BPT v CGM - [2025] NSWPICMP 392

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPICMP 392
Decision Date: 29 May 2025

CaseChat Overview and Summary

In the case of BPT v CGM, the appellant, BPT, sought to appeal a Medical Assessment Certificate (MAC) issued by the respondent, CGM, under the Workplace Injury Management and Workers Compensation Act 1998. The MAC assessed CGM's whole person impairment (WPI) at 22%, stemming from a psychological injury. The appeal centred on the correctness of the MAC, particularly regarding the deduction of one-tenth for a pre-existing condition, the classification of a class 5 impairment concerning employability, and the appropriateness of the deduction itself.

The court had to determine whether the Medical Assessor (MA) correctly assessed the 22% WPI by deducting one-tenth for a pre-existing condition and whether the MA erred in classifying a class 5 impairment in relation to employability. The court also needed to consider whether the MA was justified in deducting one-tenth for the pre-existing condition. The Appeal Panel's role was to review the MA's assessment, not to make its own independent assessment unless there was an error. The court examined the MA's findings, which detailed severe psychological symptoms such as poor concentration, reduced motivation, low energy, and frequent suicidal ideation. These findings were based on CGM's presentation in June 2024 and did not necessarily conflict with her ability to care for her child or engage in other activities.

The court found no error in the assessment of employability, as the MA's detailed findings supported the class 5 impairment classification. However, it identified an error in the deduction for the pre-existing condition. The Appeal Panel made its own assessment of the deduction and determined it to be one-tenth, consistent with the MA's initial assessment. Given that the MAC was confirmed with the corrected deduction, the court ruled that there was no utility in revoking the MAC. Consequently, the MAC was confirmed with the corrected deduction.

The final orders were that the appeal be dismissed, and the MAC be confirmed with the corrected deduction of one-tenth for the pre-existing condition.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.