Bullers v State of New South Wales (Illawarra Shoalhaven Local Health District); State of New South Wales (Illawarra Shoalhaven Local Health District) v Bullers
[2025] NSWPICMP 742
•25 September 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Bullers v State of New South Wales (Illawarra Shoalhaven Local Health District); State of New South Wales (Illawarra Shoalhaven Local Health District) v Bullers [2025] NSWPICMP 742 |
| APPELLANT: | Michael Bullers |
| RESPONDENT: | State Of New South Wales (Illawarra Shoalhaven Local Health District) |
| APPELLANT: | State Of New South Wales (Illawarra Shoalhaven Local Health District) |
| RESPONDENT: | Michael Bullers |
| APPEAL PANEL | |
| MEMBER: | Rachel Homan |
| MEDICAL ASSESSOR: | Douglas Andrews |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 25 September 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); admission of fresh evidence; availability of additional relevant information; whether demonstrable error or incorrect application of criteria; where AVL connection failed during medical examination and appellant not asked if he wished to clarify his answers or add information; fresh evidence indicated that history recorded in the MAC was incomplete or inaccurate in several aspects; Held – there was a material denial of procedural fairness in the manner in which the medical examination was conducted; re-examination required; Appeal Panel formed different view with regard to two psychiatric impairment rating scale (PIRS) categories, deduction for proportion of impairment due to pre-existing condition, and uplift for treatment effect; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 December 2023, Michael Bullers (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Samson Frederick Roberts, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 November 2023.The appellant relied on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the availability of additional relevant information (being evidence that was not available to the appellant before the medical assessment appealed against or that could not reasonably have been obtained by the appellant before the medical assessment);
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
On 6 March 2024, the State of New South Wales (Illawarra Shoalhaven Local Health District) (the respondent) filed a cross-appeal. The respondent relied 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 was satisfied that, on the face of both applications, at least one ground of appeal had been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeals were 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) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant was a registered nurse employed by the respondent when on, 1 March 2017, a patient assaulted him at work, causing the appellant to suffer a psychological injury. Liability for the psychological injury was accepted by the respondent’s insurer.
On 24 August 2022, ongoing liability to pay compensation in respect of the injury was disputed by the insurer in a notice issued pursuant to s 78 of the 1998 Act. That decision was maintained following an internal review on 15 November 2022.
On 1 November 2022, the appellant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), relying on an assessment of 22% whole person impairment (WPI) made by Associate Professor Michael Robertson, dated
10 October 2022. Associate Professor Robertson had assessed the appellant as having 24% WPI but applied a 1/10 deduction pursuant to s 323 of the 1998 Act for a pre-existing condition.The insurer disputed liability to pay lump sum compensation on 28 March 2023 on the basis that the appellant’s injury had not resulted in at least 15% WPI as required by s 65A of the 1987 Act. The insurer relied on a report, dated 7 February 2023, by Dr Peter Young, who assessed 22% WPI but applied a 50% deduction pursuant to s 323 of the 1998 Act, leaving 11% WPI.
The appellant commenced proceedings in the Personal Injury Commission (Commission). The injury described in the Application to Resolve a Dispute was:
“Physical assault by a patient at work on 1 March 2017 causing PTSD and an aggravation/exacerbation of Major Depressive Disorder. Both conditions aggravated by subsequent verbal abuse by patient’s family at work on or about 30 August 2018. Has been unable to return to work since.”
On 31 May 2023, a Senior Member of the Commission remitted the matter to the President for referral to a Medical Assessor for an assessment of the degree of permanent impairment.
The Medical Assessor examined the appellant on 27 September 2023 and issued the MAC on 28 November 2023, in which he made an assessment of 7% WPI, to which 2% WPI was added for the effects of treatment, leaving a total of 9% WPI. No deduction was made pursuant to s 323 of the 1998 Act.
Both parties appealed against the MAC. A Medical Appeal Panel (the first Panel) was convened and issued a decision in respect of both appeals on 15 May 2024. The first Panel revoked the MAC and issued a new MAC.
The first Panel found the Medical Assessor made errors with respect to his rating of the appellant’s impairment in two of the psychiatric impairment rating scale (PIRS) categories and also made an error by not making a deduction under s 323 of the 1998 Act.
The first Panel noted that an additional statement, dated 20 December 2023, on which the appellant sought to rely, contained some information that was available to him and could reasonably have been obtained by him before the medical assessment was done. Insofar as the additional statement described what occurred during the Medical Assessor’s examination, the first Panel considered that the information was not relevant and would not lead it to a different conclusion from that reached by the Medical Assessor.
The first Panel noted the appellant’s evidence with regard to a problem with the audiovisual link (AVL) through which the examination was conducted but found the Medical Assessor had not indicated that this had affected his ability to compose a clinical history sufficient to enable him to conduct an assessment of the appellant’s permanent impairment. The history recorded in the MAC was found to be thorough.
The appellant sought judicial review of the first Panel’s decision. On 24 April 2025, the Supreme Court found that the first Panel was obliged to consider whether a failure by the Medical Assessor to give the appellant the opportunity to clarify any of his answers or to add additional information after the AVL connection dropped out amounted to a practical injustice and denial of procedural fairness.
The Court found, that had the first Panel considered this question, there was a realistic possibility that the first Panel would have decided that the material before it was insufficient to determine the appeal and that it was necessary for the appellant to undergo a further medical examination. The Court noted the different assessments calculated by Associate Professor Robertson, Dr Young, the Medical Assessor and the first Panel, and commented that much depended on the history, account of present symptoms and the appellant’s presentation during the assessment.
The Court set aside the first Panel’s decision and MAC and remitted the matter to the President for referral to a differently constituted Appeal Panel. It is pursuant to those orders that the present Panel (the Appeal Panel) has been convened.
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 appellant should undergo a further medical examination.
The appellant sought a re-examination and the Appeal Panel agreed that additional information was required in order to resolve the appeal.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) supplementary statement made by the appellant on 20 December 2023, and
(b) certified copy of the identity page and a stamped page of the appellant’s passport.
The appellant submitted that the supplementary statement was not available or obtainable prior to the relevant assessment and only became relevant once the appellant had attended the medical examination. The statement addressed areas where the Medical Assessor was said to have fallen into error by relying on an incorrect history or inaccurate facts or failed to ask relevant follow-up questions.
The respondent submitted that the evidence relied on by the appellant should not be admitted as it was available and ought to have been obtained and filed by the appellant prior to the assessment.
The admission of fresh evidence on appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance (Ross). In Ross, the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435; McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418; Orr v Holmes (1948) [1948] HCA 16; 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
In Orr v Holmes (1948) 76 CLR, at pp 640-642 the relevant principles were summarised as follows:
"… new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue. The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable.”
It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of “substantive prima facie probative value”. In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:
“...in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
In the supplementary statement, the appellant said he attended the medical examination by AVL from his home computer. The appellant was very anxious prior to the assessment and as a result did not tend to elaborate on things unless asked. The appellant said he often had trouble remembering dates or recalling information when put on the spot. The interview was not completed because the AVL connection failed. At the time that the AVL connection failed, the Medical Assessor was still asking questions about the appellant’s condition. After the connection failed, the appellant waited for about five minutes at which time the Medical Assessor came back online briefly to say he had no further questions and the appointment ended.
The appellant said there were many inaccuracies in the MAC and matters that were not explored or clarified. The statement provided further information with regard to the appellant’s functioning. Amongst other things, the appellant noted that the Medical Assessor referred to “recent travel” to Bali when in fact the trip took place in 2020. A stamped page of the appellant’s passport confirmed that the appellant had entered Indonesia at Ngurah Rai Airport on 24 February 2020.
The Appeal Panel accepts that large parts of the appellant’s supplementary statement contain evidence that could reasonably have been obtained prior to the medical assessment. The Appeal Panel is, however, satisfied that the supplementary statement does contain some evidence that could not have reasonably been obtained before the medical assessment because it pertains to the manner in which the assessment was conducted and matters arising from the assessment.
Not all of that evidence carries the requisite probative value to warrant its admission on appeal. The appellant’s evidence that the Medical Assessor was still asking questions at the time the AVL failed and that when the examination resumed the appellant was not given an opportunity to clarify his answers or add additional information is, however, significant.
This evidence is significant because the appellant has identified aspects of the history recorded by the Medical Assessor that are incomplete or factually inaccurate. In particular, the appellant identified:
(a) the MAC recorded that “He may go out to dinner with his wife or lunch with his wife or daughter”, when in fact this had not occurred for at least 12 months;
(b) the MAC recorded that the appellant had “travelled recently on a holiday to Bali”, when in fact the trip occurred in February / March 2020, the appellant spent a lot of time in his room and remained in the hotel resort most of the time;
(c) the Medical Assessor recorded that the appellant passed time, amongst other things, by watching a movie on the computer, whereas the appellant stated that he could not get through a whole movie before losing concentration and that usually he would stop following the story after 20-30 minutes;
(d) the Medical Assessor referred to clinical notes indicating that the appellant was considered sufficiently well by family to look after the grandchildren, when in fact the appellant was not generally left alone with the young grandkids for extended periods, had the assistance of his daughter and granddaughter, and this was not a regular occurrence;
(e) the Medical Assessor referred to clinical notes indicating that the appellant had been “‘decorating a theatre room” when in fact the appellant had done little more than open the box of speakers because he could not follow the instructions required to set them up properly, and
(f) the Medical Assessor referred to clinical notes indicating that the appellant had been “working on a tinny, gardening and plumbing” whereas the appellant could not recall doing any plumbing and had never finished upgrading the tinny and had sold it because it was too difficult and his concentration span was about 20 minutes.
Had the Medical Assessor not been interrupted by the AVL connection failing and had the appellant been given an opportunity to clarify or expand upon his answers, the history recorded by the Medial Assessor may have been more complete.
While not all of the evidence set out in the supplementary statement is admissible as fresh evidence, the Appeal Panel has determined that the matters referred to above have the potential to change the complexion of the case and the outcome of the assessment. For this reason, the Appeal Panel accepts that the fresh evidence should be received for this limited purpose.
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.
Attached to the Application to Resolve a Dispute was a written statement prepared by the appellant on 24 April 2023.
The appellant stated that on 1 March 2017, an elderly male, whom he later identified as a dementia patient from another ward, came up behind him, tapped him on the shoulder and began to laugh. After discussing the encounter with another nurse, the appellant decided to locate the man and assess whether he required assistance. The man was located in a patient’s room attempting to open a window. When the appellant pulled out his phone to call security, the man grabbed a soap pump and began squirting it at the appellant and his colleague. The appellant then felt a hard punch to the chest and was pushed over the ward clerk’s desk. The applicant recalled an arm head-locking him from behind and beginning to strangle him. The applicant was unable to breathe and began to panic. The appellant could not recall what occurred next and believed he may have lost consciousness for a short period of time.
A workers compensation claim was lodged and the appellant took a few weeks off work. When the appellant first returned to work, he began to suffer from flashbacks of the attack and felt very distressed if he came across patients with an aggressive nature. The appellant began avoiding situations where he would be around or near such patients and had difficulty sleeping due to nightmares of the assault.
On 30 August 2018, the appellant was verbally abused by a patient’s family whilst on the ward. The appellant felt intimidated and distressed and was unable to control his emotions and collapsed. The appellant had not returned to work since that incident.
The appellant described treatment from his general practitioner, psychiatrist, Dr Rafe Pulley, psychologist, Mr Tony Weaver, and a psychiatrist at South Coast Private Hospital, Dr Nalin Wijesinghe, following admissions in October 2021 and May 2022.
The applicant described suffering from recurrent major depressive disorder since he was an adolescent. The condition was generally episodic and treatable with proper medication and psychological treatment. The applicant described two prior suicide attempts and hospital admissions associated with suicidality. The appellant said that in 2015 and 2016 until the workplace injury, his mental health was stable. The appellant was on regular medication and had not had any recent depressive episodes. The appellant was able to carry out all regular domestic duties and was working full-time hours with no issues.
The appellant described his ongoing symptoms.
In his report dated 10 October 2022, A/Prof Robertson took a history that was broadly consistent with the appellant’s statement evidence. With regard to the appellant’s current status, A/Prof Robertson recorded:
“He reports variably severe disturbance of neurovegetative functioning, depressed mood without variation through the day, initial and middle insomnia and variably impaired capacity for enjoyment. His concentration and memory are poor. He is forgetful, inattentive, often has difficulty reading more than a few lines before losing focus and has frequent word finding difficulties. He has difficulties multitasking and impaired mental flexibility.”
In making an assessment under the PIRS categories, A/Prof Roberston relevantly found:
PIRS Category
Class
Reason for Decision
Self Care and Personal Hygiene
3
He is unable to prepare meals and this is usually done by his daughter or wife. He states that he is a "risk in the kitchen" due to his inattention. He will often neglect to shower unless prompted to do so.
Social and Recreational Activities
3
He reports having no social life. He was recently convinced to join the local Freemason's lodge by his neighbour; however, without his neighbour's support, he would not attend the meetings. He would usually asks to leave after 15 to 20 minutes and "is often "stuck there".
Concentration, Persistence and Pace
4
Significant cognitive impairment consistent with a major neurocognitive disorder
Adaptation/Employability
5
He has been unable to work as a result of his chronic depression and cognitive impairment.
In considering whether there ought to be a deduction pursuant to s 323 of the 1998 Act, A/Prof Robertson commented:
“There is a deductible portion under section 323. There is no reliable information to arrive at separate evaluation of PIRS, which compels me to a 1/10 deduction, although it is arguable that this is an inadequate assessment of the contribution of pre-existing factors; however, the Guides do not appear to provide this discretion in the evaluation of WPI. I am aware of several MAP decisions in other matters that have apportioned 2/10ths i.e., 20%.”
The respondent’s medicolegal expert, Dr Peter Young, prepared reports on 26 February 2019, 26 April 2021, 10 May 2022, 8 July 2022, 7 February 2023 and 24 March 2023.
In his report of 10 May 2022, Dr Young noted:
“Mr Bullers reports that since last seen in April 2021, he found his mood deteriorated and he has experienced other symptoms including increased confusion, word finding and other cognitive difficulties.”
Dr Young noted that the appellant had been referred to South Coast Private Hospital for admission, where he underwent a course of 20 treatments of transcranial magnetic stimulation (TMS). As a result, the appellant felt his mood had improved for around two months before deteriorating again. The appellant was booked for admission and a further course of TMS the following week.
Asked for an evaluation of permanent impairment, Dr Young responded:
“In my opinion Mr Bullers does not have impairment in relation to the accepted work-related injury and the impairments he suffers are indicative of the progress of his pre-existing condition.”
Dr Young clarified in his 8 July 2022 report that the appellant’s current symptoms and impairment were indicative of his longstanding chronic recurrent depressive disorder.
In his report, dated 7 February 2023, Dr Young again noted a progression of the appellant’s cognitive impairment, commenting:
“Mr Bullers said that since last seen his symptoms have remained present and have progressed in relation particularly to cognitive impairment. He states that he has found increasing difficulty with driving such that now he only drives unaccompanied to the local pharmacy, and he feels uncomfortable in driving any longer distances due to poor concentration. He reported that he is now no longer able to do woodwork because ‘I can’t work out the measurements’. He reports that he becomes frustrated and is not able to persist at these tasks. He said that in general, his memory has become increasingly impaired, stating: ‘I forget where I put things.’ He said: ‘I can’t do simple finances at home, and I mix up the bills.’ He cited another instance in which he saw the movie Avatar with his daughter twice, two weeks apart, and on the second viewing could not remember scenes from the first.”
Dr Young relevantly made an assessment of the PIRS categories as follows:
PIRS Category
Class
Reason for Decision
Self Care and Personal Hygiene
3
He does little activity around the house during the day except for sometimes putting washing on and occasionally mowing the lawns. He said he looks at Facebook but does not post items, and he does not watch television. He is able to dress himself, however he pays little attention to his appearance and requires prompting to shower. He no longer cooks at home, but he is able to make a sandwich. He occasionally participates in other household duties.
Social and Recreational Activities
3
He has not engaged in any regular social and recreational activities. He said that he has not been to any concerts or other entertainment other than seeing the movie Avatar twice with his daughter recently. He usually does not participate in broader family events. He does not follow sports or other activities.
Concentration, Persistence and Pace
4
Poor memory and generally forgetful. Unable to concentrate to read substantial material or follow complex instructions.
Adaptation/Employability
5
Not employable.
Dr Young disagreed with A/Prof Robertson’s deduction under s 323 of the 1998 Act, stating,
“In my opinion, at least 50% deduction should be applied (as per A/Prof Robertson’s stated opinion) reducing the WPI to 11%.”
In his final report, Dr Young clarified his opinion, stating he considered that the work injury related component of the appellant’s condition had substantially resolved and his present symptoms and impairments were caused by non-work-related illness.
Medical Assessment Certificate
The MAC indicated that the appellant participated in the assessment using Microsoft Teams alone from his home. The Medical Assessor noted that the quality of the connection was satisfactory. It was noted that, at the very end of the assessment, the connection failed. By then, the interview had “essentially completed”.
The Medical Assessor took a history of the assault on 1 March 2017 and the incident around six months later when the appellant was “verballed” by a patient’s daughter.
The appellant was noted to be seeing his general practitioner and psychiatrist, Dr Pulley, on a regular basis. The appellant’s medications were noted and the Medical Assessor recorded that this treatment had remained unchanged for the past 12 months.
The appellant’s current symptoms were documented. The appellant reported being well supported by his wife and children. The appellant did not like going out, was anxious in the presence of noise and around hospitals, and was watchful and wary when out. The appellant’s current moods were “not too bad” and he “occasionally” had a down day or two. The appellant reported diminished appetite, energy and motivation.
The Medical Assessor noted a previous psychiatric history, which included an onset of depression culminating in suicidality and a hospital admission at around 18 years of age. Following treatment, the appellant remained well for approximately five years at which time he again became suicidal. The appellant took an overdose of Panadol and was admitted to Concord Hospital. There was a further suicide attempt leading to admission at Shellharbour Hospital. The appellant’s general practitioner then managed his depression. The appellant was introduced to Dr Pulley who prescribed various medications. Despite the severity of these periods of depression, the Medical Assessor observed that they were not of such a degree as to undermine the appellant’s ability to function.
The appellant was noted to be 64 years old and married. The appellant’s wife worked as a registered nurse and was away for periods of four to six weeks for work. The appellant resided with his 14-year-old daughter, 28-year-old stepdaughter and two grandchildren aged 4 and 3 years.
The Medical Assessor noted that the appellant undertook outdoor maintenance, laundry and sweeping. The appellant estimated that he went out twice a week. The appellant drove his daughter to the shops and school in the local area and attended his general practitioner in Nowra. The appellant was “a little bit nervy” on the road but if he had to drive further could do it. The Medical Assessor stated:
“When asked how he spends his days, Mr Bullers replied that he undertakes household chores, waters the plants, plays on his phone, watches a movie on the computer and plays with his grandchildren. He may go out for dinner with his wife or to lunch with his wife and daughter. He spoke of having travelled recently on a holiday to Bali with his wife. He found crowds anxiety provoking.”
The Medical Assessor recorded that the applicant was “pretty lax” with his personal hygiene and showered a couple of times a week. His diet was consistent. The appellant had limited contact with family, spoke to a neighbour and sometimes the neighbour would come over for a drink.
The Medical Assessor summarised the injury and gave a diagnosis as follows:
“Mr Bullers gave a history of Major Depressive Disorder characterised by several discrete episodes of profound depression with suicidality and the need for hospitalisation in the context of severe symptoms. By the time of the subject circumstances, he was already under the care of his current treating psychiatrist. It is evident that he experienced a relapse of depressive symptoms which have since largely remitted such that by the time of the assessment, he did not meet criteria for a depressive condition.
Mr Bullers presented an account of anxiety symptoms characterised by hypervigilance, avoidance and intrusion symptoms on a background of a serious physical assault. The symptoms were evidently of such prominence that when he was confronted with an aggressive verbal interchange, something which he would have managed effectively in the past, he found himself overwhelmed with anxiety. These symptoms persisted at the time of the assessment. Namely, he continues to experience features sufficient to meet DSM-5 criteria for Posttraumatic Stress Disorder, notwithstanding his account of some improvement.
Although Mr Bullers had in the past suffered from episodes of depressive illness, it is not apparent that he was suffering depressive symptomatology sufficient to meet diagnostic criteria prior to the work events and by his account, there was no evidence of psychiatric impairment.
Although the prospect of cognitive impairment has been identified, formal psychometric testing could not be identified amongst the documents. It is considered imprudent to conclude upon the presence of cognitive impairment as a formal diagnosis or to utilise the DSM-5 diagnosis of Major Neurocognitive Disorder in the absence of comprehensive psychometric testing upon which to attribute symptoms to factors such as cerebrovascular disease or other causes of cognitive and psychiatric symptoms.”
The Medical Assessor referred to the reports of Dr Young, A/Prof Robertson and some of the treating evidence. In particular, the Medical Assessor referred to handwritten clinical notes apparently from a psychiatrist which documented,
“…he was considered sufficiently well by family to mind the children ‘presumably grandchildren’ a circumstance which is also documented in an entry of 29 June 2021. The entry of 15 May 2021 documents that he was ‘decorating a theatre room and working on attending and gardening and plumbing’.”
The Medical Assessor’s scores and reasons with respect to the relevant PIRS categories, were as follows:
PIRS Category
Class
Reason for Decision
Self-care and personal hygiene
2
Mr Bullers stated that he dresses every day but acknowledged that he is “lax” with respect to personal care and he does not shower every day. He participates in household tasks. He eats regularly. His account indicated that whilst impaired, he is not so compromised that he would be unable to live independently and he shares in the household with other family members. His account reflects mild impairment arising from his psychiatric condition
Social and recreational activities
2
Mr Bullers described a reduction in his social and recreational participation. He is reticent to go out alone but will do so if obligated but he does not go out alone to socialise and to involve himself in recreational activities. He will go out with family albeit to a limited degree and has travelled on a holiday with his wife although he found aspects of the experience anxiety provoking. An overall assessment of his level of participation indicates a mild impairment having regard for the breadth of activities in which he has participated notwithstanding his preference to go out in company.
Concentration, persistence and pace
2
Mr Bullers engages in limited activities that demand persistence and pace. Housework represents and activity that may be undertaken at one’s own pace. He stated however that he is able to sustain tasks. He stated that he is able to watch a movie and did not identify deficits in concentration. He stated that he will engage in a conversation. At interview, there were no overt deficits with respect to memory and concentration although Mr Buller’s reported compromised memory. Overall, his account is indicative of mild impairment as was his presentation at interview.
Employability
4
The nature and severity of Mr Bullers’ psychiatric symptomology is such that he is considered severely impaired. He would be unable to sustain more than a day or two of work in a highly supportive environment with little if any contact with the public.
The Medical Assessor said there was no deduction due to previous injury or pre-existing condition or abnormality. The Medical Assessor stated that although the appellant had a past history of major depressive disorder, it was evident that he was not suffering a depressive condition prior to the work injury.
The Medical Assessor added 2% WPI, for the effects of treatment referring to paragraph 1.32 of the Guidelines, explaining:
“For an adjustment for the effects of treatment to be considered in accordance with the Guidelines, effective long-term treatment must have resulted in either a substantial or total elimination of the original degree permanent impairment and, if the treatment is withdrawn, the claimant is likely to revert to the original degree of impairment. Based on the available information an adjustment for the effects of treatment is necessary because the improvement described by Mr Bullers is considered attributable to the treatment provided to him. It is apparent that the improvement has led to a reduction in the severity of his impairment.”
Further medical examination
Medical Assessor Michael Hong of the Appeal Panel conducted a re-examination of the worker on 28 August 2025 and reported to the Appeal Panel. Medical Assessor Hong’s report is extracted below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
M1-W2980/23
In summary, the appellant submits that he was denied procedural fairness as the AVL through which the medical examination was conducted disconnected partly through the interview. The link was disconnected while the Medical Assessor was still asking questions and prior to the appellant being given an opportunity to clarify or provide additional material relevant to the questions asked by the Medical Assessor.
The appellant additionally submitted that the Medical Assessor had misapplied the correct criteria or had fallen into demonstrable error in relation to his assessment of the PIRS categories of:
(a) self-care and personal hygiene;
(b) social and recreational activities;
(c) concentration, persistence and pace, and
(d) employability.
The appellant submitted that the Medical Assessor failed to adequately consider the pre-injury level of functioning and his current functioning when considering the level of impairment.
The appellant submitted that in relation to the category of self-care and personal hygiene, the Medical Assessor erred in finding only a mild (class 2) impairment. The appellant noted that both Dr Young and A/Prof Robertson found a class 3 impairment in this category. The Medical Assessor made similar findings but did not explain why he placed the appellant in class 2.
In relation to the category of social and recreational activities, the appellant submitted that the Medical Assessor did not ask relevant questions that would have elicited relevant information regarding the appellant’s functioning in this category. In particular, the appellant submitted that the Medical Assessor considered a holiday to be relevant to the appellant’s current social and recreational functioning, however, the holiday in question occurred in February 2020. No detail about the holiday itself was obtained. The occurrence of a holiday some three and a half years prior to the date of assessment was not relevant or a proper basis on which to form an opinion. The appellant submitted that it was not open to the Medical Assessor to find a class 2 impairment. The material before the Medical Assessor was more consistent with a class 3 or 4 impairment.
In relation to concentration persistence and pace, the appellant submitted that the Medical Assessor erred in finding a mild class 2 impairment. The Medical Assessor had not identified any circumstances whereby the appellant was able to engage at all with even moderately intellectually demanding tasks. The appellant had identified issues with concentration in his supplementary statement. The appellant also submitted that the Medical Assessor had not engaged with the assessments conducted by Dr Young and A/Prof Robertson, who found significant cognitive impairment consistent with a major neurocognitive disorder.
Finally, the appellant submitted that the Medical Assessor should have found a class 5, as found by A/Prof Robertson and Dr Young in the PIRS category of employability. The Medical Assessor did not refer to the Independent Medical Examinations and did not provide reasons as to why his opinion was different. The appellant had not worked since August 2018 and had not made any progress towards a meaningful return to work impairment in the category of employability. The Medical Assessor had failed to recognise that employability was directed to the question of paid employment and had not indicated what paid employment the appellant would be capable of realistically performing. The Medical Assessor failed to address the multiple factors that indicated that the appellant would not be able to obtain or maintain employment.
In reply, the respondent submitted that the Medical Assessor had taken a thorough history at on the day of the assessment and recorded it in the MAC. The assessments made by the Medical Assessor in the PIRS categories of self-care and personal hygiene and social and recreational activities were open to him on the material.
The respondent submitted that the Medical Assessor correctly undertook an objective clinical assessment of the appellant in order to determine his concentration, persistence and pace. On the totality of the evidence, the Medical Assessor reached a conclusion that was open to him.
With regard to employability, the respondent submitted that the Medical Assessor was not obliged to follow the assessments previously made by A/Prof Robertson or Dr Young and was required to undertake his own assessment based on the appellant’s presentation on the day of the examination. On the basis of that history and the appellant’s presentation, the Medical Assessor concluded that the appellant was capable of working for a day or two per week in a highly supportive environment without contact with the public. The assessment of a class 4 impairment was correct.
M2-W2980/23
In its cross-appeal, the respondent submitted the Medical Assessor erred in finding that no deduction for pre-existing condition or abnormality pursuant to s 323 of the 1998 Act applied.
The respondent submitted that the Medical Assessor failed to give sufficient weight to the serious and chronic nature of the appellant’s pre-existing psychological illness. The respondent submitted that the history available made clear that the appellant had suffered from lifelong depressive episodes with suicidal ideation, which had gone through periods of remission for several years before resurfacing again. The respondent submitted that, at a minimum, a 1/10 deduction ought to have been made for the proportion of impairment that was due to the pre-existing condition, in accordance with s 323 of the 1998 Act.
The respondent additionally submitted that should the Appeal Panel re-examine the appellant and find a higher WPI rating than the 9% WPI assessed by the Medical Assessor, there ought to be no allowance for the effects of treatment as the long term treatment of the appellant’s injury will not have resulted in apparent substantial or total elimination of his permanent impairment.
In reply, the appellant referred to the decisions in Cole v Wenaline Pty Limited [2010] NSWSC 78 and Ryder v Sundance Bakehouse [2015] NSWSC 526 and submitted that it was not sufficient to merely identify a pre-existing condition. It was necessary to explain how the pre-existing condition contributed to the impairment being assessed and explain how the presence of the pre-existing condition had resulted in a greater degree of impairment than would otherwise have been the case.
With regard to the addition of 2% for the effects of treatment, the appellant submitted that the respondent had assumed that, should a higher impairment percentage be assessed, this would by necessity negate a finding that treatment has resulted in ‘substantial or total elimination of the claimant’s permanent impairment’. The appellant submitted that the application and assessment of paragraph 1.32 of the SIRA Guidelines was a matter for the Medical Assessor (and any subsequent the Appeal Panel) to be satisfied of. The fact that the WPI rating might be assessed higher did not automatically negate any reduction in the severity of any impairment attributable to the long-term effects of treatment. It would be a matter for the Appeal Panel to apply the Guidelines should a re-examination occur.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. 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.
Error
Having regard to the contents of the MAC, the appellant’s supplementary statement and the parties’ submissions, the Appeal Panel is satisfied that there was a denial of the natural justice hearing rule in the manner in which the medical assessment was conducted.
The Medical Assessor’s reference to the assessment being “essentially” complete at the time the AVL connection failed, suggested that there were still questions that he had intended to ask. The Appeal Panel is further satisfied that the appellant was denied an opportunity to clarify his answers or add information when the AVL connection failed.
The Appeal Panel finds that this denial of procedural fairness is material as the appellant’s evidence indicates that in several aspects, the assessment was made in reliance on an incomplete or inaccurate factual foundation. The history recorded by the Medical Assessor informed his assessment of the PIRS categories.
Accordingly, the Appeal Panel is satisfied that the MAC contains a demonstrable error. Having found this error, the Appeal Panel determined that a re-examination was required.
Re-examination
The re-examination report of Medical Assessor Hong is extracted below:
“HISTORY RELATING TO THE INJURY
Brief history after the MAC:
Mr Bullers' file noted he has a long history of mental health symptoms, since his teenage years, with low self-esteem on a background of dyslexia, domestic violence and was physically assaulted by an ex-partner. Before the subject injury, he had various diagnoses, including anxiety and depression, and PTSD, and was on long-term psychotropic medications, and had several psychiatric admissions, some due to suicide attempts.
Comment: he said all the history is correct, except PTSD was not diagnosed until after the work injury. He had previous domestic violence from his ex-wife, more than 25 years ago, and no PTSD from that.
There is a history of myocardial infarction, type 2 diabetes, sleep apnoea, aortic aneurysm and stroke on 19 October 2015. He had seen a neurologist, who reportedly does not believe he has Parkinson's disease, and ultimately his recurrent falls were thought to be related to tricyclic antidepressant medication anticholinergic side effects, which improved with cessation of Nortriptyline. There were also concerns regarding deteriorating cognitive functioning, which were thought to be related to vascular disease. The concerns were raised in the context of Mr Bullers making medication error and he was investigated for it in May 2016.
His file noted immediately before the current work injury, he was in consultation with Dr Rafe Pulley, psychiatrist and has been in treatment for several years now, for recurrent Major depressive disorder, previous paranoia (thought to be from delirium, or tricyclic antidepressant medication) and on Venlafaxine 300 mg and Mirtazapine 30 mg.
On specific enquiry, regarding 5 May 2016 entry in his GP records, Ms Sorcha Conlan (he said he does not know who she is), wrote Mr Bullers has psychological symptoms, a situation at work, poor performance at work, irritability, inappropriate behaviour under stress, accused of faking observation, appeared to have developed since the stroke, and work requested an assessment for fitness to work. Letter to Dr Pulley, and he may need to be reported to the Nurses' Board.
Comment: he said after the stroke, he could not focus as well, and felt "off". He said he was not reported to the Board, and his employer investigated, for a few mistakes he made, and then he was back at work.
He was seen by Dr Katie French, Geriatrician twice in 2022, who wrote the neurologist does not believe he has Parkinson's disease.
In terms of work stress, with date of injury 1 March 2017, Mr Bullers confirmed the work injury all started in 2017. He reported he was attacked by a patient with dementia in the nurses' station, and was off work for 2 months. He was struck in his chest and choked, and has no physical injuries now.
On the first day he returned to work, he was verbally abused by a patient and was off work again in August 2018.
Since assessment by Dr Samson Roberts in 2023, he said he is worse, he does not go out anymore. He used to go to Freemasons and not now, but he is not sure when he last attended. He used to do shopping and now, he mostly does Click and Collect. He buys the groceries online, drives and picks up the groceries in the past 8 months. He cannot identify any reason for this change. He said he can go to the local shops to buy some small items, e.g. milk, which is 5 minutes drive on his own. There is no restriction on his driver's licence. The longest he can drive, he said is to Sydney from Nowra, a 2.5 hours trip without stopping, he said on his own, but prefers his wife as a passenger. He drops off his wife to the airport, and goes to pick her up from the airport regularly, as she works in Perth.
Physically, he said he has a cardiac disorder and is okay otherwise. His blood sugar level is ok since metformin increased to 500 mg morning and night. He adheres to a diabetic diet and avoids sugar, and said he watches his diet. He exercises "as much as I can", by doing gardening, but it takes 2 days instead of half day, due to shortness of breath and fatigue, which he attributed to his heart condition. He said he can walk 500 metres and then becomes short of breath.
Present treatment:
Mr Bullers continues to consult Dr Pulley, psychiatrist every 3 months. He has not consulted a psychologist for long time, and certainly not in 2025. He thinks his last psychiatric admission was in 2021.
In terms of medication changes after Dr Roberts' assessment, Mr Bullers’ metformin was increased to 500 mg morning and night, Venlafaxine reduced to 150 mg due to side effects (he said he is less irritable on 150 mg than 225 mg), and Olanzapine is ceased, but he does not know when. He can sleep without Olanzapine, as he uses Melatonin as needed for sleep.
Mr Bullers consults Dr Katie French, Geriatrician every six months, and they have a discussion and started treatment for dementia in the last six months. I confirmed with him that he has had psychometric testing done before and after taking Memantine, and the Memantine will continue because his cognitive function has improved on testing, since it was started.
Present symptoms:
Mr Bullers has few side effects with less psychotropic medications, and said his depression is "stable". He said anxiety is higher on less medication. He said he can sleep fine with Melatonin. He has flashbacks and nightmares related to work assault.
Irritability is not a significant problem now. He said he has frustration rather than being irritable.
Mr Bullers’ anxiety symptoms are triggered by crowded places and no other specific situations.
In terms of weight changes in 2025, Mr Bullers reported it has been stable, and is around 105-106kg. His file noted he was 106 in 2018 and in 2021.
He had suicidal ideation and not now, or only rarely.
He described having reduced memory and concentration, and this is better with Memantine and since on reduced psychotropic medications. He said he could watch movies all the way previously, now only 30-45 minutes at a time, then he gets up and walks around. Recently, he watched PT109, an old movie related to patrol boats in WWII, when JFK was in the Navy before he became the president, and he can remember the story line well. He recalled JFK started on a naval cargo ship, then moved to PT section to see action in the war, and he built a crew up, they fixed the boat and did patrolling and did missions, but was sunk and stranded on an island, and he planned to swim to the shipping lane to get help, then some islanders found them and was rescued by the Americans. It was a black and white movie. He discussed other movies of the same era, related to WWII.
Details of any previous or subsequent accidents, injuries or condition:
In terms of past history, Mr Bullers said that he has always had some depression and was first diagnosed in his 20s, but despite that, he could socialise and work. He said that Venlafaxine was holding his depression nicely. I confirmed without antidepressant, Mr Bullers’ depression would come back, he would not be able to socialise as well, he would have suicidal thoughts at times, and had ended up in hospital for suicide attempts, and would not be able to work because he would be in hospital.
We discussed his mental state in 2016, and he said that at the time, he enjoyed going out socialising. He visited his brother-in-law in Newcastle and also his step-father. He enjoyed boating and fishing. He still has the boat, but said that the last time he took it out was two years ago, as he has a rotten wood piece where the anchor is detached, so he cannot take it out. Mr Bullers is trying to repair it, but it has been 18 months, and he said he has no motivation to get it done.
Social activities/ADL:
Mr Bullers is 66 years old and living with his 16-year-old daughter.
His wife is a nurse and working in Western Australia mines and has been away for a few weeks. She is not be expected back until December 2025. He said that she was flying more regularly, but due to the increased cost of the flights, she only comes back every few months now. His wife lives with a step-daughter in Perth.
He said they have been together for 18 years and have one daughter, and he has four step-daughters.
Mr Bullers stays at home most of the time, and does washing, cleaning and sometimes cooks. He said his wife is away, so he cooks now, and he makes spaghetti Bolognese, nachos, banger and mash, chicken stir fry, and other simple foods. He does less barbeques during winter, but will do it 1-2 times per week in summer. His 2 step daughters and grandchildren come over, with around 10 people.
He has a good friend, a neighbour, and they have a beer in the backyard under the pergola, again this is more in summer. His friends helped him building a decking for the pool and was coming more regularly, otherwise only every couple of weeks. He visits his neighbour more often, a couple of times a week, and at his friend's home, they drink coffee or beer and chat, sometimes they have a meal at home.
Mr Bullers has few friends. He was going to Freemason gatherings, but ceased after Dr Samson Roberts' assessment. He thinks in 2025, he may have gone, but could not be sure. He said they had nibbles and chat, catch up, then the ritual meeting goes for 30 to 120 minutes, depending on how many issues. After the meeting, they sit and eat a meal, with around 10-15 people each time in his mother lodge. The meetings are monthly, but he does not go to all of them. Sometimes they visit another lodge, which could be 20-30 people. He does not go to big ones with 200 people.
He showers every 3-4 days. He washes his hands, face and feet daily. He showers if he goes out, e.g. appointments and shopping, but he does not go out much. He changes into clean clothes regularly and shaves intermittently. I confirmed with him, he will shower without prompting.
Mr Bullers Facetimes his wife daily and she asks if he has had a shower, or shaved. Without being asked, he will do it too.
On Friday, he drops her daughter off at her swimming.
He has never been one to read books and has dyslexia. He listens to audiobooks sometimes, and listens to 45 minutes short stories, but does not listen to long books.
Mr Bullers watches YouTube videos stories, e.g. Homeowner association conflicts in the USA, or shows about police body cam footage.
I asked about trips away, Mr Bullers reported going to Bali, and said it was good, but it was difficult getting around due to too much walking. He went to the nearby zoo, theme park, beach, and shopping. He went with his wife in 2020, not "recently" as recorded by Dr Samson Roberts in his 2023 report. He said his wife and daughter went to Bali without him at other times.
He drove up to Queensland with his wife and children for a trip, 4 years ago, and he went to the theme park, the children took rides and he sat in a central area and had coffee. He went to some shows in the theme park. There have been no other travel or trips away since the subject injury.
When he goes shopping, he will go in and out quickly.
We have also discussed his statement for this appeal, and I confirmed that, in fact, he does not need prompting, because when his wife is away, he knows to shower when he goes out, but on other days, he will simply wash his hands, feet, and face without a full shower and change to clean clothes. He said he has been cooking again. I also confirmed with him, that he had been to the Freemason. He cannot remember when he last went and said that he had been to one where he went on for two hours, plus socialisation before and after the meeting, and also went to visit other lodges as well.
FINDINGS ON EXAMINATION
Mr Bullers was assessed by video. He was at home during the assessment. He said his daughter was at TAFE doing year 10 today and he dropped her off in the morning.
He was assessed for 1 hour 5 minutes. The AV link worked well.
Mr Bullers was bespectacled.
He engaged well with the assessment process. Mr Bullers struggled with word-finding difficulties at times, and generally spoke well. There was no psychomotor slowing or abnormal movements.
He was mildly restricted in his affect and reactivity. He smiled and laughed briefly. He spoke spontaneously and readily. He was not thought disordered.
He was somewhat slow, without major cognitive difficulties. He remained focused during the assessment and there were no set-shifting difficulties and he remained on topic.
Before I completed the assessment, I asked him for additional information that he wanted to add and he had no specific comments to make.
File review:
Dr French provided two reports, 31 August 2022, and noted concern regarding Mr Bullers having recurrent falls and cognitive decline. He was living by himself at the time because his daughter and wife were having a holiday in Bali. In other reports, there was concern about anticholinergic side effects from the tricyclic antidepressant medication, and Nortriptyline was later stopped. He had a reduction in short-term memory, particularly in the last four months, and lost track of time. He had sepsis and delirium about two years ago and a history of stroke. In the further review, 21 September 2022, Dr French said that she cannot exclude underlying neurodegenerative disease contributing to his cognitive issue. This is also likely clouded by multiple psychiatric medication side effects, and recent changes. More likely is vascular cognitive impairment on a background with significant cardiovascular history.
DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
There was a pre-existing condition, which was a recurrent Major depressive disorder.
The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
Mr Bullers’ pre-existing condition contributed to his current impairment, because his current psychiatric impairment would not have been as great, had he not had a life-long history of recurrent Major depressive disorder. There were possible pre-existing symptomatic impairments with irritability affecting work, mood and cognitive changes and work performance issues identified, not long before the subject injury. More than eight years have passed since the injury, and it is not possible now to determine his precise level of pre-injury impairment.
The extent of the deduction is difficult and/or costly to determine, so in applying the provisions of s.323(2), the Panel assessed the deductible proportion as one-tenth for a pre-existing injury. This is not at odds with the available evidence.
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-care and personal hygiene | 2 | Mr Bullers has a stable weight, he cooks, eats regularly and has a healthy diet. He showers at a sufficient level and cleans himself on other days, and he is capable of independent living without regular support, and does not need prompting with self-care. | |||||||||
| Social and recreational activities | 3 | He described having occasional social recreational activities with his family and one friend, and they visit each other and he enjoys catching up over a meal and drinks. He no longer goes to Freemason meetings. He needs a support person in social and recreational activities. He also enjoys solitary activities. | |||||||||
| Travel | 2 | Mr Bullers is anxious and avoids crowded places, and can drive long distances on his own. | |||||||||
| Social functioning | 2 | Mr Bullers’ relationship with his wife and children is good overall. He looks after his daughter well. He is anxious and socially avoidant, and ceased contact with most of his friends. The relationship with his general family is reasonable. | |||||||||
| Concentration, persistence and pace | 2 | Mr Bullers reported having reduced concentration. He has regular intellectually demanding tasks for up to 30 minutes (watching documentaries, movies and cooking), but has not completed repairing his boat due to motivation difficulties. His concentration has been better since Memantine. | |||||||||
| Employability | 5 | Mr Bullers has not worked since the subject injury and his anxieties, interpersonal sensitivity and general avoidant behaviour, impact on his capacity to work. He has no work capacity. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 2 | 3 | 5 | =2 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| + | + | + | + | + | 16 | 9 | |||||
Treatment effects
He has not gained substantial elimination of impairment with treatment. He was worse on a higher dose of Venlafaxine and it was reduced. He continues to describe chronic psychiatric impairment despite long-term treatment. Memantine is not a psychiatric medication and is used for treatment of dementia.
0%
Pre-existing injury
One-tenth
Final WPI
8
Self-care and personal hygiene
The Appeal Panel adopts Medical Assessor Hong’s assessment of a class 2 impairment in the category of self-care and personal hygiene.
Table 11.1 of the Guidelines provides:
Class 2
Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3
Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.
The Appeal Panel has noted that both Dr Young and A/Prof Robertson found a class 3 impairment in this category.
At the time of the re-examination, however, the appellant confirmed that while he does receive support from family, he is able to live independently.
For example, although the appellant’s wife asks him if he has showered and shaved when they communicate through Facetime, the appellant confirmed that he showered every three to four days and washed his hands, face and feet daily. The appellant said he showered if going out, changed into clean clothes regularly and shaved intermittently. The appellant confirmed that he would shower without prompting.
Similarly, the appellant told Medical Assessor Hong that he cooked simple meals when his wife was away. In summer, he would barbeque one to two times per week. The appellant told Medical Assessor Hong that he did the washing and cleaned.
The Appeal Panel notes that the information elicited during the re-examination and Medical Assessor Hong’s assessment in this category are broadly consistent with what was recorded by the Medical Assessor.
The Appeal Panel accepts that the appellant’s functioning in this category is impaired but finds that it is a mild impairment, most consistent with class 2.
Social and recreational activities
The appellant submits that his functioning in this category is most consistent with a class 3 or 4 impairment.
Table 11.2 of the Guidelines provides:
Class 2
Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).
Class 3
Moderate impairment: Rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.
Class 4
Severe impairment: Never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
The appellant told Medical Assessor Hong that he mostly stayed at home and had few friends. The appellant was no longer attending Freemason’s gatherings at the time of the re-examination. He did, however, have a particular friendship with a neighbour and continued to see him a few times a week for a drink or meal, either at the appellant’s home or the neighbour’s home. The information given to Medical Assessor Hong indicated that the appellant needed a support person in social and recreational activities.
The Appeal Panel does not accept that the appellant has a severe impairment in this category. The appellant does occasionally leave his place of residence for social and recreational purposes and was, until this year, attending Freemason’s gatherings with the support of his neighbour, even if though he was not actively involved.
The Appeal Panel considers the appellant’s impairment is most consistent with class 3 in this category and is greater than the class 2 impairment assigned by the Medical Assessor. The assessment made by Medical Assessor Hong is also consistent with the assessments of both A/Prof Robertson and Dr Young.
Concentration, persistence and pace
The appellant submitted that the Medical Assessor erred in finding a mild class 2 impairment in this category. The appellant submitted that the Medical Assessor had not identified any circumstances whereby the appellant was able to engage with even moderately intellectually demanding tasks and had not engaged with the assessments of Dr Young and A/Prof Robertson.
Table 11.5 of the Guidelines provides:
Class 2
Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3
Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
Medical Assessor Hong found that the appellant was able to engage in intellectually demanding tasks including watching movies, YouTube videos, listening to short stories on audiobooks and cooking for up to approximately 30 minutes but had experienced diminished concentration and persistence since the injury.
The appellant was never much of a reader and reported dyslexia, which could be expected to impact upon his ability to follow written instructions, for example, in relation to setting up a home theatre.
Medical Assessor Hong observed that the appellant was somewhat slow but did not demonstrate major cognitive difficulties during the re-examination. He remained focused and on topic.
The Appeal Panel notes the difficulties with memory and cognitive function observed by A/Prof Robertson and Dr Young, before the appellant was prescribed dementia medication. The appellant told Medical Assessor Hong that following psychometric testing he had been diagnosed with dementia or major neurocognitive disorder. The appellant’s memory and concentration had, however, improved since commencing the Memantine.
The Appeal Panel finds that the dementia diagnosis indicates the appellant has a separate neurological condition, which is not assessable as part of the current medical dispute. The Appeal Panel’s task is to consider the impairment resulting from the accepted psychological injury, being post-traumatic stress disorder and an aggravation or exacerbation of the pre-existing major depressive disorder. There is no evidence that the dementia diagnosis is causally related to the accepted work injury or that the appellant’s post-traumatic stress disorder or major depressive disorder have been made worse by the dementia.
After carefully considering the information given by the applicant regarding his pre-and post-injury functioning, the Appeal Panel considers the assessment made by Medical Assessor Hong constitutes a reliable evaluation of impairment resulting from the accepted injury.
The Appeal Panel accepts that a class 2 or mild impairment is indicated. While this is lower than the class 3 assessments made by both A/Prof Robertson and Dr Young, this could be explained by the presence of undiagnosed and untreated dementia at the time of those assessments. A moderate impairment was not demonstrated at the time of Medical Assessor Hong’s re-examination.
Employability
The appellant submitted that the Medical Assessor should have found a class 5 impairment in the PIRS category of employability, as found by A/Prof Robertson and Dr Young. The appellant noted that he had not worked since August 2018 and had not made any progress towards a meaningful return to work.
Table 11.6 of the Guidelines provides:
Class 4
Severe impairment: Cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.
Class 5
Totally impaired: Cannot work at all.
Medical Assessor Hong found that the appellant’s anxieties, interpersonal sensitivity and general avoidant behaviour, impacted on his capacity to work, leaving him with no work capacity.
The Appeal Panel agrees that this assessment is consistent with the other material before the Medical Assessor and a class 5 total impairment in this category is appropriate.
Other PIRS categories
The Appeal Panel notes that Medical Assessor Hong undertook an assessment of all of the PIRS categories on the basis that the denial of procedural fairness found by the Appeal Panel potentially impacted all aspects of the Medical Assessor’s assessment. Medical Assessor Hong’s assessments in the remaining PIRS categories did not differ from the Medical Assessor’s assessments in those categories. In those circumstances and noting that no submissions were made by the parties to suggest any error in the Medical Assessor’s approach to those categories, the Appeal Panel finds no basis upon which to interfere with those assessments.
Section 323 deduction
In its cross-appeal, the respondent submitted that the Medical Assessor also erred in making no deduction pursuant to s 323 of the 1998 Act.
Section 323 of the 1998 Act provides:
“323 Deduction for previous injury or pre-existing condition or abnormality
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note –So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.
(4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Ltd [2010] NSWSC 78 where Schmidt J said:
“The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
... as was discussed in the authorities, an earlier injury which was asymptomatic, may or may not contribute to the impairment which results from a second injury. That is a matter of fact to be assessed on the evidence led in each case.
…What must be determined on the evidence is whether any proportion of the permanent impairment present after the second injury was due to the earlier injury.”
In Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365, her Honour confirmed:
“As discussed in Cole v Wenaline Pty Limited at [30], in the case of a workplace injury caused by an exacerbation or acceleration of a pre-existing condition, what must be determined by a medical specialist under s 323 is:
• 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.”
In Ryder v Sundance Bakehouse [2015] NSWSC 526, Campbell J observed:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
The Appeal Panel accepts that the appellant had a history of recurrent major depressive disorder. There are some indications that the condition may have been symptomatic prior to the workplace injury although the Appeal Panel accepts that the appellant was able generally to continue with employment and his usual level of functioning. The appellant was receiving treatment for the condition and under the care of Dr Pulley at the time of the injury. While the impairments resulting from post-traumatic stress disorder are new, the Appeal Panel finds that the impairments resulting from the appellant’s depressive symptoms would not have been as great were it not for the pre-existing condition. Consequently, a proportion of the appellant’s permanent impairment is due to the pre-existing condition.
The Appeal Panel agrees that the extent of a deduction is difficult and/or costly to determine and that 1/10 deduction is not at odds with the available evidence. The Appeal Panel adopts Medical Assessor Hong’s finding that a 1/10 deduction applies pursuant to s 323 of the 1998 Act.
Effects of treatment
Paragraph 1.32 of the Guidelines states:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart.”
Paragraph 11.8 of the Guidelines further states:
“Consider the effects of medication, treatment and rehabilitation to date. Is the condition stable? Is treatment likely to change? Are symptoms likely to improve? If the injured worker declines treatment, this should not affect the estimate of permanent impairment. The psychiatrist may make a comment in the report about the likely effect of treatment or the reasons for refusal of treatment.”
The Appeal Panel notes that Medical Assessor Hong has considered that there is no evidence to permit the addition of a treatment uplift in accordance with the Guidelines. In the Appeal Panel’s view, Medical Assessor Hong’s findings are consistent with the other available evidence.
Conclusion
In view of the findings above, the Appeal Panel has determined that the MAC issued on
28 November 2023 should be revoked, and a new MAC should be issued. 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: | W2980/23 |
Applicant: | Michael Bullers |
Respondent: | State Of New South Wales (Illawarra Shoalhaven Local Health District) |
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 Samson Frederick Roberts 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) |
| Psychiatric / psychological | 1/3/2017 | Chapter 11 | - | 9% | 1/10 | 8% |
| Total % WPI | 8% | |||||
0
8
0