Blake v Slyder Pty Ltd Dominos Pizza Goulburn

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Blake v Slyder Pty Ltd Dominos Pizza Goulburn [2022] NSWPIC 356
APPLICANT:	Kerry Blake
RESPONDENT:	Slyder Pty Ltd Dominos Pizza Goulburn
Member:	Michael Wright
DATE OF DECISION:	5 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Application pursuant to section 57(1) of the Personal Injury Commission Act 2020; to reconsider and rescind Certificate of Determination (CoD) dated 17 November 2016; to permit appeal against Medical Assessment Certificate (MAC) dated 4 August 2016; pursuant to sections 327(3)(a) and (b) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); claim for lump sum for psychological injury; MAC assessed 8% whole person impairment (WPI); issue of deterioration resulting in increased WPI considered with respect to the Psychiatric Impairment Rating Scale areas of functional impairment and change in classes; consideration of Ballas v Department of Education (State of NSW) and arguable ground of appeal; Held – arguable ground of appeal; application granted, CoD rescinded; referred to Medical Assessor for further assessment as an alternative to appeal pursuant to section 329(1)(a) of the 1998 Act.
determinations made:	1. Pursuant to section 57(1) of the Personal Injury Commission Act 2020, the Certificate of Determination in matter number 3263/16 dated 17 November 2016 is reconsidered and rescinded. 2. Pursuant to section 329(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998, as an alternative to an appeal pursuant to s 327(3)(a) and (b), the matter is remitted to the President for further referral to a Medical Assessor for assessment of the degree of permanent impairment as a result of psychological injury on 7 May 2014. Brief to the Medical Assessor is to include: a. A copy of this decision; b. Medical Assessment Certificate of AMS Dr Hong dated 4 August 2016 in matter number 3263/16; c. documents attached to the application including, but not limited to, reports of Associate Professor Robertson dated 11 December 2015, 19 March 2019 and 17 November 2021, and clinical notes and records of Dr Dwyer, Mr Guthrey and St John of God Hospital; d. report of Dr Dwyer dated 25 July 2020, and e. applicant’s statement dated 4 February 2021.

STATEMENT OF REASONS

BACKGROUND

Mr Kerry Blake (the applicant), sustained psychological injury in the course of his employment with Slyder Pty Ltd t/as Domino's Pizza Goulburn (the respondent) as a result of an assault on 7 May 2014.
In proceedings in the Workers Compensation Commission in matter number 3263/16, and Approved Medical Specialist (AMS), Dr Hong, issued a Medical Assessment Certificate (MAC) dated 4 August 2016 in which the applicant was assessed as having sustained 8% whole person impairment. A Certificate of Determination dated 17 November 2016 determined that the applicant had no entitlement to lump sum compensation.
In a letter dated 4 March 2022 to the Personal Injury Commission (the Commission), the applicant’s solicitors requested reconsideration pursuant to section 57 of the Personal Injury Commission Act 2020 (the PIC Act) and that the Certificate of Determination dated 17 November 2016 be rescinded, on the basis that the applicant seeks to appeal the MAC dated 4 August 2016 pursuant to section 327 (3) (a) and (b) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Attached to that letter where the applicant’s submissions and also documents in support.
In a letter dated 11 March 2022, the respondent’s solicitors opposed the application and made submissions in support.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to reconsider and rescind Certificate of Determination dated 17 November 2016 in matter numbered 3263/16, pursuant to s 57 of the the PIC Act and attached documents, (the application);
(b)    Response by the employer dated 11 March 2022;
(c)    report of Dr Dwyer dated 25 July 2020, and
(d)    further statement by the applicant dated 4 February 2021.

Oral Evidence

There was no oral evidence.

Documents

Medical Assessment Certificate of Dr Hong dated 4 August 2016

Approved Medical Specialist, Dr Hong issued a MAC dated 4 August 2016 in the Workers Compensation Commission in proceedings numbered 3263/16. An AMS is now known as Medical Assessor (MA), and the jurisdiction is now the Personal Injury Commission, Workers Compensation Division (the Commission).
The MAC listed the details of matters referred for assessment pursuant to s 319 of the 1998 Act:
“• Date of injury: 7/5/2014
• Body parts/systems referred: Psychiatric/Psychological disorder
• Method of assessment: Whole Person Impairment”
Date of examination was 29 July 2016.
Approved Medical Specialist Dr Hong recorded the following history:
“Mr Blake had been working as a casual pizza delivery driver for about two years. He typically worked between 4:30pm to 11pm between five to seven days per week. He last worked in October 2014.
Mr Blake described being in good mental health and has never suffered from a psychiatric disorder in the past. His psychological symptoms occurred immediately following the assault on 7 May 2014. Mr Blake recalled on this day he had delivered pizza and was robbed by an unknown male who had held a knife to his throat. The police apprehended the perpetrator a few hours later. Mr Blake consulted a GP the next day who prescribed Lovan and referred him to a psychologist. Lovan had been the only psychiatric medication he had taken, other than a sleeping aid.
Mr Blake had consulted various psychologists - William Curry and then Marie Pearson, and this year has been consulting David Guthery, currently every two weeks. He had more than 40 sessions. He consulted Professor Cathy Owens, Psychiatrist in 2015 who advised that he did not need to return to see her. Mr Blake was subsequently referred to Dr Pavan Bhandari, Psychiatrist, and has had three consultations this year. He has never been hospitalised.
Mr Blake recalled he felt improved after the assault but never fully recovered psychologically. He was off work between May and October 2014 and then returned to work in the same place. However, Mr Blake only continued for three weeks before ceasing work altogether. Mr Blake stated that he gradually improved to a point where he could attempt to a delivery, even though he still felt "shaken". He asked one of the store managers to have a break to have a smoke outside the restaurant. However, the next day, another store manager came in and starting yelling and abusing him for smoking during his three hour shift the night before. Mr Blake stated that his doctor instructed him to increase exposure (as part of his psychological treatment) by starting to drive at night time - somebody reported this to the store manager who then abused Mr Blake and claimed that he was bludging and that he could drive at night time, but he was not willing to go back to work. Mr Blake stated that this exchange with the store manager distressed him greatly, to the point that he became suicidal and he had not felt able to return to work since this incident. He stated that he cannot work, as he worry that he would be abused again.
After the yelling incident, Mr Blake was driving at about 100km an hour and nearly ran into a tree in a suicide attempt. There has been no further suicide attempt since that time. However, he says that when there was a delay in his payment he became suicidal again.”
Approved Medical Specialist Dr Hong recorded present symptoms as:
“Mr Blake reported the main problem with him now is that he doesn’t trust people and he is very jumpy, particularly when people approach him from the right-hand side.
Mr Blake can be verbally snappy and has never been physically aggressive.
Mr Blake reported having no problem with his memory and that his concentration is only poor during a flashback. He may have a flashback every three days recently.
Mr Blake has depressed mood.
He has panic attacks.
He is easily fatigued.
Mr Blake reported having disrupted and poor quality sleep.
He has constant anxiety.
He is highly vigilant and constantly looks out for potential threats.
He reported having intrusive flashbacks.
He reported having nightmares – every night.
He has become socially withdrawn.
Mr Blake did not confirm having significant weight changes over time, symptoms of psychosis, hypomania or mania.”
In respect of social activities/ADL, AMS Dr Hong recorded:
“Kerry Blake is living with his parents, with no current partner. He has never been married.
Mr Blake was living by himself and has moved back home with his parents - he said he did not feel safe living by himself and could not tolerate his anxiety. He reported a good relationship with his family and son, and a reasonable relationship with his ex-partner.
Mr Blake spent most of the time at home, watching television, playing X-box and car racing games - he can do this for three to seven hours a day. He only goes to the shops when accompanied.
Around once every fortnight he will drive to his brother’s place to pick up his son. There is an agreement with his ex-partner to drop off his son at his brother’s place.
Mr Blake attends to some household chores, for example, washing up and cooking. When his son stays with him they will watch TV, play X-box and watch movies together.
Mr Blake does not go to the cinema anymore.
Mr Blake does not play any sport or exercise normally and this has not changed over time.
Around once a week Mr Blake will go to his brother’s (Shane) place to work on restoring his hobby car, a Holden Statesman. He has not experienced any subjective difficulty restoring his car, or rebuilding the engine, and Shane reported he has not observed any change in how Mr Blake is able to attend to his hobby car.
Before the assault, Mr Blake maintained contact with four or five friends in Goulburn. They would go to pubs/clubs together. He does not have contact with them anymore.”
Approved Medical Specialist Dr Hong recorded the following findings on examination:
“Mr Blake was unshaven. He said shaving reminds him of the knife to his throat and he is therefore avoidant. He was bespectacled. Mr Blake maintained good eye contact.
Mr Blake was pleasant, cooperative and polite. He laughed at his brother's jokes and participated in social chitchat. Mr Blake did not demonstrate psychomotor disturbance, abnormal movements or stereotypy behaviours. Mr Blake was tense when he discussed his work issues. He was not thought disordered. No perceptual disturbance. Mr Blake was moderately restricted in his affect range and reactivity. Laughed on occasions. Mr Blake gave a coherent history. He recalled a reasonable amount of detail. He was consistently focused during the assessment and had no impairment in shifting topics. He had limited vocabulary and appeared to have a low baseline intelligence.”
Approved Medical Specialist Dr Hong was of the opinion that “following an assault [the applicant] developed an acute stress reaction and subsequently chronic Post Traumatic Stress Disorder, associated with anxiety and depressive symptoms, with agoraphobia”.
Approved Medical Specialist Dr Hong, stated “please see PIRS table” in response to the subject heading of opinion and assessment of whole person impairment.
Approved Medical Specialist Dr Hong provided comments in relation to the opinions of
Associate Professor Robertson and Dr Samuell:
“There is a report from Professor Michael Robertson, 11 December 2015, who gathered a similar history and diagnosed PTSD with features of panic and agoraphobia. Professor Robertson advised that there is a 17% whole person impairment.
In contrast, I noted a partial report from Dr Doron Samuell, psychiatrist, who wrote on 8 April 2016 and advised that Mr Blake suffered from PTSD and has 5% impairment. The report is incomplete and I am not certain of how he arrived at this rating.
Dr Samuell noted that Mr Blake's self-care was a class 2 impairment. Professor Robertson noted that Mr Blake’s self-care and personal hygiene was a 3 as he required prompting and needed to be scaffolded by family to care for his child. I note that
Mr Blake can cook for the family, however his self-care is reduced and he showers only twice per week. He is not able to go to the shops alone. Mr Blake has moved back home as he felt unable to live by himself due to his anxiety. I do not consider he is capable of independent living, and therefore a rating of 2 can not be supported.
Professor Robertson noted that Mr Blake had a Class 3 impairment in social recreational activity. Dr Samuell advised a rating of 2. Mr Blake reported to no longer having contact with friends or undertaking any hobbies with his friends – they used to go the cinema, pubs and clubs. He continues to work on restoring his car without difficulty, and enjoys watching television and playing X-box for numerous hours across the day. He self initiates going to his brother’s place and is able to drive there by himself. Once Mr Blake is there, he is actively engaged and his brother, who accompanied him to the assessment today, gave a consistent observation, therefore
I consider a rating of 2 to be more appropriate.
Professor Robertson noted that Mr Blake had a Class 2 impairment in travel. I note that he is able to drive independently to his brother’s house, about 10km away, and can drive on the highway. However, he has difficulty travelling further and would need an escort. This would be consistent with a rating of 2. Dr Samuell advised no impairment in travel. As Mr Blake reported difficult travelling independently due to his anxiety,
I consider a class 2 impairment to be more accurate.
Professor Robertson had advised a Class 2 impairment in Social function. Dr Samuell advise there was no impairment in social function. Mr Blake no longer has contact with any of his friends and maintains close relationships with his family of origin and his son. He has never been physically violent and there has been no loss of partnership. He cares for his son to a degree, albeit less efficiently since his injury. This would be consistent with a Class 2 impairment.
Professor Robertson had advised a Class 3 impairment in concentration as he is unable to comprehend written material due to distractibility. Dr Samuell advised there was no impairment in Mr Blake's concentration, persistence and pace. Mr Blake reported having some reading difficulties since childhood and this has not altered since his injury. He reported his memory to be subjectively normal since his injury, and his concentration is only affected during a flashback which can occur once every three days. He has no difficulty working on restoring his car for many hours each time, and therefore I consider a rating of 2 to be appropriate.
Professor Robertson advised a Class 4 impairment in employability and considered he could work about ten hours per week in a very basic role. Dr Samuell advised a class 3 impairment. I note Mr Blake can undertake a number of chores including cooking, washing up and restoring his car – these activities may be reimbursable under different circumstances, however he would have difficult interacting with his co-worker due to his hypervigilance and over-reactivity, and therefore a rating of 4 would be more appropriate.”
Approved Medical Specialist Dr Hong provided an assessment of the degree of permanent impairment with respect to “Table 11.8: PIRS Rating Form”. Psychiatric diagnosis was recorded as “Post Traumatic Stress Disorder with panic and agoraphobia”.
Table 11.8: PIRS Rating Form

PIRS Category	Class	Reason for Decision
Self Care and personal hygiene	3	Only showers 2x per week. Can cook at home. Cannot go the shops unless accompanied. Returned to live with his parents, as felt unable to live alone due to his anxiety.
		Social and recreational activities	2	Frequency of social recreation reported to have reduced. Continue to play Xbox, watch TV, restore his hobby car weekly. Can initiate and actively engage in various activities, which he enjoys. No longer goes to pubs/clubs with his friends. No other normal hobbies.
				Travel	2	Does not like leaving his home, due to his anxieties. He will drive unaccompanied but only locally.
						Social functioning	2	Has lost friendships due to his anxieties. Good relationship with his family. No physical aggression nor loss of partnership.
Concentration, persistence and pace	2							He reported reduced concentration during a flashback. Continue to restore his car, can do this for the whole day, brother does not observe any change in his ability to work on the car. Reading problem is pre-existing.
Employability	4	Under different circumstances, he could be remunerated for some of his current activities – cook, wash up, restore car. He is severely dysfunctional due to his psychiatric symptoms and his level of adaptation is poor.

Score			Median Class
2	2	2	2	3	4	=2
Aggregate Score Impairment			Total	%

Approved Medical Specialist Dr Hong certified permanent impairment as follows:

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)

Psychological

7/5/2014

11, page 55-60

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

Certificate of Determination of Arbitrator Farrell dated 17 November 2016

A Certificate of Determination dated 17 November 2016 in matter numbered 3263/16 by Arbitrator Farrell provided:
“The Commission determines:
1.       The applicant suffers 8% permanent impairment resulting from psychological injury deemed to have happened on 7 May 2014.
2.       The applicant has no entitlement to lump sum compensation resulting from psychological injury deemed to have happened on 7 May 2014.
Brief statement of reasons
3. This Certificate of Determination is issued in accordance with the Medical Assessment Certificate issued under Part 7 of Chapter 7 of the Workplace Injury Management and Workers Compensation Act 1998.
4. The applicant did not reach the threshold for lump sum compensation, as required by section 65A(3) of the Workers Compensation Act 1987.
5.       The proceedings were commenced after 2 April 2013 and therefore no order is made as to costs.”

Applicant’s statement

The applicant provided a statement dated 4 February 2021. He stated that since the time he attended AMS Dr Hong, he has experienced the onset of significant limitations in his daily activities resulting from the deterioration in his mental state. The applicant stated that these limitations included increased “avoidant behaviours” such as inability to drive at night and avoiding public spaces, and he also moved as he felt that he could no longer live alone.
The applicant stated that he continued to consult Mr David Guthrey, clinical psychologist, regularly since the assessment of AMS Dr Hong.
He stated that on 10 October 2016 he was admitted to St John of God Hospital for further management of his post-traumatic stress disorder (PTSD). He was discharged on 31 October 2016. He did not feel that the program at the St John of God Hospital helped. He was again admitted to the St John of God Hospital on 14 September 2017 for trial treatment and attempting to engage psychologically, and was discharged again on 22 September 2017. He was readmitted to the St John of God Hospital on 6 August 2018 for further transcranial magnetic stimulation (TMS) treatment and was discharged again on 10 August 2018. He was readmitted to the St John of God Hospital on 13 August 2018, discharged 17 August 2018, readmitted 20 August 2018 and discharged again on 24 August 2018, readmitted on 27 August 2018 and discharged 31 August 2018, all attendances for TMS treatment. The applicant said that the effects of the treatment did not last.

The applicant also stated that he continued to see his treating psychiatrist, Dr Alice Dwyer on a month-to-month basis, which ceased in December 2019 as he could not afford to pay for the sessions as he was no longer receiving workers compensation payments. The applicant said that he continued to see Mr Guthrey until mid 2019.
The applicant said that he had noticed that in the last few months his symptoms had become even worse. The applicant gave details of his daily activities and restrictions, including with social activities and difficulties leaving the house as well as his disturbed sleep, restlessness and flashbacks.
He stated that his medication has been under review to assist with his symptoms. The applicant stated that his medications have both changed and increased since the examination by AMS Dr Hong.
The applicant stated that he was currently taking medication in the form of venlafaxine (antidepressant up to 300 mg), agomelatine (antidepressant up to 50 mg), sodium valproate (mood stabiliser and augmentation agent for depression up to 400 mg), periactin 2 mg nocte (for sleep), zopiclone 15 mg (for sleep), and prazosin 5 mg (for PTSD related nightmares). The applicant stated that he takes his medication in the morning and evening.

Dr Dwyer

Dr Dwyer, consultant psychiatrist and psychotherapist, provided a number of reports.
In a report dated 3 February 2017 to the applicant’s general practitioner, Dr Alvarez,
Dr Dwyer noted diagnoses of “PTSD and MDD”. She noted that he was currently prescribed 150 mg venlafaxine mane, 400 mg BD sodium valproate, 4 mg prazosin nocte, zopiclone 15 mg nocte, melatonin 2 mg nocte and fish oil. Dr Dwyer recorded that:
“Mr Blake describes the typical incapacities of PTSD including difficulties going outside, minimal tolerance of social interactions, intense irritability, poor sleep and anxiety and agitation. He does not feel he can tolerate his previous work place or manage complex interactions with others. I do not think he is able to work.”
She recommended continuing consultations with Mr Guthrey for psychological assistance and she would review the applicant “three to four weekly”.
In a neuropsychological referral letter dated 20 October 2017, Dr Dwyer noted that the applicant was currently an inpatient at St John of God Hospital Richmond and was being treated for PTSD and MDD and was undergoing a trial of TMS “with some positive effects”. Dr Dwyer noted that the applicant stated that he had limited capacity to read and write and reported struggling to understand or pay attention to or engage with concepts raised in group work. She noted that he was somewhat isolated and can become irritable. She requested neuropsychological review ‘to elucidate potential intellectual or cognitive deficits that may be limiting his capacity to fully engage with and benefit from treatment’.
In a report to MetLife insurance Ltd dated 12 October 2018, Dr Dwyer stated that the applicant’s current diagnoses included PTSD – chronic and persistent depressive disorder, with evidence of learning disorders which predated the work injury.
Dr Dwyer recorded:
“Regarding PTSD the claimant describes:
·        Unwanted intrusive memories of the original trauma as described above. He reports feeling emotionally distressed and describes bodily symptoms consistent with hyperarousal including increased heart rate, sensation of throat constriction, chest tightness, and shortness of breath when he recalls the trauma.
·        Attempting to avoid any reminders, recollection or discussion of the original trauma.
·        A negative bias regarding the safety of the world and their self-worth. He describes a lack of interest in usual hobbies, reduced motivation and feeling disconnected from others. He describes a generally low mood, although he can enjoy his son.
·        Increased irritability, poor memory and concentration and disturbed sleep, with initial insomnia and waking through the night.
Regarding persistent depresslve disorder the claimant describes:
·        Predominantly sad, low and depressed mood most days, more often than not
·        Poor sleep patterns
·        Low energy and motivation
·        Low self esteem
·        Feelings of hopelessness
·        Suicidal thoughts - these fluctuate. He reports that his family and son are protective against acting on these thoughts.”
Dr Dwyer described the current management plan, regarding PTSD, was to research alternative treatment approaches that may be more suitable for the applicant’s neurocognitive limitations, particularly regarding reading and writing. Dr Dwyer was awaiting feedback from the Chair of Trauma Research in this regard. Dr Dwyer stated that she would be trialling predominantly behavioural approaches to the applicant’s PTSD and liaising with the psychologist, Mr Guthrey regarding ongoing outpatient treatment using a predominantly behavioural approach. Dr Dwyer also noted that she was researching the feasibility of transcranial magnetic stimulation for the applicant, but this in her view would not have a profound impact on his mental health.
Dr Dwyer noted that, regarding the persistent depressive disorder, her plan was to continue with the current transcranial magnetic stimulation course and consideration was being given to offering a course of electroconvulsive therapy, limited due to the patient’s needle phobia. Dr Dwyer also noted that there are several antidepressants and mood stabilisers that may be indicated and she would be reviewing this more closely in the ensuing weeks after completion of the current TMS course.
Dr Dwyer was also of the opinion that:
“it is most likely that the claimant has reached maximum medical improvement. He has participated in several modalities of psychological treatment including exposure based CBI, EMDR and supportive psychotherapy. He has been trialled on several appropriate medications. He has undergone TMS treatment. Despite several biological approaches to his conditions he has remained quite unwell and struggled with managing the usual obligations and interactions of adult life.”
Dr Dwyer provided the following assessment of functional capability:

Functional Ability	Clinical Findings and Severity
Concentration	Poor
Cognitive ability	Poor
Memory	Poor
Energy and sleep	Low energy and poor sleep
Social interaction	Very limited. The claimant only socialises with family.
Motivation	Very low
Panic attacks	General agitation and avoidance of social situations due to intense anxiety
Mood	Low
Self-care	Intermittent. The claimant reports missing meals, and often appears dishevelled and unkempt.
Leaving the house	The patient reports avoiding leaving the house if at all possible. He reports helping his mother with transport for medical appointments (dialysis).
Emotional control/self regulation	The patient reports and presents with restricted affect, and can describe distress at perceived stressors and difficulties, often describing desires and fears that he will act out on aggressive thoughts.
Stress management	Limited

Dr Dwyer was of the opinion that the applicant was “too unwell with psychiatric symptoms to be able to work, even part-time”. She was of the opinion that his prognosis with regard to return to work was extremely guarded.
In a report to Dr Alvarez dated 19 November 2018, Dr Dwyer noted that the applicant had recently been admitted to St John of God Hospital Richmond for TMS. He noted that he had responded reasonably well to this in the past and there had been some recent positive outcomes. She noted that “the gains are not usually sustainable, however, over the long-term”.
Dr Dwyer also recorded that:
“I have discussed his case with colleagues in light of the recent neurocognitive testing which showed difficulties in certain information processing tasks. It would seem to me that the cognitive side of the trauma focussed CBT is most likely a burden for him and could create barriers to improvement. I have discussed focussing on the behavioural side, and doing more exposure based exercises to assist him. Mr Blake has consented to this and indicated he is open to trialling this. As a result I have planned to meet him at the cafe at the hospital at his next few appointments and work in a graded fashion towards him ordering drinks at the counter. I will utilise grounding and relaxation strategies to assist him in deescalating any distress that arises at that time.”
In a report to the applicant’s solicitors dated 25 July 2020, Dr Dwyer recorded the nature and extent of the injuries suffered by the applicant as follows:
“During the treatment period with Mr Blake he described a workplace injury of posttraumatic stress disorder (PTSD) which I diagnosed as chronic and severe. He reported being assaulted whilst at work in late 2014. This led to symptoms of PTSD and the development of major depressive disorder with anxious distress. The latter was chronic and treatment resistant and at the end of the treatment relationship with
Mr Blake would better be characterised as persistent depressive disorder.”
In respect of treatment given, Dr Dwyer recorded that:
“During the treatment relationship with Mr Blake he was prescribed: venlafaxine (anti depressant up to 300mg), agomelatine (antidepressant up to 50mg), sodium valproate (mood stabilise and augmentation agent for depression, up to 400mg), periactin 2mg nocte (for sleep), zopiclone 15mg (for sleep) and prazosin 5mg (for PTSD related nightmares)
Mr Blake was admitted to a tertiary level psychiatric hospital for intensive treatment and received transcranial magnetic stimulation. It was recommended that he attend group therapy which he trialled.
He has received Cognitive Behavioural Therapy, supportive psychotherapy, and Eye Movement and Desensitisation and Reprocessing therapy from other practitioners.
He declined a trial of electroconvulsive therapy due to a needle phobia.”
In response to a question as to whether in her opinion Dr Dwyer believed that the applicant’s condition had deteriorated since undergoing an assessment by Dr Hong in 2016, and, if so, the extent of any such deterioration, Dr Dwyer stated that:
“In my view Mr Blake’s condition has worsened by approximately 10% in severity since I first started treating him. I think this has occurred as repeated attempts to treat his condition have not led to significant change and this has led to a sense of hopelessness and demoralisation.”

Mr Guthrey

The clinical records of Mr Guthrey, clinical psychologist, recorded treatment provided to the applicant, initially on 10 March 2016 and also regular consultations after the assessment of AMS Dr Hong until the final recorded session on 8 February 2019.
It was submitted by the applicant that after the assessment by AMS Dr Hong, the applicant required intensive treatment by Mr Guthrie and Dr Dwyer. The applicant referred to a clinical note of 13 September 2016, in which it was noted Mr Guthrie reviewed a suicide assessment.
Another note on 16 December 2016 recorded that the applicant recently saw
Professor Gordon Davies, psychiatrist, for psychological assessment on behalf of the insurer, following which the applicant consulted Dr Dwyer the previous week, who prescribed a stronger dose of medication.
A note on 11 March 2017 recorded that Dr Dwyer was concerned about the applicant and undertook a suicide assessment. It was noted that the applicant was hearing voices more, that is of the assailant not psychosis or thoughts of self-harm, as the applicant could distinguish the difference.
On 30 March 2017, it was recorded that Mr Guthrie had a telephone call with Dr Dwyer and he expressed concern that the applicant was not progressing and also discussed the applicant’s suicidal thoughts, and it was agreed that the risk is lower than it was last time when the applicant saw Dr Dwyer a couple of weeks ago.

St John of God Hospital

The clinical records of St John of God Hospital recorded the applicant’s admissions for treatment, as referred to in the reports of Dr Dwyer, A/Prof Robertson and Mr Guthrey.
The initial record was a discharge summary which recorded admission to the St John of God Hospital at Richmond on 10 October 2016 under the care of Dr Dwyer and discharge on 31 October 2016. The history recorded was that the applicant “sought admission at the urging of psychiatrist for further intense management of PTSD”.
Another discharge summary recorded admission to the St John of God Hospital on 14 September 2017, and discharge on 22 September 2017, under the care of Dr Dwyer. It was noted that the applicant “agreed to admission to trial TMS and attempt psychological engagement”. The admission was truncated as the applicant required discharge to attend to parenting duties and readmission was planned.
Other discharge summaries detailed admissions in August 2018 for treatment of PTSD, including readmission for TMS.

Associate Professor Robertson

Associate Professor Robertson, consultant psychiatrist, provided a number of reports to the applicant’s solicitors.
In a report dated 11 December 2015, A/Prof Robertson provided the following Psychiatric Impairment Rating Scale (PIRS) and whole person impairment assessment:

[image cannot reproduce]

In a report dated 19 March 2019, A/Prof Robertson noted that he examined the applicant on 18 March 2019, having previously examined him in December 2015. He also noted the clinical notes of Dr Dwyer and Mr Guthrey, the MAC of AMS Dr Hong dated 4 August 2016 and his own previous report dated 11 December 2015. He also noted statements of the applicant dated 10 June 2016 and 11 March 2019, which are not before me in the current proceedings. However, there appears to be no issue in relation to these statements and the applicant’s statement of 4 February 2021 provides details of his further treatment, symptoms and restrictions.
Associate Professor Robertson noted that in his previous report he had diagnosed the applicant as suffering from PTSD with crosscutting features of panic and agoraphobia and that he was appropriately treated with psychological therapy and antidepressant medication. He noted that in the previous report he had suggested there was medical stability and “assessed 15% WPI with Class 3 impairment on Tables 11.1, Class 2 impairment on Tables 11.3 and 11.4 and Class 4 impairment on Table 11.6”. He also noted that he had suggested a 1/10 deduction attributed to varying family tragedies that had unfolded contemporaneously.
Associate Professor Robertson recorded on examination on 18 March 2019 that the applicant described continuing hyperarousal, hypervigilance, exaggerated startle reflex, nightmares and flashbacks, irritability, sleep disturbance, panic attacks, impaired concentration and short-term memory. He noted that the applicant “cannot read beyond a few lines although this also refers to a previous reading disorder”. A/Prof Robertson also noted that the applicant frequently misplaces belongings, is inattentive and cannot focus for more than 30 to 40 minutes on any particular task.
Associate Professor Robertson noted the applicant’s continuing medication was “a combination of zopidone, cyproheptadine, prazosin, sodium valproate and venlafaxine, an anti-depressant medication”. He noted that the applicant had three hospital admissions under the care of Dr Dwyer for inpatient PTSD treatment programs and also a course of transcranial magnetic stimulation therapy which provided a non-sustained antidepressant benefit.
Associate Professor Robertson recorded that the applicant reported the following day-to-day functioning:
“Self-care: He showers only once or twice per week and usually has to be prompted to do this by his family. He has moved back in with his family to provide support particularly when his son visits him. His mother or sister tend to prepare all of his meals.
Social/Recreational: Mr Blake does not ‘leave the house’. He does not accept invitations to social occasions. He frequently absents himself when visitors come to the family home.
Travel: He can only navigate areas independently where he feels confident or is familiar. He tends to require an escort to travel any further, eg. to this appointment.
Social/Adaptive: He has lost most of his friendships in the course of these difficulties, however there have been no instances of domestic violence, threatened or actual separation and he remains on good terms with his extended family.
Concentration, Persistence and Pace: He is forgetful, inattentive, misplaces belongings and cannot persist at tasks beyond about 20 to 30 minutes.
Employment/Adaptation: He has not performed any paid or voluntary employment since ceasing duties with Domino's. His only productive activity is ‘tinkering’ on old cars and would only be able to sustain this for less than ten hours per week.”

Associate Professor Robertson was of the opinion that the applicant presented with chronic PTSD with comorbid major depressive disorder. He also stated:
“Mr Blake presents with chronic post-traumatic stress disorder with co-morbid major depressive disorder.
This diagnostic formulation remains unchanged from my last assessment.
Moreover Mr Blake's level of Whole Person Impairment remains unchanged from my previous observation, although I would no longer consider it necessary to apply one-tenth deduction as the concurrent psychosocial stressors have ceased to be of relevance.
Dr Hong's assessment of social and recreational activities does not reflect what
Mr Blake described. Dr Hong's annotation was ‘continue to play Xbox, watch TV, restore his hobby car’. The history provided by Mr Blake at this interview was consistent more with Class 3 impairment in that ‘rarely goes to social events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved’.
Dr Hong's assessment of concentration, persistence and pace also is not consistent with what was reported at interview. Dr Hong stated ‘He reported reduced concentration during a flashback. Continue to restore his car, can do this for the whole day, brother does not observe any change in his ability to work on the car'.
Dr Hong also notes quite correctly ‘reading problem is pre-existing’. The history provided today was that Mr Blake lost focus after 20 to 30 minutes and had frequently misplaced belongings.”
Associate Professor Robertson assessed 19% whole person impairment and noted that he no longer considered a deduction necessary for the effects of other psychosocial stressors. He also noted that the applicant had “demonstrated a consistent clinical course since our last assessment as reflected in the unchanged categories of evaluation on the PIRS”.
Associate Professor Robertson provided the following PIRS:

[image cannot reproduce]

In a supplementary report dated 17 November 2021, A/Prof Robertson reviewed a number of documents, including the report of Dr Dwyer dated 25 July 2020.
Associate Professor Robertson was asked the question “based upon your own assessment of Mr Blake’s condition, has Mr Blake’s condition deteriorated in the context of the assessments carried out by Dr Hong on 4 August 2016? If so, to what extent has Mr Blake’s condition deteriorated with reference to the assessment carried out by Dr Hong on 4 August 2016 as outlined above”.
Associate Professor Robertson responded to this question as follows:
“You would recall that I reassessed Mr Blake at your request in March 2019 where
I had addressed AMS Hong's Medical Assessment Certificate dated August 2016.
I assessed 19% WPI based on his presentation at that time whereas AMS Hong had assessed 8%. There had been apparent deterioration in Mr Blake's mental state manifesting as different ratings on the PIRS including Class 3 impairment on Table 11.2 (in contrast with Class 2 assessed by Dr Hong) and Class 3 impairment on Table 11.5 compared to Class 2 on Dr Hong's assessment.
You provided me the clinical notes regarding Mr Blake's care provided by Dr Dwyer and Mr Guthrey. Dr Dwyer's report to your office dated July 2020 noted a ‘chronic and severe’ psychological injury including requirement of treatment with multiple psychotropic medications and his admission to hospital for a course of rTMS.
Dr Dwyer stated, 'my assessment is that the prognosis is guarded' and his ‘conditions are treatment resistanf'. She noted, ‘I would surmise that Mr Blake would require hospitalisation intermittently’. Dr Dwyer concurs with the proposition, ‘Mr Blake's condition has worsened by approximately 10% in severity since I first started treating him. I think this has occurred as repeated terms to treat his condition have not led to significant change and this has led to a sense of hopelessness and demoralisation’.
To address the specific issue of whether there had been deterioration in your client's mental state, whilst I cannot comment specifically beyond what I observed two years' ago, the balance of information about his recent mental health indicates that there had been no substantive change and that it is more likely than not that Mr Blake's mental state had deteriorated to the point of >10% change in the observed level of WPI.
This indicates that the determination of maximum medical improvement in this matter in 2016 was ultimately proven incorrect despite the available information at the time.”

The application and the applicant’s written submissions

In a letter to the commission dated 4 March 2022, the applicant, among other matters, stated:
‘This application is made pursuant to s57 of the Personal Injury Commission Act 2020 (NSW), which provides that the Commission may reconsider any matter that has been dealt with by the Commission in the Workers Compensation Division and rescind, alter, or amend any decision previously made or given by the Commission in that Division.
The Applicant seeks an order for the Commission to rescind the Certificate of Determination dated 17 November 2016 in this matter, where the Worker received an 8% permanent impairment percentage resulting from an injury on 6 May 2014. The Applicant asserts that pursuant to s 327(a) and (b) of the Workplace Injury Management and Workers Compensation Act 1988 (NSW) that he has had a deterioration in his condition and has acquired additional relevant information that was not available to the Applicant before the original assessment, which gives rise to the right to an appeal and subsequent re-assessment by a MAC Assessor. The Applicants reasons for this Application are contained within the below annexed documents.”
In written submissions dated 4 March 2022, attached to its letter of the same date, the applicant provided submissions in respect of the application to reconsider and rescind the Certificate of Determination dated 17 November 2016. After noting s 57(1) of the PIC Act, and s 350(3) of the 1998 Act (as it previously applied), it was submitted relevantly as follows:
“The above two sections are of similar wording and therefore any case law relevant to Section 350 will be applicable to Section 57. It is noted that subsections (2) and (3) of Section 57 merely add to the powers of the Commission under subsection (1) and do not detract from the powers of the Commission to exercise its discretion under subsection (1) that a decision of the Commission is final and binding on the parties. We submit however that, pursuant to subsection (3) the Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.
In Preston vs Randwick City Council [2012] NSWCA 178, the Court of Appeal [at 23] commented that in an appropriate case an Arbitrator, pursuant to Section 350(3) could set aside an order made by consent, although cogent evidence would be required to ground such an application.
In the above case, which was on appeal from the decision of Deputy President O’Grady in Preston vs Randwick City Council [2012] NSWWCCPD 1, O’Grady DP [at 52] outlined that whilst it is clear pursuant to Section 350(3):-
‘that the Commission may, in an appropriate case, set aside an order made by consent, it is clear that such an order will be made only in the most exceptional circumstances’.
…
Reliance was placed by Mr Preston upon the decisions of Markulin vs Healthwoods Pty Ltd [2007] NSWWCCPD 76 and Sorcevski vs Steggles Pty Ltd (1991) 7 NSWCCR 315 in support of an argument that the Commission has a discretion to set aside a prior award said to have been entered by consent.
…
We submit that in the circumstances Mr Blake’s case would be considered to be ‘exceptional circumstances’.
Markulin was a decision of Deputy President Roach who stated as follows at paragraph 52:-
The circumstances in which the reconsideration power can be used in the Commission have been discussed in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 at [38] to [59] and Nan v Country Road Freight Services Pty Limited [2006] NSWWCCPD 160 at [58]. The discretionary power conferred on the Commission by section 350(3) is in ‘extremely wide terms’ (Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244 at 248). Its use requires the Commission to balance the public interest that litigation should not proceed indefinitely with the need to do justice between the parties (Hilliger v Hilliger [1952] SR (NSW) 105). The authorities do not support a conclusion that the power in section 350(3) is restricted to situations where it is necessary to address a ‘manifest injustice’.
… The above circumstances in Markulin are extremely different to the circumstances in Mr Blake’s situation. It appears that Mrs Markulin was not happy with the decision and she felt that she had been excluded from the process. This is not the situation with Mr Blake. The situation with Mr Blake is that he was content with the decision but since the COD had been issued his condition has deteriorated significantly and that is the reason why he is seeking for the decision of the Commission to be set aside.
In Markulin Roach DP at [53] outlined that the reconsideration power is not so wide as to allow reconsideration of an award because of a mistake or inadvertence by a parties’ solicitor (Hurst vs Goodyear Tyre and Rubber Co (Australia) Ltd [1953] WCR 229). But that is not the situation that Mr Blake is relying upon. There was no mistake or inadvertence by his solicitor (as may have been the case with Mrs Markulin). In
Mr Blake’s situation the reconsideration some 2 years later is the fact that Mr Blake’s condition has deteriorated significantly.
In Markulin Roach DP at [54] accepts that the Commission has, in a reconsideration application, the power to set aside a prior consent award. However, Roach DP outlined that whether or not the Court should exercise that power is another matter.
…
In Samuel vs Sebel Furniture Limited (2006) NSWWCCPD 141 a decision of Deputy President Roach, Mr Samuel suffered a hernia allegedly in the course of his employment with Sebel but on 24 November 2003 a Certificate of Determination was issued by consent where Mr Samuel agreed that his condition was not work related and an award for the Respondent was made. Mr Samuel’s condition continued to trouble him and he sought further treatment and underwent surgery. A further ARD was filed by Mr Samuel who requested the Commission to reconsider the original decision pursuant to Section 350 of the 1998 Act. The Arbitrator found in favour of the Employer and Mr Samuel appealed.
Roach DP considered the power to reconsider under Section 350(3) in paragraphs [38] and following. Roach DP found that the surgical operation undertaken by Mr Samuel provided strong evidence that was not available at the time of the COD that his groin pain had been caused by his work activities. Roach DP went on to outline that armed with that additional evidence Mr Samuel then asked the Commission to reconsider the COD. Roach DP could see no reason of public policy that would prevent Mr Samuel from having the consent award reconsidered. He could see nothing in Mr Samuel’s conduct that would prevent him from having his claim determined on its merits. Roach DP was of the view that where there has been no excessive delay in bringing the claim under Section 350 and, where there is no prejudice to the Respondent Employer, the interests of justice require that the claim be reconsidered and determined according to its merits.
In Hilliger v Hilliger (1952) 52 SR (NSW) 105 (‘Hilliger’) Street CJ considered a similar provision of the Landlord and Tenant (Amendment) Act 1948. At page 108 his Honour said:-
‘I think there is power in the court to entertain an application for variation or rescission so long as the original order is current, and to make such order in the way of variation or rescission as to it may seem proper. It is important naturally to keep well in mind the distinction between the existence of a power and the occasion of its exercise, and the courts should not lose sight of the general rule that the public interest requires that litigation should not proceed interminably. A party who seeks or opposes an order must produce all the available evidence at the original hearing, and courts must be on their guard to refuse to allow the same matter to be litigated again and again. But at the same time it is clear that the Legislature intended to leave with the prescribed courts the power of reviewing any decision in order to see that justice is done between the parties.’(emphasis added)
The above passage from Hilliger was applied by the Court of Appeal in Hardaker v Wright & Bruce Pty Ltd [1962] SR (NSW) 244 (‘Hardaker’), a case involving section 36 of the 1926 Act. In Hardaker the court noted that section 36 conferred a discretion on the Commission which was expressed in ‘extremely wide terms’ (at 248). However, the discretion has been held not to be so wide as to allow reconsideration of an award because counsel failed to refer to relevant authorities (Selfe v A Cook & Sons Pty Ltd [1965] WCR 88) or because of mistake or inadvertence by a party’s solicitor (Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] WCR 29 (‘Hurst’)).
The factors relevant to the exercise of the discretion in section 36 of the 1926 Act were considered by the Court of Appeal in Schipp v Herfords Pty Ltd [1975] 1 NSWLR 413 (‘Schipp’). The court noted the following factors were relevant in deciding whether the discretion should be exercised in favour of the moving party:
1. delay;
2. whether the worker had a right of appeal from the first decision but failed to exercise that right;
3. waiver or estoppel issues, and
4. rescinding an earlier award will allow a worker to bring fresh proceedings.
In considering section 17(4) of the Court Act Judge O’Meally noted in Galea v Ralph Symonds Oty Ltd [1989] NSWCC 4; (1989) 5 NSWCCR 192 (‘Galea’) at 201 that:
‘There is a distinction between fresh evidence and more evidence...’
We submit that the circumstances in Mr Blake’s situation is that he is attempting to introduce ‘fresh evidence’. The evidence that his condition has significantly deteriorated was not available to him at the time of the original COD because it is obviously evidence that post-dates the issuing of the COD. His condition has deteriorated significantly and that is the reason why he is seeking for the decision of the Commission to be set aside. It is not a question that Mr Blake is attempting to introduce ‘more evidence’.
In Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC 36; (1993) 9 NSWCCR 642 (‘Maksoudian’) Judge Bishop considered a reconsideration application under section 17(4) of the Court Act. His Honour stated at 645:
“The legal basis for a reconsideration for an award of the Court as laid down in section 36 of the previous legislation and section 17 of the present is well settled. There is no doubt that the discretion of this Court to reconsider is wide and far reaching. The task of the Court is to balance the policy requirement of finality of litigation with the obligation to rectify any clear cut injustice. The cases do not comprehensively indicate how the Court is to approach this task, but it does seem that two broad requirements are laid down. The first of these is that the material leading to an application for reconsideration must be what can broadly be described as ‘fresh evidence’, namely material that with reasonable diligence could not have been put before the Court at the time of the original proceedings and the application for reconsideration has to move with appropriate speed and diligence to bring that matter to the Court's attention. The second point is that the fresh evidence must be of such a nature that if it had been before the Court when the original proceedings were heard it would more likely than not have affected the outcome of the proceedings: Hardaker v. Wright & Bruce Pty Ltd (1962) 62 SR (NSW) 244 and Hilliger v. Hilliger (1952) 52 SR (NSW) 105.”
We submit that it is also relevant to consider the NSW Court of Appeal decision in CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223(‘Bouwhuis’) where the court considered the provisions of section 13(6) of the Dust Diseases Tribunal Act 1998 (‘the Dust Diseases Act’). That subsection provides:
“Whenever appropriate, the Tribunal may reconsider any matter that it has previously dealt with, or rescind or amend any decision that the Tribunal has previously made.”
Justice Priestly said at [247]:
“Section 13(6) is thus dealing with a subject matter quite different from that dealt with by section 17(4) of the Compensation Court Act 1984 from which its words seem to have been taken. What in its context subsection (6) seems to me to do is to recognise that there may occasionally be very exceptional cases in which it becomes clear that after judgment something of a fundamental kind and of high importance to the litigation has happened, that it has happened in regard to a case which because of the nature of the Tribunal’s jurisdiction needs to be dealt with the greatest available expedition and that it may be more efficient, rather than leave the supervening and basic matter to be dealt with by the appeal mechanism, to have it dealt with by the Court of first instance. [Emphasis added]
We submit that in Mr Blake’s situation it is quite clear, as outlined by Justice Priestly above, that there may occasionally be very exceptional cases in which it becomes clear that after judgment something of a fundamental kind and of high importance to the litigation has happened. We submit that Mr Blake’s significant deterioration would be considered to be such a circumstance.
In considering the scope and operation of section 350(3) we refer to the words of Justice Mahoney in Switzerland Insurance Workers’ Compensation (NSW) Ltd v Burley, Court of Appeal, No. 40408, 5 December 1996, unreported, at 18:
“Procedure in the Compensation Court is, in general, flexible and free from basic rigidities. This is as it should be: the Court is a specialist Court whose function is to deal with a large number of claims as expeditiously as may be. Its decisions are, in my opinion, to be given according to the law but with a regard to justice and merits appropriate to the nature of the social remedy which the legislation provides. Subject to observance of the specific statutory requirements, it should, in my opinion, exercise its jurisdiction in a beneficial manner and without undue emphasis upon technicalities.”
We submit that Mr Blake has an extremely strong argument to have the original Medical Assessment Cerificate rescinded pursuant to Section 350(3) of the 1998 Act.
Upon the original COD being rescinded it would then be open to Mr Blake to lodge an Appeal against the Medical Assessment Certificate issued by AMS Dr Hong pursuant to Section 327(3) on the ground that there has been a deterioration of Mr Blake’s condition that results in an increase in the degree of permanent impairment pursuant to Section 327(6) the Registrar may refer a medical assessment for further assessment under Section 329 as an alternative to an Appeal against the assessment.
Section 322A(1) of the 1998 Act provides that only one assessment may be made of the degree of permanent impairment of an injured worker. We refer to the decisions of Adriaansen vs Dungog & District Retirement Living Limited [2016] NSWWCCPD 36 and Pidcock Panel Beating Pty Ltd vs Nicolia [2017] NSWWCCPD 32. In Adriaansen, …
Acting Deputy President Michael Snell at [29] outlining that due to the combined operation of Section 66(1A) of the 1987 Act and Section 322A of the 1998 Act there will be a final and binding Certificate of Determination in respect of the medical dispute. However at paragraph [37] Snell DP stated as follows:-
Section 326(1) of the 1998 Act provides that a MAC is “conclusively presumed to be correct” in respect of the matters described in the sub-section. This includes ‘the degree of permanent impairment of the worker as a result of an injury’. However, the Commission is not constituted by an AMS or a MAP: s 368 of the 1998 Act. It follows that a MAC ‘does not equate to a determination of a dispute by the Commission’: Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 at [27], Milosavljevic at [49]. Disputes are determined by the Commission: s 293 of the 1998 Act. The dispute between the parties going to the appellant’s entitlement to permanent impairment compensation has not, at this point, been decided. The respondent’s submission is correct; it is the issue of a Certificate of Determination, consistent with the MAC, which will finally determine the rights of the parties.
Therefore, the AMS or the MAP does not equate to a determination of a dispute by the Commission. Accordingly, in the present situation Mr Blake, in the event that the Certificate of Determination is rescinded pursuant to Section 350(3) would mean that there has been no determination of the dispute between the parties.
We submit that in these circumstances the proceedings would remain on foot, they have not been finally determined. In Adriaansen, there was no application made pursuant to Section 350(3) to have the Certificate of Determination set aside. At paragraph [42] Deputy President Snell outlined the fact that it remained theoretically possible that steps could be taken which could lead to a result different to that dictated by the MAC, prior to the issue of a Certificate of Determination, if there was some appropriate factual and legal basis, a further application pursuant to Section 329 could be made, or a further appeal, for example, pursuant to Section 327, may lie. Accordingly, we submit that what Deputy President Snell was alluding to was that if there was no Certificate of Determination in existence then under some appropriate factual and legal circumstances a further application could be made pursuant to Section 329 or an appeal could be lodged pursuant to Section 327. It could be inferred that under those circumstances the difficulties alluded to in Section 322A that only assessment may be made of the degree of permanent impairment of an injured worker, would be overcome or circumvented on the basis that there is still only one assessment being made.
We submit that Section 322A does not prevent a referral of a matter for further medical assessment or reconsideration pursuant to Section 329 nor does it prevent an Appeal against a Medical Assessment pursuant to Section 327.”
In relation to the appeal against the MAC, the applicant’s written submissions relevantly stated:
“In a report dated 11 December 2015 Associate Professor Michael Robertson, Consultant Psychiatrist, assessed Mr Blake as suffering from a 17% WPI as a result of the above injury. A claim for compensation was made and on 4 August 2016 a Medical Assessment Certificate dated 4 August 2016 was issued by AMS Dr Michael Hong, Psychiatrist, providing an 8% WPI assessment. A Certificate of Determination was issued on 17 November 2016.
Following the above assessment Mr Blake’s condition has deteriorated. He has attended upon psychologist Mr David Guthrie on a fortnightly basis and psychiatrist
Dr Allison Dwyer on a monthly basis since 10 October 2016.
In report dated 17 November 2021 Professor Robertson [sic]
There had been apparent deterioration in Mr Blake’s mental state manifesting as different ratings on the PIRS including Class 3 impairment on Table 11.2 (in contrast with Class 2 assessed by Dr Hong) and Class 3 impairment on Table 11.5 compared to Class 2 on Dr Hong’s assessment.
Dr Dwyer concurs with the proposition, “Mr Blake’s condition has worsened by approximately 10% in severity since I first started treating him. I think this has occurred as repeated terms to treat his condition have not led to significant change and this has led to a sense of hopelessness and demoralisation”.
…. the balance of information about his recent mental health indicates that there had been no substantive change and that it is more likely than not that Mr Blake’s mental state had deteriorated to the point of >10% change in the observed level of WPI.
This indicates that the determination of maximum medical improvement in this matter in 2016 was ultimately proven incorrect despite the available information at the time.
Emphasis Added
Professor Robertson assessed Mr Blake 2 years previous in 2019 and upon his assessment of the more recent contemporaneous medical evidence from the treating practitioners Professor Robertson is of the view there has been ‘no substantive change’ for the positive from when he assessed him 2 years previous.
Professor Robertson is of the opinion that ‘there had been apparent deterioration in
Mr Blake’s mental state manifesting as different ratings on the PIRS’. It is therefore more likely than not that Mr Blake’s condition has deteriorated by more than 10% with respect the observed WPI in accordance with Professor Robertson opinion. Accordingly, in the event that the matter was referred back to Dr Hong for a further assessment, it is more likely than not that Dr Hong in applying the PIRS, and making an assessment of Mr Blake’s condition at the present time, taking into account the medical evidence would find that there is a different WPI assessment.
It is also apparent from the opinions expressed by Professor Robertson that at the time of his assessments back in 2015 and Dr Hong’s assessment in 2016 that whilst both of them were at that time of the view that Mr Blake’s condition had stabilised sufficient to provide a WPI assessment at that time, it has since become apparent that Mr Blake’s condition was not stabilised.
Mr Blake has been hospitalised at St John of God Mental Health Hospital on two occasions since the AMS assessment on 4 August 2016. On the first occasion from 10 October 2016 to 31 October 2016 as an inpatient in the PTSD clinic. On the second occasion Mr Blake was hospitalised with PTSD and Major Depressive Disorder on 14 September 2017.
Mr Blake’s has provided instructions that his condition has substantially deteriorated since his AMS assessment by Dr Hong on 4 August 2016.
We submit that Mr Blake has grounds for reassessment pursuant to sub sections 327(3)(a) and (b) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and enclose the following relevant information which was not available and could not reasonably have been obtained prior to the appeal against the medical assessment:
·    Clinical notes of treating psychologist Mr David Guthrey;
·    Clinical notes of treating psychiatrist Dr Alison Dwyer;
·    Discharge summaries St John of God Richmond Hospital.
…
Assessment and Deterioration
We refer to the PIRS Categories and the assessment of Michael Hong, Approved Medical Specialist, and make the following submissions:
Self-care and personal hygiene
Mr Hong assessed Mr Blake as class 3 noting that he showers twice per week, cooks at home, does not go to the shops unaccompanied and returned to live with his parents as he feels he cannot live independently due to his anxiety.
Mr Blake continues to live at home with his parents and still requires scaffolding by family to care for his child. He still showers only twice per week.
Mr Blake’s self-care is reduced as he is no longer able to cook for himself or for the family. He reports that he no longer performs any household chores.
Mr Guthrey notes in his initial assessment that Mr Blake has suicidal thoughts but no plan.
On 11 March 2017 Mr Guthrey notes Mr Blake states a plan to consume all of his medication in an attempt to commit suicide. Dr Dwyer also notes on 31 March 2017
Mr Blake’s plan to suicide on sleeping tablets and suicidal thoughts on 5 June 2017.
Mr Guthrey notes further references to Mr Blake’s suicidal tendencies and plans in his sessions of 13 December 2017 and 13 January 2018.
Mr Blake feels that his son is the only motivation which prevents him from committing suicide.
Mr Guthrey notes in his session of 11 March 2017 that Mr Blake reports he is hearing voices. This is further noted in his sessions of 8 April 2017, 13 December 2017 and 13 January 2018.
Social and recreational activities
Mr Hong assessed Mr Blake as class 2 noting reduced social frequency. He notes that Mr Blake continued to have interest in playing Xbox, watching TV and attended to restoring his hobby car weekly. He further noted that he can initiate and actively engage in various activities that he enjoys.
Mr Blake instructs that he is distressed that he is not able to take his son to the park or to the movies as he feels incapable of leaving the house.
Mr Guthrey notes in his session of 25 August 2016 that Mr Blake is not willing to participate in walking around his home as he is fearful of coming into contact with dangerous people and won’t take his mother’s dogs as there are dangerous dogs. When Mr Guthrey suggested he walk around Shane’s place he was reluctant as did not want to come into contact with people at all.
On 26 July 2017 Mr Guthrey reviewed walking with Mr Blake. He said that he will only go out the front of the house with the dogs at night but not out into the street.
Mr Guthrey notes on 26 August 2017 that Mr Blake is more socially phobic and is not seeing anyone outside of the house.
Mr Blake remains isolated from all social activities with his friends. He no longer attends at his brother’s place and has lost all interest in restoring his car as noted by
Mr Guthrey in session of 26 August 2017.
Mr Blake instructs that he tolerates visits from family members but withdraws to his own room when his parents have visitors.
Travel
Mr Hong assessed Mr Blake as a class 2 noting that he does not like leaving the house but that he will drive locally unaccompanied.
Mr Blake instructs that he does not leave the house unaccompanied.
At the time of assessment on 4 August 2016 Mr Blake was travelling independently to his brother’s place a distance of approximately 10 km but required someone else to travel with him for longer distances. Mr Blake reports that due to excessive anxiety he now requires a family member to accompany him at all times. He no longer travels anywhere without a family member and does not travel to his brother’s place at all anymore.
Mr Blake instructs that he is extremely uncomfortable to leave his parent’s house even when accompanied by a family member as he does not want to come into contact with anyone.
Social functioning
Mr Hong assessed Mr Blake as a class 2 noting that although he has lost friendships he has a good relationship with his family and does not display any physical aggression. Mr Hong note that he has not suffered a loss of partnership. We note that Mr Blake did not have a partner at the time of his incident and remains single.
We note that, since his assessment on 29 July 2016, Mr Blake is showing signs of aggression as noted by Guthrie on a number of occasions.
Mr Blake also instructs that he is having difficulties with his son’s mother who is restricting contact between Mr Blake and his son. He also requires scaffolding from family members to help him care for his son.
Mr Guthrey notes on 26 August 2016 that Mr Blake’s mother observed Mr Blake is becoming more frustrated with people generally.
On 2 November 2016 Mr Guthrey notes that Mr Blake is unhappy with his father as he feels he is treating him like a little child.
Mr Guthrey notes in his session of 19 November 2016 that Mr Blake recalled a severe violent outburst towards a woman coming towards him front on. He yelled expletives at her and wanted to get out of there. He said he was frightened he was going to hit her.
Mr Guthrey notes in his session of 7 December 2016 that Mr Blake is displaying increased feelings of anger and violence towards people in general.
On 8 April 2017 Mr Guthrey notes Mr Blake’s feelings of anger towards his father as he feels he is unsupportive of Mr Blake’s mother who is ill.
Concentration, persistence and pace
Mr Hong assessed Mr Blake as a class 2 noting that he has reduced concentration during a flashback but that he can spend a whole day restoring his hobby car.
Mr Blake reports increased impairment in concentration in that he is still having regular flashbacks and that this is now affecting his concentration to the point that he no longer gains any enjoyment from his hobby restoring his car and he no longer attends his brother’s (Shane) place to partake in this pastime.
Mr Blake is unable to live alone and requires regular assistance from family members.
Employability
Mr Hong assessed Mr Blake as a class 4 notes that under different circumstances
Mr Blake could be renumerated for some of his current activities of cooking, washing up and car restoration.
He notes that Mr Blake is severely dysfunctional due to his psychiatric symptoms and his level of adaptation is poor.
We note that Mr Blake instructs that he is no longer partaking of the activities noted by Mr Hong.
We note that Mr Blake’s conditional has substantially deteriorated since his assessment by Mr Hong on 29 July 2016 as evidenced by the attached clinical notes of David Guthrey and Alison Dwyer and instructions from Mr Blake.
We note he has substantially deteriorated particularly in the PIRS areas of Social and recreational activities, travel, social functioning, concentration, persistence and pace and employability.
We submit that this matter should be referred for further medical assessment under section 329 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) to the Registrar of the Workers Compensation Commission for reassessment of the worker, Mr Kerry Blake.
We note that the relevant information included in this submission could not reasonably have been obtained prior to the appeal as Mr Blake had not consulted either practitioner until after his assessment by Mr Hong on 29 July 2016.
We therefore submit that Mr Blake has grounds for reassessment pursuant to sub sections 327(3)(a) and (b) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).”

Respondent’s written submissions

In its response dated 11 March 2022, the respondent submitted:
“The application is opposed for these reasons:
1. the certificate of determination issued on 17 November 2016 pursuant to the now repealed s350(1) definitively determined the dispute between the parties;
2. although the applicant worker asserts a deterioration in his condition and the availability of new evidence which, had it been put before the approved medical specialist, would likely have led to a different assessment (therefore enlivening a potential avenue of appeal under s327 of the 1998 Act), such a submission is speculative at best having regard to the fact that:
(a) the clinical records reveal a static continuation of the worker’s symptoms which were experienced at the time of the initial medical assessment by the AMS; and
(b) the report of A/Professor Robertson dated 17 November 2021, now relied upon in the application, was provided on the papers and does not establish, on the balance of probabilities, that a new assessment of permanent impairment in accordance with the PIRS would lead to any difference in the assessment provided by the approved medical specialist in the medical assessment certificate dated 4 August 2016.
The respondent observes the potential basis for seeking a reconsideration were outlined by Deputy President Roche in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141 at [58] and submits that having regarding to s322A and the former s350(1) of the 1998 Act, not to mention the public interest that litigation not proceed indefinitely, that there are very cogent reasons which militate against the Commission excising its discretion to entertain the reconsideration application in this instance.
It is also submitted, that absent any explanation from the worker or his legal advisors informing their decision to permit the proceedings to finalise by way of a formal determination and the issue of the certificate of determination on 17 November 2016, that the discretion to reconsider the determination on 17 November 2016 should not be exercised in this instance.”

Applicant’s oral submissions

The applicant submitted that ultimately, unless there was some practicality in rescinding the Certificate of Determination, an order pursuant to section 57 would not be made. However, it was submitted that the Commission would be satisfied that an order should be made.
It was submitted that, when the assessment of the MAC of AMS Dr Hong, in respect of the Table 11.8 PIRS Rating Form, was compared with the assessment of A/Prof Robertson in his report of 11 December 2015, the assessments differed on two grounds, namely “social & recreational activities” and “concentration, persistence & pace”. It was submitted that a lot has changed since that time.
The applicant submitted that if AMS Dr Hong were to make a reassessment in the current climate with an increase in only one class, then this would place the assessment into a higher percentage range. Broadly the assessment of A/Prof Robertson in his 2015 report was of a median class 3, with a whole person impairment range of 11 to 30% depending upon the aggregate score, in that case 17. In the MAC, the median class score was 2, placing the applicant in the whole person impairment range of 4 to 10%. However, it was submitted, if there was only one change in the MAC in a class score, such as at table 11.2, social and recreational activities, or table 11.5, concentration, persistence and pace, then the median class would go to 2.5, rounded up to 3, which would then be in the same range as that assessed by A/Prof Robertson and this would make a significant difference in terms of the assessed whole person impairment. It was submitted that from the material provided with the application there would be such a difference in the assessed median class at 11.2 or 11.5, resulting in a significant difference in assessed whole person impairment.
It was submitted that from a psychological assessment perspective, this was not a high bar for an increase in the assessment by AMS Dr Hong, at a time almost six years after the assessment of the MAC.
In relation to the ground of appeal of deterioration resulting in an increase in the degree of permanent impairment, as set out in section 327(3)(a), it was submitted that, while the level of impairment assessed by A/Prof Robertson in his report of 19 March 2019 remained unchanged, this was clarified in his report of 17 November 2021.
It was submitted that the Commission needs to be satisfied that there is any prospect of a change in the assessment of the degree of permanent impairment, not that there is such a change, in this case an increase, as this is a matter for the Medical Assessor.
The applicant submitted that there has been a deterioration of the applicant’s condition and this is supported by the report of Dr Dwyer dated 25 July 2020. Dr Dwyer’s treatment of the applicant came after the assessment of AMS Dr Hong and her opinion is substantial in this regard. It was submitted that the opinion of Dr Dwyer as to deterioration is not a question of simply saying that the deterioration of 10% is calculated against the previous assessment giving a deterioration of 0.8%. It was submitted that, having regard to the above submissions regarding PIRS, the opinion of Dr Dwyer as to deterioration is more significant than a simple percentage calculation as it goes towards the psychological assessment and the question of the median class. It was submitted that the clinical notes show a deterioration in the applicant’s mental capacity as the clinical notes demonstrate with symptoms after the assessment of AMS Dr Hong.
It was submitted that a substantial amount of documentary material became available only after the assessment of AMS Dr Hong, including admissions to the St John of God Hospital, to the question of deterioration and is also relevant to the ground of appeal in section 327(3)(b). The applicant had a lot of treatment after the assessment of AMS Dr Hong and this treatment continued until 2020 until the applicant was forced to stop when the workers compensation insurer stopped funding his treatment. It was submitted that the only reason the treatment cease was because of the cessation of funding. It was submitted that this indicates that the applicant continues to suffer as a result of the injury in 2014.
It was submitted that there is no issue as to diagnosis and no dispute as to the level of impairment as AMS Dr Hong assessed an aggregate score of 15 and A/Prof Robertson assessed an aggregate score of 17, that is there was not much difference as to the level of impairment.
In relation to the clinical notes of Mr Guthrey, it was submitted that these demonstrate that following the assessment of AMS Dr Hong treatment attendances were on a regular basis, sometimes on an extremely regular basis. The clinical notes outline that shortly after the assessment of AMS Dr Hong, the applicant needed intensive treatment by Mr Guthrie and
Dr Dwyer and treatment at the St John of God Hospital. Following assessment by a psychiatrist arranged by the insurer, Dr G Davies, in December 2016 the applicant was prescribed stronger medication. It was submitted that the clinical notes show that in the period after the assessment by AMS Dr Hong until 2021 prescribe medication became significantly stronger in type and dosage, as shown in the applicant’s statement noted above. This, it was submitted, was additional information not available at the time of the assessment of AMS Dr Hong. It was also submitted that the deterioration need not be large to result in an increase in permanent impairment.
It was submitted that the clinical notes of March 2017 indicated that the matters recorded were still playing on the applicant’s mind, which were a significant change in circumstances which took place after the assessment by AMS Dr Hong and should be considered by
Dr Hong in further assessment. The clinical note of 30 March 2017 noted that the applicant had not been progressing and, it was submitted, while, eventually by the report of Dr Dwyer of July 2020 she was of the opinion that it had deteriorated.
In relation to the clinical notes of Dr Dwyer, it was noted that the report to Dr Dwyer of 2017 indicated minimal tolerances of social interaction and that the applicant was somewhat isolated. It was submitted that the circumstances had changed since the assessment of AMS Dr Hong. It was not suggested that AMS Dr Hong was in error, rather it was submitted that he would assess permanent impairment differently with the new material available. The reports of Dr Dwyer emphasise that circumstances have changed and the applicant has symptomatically changed and there has been a change in the relevant PIRS assessment and there is the potential for a ground of appeal under section 327 (3) (a) or (b) if an order were to be made under section 57. It was submitted that the assessment by Dr Dwyer in her report of 12 October 2018 with respect to the applicant avoiding leaving the house if possible is contrary to the assessment of AMS Dr Hong at table 11.2, class 2, where class 3 indicates greater difficulty as noted in the later assessment of Dr Dwyer. It was submitted that similar reasoning applies to the report of Dr Dwyer of 19 November 2018. It was submitted that the noted reports are evidence to support deterioration giving rise to a sufficient change in the degree of permanent impairment with regards to an appeal under s 327(3)(a) and additional relevant information in respect of s 327(3)(b).
In respect of the clinical notes of the St John of God Hospital, it was submitted that these were evidence of further treatment following the assessment of AMS Dr Hong and the notes also support the outline of treatment provided by Dr Dwyer, which also outlines treatment which is different from that recorded by AMS Dr Hong.
It is submitted that the applicant’s statement as to the deterioration of his condition and the circumstances of the change in his social life were supported by contemporaneous medical records, which are significant in respect of the opinion of A/Prof Robertson. It was submitted that there was no evidence from the respondent to rebut the opinion of A/Prof Robertson.
In respect of the authorities referred to in the applicant’s written submissions, it was submitted that the main point is one of commonality between the cases as they relate to consent orders or orders by agreement. It was submitted that in this case, this is not a situation which falls into the category where the applicant has consented, as there was a Certificate of Determination following the assessment of AMS Dr Hong.

Respondent’s oral submissions

The respondent submitted that pursuant to s 326 (1), the MAC of AMS Dr Hong is conclusively presumed to be correct in these proceedings.
It was submitted that the applicant’s case has not changed from the time that he was examined by AMS Dr Hong to the present time in this application. A/Prof Robertson in his 2019 report reiterated his opinion as to the degree of permanent impairment that was assessed by him in 2015. When the assessments of A/Prof Robertson are compared in his 2015 and 2019 reports, there is no change at all in each one of the six PIRS classes that he has assessed. That is, the applicant has not made out a case in the 2019 report of
A/Prof Robertson.
It was submitted that, since the MAC of AMS Dr Hong is conclusively presumed to be correct in these proceedings, then the 2015 report of A/Prof Robertson is conclusively presumed to be incorrect. It was submitted that while it might be the applicant’s case to have appealed at the time as required for an appeal pursuant to s 327(3)(c) and (d), what they now do years later is try to establish deterioration.
It was submitted that, despite submissions from the applicant that his condition has changed, the task is to consider whether the applicant has made out a case of increased permanent impairment as a result of deterioration. It was submitted that when the relevant reports are considered, the Commission would not be satisfied that deterioration resulting in an increase in permanent impairment has been made out.
In respect of the PIRS classes considered by AMS Dr Hong, there were two categories that differed from those assessed by A/Prof Robertson. The respondent submitted that the applicant does not bring an appeal on the basis of demonstrable error or incorrect criteria or categories.
It was submitted that in respect of the distinction made by the applicant between orders made by consent and other orders, it was be noted that it was the applicant who sought the assessment and at that stage it was open to the applicant to lodge an appeal against the MAC of AMS Dr Hong, and the effect of the order made was for no compensation for permanent impairment.
It was submitted that in his 2019 report, A/Prof Robertson reviewed the clinical notes of
Dr Dwyer and Mr Guthrey. Having reviewed the relevant material, it was submitted,
A/Prof Robertson was of the opinion that the diagnostic formulation remains unchanged.
It was submitted that, in considering the utility in permitting an appeal, it was relevant that A/Prof Robertson was of the opinion that percentage whole person impairment remained unchanged from his previous assessment in 2015. It was submitted that the question of the removal of the 10% deduction is not relevant to the question of deterioration. It was submitted that the PIRS categories remained unchanged in the 2019 report from the original report of 2015. It was submitted that this confirms that there was no deterioration on the basis of a consideration of the relevant clinical materials.
In relation to the supplementary report of A/Prof Robertson of 17 November 2021, it was submitted that a logical explanation for deterioration had not been provided, with a watered-down view that there was “apparent” deterioration but no discussion of his own report of March 2019 which confirmed unchanged whole person impairment. It was submitted that no proper case of deterioration had been made out and it would be futile to reconsider the Certificate of Determination.
The applicant’s case, it was submitted, relies on general impressions of a change in condition but the applicant is required to focus on the statutory requirement of a change in the impairment rating.
In respect of the opinion of Dr Dwyer, it was submitted that this is not relevant to the question of deterioration resulting in increased permanent impairment. It was submitted that Dr Dwyer provided no opinion as to a change in the permanent impairment assessments. It was submitted that her view is of no assistance in considering whether there has been any change in the relevant PIRS classes or categories. The respondent submitted that the bald assertion of Dr Dwyer of a 10% deterioration is of no relevance to the issue of any change in the impairment rating and so does not provide a proper basis for an appeal.
In respect of the applicant’s submissions regarding the avoidance of leaving home, the respondent submitted that in respect of the PIRS category of travel it was noted by AMS
Dr Hong that the applicant did not like to leave his home due to anxiety. It was submitted that there was no change in this regard and the notes of Dr Dwyer in this respect are not relevant to this case.
In respect of the decision of Samuel, it was submitted that the applicant seeks to have a discretion exercised in his favour. In respect of delay, it was submitted that the reason for the applicant bringing this application is to bring an appeal against the MAC. However, it was submitted, there is no evidence of deterioration. In respect of additional information, it was submitted, the same case has been brought and there was no difference in the material from A/Prof Robertson. It was submitted that it is not in the public interest to allow further litigation in this matter, given that this is the fourth application brought by the applicant in effect to set aside the orders of 2016 and where no proper case has been made out regarding deterioration or additional information. The respondent clarified that the applicant had lodged previous applications in this regard which had been discontinued.
It was also submitted that in respect of new evidence, there was no basis for any preliminary assessment that the applicant has established deterioration and no basis for any change in the assessment of permanent impairment. It was also submitted in respect of substantial merits, that there was no merit in the case of deterioration on the applicant’s own medicolegal opinion, nor did Dr Dwyer address the question of deterioration resulting in an increase in permanent impairment.

Applicant’s submissions in reply

The applicant submitted in reply to the respondent’s submissions regarding the reports of A/Prof Robertson, that pursuant to section 326 the only conclusive evidence of permanent impairment is that of the MAC, as assessed by the AMS it was submitted that the opinions expressed by other doctors are therefore not conclusive evidence in this regard. It was submitted that the opinion of A/Prof Robertson is not sufficient evidence on its own in respect of deterioration, it is the entirety of the evidence that must be considered, including treating practitioners Dr Dwyer and evidence of material that was available only after the assessment of AMS Dr Hong. It was submitted that A/Prof Robertson took this material into account when he reached his opinion and AMS Dr Hong should also take this material into account.
It was submitted that the question to be asked is whether there may be a different assessment, that is of deterioration resulting in an increase in permanent impairment, by AMS Dr Hong, not by A/Prof Robertson and that is what A/Prof Robertson has said in his report of November 2021.

Reasons

There was no dispute that in considering the application to reconsider and revoke the Certificate of Determination pursuant to section 57 of the PIC Act, it is first necessary to consider the utility of the application, that is whether or not the appeal against the MAC could proceed.
Section 326(1) of the 1998 Act provides:
“(1)    An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned—
(a)  the degree of permanent impairment of the worker as a result of an injury,
(b)  whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c)  the nature and extent of loss of hearing suffered by a worker,
(d)  whether impairment is permanent,
(e)  whether the degree of permanent impairment is fully ascertainable.”
I do not accept the respondent’s submission that it follows from s 326 (1) that the assessment of A/Prof Robertson dated 11 December 2015 in this regard is conclusively presumed to be incorrect. The 1998 Act is silent on this point. It is equally open to consider that the relevant report of A/Prof Robertson is inconclusive as to the assessment of the degree of permanent impairment at that time. If the respondent meant to imply that the subsequent 2019 report of A/Prof Robertson should also be regarded as being incorrect, or in the alternative should be given little weight, as it repeats his earlier incorrect assessment, then I reject that implication. In my view, the preferred interpretation is that the relevant assessment of A/Prof Robertson of 11 December 2015 was inconclusive as to the correct assessment of the degree of permanent impairment. This is because the 2015 assessment of A/Prof Robertson formed part of the medical dispute, as defined in s 319 of the 1998 Act, which was referred to the AMS for conclusive assessment, followed by determination of the matter by the Commission. As the MAC of AMS Dr Hong is conclusively presumed to be correct in respect of the assessment of the degree of permanent impairment, that MAC is the baseline for consideration of the issue of deterioration resulting in an increase in permanent impairment.

Section 327(3)-(5) of the 1998 Act provides:
“(3) The grounds for appeal under this section are any of the following grounds—
(a)  deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,
(b)  availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),
(c)  the assessment was made on the basis of incorrect criteria,
(d)  the medical assessment certificate contains a demonstrable error.
(4) An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.
(5) If the appeal is on a ground referred to in subsection (3) (c) or (d), the appeal must be made within 28 days after the medical assessment appealed against, unless the President is satisfied that special circumstances justify an increase in the period for an appeal.”
Section 322(1) of the 1998 Act provides that:
“the assessment of the degree of permanent impairment of an injured worker the purposes of the Workers Compensation Acts is to be made in accordance with the Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.”
Section 376(1) of the 1998 Act currently provides that:
“(1) The Authority may issue guidelines with respect to the following—
(a) the assessment of the degree of permanent impairment of an injured worker as a result of an injury,
....”
The NSW workers compensation guidelines for the evaluation of permanent impairment (fourth edition) (the Guidelines) provides for the assessment of “psychiatric and psychological disorders” in Chapter 11.
Paragraph 11.11 of the Guidelines refers to 6 “scales”, each of which evaluates “an area of functional impairment”, with reference to Tables 11.1 to 11.6. Paragraph 11.12 provides that impairment in each area is rated with “class descriptors” in order of severity. Tables 11.1 to 11.6 list the class descriptors in order of severity for each area of functional impairment. Table 11.8 appears to change the nomenclature from “scales” to “category”. Functional impairment is not defined in the Guidelines.
Chapter 11 relevantly provides, inter alia, the following:

[image cannot reproduce]

Table 11.1: Psychiatric impairment rating scale – self care and personal hygiene

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population
Class 2	Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3	Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.
Class 4	Severe impairment: Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.
Class 5	Totally impaired: Needs assistance with basic functions, such as feeding and toileting.

Table 11.2: Psychiatric impairment rating scale – social and recreational activities

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.
Class 2	Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3	Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4	Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
Class 5	Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.

Table 11.3: Psychiatric impairment rating scale – travel

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2	Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3	Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
Class 4	Severe impairment: finds it extremely uncomfortable to leave own residence even with trusted person.
Class 5	Totally impaired: may require two or more persons to supervise when travelling.

Table 11.4: Psychiatric impairment rating scale – social functioning

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).
Class 2	Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3	Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
Class 4	Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).
Class 5	Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.

Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.
Class 2	Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3	Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
Class 4	Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.
Class 5	Totally impaired: needs constant supervision and assistance within institutional setting.

Table 11.6: Psychiatric impairment rating scale – employability

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training. The person is able to cope with the normal demands of the job.
Class 2	Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).
Class 3	Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).
Class 4	Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5	Totally impaired: Cannot work at all.

Using the PIRS to measure impairment

11.13 Rating psychiatric impairment using the PIRS is a two-step procedure:

1. Determine the median class score.
2. Calculate the aggregate score.

Determining the median class score

11.14Each area of function described in the PIRS is given an impairment rating which ranges from Class 1 to 5. The six scores are arranged in ascending order, using the standard form. The median is then calculated by averaging the two middle scores eg:
Example A:   1, 2, 3, 3, 4, 5 Median Class = 3
Example B:   1, 2, 2, 3, 3, 4 Median Class = 2.5 = 3*
Example C:   1, 2, 3, 5, 5, 5 Median Class = 4
*If a score falls between two classes, it is rounded up to the next class. A median class score of 2.5 thus becomes 3.
11.15The median class score method was chosen as it is not influenced by extremes. Each area of function is assessed separately. While impairment in one area is neither equivalent nor interchangeable with impairment in other areas, the median seems the fairest way to translate different impairments onto a linear scale.

Median class score and percentage impairment

11.16Each median class score represents a range of impairment, as shown below: Class 1 = 0–3%
Class 2 = 4–10%
Class 3 = 11–30%
Class 4 = 31–60%
Class 5 = 61–100%

Calculation of the aggregate score

11.17The aggregate score is used to determine an exact percentage of impairment within a particular median class range. The six class scores are added to give the aggregate score.

Use of the conversion table to arrive at percentage impairment

11.18The aggregate score is converted to a percentage score using the conversion Table 11.7, below.
11.19The conversion table was developed to calculate the percentage impairment based on the aggregate and median scores.
11.20The scores within the conversion table are spread in such a way to ensure that the final percentage rating is consistent with the measurement of permanent impairment percentages for other body systems.

[image cannot reproduce]

Conversion table — explanatory notes

Distribution of aggregate scores
·The lowest aggregate score that can be obtained is: 1+1+1+1+1+1=6.
·The highest aggregate score is 5+5+5+5+5+5= 30.
·The table therefore has aggregate scores ranging from six to 30.
·Each median class score has an impairment range, and a range of possible aggregate scores (eg class 3 = 11-30 per cent).
·The lowest aggregate score for class 3 is 13 (1 + 1 + 2 + 3 + 3 + 3 = 13).
·The highest aggregate score for class 3 is 22 (3 + 3 + 3 + 3 + 5 + 5 = 22).
·The conversion table distributes the impairment percentages across aggregate scores.

…

Table 11.8: PIRS rating form

Name	Claim reference number
Date of birth	Age at time of injury
Date of injury	Occupation before injury
Date of assessment	Marital status before injury

Psychiatric diagnoses	1.	2.
Psychiatric diagnoses	3.	4.
Psychiatric treatment
Is impairment permanent?	Yes No (Tick one)

PIRS category	Class	Reason for decision
Self care and personal hygiene
Social and recreational activities
Travel
Social functioning
Concentration, persistence and pace
Employability

Score class	Median
=

Aggregate score Total %

+	+	+	+	+	+	=
Impairment (%WPI) from Table 11.7
Less pre-existing impairment (if any)
Final impairment (%WPI)

The provisions of the Guidelines quoted above are integral to the assessment of the degree of permanent impairment, as required by s 322(1), and issued pursuant to s 376(1) of the 1998 Act.
There was no dispute that, with respect to the categories or scales of “social and recreational activities” and “concentration, persistence and pace”, the differences between the assessments of A/Prof Robertson in 2015 and the MAC of AMS Dr Hong were classes 2 and 3 respectively of each category or scale, there being no other differences in the other categories or scales. However, as the assessment of AMS Dr Hong is conclusively presumed to be correct, the baseline assessment in this regard for the purposes of consideration of deterioration is class 2 in each of the relevant categories or scales.
Insofar as it relates to the method of calculation of the median class score, I accept the submissions of the applicant that a change in an assessment of class 2 to class 3 in either of the relevant categories or scales would result in a significant increase in the assessed whole person impairment.
In the context of an appeal against a MAC involving incorrect criteria, or demonstrable error, that is s 327(3)(c) and (d), it was observed in Ballas v Department of Education (State of NSW)[1] (Ballas) that:
“Misassignment of conduct to a particular area or “scale”, and assessment of that conduct for the purposes of assigning a rating or “class” to that area, has the potential to distort the overall WPI of an injured worker. Thus it was submitted and accepted as correct that, had Dr Hong assigned a rating of 3 rather than 2 to the “social and recreational activities” area of impairment, then, applying the formulae in ss 11.13-11.20 of the Guidelines (see [24] above), Ms Ballas’s overall WPI would have been 17% rather than 8%. This difference would have major implications for Ms Ballas, including entitling her to permanent impairment compensation (see [6] above).”
[1] [2020] NSWCA 86 at [84], [151].
Although of course this is not an appeal relating to misassignment of conduct to a particular scale, and consequential distortion of whole person impairment, it was submitted and accepted as correct in Ballas that a change from class 2 to 3 in the relevant area of impairment, in applying the relevant formulae in paragraphs 11.13-11.20, there would have been an increase in whole person impairment. As discussed above, this reasoning involves the same approach as considered in this case in respect of s 327(3)(a).
In respect of the ground of appeal specified in s 327(3)(a), this requires consideration of the question of whether any deterioration in the applicant’s condition results in a change from class 2 to class 3 in either of the areas of functional impairment, that is categories or scales, of “social and recreational activities” and “concentration, persistence and pace”.
The reports of A/Prof Robertson dated 19 March 2019 and 17 November 2021 are significant in this regard. While it is correct that A/Prof Robertson had regard to the clinical records of
Dr Dwyer and Mr Guthrey, and assessed no change in permanent impairment in his report of 19 March 2019, this was in respect of a comparison with his own assessment of 2015. As discussed above, what is required is consideration of deterioration from the assessment of the degree of permanent impairment in the MAC, and in particular with reference to the question of whether there is any change in classes in the relevant areas of functional impairment, that is the relevant PIRS categories or scales. In my view, it was this question that A/Prof Robertson considered in his supplementary report of 17 November 2021, in addition to the question of a change in the observed level of whole person impairment.
The opinion expressed by A/Prof Robertson in his report of 17 November 2021 was in consideration of the report of Dr Dwyer dated 25 July 2020, a report which was of course not available to A/Prof Robertson when he completed his 2019 report. A/Prof Robertson also had regard to the clinical notes of Dr Dwyer and Mr Guthrey, previously available to him in his 2019 report, when he considered the opinion and report of Dr Dwyer of 25 July 2020. This was the context in which A/Prof Robertson opined that there had been an apparent deterioration in the applicant’s mental state manifesting as different PIRS ratings including class 3 on table 11.2, in contrast with class 2 assessed by AMS Dr Hong, and class 3 on table 11.5 compared to class 2 on the assessment of AMS Dr Hong. In my view, the opinion expressed by A/Prof Robertson in his report dated 17 November 2021 addressed the question of deterioration in the applicant’s condition having regard to the assessment of AMS Dr Hong, particularly the change in classes noted above, not with respect to his own (A/Prof Robertson’s) assessment of 2015.
I do not accept the respondent’s submission that on the assessment of A/Prof Robertson in his 2019 report the evidence is that there is no deterioration in the applicant’s condition that has resulted in an increase in his permanent impairment. As noted above, the reports of A/Prof Robertson of 2019 and 2021 should be read as a whole and in the context of the medical report of Dr Dwyer dated 25 July 2020 and the clinical notes of Dr Dwyer and
Mr Guthrey. I also do not accept the respondent’s submission that the opinion of
A/Prof Robertson in his 2021 report was unexplained. In my view, having regard to the above matters, A/Prof Robertson provided sufficient explanation for his opinion in his 2021 report. Additionally, in my view the use of the phrase “apparent deterioration” was an expression of opinion based upon documents provided to A/Prof Robertson, rather than a “watered-down” view. I do not accept the respondent’s submissions in this regard.
I also do not accept the respondent’s submissions in relation to the report of Dr Dwyer dated 25 July 2020. While it is correct that her opinion that there was a deterioration of the applicant’s condition of greater than 10% is not relevant to a calculation of the degree of permanent impairment, it is nonetheless a significant opinion, that there has been a deterioration of the applicant’s condition, from a treating psychiatrist who has provided significant treatment until 2020. In my view, this opinion was supported by the clinical notes of Dr Dwyer and also those of Mr Guthrey.
In considering whether or not the appeal is to proceed pursuant to s 327(4), in exercising the power of the President I am to be satisfied that on the face in the application and any submissions made that at least one of the grounds for appeal has been made out. This requires only that I am satisfied that a ground of appeal is capable of being made out. I am not to determine the appeal. As was observed in Ballas,[2] when s 327(4) provided for the satisfaction of the Registrar of the Workers Compensation Commission,
“70. In both written and oral submissions, Senior Counsel for Ms Ballas contended that the Delegate misconstrued the “gatekeeper” nature of the task ascribed by s 327(4) to the Registrar. He submitted that the Delegate, rather than looking to whether the appeal grounds were capable of being made out, proceeded to determine the appeal. An analysis of the Delegate’s language lends strong support to this submission…
71. Certainly, the Delegate did not express herself in terms of whether Ms Ballas’ proposed grounds of appeal were capable of, in the sense of having the potential to be, made out...
72. ... An assessment of arguability, to adopt and adapt the language of Gleeson JA in Vannini, is a very different exercise, as the Registrar or his or her Delegate is required to make that assessment “on the face of the application, and in any submissions made to the Registrar”: at [19]. It involves an assessment and satisfaction that an argument to support the nominated grounds is manifest in those two documents. If it is, that argument passes the gatekeeper and goes to the expert Appeal Panel. This process does not involve the Delegate in assessing the correctness of the argument but simply that what has been put forward is arguable.
73. In the present case, we are not satisfied that this is what the Delegate did. Not only did she fail to pose the correct questions and embark on the correct process, namely to achieve satisfaction that an “arguable case of error” had been established…”
[2] [70-73].

I am satisfied, based upon the reports of A/Prof Robertson dated 19 March 2019 and 17 November 2021, the clinical notes of Mr Guthrey and Dr Dwyer and the St John of God Hospital, the report of Dr Dwyer dated 25 July 2020, and the applicant’s statement, that the applicant has put forward an arguable case on the ground of appeal pursuant to s 327(3)(a), that is that ground of appeal is capable of being made out. It is not necessary for me to consider the s 327(3)(b) ground of appeal.
In respect of the application for reconsideration pursuant to s 57, the parties referred to the decision of Samuel v Sebel Furniture Limited[3], which elucidated a number of principles with reference to a review of various authorities.
[3] [2006] NSWWCCPD 141 at [58] ff.
The respondent submitted that the discretion should not be exercised in favour of the applicant. It was submitted that there was no evidence in respect of deterioration, nor for additional information. I do not accept this submission in relation to deterioration and, as noted above, in my view the applicant has an arguable case in respect of a ground of appeal based on s 327(3)(a). It is also submitted by the respondent that there was no difference in the material provided in this application to those of previous applications in this regard. The previous applications were not before me and I do not accept this submission.
It was submitted by the respondent that there was a public interest that this litigation should not proceed indefinitely. However, in my view this is balanced by the nature of a deterioration resulting in an increase in permanent impairment being a matter which may take some considerable time, as in this case, to become arguable following treatment. There is no time limit for a ground of appeal based on s 327 (3) (a), and in my view this outweighs the public interest in finality of litigation when the issues in this case, discussed above, are considered.
It was also submitted by the respondent that there was no basis for an argument that there was new evidence, that could not have been obtained at the time of the MAC, that is later obtained and that such new evidence would have been likely to lead to a different result. It was submitted that the alleged new evidence did not in fact establish such an outcome. However, as I have found that there is an arguable case to made in respect of a ground of appeal under s 327 (3) (a). The reports of A/Prof Robertson, the report of Dr Dwyer dated 25 July 2020 and the clinical records of Dr Dwyer, Mr Guthrie and the St John of God Hospital were not available in respect of treatment after the MAC of AMS Dr Hong and could not reasonably have been obtained at that time. I also do not accept the respondent’s submission that there was no merit in the case put forward by the applicant in respect of the ground of appeal pursuant to s 327 (3) (a). I have found that the applicant has an arguable case in this regard.
I do not accept the respondent’s submission that the discretion to reconsider the determination of 17 November 2016 should not be exercised absent any explanation from the applicant as to why it was decided to permit the proceedings to be finalised by way of determination and issue of the Certificate of Determination in this matter on 17 November 2016. The applicant has not lodged an appeal on the grounds referred to in subsection (3) (c) or (d) of s 327 for which there is a limited time period of 28 days for appeal, subject to special circumstances for extension, matters which would require an explanation in an application such as this. However, the appeal is said to be based on subsection (3) (a) and (b), which are not so time-limited and which necessarily relate to matters which in this case took place over an extended period that has been identified with evidence in support.
In my view, the matters referred to above in respect of Samuel support the exercise of the discretion to allow a reconsideration in this matter.
The applicant in its written submissions referred to s 322A, although the respondent did not. Section 322A(4) provides that s 322A does not affect the operation of s 327.
I am satisfied that cl 14A, cl 14B and cl 14F of Schedule 1 of the PIC Act apply to permit the application of s 57 in this matter.
Having regard to the above matters, I exercise my discretion pursuant to s 57(1) to reconsider and rescind the Certificate of Determination dated 17 November 2016.
This is an appropriate matter for an order pursuant to s 329(1)(a) for the matter to be referred again to a Medical Assessor as an alternative to an appeal. The matter involves an assessment of the degree of permanent impairment in respect of any increase arguably resulting from deterioration of the applicant’s condition. This is best done by a Medical Assessor at first instance, rather than an Appeal Panel. Brief to the Medical Assessor is to include the documents listed in the determination above. I note that there were no medical reports or documents from the respondent that were before me.

[2022] NSWPIC 356

5 July 2022