BPT v CGM

DETERMINATION OF APPEAL PANEL
CITATION:	BPT v CGM [2025] NSWPICMP 392
APPELLANT:	BPT
RESPONDENT:	CGM
APPEAL PANEL
MEMBER:	Richard Perrignon
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Professor Nicholas Glozier
DATE OF DECISION:	29 May 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); whether Medical Assessor (MA) erred in assessing 22% whole person impairment (WPI) as a result of psychological injury after deducting one-tenth for a pre-existing condition; whether MA erred in assessing a class 5 impairment in respect of employability; whether MA erred in deducting one-tenth for a pre-existing condition; Held – no error in respect of the assessment of employability; error in respect of the deduction; Appeal Panel made its own assessment of the deduction; that assessment was one-tenth; no utility in revoking the MAC; MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

[BPT] (the appellant employer) appeals from the Medical Assessment Certificate of Medical Assessor Morris dated 26 June 2024. He assessed a 22% whole person impairment (psychological) as a result of injury on 9 December 2019 (deemed date).
The respondent worker, [CGM], claimed compensation for permanent impairment resulting from psychological injury due to the nature and conditions of her employment from February 2019 (when she commenced employment with the appellant) to December 2019. The injury was described in the referral for assessment as ‘an aggravation of a pre-existing condition’.
Medical Assessor Morris initially assessed a 24% whole person impairment. From this, he deducted one-tenth for a pre-existing persistent depressive disorder, which he found had been present for about 10 years prior to 2019, and for which the worker was still being treated, though it was asymptomatic by the time of injury.
He assessed a class 5 impairment in respect of the Psychiatric Impairment Rating Scale (PIRS), Employability.
The appellant employer alleges error or the application of incorrect criteria in essentially five respects:
(a)    by failing to assess the appropriate deduction by conducting a pre-injury assessment of whole person impairment in accordance with the NSW workers compensation guidelines for the evaluation of permanent impairment (Guidelines) at [11.10], and comparing that with current impairment,
(b)    by failing to give reasons for finding that the amount of the deduction was difficult or costly to determine,
(c)    by failing to find that a deduction of one-tenth was at odds with the evidence,
(d)    by failing to consider evidence to the effect that part of the assessed permanent impairment resulted from factors other than injury, and
(e)    by assessing a class 5 impairment in respect of Employability.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because, to the extent that error was identified, it was capable of correction without the need for further examination.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant employer submits as follows.
(a)    Clause 11.10 of the Guidelines provides that in cases of psychiatric injury, the amount of any deduction for a pre-existing condition is to be calculated as the difference between whole person impairment immediately prior to injury, and current whole person impairment. The Medical Assessor omitted to undertake the statutory task of assessing the two and comparing them. He gave no reasons for the omission.
(b)    The Medical Assessor made a deduction of one-tenth, but made no finding that the amount of the deduction was difficult or costly to determine, and gave no reasons to support such a finding.
(c)    A deduction of one-tenth is at odds with the available evidence, because the Medical Assessor recorded or found that:
(i)in the 10 years prior to 2019 when she was prescribed anti-depressant medication, the worker was not referred to a psychologist or psychological counselling, whereas in fact she had seen a psychiatrist and psychologist prior to injury in 2019: Application to Resolve a Dispute, pages 78 and 79;
(ii)she was diagnosed with chronic fatigue syndrome about eight or nine years ago which made her feel very tired in the mornings, and
(iii)the worker suffered domestic violence in 2018.
(d)    The deduction was also at odds with evidence before the Medical Assessor that:
(i)on 23 June 2018, the worker was taking Zoloft for anxiety (clinical note of Dr Lagaida);
(ii)in 2018 she was in a violent relationship with a male and as a result saw a psychiatrist in May 2019 for anxiety and depression (report of treating psychiatrist Dr Madugula, dated 21 December 2020);
(iii)in January 2020 she was suffering from chronic fatigue syndrome and had previously experienced domestic violence, and saw a psychiatrist twice in 2019 ‘for victim services’ (report of Mr Brown dated 14 January 2020), and
(iv)in August 2020 the worker’s partner was charged with murder following a stabbing during a robbery on 6 December 2019, after which the worker reported a psychological injury to her general practitioner (GP) on 9 December 2019 (Investigation report, 10 August 2020).
(e)    The Medical Assessor failed to have regard to the above evidence in making his assessment.
(f)    The Medical Assessor failed to have regard to other evidence (listed in submissions, paragraph 29) to the effect that the worker was significantly troubled by post-partum depression, had a history of domestic abuse, suffered financial distress, and suffered unrelated anxiety and increased psychological symptoms as a result of the stabbing incident in February 2021 – all of which, the appellant submits, contribute to current permanent impairment.
(g)    With respect to Employability:
(i)the Medical Assessor’s finding that the worker was unable to work at all was inconsistent with her evidence that she was able to care for her child, cousin and siblings, went for outings, walks with friends and attends gymnasium;
(ii)it is also in conflict with
(1)the history taken by psychologist Ms Grasevski on 6 October 2020 that she was independently job seeking, albeit without success;
(2)the report of Dr Potter dated 9 December 2021, who assessed class 3 for Employability, and observed that she was then preoccupied with her first pregnancy, but was not unable to work;
(3)Dr Clark’s report of 5 May 2021, who assessed class 4 on the basis that she was unable to return to “former work”, though acknowledged a “severe impairment”;
(4)Dr Madugula’s report of 30 November 2021 that the worker was unlikely to return to work with the appellant, in circumstances where the doctor did not say she was unable to work at all, and
(5)the clinical notes of Warwick Brown from February to September 2020, which record that she did not want a job, her lawyer told her not to get a job leading to fear that her compensation would be ‘cut off’, and that doing so ‘can stop payments’, that despite loving her job she struggled to go to work by reason of fatigue and her attitude that she hated taking orders from the boss,
(iii)at most, a class 3 impairment is appropriate in respect of Employability, because she would be at work but for her lawyer’s advice not to work, and is capable of reduced hours in employment “that differs from her previous employment”, and
(iv)the assessment of a class 5 impairment amounts to an incorrect application of the Psychiatric Impairment Rating Scale (PIRS) criteria.
In reply, the respondent worker submits as follows with respect to the deduction of one-tenth:
(a)    Medical Assessor Morris issued two Medical Assessment Certificates: the first on 1 August 2022 (in which he found that maximum medical improvement had not been reached) and the second on 26 June 2024, in which he assessed 22% whole person impairment. Both should be read together.
(b)    The appellant submits, in part, that the deduction of one-tenth did not take account of matters which occurred after injury in 2019.
(c)    When both Medical Assessment Certificates are read as a whole, the Medical Assessor was cognisant of the worker’s pre-injury history and issues.
(d)    He diagnosed Major Depressive Disorder which emerged against a background of long-standing treated Persistent Depressive Disorder which was asymptomatic when she commenced work with the employer.
(e)    In making a deduction pursuant to s 323, the Medical Assessor found that the extent of the deduction is difficult or costly to determine. (Submissions, [25].)
(f)    The medical assessment was conducted appropriately. The requirements for the giving of reasons were satisfied. It is not sufficient ground for appeal that a party is disgruntled with the outcome.
(g)    A Medical Assessor is only required to give reasons for a conclusion which he forms, and not for an opinion he has not formed: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [56].
(h)    The appellant does not point to any evidence demonstrating that a deduction of one-tenth was medically contestable.
(i)    Clause 11.10 of the Guidelines is invalid, because it is inconsistent with s 323 of the Workplace Injury Management and Workers Compensation Act 1998.
(j)    The appellant does not point to any evidence, or provide any basis for finding, that the statutory presumption of a one-tenth deduction is displaced.
(k)    The appellant does not challenge the finding in accordance with the worker’s statement evidence at [22] that she began to experience the workplace interactions which caused injury by the middle of 2019. It is not possible to separate the effects of work-related stressors from non-work related stressors at that time.
With respect to stressors which occurred after the date of injury, she submits as follows.
(a)    Even if non-work stressors contribute to permanent impairment, the impairment is assessable if work stressors materially contribute to it.
(b)    The Medical Assessor has assessed whole person impairment caused by injury or materially contributed to by it.
(c)    The causation principles in State Government Insurance Commission v Oakley (1990) 10 MVR 570 apply to permanent impairment assessment.
(d)    The respondent has pointed to no evidence which suggests that stressors occurring after injury constituted a novus actus interveniens.
(e)    Incapacity can have multiple causes: Calman v Commissioner of Police [1999] HCA 60. It does not matter that events after injury contributed to impairment, and no such contribution would warrant a deduction being made.
(f)    Treating psychiatrist Dr Madugula considered, like the Medical Assessor, that the worker was unaffected by the post-injury stabbing and made a full recovery from it.
(g)    A Medical Assessor is not required to engage in an assessment of each and every document before him: Western Local Health District v Chan [2015] NSWSC 1968.
With respect to the assessment of Employability, the respondent submits as follows.
(a) The task of the Medical Assessor was to assess the worker as she presented on the day of examination. The evidence on which the appellant relies pre-dated the assessment by a number of years.
(b) There is no evidence that the worker failed to obtain alternative employment solely because her solicitors told her not to.
Submissions were also invited from the parties on the effect of the recent decision of the Court of Appeal in Southwell v Qantas Airways Limited [2024] NSWSC 497.
The appellant’s supplementary submissions on Southwell may be summarised as follows.
(a) The Medical Assessor erred in finding that the worker’s pre-existing condition was asymptomatic at the time of injury. On the contrary, “the Respondent’s psychological state with respect to her anxiety and depressive symptoms were [sic] not only symptomatic prior to the injury but were being treated”: submissions at [11].
(b) The worker’s pre-existing psychological conditions contributed to a substantial degree to permanent impairment after the workplace injury.
(c) “[B]ut for the pre-existing abnormality/conditions, the degree of impairment resulting from the work injury would not have been as great”: submissions at [13].
(d) The Appeal Panel “ought to assess a much greater deduction than 1/10^th”: submissions at [16].
In reply, the respondent worker submitted that, on the proper application of Southwell, no deduction can be made, “because the impairment has not been contributed to by pre-existing matters”: Submissions at [8]. She relies on the assessment of Dr Oldtree Clark, who made no deduction.

Employability

It is convenient to deal first with the fifth and final ground of appeal: the Medical Assessor’s assessment of Employability.
As the appellant correctly submits, a class 5 impairment in respect of Employability is only available if the worker “cannot work at all”: Guidelines, Table 11.6.
In his PIRS table, the Medical Assessor gave the following reasons for assessing a class 5 impairment – emphasis added:
“Totally impaired. In my opinion, [CGM] is not able to work at all because of the severity of her psychological symptoms including her very poor concentration, reduced motivation, low energy levels and frequent suicidal ideation. She has not worked at all since December 2019.”
His findings that she had very poor concentration, reduced motivation, low energy and frequent suicidal ideation reflect by and large the details recorded by the Medical Assessor under the heading, “Present symptoms”:
“She complains of very low energy and motivation levels and has put her son in daycare five days a week to help her cope. She reports having poor concentration and is easily distracted. She finds it difficult to follow the storylines of movies that she tries to watch with her brother. She finds it difficult to read because of her poor concentration. She feels hopeless and that life is not worth living. She has suicidal thoughts but concerns for her son prevent her from acting on the thoughts. She has no thoughts of harming her son.”
Neither that level of symptoms, nor the finding that the worker cannot work at all, is necessarily inconsistent with an ability to care for a child, the child’s cousin or siblings. The above symptoms demonstrate that the worker’s ability to care for her child is impaired, to the extent that she needs to put her son in daycare five days a week to help her cope.
Similarly, an ability to go for outings, walks with friends or to attend a gymnasium is not necessarily inconsistent with an ability to work, or with having the poor levels of concentration, energy, and motivation which render her unfit for employment.
The fact that the worker was seeking employment unsuccessfully in October 2020 is some evidence that in 2020 she was motivated to work, and was willing to attempt it. It does not prove that she was then capable of employment. Still less does it prove that, when assessed years later in June 2024, she was capable of employment. It was the task of the Medical Assessor to assess her as she presented in June 2024, which he did.
The Medical Assessor was not bound to accept the assessment of any other assessor. He was not bound by Dr Potter’s assessment of a class 3 impairment made in December 2021, or Dr Clark’s assessment of a class 4 impairment in May 2021.
The omission by Dr Madugula on the 30 November 2021 to say that the worker was then incapable of any employment likewise did not bind the Medical Assessor to make any particular assessment in 2024, or at all.
The clinical notes of Warwick Brown from February to September 2020 are not proof of the worker’s ability to undertake employment in 2024, even if they raise a possible motive for the worker not wishing to obtain employment in 2020, or suggest that she did not then want to work. In any event, the fact that she was seeking employment in October 2020 strongly suggests that she was motivated to work, after Mr Brown’s note’s conclude.
We can identify neither demonstrable error nor the application of incorrect criteria in respect of the assessment of a class 5 impairment with respect to Employability. This ground fails.
We turn to consider the remaining grounds of appeal in the order listed above.

Deduction: failure to apply Guidelines at [11.10]

At [7], the Medical Assessor made findings as to diagnosis and causation:
“In my opinion, [CGM] has the psychiatric condition of Persistent Depressive Disorder with anxious distress with persistent major depressive episode. This condition emerged as a result of work-related stressors that [CGM] experienced whilst working as an administration supervisor for [BPT] from February to December 2019.”
With respect to a pre-existing condition, he found as follows:
“This condition emerged against a background of [CGM] having a longstanding treated and relatively asymptomatic Persistent Depressive Disorder.”
At [8e], he explained that finding:
“[CGM] had a pre-existing condition of Persistent Depressive Disorder and was treated with antidepressant medication for symptoms of chronic mild depression for 10 years prior to 2019. At the time her work problems began, she was asymptomatic and was coping well with her work, had an active social life and was involved in a number of recreational activities.”
This was consistent with the following history recorded at [4] under the heading, “Details of any previous … condition”:
“[CGM] confirmed that she had been treated with the antidepressant medication, Lexapro for about 10 years prior to 2019 for chronic mild depression. This condition began in her late teenage years and she was prescribed the medication by her GP. She was not referred to a psychologist and does not remember having psychological counselling over that time. Over this time, she said that she was functioning very well in her work and was very active socially and played a lot of sports and kept very fit. She reported being asymptomatic at the time her work problems began.”
At [11a], he described the treatment, nature and effect of the pre-existing Persistent Depressive Disorder as follows:
“(i) Persistent Depressive Disorder which was treated with the antidepressant medication, Escitalopram. The symptoms were mild and [CGM] reports high levels of occupational and social functioning prior to her work problems beginning in 2019.”
At [11b], he gave the following reasons for finding that the pre-existing condition contributes to current impairment:
“(i) In my opinion, [CGM]’s pre-existing condition would have exacerbated her psychological response to the work stressors that she experienced in 2019 and contributed to her current level of whole person impairment.”
At [11c], he found the extent of the deduction was difficult or costly to determine and so assessed the deductible proportion as one-tenth, also finding that this was not at odds with the evidence.
At [10c], he noted that both Dr Potter and Associate Professor Khalid and had also assessed a deduction of one-tenth on 9 December 2021 and 12 October 2023 respectively. He noted that on 5 May 2021, Dr Oldtree Clark had made no deduction.
Having identified a pre-existing condition, the task of the Medical Assessor was to determine whether it contributed to permanent impairment. He found that it did.

His task was then to assess the extent of the deduction to be made. The appellant is correct in submitting that where, as here, a pre-existing condition is identified, the Guidelines at [11.10] require the deduction to be calculated as the difference between whole person impairment immediately prior to injury and current whole person impairment.
That guideline is not invalid even where if the pre-existing psychiatric condition was asymptomatic: Matheson v Baptistcare NSW & ACT [2025] NSWSC 213 at [35] (Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616 not followed). With respect and to the extent it is necessary, we adopt the reasoning of Basten JA in Matheson.
The MA did not assess pre-injury whole person impairment, as Matheson had not been decided as at the date of his assessment. The guideline at [11.10] nevertheless requires such an assessment. The omission to make it amounts to demonstrable error, requiring that the deduction be set aside, and assessed by the Appeal Panel.
It is unnecessary to consider the further grounds of appeal with respect to the deduction.

Omission to consider impact of non-work related stressors

The appellant alleges that the Medical Assessor failed to take into account evidence of non-work-related stressors, and to exclude from his assessment the impairment that resulted from them. Those stressors were as follows.
(a)    In 2018 she was in a violent relationship with a male and as a result saw a psychiatrist in May 2019 for anxiety and depression (report of treating psychiatrist Dr Madugula, dated 21 December 2020).
(b)    In January 2020 she was suffering from chronic fatigue syndrome and had previously experienced domestic violence, and saw a psychiatrist twice in 2019 ‘for victim services’ (report of Mr Brown dated 14 January 2020).
(c)    In August 2020 the worker’s partner was charged with murder following a stabbing during a robbery on 6 December 2019, after which the worker reported a psychological injury to her GP on 9 December 2018 (Investigation report, 10 August 2020).
(d)    Post-partum depression.
(e)    Financial distress.
(f)    The stabbing incident in February 2021.
With respect to the stabbing incident in early 2021, the Medical Assessor recorded at [4] under the heading “Details of any previous or subsequent accidents, injuries or condition”:
“[CGM] said that in January or February 2021 she was stabbed eight times in the arms and abdomen by a woman who knew her from her previous workplace. She required surgery and was in hospital for eight days. She appeared to have had a normal psychological reaction to this distressing event and, in my opinion, this event did not exacerbate her work-related psychiatric condition.
[CGM] gave birth to a healthy baby boy in September 2021.”
He added at [9] – emphasis added:
“[CGM] was stabbed repeatedly in the arms and abdomen in January or February 2021 which required her to have surgery and hospitalisation for eight days. However, she appeared to have a normal psychological reaction to the stressful event and it did not exacerbate her work-related psychiatric condition.”
Read together, those passages indicate that the MA was satisfied that the stabbing did not give rise to a psychiatric disorder and did not exacerbate the already existing “Persistent Depressive Disorder with anxious distress with persistent major depressive episode” which he found had been caused by work stressors. The submission that he had no regard to the stabbing or its effects is incorrect. No reason is advanced as to why he could not come to the conclusion that he did. The conclusion was reasonably available to him on the evidence. We can identify no error.
In submissions, the appellant relies on an investigation report dated 10 August 2020. That report is before the Appeal Panel. It notes a news report on 9 December 2019 that the worker’s partner had been charged with a murder allegedly committed on 7 December 2019. The investigator notes that the worker alleges that she suffered psychological injury on 9 December 2019.
The referral to the Medical Assessor described the injury as “an aggravation of a pre-existing condition”. It refers to the date of injury as being a “deemed date of injury”. In other words, the injury is deemed to have occurred on 9 December 2019 by operation of section 16 of the Workers Compensation Act 1987. Section 16 provides that where, as here, injury consists in the aggravation of a disease, it is deemed to have happened when incapacity for work resulted.
The appellant does not deny that a psychological injury is deemed to have occurred on 9 December 2019.
It does not point to any medical evidence to the effect that the charges laid against the worker’s partner – assuming in its favour that the investigation report is accurate – played any part in the onset of psychiatric injury, or caused any psychiatric condition or impairment at all. Any submission that they did would amount to mere speculation. It was not necessary for the Medical Assessor to consider evidence that the charges caused injury, a psychiatric disorder, or contributed to impairment, because there was no evidence of that nature to which our attention has been drawn.
Similarly, our attention has been drawn to no medical evidence that injury, any psychiatric condition, or any impairment, was caused or contributed to by post partum depression or financial distress.
With respect to allegation that the Medical Assessor failed to exclude impairment resulting from domestic abuse, regard must be had to the report of treating psychiatrist Dr Madugula dated 21 December 2020. Dr Madugula reported – emphasis added:
‘I have seen her [for the] first time on the 24 the [sic] March 2020 and last reviewed [her] in September 2020. … She is employed with AMS (Aboriginal Medical Services) at Mount Druitt as an Administrator Coordinator since February 2019.
[CGM] presented with symptoms of increased anxiety and sadness of about one year in duration and got worse since December 2019. These symptoms developed in the background of a stressful environment at work. [CGM] alleged that she was bullied, abused and harassed at the AMS since February 2019.”
We interpret that passage to mean that, in March 2020, the appellant presented to Dr Madugula with symptoms of anxiety and sadness which had increased in about March 2019, and deteriorated since December 2019. That was during the period of her employment with the appellant
Later in the same report, Dr Madugula recorded the following history:
“In the past, [CGM] suffered from what seems to be depression and anxiety when she was in high school. In year 10, when [CGM] was about 15-16 years of age, she was started with antidepressant tablet Zoloft (sertraline) which she did not tolerate. She was treated with another antidepressant Tab [sic] Escitalopram 10 mg, which she took for several years, and that was beneficial. In the year 2018, [CGM] was in a violent relationship with a male. As a result of that, she saw a Psychiatrist in May 2019, and at the time she was experiencing increased anxiety and depression. As mentioned above in May 2019, she [CGM] hurt her ankle and she was on reduced hours and received the worker’s comp [sic]. I understand she was seen by a psychiatrist and Escitalopram was stopped, and she was put on antidepressant capsule Venlafaxine XR 150mg. With this medication, [CGM] felt she had marked insomnia hence the venlafaxine XR dose was reduced back to 75 mg of Venlafaxine, and a small dose of tablet Quetiapine was added, gradually increased to 2000 mg at night, which is somewhat effective in reducing insomnia. [CGM] last worked on 6^th December 2019. …”
We interpret that passage to mean, among other things, that:
(a) in May 2019 the appellant consulted a psychiatrist due to symptoms of anxiety and depression resulting from a violent relationship with a male, and
(b) later in 2019, the antidepressant the worker was taking previously, escitalopram, was ceased, Venlafaxine commenced, and increased to 150mg, alongside the prescription of Quetiapine.
This passage indicates that, by mid 2019, the worker was suffering symptoms as a result of a violent relationship, and that around that time her symptoms were not controlled by the medication she had been taking for many years, requiring a change to the medications indicated, which are used to treat more severe conditions.
The passage is consistent with the following history recorded by treating psychologist Mr Brown in his report of 14 January 2020, who on that date was consulted by [CGM] for the first time – emphasis added:
“[CGM] states that she has been on previous medication for approximately 10 years, which started when she was at school. She states that she also suffers from chronic fatigue syndrome (CFS) and has previously experienced domestic violence. She states that she has seen a psychologist for an assessment report previously and saw a psychiatrist twice last year for victim services, who at the time recommended a change in medication to Effexor.”
The history taken by Dr Madugula and Mr Brown suggests that [CGM] continued to suffer psychological symptoms resulting from a violent relationship in 2018 until at least mid 2019, when she consulted a psychiatrist for it – apparently on two occasions – and her medication was adjusted. Though both consultations occurred between February and December 2019 – the period of her employment, which is the period during which the nature and conditions of employment were alleged to have caused psychological injury - the symptoms caused by the violent relationship in 2018 are likely to have pre-dated the commencement of employment in February 2019, because the stressor which caused them occurred in 2018.
It was at least arguable that these symptoms of anxiety and ‘sadness’ (possibly depression), supported a finding that there was, at most, a pre-existing persistent depressive disorder which continued to contribute to permanent impairment. This is in fact the finding that the Medical Assessor made. Even if his reasons did not deal specifically with the effects of the violent relationship in 2018, and for that reason were insufficient, it had no effect on the outcome, because the only finding which the evidence could possibly support was the one in fact made.
With respect to the appellant’s submission that, on 14 January 2020, the worker told Mr Brown that she suffered from chronic fatigue syndrome. Mr Brown did not purport to make any such diagnosis. To make this diagnosis would require medical investigation, which Mr Brown is not qualified to do, and the appellant has not drawn our attention to any medical evidence to support the worker’s suggestion. The contemporaneous GP notes over 2018-2020 make no such diagnosis. Even if we accept that she suffered from such a condition in 2020, there is no evidence that she continues to do so.
In any event, any impairment arising from a chronic fatigue syndrome cannot be rated using the PIRS either to assess a pre-existing or current impairment. It is not a psychiatric condition diagnosable within the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM5). Even if one takes the highly contentious position it is a somatic symptom disorder, that too cannot be rated using the PIRS within the guidelines.

Deduction pursuant to s 323

As the Review Panel has discerned error in the deduction assessed by the Medical Assessor by not undertaking the approach required by paragraph 11.10, the Medical Assessment Certificate may be revoked.
It remains for the Review Panel to assess whether any deduction pursuant to s 323 is available and, if so, its amount. To do so, it must have regard to the principles in Southwell.
In Southwell, the Court of Appeal found that an Appeal Panel had erred in making a deduction for pre-existing degenerative disease of the lumbar spine on the basis that, in the absence of that pre-existing condition, injury in the form of disc rupture and consequent impairment was unlikely to have occurred. The Court found at [48] – emphasis added:
“… s 323(1) requires the assessment to focus upon whether there is any portion or part of the impairment suffered which is due to any pre-existing condition but which is not attributable to the workplace injury. If that is so, there is to be a deduction of the proportion of the whole represented by that part or portion.”
It explained:
“50. Thus, it has been held, in cases such as Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 at [126] (Schmidt J) and Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334 at [52] (Griffith AJ), that what must be determined under s 323 involves, at least, three enquiries:
• Firstly, what the extent of the resulting impairment is.
• Secondly, whether the pre-existing condition contributed to the impairment.
• Thirdly, if it did, what proportion of the impairment was due to the pre-existing condition.”
51. In light of the construction referred to above, however, the formulation of the second of these three enquiries may, in a case such as the present, misdirect consideration, if it were thought that all that had to be established was that the pre-existing condition was causally related in some way to subsequent workplace injury and the impairment suffered as a result of that injury, without any part or portion of that level of impairment being due to the pre-existing condition and not the injury.
The Court found that the findings of the Appeal Panel – emphasis added:
“63. … amount to no more than a conclusion that the pre-existing condition was causally related to the occurrence of the injury and, consequently, the pre-existing condition caused the whole level of impairment that flowed from the injury. The Second Appeal Panel failed to address the required questions or issues, namely:
(1) whether and by what means the pre-existing degenerative condition contributed causally to the actual level of impairment suffered after the August 2017 workplace injury, as opposed to the occurrence of the injury; and
(2) whether, in light of the Panel’s findings in those regards, a portion or part of the level impairment after the workplace injury was due to the pre-existing condition and not due to the injury, even though the precise extent of that portion or part was not required to be determined.
64. In other words, before the Second Appeal Panel could be satisfied that a portion or part of the level of impairment suffered by Mr Southwell was due to the pre-existing condition for the purposes of s 323(1), it was required to conclude that a part or portion was due to the pre-existing condition and not the workplace injury and a part or portion of the level of impairment was due to the workplace injury (alone or together with the pre-existing condition). If the only finding was that no level of impairment would have been suffered but for both the pre-existing condition and the workplace injury, it follows that no part or portion of the level of impairment was due to the pre-existing condition and not the workplace injury and, thus, s 323(1) was not engaged and no deduction was required under that section.
65. The Panel did not consider those issues. This was because the Second Appeal Panel’s analysis in substance addressed the wrong question, stopping at the finding that the workplace injury only occurred because of the pre-existing condition and then proceeding on the basis that any resultant impairment would not have occurred at all, if not for the pre-existing condition.”
The Court added:
“69. …. on the proper construction of s 323 set out above, consideration of the required questions or issues could have been addressed by the Second Appeal Panel:
(1) identifying each of the elements giving rise to the assessment of 15% WPI, namely 10% WPI attributable to the compression surgery, 3% WPI attributable to radiculopathy and 2% WPI due to the impact on his activities of daily living; and
(2) determining whether there was any part or portion of the impairment relevant to each those elements, compared to the total for each assessment, which was solely due to the pre-existing condition and not the workplace injury (alone or together with the pre-existing condition).
70. If there were no evidentiary basis for finding that there was such a part or portion referred to in subpar (2) of the preceding paragraph, then it could not be relevantly concluded that there was ‘any proportion of the impairment … due to any pre-existing condition”.
We take into account, not only the reports of Dr Madugula and Mr Brown, but also the GP notes. They record a consultation for “depression” with a prescription of an antidepressant in November 2017, that the worker was “depressed, anxious, suicidal” in February 2018 following a domestic dispute, and was anxious, stressed and unable to sleep in June 2018 such that her antidepressant was changed. [CGM]’s anxiety ameliorated but she had ongoing insomnia requiring benzodiazepines over 2018. In late December 2018 and January 2019, just prior to starting with her employer she continued to report anxiety and insomnia which warranted antidepressant changes and more benzodiazepines. Though nothing turns on it, in our view she was not “asymptomatic” “at the time her workplace problems began” as recorded by the Medical Assessor. Having regard to the various reports of Dr Madugula and Mr Brown discussed above, the extent to which this was attributable to domestic violence, if at all, is not ascertainable.
Applying the reasoning and method in Southwell, we are satisfied that some portion of overall impairment, and that of some of the individual PIRS categories, notably that of Social functioning, results from the pre-existing Persistent Depressive Disorder, which was symptomatic in the months prior to her employment and up to mid-2019, and not from psychological injury.
We are also satisfied that, but for the pre-existing condition, current impairment would not be as great as it now is. As the Medical Assessor found, the effect of injury was to exacerbate the effects of the pre-existing disorder.
For all those reasons, the pre-existing condition contributes to current impairment, and a deduction under s 323 is warranted.
However it is difficult to ascertain the extent of the deduction. The contemporaneous and other evidence is not sufficient to permit its quantification. In our view, a deduction of one-tenth is not against the weight of the evidence. We have deducted one-tenth.
We make no deduction for chronic fatigue syndrome because there is no medical evidence to support its existence prior to injury, as distinct from the worker’s opinion that she suffered from it. Even if she did suffer from chronic fatigue syndrome prior to injury, it is not accepted as a psychiatric disorder,
In the result, we assess a 22% WPI after deducting one-tenth from 24% and rounding the result. That is the same as Medical Assessor Morris’ assessment, though our reasons have differed at least to some extent. There is no utility in revoking his certificate and replacing it.
For those reasons, the Medical Assessment Certificate of 26 June 2024 is confirmed.

[2025] NSWPICMP 392

29 May 2025