Bayside Council v Ware

DETERMINATION OF APPEAL PANEL
CITATION:	Bayside Council v Ware [2023] NSWPICMP 576
APPELLANT:	Bayside Council
RESPONDENT:	Philip Craig Ware
APPEAL PANEL
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	10 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim by appellant employer against 17% whole person impairment psychiatric injury, including 10% section 323 deduction; claimant obtained another 17% for similar psychiatric case 2 years earlier; whether credit findings by Commission Member may be ignored; whether section 323 properly applied; whether 3 categories of psychiatric impairment ratings scale (PIRS) properly classified; Held – Medical Assessor (MA) bound to accept findings of credit where such findings not concerned with medical dispute as defined in section 319; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd and Jaffaire v Quality Casting Pty Ltd considered; danger of conflicting judgments considered; Member found claimant unreliable and without credit; MA ignored Member findings & failed to give adequate reasons; Medical Assessment Certificate revoked; section 323 increased to 50% and Panel declined to rule on PIRS categories, as being of no utility.

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 May 2023 Bayside Council the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor, who issued a second Medical Assessment Certificate (MAC) on 24 April 2023, which is the subject of this appeal.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (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.
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). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

On 11 April 2023 a Further Amended Referral was made by the President’s delegate for an assessment of WPI caused by psychiatrist/psychological disorder as a result of injury on a deemed date of 19 March 2020. The referral contained the following:[1]
[1] Appeal papers page 68.
“2. BRIEF
The brief provided to the Medical Assessor includes:
(a) Application to Resolve a Dispute and attached documents
(b) Reply and attached documents
(c) Application to Admit Late Documents received on 11 May 2021
(d) Application to Admit Late Documents received on 6 July 2021
(e) Application to Admit Late Documents received on 16 September
2021
(f) surveillance DVD lodged with the Personal Injury Commission(the Commission) on 6 July 2021
(g) Certificate of Determination dated 12 October 2021
(h) Amended Certificate of Determination dated 1 November 2021
(i) Medical Assessment Certificate dated 24 January 2022
(j) The Application to Admit Late Documents and attached documents dated 3 March 2023
(k) The Application to Admit Late Documents and attached documents dated 14 March 2023
(l) The Application to Admit Late Documents and attached documents dated 31 March 2023
(m) The Application to Admit Late Documents and attached documents dated 6 April 2023
A copy of the Certificate of Determination issued by the Member is attached.”
Mr Ware was employed by the respondent Council on 29 July 2019, having previously been employed by another Council, the Council of the City of Sydney, with whom he stopped working on 9 May 2017, having been employed there for ten years. He entered into a complying agreement with this Council on 21 March 2018 for an impairment of 17% arising out of a psychiatric injury,[2] and subsequently resolved a work injury damages claim on
[2] Appeal papers page 612.
[3] Appeal papers page 853.
14 August 2018.[3]
On 1 November 2021 Member Paul Sweeney issued a Certificate of Determination finding that Mr Ware had suffered a psychological injury arising out of and in the course his employment with the Bayside Council on the above deemed date, 19 March 2020.
The circumstances of the dispute that Member Sweeney determined were set out in detail in his Statement of Reasons and will be discussed later in these reasons. Suffice it to say at this point that Mr Ware was employed as an operations technician, whose task was to clean streets with a blower and to clear refuse from gutters and drains.
The Medical Assessor certified a 17% WPI and deducted 1/10^th pursuant to s 323 of the 1998 Act.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the available evidence demonstrated appellable error, and for the reasons given below, a re-examination would not have assisted our deliberations.

EVIDENCE

Documentary evidence

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

Medical Assessment Certificate

The 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

Both parties made written submissions which have been considered by the Appeal Panel.

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 appellant employer submitted that the Medical Assessor had fallen into error by failing to properly apply the provisions of s 323 of the 1998 Act and had failed to give adequate reasons regarding Mr Ware’s alleged inconsistency.
As indicated, the Medical Assessor issued two MACs. The appeal relates to the second MAC of 24 April 2023, but it is convenient to also consider the earlier MAC of 24 January 2022 to give some context to the challenge.

The MACS

First MAC dated 24 January 2022

The Medical Assessor first issued a MAC on 24 January 2022, finding that maximum medical improvement had not been achieved. In that MAC the Medical Assessor set out the history relating to the injury. Mr Ware was employed by Bayside Council as an Operations Technician.
The history taken by the Medical Assessor was that Mr Ware obtained permission on
11 February 2020 to sell his car and buy a new vehicle. On the first day of such leave he was telephoned by his manager and told to return to work. The manager offered to let Mr Ware use a work car until he bought a new car, but the manager did not follow through and Mr Ware was without a vehicle for one month.
The Medical Assessor also took a history that Mr Ware was accused of being late at a meeting which was not his fault and that he was accused of bullying and throwing papers around which Mr Ware also said was not true.
Mr Ware went to Thailand on 28 February 2020 for a two-week holiday but did not return to work after that.
When he came back he was told not to return to work because of COVID-19 restrictions and was then suspended from work for a reason that Mr Ware was not aware of.
He was terminated on 15 April 2020 but that decision was subsequently overturned.
When he came back from his holiday in Thailand Mr Ware saw his general practitioner,
Dr Rahman and has been off work on medical certificates since then.
He was referred to a psychiatrist, Dr Stevans, in April or May 2020 but only saw him on two occasions.
He told the Medical Assessor that he was already being treated with Diazepam 5mg for anxiety prior to his work problems beginning and this medication continued. The Medical Assessor took further details as to the medication regime Mr Ware was on and noted that
Mr Ware was also referred to a psychologist, Dr Kanaan, whom he saw twice before she left her practice.
He was referred to another psychologist named Rachel but did not find those sessions helpful. He received some counselling through the Salvation Army and saw a psychologist named Irene.
He then returned to see his previous psychologist, Ms Anne Antonios whom he had seen on 17 visits on a weekly to fortnightly basis.
The Medical Assessor recorded that Mr Ware’s symptoms had been relatively stable for the last 12 months.
The Medical Assessor was asked at the templated [10c] for his brief comments regarding other medical opinions and findings submitted by the parties and where applicable, the reasons why his opinion differed.
The Medical Assessor noted a report of Dr Ben Teoh, psychiatrist, of 15 December 2017 that described the previous workers compensation claim against Sydney City Council. Dr Teoh noted that Mr Ware had been suffering from anxiety since 2010 as a result had stopped work on 9 May 2017, having been employed by the City of Sydney for 10 years. Dr Teoh assessed a WPI of 17%.
With regards to Mr Ware’s current condition, on 3 August 2020 Dr Teoh gave a WPI of 15% which the Medical Assessor noted was made some 17 months since Mr Ware had last been assessed by Dr Teoh. The Medical Assessor said he did not believe maximum medical improvement had yet been reached.
The Medical Assessor also referred to a report by Dr Adam Martin, psychiatrist dated
1 August 2021, and noted Dr Martin’s comment:
“He has a substance use disorder in that he is likely to be dependant on Benzodiazepines and has a background pre-disposition to substance use problems given that he has previously used heroin and was then prescribed methadone for a lengthy period.”
The Medical Assessor said that he too had similar concerns about Mr Ware’s current benzodiazepine usage and recommended that be addressed by further psychiatric treatment.
The Medical Assessor noted that Dr Martin assessed Mr Ware at 6%, whereas the Medical Assessor again mentioned that he did not think that Mr Ware had reached maximum medical improvement.
The Medical Assessor noted that a course of Transcranial Magnetic Stimulation was recommended by another psychiatrist, Dr Ted Cassidy, which “Mr Ware did not receive”.
Unusually, a surveillance DVD had been authorised for viewing by the Medical Assessor. He said:[4]
“I watched the surveillance DVD lodged with the Commission on 6 July 2021. This surveillance footage was filmed in January 2021, that is 12 months ago. It showed Mr Ware having coffee at a café and interacting with other customers at the café. Mr Ware reported that he was still depressed at that time. Considering the length of time since this video was filmed, I did not think it particularly relevant to my current assessment of Mr Ware.”
[4] Appeal papers page 56.

Second MAC dated 24 April 2023

The Medical Assessor took a further history since the earlier assessment of 24 January 2022. He noted that Mr Ware had stopped taking the Kalma medication he had been taking in January or February 2022, after the Medical Assessor’s assessment. Mr Ware had also stopped the Zyprexa medication that he had been taking in February 2022.
He began seeing a psychiatrist, Dr Chiam in March 2022, who changed his medication. He saw Dr Chiam about every three to four weeks until the insurer stopped paying for treatment in February 2023.
The Medical Assessor noted that Mr Ware had continued to see Ms Antonios on a weekly basis.
He recorded Mr Ware reported only a mild improvement in his psychological symptoms. His sleep had improved somewhat and he was now playing tennis twice a month with three older women. He would go for a walk once a fortnight with a “Compeer support worker”.
In reporting Mr Ware’s “present symptoms” the Medical Assessor said:
“Mr Ware reported that his symptoms had been relatively stable over the past 6-8 months. He described himself as being 2 out of 10 now, where 0 is the worst he could imagine feeling, and 10 is how he was feeling before his work problems began….”
The template for a MAC invites a Medical Assessor to comment on a claimant’s consistency of presentation. The Medical Assessor said:[5]
“Mr Ware was consistent in the presentation of his history and symptoms. He did not appear to be exaggerating or minimising his clinical condition.”
[5] Appeal papers page 60.
At [8e] the following appeared:[6]
“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?
Yes. Mr Ware gave a history of having been treated for anxiety and depression related to previous workplace stressors whilst working for the City of Sydney Council from 2010 until he left work there in May 2017. He continued to have symptoms after that and was referred to see a psychiatrist and was treated with medications. He said that he stopped most of his medications after a wellness trip he took to Thailand in September 2018 but continued to use Valium occasionally to help with his sleep. Therefore, I believe a one-tenth deduction for this pre-existing condition is appropriate in these circumstances.”
[6] Appeal papers pages 61.
The Medical Assessor’s opinion was given ay [7]:
“In my opinion, Mr Ware has the psychiatric condition of Persistent Depressive Disorder with anxious distress with persistent major depressive episode according to DSM-5 diagnostic criteria.
This condition began as a result of work stressors he experienced whilst working for Bayside Council in the period from August 2019 until February 2020. His symptoms have persisted despite him having appropriate psychiatric and psychological treatment. This condition occurred on the background of longstanding symptoms of anxiety and depression for which he had been receiving treatment since around 2010.”
The Medical Assessor again noted the other medical opinions as invited to by question [10c].
He again noted the report of Dr Teoh of 3 August 2020 and made comments about the categories that Dr Teoh had assessed from the psychiatric impairment rating scale (PIRS). The Medical Assessor commented:
“In that report, Dr Teoh gave Mr Ware the diagnosis of Adjustment Disorder with Depressed Mood, whereas I have given Mr Ware the more severe diagnosis of Persistent Depressive Disorder with anxious distress with persistent major depressive episode. I note that now a further two years and seven months have elapsed since
Dr Teoh report, and Mr Ware is still suffering severe psychiatric symptoms.”
He noted a further report from Dr Martin dated 1 August 2021 who gave Mr Ware a diagnosis of persistent depressive disorder with anxious distress. The Medical Assessor noted this was effectively the same as he had given Mr Ware. He noted that Dr Martin assessed 6% entitlement, and the Medical Assessor explained why his assessment was different.
The Medical Assessor again noted the earlier report of Dr Teoh of 15 December 2017 in relation to his injury with the City of Sydney Council.
At [11] the following appeared:[7]
“11. DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
a. In my opinion the worker suffers from the following relevant previous injuries, preexisting conditions or abnormalities:
(i) Mr Ware reported being treated for depression and anxiety from 2010 onwards which was related to work stressors from his employment with City of Sydney Council in the period from 2010 to 2017. At the time his current work injury began he was still taking Valium medication at night occasionally to help with his sleep.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) In my opinion, Mr Ware s pre-existing condition of depression and anxiety for which he had received treatment would have exacerbated his psychological response to the work related stressors he experienced with Bayside Council and contributed to his current level of whole person impairment.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of S.323(2), I assess the deductible proportion as one-tenth which is not at odds with the available evidence.” (As written).
[7] Appeal papers page 63.

Statement of reasons by Member Paul Sweeney dated 1 November 2021

As can be seen from the referral which we have reproduced above, the Medical Assessor was supplied with a considerable amount of evidence. Amongst the material referred was the statement of reasons of Member Paul Sweeney dated 1 November 2021.[8]
[8] Appeal papers page 87.
The learned Member set out the background to the case as follows:[9]
[9] Appeal papers page 88.
“BACKGROUND
1. Phillip Craig Ware (the applicant) commenced employment with the Bayside Council (the respondent) as a trades assistant (operations technician) on 29 July 2019.
2.      By letter dated 26 February 2020, received by the applicant on 28 February 2020, he was required to attend a meeting to investigate his conduct in the workplace. The letter specifically identified his conduct on 20 February 2020. It stated:
‘On Thursday 20 February 2020 you are alleged to have behaved antagonistically toward a colleague by raising voice in an aggressive manner and throwing papers’.
3.      The letter, which was signed by Bryce Spelta, the respondent’s Manager City Works, stated that the meeting formed part of an investigation to determine if there had been a breach of the respondent’s policies, procedures, or code of conduct.
4.      Having attended this meeting, the applicant received a further letter signed by
Mr Spelta on 16 March 2020. It required him to attend a meeting on Wednesday 18 March 2020 at the respondent’s Botany depot. The purpose of the meeting was to discuss the findings of a recent investigation into the applicant’s conduct as an employee of the respondent.
5.      On the same date, he received further correspondence from the respondent which stated that he had:
‘Deliberately and repeatedly acted dishonestly by stating false information, that you intended to fraudulently obtain payment by completing a falsified timesheet entry, and that you acted in an intimidating and harassing manner towards a colleague.’
The applicant was advised that he was suspended on full pay pending his response to the allegations.
6.      By a further letter of 24 March 2020, the respondent extended the time for the applicant to show cause as to why his employment should not be terminated to close of business on 2 April 2020.
7.      On 15 April 2020, the applicant received a termination of employment letter.
8.      On 19 March 2020, the applicant saw his general practitioner, Dr Abdul Rahman, who certified him unfit for work from 19 March to 2 April 2020 due to depression and anxiety. Then, on 30 March 2020, at a further consultation, Dr Rahman issued a SIRA Certificate of Capacity certifying the applicant unfit to work from 30 March 2020.
9.      The applicant has not returned to employment since the termination of his position with the respondent council. It is common ground that he suffers from a psychological injury arising out of and in the course of his employment.”

In view of the issues that Member Sweeney had to determine, he permitted cross-examination to occur of Mr Ware, a Mr Pickens (who failed to attend) and a number of respondent witnesses.
Member Sweeney determined a number of factual issues that are not presently relevant, finding that the employer had failed to establish its statutory defence pursuant to s 11A of the 1987 Act, and remitting the matter for referral to the Medical Assessor.
In giving his determination Member Sweeney made some findings as to Mr Ware’s credit, which are of relevance.
He said:[10]
[10] Appeal papers page 78.
“Credit
58.    There are several aspects of the applicant’s evidence and his presentation during the audiovisual arbitration which caused me to conclude that his evidence was not always reliable. I place little weight on the applicant’s failure to disclosure his prior psychiatric injury with the Sydney County Council to the respondent or to disclose the medical history associated with it. It is axiomatic that if a worker makes such a disclosure he would, almost certainly, not obtain the desired employment. In those circumstances, withholding of this information, provides only an inexact measurement necessity of obtaining employment and earning a living may cause an honest witness to withhold such information.
59.    On the other hand, it is impossible to reconcile the conflicting evidence of the conversations that took place between the applicant, Mr Amin, Mr Kumar and Mr Le Bechennec on the morning of 18 February 2020. … However, both Mr Kumar and Mr Amin deny that they said they were late to collect the applicant because of “heavy traffic. “In their supplementary statements both deny that conversation with the applicant including the applicant’s assertion that he suggested to them that they went to get coffee. Similarly, both the witnesses deny stating to Mr Le Bechennec that they were late because of ‘heavy traffic’. Mr Le Bechennec’s evidence on this point is consistent with their evidence.
60.    Mr Kumar denies that he told the applicant that they had stopped off at a coffee shop on the way to pick him up or that he told him that he had informed Mr Le Bechennec that this was the case when enquiries were made as to the reasons for the late arrival of the workers at the job site on the morning of 18 February 2020.
61.    It is, of course, possible that Mr Le Bechennec and the two co-workers of the applicant were colluding to undermine him. It is not uncommon for employees to take the position adopted by their employer in these disputes for obvious reasons. There is also one evident flaw in the evidence of Mr Le Bechennec related to the telephone call made by the applicant on the morning of 25 February 2016. None of these matters, however, satisfactorily explain the consistent evidence given by the three witnesses, contrary to the applicant’s evidence as to events on the morning of 18 February 2020. In those circumstances, I conclude that the applicant’s account is not reliable.
62.    It is also necessary to consider the evidence of Mr Pickens, one of the applicant’s neighbours, who states that he saw the applicant at the front of his home ready to be collected some half hour before the work ute arrived. Mr Pickens was required for cross examination by the respondent but did not present himself at the audio-visual arbitration hearing. No application was made for an adjournment and it is not evident why the witness did not attend. While his evidence is relevant, I doubt that it effectively undermines the evidence of Mr Amin and Mr Kumar. Both gave oral evidence at the arbitration hearing. Evidence as to the precise times given many months after the event is notoriously unreliable.
63.    There are other aspects of the applicant’s evidence that are hard to accept. The significant difference in content and in emphasis between his first and second statements is said to be because the investigator who recorded the first statement did not accurately record his evidence. I doubt that this is the case, the applicant’s oral evidence at this point is unconvincing. While I appreciate the investigator who had recorded the first statement may have employed his own language, it is unlikely that the applicant would have signed the statement if various aspects of it conveyed a meaning completely different to that intended by him.
64.    Importantly, some aspects of the content of the supplementary statement are also unconvincing. By that statement, the applicant probably sets out to prove that from a time reasonably early in their relationship Mr Le Bechennec and other employees subtly bullied and harassed him. However, that evidence is contradicted by a deal of other evidence. It is, of course, contradicted by the evidence of Mr Le Bechennec. The applicant’s evidence is also inconsistent with the evidence of Mr Lynch and Mr Peacock. Given the conclusions that I have reached in respect to the applicant’s evidence as to the morning of 18 February 2021, it is unnecessary to deal with these matters in detail.
65.    Unfortunately, each of the respondent’s witnesses who gave oral evidence had language problems which handicapped Mr Hanrahan’s attempt to cross-examine. It would have been preferable for such evidence to have been given through an interpreter. Nonetheless, no application was made for an adjournment and with the exception of the phone call evidence which I have referred to above, there was nothing in the cross-examination that would cause me to doubt their written evidence. To the limited extent that demeanour is of assistance, I observed nothing to suggest that these witnesses were not doing their best to assist the Commission in its enquiry.”
In making his orders as to weekly payments, Member Sweeney said:[11]
“98. From the beginning of the 2021, given Dr Martin’s opinion, which is uncontradicted and in view of my doubts about the reliability of the applicant’s evidence, I find that the applicant has not established that he has an entitlement to compensation. In my opinion, it is more probable than not that the applicant could earn the equivalent or more than 80% of his preinjury average weekly earnings in some suitable employment as that term is defined in s32A of the 1987 Act from 1 January 2021 to date. In my opinion it is likely that he could perform the roles envisaged by Mr Erber in his vocational assessment report. Equally, on the basis of Dr Martin’s opinion it seems likely that he could perform his preinjury employment.”

SUBMISSIONS
[11] Appeal papers page 85 at [98].

The appellant employer made two issues the subject of its submissions. It firstly submitted:
“The medical assessor committed a demonstrable error by deducting one tenth of the impairment due to a pre-existing condition pursuant to s 323(2) when the available evidence demonstrated that a higher deduction was warranted.”
The decision of Member Sweeney demonstrated that Mr Ware was found to be an unreliable witness after he had been extensively cross-examined. Although he had claimed a continuing award for weekly payments, Member Sweeney awarded only a two closed periods, and declined to make a continuing award.
The appellant employer submitted that the complying agreement Mr Ware had entered into on 29 January 2018 as a result of his sustaining a psychological injury whilst working for the Council of the City of Sydney was relevant in that it demonstrated that Mr Ware’s injury was caused by a long and significant history of psychological issues. He had been prescribed a regime of medications, which he had been taking since 2010. He had also been treated by regular consultations with psychologist every three weeks since 2014, and a psychiatrist on a six weekly basis since 2017. He had also been taking high doses of anti-depressants and anti-psychotic medication three or four times per day.
The appellant employer listed the five times that Mr Ware had been diagnosed with an adjustment disorder between 5 June 2017 and 27 July 2018. It also noted that Mr Ware had been diagnosed with adjustment disorder on 17 July 2020, and with depression on
2 February 2020.
The appellant employer referred by way of footnotes to the evidence confirming its submissions, which the Panel has consulted, and which the Panel accepts is accurate.
The medical evidence, it was submitted, accordingly informed the Medical Assessor as to the actual consequences of the earlier disorder, which the appellant employer described as “earlier injury or pre-existing conditions/abnormality.” That evidence was capable of being assessed and was of such a nature that a deduction of 1/10^th pursuant to the provisions of
s 323(2) was not sustainable.
The appellant employer referred to Chapter 11.10 of the Guides, but since the decision in Camden Council v Harle[12] that reference may be put to one side, as Chapter 11.10 was there found to be inconsistent with s 323 and invalid.
[12] [2022] NSWPICMA 339 at [129].
The appellant employer submitted that the Medical Assessor had failed to disclose his path of reasoning as to why only a 1/10^th deduction had been made. It was argued that Mr Ware’s case was not one that was difficult or costly to determine, as the evidence was before the Medical Assessor.
We were referred to the well-known and uncontroversial requirements regarding the application of s 323 as set out in Cole v Wenaline Pty Ltd[13] and Elcheikh v Diamond Formwork NSW Pty Ltd.[14]
[13] [2010] NSWSC 78.
[14] [2013] NSWSC 365.
This failure was described as “alarming” in view of the Medical Assessor’s knowledge that
Mr Ware had been treated for depression and anxiety from 2010 to 2017. The appellant employer also alleged that the Medical Assessor was aware that Mr Ware was still taking medication at the time of the onset of his subject injury. Moreover, the appellant employer referred to the finding by the Medical Assessor that the subject injury had been exacerbated by Mr Ware’s pre-existing condition.
The appellant employer made further submissions expanding on these arguments, which it is not necessary to traverse further.
The second issue argued by the appellant employer was described as follows:
“The medical assessor applied incorrect criteria when assessing the PIRS
classes/scores in respect of self-care and personal hygiene, concentration, persistence and pace together with employability/adaptation.”
The appellant employer submitted that the surveillance evidence demonstrated that it was, to summarise, highly unlikely, that the rating given to each category could be sustained. We were invited to view the video material that was part of the evidence before the Medical Assessor, and it was apparent that Mr Ware was seen at café’s, eating meals, going to massage parlours and playing tennis.
The appellant employer referred to each occasion that video was taken, and that its medico- legal expert, Dr Martin, had commented on 29 June 2021 that the videos were not consistent with a person experiencing significant depressive and anxiety symptoms. However the appellant employer also quite properly referred to Dr Martin’s caveat that it was somewhat problematic to draw any conclusive view, given that mental states can fluctuate, and that
Dr Martin had not seen him recently.
The appellant employer referred to the observations of Member Sweeney who accepted that the depiction of Mr Ware gave him no reason to reject the ultimate conclusion reached by
Dr Martin that, notwithstanding Dr Martin’s caveats, it was reasonable to conclude that there was a considerable inconsistency between the account given to Dr Martin and what he saw on the video footage.
We were referred to further surveillance footage that had occurred since Dr Martin’s advice which showed Mr Ware engaging in broadly the same activities.
The appellant employer kindly extracted Chapter 1.36 of the Guides regarding inconsistent presentation. It submitted that the inconsistencies in the histories given to Dr Teoh and
Dr Martin, together with the surveillance footage that was available to the Medical Assessor demonstrated a repeated propensity to amplify and embellish his level of symptoms, and to understate his level of social and recreational activities. It was submitted that the observations by Dr Martin, and the findings by Member Sweeney constituted evidence that the Medical Assessor failed to take into account in making his assessments. Again, it was submitted that the Medical Assessor had failed to give adequate reasons in the light of that evidence.
The appellant employer submitted that the Medical Assessor’s findings regarding Mr Ware’s consistency of presentation was untenable, and that the Medical Assessor had made no attempt to explain that finding in the light of the inconsistencies that the appellant employer referred to. The Medical Assessor did not specifically discuss the findings of Member Sweeney that cast considerable doubt on Mr Ware’s credibility, and he had accordingly again failed to give adequate reasons for not discussing this evidence.
In the alternative, the appellant employer submitted that the Medical Assessor should have applied the provisions of Chapter 1.36 of the Guides to modify the class ratings he gave in the impugned categories of the PIRS.
The appellant employer made extensive submissions criticising the reasons that the Medical Assessor gave in each category.
The appellant employer relied on the reports of Dr Martin, and submitted that the MAC should be revoked following a re-examination by a Panel member of Mr Ware. We have already indicated that no re-examination is required.

Mr Ware

Issue 1

Mr Ware referred to the many acknowledgements by the Medical Assessor of the history regarding his prior psychological injury with the Council of the City of Sydney. He noted that the Medical Assessor found that there was impairment caused by that earlier injury and assessed it at 1/10 in accordance with the provisions of s 323 (2).
We were referred to Cole, Elcheikh, and Ryder v Sundance Bakehouse,[15] and Mr Ware submitted that the Medical Assessor had complied with that authority. The suggestion made by the appellant employer that the appropriate contribution should have been 50% Mr Ware described as “entirely speculative.”
[15] [2015] NSWSC 526.
Mr Ware referred to his subjective remarks he had made in his statement of 6 May 2020 that he had been “fit as a fiddle both physically and mentally.”[16] We were referred to other subjective remarks Mr Ware made that he had started a new chapter in his life when he commenced work with the respondent, and that he was taking medication only when needed.
[16] Appeal papers page 248.
Mr Ware noted that the Medical Assessor recorded that Mr Ware was feeling “10 out of 10” before his work problems began. The Medical Assessor had taken a detailed history from
Mr Ware on two occasions, and had considered in some detail the medical evidence before him.
Included amongst that evidence was a report of Dr Martin, who, like the Medical Assessor, only deducted 1/10^th pursuant to s 323, although Mr Ware noted that Dr Martin found that the impairment caused by the subject injury was 6%.
Mr Ware said that the Medical Assessor had throughout his examination utilised his clinical experience and expertise as well as noting the evidence that was before him from both the treating and the medico-legal medical practitioners. He identified the medical evidence that he “accepted and preferred”, as required by s 323(3) and was satisfied that the deduction he made was not at odds with the available evidence.
We were referred to BHP v Edgecombe[17] and Department of Communities and Justice v Pilgrim[18] as authority for the proposition that the Medical Assessor was not obliged to accept every aspect of Dr Martin’s opinion.
[17] [1997] NSWCA 51.
[18] [2022] NSWPICMP 311.

Issue 2

Mr Ware submitted that although the appellant employer nominated only three of the six categories within the PIRS, it had nonetheless made “sweeping statements” regarding what was seen on the video footage.
Mr Ware noted that the footage was before the Medical Assessor. He was cognisant of its content and gave it the weight that he considered appropriate. Mr Ware’s comments to
Dr Martin were of no assistance to the appellant employer, Mr Ware said. The Medical Assessor was required by the statute to assess Mr Ware “as he presented on the day of the examination and to apply his own clinical judgement in the application of the Guidelines.”
We were referred to the High Court authority of Wingfoot Australia partners Pty Ltd v Kocak[19] as to the functions of a Medical Assessor.
[19] [2013] HCA 43.
Mr Ware also cited Jenkins v Ambulance Service of NSW[20] as to the appropriate circumstances in which the factual assessment by a Medical Assessor can be overturned.
[20] [2015] NSWSC 633.
We were referred also to the relevant subclauses of Chapter 11 of the Guides which govern the assessment of psychiatric or psychological injury in each of the impugned categories.
Mr Ware submitted that the classification made by the Medical Assessor was open to him in each category.
With regard to the submissions by the appellant employer regarding the findings of Member Sweeney, Mr Ware argued that different criteria applied in the assessment of employability to that which were applicable in a claim for weekly payments. There was a different concept at play, as the claim before a Medical Assessor concerned lump sum entitlement, which was quite distinct from the claim for incapacity.
Mr Ware finally submitted that the appellant employer’s “continued attempt to impugn the credit of the worker ought to be rejected.” Mr Ware observed that the Medical Assessor had examined him on two separate occasions 12 months apart, and had found Mr Ware to be consistent in the presentation of his history and symptoms. Mr Ware was not found to have made any attempt to exaggerate or minimise his clinical condition by the Medical Assessor, who was in a “special position” and it followed that the assessment should be confirmed.

DISCUSSION

Section 323 of the 1998 Act provides relevantly:
“Deduction for previous injury or pre-existing condition or abnormality
323 DEDUCTION FOR PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
(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.”
Chapter 1.6 of the Guides provides:
“1.6 The following is a basic summary of some key principles of permanent impairment assessments:
a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:
•• whether the condition has reached Maximum Medical Improvement (MMI)
•• whether the claimant’s compensable injury/condition has resulted in an impairment
•• whether the resultant impairment is permanent
•• the degree of permanent impairment that results from the injury
•• the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality,
if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.”

It can be seen that Chapter 1.6 does not purport to be an exclusive exposition of the principles to be applied by a Medical Assessor in his task. The matters set out are described as a “basic summary” of some “key principles” to be applied. The principles set out relate to the additional medical issues that a Medical Assessor is required to consider.
The fact that Chapter 1.6 is concerned only with medical issues also raises the question of the limits to which a Medical Assessor can make or ignore causation decisions.
What is fundamental to the resolution of any dispute is whether a person’s evidence can be believed - what is known as a person’s credit.
In Ferguson v State of New South Wales[21] at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.”
[21] [2017] NSWSC 887.
If a claimant was, for example, a plausible liar, the Medical Assessor’s ability to form an assessment based on his clinical observations would self-evidently be compromised. It is necessary to consider the history of a Medical Assessor’s power to consider questions of causation, and its limits.
In Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[22] Emmett JA (Meagher and Ward JJA agreeing) considered the statutory scheme for the administration of workers' compensation. Until that decision it had been assumed that factual and legal issues were to be determined by an arbitrator (now a member) within the Workers Compensation Commission (now the Personal Injury Commission). Emmett JA said from [109]:
“… Generally, the scheme for the settlement of compensation disputes established by the Management Act, read in conjunction with the Compensation Act, is to have factual and legal issues resolved by an arbitrator, subject to an appeal to a President or Deputy President of the Commission, and to have certain medical issues decided by an approved medical specialist, subject to an appeal to an Appeal Panel. That scheme is designed to ensure that the degree of permanent impairment that results from injury, and any contribution to the worker's total impairment that is due to an earlier injury or pre-existing condition, are assessed in accordance with Pt 7 of Ch 7 of the Management Act[23], and not otherwise…
110. However, that is not to say that there is no scope for an approved medical specialist or Appeal Panel to make findings of fact necessary for the performance of the function that they are given under the Management Act. Questions of causation are not foreign to medical disputes within the meaning of that term when used in the Management Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of ‘medical dispute’. Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski[2013] NSWCA 449 at [35]).
111. It is for the Commission to determine whether a worker has suffered an injury within the meaning of s 4 of the Compensation Act. The Commission must also determine whether there are any disentitling provisions, such that compensation is not payable in respect of that injury…”
[22] [2014] NSWCA 264.
[23] Referred to in these reasons as "the 1998 Act."
It is relevant to note that the power of a medical specialist (Medical Assessor) or an Appeal Panel to decide questions of causation is limited to those that arise within the medical dispute, which in turn is defined by s 319. The power is limited to “findings of fact necessary for the performance of the function they are (thereby) given.” Questions of causation were found not to be “foreign to medical disputes within the meaning of that term when used in the Management Act.”
Emmett JA’s reference to there being “no bright line delineating causation from medical evidence” must be read in that context. His Honour’s reference to disputes between medical experts reflected a causation issue commonly determined by Medical Assessors and Medical Appeal Panels in resolving medical disputes.
Bindah led to the Workers Compensation Commission as it then was revisiting the law as it had hitherto been applied. The implications of Bindah were considered by DP Roche in Jaffaire v Quality Casting Pty Ltd.[24] The learned Deputy President’s summary was later approved in the Court of Appeal.[25]
[24] [2014] NSWWCCPD 79.
[25] Jaffaire v Quality Castings Pty Ltd [2018] NSWCA 88 at [80-81].
DP Roche said at [264] of his 2014 decision:
“The result is that, contrary to Peric, where there is a claim for weekly compensation and lump sum compensation and an Arbitrator decides that, because the effect of the injury has ceased, there is no entitlement to weekly compensation, and makes an award for the respondent in respect of that part of the claim, the assessment of whole person impairment must still be referred to an AMS. Depending on the AMS’s assessment, this could give rise to a significant problem.”
The significant problem DP Roche adverted to was the potential for there to be conflicting judgments (or awards in the case of the Commission). DP Roche gave the example of where an arbitrator found that the effect of the injury had ceased regarding his claim for weekly payments but the Medical Assessor found that so far as the lump sum was concerned, the effect of the injury was continuing. DP Roche said at [266]:
“Once the award for lump sum compensation is entered there will then be two inconsistent awards: the first, by an Arbitrator, that, so far as the claim for weekly compensation is concerned, the effect of the injury has ceased and, the second, based on the AMS’s assessment, that, so far as the claim for lump sum compensation is concerned, the effect of the injury is continuing. Thus, the result offends both the principle that the law should avoid conflicting judgments (Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 603–4; Halsbury’s Laws of Australia (LexisNexis) at [195-2450]) and the public interest in the finality of litigation. As explained by the High Court “[a] central and pervading tenet of the judicial system that controversies, once resolved, are not to be reopened except in a few narrowly defined, circumstances” (D’Orta-Ekenaike v Victoria Legal Aid[2005] HCA 12; 223 CLR 1, Gleeson CJ, Gummow, Hayne and Heydon JJ at [34]).”
It can be seen that the hypothetical situation envisaged by DP Roche is what has occurred in the present case. In relation to the claim for weekly payments, Member Sweeney determined, as extracted above, that:
“From the beginning of the 2021 (sic – year), given Dr Martin’s opinion, which is uncontradicted and in view of my doubts about the reliability of the applicant’s evidence, I find that the applicant has not established that he has an entitlement to compensation.”
The Medical Assessor, on the other hand found that Mr Ware was totally unemployable. The Medical Assessor in considering the “employability” category in the PIRS, said:[26]
“Totally impaired. In my opinion, Mr Ware is not able to work at all because of the severity of his psychological symptoms including his severely depressed mood, reduced concentration, reduced motivation and very poor personal grooming. I note that he has not worked at all since February 2020.”
[26] Appeal papers page 67.
The reason for the inconsistency has been plainly and thoroughly ventilated by the appellant employer. Member Sweeney found Mr Ware to be without credit and, after a full defended hearing within the Commission, found Mr Ware to be an unreliable witness.
Member Sweeney set out the details of the claim under the heading “background”, which we have extracted above at [53]. A perusal of the facts therein set out gives a very different history of Mr Ware’s conduct and behaviour. Mr Ware’s version of events was contained in two statements that were before the Medical Assessor but the history that the Medical Assessor relied on can be seen to be a far cry from the facts as found by Member Sweeney that constituted the dispute.
Member Sweeney permitted oral evidence to be given, and the applicant together with three respondent witnesses were sworn, and extensively cross-examined. With the assistance of submissions from counsel, Member Sweeney heard and read the evidence tendered before him, and delivered his statement of reasons. The conciliation/arbitration hearing occurred on 13 July 2021 and Member Sweeney delivered a comprehensive and reasoned judgement on 12 October 2021, which was amended on 1 November 2021, from which no appeal was made.
His conclusions as to Mr Ware’s credit we have extracted above at [57]. Member Sweeney found that Mr Ware’s evidence was variously “not always reliable”, “impossible to reconcile”, “not reliable”, “hard to accept”, “unconvincing”, “contradicted”, and ”inconsistent”.
As indicated above, the respondent did not deny that Mr Ware had suffered a psychological injury. As indicated above, Member Sweeney noted that it was “common ground” that
Mr Ware was suffering from a psychological injury arising out of and in the course of his employment. We conclude from that remark that the respondent did not challenge Mr Ware’s claim that he had suffered such an injury.
Member Sweeney said at [70]:
“Mr Hanrahan conceded, as I indicated above, that the applicant’s psychological injury was wholly or predominantly caused by the respondent’s actions in respect of discipline etc. I have formed the view, however, that the respondent has not established on the balance of probabilities that such actions were reasonable. It is, therefore unnecessary to consider further the potential conflict in the applicant’s submission on causation.”
At [96] Member Sweeney said:
“I accept that the applicant suffered a psychological injury and that it has continued to affect him, although with diminishing force, up to the present….”
We now return to Emmett JA’s finding in Bindah as to the exclusive jurisdiction of the Commission. He said, inter alia, at [111] that it was for the Commission to “determine whether there were any disentitling provisions such that compensation is not payable in respect of that injury”.
This was the issue Member Sweeney was called on to determine: whether Mr Ware was disentitled to payment of compensation because of the provisions of s 11A of the 1987 Act. Its provisions are not relevant in this context, as we indicated, but Member Sweeney found that the respondent had not established that the section disentitled Mr Ware. The result was that although Member Sweeney found against Mr Ware’s credit, and although he found Mr Ware had no continuing entitlement to weekly payments of compensation, the respondent’s admission that Mr Ware had suffered a psychological injury compelled Member Sweeney nonetheless to refer the matter to the Medical Assessor.
Section 319 of the 1998 Act, referred to by Emmett JA as we have indicate, states:
“In this Act-

"medical dispute" means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim--
(a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker's fitness for employment,
(c) the degree of permanent impairment of the worker as a result of an injury,
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) the nature and extent of loss of hearing suffered by a worker,
(f) whether impairment is permanent,
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”
This is the context in which Emmett JA referred to the power for Medical Assessors or Medical Appeal Panels to decide questions of causation. To repeat, at [110] his Honour said:
“…A medical dispute is a dispute about or a question about any of the matters set out in s 319…”
What is not set out in s 319, as can be seen, is the power to make a finding as to a claimant’s credit. Such a power may be implied and indeed is a corollary to the resolution of the medical disputes that have to be determined. However a Medical Assessor is limited in his ability to do so. His decision must be made on the basis of his clinical judgment, experience and expertise, which was the basis on which we were invited by Mr Ware to accept the Medical Assessor’s opinion. Such a process may indeed suffice, provided the Medical Assessor properly considers the evidence before him, and gives it appropriate weight.
However, a Medical Assessor does not have power to decide questions of causation that are not within the definitions provided by s 319. The issue of Mr Ware’s credit had already been decided when the matter was referred to him, and it was decided on a legal issue within the exclusive jurisdiction of the Commission. It was also decided by due process.
Accordingly the Medical Assessor was bound to accept the findings made by the Member. He did not have power to make any contrary decision, and the MAC must accordingly be revoked.
We would also note that, far from accepting the findings by Member Sweeney, the Medical Assessor ignored them. They were before him, and his failure to explain why he paid them no account also amounts to a failure to give adequate reasons and a demonstrable error.
We have some sympathy for the Medical Assessor, as he was tasked to assess an accepted psychological injury which the Commission had found was brought by a claimant who was not a reliable witness, who had suffered no continuing incapacity for employment, and to that extent had recovered from his disorder. However, he made no attempt to grapple with that conundrum.
It follows that we reject the submissions advanced by Mr Ware, which also turned a blind eye to the findings of the Commission.
We note that the Medical Assessor found that Mr Ware had been treated for anxiety and depression whilst working for the City of Sydney between 2010 and 2017. He noted that
[27] Appeal papers page 66.
Mr Ware continued to use his medication therefrom. Mr Ware’s diagnosis was of a “Persistent Depressive Disorder with anxious distress with persistent major depressive episode”.[27]
The only diagnosis of Mr Ware’s prior injury before us was that of Dr Ben Teoh of
[28] Appeal papers page 114.
15 December 2017.[28] Dr Teoh diagnosed “Chronic Adjustment Disorder with Mixed Depressed and Anxious Mood (DSM 5 Diagnostic Criteria)”.
Doing the best we can do with the errors made in this matter, we are satisfied that Mr Ware’s accepted psychological injury was contributed to by the injury sustained with the Council of the City of Sydney in 2017. He was diagnosed with very similar disorders, and the temporal connection with Mr Ware’s subject claim, are indicative, along with the fact he was still taking medication from the earlier injury, that a significant contribution was made to the subject injury, for which we apply a 50% deduction. A one-tenth deduction is clearly at odds with the evidence.
As this determination will bring Mr Ware’s WPI, level beneath which he is able to claim compensation, there is no utility in considering the appellant employer’s submissions regarding the appropriateness or otherwise of the PIRS assessment.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 April 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:	W1020/21
Applicant:	Bayside Council
Respondent:	Philip Craig Ware

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 Patrick Morris and issues this new Medical Assessment Certificate as to the matters set out in the Table 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 AMA5 Guides

% WPI

WPI

deductions pursuant to S323 for pre-existing injury,

condition or abnormality

(expressed as a fraction)

Sub-total/s

% WPI

(after any deductions in column 6)

Psychiatric/

Psychological

19 March 2020

(deemed) disease

Chapter 11

WorkCover

Guidelines

n/a

19%

1/2

10%

Total % WPI (the Combined Table values of all sub-totals)

10%

[2023] NSWPICMP 576

10 October 2023