; Held- Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 November 2021 Nicholas Amery lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 19 October 2021.
Mr Amery relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        the assessment was made on the basis of incorrect criteria, and
·        the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. We conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2018 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 2018.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Amery was employed by Calvary Community Care (Calvary) as a client services officer. It is accepted that he suffered a psychological injury as a result of events in his workplace and the injury is deemed to have been suffered on 3 August 2019. He commenced that employment on 11 March 2019 and ceased work on 23 December 2019.
The Medical Assessor assessed 7% whole person impairment (WPI) and deducted one-tenth under s 323 of the 1998 Act.

PRELIMINARY REVIEW

We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2018.
As a result of that preliminary review, we determined that it was not necessary for the worker to undergo a further medical examination because the MAC does not disclose an error and there is sufficient material in the file to determine the appeal.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that assessment.
Mr Amery sought to rely on a statement dated 15 November 2021 in which he set out information which he said he provided to the Medical Assessor, but which the Medical Assessor omitted. He characterised the statement as fresh evidence under s 328(3).
In submissions prepared by his solicitor, Mr Dougall, Mr Amery said that there were factual mistakes in three categories of the psychiatric impairment rating scale assessment. He said that Mr Amery’s statement about the examination was relevant because it described the “correct history that was given”.
Mr Amery relied on the following statement by Hodgson JA in Lukacevic v Coates Hire Operations Pty Limited[1] (Lukacevic):
“Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members.
[1] [2011] NSWCA 112
[2] At [78].
I do not think this would be in accord with the policy of the WIM Act.”[2]
Mr Amery submitted that his statement had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support for his claim. He did not develop that submission.
Calvary submitted:
“Additional relevant information has been held to be:
(a)    Evidence or information of a medical kind or which is directly related to the decision that is required to be made by an MA (Petrovic v BC Serv No 14 Pty Ltd [2007] NSWSC 1156) (Petrovic);
(b)    Evidence that is not a competing assertion as to what transpired during the medical examination (Pitsonis v Registrar of the Workers Compensation Commission [2007] NSWSC 50);
(c)    Evidence or information that cannot be relied upon to prove the grounds of appeal for incorrect criteria and/or demonstrable error (Pitsonis), or
(d)    Evidence or information that is not qualified as ‘fresh evidence’ under section 328 of the 1998 Act (Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112).”
Calvary submitted that the application to rely on the statement was precluded by those authorities.
Despite relying on s 327(3)(b), Mr Amery’s submission that there was additional relevant information was not developed.
In Phillips v JW Williamson and RW Williamson t/s Williamson Bros[3] Schmidt J contrasted the factual dispute in Lukacevic about what took place at the examination with the availability of additional probative medical material which did not exist at the time of the examination by the Approved Medical Specialist (AMS), on which the worker sought to rely to demonstrate errors by the AMS.
[3] [2016] NSWSC 1681.
In Petrovic, Hoeben J said:
“In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment. Such matters may be picked up, depending on the circumstances, by s327(3)(c) and (d) but they do not come within subs 327(3)(b).
It follows that the statutory declarations which related to the way in which the AMS carried out his examination and the way in which questions and answers were interpreted during the examination were not ‘additional relevant information’ for the purposes of subs 327(3)(b) and should not have been treated as such by the Registrar.”
His Honour noted that if statements going to the way in which the medical assessment was conducted were additional relevant information “it would be open to every dissatisfied party to challenge the assessment process of an AMS in the same way thereby gaining automatic access to an appeal”.
Mr Amery’s submissions omitted the first sentence in the quote from Hodgson JA in Lukacevic. It is important and qualifies the rest of the paragraph. That sentence reads:
“A dispute by the worker as to the history set out in the certificate, or the observations made by the AMS, can readily be raised; and it could be raised honestly or dishonestly, on strong or flimsy grounds.”
That is the context in which the probative value of Mr Amery’s recent statement should be considered.
If the submission that the evidence fulfills the criteria set out is to be accepted, more than a restatement of those criteria is required. In Lukacevic, Handley JA said:
“The Panel’s reasons for refusing to receive the new evidence … referred to the importance of finality in litigation, that procedural fairness for the respondent would entitle it to seek a response from the AMS, and the fact that the issues raised were ‘not contemplated as part of the appeal mechanism’. In my judgment these were relevant considerations in the exercise of the Panel’s discretion, and it cannot possibly be said that its decision was irrational.”
On the basis of those authorities, we do not agree that the statement from Mr Amery about the history he said he provided at the examination should be admitted. It is not probative and does not provide additional particularity when there is considerable contemporaneous medical evidence in the file. In the light of that evidence and the detail in the MAC, it is not particularly plausible nor is there independent support for anything which is said. The application to rely on a further statement is declined.

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.
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
It is relevant to note that there is little direct evidence from Mr Amery in the file, even though the Application to Resolve a Despite was lodged to claim permanent impairment compensation. The Commission’s rules require that a statement of the worker’s evidence be prepared and it is expected that it will contain the evidence necessary to resolve the relevant dispute. In this case, there are two statements – one prepared by an investigator instructed by Calvary and signed on 9 February 2020. It does not describe the impact of the injury on Mr Amery. His second statement dated 25 February 2021 was prepared in response to a work capacity decision. It contains some more information about his mood and ability to concentrate but does not provide a detailed description of functioning across all areas of his life.
That omission is not one which can be corrected by an attempt to rely on a statement which seeks to point out alleged errors in the history taken by the Medical Assessor. It does mean, however, that we were required to carefully consider the contemporaneous histories provided to those who have treated and prepared reports for Mr Amery. There is ample evidence in those reports to deal with the appeal.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary, Mr Amery submitted that the Medical Assessor erred in his assessments in three of the scales under the Psychiatric Impairment Rating Scale (PIRS) in the Guidelines of:
(a)    Self care and personal hygiene;
(b)    Social functioning, and
(c)    Concentration persistence and pace.
Mr Amery said that the assessment in Class 2 for Self care and personal hygiene was inconsistent with the evidence in his statement and the evidence in the file. He said that his impairment is not a mild impairment and that he should be assessed in Class 3.
With respect to Social functioning, Mr Amery also submitted that the assessment of a mild impairment was inconsistent with the balance of the evidence in the file. He also referred to his statement dated 25 February 2021 in support. He said that the Medical Assessor was incorrect to say that there had been long-standing problems with his family which were not due to the injury when he maintained a relationship with his sister until after the injury.
With respect to Concentration, persistence and pace, Mr Amery relied on his statement to say that the Medical Assessor should have been assessed in Class 3 because of his inability to read sheet music, his difficulty managing finances and because he confuses medications.
Mr Amery submitted that the Medical Assessor was in error to make a deduction under s 323 of the 1998 Act because he essentially relied on Mr Amery’s self-diagnosis with respect to problems in adolescence. Mr Amery said that there was no medical evidence that he was suffering from any psychiatric symptoms or conditions immediately before his work injury, as demonstrated by the notes from his general practitioner. He also sought to rely on his own statements to that effect.
In reply, Calvary submitted that the assessment made by the Medical Assessor in each of the three disputed scales. It submitted that Mr Amery’s history warranted a deduction under s 323.

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 [2006] NSWCA 284 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.

The MAC

The Medical Assessor conducted his assessment by video conference, in accordance with the Commission’s arrangements during the Pandemic. He set out the history he obtained with respect to the injury and the treatment. He set out Mr Amery’s present symptoms. He considered Mr Amery’s previous condition and wrote:
“Mr Amery reported that nothing has ever been formally diagnosed, he has never sought help for his mental health before the described workplace difficulties. He said his family are old fashioned and they are stoic, and they do not want to seek help or to get help for the children. He recalled that his sister suffered depression but his parents did not help her get treatment.
I discussed the recorded history with Mr Amery, including notes from Dr Miah and he reported that there was aggression in the household where his mother had hit him, his father punched him and his sister attacked him. He confirmed he suffered depression and anxiety since teenage years, and this also happened in 2017 and 2018.
With hindsight, Mr Amery said that he suffered depression on and off over the years because of his family. He said there was a lot of violence in his teenage years and that he had been told later on that he probably suffered Post-traumatic stress disorder.
When Mr Amery was 17 years old, he confirmed that he was attacked by a gang of three people and he suffered a fractured nose and concussion, and was hospitalised. The police investigated but he said he and the family downplayed the incident, and so the perpetrators only had to pay his medical expenses with no other punishment.
Mr Amery reported that in the past his sister would bring him food. He said he needed the family violence to be acknowledged by his family and organised a meeting with them, but it had a very messy outcome, and since then the only person that really maintains contact with him is his father.
In terms of developmental history, Mr Amery was born in Australia. Mr Amery parents separated when he was 15. He remembers there were a lot of fights at home. He then lived with his father and his father’s new family. There was some bullying at school. A sister suffered depression.”
The Medical Assessor described Mr Amery’s education and employment. He said:
“He tried to go back to work in mid 2020, doing one on one music tuition, teaching drumming in primary school and high school. He was certified seven hours a day three days a week, and reported that after one week his anxiety increased substantially. He started panicking and could not tolerate it, and said it was too much pressure and responsibility. He has not done other work since.”
The Medical Assessor set out Mr Amery’s social activities and activities of daily living:
“Mr Amery is living on his own. He reported that in his last accommodation the share mate was a difficult person, and in response he has been having angry outbursts. Since he moved away and is living on his own, he has been feeling better.
He spends time watching movies at home, surfing the internet, and doing a bit of art at home. He has contact with two or three friends and usually by messaging each other.
He used to belong to a music group and was attending a jazz workshop between early 2021 and May 2021. Because of COVID the workshop was closed. He is hoping that he can return to the workshop later when the COVID restriction eases.
He goes to the shops three to four times a week, and buys food for one or two days at a time and explained that he does not have a fridge so cannot buy too much.
I asked Mr Amery about his ability to focus and noted that in Dr Synnott’s report, he was reading documents two or three hours a day, and reading novels an hour a day. He said he does not read for that long and he has not read a book since early 2021. He said he can only focus maybe 10 or 15 minutes.
Mr Amery attends to his own finance. He is anxious and avoids driving. He said he only drives when he has to move home.
Mr Amery tends to shower only every three to four days and says he does not feel dirty. He tends to only eat simple foods, such as canned soup, and does minimal cooking. Sometimes he will get take away chicken or eat boiled eggs. Sometimes, if he feels tired in the day he will go back to bed for an hour.”
The Medical Assessor set out his findings on examination which took place over 60 minutes – half by video conference and half by phone. He recorded:
“He engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements. He was moderately restricted in his affect range and he spoke in a soft tone, and gave long answers.
He spoke spontaneously. He provided a coherent history and elaborated on various aspects of his history. He was consistently focused throughout the assessment. He did not perseverate and there was no set-shifting difficulty. Mr Amery demonstrated reasonable processing speed and pace.
At the end of the interview, the Medical Assessor asked Mr Amery if there was any additional information he considered relevant.
In reaching his diagnosis, the Medical Assessor said:
“I noted large number of documents from different assessors and Mr Amery’s treating clinicians, and that the history he provided had been somewhat different over time – this inconsistency may reflect impaired recollection due to the traumatic nature of earlier life experiences, or it could be due to personality factors.
…
Overall, my view is that there is a pre-existing psychiatric disorder that continues to contribute to the current impairment, particularly as the work related symptoms are similar in many aspects to his pre-existing symptoms. My view is that he has a pre-existing Major depressive disorder or Persistent depressive disorder with trauma features, but I did not confirm the full PTSD syndrome.
In terms of his current diagnosis, I noted a range of diagnoses have been given. Overall, my view is that a chronic Major depressive disorder is a reasonable diagnosis, as the core symptoms have been persisting depressive symptoms.”

The Medical Assessor considered the opinions of other assessors, both with respect to diagnosis and s 323. He said:
“I noted Dr Synnott’s opinion that 50% of the current incapacity is pre-existing, but he provided limited explanation as to how this figure is calculated. My view is that given that Mr Amery had been able to work despite his chronic symptomology, the pre-existing impairment is likely to be less than one-half and probably in the tune of one to three tenth. I adopted a one-tenth deduction as he was able to function occupationally without active treatment at the time of the subject injury.
…
In terms of WPI assessment, there is general consensus between the information in the Certificate of Capacity, Vocational Assessment and reports by Dr Chow and Dr Synnott. The main area of disagreement was in self-care and social functioning.
In terms of self-care and personal hygiene. I noted Mr Amery lives on his own, his sister no longer provides support, he goes to the shops, prepares simple food for himself, he is generally self-sufficient, my view is that rating 2 is more appropriate.
In terms of social functioning, my view is that rating 2 is more appropriate given that there has been a strain in Mr Amery’s relationships. He has not had a partner since 2018. There have been longstanding problems with his family, but the issue is not predominantly due to his psychiatric condition.”
The Medical Assessor made detailed comments about Mr Amery’s statements and the reports from Mr Amery’s treating doctors and the independent medical examiners – Dr F Chow on behalf of Mr Amery and Dr H Synott on behalf of Calvary.
In his PIRS rating form, the Medical Assessor assessed Mr Amery in Class 2 for Self care and personal hygiene, and said:
“Mr Amery described having neglected his self-care. He reported eating regularly but relies on takeaway food and simple foods. He does not shower regularly, often only every 3-4 days. He is capable of independent living without support.”
The Medical Assessor assessed Mr Amery in class 2 for Social functioning because:
“He is anxious and socially avoidant, and has ceased contact with some of his friends. He is able to maintain long-term friendships. The relationship with his family is chronically poor and they do not acknowledge their aggression or how this impact on him.”
In assessing Mr Amery in class 2 for Concentration, persistence and pace the Medical Assessor said:
“Mr Amery reported having reduced concentration. His concentration fluctuated over time, he can manage his finance and read around 10-15 minutes recently, and I noted other assessors recorded different reading duration. I have based my assessment on his presentation on the day, and his mental state examination is consistent with 2.”

Other medical evidence

The other medical evidence in the file is relevant for the histories Mr Amery provided about his activities and about his psychiatric history.
Mr Amery was referred to Dr Miah at St John of God Medical Centre on 2 January 2020 by a doctor at Marrickville Medical Centre. There are no notes from that Centre in the file, though the independent medical examiners had access to them. There are notes from another practice – Marrickville Metro Medical Centre, which Mr Amery began to consult in mid 2020.
The referral to Dr Miah noted:
“Thank you for seeing Nick Amery for an opinion and management. C/o stressful work
Relationship distress.
H/O violence & physical abuse in the past affects mental health.
He thinks he is getting panic attacks at work & its affecting his situation at work. He is seeking an expert opinion for diagnostic clarification & treatment for exacerbation of anxiety symptoms triggered by alleged workplace? bullying/harassment. He taken sick leave & unpaid leave as he experienced headache, difficulty breathing, GI symptoms he is not very keen to take any medication for Mental health & seeing counsellor through EAP.
F/H of Depression.”
Dr Miah wrote to Dr Chowdhury on 18 January 2020. He obtained the history that Mr Amory suffered pre-existing chronic low mood since his mid-teens in the conflict context of parental conflict and separation, he dropped out of high school and his low mood was exacerbated by these serious assault age 17 which left him hospitalised and suffering with chronic anxiety and hypervigilance thereafter. Dr Miah obtained a history of personality vulnerabilities which have become more in trenched into adulthood. He described “low self-esteem, interpersonal sensitivities and impaired relationship functioning, in particular his tendency to fearful-avoidant attachment through shutting people out”. Dr Miah said that Mr Amery’s long-standing depression had been exacerbated by recent workplace events though was for dysthymic than of emergent melancholic type and he retains the ability to enjoy some things, sleep well and maintain self-care. Dr Miah recommended medication and treatment by a psychologist.
Dr Miah prepared a report to Calvary’s insurer dated 3 March 2019 [sic 2020]. Dr Miah said that Mr Amery described “increased general anxiety symptoms” and the new onset of panic attacks following the injury. He diagnosed chronic post-traumatic stress disorder following an assault at 17, persistent depressive disorder since his mid-teens, cannabis use disorder in remission and noted that Mr Amery acknowledged personality traits which did not meet the threshold for a DSM diagnosis but “contribute significantly to his propensity for anger, anxiety, depressive mood and impaired coping”. Later in his report he said that there was no established history of diagnosis or treatment before the injury but said Mr Amery was vulnerable to developing panic disorder because of underlying chronic anxiety and low mood since his teens.
Dr Miah noted that Mr Amery may be able to perform a less demanding role in another workplace and was able to continue all basic activities of daily living.
Dr Chowdhury issued medical certificates until April 2020. She certified Mr Amery as having no current work capacity until 25 April 2020 then capacity for some type of employment for seven hours on three days per week. Dr Vago began providing certificates in mid 2020 and he maintained the certification of some current work capacity until at least March 2021. There are no other medical certificates in the file.
In mid 2020, Mr Amery was referred to Dr Z Zhang, psychiatrist. In his report 17 July 2020, Dr Zhang recorded a history of injury and of treatment with Dr Miah but said that after three consultations he still did not know what his diagnosis was. He complained that sessions with a psychologist seen through his employer’s Employee Assistance Program were not therapeutic but a new psychologist “was nice and transparent”. Dr Zhang recorded that there was no family history of depression or mental health issues other than a younger sister who suffered from depression. He said that Mr Amery experimented with recreational drugs during teenage years but nothing agreed with him. He said his teenage years were “pretty fraught” and he dropped out in year 9. He was required to report to police but had no history of crime. Dr Zhang set out the history of his parents’ divorce. He diagnosed adjustment disorder with symptoms of anxiety and depression. He said there was a background of childhood adversity “which contributes to a personality that is sensitive to rejections and acceptance”.
A series of notes of subsequent consultations appears at the bottom of Dr Zhang’s report. In December 2020 Dr Zhang noted that Mr Amery’sdepression was improving and that he was health oriented and ate healthily.
Mr Amery’s solicitors arranged for him to see Dr Frank Chow who reported on 14 February 2021. Dr Chow set out a detailed history of the injury and its aftermath. He noted that Mr Amery had done drum teaching at a music school from mid-March to June 2020, working two nights a week but lesson planning and work stress was beyond him. He continued after that time to apply for jobs two to three days a week though he was unable to look after himself well. Despite being certified as having no capacity for work, he continued to look for part time roles. In respect of his current functioning Dr Chan noted that Mr Amery’s mental health was up and down and he was easily anxious he was eating adequately had a poor appetite. He was showering every two to three days and skipping meals though “his sister keeps bringing him food and dropping them at the doorstep”. He did some house chores and went grocery shopping two to three times a week and he was able to catch public transport. He did some music practice and tried to read a book but his concentration lapsed after 5 to 10 minutes. He was not seeing family or friends and had lost his friendships.
Mr Amery denied to Dr Chow that he had a previous psychiatric history. He described his childhood as good and denied any history of trauma. His parents started fighting when he was 11 and divorced when he was 13 and he was bullied in school. He lived with his father during his adolescence and was distant from his family. Dr Chow recorded that Mr Amery left school in year 10 and went to TAFE.
Dr Chow considered that Mr Amery was fit to work two to three days per week. He considered a number of roles which had been suggested to him on behalf of Calvary. Dr Chow made an assessment under the PIRS. Relevantly for this appeal, assessing Mr Amery in Class 3 for self-care and personal hygiene, Class 3 for Social functioning and Class 2 for Concentration persistence and pace. The assessment was 15% whole person impairment. Dr Chao did not make any deduction under s 323 because “there is no pre-existing condition”.
Mr Amery’s solicitors arranged for a Psychological Functional Capacity evaluation report to be undertaken on which was prepared on 22 February 2021. The assessor noted that Mr Amery was neatly dressed for the video interview. She undertook a detailed history and set out Mr Amery’s reported capacity. He said that his daily routine may include cleaning the house, walking to the local shops and engaged and internet browsing to distract himself. Sometimes he played music. He reported poor appetite and said that he may shower every second or third day. He said that he found it difficult to concentrate on his music books and bought some novels but was not motivated to read them. Mr Amery also said that he tried to look after his health. The assessor found that Mr Amery had capacity to work four hours a day on two days a week in routine work with limited in customer interaction and minimal problem solving.
For Calvary, Mr Amery was examined by Dr Synnott on 3 March 2020 when he had been away from work for two months. Mr Amery told Dr Synott that he would consider a job in a less stressful environment on three to four days per week. At the time of that examination, Mr Amery was “psychologically independent” in feeding, dressing and washing. With respect to social functioning, he was detached and disengaged with his flatmate and friends and Dr Synnott considered there was no overt cognitive impairment, though Mr Amery described moderate impairment in concentration and memory. Mr Amery denied a past psychiatric history though said as a child he spoke to a school counsellor on one occasion. He said there was no family psychiatric history. He nominated academic issues as the reason he left school in year nine.
Dr Synnott diagnosed and adjustment disorder with anxiety and depressed mood. He considered that Mr Amery should resume full-time work as soon as possible.
Dr Synnott undertook a further examination on 16 April 2021. Mr Amery said that in the 13 months since the previous assessment his psychiatric symptoms had fluctuated but they had been an improvement in the last few weeks. Overall there was no improvement since March 2020 and Mr Amery said this was because there was no consistent approach to treatment and he felt important things had not been addressed. At the time of that consultation, Mr Amery lived by himself and his sister sometimes helped with the shopping. He did not cook much.
On this occasion Dr Synnott diagnosed major depressive disorder with prominent anxiety because of the persistence of Mr Amery’s psychiatric symptoms. He noted that the account Mr Amery provided of his earlier years was at odds with the clinical records from Marrickville Medical Centre and Dr Miah. That had caused Dr Synnott to change his opinion about causation of Mr Emery’s condition, while still accepting that Mr Amery suffered an injury. He now said that Mr Amery had a:
“shallow pool of resilience and psychiatric reserves – that would be easily drained. He was vulnerable and at risk of a psychiatric decompensation when confronted by the routine tasks and challenges found in all manner of employment.”
Dr Synnott did not consider that Mr Amery’s condition had reached maximum medical improvement. He said however that the employment and his pre-existing psychiatric vulnerability contributed equally to his current incapacity.

The law

The task of the Medical Assessor was to assess Mr Amery as he presented on the day of the examination and to apply his own clinical judgement in the application of the Guidelines[4]. He was not bound to agree with findings of other assessors, nor was he required to choose between their assessments.
[4] Guidelines paragraph 1.6.
Campbell J described his task in State of New South Wales v Kaur[5]:
“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.’”
[5] [2016] NSWSC 346.
Paragraph 11.12 of the Guidelines describes the application of the PIRS:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
The application of the Guidelines is an egalitarian process – impairment is assessed on the same general basis for all workers. In the example most often quoted, loss of use of a finger is assessed in the same way for a bank manager and a concert pianist.
The PIRS Tables reflect that principle and assessment in class 1 under any of the Tables is expressed to apply where there is “No deficit, or minor deficit attributable to the normal variation in the general population”.
The important part of the description of each class in the PIRS is the level of impairment – eg no deficit, mild impairment. What follows in each class are examples which demonstrate the level of impairment. In Jenkins v Ambulance Service of NSW[6] (Jenkins) Garling J said:
“The submission of the plaintiff that, in assigning a class of impairment to each scale, the AMS is restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum, cannot be accepted.
There are a number of reasons for this. First, the submission pays no heed to the importance, to which I have referred, of clinical assessment and judgment, both of which are required in formulating an opinion.
Secondly, as clause 11.7 of the WorkCover Guides records, there is an expectation that the psychiatrist will provide a rationale for the rating which is assigned. That rating is said to be: ‘… based on the injured worker’s psychiatric symptoms’.
But the activities (or perhaps lack of them) listed in the various tables go beyond symptoms. Those examples attempt to explore the ways in which a psychiatric condition impacts upon the activities of daily living of an individual, and their capacity to function in the areas described.
Next, the submission pays insufficient attention to the words in clause 11.13 of the WorkCover Guides. The words require the AMS to use the standard form when scoring the PIRS. It specifically then provides that the examples of activities are ‘examples only’. It then enjoins the AMS to take account of a person’s cultural background and to consider the individual’s activities that are usual ‘… for the person’s age, sex and cultural norms’.”
[6] [2015] NSWSC 633 at [57]-[65].
In Ferguson v State of New South Wales[7] (Ferguson) Campbell J said:
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’…”[8]
[7] [2017] NSWSC 887.
[8] At [24].
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Limited[9] (Parker) and said[10]:
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self care and hygiene, that is to say, a moderate impairment of self care and hygiene…”
[9] [2018] NSWSC 140.
[10] At [70]-[71].

In Elcheikh v Diamond Formwork (NSW) Pty Limited[11], Schmidt J summarised the task of the Medical Assessor when applying s 323:
“As discussed in Cole v Wenaline Pty Limited at [30], in the case of a workplace injury caused by an exacerbation or acceleration of a pre-existing condition, what must be determined by a medical specialist under s 323 is:
Firstly, what the extent of the resulting impairment is.
Secondly, whether the pre-existing condition contributed to the impairment.
Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition.”
[11] [2013] NSWSC 365.
In Ryderv Sundance Bakehouse[12] Campbell J said:
“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.”[13]
And
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.”[14]
[12] [2015] NSWSC 526.
[13] At [45].
[14] At [54].
Paragraph 1.27 of the Guidelines reads:
“The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.”

PIRS assessment

Self care and personal hygiene

The history taken by the Medical Assessor and all of the other assessors shows that assessment in Class 2 for Self care and personal hygiene was a reasonable exercise of his clinical judgement.
While his ability to care for himself is impacted by his injury, the fact is that Mr Amery lives alone and does so without regular support. The Medical Assessor was correct to say that he is generally self sufficient, even if he does not shower or change clothes daily and he does not prepare meals. The fact that he misses meals sometimes is consistent with assessment in Class 2.
The assessment in Class 2 is not glaringly improbable and does not disclose an error. It is not inconsistent with the histories obtained by others and set out above.

Social functioning

The reports summarised above contain examples of Mr Amery’s efforts to interact with others, many of which have been unsuccessful. The evidence suggests that Mr Amery does maintain some friendships and made some effort to play music until prevented from doing so by the Pandemic.
Those reports also show that Mr Amery’s last long term relationship ended before the injury. When all of the evidence is considered, it is apparent that his relationship with his family was fractured long before the injury. His treating doctors have a more detailed history in that regard than those he has seen for medico-legal purposes. Dr Miah’s report is important, as is Dr Chowdhury’s referral.
The Medical Assessor took those matters into account in assessing Mr Amery in Class 2 for Social functioning.
Dr Chow assessed Mr Amery in Class 3, in part relying on him being distant with his family. Dr Chow did not have an accurate history of Mr Amery’s family issues.
Mr Amery stressed in submissions that he maintained a relationship with one of his sisters after the injury and the loss of that relationship was sufficient to require assessment in Class 3. When the contemporaneous evidence is that Mr Amery does maintain some friendships, until curtailed primarily by the Pandemic, it cannot be said that assessment in Class 2 was glaringly improbable.
While some may have assessed the impairment as moderate, the assessment by the Medical Assessor was open to him.

Concentration, persistence and pace

The most useful tool for a Medical Assessor assessing Concentration, persistence and pace is the medical assessment itself. The Medical Assessor described his interaction with Mr Amery and said he consistently focused and demonstrated reasonable processing speed and pace. He spoke spontaneously. The assessment lasted an hour in both video conference and on the phone. The Medical Assessor also considered the history he obtained. His assessment in Class 2 was open to him and appropriate based on Mr Amery’s ability to engage with the assessment.
Dr Chow noted that Mr Amery complained of concentration difficulties but nonetheless assessed him in Class 2.

Section 323

The Medical Assessor made a deduction under s 323 of only one-tenth, despite Mr Amery’s significant history and did so on the basis that he was able to work despite chronic symptomatology.
Mr Amery said in his statement to Calvary’s insurer that he did not have any pre-existing medical conditions before his injury and that there was no history of psychological illness in his family. Similar statements are recorded in some of the reports in the file.
It is important to consider the histories Mr Amery gave when he first sought treatment and before he engaged with the compensation process. Dr Chowdhury’s referral to Dr Miah noted that a history of violence and physical abuse which affects Mr Amery’s mental health and she referred him for treatment for an exacerbation (our emphasis) of anxiety symptoms. Dr Miah recorded an increase in generalised anxiety symptoms on a background of chronic post-traumatic stress disorder symptoms and persistent depressive disorder since his mid-teens. Like Dr Synnott, Dr Miah noted personality vulnerabilities. The change in symptomatology brought on by the work injury was the onset of panic symptoms.
Mr Amery saw a new general practitioner from mid 2020 and was referred to Dr Zhang. His past problems are downplayed in the history provided to Dr Zhang and those who have examined him subsequently.
Dr Chow did not make any deduction under s 323 but he obtained a history that Mr Amery had no pre-existing condition. He came to that view despite having been provided with Dr Miah’s reports and Dr Chowdhury’s referral.
It was open to the Medical Assessor to conclude that Mr Amery had a significant pre-existing condition not just vulnerabilities. The evidence shows that he did. The Medical Assessor made the assessment under s 323 in the manner required. He accepted that the pre-existing condition made a difference to the assessed impairment and the deduction of one-tenth was appropriate.
For these reasons, the Appeal Panel has determined that the MAC issued on 19 October 2021 should be confirmed.

[2022] NSWPICMP 34

3 March 2022