Baptistcare NSW & Act v Matheson

[2025] NSWPICMP 511

DETERMINATION OF APPEAL PANEL
CITATION:	Baptistcare NSW & ACT v Matheson [2025] NSWPICMP 511
APPELLANT:	Baptistcare NSW & ACT
RESPONDENT:	Michele Matheson
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	15 July 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); assessment of primary psychological injury; parties agreed that respondent worker had suffered a primary psychological injury as alleged, deemed to have occurred on 13 July 2013, and a secondary psychological condition resulting from physical injury sustained on 5 June 2012; Medical Assessor erred in failing to consider the question of a secondary psychological injury; no error in finding that there was no proportion of the impairment due to a previous injury, pre-existing condition or abnormality; error in assessing 1% whole person impairment (WPI) for effects of treatment as no apparent substantial or total elimination of permanent impairment, as required by clause 1.32 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed; respondent worker re-examined; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 13 October 2023 Baptistcare NSW & ACT (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerard Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 September 2023.

2. 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 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. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.

5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
   1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

1. Michele Matheson sustained a psychological injury during the course of her employment with the appellant on 30 April 2014.

2. Ms Matheson commenced proceedings in the Personal Injury Commission (the Commission) by filing an Application to Resolve a Dispute (ARD) claiming medical expenses and lump sum compensation dated 23 March 2023.

3. In a Certificate of Determination – Consent Orders dated 8 June 2023, Member Diana Benk determined:

   “1. The matter is to be remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:

   a. date of injury: 13 July 2013

   b. body systems/parts: psychological/psychiatric

   c. method of assessment: whole person impairment.

   2.      The documents to be reviewed by the Medical Assessor are:

   a. application to resolve a dispute and attached documents; and

   b. respondent’s reply and attached documents.

   Notations:

   1.      The parties agree that the applicant has suffered a primary psychological injury as alleged, deemed to have occurred on 13 July 2013 and a secondary psychological condition resulting from physical injury sustained on 5 June 2012.

   2.      The Respondent voluntarily agrees to pay reasonably necessary section 60 expenses up to the sum of $599 on the production of accounts, receipts or Medicare Notice of Charge”.

4. On 8 June 2023, the matter was referred to a Medical Assessor, Dr Gerald Chew (Medical Assessor), to assess the whole person impairment (WPI) due to a psychological injury sustained on 13 July 2013.

5. The Medical Assessor examined Ms Matheson on 15 June 2023 and provided his Medical Assessment Certificate (MAC) on 18 September 2023. Ms Matheson was assessed as having 17 % WPI and 1% WPI was added for effects of treatment. This resulted in a total of 18% WPI.

6. The appellant appealed the decision of Medical Assessor on the basis that the MAC contained a demonstrable error.

7. The matter came before a Medical Appeal Panel (the first Panel). The first Panel determined that there was an error in the MAC and that it was necessary for Ms Matheson to undergo a further medical examination. On 24 May 2024, following a re-examination, the first Panel assessed 13% WPI on the basis that the current degree of WPI was 17%, before deducting an amount of 1.5% for a pre-existing condition, and 2.5% for a “secondary psychological injury.”

8. Ms Matheson filed a summons in the Supreme Court of New South Wales on 14 August 2024 seeking judicial review of the determination and certificate of the first Panel.

9. The matter was heard before Basten AJ (Matheson v Baptistcare NSW & ACT [2025] NSWSC 213) who held that contrary to the decision in Marks v Secretary, Department of Communities and Justice (No 2) Cl 11.10 of the Guideline was not invalid in cases where the worker had a previous injury which was asymptomatic. Basten JA found that there was no finding by the first Panel of any level of pre-existing impairment in accordance with the Guidelines and the making of a deduction pursuant to s 323(1) in respect of a pre-existing condition, the existence of which was merely assumed, was an error of law. In relation to the deduction for secondary psychological condition, Basten JA noted that as can be seen from s 65A (2) of the Workers Compensation Act 1987 (1987 Act), impairment resulting from a secondary psychological injury is not so much a basis for a deduction as a matter to be disregarded in assessing the permanent impairment resulting from the primary psychological injury. He considered that one consequence of this approach is that both must be assessed on the correct basis, namely by application of the Guidelines and the first Panel did not undertake that exercise because it did not carry out the process mandated by the Guidelines in assessing the primary injury.

10. Accordingly, Basten JA made orders setting aside the determination of the first Panel of 17 May 2024 and the medical certificate issued by the Commission and dated 17 May 2024. He noted that the effect of these orders would be to leave the Medical Assessor’s certificate on foot together with an unresolved application for review by an appeal panel.

11. The matter was referred to this Appeal Panel (the Appeal Panel) on 9 April 2025.

PRELIMINARY REVIEW

1. 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.

2. The appellant submits that given the Medical Assessor failed to take an adequate history regarding the worker’s secondary and other psychological condition and the effects of treatment, that Ms Matheson should be examined by a member of the Appeal Panel. The appellant argued that re-examination is required to address the extent of the deduction that should be applied pursuant to s 323 of the Act and whether there should be any allowance for the effects of treatment.

3. As a result of that preliminary review, the Appeal Panel determined that Ms Matheson should undergo a further medical examination because there was insufficient evidence on which to make a determination.

EVIDENCE

Documentary evidence

1. 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.

Further medical examination

1. Dr Michael Hong of the Appeal Panel conducted an examination of Ms Matheson on 3 June 2025 and reported to the Appeal Panel.

Medical Assessment Certificate

1. 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.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.

2. The appellant’s submissions include the following:

   (a)    Ground 1 – secondary psychological condition – the Medical Assessor erred in failing to refer to and consider the Ms Matheson’s pre-existing secondary psychological injury due to physical injury sustained on 5 June 2012, as well as other pre-existing psychological symptomology suffered by her prior to the subject work injury.

   (b)    In respect of Ms Matheson’s secondary psychological condition related to the physical injury sustained on 5 June 2012 and the physical injury itself, the appellant notes the following evidence:

   (i)paragraphs 83 and 84 of Ms Matheson’s statement (page 9 of the ARD);

   (ii)report from Ms Matheson’s exercise physiologist (page 16 of the ARD), dated 29 April 2013;

   (iii)handwritten note on Dr Petroff’s report dated 4 October 2017 (page 49 of the ARD);

   (iv)Dr Chow’s report (page 70 of the ARD, paragraph 1);

   (v)spinal function questionnaire dated 10 December 2014, (page 105 of the ARD);

   (vi)final assessment report from Ms Matheson’s exercise physiologist dated 8 March 2013 (page 149 of the ARD);

   (vii)treatment notes dated 17 November 2015 (page 196 of the ARD), and

   (viii)report from Lismore Base Hospital dated 6 October 2015 (page 216 and 218 of the ARD);

   (c)    In respect of other pre-existing psychological symptoms, the appellant notes evidence including:

   (i)statement of Ms Christine Reeves (page 20 of the Reply at paragraph 8);

   (ii)Ms Matheson’s statement (paragraphs 6 to 8 on page 1 of the ARD and paragraphs 11 and 12, page 2 of the ARD). These same incidents/issues were recorded by Ms DR Chow (pages 62 and 63 of the ARD, under “Past Medical/Psychiatric History”);

   (iii)report of Dr Rowe (page 226 of the Reply);

   (iv)Procare monthly status update dated 12 February 2014 (page 278 of the Reply under “Current Status”);

   (v)email from the insured dated 16 May 2013 (page 12 of the ARD);

   (vi)report of Dr Juluis Petroff, dated 16 March 2016 (page 38 of the ARD);

   (vii)psychological assessment undertaken by Lismore Base Hospital on 30 September 2015 (page 259 of the ARD);

   (viii)handwritten note on Dr Petroff’s report dated 27 June 2016 (page 40 of the ARD);

   (ix)Dr Petroff’s report (page 52 of the ARD), handwritten note of Dr Petroff on that same report dated 16 April 2018, report dated 6 February 2018 (page 219 of the Reply);

   (x)report from psychologist, Mr Matt Wagner, dated 22 February 2020 (page 55 of the ARD), and report on 11 March 2020 (page 56 of the ARD);

   (xi)Dr Rowe’s report (page 225 of the Reply);

   (xii)report of Dr Chow, (pages 61 and 63 of the ARD);

   (xiii)treatment notes dated 17 November 2015 (pages 196 and 197 of the ARD;

   (xiv)a report from Lismore Base Hospital dated 19 November 2015 (page 213 of the ARD); that Ms Matheson had been anxious since early childhood and that it had affected her participation and enjoyment in a range of life activities, and

   (xv)report of Dr Rowe (page 227 of the Reply).

   (d)    The evidence before the Commission establishes Ms Matheson had suffered a secondary psychological injury as a result of an accepted physical work injury on 5 June 2012, as well as a host of prior psychological symptoms related to other events in her life.

   (e)    The Medical Assessor has not taken any history in relation to the bullying and harassment alleged by Ms Matheson to be causative of the primary psychological injury deemed to have occurred on 13 July 2013.

   (f)    The only comments made by the Medical Assessor in the MAC regarding Ms Matheson’s physical injury were as follows:

   (i)“She reported that after a back injury in June 2012 she was subject to bullying and harassment at work. She reported that she was attacked by a client while cleaning him after he had lost control of his bowels.” (Page 2 of the MAC.)

   (ii)“General health: Back injury in 2012…” (Page 2 of the MAC.)

   (g)     Ground 2 – s 323 deduction – under “Details of any previous or subsequent accidents, injuries or conditions” at Part 4, Page 2 of the MAC, the Medical Assessor then recorded:

   “She suffered from anxiety as a child which improved in her teenage years. She had a MVA in 1990 and had some psychological symptoms for a number of months after. She felt depressed after the death of her father in 1988 from pancreatic cancer. Around 12 years ago in the context of marriage breakdown she had anxiety and depressive symptoms and was treated with antidepressants and made a recovery.”

   (h)    In respect of the issue of whether any deduction should be applied pursuant to s 323 of the 1998 Act, the Medical Assessor responded at Part 8, Page 3 of the MAC with “No” in respect of that issue.

   (i)    The assessment from the Medical Assessor contains a demonstrable error due to his failure to apply a deduction under s 323 in view of all the evidence before him.

   (j)    The principles pertaining to the deduction pursuant to s 323 the 1998 Act are well established. The pre-existing injury, pre-existing condition or abnormality must cause or contribute to the impairment. If a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even where the pre-existing condition was asymptomatic prior to the injury; (D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep); Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]-[32]; Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [13]; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [42] to [43]).

   (k)    The case law is clear that it does not matter if the pre-existing condition was asymptomatic, rather if the loss is to some extent due to the pre-existing condition, there must be deduction of the deductible proportion for that loss, (Government Cleaning Service v Ellul (1996) 13 NSW CCR 344 at 349).

   (l)    The matter of Cole v Wenaline Pty Limited (cited above) confirmed the Medical Assessor is required to establish whether the pre-existing condition caused or contributed to the impairment “where there is evidence of ‘actual consequences’ of the earlier injury on the later impairment”.

   (m)     With respect to the deduction a Medical Assessor is to make under s 323(1), the authorities before the Commission are consistent and clear regarding the approach that must be taken.

   (n)    The level of a worker’s post-injury impairment as at the time of assessment must firstly be determined. Secondly, a worker’s prior injury or pre-existing condition or abnormality must be identified. Thirdly, it must be determined whether a proportion of a worker’s post-injury impairment is due to that prior injury or pre-existing condition. Lastly, the extent to which a worker’s post-injury impairment is due to the prior injury or pre-existing condition or abnormality must be determined.

   (o)    This process cannot be done based on assumption or hypothesis but must be done by reference to the evidence.

   (p)    Section 325(2)(c) of the 1998 Act requires a Medical Assessor to set out within the MAC the reasons for the assessment of the matters that were referred for assessment. The reasons must be sufficient to reveal the actual path by which a Medical Assessor arrives at his assessment. Whilst the reasons do not need to be comprehensive and do not need to refer to every piece of evidence before the Commission, there must be sufficient reasoning to soundly support the conclusions reached by the Medical Assessor.

   (q)    On the face of the MAC, it is clear that the evidence has not been appropriately addressed by the Medical Assessor. The conclusion reached by the Medical Assessor is at odds with the available evidence and that on taking into account that evidence, the Medical Assessor is in no position to conclude that the consideration of a deduction under s323 of the 1998 Act is not applicable.

   (r)    Ground 3 – effects of treatment – the Medical Assessor assessed 1% WPI for the effects of treatment, but provided no comment, rationale or reason for that assessment. There are no comments made by the Medical Assessor about this aspect within the MAC, and the only indication that this has been assessed is in the table on Page 5 of the MAC.

   (s)    The Guidelines at Part 1.32 provides that:

   “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%.”

   (t)    Again, the reasons set out in a MAC must be sufficient to reveal the actual path by which a Medical Assessor arrives at his or her assessment, pursuant to s 325(2)(c). The absence of any comment from the Medical Assessor addressing the effects of treatment clearly fall far short of this standard and reflects demonstrable error on the face of the MAC.

   (u)    Summary – there is evidence to support a contention that there should be a deduction pursuant to s 323. In addition, there is an absence of sufficient reasons on the face of the MAC for the Medical Assessor’s assessment of an additional 1% WPI in respect of the effects of treatment. For those reasons, the MAC contains demonstrable error

   (v)    Other matters – there appears to be a typographical error in the MAC, in that the Medical Assessor has recorded that the Median Class is Class 2, as opposed to Class 3, which should be rectified.

3. In reply, Ms Matheson’s submissions include the following:

   (a)    Ground 1 – it is acknowledged that the medical dispute between the parties always included the issue of the secondary psychological injury. It is acknowledged that the “medical dispute referred must be the medical dispute the parties have sought to have referred.”

   (b)    There is no indication that the Medical Assessor dealt with or considered in any meaningful way the issue of the secondary psychological injury and its impact, if any, on the WPI assessment. The appropriate approach would be that the matter be referred back to the Medical Assessor for reconsideration, to consider the impact, if any, of the secondary psychological injury, on the WPI assessment.

   (c)    Ground 2 – failure to make any deduction for a pre-existing injury, condition or abnormality. There is simply no evidence that Ms Matheson was suffering from any measurable impairment resulting from a secondary psychological injury prior to the development of the primary psychological injury that could ground a deduction.

   (d)    The matters that are set out in the appellant’s submissions on the appeal demonstrate that the psychological symptoms were so enmeshed between the physical injury and the psychological injury, that they cannot be disentangled from one another.

   (e)    It is impossible to identify which symptoms related to her chronic pain and those which related to the primary psychological injury. This explains why neither of the qualified doctors did so.

   (f)    None of the matters referred to in the appellant’s submissions can be specifically identified as resulting from either the secondary psychological injury or the primary psychological injury.

   (g)    In relation to Dr Rowe’s conclusion that Ms Matheson’s psychiatric diagnosis was secondary to her physical injury, Dr Rowe failed to take a complete history regarding the bullying, and therefore his opinion is unreliable. He has failed to provide a proper basis for the opinion. He did not deal with the accepted primary psychological injury and the history of the maltreatment by the co-workers and the employer during the return-to-work period.

   (h)    In relation to the appellant’s evidence of preexisting psychological symptoms, neither Dr Rowe nor Dr Chow made any deduction for a pre-existing condition. There is no evidence of any measurable pre-existing impairment. At best for the appellant, Dr Rowe characterised Ms Matheson as having a “lifelong insecure personality” and that she was quite “vulnerable to feeling anxious and despondent”. This does not mean however that deduction for a pre-existing condition is justified. Many of the matters referred to by the appellant demonstrate the identified vulnerability but do no more than that.

   (i)    Ground 3 – effects of treatment – the Medical Assessor, assigned 1% for the effects of treatment which is consistent with the opinion of Dr Kai Tai Chow. Although it is not specifically explained, it is implicit that Dr Chow considered that Ms Matheson had received some benefit from the treatment she had received. The Medical Assessor’s assignment of 1% correlates with the opinion of Dr Chow.

   (j)    Error in respect of the Median Class – Ms Matheson agrees that the Medical Assessor has made an error in respect of the Median Class which should be 2.5 rounded up to 3.

   (k)     It is submitted that the matter ought to be referred back to the Medical Assessor to address the issue of the secondary psychological injury and to provide reasons for assessment of 1% WPI in respect of the effects of treatment.

FINDINGS AND REASONS

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

2. In Campbelltown City Council v Vegan [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.

3. The Appeal Panel has reviewed the MAC and the evidence in this matter.

4. The Appeal Panel notes that both parties agree that the Medical Assessor made an error in respect of his finding of the Median Class and that the Median Class is 2.5 rounded up to 3.

Ground 1 – secondary psychological injury related to physical injury on 5 June 2012.

1. The appellant submits that the Medical Assessor erred in failing to refer to and consider the Ms Matheson’s pre-existing secondary psychological injury due to physical injury sustained on 5 June 2012, as well as other pre-existing psychological symptomology suffered by her prior to the subject work injury.

2. The Medical Assessor, under “History Relating to the Injury”, noted:

   “She reported that after a back injury in June 2012 she was subject to bullying and harassment at work. She reported that she was attacked by a client while cleaning him after he had lost control of his bowels.

   She engaged in treatment by her GP and the also engaged a psychologist and psychiatrist”.

3. Under “Details of any previous or subsequent accidents, injuries or conditions” the Medical Assessor wrote:

   “She suffered from anxiety as a child which improved in her teenage years.

   She had a MVA in 1990 and had some psychological symptoms for a number of months after.

   She felt depressed after the death of her father in 1988 from pancreatic cancer.

   Around 12 years ago in the context of marriage breakdown she had anxiety and depressive symptoms and was treated with antidepressants and made a recovery.”

4. Under “Evaluation of Permanent Impairment” the Medical Assessor wrote:

   “e.     Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? no

   f.      If so, please indicate which body part/system is affected by the previous injury, preexisting condition or abnormality. No”.

5. Section 65A of the 1987 Act provides:

   “65A Special provisions for psychological and psychiatric injury

   (1)     No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.

   (2)     In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.

   …

   (5)     In this section—

   primary psychological injury means a psychological injury that is not a secondary psychological injury.

   psychological injury includes psychiatric injury.

   secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”(emphasis in original)

6. The Guidelines at 1.22 provide:

   “1.22 A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work related condition (eg depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in [the] section [headed] Multiple impairments, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined.”

7. In Mercy Connect Ltd v Kiely [2018] NSWSC 1421(Keily No 2) Harrison AsJ in obiter dicta set out a two step process by which a Medical Assessor could apply the provisions of 
   s 65A(2) of the 1987 Act to have no regard to impairment or symptoms from a secondary psychological injury. Her Honour said:

   “96.   The statutory scheme comprising of the WIM Act and the Workers Compensation Act creates a two-step approach in assessing the degree of WPI for a psychological injury. The assessor must first calculate the entire degree of psychological injury in line with the PIRS categories. The secondary psychological injury must then be assessed and deducted in accordance with s65A of the Workers Compensation Act, leaving the primary psychological injury remaining.

   97.    This two-step process accords with the referral of the Workers Compensation Commission on 24 October 2016. This referral provided for the AMS to assess the degree of WPI arising out of the primary psychological injury sustained by Ms Kiely as a result of the incident, excluding ‘any impairment or symptoms arising from or attributable to, the secondary psychological condition’.”

8. Basten AJ in Matheson v Baptistcare NSW & ACT [2025] NSWSC 213 recently considered how to treat the assessment of the secondary psychological injury. At [50] he wrote:

   “As can be seen from s 65A(2), impairment resulting from a secondary psychological injury is not so much a basis for a deduction as a matter to be disregarded in assessing the permanent impairment resulting from the primary psychological injury. One consequence of this approach is that both must be assessed on the correct basis, namely by application of the Guidelines”.

   And at [55]

   “In stating that ‘no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury’, s 65A(2) is badly worded: it does not require the medical assessor to have no regard to such impairment or symptoms; on the contrary, they are to be identified so as to exclude them from the assessment process. That exercise must be undertaken in conjunction with the assessment of the degree of permanent impairment attributable to the primary psychological injury the subject of the claim. Thus, a secondary psychological injury is to be identified and then disregarded in calculating the degree of permanent impairment arising from the injury the subject of the claim”

9. At [63] Basten AJ wrote:

   “As noted above, that exercise is not in accord with the language of s 65A. It is also inconsistent with the recent decision of the Court of Appeal (post-dating the appeal panel decision in this matter), Coca-Cola Europacific Partners API Pty Ltd v Pombinho. ^[9] In that case ground 4 before the appeal panel had “addressed the fact that no deduction was applied by the Medical Assessor for the purposes of s 323 of the [Workplace Injury Act]”. ^[10]  Although not concerned with s 65A of the Workers Compensation Act, Ward P held:

   ‘[86] In any event, Ground 4 in my opinion suffices to bring the assessment of Mr Pombinho’s current whole person impairment within the scope of the grounds of appeal and hence within the jurisdiction of the Appeal Panel. That is because I accept the appellant’s submission that, in order to determine the impact of pre-existing injury on current whole person impairment, a comparative exercise was necessary and that it would be logically incoherent simply to begin the exercise from a fixed starting point (ie, the 24% whole person assessment made by the Medical Assessor) and then separately to consider the extent to which pre-existing injury contributed to that whole person impairment (and then to apply that amount to the fixed starting point) without considering the starting point itself. The approach required by the Guidelines is a subtractive approach, requiring a deduction from the starting point of whole person impairment but it would make the exercise artificial if, having been required to consider all of the material that the Medical Assessor had failed to consider, the Appeal Panel could not then revisit the starting point of the assessment.’

   64.The application of s 65A provides a far stronger basis for that reasoning than the exercise required by s 323, just because it is not a ‘subtractive approach’. That is, even if one accepted that deductions could be made under s 323 from a fixed starting point, s 65A is only directed to the starting point. The reasoning in Pombinho applies a fortiori and, although arguably obiter, should be applied by this Court.”

10. The appellant relies on the following evidence in respect of the pre-existing secondary psychological condition due to the injury to the back on 5 June 2012:

    (a)    At paragraphs 83 and 84 of Ms Matheson’s statement, page 9 of the ARD, under the sub-heading “Psychological/psychiatric” she reported that “I have become depressed as I cannot do things I used to do before the incident, and from being unable to obtain employment due to my injury”. She stated that “this hurts me and makes me feel guilty, worthless and hopeless”, and that she had poor motivation and energy. The Appeal Panel notes that it is not clear if these comments relate to the secondary psychological injury or the primary psychological injury as references in preceding parts of the statement at paragraph 66 describe Ms Matheson having nightmares a few times a week usually about being attached at work or being bullied and harassed by employees of the nursing home.

    (b)    In a report from Ms Matheson’s exercise physiologist, Tim Boyd, at page 16 of the ARD, dated 29 April 2013, he noted that at the assessment on 29 April 2013 Ms Matheson reported “increasing anxiety and depression related to her persisting pain and associated workplace issues.” She also stated that persisting thoracic and thorax pain was “limiting her work capability and contributing to work-related anxiety”. He noted: “Reports conflicting workplace expectations and directions regarding suitable duties tasks”. In a final assessment report from Ms Matheson’s exercise physiologist dated 8 March 2013, at page 149 of the ARD, Ms Matheson reported mild anxiety and moderate depression which he attributed to her persisting pain condition, concerns about her job security, and her inability to maintain domestic tasks to her normal standards.

    (c)    In a handwritten note on Dr Petroff’s report dated 4 October 2017 at page 49 of the ARD, it was noted Ms Matheson had a complex psychiatric diagnostic construct which included a chronic pain syndrome, personality disorder and compensation... The Appeal Panel notes that it is not possible to decipher the last two lines of this handwritten note.

    (d)    At page 70 of the ARD, Dr Chow, in a report dated 23 December 2022, acknowledged that Ms Matheson continued to suffer from chronic back pain which would have an impact on her psychological state as well, and specifically noted that he considered there was a combination of primary psychological injury from bullying and harassment, as well as a secondary psychological injury from her back injury.

    (e)    In a Physio Plus – spinal function questionnaire dated 10 December 2014, at page 105 of the ARD, Ms Matheson reported that pain had restricted her social life and she did not go out often as a result.

    (f)    Treatment notes of the clinical psychologist of the Pain Clinic at Lismore Base Hospital dated 17 November 2015, at page 196 of the ARD noted that Ms Matheson became panicky in the desensitisation period in the group program whilst focusing on her pain and started to hyperventilate. However, it appears that Ms Matheson was encouraged to engage in controlled breathing which reduced her panic symptoms immediately and she was able to engage in the desensitisation again and complete the task without further distress. It was also noted after asking her if she had any self harming or suicidal thoughts that she said she had no plan or intent of suicide and would never go through with any thoughts of suicide as she had witnessed the stress this behaviour could place on family when her brother had attempted suicide in the past. Ms Mathesson also stated that her children and grandchildren were protective barriers against suicidal behaviour.

    (g)    In a report dated 6 October 2015, Dr Paul Cochrane of the Multidisciplinary Pain Management Clinic, noted (at page 216 of the ARD), that Ms Matheson did not socialise a lot because she felt that people did not understand her pain and she was judged if she was required to leave early. On page 217 of the ARD, he wrote:

    “During the interview, Michele reported that her mood had declined significantly since the onset of her pain and that she felt depressed most days. Her affect at the time of the interview was congruent with her self-reports. Michele stated that she regularly experienced low levels of energy, low motivation, frequent bouts of melancholy and irritability, moderate levels of anhedonia and mild impairments to her memory, concentration and decision making, as well as the propensity to comfort eat. Michele stated that she had not been formally diagnosed with depression and was not taking an antidepressant or linked up to psychological help to assist her with the management of her mood. She reported nil suicidal history or ideation (current). As well as her pain being a maintaining factor of her lowered mood, Michele stated that she had lost her job and had filed for bankruptcy, resulting in high levels of hopelessness for the future regarding her ability to be employed as a nursing assistant. Michele also reported high levels of anger and grief from the loss of her job and the way she was treated by her former employer. A strength that Michele discussed was that she had recently completed a Certificate Ill in Practice Management with the aim that she may be able to work as a practice manager for a medical office in the future. However despite attaining this qualification, Michele stated that she was uncertain of her ability to fulfil this role due to her persistent pain and its effect on her emotional stability and functioning. In addition to a depressed mood, Michele disclosed that she experiences heightened levels of anxiety in social situations involving the following symptoms: shakiness, nausea, butterflies in her stomach and the fear of being appraised negatively by others. This has consequently led her to becoming more withdrawn, avoidant and socially isolated from friends and family. In addition to these symptoms, Michele also reported experiencing nocturnal panic attacks with the last episode occurring a few months ago.”

    (h)    At page 228 of the Reply, Dr Rowe made a diagnosis of mild post-traumatic stress disorder. This psychiatric diagnosis is secondary to her physical injury. He reported that it was Ms Matheson’s physical condition rather than her emotional state which was the main impediment to her securing employment. He wrote: “She does have a vulnerable personality, but she did not have an impairment prior to her injury.” At page 256 of the Reply, Dr Rowe reiterates that Ms Matheson’s “psychiatric diagnosis is secondary to her physical injury” and “although she had a vulnerable personality, her psychological state is secondary to her physical injury”.

11. In respect of other pre-existing psychological symptoms, the appellant referred to the following evidence:

    (a)    Ms Christine Reeves, noted on page 20 of the Reply at paragraph 8 that prior to her injury if Ms Matheson was “moody on arrival” at work, she could be quite lazy, suggesting symptomatic mood issues prior to the work injury.

    (b)    In her statement dated 16 August 2022, at paragraphs 6 to 8 on page 1 and paragraph 11 and 12 on page 2 of the ARD, Ms Matheson wrote:

    “6. I had anxiety as a child which improved in my late teenage years.

    7. In or around 1990 I suffered sore knees after a motor vehicle accident from which I made a full recovery. I also suffered PTSD as a result of the accident.

    8. In or around 1998 I felt depressed for a few months after my father died on my birthday from pancreatic cancer…

    11. I received a short period treatment for symptoms of anxiety and depression including taking antidepressants following the breakup of my marriage and divorce around 12 years ago.

    12. I have experienced periods of stress and grief due to my mother’s cancer diagnosis.”

    (c)    Dr Chow, in his report dated 4 March 2022, under “Past Medical/Psychiatric History” wrote:

    “Ms Matheson has chronic back pain, high blood pressure, gastric reflux and asthma.

    She has had some anxiety since she was young and she was a shy child. She had a MVA in 1988 and she had PTSD. She said she saw a psychologist and she was able to recover.

    She was depressed when she separated from her ex-husband 22 years ago. She admitted to being depressed after her father passed away 20 years ago and was on antidepressant for six months.

    In 2005 and 2007 she was on Workers’ Comp claims briefly for two physical injuries”.

    Dr Chow noted that Ms Matheson reported that she eventually became suicidal “after the nursing home close down in July 2013”. Dr Chow noted that byer childhood was good with no childhood trauma. He wrote:

    “She was previously married in 1980 and separated 20 years ago. She still has contact with her ex-husband who comes and helps with mowing her lawn. She has three children and ten grandchildren. She has regular contact with one son and three grandchildren and some contact with her other children. There are no other psychosocial stressors.”

    (d)    Dr Rowe in his report of 10 October 2018, noted that Ms Matheson still had some mid back pain but it was not as severe as it was for months or so following the injury in June 2012. Under “Past Health” he reported:

    “About 2011 she was taken to hospital when she was ‘not feeling too well’ (this seems to have been the time when she was somewhat distressed when her daughter was having problems with her partner who was apparently abusing their daughter, which resulted in her daughter taking out an AVO against him sometime later. It was discovered at that time that Ms Matheson had a significantly raised blood pressure and has been taking medication for her raised BP since then. Her daughter and grandchild were living with her for a while at that time, but they have since moved to Coomera, in Queensland.

    She had her gallbladder removed when she was aged about 24.

    Mrs Matheson developed a phobia about winds and storms since their caravan was

    blown over in 1979 when she and her husband were living in a caravan park.

    She states she has always been ‘shy’ and uncomfortable with new people”.

    Dr Rowe noted that she had a good but unremarkable childhood. Dr Rowe expressed the opinion that Ms Matheson had a “lifelong insecure personality and therefore quite vulnerable to feeling anxious and despondent”. He wrote “There is no deduction for any previous condition as she had no impairment as such prior to her back injury.”

    (e)    A “Summary of Session” by Dr Juluis Petroff, dated 16 March 2016, recorded that Ms Matheson suffered from a mixed episode of a bipolar II disorder, a pain disorder, associated with both psychological factors and a general medical condition as well as personality traits contributing to an axis I disorder. Dr Petroff also recorded that Ms Matheson had suffered “lifelong” depression, and declared bankruptcy on a personal loan for dental work in 2015. In a handwritten note on Dr Petroff’s summary dated 27 June 2016, he noted Ms Matheson’s “platform of mental, chronic pain and psychiatric issues are underscored by a Bipolar II disorder and a severely prejudicial [sic] childhood”. On 20 March 2018 in Dr Petroff’s summary, he noted Ms Matheson suffered bereavement when “her father-in-law’s brother died 96”. It was also recorded that Ms Matheson had suffered from “lifelong shyness, relative isolation and simple phobias. Couple of friends only but not seen for years.”. In a handwritten note on that same summary dated 16 April 2018, Dr Petroff noted Ms Matheson’s anxiety in the context of her mother’s cancer operation.

    (f)     In a report from psychologist, Mr Matt Wagner, dated 22 February 2020, he noted Ms Matheson reported “significant psychosocial stressors within her family” which further impacted her mood. In a report dated 11 March 2020, Mr Wagner wrote: “ichelle has a history of complex Post Traumatic Stress Disorder, Major Depression, and Chronic Pain concerns. Her trauma is primarily related to severe bullying she experienced when she was working as an AIN in a nursing home” and  then reported: “Michelle reports that she has significant family stressors at the moment which are further impacting on her mental health.”

    (g)    Treatment notes of the clinical psychologist of the Pain Clinic at Lismore Base Hospital dated 17 November 2015, at pages 196 and 197 of the ARD (see above).

    (h)    A report from Wendy Borislavsky, clinical psychologist at Lismore Base Hospital Pain Management Clinic dated 19 November 2015, noted that Ms Matheson had been anxious since early childhood and that it had affected her participation and enjoyment in a range of life activities.

    (i)    Psychological assessment undertaken by Lismore Base Hospital Pain Management Clinic on 30 September 2015 at page 259 of the ARD, under significant trauma/stressor history noted bankruptcy issues and father’s death as significant traumas/stressors.

    (j)    Gina Bremner of Procare Injury Management provided a monthly status update dated 12 February 2014 which noted at page 278 of the Reply, under “Current Status”, that Ms Matheson was experiencing some psychosocial issues, as she had been supporting her daughter and grandson through an Apprehended Violence Order before the court. It was noted the daughter’s partner had abused Ms Matheson’s grandson and this had been playing on her mind. However, Ms Bremner noted that Ms Matheson continued to participate in job seeking activities.

    (k)    In an email from the insured dated 16 May 2013, it was noted Ms Matheson:

    “…had a bad week that week, with children and school, other family matters that all added pressure. Michelle informs me that she is supported at work, however there are times when her fellow employees may not ‘understand’ however has agreed it is better to report these things to Rita than to bring in an outsider unnecessarily”.

1. The Appeal Panel notes that Ms Matheson addressed this in her statement describing difficulties with other workers on that day, including being yelled at by the Acting Manager. She stated that she had seen Mr Boyd later that day for an exercise class and broke down in tears in front of him because she was very upset at the way she had been treated at work. She wrote: “I understand that Mr Boyd was concerned about me so he wrote a letter to my employer.”

2. The appellant submits that the evidence before the Commission clearly establishes Ms Matheson had suffered a secondary psychological injury as a result of an accepted physical work injury on 5 June 2012, as well as a host of prior psychological symptoms related to other events in her life.

3. The Appeal Panel agreed with the appellant that the Medical Assessor has not taken any history in relation to the bullying and harassment alleged by Ms Matheson to be causative of the primary psychological injury deemed to have occurred on 13 July 2013, apart from the following:

   (a)    “She reported that after a back injury in June 2012 she was subject to bullying and harassment at work. She reported that she was attacked by a client while cleaning him after he had lost control of his bowels.” (Page 2 of the MAC)

   and

   (b)    “General health: Back injury in 2012…” (Page 2 of the MAC)

4. The parties had agreed that the applicant has suffered a primary psychological injury as alleged, deemed to have occurred on 13 July 2013 and a secondary psychological condition resulting from physical injury sustained on 5 June 2012.

5. Thus, a secondary psychological injury should have been identified and then disregarded in calculating the degree of permanent impairment arising from the injury the subject of the claim.

6. The Appeal Panel accepts that the Medical Assessor failed to consider the question of a secondary psychological injury due to physical injury sustained on 5 June 2012. The failure to consider the secondary psychological injury was a demonstrable error. This ground of appeal is made out.

Ground 2 – s 323 deduction

1. The appellant submits that the assessment from the Medical Assessor contains a demonstrable error due to his failure to apply a deduction under s323 in view of all the evidence before him.

2. Under “Details of any previous or subsequent accidents, injuries or conditions” the Medical Assessor wrote:

   “She suffered from anxiety as a child which improved in her teenage years.

   She had a MVA in 1990 and had some psychological symptoms for a number of months after.

   She felt depressed after the death of her father in 1988 from pancreatic cancer.

   Around 12 years ago in the context of marriage breakdown she had anxiety and depressive symptoms and was treated with antidepressants and made a recovery.”

3. Under “Evaluation of Permanent Impairment” the Medical Assessor wrote:

   “e.     Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? no

   f.      If so, please indicate which body part/system is affected by the previous injury, preexisting condition or abnormality. No”.

4. Section 323 of the 1998 Act provides:

   “(1)    In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.

   (2)     If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.

   Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).

   (3)     The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.

   (4)     The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section”.

5. The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole). Schmidt J said: 

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

   30     Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence. 

   31     ...That is a matter of fact to be assessed on the evidence led in each case”.

6. At [38] of Cole, Schmidt said:

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

7. Part 11.10 of the Guidelines states:

   “Pre-existing impairment: To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI”.

8. The appellant submits that the assessment of the Medical Assessor contains a demonstrable error due to his failure to apply a deduction under s 323 in view of all the evidence before him.

9. In Vitaz v Westform (NSW) Pty Limited [2011] NSWCA 25 the Court said at [43]:

   “The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury. In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”

10. The Appeal Panel noted that neither of the independent medical examiners (IMEs) made a deduction for pre-existing condition.

11. Dr Rowe, in his report of 10 October 2018 (page 785), wrote:

    “9.     Would you also please consider the issue of whether any psychological injury can be classified as a primary psychological injury or whether it is a secondary psychological injury (le. arising as a consequence of, or secondary to, a physical Injury).

    Although she had a vulnerable personality, her psychological state is secondary to her physical injury”.

12. Dr Rowe wrote: “The assessment of whole person impairment is provided on a separate page. There is no deduction for any previous condition as she had no impairment as such prior to her back injury”.

13. Dr Chow in his report of 8 March 2022 made no deduction for any pre-existing injury, condition or abnormality.

14. The Appeal Panel notes that the appellant referred to evidence concerning pre-existing psychological symptoms in the submissions regarding the first ground of appeal. This evidence has been considered above by the Appeal Panel. We see no reason to repeat that evidence as it concerned various stressors and symptoms but did not address the question of whether the pre-existing condition did contribute to the level of impairment assessed.

15. The Appeal Panel accepts that the Medical Assessor reported a history of pre-existing psychological symptoms and some treatment. However, the Medical Assessor found that there was no proportion of the impairment due to a previous injury, pre-existing condition or abnormality. In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint by the appellant about a failure to give reasons fails. This ground of appeal is not made out.

Ground 3 – effects of treatment

1. The appellant submitted that the Medical Assessor assessed 1% WPI for the effects of treatment, but provided no comment, rationale or reason for that assessment.

2. Under “Present treatment” on page 2 of the MAC, the Medical Assessor wrote: “She sees her psychiatrist every 3-4 months and her psychologist monthly. She takes desvenlafaxine (antidepressant) and alprazolam as required generally using 0.5mg 2-3 times a week”.

3. The Medical Assessor noted that present symptoms included: “ongoing low mood, rumination, feelings of anxiety, feelings of hopelessness, poor concentration, occasional suicidality but not for a month with no active plan”. He noted that Ms Matheson had not returned to work.

4. Under “Reasons for Assessment” on page 3 of the MAC, the Medical Assessor wrote:

   “c.     My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs

   Dr Rowe 10/10/18 WPI 15% + 1% treatment effect = 16%

   Dr Chow 9/3/22 WPI 22% 1% treatment effect = 23%.”

5. In Table 2 of the MAC, the Medical Assessor in the column under “WPI deductions pursuant to s 323 for pre-existing injury, condition or abnormality” wrote “+1% treatment”. Dr Chow considered that Ms Matheson continued to suffer from significant depressive features.

6. Dr Kai Tai Chow, consultant psychiatrist, in his report dated 9 March 2022, added 1% for treatment effect to his assessment of 22 % WPI, which resulted in a final WPI of 23%.

7. Dr William Rowe, consultant psychiatrist, in his report dated 10 October 2028, added 1% for treatment effect to his assessment of 15 % WPI, which resulted in a final WPI of 16%.

8. The Guidelines at 1.32 provide:

   “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”.

9. The Appeal Panel was not satisfied that the treatment including medication taken by Ms Matheson resulted in an apparent substantial or total elimination of her permanent impairment, as required by Cl 1.32 of the Guidelines. The Appeal Panel finds that the Medical Assessor made the assessment in relation to effects of treatment on the basis of incorrect criteria. Further, the Medical Assessor failed to adequately set out his reasons for adding 1% WPI for effects of treatment.

10. This ground of appeal is made out.

11. The Appeal Panel, having found error, concludes that it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence on which to make a determination in respect of any reduction to be made for the secondary psychological injury. The Appeal Panel notes that in order to determine the impact of the secondary condition (which occurred before the primary psychological injury) on current WPI, a comparative exercise is necessary and it would be logically incoherent to simply begin the exercise from a fixed starting point, ie, the 17% WPI Psychiatric Impairment Rating Scale (PIRS) assessment made by the Medical Assessor (Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191).

12. As noted above, Dr Micheal Hong of the Appeal Panel examined Ms Mattheson on 3 June 2025. Dr Hong provided the following report:

    “1.    HISTORY

    ·        Brief history after the MAC:

    Ms Matheson reported she joined the nursing home in 2002 and worked as an Assistant in nursing up to 72 hours per fortnight. She was also doing study.

    Ms Matheson has a long history of anxiety and depression, and we discussed:

    Ms Matheson was born in Australia, the fifth of six siblings, and grew up with her parents. Her father was an alcoholic and passed away more than 20 years ago, and they had a ‘love-hate’ relationship. Her mother was critical when she was little. She experienced ‘teasing’ by her peers at school. She confirmed she had anxiety as a teen. There is a family history of bipolar disorder.

    At age 18, Ms Matheson was living with her husband in a caravan and there was a storm, and she developed trauma memory and fear related to that incident, which was repeatedly noted in combination with trauma memory related to her 2012 workplace injury with a demented patient. She said she developed a phobia and needed to hide from the wind, and avoided caravans and small enclosed spaces since then. She will go inside a lift but needs to hang on to the railings in a lift, due to her experience of rolling inside the caravan.

    She was in a car accident in the 1990s, with a PTSD diagnosis. She said it was nearly a head-on collision and she sustained a knee injury. Her children were in the car screaming. She took a psychotropic medication for a while.

    Then in early 2000, after her marital break-down, she took antidepressants for 6 months, and she has a reasonable relationship with her ex-husband now. They catch up sometimes, and they are better as friends than being married. She has not had another partner since.

    She said her last psychological and psychiatric treatment was early 2000. We discussed Dr Petroff noted in 2015, when they first commenced treatment, she had life-long anxiety and depression, she said she it was on-and-off and not life-long, and does not agree with his assessment. She does agree she has some phobic behaviour, especially with enclosed spaces, and that she is shy by nature and has social anxiety, and few friends over the years. She described not trusting people and said it takes a longer time to establish relationships with people, and this is a life-long pattern.

    In terms of work injury, 5/6/2012 is the secondary psychological injury:

    Ms Matheson stated that she was at work and helping a demented client with another AIN, when she fell and sustained a back injury. They cleaned the client but he pushed himself over the bed and fell, and she was dragged by his fall. She was off work for 2 weeks, and consulted her GP and had ultrasound scans, which showed a tear in her latissmus dorsi muscle, and subsequently, she had physiotherapy. She returned to work on light duties, in the same workplace, same hours with the same people. She said her mental health after her back injury declined, because she could not do many things she used, she developed self-doubt. Ms Matheson could not help clients out of bed, dress them, help them with toiletry, or shower them. At work, she checked paperwork, cut clients' nails and said she did anything that was not heavy. She said her anxiety and depression started after her back injury.

    She gradually increased to full-time work, but could not do night shifts, and did light duties only.

    On the days off work, she stayed at home most of the time, did household chores, read books and did art. She enjoyed books by Christine Feehen, about paranormal mysteries. She said she had friends, and ate out, had dinner with them and watched their children play sports together.

    13/7/2013 is the primary psychological injury:

    Ms Matheson experienced bullying and harassment on return to work, by a couple of managers and some colleagues, who belittled her behind her back. She felt ‘I wasn’t any good’. They made comments like ‘she cannot help us, we need to find someone else’. She said a manager made it like it was her fault, and claimed they did not know what she was doing at work. She developed severe depression, as a result of bullying, but she did not take time off work.

    The nursing home was eventually closed down in July 2013 and she has not worked since.

    She continued her TAFE study 2 days per week, and was doing certificate 4 in Aged Care and almost completed it, however, she said her managers would not respond when she contacted them in relation to her practical work component at the nursing home, and then due to the nursing home closure, she could not complete her study.

    Following the workplace issues, the first psychologist or psychiatrist treatment was at the Lismore pain clinic, and she recalled a psychologist at the pain clinic advised her to see a psychiatrist. She started treatment with Dr Julius Petroff, in 2015, and recently having reviews every 3 to 5 months. She has been consulting Matthew Wagner, every 3-4 weeks, altogether for 3-4 years. She has not had psychiatric admission, nor had group-based treatment.

    We discussed her bankruptcy around 2014 or 2015. She said she had a loan for dental treatment but could not repay it as she lost her job.

    Her file noted Dr Petroff treated her from November 2015, repeatedly noted ‘life-long depression, life-long phobia, lifelong shyness and few friends’. He diagnosed type II Bipolar disorder with a history of hypomania with irritability, on Lurasidone in 2015. Conflict with sister, as she felt her sister was critical.

    We discussed her diagnoses, she said she has anxiety and depression, and previously PTSD. I asked her about type II Bipolar disorder, she said she is not sure. I asked her about hypomanic symptoms and she does not remember any symptoms consistent with it. I noted irritability was one of the main symptoms recorded, which may not be hypomania and in any case, she does not take Lurasidone or any Bipolar disorder medication anymore.

    Present treatment:

    Ms Matheson is taking:

    •Pristiq 100 mg tablet, 4 tablets daily.

    •Alprazolam 0.5 mg, as needed for anxiety, 2-3 tablets sometimes, but not daily.

    •Thyroid replacement

    •Anti-hypertensive medication

    •Gastric reflux medication

    •Cholesterol-lowering medication

    •She does not take Lurasidone anymore.

    Present symptoms:

    Ms Matheson said she has ongoing anxiety and depression, and when her back pain increases, she has more anxiety and depression. If she cannot do things due to pain, she has more depression.

    She has social anxiety, and this is longstanding.

    Ms Matheson reported chronically poor sleep and said her mind does not stop, and back pain wakes her too. She only has 2-3 hours sleep. She reads on waking, or paints, even during the night. She has bad dreams, related to the demented patient, and said not so much with the caravan, and said that has improved.

    She binge-eats and her weight fluctuated. She said her weight is between 120 to 140kg in 2025.

    She reported being easily frustrated and being upset, and ‘go off for no reason,’ and then said she pulled herself up. She is not physically aggressive.

    She said she has problems with her concentration and memory, and forgets what she is doing sometimes. Sometimes she has to rereads the same material or same page.

    Physically, Ms Matheson said she has ongoing pain, and she can lift 7kg but not more. She said she takes it easy with household chores, due to her chronic pain symptoms being exacerbated by overuse. She said she struggles make the bed due to back pain. She does back exercises, and takes walks almost daily, and can manage 30 minutes, but then her back starts to hurt. She struggles with stairs due to back pain. She generally takes walks by herself.

Details of any previous or subsequent accidents, injuries or condition:

We discussed Ms Matheson's previous psychiatric history. She maintained that the last time she had a psychological condition and had treatment was in 2000 and did not agree with her psychiatrist, who reported that she had lifelong depression and anxiety in several of her treatment entries. It appeared that Bipolar disorder was diagnosed, but she does not confirm any symptoms consistent with it. In any case, she is no longer taking mood stabiliser medication for it and it does not appear that she has ever suffered from Bipolar disorder.

Social activities/ADL:

Ms Matheson is 53 and lives by herself. She has three adult children, one son and two daughters, with two living locally.

She said she cannot get a job, due to the physical demands of the jobs, and she is on a pension from Centrelink, but it is not Disability support pension.

She goes to her children’s home and helps the grandchildren get ready for school most days. She has 13 grandchildren. She sees her son and his children a couple of times a week as he is nearby. She sees her daughter’s sons one day per week. She babysits her grandchildren sometimes, and said it gives her something to do. She has a good relationship with her family. Her mother passed away 3 years ago and her father passed away many years ago. She said her relationship with her siblings is ok, but does not see them much as everyone is far away. She said she does not talk to one sister much, as she is critical.

Around 4 to 5 months ago, she had had lunch out with a friend, and said outings with her friends only happen every 1 or 2 years. She does not have contact with any work-related friends since she ceased working, and said a couple of friends passed away over time, and a few people moved too far away. She still contacts some friends on Facebook social media.

She said her driving is fine, but she struggles with turning her head to the right. She said she does not trust herself driving too far, and generally only drives in the local area.

In terms of trips away, Ms Matheson reported going to Brisbane with her son, who drove there with several stops, to visit her daughter, and this was 2 years ago during Christmas. There have been no other trips away in the past few years.

She reads books and novels for around 1 hour each time, and reads ebooks and physical books. She reads most days. She does bead painting, similar to diamond art until her back hurt, usually for 30 to 60 minutes. She sews, knits and crotchets for a couple of hours, on-and-off and follows patterns.

Ms Matheson has a son and a daughter living locally, and generally only celebrates Christmas and not at other times.

She said she has not watched her son race cars for a while now, nor watch her daughter play netball, as she does not want to respond to people asking questions about her back injury.

Ms Matheson does all household chores, cooking and shopping. She goes to the shops when it is quiet and not many people are there, as she worries about having an accident and having more back pain. She worries someone would deliberately hurt her, because her experience of being hurt by the clients at the nursing home, and said some clients deliberately do things to hurt her.

Ms Matheson eats regularly but eats too much at times. She showers every second day without prompting.           

2.     FINDINGS ON PHYSICAL EXAMINATION

Ms Matheson was assessed by video. She attended her solicitor’s office and was assessed on her own for more than 1 hour. She had dyed hair and grey roots were visible.

She engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. She was moderately restricted in her affect range. She spoke spontaneously and fluently. She was not thought disordered and the provided history was easy to follow. She remained focused throughout the assessment. She spoke at a normal speed and spoke at a steady pace.

3.     SUMMARY

·        summary of injuries and diagnoses:

Ms Matheson had previous psychiatric symptoms and was able to continue with general daily functioning, and performed her employment without difficulties.

After a fall with a back injury, Ms Matheson started having depression and anxiety and the symptoms at the time were consistent with an Adjustment disorder, which is a secondary psychological injury, although she never sought help for it and did not take time off work. There were no specific psychiatric impairments arising from her anxiety and depression at that time. Furthermore, in the period when she first returned to work after her secondary psychological injury, she described working light-duty full-time with the same people, and there was no discernible psychiatric impairment at that time. Her second injury was at a steady state at that point.

After returning to work and being subjected to bullying and harassment, Ms Matheson developed significant depression and anxiety symptoms with significant weight gain over time, consistent with a Major depression disorder and this is a primary psychiatric injury. She has engaged in treatment with her psychiatrist and taken psychotropic medications, and received long-term effective treatment for her psychiatric condition.

I do not believe she has ever experienced a work-related stressor consistent with PTSD, and given the car accident happened many years ago, I do not believe there is an aggravation of previous PTSD.

File review:

On 9 March 2022, Dr Chow diagnosed a major depression disorder.

He assessed Ms Matheson's self-care as 3, but he had factored in pain as part of the impairment, which is not assessable in the PIRS. On reassessment, she described being independent in all self-care, and a rating of 3 cannot be supported.

In terms of concentration, persistence and pace, Dr Chow rated 3 and said that she cannot read more than 10 minutes. This is quite different to how she reports her capacity on reassessment. While she rereads sometimes, she says she can focus on following patterns when doing crocheting. Ms Matheson reads books for about half an hour to an hour. She does diamond art. Therefore, a rating of 3 cannot be supported.

Dr William Rowe, 10 October 2018, had noted Ms Matheson's injury and that she stopped working when the nursing homes are closed. Her interests include going to watch her son race cars, every few months, going to the beach, reading, and doing jigsaw puzzles. He diagnosed mild PTSD as a secondary to her physical injury (Comment: PTSD cannot be a secondary psychological injury by definition, as PTSD is a primary psychological injury). He provided WPI, which came to 15%.

He rated her social functions as 3 and said she lived by herself and her son stayed over sometimes. She has not formed a relationship since the divorce and lost some friendships. On reassessment, Ms Matheson reported her relationship with her family is generally good, but with some siblings, they are not close because some people are critical. She reported some friends have passed away, some moved away. She has contact with some friends on social media. She had only a few friends to begin with and mainly has contact with one friend now, and since she stopped working she has not had contact with her friends from work. Ms Matheson still has a good relationship with her ex-husband who comes and helps her sometimes at home. Taken all together, there is no evidence of separation or domestic violence and a rating of 3 cannot be supported.

Dr Julius Petroff provided several reports in 2015 and 2016 and noted Ms Matheson has pain disorder, bipolar 2 disorder, personality traits, as well as agoraphobia, Generalized anxiety disorder, conflict at times with a sister who is critical, has been binge eating, lifelong shyness and simple phobia, nightmares, including about the caravan and a demented patient. In terms of ‘social’, he noted lifelong shyness and simple phobia, few friends, and relative isolation.

There is a ProCare functional assessment report 23 October 2023 which noted that she was 118 kg at the time.

PIRS

WPI before Ms Matheson’s primary psychological injury:

PIRS Category	Class	Reason for Decision
Self-care and personal hygiene	1	I accept Ms Matheson's assertion she had no impairment, as she was able to present herself well at work with adequate hygiene and eating patterns.
Social and recreational activities	1	I accept Ms Matheson's assertion she had no impairment, as she regularly enjoyed attending sporting activities that her children participated in.
Travel	1	I accept Ms Matheson's assertion she had no impairment, as she was able to go out without a support person, including going to work and everywhere else.
Social functioning	1	I accept Ms Matheson's assertion she had no impairment, and related well with her friends and family.
Concentration, persistence and pace	1	I accept Ms Matheson's assertion she had no impairment, as she could work and was passing her TAFE study.
Employability	1	I accept Ms Matheson's assertion she had no impairment in performing her work.

Therefore, her pre-primary psychological injury WPI was 0%.

Current WPI

PIRS Category			Class		Reason for Decision
Self-care and personal hygiene			2		Ms Matheson eats regularly without prompting but eats too much at times. She showers every second day without prompting. She binge-eats and her weight fluctuated. She said her weight is between 120 to 140kg in 2025. She is capable of independent living and lives by herself.
Social and recreational activities			3		She relinquished previous social and recreational activities, and she can tolerate having visitors. She said she has not watched her son race cars for a while now, nor watch her daughter play netball. Around 4 to 5 months ago, she had had lunch out with a friend, and said outings with her friends only happen every 1 or 2 years. Overall, her participation in social and recreational activities is rare.
Travel			2		Ms Matheson reported going to Brisbane with her son, who drove there with several stops, to visit her daughter, and this was 2 years ago during Christmas. She struggles to be out, and needs a companion for long trips. She is independent in travel locally.
Social functioning			2		She has been isolative, and has rare contact with her friends and this is a reduction since the subject injury. She babysits her grandchildren sometimes, and can do it well. She has a good relationship with her family.
Concentration, persistence and pace			2		She reads books and novels for around 1 hour each time, and reads ebooks and physical books. She reads most days. She does bead painting, usually for 30 to 60 minutes. She sews, knits and crotchets for a couple of hours, on-and-off and follows patterns. She can focus on intellectually demanding tasks for 30 minutes and more.
Employability			3		Ms Matheson experienced bullying and harassment on return to work, by a couple of managers and some colleagues, who belittled her behind her back. She developed severe depression, as a result of bullying, but she did not take time off work. The nursing home was eventually closed down in July 2013 and she has not worked since. She has not worked since. She did not stop work due to her psychological injury. The Panel concluded she could not work in her pre-injury workplace or with the same manager, due to her psychological symptoms, but she could continue working less than 20 hours per week in a different workplace, doing lower stress roles.
Score										Median Class
2	2	2		2		3	3		=2
Aggregate Score Impairment								Total			%
+	+	+		+		+	14			7

Treatment effects

The Panel has assessed Ms Matheson's functioning before and after treatment, and there were no apparent substantial or total elimination of her permanent impairment with treatment.

0

Pre-existing impairment

0

Final WPI

7”

1. The Appeal Panel adopts the report and findings of Medical Assessor Hong.

2. In relation to the secondary psychological injury, the Appeal Panel accepts that a two-step approach is required, that is, to calculate the WPI using the PIRS and to then assess the impairment resulting from the secondary psychological injury and to deduct or exclude it. The deduction is not a deduction to which s 323 of the 1998 Act applies.

3. The Appeal Panel also notes that Ms Matheson’s physical injuries and pain are not assessable in the PIRS, as per Guidelines, and this is separate to secondary psychological injury assessment.

4. Medical Assessor Hong assessed Ms Matheson as having no impairment caused by the secondary psychological injury. He completed an assessment using the PIRS scales in terms of Ms Matheson’s level of functioning immediately before the primary psychological injury and assessed 0% WPI. The Appeal Panel has adopted this assessment.

5. Therefore, the Appeal Panel assessed 7% WPI in respect of the primary psychological injury. As no impairment has been assessed for the secondary psychological condition, this does not need to be taken into account and disregarded in the assessment of permanent impairment. No addition is made for effects of treatment. The Appeal Panel assesses 7% WPI in respect of the primary psychological injury on 13 July 2013.

6. For these reasons, the Appeal Panel has determined that the MAC issued on 18 September 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W2360/23
Applicant:	Baptistcare NSW & ACT
Respondent:	Michele Matheson

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Gerald Chew and issues this new Medical Assessment Certificate as to the matters set out in the yable below:

Table - whole person impairment (WPI)

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 AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
1.Psycho-logical	13/07/2013	11	11	7%	7%
Total % WPI (the Combined Table values of all sub-totals)					7%