BMW v Secretary, Department of Education

DETERMINATION OF APPEAL PANEL
CITATION:	BMW v Secretary, Department of Education [2024] NSWPICMP 765
APPELLANT:	BMW
RESPONDENT:	Secretary, Department of Education
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	7 November 2024
DATE AMENDED:	27 November 2024
DATE AMENDED:	22 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) was correct to make a deduction under section 323(1); whether MA took into account irrelevant matters with respect to the deduction he made under section 323(1); whether the deduction of 50% MA made under section 323(1) correct; whether MA’s ratings of appellant’s impairment in social and recreational activities, travel, social functioning, and concentration, persistence and pace correct; Held – MA took into account irrelevant factors with respect to the deduction he made under section 323(1); MA’s rating of appellant’s impairment in travel involved error; Medical Assessment Certificate (MAC) contained a demonstrable error; appellant re-examined; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 17 June 2024 [BMW], the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Steven Yeates, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 May 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment with the NSW Department of Education in 1977 as a high school teacher. In accordance with s 26(1) and Part 1 of Schedule 1 of the Government Sector Employment Act 2013, the Secretary of that Department is the employer of the appellant and the respondent to this appeal.
On 11 December 2017 the appellant was suspended from teaching duties on full pay. She was re-deployed to the [redacted] Network Office in April 2018.
Her suspension from teaching duties and her re-deployment to the [redacted] Network Office was due to the respondent being informed of allegations of historical child sex offences being made against her. Those allegations resulted in the appellant being arrested in 2017 and charges subsequently being brought against her. She was the subject of a trial in October 2018 that resulted in a hung duty. She was acquitted of the charges in a second trial that occurred in October and November 2020.
The appellant in February 2018 sought compensation from the respondent. The insurer for the respondent denied liability. The appellant did not then pursue her claim.
The appellant subsequently claimed she suffered a psychological injury due to incidents that occurred within her employment after she was re-deployed to the [redacted] Network Office. She claimed compensation from the respondent for permanent impairment from that injury relying on a report of consultant psychiatrist Dr Abhishek Nagesh. Dr Nagesh diagnosed the appellant suffered from major depression and panic disorder and comorbid social anxiety disorder. He said “the causative or contributing factors to the psychiatric diagnosis are the alleged bullying, harassment, being called a sex offender and made to sit at the [redacted] District Office”. Dr Nagesh also noted in his report that the appellant had a past psychiatric history of post-traumatic stress disorder and major depression in 2014 after she had been sexually assaulted.
Dr Nagesh assessed the appellant had a total of 24% whole person impairment (WPI) from the psychiatric diagnosis he made which he considered had resulted from the appellant’s work. His assessment was based on the Psychiatric Impairment Rating Scale (PIRS), as detailed in paragraphs 11.11 and 11.12 and Tables 11.1-11.6 of the Guidelines. He rated the appellant had a Class 3 impairment in self-care and personal hygiene, a Class 3 impairment in social and recreational activities, a Class 3 impairment in travel, a Class 2 impairment in social functioning, a Class 3 impairment in concentration, persistence and pace (CPP), and a Class 5 impairment in employability. Those ratings converted to 24% WPI. Dr Nagesh considered that 1% WPI was to be “added to compensate for the effects of treatment” which he observed increased the WPI he assessed the appellant had to 25%. He considered however that a 10% deduction should be “applied for the contribution of pre-existing condition”. Hence, his final assessment was the appellant had 23% WPI from her work injury.
The respondent’s insurer denied the appellant’s claim for compensation to the appellant, relying on s 11A of the 1987 Act. The appellant then instituted proceedings in the Personal Injury Commission (Commission) by lodging an Application to Resolve a Dispute dated 5 November 2021. By that application she sought the Commission determine both the claim she had made against the respondent for compensation for permanent impairment and also a claim she had made to be paid weekly payments of compensation from 27 July 2021.
The matter was referred to a member of the Commission, namely Mr John Wynyard, who conducted an arbitration of the matter on 9 February 2024 and 21 February 2024 and made the following findings and orders on 2 April 2024:
“The Commission finds:
1.      The predominant cause of the applicant’s psychiatric injury was not the notification by Professional and Ethical Standards that they would be investigating the allegations of Historical sexual abuse (following the finalisation of the criminal proceedings).
2.      Accordingly, there is an award in favour of the applicant.
3.      The applicant has been without any work capacity since 2 December 2020.
4.      The pre-injury average weekly earnings is $2,019.90.
The Commission orders:
1.      The respondent will pay the applicant $1,615.92 pursuant to s 37 and s 38 from 28 July 2021 as indexed and adjusted.
2.     Liberty is granted to apply in respect of order 1.
3.      I remit this matter to the President for referral to a Medical Assessor on the following bases:
(a) Date of injury: 2 December 2020, deemed.
(b) Matter for assessment: psychological/psychiatric injury.
(c) Evidence:
(i) Application to Resolve a Dispute and attached documents;
(ii) Application to Admit Late Documents dated 31 January 2024 from the
applicant;
(iii) Application to Admit Late Documents dated 20 February 2024 from the applicant;
(iv)     Reply and attached documents;
(v)      Application to Admit Late Documents dated 25 January 2022 from he
respondent;
(vi)     Application to Admit Late Documents dated 19 January 2024 from he
respondent, and
(vii) Minutes of 1 December meeting – emailed shortly after commencement of the second day of the hearing.”
Those findings and orders were recorded in a Certificate of Determination the Commission issued, which was accompanied by the member’s Statement of Reasons for his findings and orders.[1]
[1] [1] BMW v Secretary, Department of Education [2024] NSWPIC 158.
Member Wynyard’s Statement of Reasons makes clear that the respondent disputed the appellant’s entitlement to compensation because it contended the predominant cause of the appellant’s psychological injury was reasonable action it had taken with respect to discipline of the appellant, which included both the notification to the appellant by the respondent’s Professional and Ethical Standards division that the respondent would be investigating the allegations made against the appellant of historical sexual abuse and the respondent’s action in re-deploying the appellant to the Riverwood District Office. The respondent relied on s 11A of the Workers Compensation Act 1987 to deny liability to pay the appellant the compensation she claimed. It did not dispute she had suffered a psychological injury. The respondent had the onus of substantiating s 11A could be engaged. Member Wynyard, for reasons which he explained over 165 paragraphs, found that the respondent had failed to discharge its onus and he consequently declined to apply for provisions of s 11A.
On 30 April 2024 the matter was referred to the Medical Assessor. He examined the appellant on 13 May 2024 and, as said, issued the MAC on 20 May 2024.
The Medical Assessor said the following in the MAC under the sub-heading “Summary of injury and diagnoses”:
“[BMW] presents with features consistent with a persistent depressive disorder with multiple causes. A portion of her emotional disturbances can be demarcated from her time at the [redacted] District Office. This is demonstrated by the timeline of developing psychological symptoms when she was arrested in December 2017 before commencing at the district office in March 2018. Treatment alleviated these symptoms somewhat, but they had not been resolved entirely by the time she was redeployed at the [redacted] District Office in March 2018. From there, she appears to have experienced a deterioration in her mental state after spending from March 2018 until November 2020 waiting for a professional standards investigation and was treated as a pariah, called names and other hurtful actions took place.
A persistent depressive disorder is often predated by an adjustment disorder (with that anxiety and depressed mood), and this is the likely pathway of [BMW]'s symptom evolution. That is an adjustment disorder that was diagnosed by several other clinicians and evolved into a persistent depressive disorder that has multiple determinants, including the primary stress of the criminal allegations and the subsequent treatment in the workplace. In short, either/or formulations of the multiple stressors [BMW] encountered are not persuasive psychiatrically. Clinical experience indicates that multiple factors were contributing to her mental state alongside the workplace treatment, even if the workplace factors are an injury in the terms of the Act (and not subject to a Section 11a exemption).
In my opinion, the response to the criminal trial substantially overlaps with the workplace symptoms she developed that have been demarcated from a Section 11a matter concerning disciplinary action. As such, a deduction is appropriate for pre-existing and other conditions. It is both reasonable and likely that a proportion of [BMW]’s symptoms arise from the stress of the criminal trials themselves, the sheer reality of the professional standards investigation (as distinct from the workplace treatment) and the uncertainty about her future (including potential incarceration). Taking a position that [BMW] was completely at peace with the other matters and would have been symptom free if only for the stress of her workplace is, in my view, implausible. Thus, I have applied a deduction that will be elaborated below.”
The Medical Assessor, as he was required to do, assessed the appellant’s permanent impairment by reference to PIRS. He rated the appellant’s impairment in self-care and personal hygiene as Class 3, in social and recreational activities Class 2, in travel as Class 1, in social functioning as Class 3, in CPP as Class 2, and in employability as Class 5.
The appellant in her appeal against the medical assessment has challenged the Medical Assessor’s rating of her impairment in the PIRS categories of social and recreation activities, social functioning and CPP.
In the PIRS rating form within the MAC the Medical Assessor provided the following reasons for rating the appellant’s impairment as Class 2 in social and recreational activities:
“[BMW] reports that she rarely ventures out and is not a member of any groups. She was, however, overseas in Bali with a friend for a break which was recreational.”
Within the MAC the Medical Assessor also noted that the appellant plays computer games for most of the morning and spends her day watching Disney Plus. He noted that she is not a member of any clubs, groups or has any friendship activities. He noted that the appellant enjoys spending time with her dog.
The Medical Assessor provided the following reasons for rating the appellant’s impairment as Class 1 in travel:
“[BMW] can travel independently and was overseas at the time of interview. She can drive, travel interstate and locally without a support person.”
The Medical Assessor provided the following reasons for rating the appellant’s impairment as Class 3 in social functioning:
“[BMW] has been single since 2014 and separation from her second husband. Whilst she remains single, she has maintained all her close friendships, and has not had tension or deterioration in the relationships with her family. Her son is in the care of family.
She travels to spend Christmas with her son’s father’s family in North Queensland.”
The Medical Assessor provided the following reasons for rating the appellant’s impairment as Class 2 in CPP:
“[BMW] can watch television and concentrate on it but does not read much or do intellectually demanding tasks. She started an aromatherapy course but did not complete it.”
The Medical Assessor’s findings from his mental state examination of the appellant included that the appellant’s thought content was reality-oriented and that her thought form was normal and that her speech was normal. The Medical Assessor found that the appellant’s judgment was not acutely impaired and that her cognition was grossly normal and that her insight was modest.
The Medical Assessor noted that the median of his class scores is 3 and that the aggregate is 16, which he recorded converts to 17% WPI. As already noted within the passage the Appeal Panel extracted at [16] the Medical Assessor considered a deduction of 50% was appropriate for pre-existing and other conditions. He said he would elaborate later in the MAC regarding his reasons for that. His more elaborate reasons are within Part 11of the MAC and are:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
[BMW] developed a proportion of her symptom burden before her time at the [redacted] District Office. She was also prescribed venlafaxine 150mg to some effect. Her symptoms resolved incompletely, and she was redeployed to the [redacted] Office, where they deteriorated further up to their nadir in December 2020. This is a previous unrelated injury secondary to the criminal charges themselves and the considerable stress this would impart for an extended period.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were considered when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) Pre-existing anxiety and low mood, fear of negative social appraisal, sleep
disturbance and guilt.
Whilst the extent of the deduction is difficult or costly to determine, the available evidence is that the deductible proportion is large, and a deduction of one-tenth is at odds with the available evidence. In my opinion, the deductible proportion is 5/10th for the following reasons:
[BMW] had a set of symptoms described above and was prescribed antidepressant medication before commencing at the [redacted] District Office, where she was determined to have an injury. The sheer nature of the stressor, that is, allegation of historical sexual offences, criminal trials, and subsequent enormous ramifications in her personal and professional life, must be considered to have had a major impact on her psychiatric health pre-dating and contemporaneous with her workplace injury.
This substrate was exacerbated by the time at the [redacted] District Office, and the injury details are outlined above. The psychiatric impact of the criminal allegations themselves, trials (irrespective of the verdict) are very unlikely to constitute only 1/10th of the deductible proportion. Experience and analysis of the evidence require that this is placed substantially higher. Criminal allegations and professional standards investigations (irrespective of their outcome) are extremely stressful and can precipitate long-lasting effects that are often difficult to recover from. [BMW] would likely have continued to have (potentially severe) psychological symptoms even under the most supportive workplace circumstances. Moreover, the pending criminal trials (which would have carried a substantial penalty risk, including presumably a nontrivial risk of incarceration) were contemporaneous with the time at the [redacted] District Office.
Thus, demarcating workplace injury from the other stressors is difficult, but it is at odds with the available evidence to determine it as 1/10th. I believe 5/10th of the symptom burden would be attributable to the stress of the criminal trials and the ongoing professional uncertainty about the outcome (especially given there were two trials) alongside the stress of being a workplace pariah.”
The Medical Assessor noted within the history he set out in the MAC that the onset of the appellant’s condition pre-dated her time at the [redacted] Network Office and that she was psychologically symptomatic enough to receive a prescription for Venlafaxine which she commenced in January 2018. The Medical Assessor noted that had some positive effects although it did not relieve her symptoms entirely and that she was socially withdrawn before commencing at the Network Office.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the respondent should undergo a further medical examination. This is because the Appeal Panel found, for reasons explained below, that the MAC contained a demonstrable error and, in order to correct that error, the Appeal Panel would need further clinical data that it could only obtain from further examination of the appellant. The Appeal Panel appointed one of its members who is a Medical Assessor to conduct that examination, namely Professor Nicholas Glozier. He did so on 2 October 2024 and subsequently presented his report to the Appeal Panel, which the Appeal Panel has copied below under the heading “Findings and Reasons”.

EVIDENCE

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

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
Paraphrasing the appellant’s submissions, to provide a summary of them, they are that the Medical Assessor wrongly made a deduction under s 323(1) on account of the criminal trials she had to defend, which had occurred contemporaneously with the stressors to which she was subject whilst working at the [redacted] Office and which gave rise to injury. The appellant submitted that the trials were “post injury causation and not deductible”. The appellant further submitted, relying on Secretary, NSW Department ofEducation v Johnson[2] (Johnson), that the stressors to which he was subject on account of the criminal trials were concurrent and consequently not deductible under s 323(1).
[2] [2019] NSWCA 321.

The appellant submitted that although her arrest in December 2017 was stressful the “causal potency” of it had begun to decline before she was subject to the stressors at the [redacted] Office and by the time the Medical Assessor conducted his assessment. She submitted her arrest was “unlikely to be a residual feature”. The appellant referred to various matters in the clinical records to support this submission.
The appellant submitted, in the alternative, that any proportion of her permanent impairment that was due to a pre-existing condition would be too difficult or costly to determine and, consequently in accordance with s 323(2), the proportion that is to be deducted under s 323(1) ought to be assumed to be 10%.
The appellant submitted that the Appeal Panel “may take judicial notice that persons may go through a stressful criminal trial and end up with no psychological problems whatsoever”. Further, the Appeal Panel could take judicial notice that a person can be affronted by a simple matter and have a total psychiatric break. The appellant, relying upon Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts[3] (Bat Advocacy) at [44]-[47], submitted the Medical Assessor was required to engage with all relevant matters and “give proper, genuine and realistic consideration” to them. The appellant submitted that the Medical Assessor did not give any genuine or realistic consideration to the deduction that should be made.
[3] [2011] FCAFC 59.
The appellant submitted, with respect to the Medical Assessor’s rating of her impairment in social and recreational activities, that her going on a holiday with a friend was a “one-off event” and “not part of her general lifestyle”. The appellant submitted that accorded with the criteria for a Class 3 rating and the Medical Assessor was wrong to rate her impairment as Class 2.
The appellant submitted that the Medical Assessor also erred with his rating of her impairment in travel. The appellant submitted that the Medical Assessor’s consideration of her going on a holiday when rating her impairment in travel resulted in a double deduction under PIRS “because the Medical Assessor also relied on that to score her a lower rating in social and recreational activities”. The appellant further submitted that her travelling with a friend to go on holiday does not accord with the criteria for a Class 1 rating because she relied on a support person to travel to a new environment. The appellant submitted that the correct rating of her impairment in travel is Class 3.
With respect to the Medical Assessor’s rating of her impairment in social functioning, the appellant submitted that the Medical Assessor’s comment that there is no tension or no deterioration in her relationship with her family is at odds with the evidence. The appellant highlighted that her son is in the care of her family and that is due to her being too unwell psychiatrically to care for her son. The appellant referred to various parts of the evidence to support her submission. The appellant submitted that her impairment in social functioning should be rated Class 4.
The appellant submitted that Medical Assessor erred by rating her impairment in CPP as Class 2. The appellant referred to the fact that she started a course in aroma therapy but could not finish this. The appellant submitted that she is unable to engage in intellectually demanding activity and has difficulty completing complex tasks, which she submitted accords with a Class 3 rating.
Paraphrasing the respondent’s submissions, also to provide a summary of them, they are that the effect that the initial arrest of the appellant had on her is well documented in the evidence. The respondent submitted that notwithstanding the appellant had been subjected to “bullying” in her employment before her first criminal trial took place she had not at that point “sustained a psychological injury relevantly connected with her employment”. The respondent submitted that it was consequently open to the Medical Assessor to consider both the effect of the criminal allegations and arrest as well as the subsequent trial when determining what deduction should be made under s 323(1) of the 1998 Act.
The respondent referred to evidence that the appellant was suffering panic attacks prior to her transfer to the [redacted] Office. The respondent also referred to the appellant conceding in her submissions that her being the subject of two lengthy criminal trials were more potent stressors than her having been arrested. The respondent submitted that, based on that, it was open to the Medical Assessor to make a deduction of 50% using his clinical judgment.
The respondent also submitted that it was open to the Medical Assessor to conclude that the appellant’s arrest had a severe impact, notwithstanding that she had been improving from the effect of the arrest.
The respondent submitted that the Medical Assessor gave genuine consideration to the criminal trials in accordance with the principles articulated in Bat Advocacy and in doing so engaged with the actual effect that the criminal process had on the appellant.
The respondent submitted that it was open to the Medical Assessor to rate the appellant’s impairment in social and recreational activities as Class 2. The respondent said that holidays are always a one-off event and it is inaccurate to describe them as a “rare event”. The respondent submitted that the appellant was able to organise an international holiday and even if that is done rarely it does not reflect an impairment in social and recreational activities in the same way that rarely going to meet friends would.
The respondent also submitted that it is normal for a person to travel on a holiday with a friend or family member.
The respondent submitted that going on an international holiday provides evidence of the appellant’s functioning in both travel and social and recreational activities. The respondent further submitted that there is no evidence that the appellant’s friend travelled with the appellant on the appellant’s holiday as a support person, as distinct from a friend.
The respondent submitted that the Medical Assessor’s characterisation of the appellant’s family situation as having no tension or deterioration in relationships was open to him to make.
The respondent acknowledged that the descriptors for a Class 4 rating in social functioning includes an inability to care for dependants, but the respondent submitted that it was open to the Medical Assessor to rate the appellant as he did based on the totality of the evidence and not just the isolated fact that the custody of the appellant’s son had changed.
The respondent submitted that it was open to the Medical Assessor to rate the appellant’s impairment as Class 2 in CPP. The respondent took issue with the appellant’s submission that an aroma therapy course is of a low order, and said that there was no evidence to substantiate that. The respondent submitted that the Medical Assessor referred to the appellant having an inability to do intellectually demanding tasks but the respondent also referred to the appellant’s higher functioning in other areas of concentration and, based on that, submitted that it was open to the Medical Assessor to rate the appellant’s impairment in CPP as he did.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
With respect to a deduction to be made under s 323(1) it is necessary to establish what the appellant’s pre-existing condition was at the “relevant date”.[4] In a case such as this, where the appellant’s psychiatric injury arose as consequence of stressors to which she was exposed in her work over a period of time commencing in April 2018, when she was transferred to the [redacted], the relevant date is the date from which she was exposed to those stressors, viz April 2018.
[4] Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 at [46] (Cullen).
The Appeal Panel finds that the appellant did have a pre-existing condition in April 2018. The evidence reveals that prior to her arrest in December 2017 she had three prior episodes of depression, specifically in 2004 after being sexually assaulted, in 2006 when she was being blackmailed by the person who made the sexual misconduct allegations against the appellant, and in 2014 when her husband left her for a younger woman. On each occasion the appellant was treated with anti-depressants that alleviated the effects of her illness.
The Appeal Panel considers that an appropriate diagnosis would be recurrent major depressive disorder with anxious distress and panic.
Following her arrest in December 2017, the appellant’s recurrent major depressive disorder with anxious distress and panic relapsed and she suffered similar symptoms to those she previously suffered. These symptoms impaired her function. She was initially unable to work. She was unable to sleep or concentrate due to anxiety. She was withdrawn, helpless, and suffering low mood and was experiencing panic attacks.
However, it is evident from the fact that she was able to work from April 2018, travel to [redacted], attire herself to be present at her place of employment, and care for her child that by April 2018 her function was not then severely impaired by the relapse of her pre-existing condition in late 2017. There necessarily must have been some improvement in her pre-existing condition and the impairment arising from it between what was triggered due to her arrest and the time she started her employment.
The Appeal Panel finds, therefore, that insofar as the Medical Assessor found the appellant had a pre-existing condition, he did not make an error.
As already noted, it is apparent from the Statement of Reasons Member Wynyard published for the findings and orders he made on 2 April 2024, and it is also apparent from the dispute notices that the respondent’s insurer issued to the appellant in response to her claim for compensation, that the respondent accepted the appellant suffered a psychiatric injury due to the stressors to which she was exposed in her employment after April 2018. The respondent consequently accepted that the stressors to which the appellant was subject in her employment after April 2018 were the main contributing factors to the occurrence of her work injury. The Appeal Panel considers the appellant’s work injury was thus an aggravation and relapse of her pre-existing condition of a major depressive disorder with anxious distress and panic, which now manifests and presents as a persistent depressive disorder with anxious distress.
Consequently it was no part of the respondent’s case, in resisting the appellant’s claim for compensation, that the events that occurred after the relevant date, being when the appellant was transferred to the [redacted] Office in April 2018, that matters occurring outside of her employment comprised the main contributing factor to her injury, being an aggravation and deterioration of her pre-existing condition.
The Appeal Panel must accept therefore that the main contributing factor to the appellant’s injury was her work after April 2018, and not the stressors to which she was exposed due to the criminal trials to which she was subjected. The Medical Assessor was also required to accept that and conduct his assessment of the medical dispute referred to him on that basis. With respect to the deduction he made under s 323(1) of the 1998 Act he did not do so. Consistent with what the appellant has submitted, he erred with respect to his deduction by making a deduction for “concurrent” stressors, which occurred subsequent to the relevant date and which were not the main factor contributing to the onset of the appellant’s work injury. That amounts to a demonstrable error in the MAC.
The Appeal Panel also accepts the appellant’s submissions that the Medical Assessor erred with his rating of her impairment in travel but does not accept her submissions that he erred with respect to his ratings of her impairment in social and recreational activities, social functioning and CPP.
The Appeal Panel acknowledges that the descriptors for rating a worker’s impairment in social and recreational activities refer to “events”, but in accordance with paragraph 11.12 of the Guidelines these descriptors are only examples of activities in which a worker might engage that a Medical Assessor can consider in the process of exercising his or her clinical judgment to assess a worker’s impairment in a particular PIRS category. Furthermore friends are involved in many recreational activities for everyone and the fact of doing something with a friend does not mean they are a “support person”. The descriptors are not prescriptive. The fact that a worker may exhibit conduct according with the descriptors in one class does not necessarily compel a Medical Assessor to rate the worker’s impairment within that class. A Medical Assessor must evaluate all the material before him or her, including the clinical history the Medical Assessor has composed to determine the level of impairment the worker has in a particular PIRS category. That is, a Medical Assessor must weigh all the relevant conduct of a worker relating to a particular PIRS category in order to evaluate the degree of seriousness of the worker’s function in a particular category.
The fact that the appellant went to Bali with a friend for a holiday indicates her impairment in social and recreational activities is less than a moderate impairment, as this describes a recreational event over many days that does not represent “not going out without a support person”. However, the Medical Assessor noted within the MAC that the appellant enjoys spending time with her dog. The Medical Assessor also noted the appellant is not a member of any clubs, groups or has any friendship activities. That indicates she does not have “no deficit, or minor deficit attributable to normal variation in the general population”.
The Appeal Panel considers that when the MAC is read as a whole, the Medical Assessor’s rating of Class 2 does not reveal error
The Appeal Panel similarly considers that the Medical Assessor has not erred with his rating of the appellant’s impairment in social functioning. His reasons support his conclusion that the appellant has a moderate impairment in social functioning. Whilst the appellant’s son is no longer in her care, and is residing with his father in North Queensland at her mutual agreement with her son’s father and grandmother. She nevertheless maintains good relationships with long time friends and family, including her parents, son, and her former partner. She was to visit her ex later in the year (and presumably her son who resides with him). The appellant has lost some friends. Some elements of her impairment in social functioning correlate with some of the descriptors for Class 2, Class 3 and Class 4. The Appeal Panel considers that when all is considered, it cannot be demonstrated that the Medical Assessor erred by rating her impairment in social functioning in toto as Class 3.
The Appeal Panel also, as said, considers that the Medical Assessor did not err by rating the appellant’s impairment in CPP as Class 2. Whilst the appellant did not complete a tertiary course she started, the activities in which she does participate, such as reading, indicates to the Appeal Panel that she has less than a moderate impairment, but greater than a minor deficit. Also relevant to this is that the Medical Assessor found during his mental state examination of the appellant that her thought content was reality oriented and that her thought form was normal, her speech was normal, her judgement was not acutely impaired and her cognition was grossly normal. Again, the Appeal Panel considers that there is no demonstrable error in the MAC, when considered as a whole, as a consequence of the Medical Assessor rating her impairment in CPP as Class 2.
The Appeal Panel accepts the appellant’s submission that the Medical Assessor erred by rating her impairment in travel as Class 1. The Medical Assessor’s reasoning was based solely on the fact that the appellant had travelled to Bali, which the Appeal Panel notes she did with a friend. The Medical Assessor did not set out within the MAC what the evidence was from which he concluded that the appellant could travel independently and could drive and travel to unfamiliar areas and new environments without a support person. The Medical Assessor’s failure to do that amounts to an error, such that the MAC contains a demonstrable error.
To correct that error, the Appeal Panel considers it required further clinical data and, as said above, considered it needed to re-examine the appellant to obtain that data. Medical Assessor Glozier was appointed to do that. His report is as follows:
“PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

PORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

M1-W5608/21

[BMW]

Secretary, Department of Education

2 October 2024

Examination Conducted By:	Professor Nicholas Glozier
Date of Examination:	2 October 2024

The examination was conducted via the Teams platform. There were no technical difficulties. She was assessed on her own.
I explained the purposes of the examination to [BMW]. We clarified some aspects of the Appeal Panel process as she appeared to have been given slightly different information by her lawyers but she then understood and consented to this process.
1. The worker’s medical history, where it differs from previous records
[BMW] reported that she has been living in Panania with her mother since the beginning of 2024. Up until the end of last year she was living with her son on her own in Deception Bay. Her son had marked behavioural difficulties, in large part attributable to his ADHD. She said he was absconding, often refusing to do work at school, at times leaving school and not being able to be found and she found this increasingly unable to cope with. As a result her ex, with whom she has a good amicable relationship, and others suggested that [redacted] go and live with him in Townsville. She then rented out her place in Deception Bay and moved to live with her parents. She shares the house with her mother, whilst her father lives in the granny flat. She described a close and supportive relationship with both of them. She said her mother is physically deteriorating and they each appear to provide some care for the other. She said her father is much more physically capable and so he may drive her mother to places if required.
She described her condition as not having changed in any significant way. She has significant cardiometabolic problems including hypertension, hypercholesterolaemia and diabetes. She is under the management of her GP in Sydney. She continues to take the same medication of Efexor 150mg, Olmesartan, Rosuvastatin, Diabex, Nexium and regular Ozempic injections. She said she has not lost any weight, despite having little appetite, and tends to snack on toast and crisps. As a result she said she has now begun to order Lite n Easy meals in an attempt to improve her weight as part of addressing her self-care. She does little other self-care activities. Although she enjoys her dog, she does not really take him for walks and has not done any physical activities of any note since coming back to Sydney. She does not drink alcohol, smoke, vape, use medicinal cannabinoids or illicit drugs.
She has just had two further sessions with her psychologist, Helen. She said the insurer stopped paying some time ago and these ceased as a result. She was not able/prepared to pay for this treatment for some time. She is not entirely clear as to what the therapeutic modality is or what she gets out of the treatment but described some forms of behavioural activation. She says currently they are focusing on her disinterest in going out.

She said that she is happy in her own company, and uncomfortable with others. Initially she said this was because she has no conversation or anything to say, and thus feels awkward. She then said that she is self-conscious because she ‘lives in fear of being found out’ that she was an alleged sexual offender. Although she notes that she has been acquitted, she thinks that people still do not believe this. These fears were further cemented by her experiences at Riverwood although were already present. She can be aroused and anxious in public. She noted a couple of months ago when out shopping she was approached by one of the charity people. She found him quite insistent and became very aroused/anxious and had to take herself off to the railings and quieten down. This does not appear to be a full-blown panic attack but certainly significant arousal.
She describes her mood as being ‘up and down’ but somewhat ‘numb’. She feels uncomfortable in Sydney but a little less uncomfortable in other places such as when travelling up the coast or in Townsville. However even when in Bali with her friend [redacted], she said that she was confronted by pictures of the very large queue to go to the water springs they were due to go to and so did not leave the villa and go, even though that had been the point of the trip. She thinks about her accusations, arrest, court and work experiences daily. This is a combination of the allegations, the threats against her life made by one of the accusers, whom she still fears bumping into, the treatment she received at [redacted], the court cases themselves and, (at this point she became tearful), the forced entry into her house of 20 police officers to arrest her and the look on her son’s face that she said she will never forget. He was only four at the time. As such her fears are a combination of the allegations, associated threats, experiences due to the actual arrest, trials, as well as the workplace stressors that form the basis of the cause of her current injury according to the Certificate of Determination.
She has a poor sleep pattern. She gets into bed around 8-8:30pm, saying she is often fatigued. She will then watch TV for an hour or two, falling asleep with Netflix still on. She wakes up a couple of times or more during the night and may get up. She then gets up late, between 9am and 11am in general. As such she has very poor sleep efficiency, trying to be in bed for up to 15 hours a day and then also does little during the day, at times dozing. If she gets up she will maybe have a coffee and contributes to a few chores but her mother does much around the home. She said the highlight of her week is the online Wednesday Aldi catalogue where she will look at the new things and may order some of these special offers. She also orders Lego online and occasional Polly Pockets and has a large collection of Lego. Much of this is unmade and still in its packets as she has little interest and also thinks that she sometimes can’t concentrate for the more extensive projects. She and her mother both contribute to looking after each other in some ways. However she says her mum tends to do the cooking although her father may also cook, and otherwise she is reliant on Lite n Easy, takeaways or snacking. She does not wash or clean herself as regularly as she would have done previously.
She has recently made significant decisions and changes to her life. She has purchased a house in Townsville and will be moving there before Christmas. She is unclear as to whether her mother will come with her. Her mother is not very well and so she hopes her mother will come so she can also look after her as she fears for her. She has a very good relationship with her ex and may even spend Christmas with his family. As well as an excellent relationship with her parents, and an amicable relationship with her ex, she speaks to her son 3-4 times a week. She said he is very good at contacting her and they FaceTime or speak. She enjoys his company.
She has driven to Townsville recently, the last being a month or so ago. She did the five-day road trip with her mother, stopping several times along the way. She said she feels safe in the car, can lock the doors, and does not have to communicate with people. She has always had some anxieties and ‘respect of flying.’ When she flew to Bali recently, she said that although she does not fear death, she was ‘a mess on the plane.’ She was taken there by a friend, Sammy, who suggested to her that they go, as part of helping her ’sort herself out.’ She said they flew together in business class and she basically spent most of the time in the villa.
She has withdrawn more recently from social contacts due to her fears of being judged and the allegations over the years and the sequelae to these. However she still has some close friends from her childhood. One now lives in New Zealand and they speak to each other regularly, if not frequently. Her friend [redacted], whom she has known since age 7, calls her weekly and they see each other occasionally.. The other close friend [redacted], who is a principal of a school, lives in the same street and they touch base weekly. She last saw her a couple of weeks ago at a funeral. She will meet these two at times for a coffee, but tends to sit at the back of café so she is unobserved. She will at times take her mother because she worries that her mother is on her own but also prefers to travel with her mother although can, if necessary, do so without her.
She said she spends most of the day watching TV. She will binge-watch Netflix for many hours, often watching the same series e.g. Schitts Creek, Bob’s Burgers, etc. She was cognisant of a number of other media-related events. She checks Facebook occasionally but has not re-engaged with World of Warcraft, MMRPG. She has done all of her house purchase online and managed the details and the finances although says she was not particularly good at it. She has not returned to reading, finding it difficult to motivate herself or focus for long times to read a book on her Kindle. She has not restarted her aromatherapy course but suggested that she would do when she is in Townsville.
She noted with apprehension that she would have to potentially be on her own at Townsville, learn new places and ‘start all over again’ and again commented that in part, is one of the reasons why she hoped her mother might come with her. She noted when they travel she uses her name of ‘[redacted]’ which she uses such that people will not recognise her from the media surrounding the allegations and the court case which were very high-profile.
She thinks when she is in Townsville she might like to go and stay in a psychiatric hospital but is unclear why or what the purpose would be. She did note she experiences intermittent suicidal ideation when she feels overwhelmed.
2.     Additional history since the original Medical Assessment Certificate was performed
See above, notably re the move.
3.     Findings on clinical examination
[BMW] was casually-dressed, not wearing make-up but not unkempt. She was engaged, polite and pleasant, and understood the process. There were no clinically significant cognitive difficulties observed over the 70 minutes or so of assessment. Her affect was reactive, at times laughing and joking (she thanked me at the end for making her at ease within the assessment) but also tearful later on when describing the police intrusion and he darker thoughts. She describes a generally numb mood, is not pervasively depressed but with little enjoyment. She does enjoy being with [redacted], with her dog, her parents and friends, but finds it hard to enjoy things as she did previously. She can be easily overwhelmed and has reduced stress tolerance, e.g. if there is too much conversation or when Eric’s behaviour was too difficult for her to manage. She has poor sleep efficiency associated with broken poor-quality sleep but of a normal total duration. She described some anergia, lack of motivation, a sense that her concentration is not as good as it used to be. She is apprehensive about being recognised, primarily due to the allegations, with a fear of being judged and viewed poorly, entrenched by her experiences at [redacted]. She can have heightened levels of arousal, bordering on panic. She has intermittent suicidal ideation when overwhelmed but no intent.
4.     Results of any additional investigations since the original Medical Assessment Certificate
Not applicable.
Summary
I agree with the Medical Assessor that [BMW]’s condition is best described as a Persistent Depressive Disorder with Anxious Distress. She does not meet the criteria for Post-Traumatic Stress Disorder. Her depressive symptoms are not at the level of severity of having a Major Depressive Disorder (although this may reflect Major Depressive Disorder in partial remission) and her anxiety attacks do not appear to have the full qualities for a Panic Disorder. I note also the presence of a probable depressive episode in the early 2000s and that the Form 2 claim is for an ‘aggravation, acceleration or exacerbation or deterioration of disease’.
Given she was functioning well at [redacted], still able to look after her son – and in fact was taking him to work – was asking for more work to do and engaged in the court case, it would appear that her impairment at work was minimal even if she remained somewhat symptomatic. However many of her current symptoms; anxiety, panics, sleep disturbance, and the impairing avoidance associated with these arise from pre-injury events reflecting the pre-existing condition of a further episode of her Major Depressive Disorder, that was caused by her arrest, allegations and media coverage in 2017 prior to her placement at [redacted] in March 2018. For instance in her email of 15 February 2018 it states ‘I am terrified to leave my home. I am unable to sleep and I get regular panic attacks. I am currently on valium and antidepressants. My anxiety is through the roof and I don't feel safe anywhere…’, symptoms similar, if not more severe, than now.
The Panel need to discuss the extent to which this pre-existing condition contributes to her current impairment.
I note the Panel’s view that the appellant’s appeal insofar as it related to the MA’s ratings of her impairment in social and recreational activities, social functioning, and concentration, persistence and pace could not be successful because notwithstanding the MA’s reasons for his ratings were brief, his ratings were supported by the evidence before him. None of the history and assessment elicited today would disturb that view, all of which is concordant with the classes ascribed by the MA.
However, as considered by the Panel the reasonings for ascribing a class 1 for travel cannot be supported. Whilst she did obviously travel to Bali, she did so only with a close friend who travelled with her and helped her whilst she was there. She requires her mother to go with her on longer trips and prefers being accompanied on trips locally although can do some local journeys from the house, e.g. to see friends on her own if required. This is a class 2 impairment, noting that she can drive interstate and travel trans-continentally when accompanied.
Signed:    Professor Nicholas Glozier
Date:       2 October 2024”

The Appeal Panel considers Medical Assessor Glozier conducted a thorough examination of the appellant and consequently for the purpose of correcting the errors in the MAC the Appeal Panel adopts the history that Medical Assessor Glozier set out therein and his findings from his clinical examination.[5] The Appeal Panel also accepts the reasons Medical Assessor Glozier set out his report that the appellant’s impairment in travel is correctly rated as Class 2. Accordingly, the Appeal Panel rates the appellant’s impairment in travel as Class 2.
[5] Coca Cola Europacific Partners ABI Pty Ltd v Pombinho [2024] NSWCA 191 at [88].
The Appeal Panel also considers that the appellant’s pre-existing condition of major depressive disorder with anxious distress and panic contributes to her current impairment. It was symptomatic at the time she was transferred to the [redacted] District Office, but not then significantly impeding her function. She was able to work full-time in April 2018, which indicates some ability to concentrate, to dress appropriately and attend to her self-care, and also an ability to engage in employment. Her work injury aggravated her pre-existing condition and resulted in a significant deterioration in her condition and her consequent functioning and therefore contributes a proportion to her permanent impairment.
As is almost invariably the case in matters such as this, it is difficult to determine precisely to what extent the appellant’s pre-existing condition contributes to her current impairment. Nevertheless, in the Appeal Panel’s view, to assume that the proportion is 10% would be at odds with the evidence and consequently s 323(2) cannot be engaged. The evidence that is at odds with making an assumption that the deductible proportion is 10% is that the appellant’s pre-existing condition was symptomatic at the time of her transfer to the [redacted] Office. It was impeding some aspects her function, but not to the extent that she could not work or care for her child or her self-care and personal hygiene and other like matters. It was however, affecting her sleep and consequently to some extent her ability to concentrate. She was withdrawn and had low mood and panic attacks. She was prevented from working in the same position by her employer. However in early 2018 she was noted to have developed social isolation and fears affecting ability to travel to certain areas and interact with people that are still manifest in her current impairment. Moreover, were it not for the pre-existing disorder, her current level of impairment and her symptomatology would not be as severe. Her pre-existing disorder consequently results in her having a greater impairment overall.
Given that her work injury now results in her being unemployable and has adversely affected her function across all PIRS categories, the Appeal Panel considers that the greater portion of her present impairment is due to her work injury and not her current pre-existing condition. In the circumstances, the Appeal Panel considers that a 20% deduction is the correct deduction to make under s 323(1).
For these reasons, the Appeal Panel has determined that the MAC issued on 20 May 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

AMENDED MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W5608/21
Applicant:	[BMW]
Respondent:	Secretary, Department of Education

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

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Steven Yeates and issues this new Medical Assessment Certificate as to the matters set out in the table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Psychiatric and psychological disorders	2/12/2020	Chapter 11	-	19%	1/5	15%
Total % WPI (the Combined Table values of all sub-totals)					15%

[2024] NSWPICMP 765

7 November 2024