BOC Ltd v Rees
[2025] NSWPICMP 220
•31 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | BOC Ltd v Rees [2025] NSWPICMP 220 |
| APPELLANT: | BOC Limited |
| RESPONDENT: | Jason Rees |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | John Lam-Po-Tang |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 31 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); psychological injury; causation of impairment; section 323; clause 11.10 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines); challenge to two of the psychiatric impairment rating scales (PIRS); PIRS re-examined; Coca-Cola Europacific Partners API Pty Ltd v Pombinho applied; Held – Medical Assessor erred in application of section 323; MAC revoked and issued a new certificate. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 November 2024 BOC Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Yu Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 October 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
Mr Rees (the respondent) was employed by the appellant by BOC Limited at a gas and bottling factory. His duties involved the production and packaging of different gas products. It was physical and repetitive.
The present claim and dispute before the Personal Injury Commission (Commission) concerns a psychological injury Mr Rees suffered in the employ of the appellant. In addition to that psychological injury, and critical to the issues raised by the appellant in submissions, Mr Rees has also sustained physical injuries in the course of his employment with the appellant. Those injuries do not form part of the present claim or the dispute before the Commission.
The present claim is one for psychological injury deemed to have occurred on 20 March 2018. The claim for lump sum compensation was disputed on a liability basis; that is that the psychological injury suffered by the appellant was not caused as alleged, by bullying and harassment, but rather by other factors, or as a secondary psychological injury as a result of the physical injuries suffered by Mr Rees. The proceedings in the Commission in respect of this liability issue were resolved by a decision of Senior Member Beilby dated 1 August 2024, in which it was determined that Mr Rees sustained a primary psychological whilst employed by the appellant.
That determination is critical to at least one of the grounds of appeal raised by the appellant and will be discussed in more detail below.
As a result of that decision, Mr Rees was referred for an assessment of permanent impairment. A MAC was issued on 17 October 2024, assessing 24% whole person impairment. The appellant appeals against that assessment.
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 worker should undergo a further medical examination because the Appeal Panel were satisfied that the MAC contained a demonstrable error in respect of s 323 of the 1998 Act, and to properly assess impairment, a re-examination was required to obtain a full history.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Michael Hong of the Appeal Panel conducted an examination of the worker on 18 February 2025 and 14 March 2025 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. The below is a summary of the written submissions provided; more detail will be provided as the Appeal Panel considers the issues below under findings and reasons.
In summary, the appellant provides an extensive background of the MAC, the chronology of the issues Mr Rees experienced in his employment with the respondent, the evidence available, including an extensive history of clinical notes, and the findings made in the Certificate of Determination.
The appellant raises three (or four, depending on how the third ground is viewed) grounds for appeal against the MAC. They are, in brief:
(a) the Medical Assessor erred in his assessment of the injury in failing to take account of the respondent’s psychological condition resulting from his physical injuries when assessing whole person impairment;
(b) the Medical Assessor erred for failing to make a deduction pursuant to s 323 for the respondent’s psychological condition resulting from his physical injuries, and that any deduction should be in excess of one tenth as it would be at odds with the available evidence, and
(c) the Medical Assessor erred in two of his assessments under the Psychiatric Impairment Rating Scales (PIRS), being social and recreational activities, and social functioning.
In reply, the respondent submits that:
(a) the Medical Assessor assessed the impairment arising from the determined injury, in accordance with the Guidelines. The Medical Assessor was aware of and did record depressive symptoms associated with the consequence of physical injury, and there has been no explanation of how the Medical Assessor approached his task incorrectly;
(b) the physical injuries did not predate the accumulation of work related stressors, and would therefore not attract the application of s 323, and
(c) in respect of the PIRS assessments, there has been a uniformity in the forensic opinions provided that the appellant now seeks to impugn, and the appellant advances no submissions other than to compare the reasons given in the PIRS table with the Guidelines.
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. The Appeal Panel’s consideration of the matter is limited to the issues raised in the appellant’s submissions (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made.”
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant has raised four issues on Appeal. The submissions set out an extensive history of the background to the claim and the proceedings in the Commission, which the Appeal Panel have considered but are not strictly grounds of appeal. The background does represent a critical component of the determination of the grounds of appeal, however, and in particular how the respondent’s case was presented in the Commission and the determination made by the Member.
Causation
The first ground raised by the appellant is headed “Causation” and is thus adopted by the Appeal Panel. In substance, the appellant submits that the Medical Assessor erred in not taking into account the respondent’s psychological condition resulting from his physical injuries when assessing whole person impairment.
The respondent makes a number of submissions in response, suggesting that the Medical Assessor considered the depressive symptoms associated with the physical injury, that the appellant has not identified how the Medical Assessor ought to have assessed to exercise his statutory function, and that the common law principles set out in State Government Insurance Commission v Oakley (1990) 10 MVR 570 and Secretary, NSW Department of Education v Johnson [2019] NSWCA 321 would in any event apply.
To determine this ground of appeal, one must look closely at the way the respondent presented their case in the Commission, back to the original liability dispute and the medical evidence supporting that determination. Whilst there is a mechanism for the general principle espoused by the appellant, a deduction (in the lay sense of the term, not with reference to s 323 of the 1998 Act) or exclusion is to take place in accordance with the legislation.
It is true that Mr Rees has suffered physical injuries in the employ of the respondent. Those issues are set out in the report of Dr Bentivoglio, amongst others, but are not the subject of the present proceedings in the Commission.
The applicant’s claim in the Commission, as set out in the Application to Resolve a Dispute (Application) is for a disease with a deemed date of injury dated 20 March 2018, with a description of “The worker was bullied and harassed by management resulting in psychological injury”. No reference is made to secondary psychological injuries, although it is accepted that the description is not binding in a strict sense.
It is clear, based on the s 78 notice attached to the Application, that the respondent has long disagreed with the classification of Mr Rees' injury as occurring due to bullying and harassment. That represents the first line in the issues in dispute in the notice dated 12 April 2023:
“• BOC disputes that you suffered psychological injury as a result of bullying and harassment at work.
• BOC disputes your claim for lump sum compensation in relation to your psychological injury.
• In relation to any part of your psychological condition which results from the physical injuries you suffered in the course of your employment with BOC, BOC says your psychological condition is a secondary psychological injury and you have no entitlement to lump sum compensation under section 65A Workers Compensation Act.”
Dr Chambers provided a report on behalf of the appellant. He provides an opinion on the cause of the psychiatric condition suffered by Mr Rees, stating:
“The major depressive disorder has developed in the context of both of the above factors. He has chronic pain symptoms that are distressing and are associated with insomnia, fatigue, and persistent depressive symptoms. He has a sense of injustice in relation to his experiences of bullying in the workplace. In my opinion, it is not possible to quantify the contribution of each of those factors.”
A dispute as to liability was referred to a Member for determination. On 1 August 2024 a certificate of determination was issued, the first order of which was “The applicant sustained a primary psychological injury whilst employed by the respondent.” The issue in dispute, as agreed between the parties and determined by the Member, was said to be:
“It was not in dispute that the applicant suffered a psychological injury whilst employed with the respondent.
The parties agrees that the issue in dispute was whether the applicant’s psychological illness was caused as alleged, that is by bullying and harassment in the workplace.”
Thus, it is abundantly clear that the respondent’s position was that the entirety of the applicant’s psychological injury was a secondary psychological condition arising out of physical injuries. That is to be distinguished from circumstances where an injured worker suffers from both a primary and secondary psychological injury.
Both circumstances are contemplated by s 65A of the 1987 Act. Sub-sections (1) and (2) provide the relevant distinguishing difference in statutory language:
“(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.”
The issue was first considered by Campbell J in obiter in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [22]:
“Given that I am of the view that the particular question of law does not arise, it perhaps is unnecessary for me to express any opinion about the correctness of the Appeal Panel's legal view. However, given the detailed argument that was addressed to me by counsel, and lest the matter go on appeal, I should point out that in my judgment, the question of whether an injury is a secondary or primary psychological injury is one for the Commission to determine and not one that arises as part of a medical dispute as defined by s 319 of the 1998 Act.”
The operation of s 65A was also considered in Mercy Centre Lavington Ltd v Kiely & Ors [2017] NSWSC 1234 and Mercy Connect Limited v Kiely [2018] NSWSC 1421 in terms of how the section applies where it is agreed or determined that a secondary psychological injury exists.
It is that final point that is critical to the present appeal. At no point has there been a determination or agreement that a secondary psychological injury was suffered by Mr Rees. Absent such a decision, there is no basis for the appellant’s argument about causation at all. In fact, it would appear to be a backdoor way to introduce an argument that had already been determined by the Member, that is that the psychological injury suffered by Mr Rees was not caused by bullying and harassment, but by something else (i.e. the psychological effects of the physical injuries he suffered in the employ of the respondent).
Ultimately, the Medical Assessor completed the statutory task assigned to him in accordance with the referral dated 3 September 2024. Nowhere in that referral, nor in the decision of the Member that predicated the liability question that was determined in that decision, is there reference to the existence of a secondary psychological condition. It may have been open to the respondent to make an alternative argument that some portion of the impairment suffered by Mr Rees was due to a secondary psychological condition. To make that argument (pursuant to s 65A(2)), that liability question must first have been determined by the Commission (s 65A(1)).
Absent such a determination, the appellant’s entire argument about causation fails.
Section 323
The appellant submits that the Medical Assessor erred in his application of s 323. A close reading of the submissions provided is required to determine the extent of this submission. The appellant refers to the respondent’s “psychological condition resulting from his physical injuries”, which again appears to reagitate the point determined above, that is that there should be some kind of causation based apportionment for the alleged secondary psychological condition.
However, the appellant also submits that the applicant “suffered pre-existing psychological abnormalities”. This sentence is not necessarily limited to the secondary psychological condition. It is the Appeal Panel’s view that there can be no deduction due to the secondary psychological condition (which has not been found, as above) as s 65A already provides a mechanism for the exclusion of impairment due to such a condition. To make a deduction pursuant to s 323 would be double-dipping. In any event, as the respondent points out, the physical injuries did not predate the accumulation of work-related stressors (i.e. the bullying and harassment) and accordingly any secondary psychological injury cannot be a pre-existing condition.
However, there is an identified pre-existing psychological condition in the form of autism spectrum disorder with ADHD. There is evidence of the basis for this diagnosis dating back to 2003.
The respondent refers to Dr Canaris, who made a deduction of 1/10th, but failed to apply cl 11.10 of the Guidelines. The respondent also submits that if the matter is referred to an Appeal Panel, there is no means of discretely identifying the contribution from the respondent’s childhood disorders to his development.
In respect of the first of those submissions, the decisions referred to (Marks v Secretary Dept of Communities and Justice (No2) [2021] NSWSC 616 and Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334) to not preclude a deduction being made pursuant to s 323. They identify that in part, cl 11.10 of the Guidelines is inconsistent with s 323 of the 1998 Act (to the extent that pre-existing impairment was asymptomatic before injury). On the other hand, Quintiliani-Johns v Secretary, Department of Education [2024] NSWSC 1200 suggests that where a pre-existing condition is symptomatic, cl 11.10 must be applied.
In respect of the second point, it should first be acknowledged that whilst the conditions of autism spectrum disorder and ADHD were first (apparently) identified in Mr Rees in childhood, there is reference to such diagnoses continuing into his adult life. There is no doubt that they continued to affect him. The factual basis for the submission is therefore rejected.
In accordance with the preliminary review issued to the parties, the Appeal Panel were satisfied that the Medical Assessor erred in his assessment of s 323 of the 1998 Act. He failed to address, at all, the pre-existing autism spectrum disorder and ADHD that Mr Rees suffered from. He discusses the diagnoses in the context of the report of Dr Canaris (pg 7 of the MAC), but also refers to a diagnosis of autism spectrum disorder in 2019 by his treating psychiatrist (pg 3 of the MAC). When asked specific questions about whether a deduction would be appropriate on pg 7, he states “nil” with no explanation. This is in error.
In order to properly assess and apply s 323 of the 1998 Act, the Appeal Panel determined that it was necessary to re-examine the worker. That assessment initially took place on 18 February 2025 via video. Due to Mr Rees’ health at that time, the re-examination was unable to be completed. It was resumed on 14 March 2025.
Consistent with Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [86], the Appeal Panel are satisfied that the “starting point” must be considered, that is the assessment of impairment made under the PIRS, as well as the effect of treatment added by the Medical Assessor. As the appropriate exercise of s 323 is comparative in nature, considering the worker’s impairment as a result of injury and the contribution from any previous injury or pre-existing condition or abnormality, it would be impossible to consider the appropriate exercise of the section without considering the PIRS in toto. Further, cl 11.10 of the Guidelines specifically requires an assessment under the PIRS to determine the “injured worker’s pre-injury level of functioning in each of the areas of functioning”.
It is noted that the appellant has also challenged two of the PIRS with specific submissions as to the errors made by the Medical Assessor and the appropriate assessment of impairment.
The re-examination report, from both assessments, appears below:
“Mr Rees was assessed twice, the first time for 50 minutes on video, and the second time in-person for 60 minutes.
Mr Rees started the first assessment, a video assessment lying down on the lounge and explained that he had a severe migraine and took some medication. Mr Rees presented for a further in-person assessment and was generally quite talkative. He apologised at times and said that due to his spectrum disorder, he finds it very hard to move on to a new topic until he has finished the things that he needs to discuss. Generally, I let him talk on his own, and even when I interrupted him to ask questions, I made sure he had enough time to finish what he had to finish.
I discussed with Mr Rees, the reason for the assessment as part of the Panel and the appeal of the MAC, which he was well aware of. In my first assessment I explained why I was interrupting him and explained to him, that if I have to repeatedly interrupt him, then he is probably not fit for assessment, and we might reschedule. He agreed with this and said it was fair; however, after that, I had to interrupt him several times, and he was not calming down after 50 minutes, we agreed to end the assessment, as he was too agitated.
Mr Rees started the first assessment by asking me whether he can appeal the assessment today, and I discussed with him, legal questions are best for the legal practitioners to address. Mr Rees tells me that he was not aware the employer can appeal or that he had the option of appealing previously, and that he had found Dr Shen's assessment to be too low and his impairment should be rated much higher. He went on to say everybody has committed perjury, and he has been doing a lot of research about the law so he could take it to the next level, because he does not believe he is given proper legal counsel.
He was discharged from Hill's clinic (Kellyville mental health private hospital) in December 2024 and then spent three weeks in a hotel on his own, because he wanted to isolate from everybody and only came home maybe ten days ago. After my first assessment, he then decided to move into a hotel again for a while.
Mr Rees said he felt suicidal, which led to the admission in December 2024, and no psychiatric medication was changed, but over time, his doctor had reduced his analgesic medications on his request. He said that he could cope with pain for most of his life, but the nerve pain he has now is ridiculous. He saw a urologist recently who told him that nerve pain is not his specialty.
He said his Phenergan was ceased. He had major side effects with Palexia.
He said he discussed coming off all psychotropic medications with his psychiatrist and saw him a couple of days ago, Dr Chapagain.
He takes:
·Escitalopram 20-40 mg. He said he wants it weaned or ceased, due to sexual side effects, and discussed it with his psychiatrist.
·Pregabalin 75 mg, every couple of days (125 mg/24 hours at Dr Shen’s assessment, and he was taking 75 mg at my last assessment)
·CBD oil (cannabis) taken on an as-needed basis at night
·Seroquel XR 50 mg tablet, 2 tablets most days at my last assessment. He said does not take the same dose daily, and in the past few days, he took 50 to 150 mg daily, depending on his needs.
·Belsomra 1 tablet at night
Mr Rees frequently returned to discuss his work problems, that people were not doing their jobs. His job was to raise safety concerns, but when he did the right thing and stood up for safety issues, he was targeted and bullied. He asked for help, people who should help him did not, and he ended up in a worse situation. He also said that he discovered that the lawyers appealing the Dr Shen's assessment, could be the same lawyer who was instructing the people at work.
In terms of his psychological symptoms, Mr Rees has chronic anxiety and depressive symptoms, and never experienced hallucination. He said he has dyslexia and concentration difficulties. He has sleep problems and said his psychotropic medications don't always work. He is irritable and had suicidal ideation, and sometimes thought about getting even with people at work, people who mistreated him. He raised concerns with people doing the wrong things, not wanting to help him and only wanted to get paid. He said he was bullied for 20 years and baited, and constantly reacted to a situation that would cause him to be sacked.
He has not had problems with substance use in the past 6 months.
He has been learning sign language on an App, on-and-off, he said his muscle memory is good. He can remember what he learnt from the start of the week at the end of the week. He said the plan is to only use sign language in the future and not talk.
Mr Rees said half the questions asked previously by other assessors, were not related to the chart used to rate his impairment or according to the guidelines, and people asked about his siblings previously but it was not appropriate. He said he would appreciate if I only asked questions required for the impairment assessment, and I discussed, he should tell me immediately if he thinks a question I asked is not appropriate.
Mr Rees said he had already done his rating himself and it should be 38% based on the chart from his lawyer. He said the previous ratings of 19 and 22% are ridiculously low.
In terms of daily activities, Mr Rees said he tries to escape his life, not allow his thoughts become the reality. He said his life is a nightmare. When he is in a good mindset, he goes to physiotherapy and do exercises at the beach. He said he had driven to the beach only 5 times in the past 12 months and he has a comfortable car now. On bad days, he stays in bed and does not go out. He said the previous doctors recorded the wrong history, and the reality is, he can drive 3 hours, and at 30 minutes he has pain but he said he does not always stop driving with pain. He would take a break to stretch sometimes. If there is no pain or if pain is improved, he drives everywhere. On a new road or freeway, he can drive a long time, but on Parramatta Road, it is bumpy and painful, so he cannot drive for long.
He makes his bed but struggles with everything due to pain. He showered on the day of the first assessment, because he had migraine. He said he had two showers in the past 10 days since going home from the hotel, without prompting. After my last assessment, he returned to the hotel and showers a bit more.
Mr Rees usually buys takeaway food. He buys the groceries online and have them delivered home, from Coles supermarket.
Playing video games is one of his recreational activities. He has no time to play video games now, plus he said the games were getting expensive.
He spends most of his time doing online research, he said even though he has dyslexia and reading problems. He said this is because his lawyers are not doing enough. He said he has to learn the law himself, and reads online for 10-15 hours a day, and said he does not stop reading. He reads about everything related to law.
Normally, Mr Rees had many recreational activities, e.g. scuba diving, playing golf. He said he does not do these because of his pain. He asks himself, ‘is it worth doing it and suffer increased pain’ after an activity. After he thought about, he does not do it as the pain is a major barrier. If there is no pain or if pain is improved, he wants to return to scuba as he has always enjoyed it. He said he played golf a few years ago with colleagues and not since. He wants to ride his motorcycle again, but said his focus is on his claim at present.
He went to watch his stepdaughter do indoor climb and gave her advice, after Dr Shen’s MAC assessment. He said he cannot do it himself, due to his leg injury. He can do hydrotherapy and exercises in the pool only.
He went home for 3 weeks and now, back at the hotel, and orders takeaway food from UberEats or eat at restaurants, but does not have regular meals.
Mr Rees discussed problems with the funding for treatment and that he should have been approved earlier. He also discussed having problems with some of the doctors. Some are good, some are not good. The good doctors take accurate information and listen to him, and they let him ‘vent’ when he needs to discuss what is on his mind, and they do not tell him what to do, but they also give direction and they are open-minded. He explained that because he never fit the box, not all doctors can do that.
Mr Rees related a similar problem when he was at school, he was kicked out for asking questions. He said there was no awareness of spectrum disorder at the time, and he said that after he asked the same question three or four times, he would then understand the teacher did not really know the stuff and they were simply following a script, but they did not like it when he asked questions, and therefore he was ejected from class.
Mr Rees stated that a similar problem happened with his work. He raised safety issues as he should have, but when you asked the question why, why, he became a problem with management, even though he was doing his job.
In terms of friendships, in my first assessment, Mr Rees said he does not need friends, because people cause more pain and suffering and he does not have friends now. He confirmed he has one friend in Queensland, but he is too busy learning the law and has not time to see his friend.
I asked him about his friends in my second assessment, and he said he could not answer the question because it depends on what I mean by friends. I looked up and gave him the definition from the Oxford dictionary. He said based on that definition, he has thousands of friends, people he would ‘catch up and chat for 2 seconds’, and everyone is a friend. Even now, he said he can still talk to those people. The main friend is in Queensland, and they had lived together for years.
I discussed with Mr Rees, his concentration seemed to be quite good during the second assessment, which went on for an hour. He said that medication has helped slow down his brain to allow him to focus, and it is the same when he is at home, when he has to do research and read online for hours, he said that he can focus and found medication has helped. He said he can retain information if it is important and relevant. For example, Mr Rees has been reading the PIC guideline, the jurisdiction of different laws, the constitution, and he understands that the panel, the members, the lawyers are restricted by guidelines and their liability schemes. He also looked up the Law Society website and said he understands their process.
Rees went on to tell me that regardless of the outcome of the assessment today, he does not think he will accept it anyway, even though he does not have any problem with the way I have done my assessments, and he explained that the Guideline does not make sense, particularly with the pre-existing deduction being made after and not before the current impairment, therefore he does not think he can accept it.
Mr Rees reported that the last time he had a partner was in 2016, they were the same age and had known each other since age 15. In 2005, she approached him and they started dating. However, Mr Rees said in the last five years of the partnership, he was really only there for the two stepchildren. The stepdaughters are 19 and 21 now, and after the relationship with his ex-partner ended, he has been maintaining good relations with them.
He said his ex-partner had a mental health problem, he tried to help her, but eventually he could not help anymore and then the relationship ended.
Mr Rees has been doing regular activities with the stepchildren. They talk to each other and see each other regularly, and went to some activities, e.g. indoor climbing. However, he said after my last assessment, he found the 19-year-old to be ‘disrespectful and rude’ at their last contact, so for now, he is not talking to her as she needs to grow up. He also found some of her behaviour similar to his ex-partner.
Growing up, Mr Rees said his parents separated a long time ago and he has had no contact with his mother for about 20 years now, because she ‘never wanted to be my mother...she wanted a girl, but instead got me’, and she saw him as a ‘problem child’.
He said his father was in the military and can be quite rigid, and he re-married. The relationship has maintained a similar pattern over the years and a couple of times a year, he would drop in to see his father, they were never really that close. When he was younger, he was kicked out by his father.
Mr Rees has one full brother and several half-siblings. He was never close to the half-siblings. With his brother, he said that is one of the reasons he moved to Sydney and they have a good relationship, they text regularly, and about once a month, they will get together at a pub for lunch and the two nephews will come as well. His brother is single.
Mental state:
Mr Rees came to the in-person assessment on his own, and drove. He was reasonably kempt. He engaged well and was generally talkative, and can be interrupted, provided he is given some time to finish the topics he needed to finish. He smiled and laughed appropriately, and was generally bright and reactive. He gestured regularly, and there were no psychomotor disturbances. He maintained focus during the assessment for 60 minutes, with no evidence of impairment in concentration and pace. He persisted for lengthy periods, but struggled when moving on to new topics rapidly.
In summary, Rees has a well-established history of pre-existing psychological disorder and described long-term workplace problems, causing persisting depression and anxiety. He has had regular treatment for several years now; his psychological condition has now stabilised. The Panel confirmed Rees suffered Asperger's' Syndrome (part of ASD, Autism spectrum disorder), Attention deficit hyperactivity disorder, and Persistent depressive disorder.”
The appellant has challenged two of the assessments undertaken under the PIRS, in respect of the assessments under social and recreational activities and social functioning. The appellant’s submissions in respect of both are brief. The appellant sets out, in table form, the reasons for assessment provided by the Medical Assessor, the descriptors in the Guidelines for classes 2 and 3, and a short submission that the Medical Assessor erred, and the PIRS “should have been categorised as mild and not moderate impairment”.
The Appeal Panel have considered those PIRS, along with the other four, when reassessing Mr Rees.
Consistent with Pombinho, the Appeal Panel have undertaken a re-examination under all of the PIRS. The table below sets out the Appeal Panel’s conclusions in respect of the PIRS.
PIRS Category
Class
Reason for Decision
Self-care and personal hygiene
2
Mr Rees does not eat regular meals and often orders takeaway food. He does not shower regularly and will shower when needed, without prompting.
The Panel noted he is capable of independent living without regular support, and does not need prompting with self-care.
Social and recreational activities
2
The Panel noted Mr Rees' physical injuries and pain are not assessable in the PIRS. He wants to do things if there is not much pain. Generally he only enjoys sedentary activities, e.g. eat out at a pub with his brother’s family, which is monthly. He goes to indoor rock-climbing with his stepdaughter, but cannot do it physically, and only enjoy it by giving advice.
Travel
1
From a psychological perspective, there is no impairment. He can go everywhere he wants to go without stopping. The Panel noted Mr Rees' physical injuries and pain are not assessable in the PIRS.
Social functioning
2
Mr Rees' relationship with his partner ended in 2016 as he could not help her anymore with her mental health. This was not due to his psychological injury. His relationships with his father, mother, brother and half-siblings have remained stable over the years. He relates well with his stepchildren, and sets limits when he thinks someone is disrespectful.
Concentration, persistence and pace
2
Mr Rees reported having concentration difficulties.
He can focus on intellectually demanding tasks, reading and studying online, on an app (application), on legal matters, for hours at a time, and retains relevant information, because his psychotropic medications have helped slow down his over-thinking.
Employability
5
Mr Rees has significant social difficulties and difficulties relating to people, which have rendered him incapable of work.
The Appeal Panel make the following observations regarding the re-assessment of Mr Rees.
The first is that in both of the PIRS challenged by the appellant, the Appeal Panel has found a lower class of impairment. In respect of social and recreational activities, Mr Rees is able to attend events (rock climbing with his step daughter, attending the pub once a month with his brother and nephews), and does become actively involved within his physical capacity (he did not participate in rock climbing, mainly due to physical restrictions). Mr Rees did not provide any history that he needs a support person to attend these events, a relevant criterion for an assessment under class 3 and he also enjoys solitary activity, e.g. playing video games, although this was not his focus in recent times. The Appeal Panel notes that the Medical Assessor records “he has not attended any social events since the injury”, a conclusion inconsistent with the history recorded of seeing a friend a couple of times a year, going to the pub with his brother once a month, and the same history taken on re-examination of attending indoor climbing with his step daughter.
The Medical Assessor then goes on to provide reasons that are inconsistent with the Guidelines when he states: “As he has been mostly socially isolated, though not to the extent that he never leaves his place of residence, he has moderate impairment.” The question is not one of “social isolation”, but rather the worker’s ability to engage in social and recreational activities, in accordance with the descriptors and examples given in the Guidelines.
In respect of social functioning, the Medical Assessor takes no history of strained relationships, periods of separation or domestic violence or an equivalent to spouse, relatives or community services looking after children. On this basis, the conclusion reached by the Medical Assessor is inconsistent with the Guidelines. On re-examination, Medical Assessor Hong took a history of the end of a relationship prior to the date of injury, related to her mental health rather than Mr Rees’ psychological injury. Mr Rees has maintained relationships with his immediate family and relates well to his step-children. There has been a loss of some friendships and some evidence of tension with one of his step-children.
The totality of the evidence suggests that Mr Rees is appropriately assessed in class 2 impairment. There is no evidence to rely on to place Mr Rees within class 3.
In respect of travel, the findings on re-examination differ to those recorded by the Medical Assessor. Mr Rees gave a history of no restriction in travel. In fact, Mr Rees specifically reported that the previous history recorded was incorrect, and that he can drive with no psychological restriction, but has some restriction due to pain. As recorded in the PIRS table above, a restriction due to pain is not assessable under the criteria in Table 11.3.
In respect of concentration, persistence and pace, it is noted that Mr Rees gave a history to Medical Assessor Hong of significant capacity to research, read and study online. It appears that this can be attributed to two factors: the first is motivated by Mr Rees ongoing legal dispute in the Commission, for which he feels “his lawyers are not doing enough”. The second is due to the effects of medication, reporting that “medication has helped slow down his brain to allow him to focus… medication has helped”. The history given by Mr Rees on re-examination is consistent with class 2 impairment.
The next issue is in respect of the effect of treatment. Based on Mr Rees’ appearance before Medical Assessor Hong on re-examination, with a history given of increased functioning (particularly in the area of concentration, persistence and pace) causing a reduction in impairment (as measured under the PIRS) cl 1.32 of the Guidelines becomes relevant. The Medical Assessor assessed 2% impairment under that criteria.
In Zoric v Secretary, Department of Education & Ors [2024] NSWSC 131 (Zoric). His Honour Chen J set out three steps that must be followed in apply cl 1.32 (at [59]):
“The clause may thus be understood to involve, and require findings about, the following “steps”:
1. First, whether there has been effective long-term treatment of an illness or injury.
2. Secondly, whether that treatment results in apparent substantial or total elimination of the claimant’s permanent impairment.
3. Thirdly, whether the claimant is likely to revert to the original degree of impairment if treatment is withdrawn.”
The Appeal Panel make the following findings:
(a) there has been effective long term treatment of Mr Rees’ injury. The treatment regime is recorded in the re-examination report set out above;
(b) there has been a substantial elimination of Mr Rees’ permanent impairment. This is in particular respect of concentration, persistence and pace under the PIRS, but is also relevant to Mr Rees interpersonal functioning, capacity to travel, and ability to leave the house, and
(c) it is likely that Mr Rees would revert to the original degree of impairment if treatment were withdrawn.
In those circumstances, an assessment of 2% is appropriate, consistent with the allowance given by the Medical Assessor.
The final issue is the application of s 323 of the 1998 Act. The current degree of permanent impairment has been assessed in accordance with the PIRS. Mr Rees has a pre-existing psychiatric condition of autism spectrum disorder, as well as ADHD. These conditions have contributed to the current degree of permanent impairment by making it worse. Autism spectrum disorder is a psychological condition and is defined as such in DSM-5TR. The condition is one that Mr Rees has lived with his whole life, and per his statement his level of functioning has largely been fine despite that diagnosis. The respondent refers to Marks, with reference to the assessment of Dr Canaris, who made a deduction of one tenth. The respondent submits that cl 11.10 of the Guidelines has been held to be inconsistent with the Guidelines and therefore invalid.
Firstly, the finding in Marks is limited to the factual circumstances of that case, that is where the pre-existing condition was asymptomatic (cf Quintiliani-Johns v Secretary, Department of Education [2024] NSWSC 1200 (Quintiliani-Johns) where the worker’s pre-existing condition was symptomatic prior to the injury and cl 11.10 was not inconsistent with s 323).
Regardless, Marks is not authority for any proposition that an asymptomatic pre-existing condition cannot be the subject of a deduction. This was discussed in Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [43].
Whilst Mr Rees reports that he was largely fine prior to the work injury, the nature of the pre-existing condition of Autism Spectrum Disorder is more nuanced. This disorder makes it more difficult for others to relate to Mr Rees (due to his rigidity and idiosyncrasies) and makes it difficult for him to understand others or put himself in the metaphorical shoes of others. This interpersonal tension follows him and on an evidentiary basis has followed him at school, in his relationships, and in his employment. It is present with him every day, but may not be disabling every day. In that sense, it was symptomatic prior to the injury.
Regardless of how it is characterised (i.e. whether asymptomatic or not) it has, however, contributed to the current degree of permanent impairment. The major distinguishing factor is whether cl 11.10 applies to the operation of s 323 – in Marks it was held to be inconsistent with the 1998 Act for the purposes of an asymptomatic condition. In Quintiliani-Johns it was accepted in obiter that cl 11.10 was not inconsistent with s 323 where the condition was symptomatic prior to injury. Very recently, in Matheson v Baptistcare NSW & ACT [2025] NSWSC 213, Basten AJ disagreed with Marks holding that cl 11.10 of the Guidelines is not invalid (at [35]). The Appeal Panel are faced with inconsistent Supreme Court decisions on the clause.
Regardless of whether the clause is invalid or not, it is not possible to assess the percentage of pre-existing impairment under the Guidelines. Clause 11.10 envisions such a circumstance in the last line of that clause: “If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI”. This is similar to the fallback position provided for in s 323(2) of the 1998 Act, where the extent of the deduction is difficult or costly to determine. In such circumstances, the deduction is 10% of the assessed impairment.
In circumstances where it is difficult or costly to determine the extent of the contribution from the identified pre-existing condition, a deduction of one tenth is appropriate pursuant to s 323(2) of the 1998 Act. That deduction would not be at odds with the available evidence.
Conclusion
For the reasons given above, the MAC will be revoked.
Under the PIRS, Mr Rees has a Median Class of 2 and an aggregate score of 14. This is a whole person impairment of 7%. To that, 2% is added for the effects of treatment under cl 1.32, and a deduction of one tenth is applied, leaving a final whole person impairment of 8%.
The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2145/24 |
Applicant: | BOC Limited |
Respondent: | Jason Rees |
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 Yu Tang Shen and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in 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) |
| Psychological/psychiatric | 20/3/18 | Chapter 11 | 9% | 1/10 | 8% | |
| Total % WPI (the Combined Table values of all sub-totals) | 8% | |||||
0
13
0