Campbell v We Help Ourselves

DETERMINATION OF APPEAL PANEL
CITATION:	Campbell v We Help Ourselves [2024] NSWPICMP 185
APPELLANT:	Julie-Ann Campbell
RESPONDENT:	We Help Ourselves
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	28 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) erred with respect to his rating of appellant’s impairment in social and recreational activities by wrongly characterising certain activities as social and recreational activity; whether MA did not consider all relevant evidence with respect to his rating of the appellant’s impairment in social and recreational activities, travel and social functioning; whether MA applied the correct test when making a deduction under section 323(1); Appeal Panel held MA did not make any error with his ratings of the appellant’s permanent impairment in social and recreational activities, travel and social functioning; Appeal Panel held that MA applied incorrect test when determining whether deduction should be made under section 323(1), but that error made no difference to the outcome, as when correct test applied the Appeal Panel would make same deduction as MA made; Held – Medical Assessment Certificate upheld.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 December 2024 Julie-Ann Campbell, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 November 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment on 8 August 2007 with We Help Ourselves, the respondent. She worked as an assistant manager. Due to numerous incidents that occurred in her workplace thereafter she suffered a psychological injury.
At the request of her lawyers, the appellant was examined by psychiatrist Dr Ben Teoh on 9 February 2023. In a report dated 30 March 2023 Dr Teoh advised the appellant’s lawyers that he assessed the appellant had 22% whole person impairment (WPI) from her injury. Relying on that report of Dr Teoh, the appellant claimed compensation from the respondent’s insurer for permanent impairment from her injury.
The respondent’s lawyers then arranged for the appellant to be examined by psychiatrist Dr Nabil Malik on 7 June 2023. In a report dated 28 June 2023 Dr Malik advised that he assessed the appellant had 9% WPI from her injury. Following that, the insurer notified the appellant under s 78 of the 1998 Act that it disputed she was entitled to compensation for permanent impairment from her injury. It provided her with a copy of Dr Malik’s report dated 28 June 2023. It advised her that its reason for disputing her claim was because her permanent impairment was not at least 15% WPI, which s 65A(3) of the Workers Compensation Act1987 required it to be in order for her to be entitled to compensation for permanent impairment.
The appellant then initiated proceedings in the Personal Injury Commission (Commission) seeking determination of her claim. A delegate of the President referred the matter to the Medical Assessor on 12 September 2023 to assess several medical disputes relating to the appellant’s injury including the degree of permanent impairment of the appellant from her injury and whether any proportion of her permanent impairment is due to a pre-existing condition and the extent of that proportion.
The Medical Assessor examined the appellant on 31 October 2023 in order to conduct that assessment and, as mentioned, he issued the MAC on 16 November 2023. In that he certified he assessed the degree of the appellant’s permanent impairment overall was 9% WPI. He further certified that he found a proportion of her permanent impairment was due to a pre-existing condition. He assumed, in accordance with s 323(2) of the 1998 Act, that the proportion of her permanent impairment that was due to a pre-existing condition was one-tenth. Pursuant to s 323(1) he deducted that from the overall degree of her permanent impairment he assessed she had, and certified that the degree of her permanent impairment from her injury was 8% WPI.

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 appellant to undergo a further medical examination. This is because the Appeal Panel came to the view that the appellant had not established either of the grounds for appeal on which she relied, and consequently there was no basis for the Appeal Panel to examine the appellant.[1]
[1] New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33]; Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].

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.

MEDICAL ASSESSMENT CERTIFICATE

The appellant’s appeal relates to, firstly, the Medical Assessor’s ratings of her impairment in the Psychiatric Impairment Rating Scale (PIRS) for social and recreational activities, travel and social functioning and, secondly, the Medical Assessor’s conclusion that a proportion of her permanent impairment was due to a pre-existing condition.
The history the Medical Assessor obtained relevant to the appellant’s pre-existing condition included that her general practitioner in 2002 prescribed her sertraline and noted in his clinical records that she had a history of depression that was sometimes severe with suicidal thoughts. The Medical Assessor also recorded the appellant had postnatal depression around 24 years ago but did not then take antidepressants. The Medical Assessor noted that the appellant started smoking cannabis and drinking excessively and admitted herself into drug and alcohol rehabilitation in 2000.
The Medical Assessor highlighted relevant parts of the medical records concerning the appellant’s past psychiatric illness that were within the brief of documents provided to him with the referral. These included entries on 23 March 2000 when the appellant provided an assurance to her general practitioner that she would not harm herself or others. They included an entry on 13 July 2000 in which her general practitioner recorded the appellant was offered Zoloft and that she did not take it. They included an entry that the appellant had a past history of significant depression. They included an entry on 20 September 2002 when it was noted the appellant had anger and depression and problems with her daughter. They included an entry on 7 November 2002 when she was noted to have “depression ++”. They included this entry on 20 December 2002, “depression ++ -Zoloft”. They included an entry on 8 May 2003 in which she was noted to be depressed and off Zoloft for some time. They also included an entry on 21 October 2004 in which she was noted to have seen a psychiatrist. They included an entry on 21 March 2011 in which she was noted to feel less depressed. They included an entry on 7 August 2012 when she was noted to have a mental health care plan and a “psychotic episode” last year. They included an entry on 18 November 2013 when she presented for a mental health care plan.
The history the Medical Assessor obtained regarding the appellant’s social activities and activities of daily living included that she swims at her local pool daily and finds it soothing to count laps. The Medical Assessor noted that the appellant “potters in the garden and has coffee” and “distracts herself with weeding”. The Medical Assessor noted that the appellant accompanies her husband to a shopping centre and wanders around and has a coffee. The Medical Assessor noted that the appellant described herself as “generally a home body”. The Medical Assessor noted that the appellant and her husband eat out at lunch at different places and eat at a football club every four to six weeks. The Medical Assessor noted that the appellant has not attended a movie or a large social event for years and that Christmas was the last time she spent time with people.
The Medical Assessor noted the appellant reported to him that she previously went to the gym often and swam and socialised often.
The Medical Assessor noted the appellant does not travel interstate or overseas and has travelled from her residence in the Hunter Valley to Newcastle once and also travelled to Sydney once. The Medical Assessor noted that the appellant travels to Warners Bay fortnightly in order to see her psychologist. The Medical Assessor noted that the appellant drives with her husband to anywhere else she goes. The Medical Assessor noted that the appellant feels distracted when driving and has had two car accidents in the last two years.
The Medical Assessor noted that the appellant has regular contact with her son and also with her only close friend. The Medical Assessor noted however that the appellant did not socialise with her son because he has a new partner with children and is busy with his family. The Medical Assessor noted that her only friend is supportive and they speak on the phone at least once a week and try to have coffee. The Medical Assessor noted that the appellant said she will visit her friend every few months and that her husband will accompany her as he enjoys spending time with her friend’s partner.
The Medical Assessor noted that there was a breakdown in the relationship between the appellant’s daughter and her step-daughter, and between her and her daughter whom the appellant last saw at Christmas but previously had been seeing once a fortnight. The Medical Assessor noted that the appellant had not spoken with her daughter for three months and that her daughter had told her she was no longer the mother that she wanted.
The Medical Assessor noted that the appellant talks with her parents on the phone several times a month.
The Medical Assessor rated the appellant’s impairment in the PIRS for social and recreational activities as class 2. In the PIRS rating form within the MAC he provided the following reasons for his rating:
“Ms Campbell has reduced her social activity since the injury. She continues socialising comfortably and regularly with her husband, son and a close friend. Social activity is limited to a small number of people. She regularly attends familiar social venues, coffee, and goes to the local club every four to six weeks for dinner. She has been less motivated for recreation and engages mostly in home-based activities. She swims daily. She is apprehensive about running into people related to her former workplace.”
The Medical Assessor rated the appellant’s impairment in the PIRS for travel also as class 2 and provided the following reasons:
“She can travel without a support person, but only in familiar areas, such as locally. Further afield, she relies on her husband to accompany her.”
The Medical Assessor rated the appellant’s impairment in the PIRS for social functioning also as class 2 and provided the following reasons:
“Ms Campbell has lost some friendships. Her relationships with her family have been strained, particularly her daughters. She feels ashamed about the impact of her
mental state on her relationships. There is no suggestion that her marriage was in danger of separating. Domestic violence predated the injury.”
The Medical Assessor recorded in the MAC the ratings that Dr Teoh had made of the appellant’s impairment in the several PIRS categories. The Appeal Panel observes that Dr Teoh rated the appellant’s impairment in social and recreational activities as class 3, her impairment in social functioning as class 3, and that he rated her impairment in travel as class 2.
The Medical Assessor also recorded in the MAC the ratings Dr Malik had made of the appellant’s impairment in the several PIRS categories. With respect to the PIRS rating that the appellant has challenged in her appeal, the Appeal Panel notes that Dr Malik had rated the appellant’s impairment the same as the Medical Assessor.
The Medical Assessor rated the appellant’s impairment as class 2 in the PIRS for self-care and personal hygiene, class 3 for concentration, persistence and pace, and class 5 for employability. The Medical Assessor noted that the medium of all his scores was 2 and that the aggregate was 16, which converted to 9% WPI.
The Medical Assessor also said in the MAC that the appellant had a pre-existing condition of a major depressive disorder and that this disorder directly contributes to her permanent impairment. He explained his reasons for that finding as follows:
“Ms Campbell has a confirmed history of depression, sometimes severe with suicidal thoughts, coinciding with back pain in 2002 and the prescription of antidepressant medication. Her history of prior depressive episodes increases her vulnerability to subsequent depressive episodes. She has chronic back and ankle pain.”
As said earlier, the Medical Assessor assumed in accordance with s 323(2) for the 1998 Act that the proportion of the appellant’s permanent impairment due to that pre-existing condition was 10% and deducted that in accordance with s 323(1) of the 1998 Act.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the New South Wales Court of Appeal in Ballas v Department of Education (State of New South Wales)[2] (Ballas) held that the activities to be considered in the PIRS for social and recreational activities were limited to activities in which an injured worker’s participated with persons other than family members and families. The appellant submitted that the Medical Assessor when assessing her impairment in this scale considered her interactions with her husband, son and her friend. The appellant submitted that her relationship with her husband, son and friend is relevant only to the PIRS for social functioning.
[2] [2020] NSWCA 86.
The appellant submitted that the history taken by the Medical Assessor was devoid of details as to the social venues she attends and that the conduct in which she engages at the social venues was not detailed by the Medical Assessor.
The appellant submitted that her swimming each day is not relevant to the PIRS for social and recreational activities. The appellant submitted that there is no record of her interacting with others when she swims. The appellant referred to a decision of a differently constituted Appeal Panel to support this submission.
The appellant submitted that her swimming was “within the realm of self-care and personal hygiene”. The appellant referred to a further decision of a differently constituted Appeal Panel in which it was held that worker’s exercise regime was correctly considered in the PIRS for self-care and personal hygiene. The appellant submitted that the Medical Assessor, by considering her daily swimming when assessing her impairment in the PIRS for social and recreational activities, into account an irrelevant consideration and fell into error. The appellant referred to Ballas at [93]-[94] as authority for that submission.
The appellant noted that the history the Medical Assessor obtained included that she does not go anywhere as there is no one for her to impress. The appellant also noted that the history the Medical Assessor obtained included that she has not attended a movie or large social event for years and that the last time she spent time with people was at Christmas. The appellant submitted that she only attends social events with prompting and in the presence of her husband.
The appellant referred to a statement she signed on 12 August 2023 in which she said provided a comprehensive account of her difficulties from her psychiatric injury. The appellant referred specifically to paragraph 23 of that statement in which she said that she only goes to a café when prompted by her husband or her close friend and that when she does so she separates from other people to avoid interaction.
The appellant also referred to a report of psychiatrist Dr Yeung dated 23 February 2023 which described her as being socially withdrawn. The appellant referred to Dr Malik’s report in which he noted that the appellant had anxiety in social places. The appellant referred to the report of Dr Teoh in which he noted she had significant loss of interest in her usual activities and social isolation.
The appellant submitted that evidence was such that the Medical Assessor ought to have rated her impairment in the PIRS for social and recreational activities as class 3.
The appellant submitted that she is unable to travel alone and that is “well documented”. The appellant noted that Dr Teoh obtained a history that she is anxious about driving and often needed her husband to be in the car with her. The appellant noted that Dr Malik obtained a history that she rarely leaves home without her husband and that she can go to familiar places without him but does not like to. The appellant referred to various paragraphs in her statement in which she said that she would leave her house when needed but will limit doing so without her husband and that she did not have the mental fortitude to drive long distances. The appellant submitted that she cannot travel freely and only travels out of necessity. The appellant submitted that her inability to travel has to be considered in the context of her age, gender and cultural norms. With respect to that the appellant noted that she is 58 years of age and has lived in the Newcastle region for 23 years and prior to her injury had demonstrated a proficiency and competency with respect to travel without restriction.
The appellant submitted that her only relationships subsequent to her injury are with her husband, son and her friend. The appellant referred to the history the Medical Assessor obtained that she is estranged from her step-daughter and that she has not spoken with her daughter for three months and that her daughter had told her that she is no longer the mother she wanted. The appellant submitted that her “emotional separation and physical detachment from her children is a severe strain”. The appellant submitted that the history the Medical Assessor obtained indicates she has an inability to form new relationships. The appellant submitted that the evidence indicated that her impairment in social functioning ought to have been rated as class 3.

The appellant submitted that it did not appear that “a formal diagnosis had ever been made by a psychiatrist that she suffered from depression”. The appellant submitted that the basis of the Medical Assessor making a deduction for prior depressive episodes was that these pre-disposed her to a subsequent depressive episode. The appellant submitted that the Medical Assessor did not provide reasons why any pre-existing condition made her impairment from her injury greater. The appellant submitted that a pre-disposition or vulnerability to suffering injury is not sufficient grounds for a deduction under s 323 and referred to State of New South Wales v Hill[3] at [43] to support this submission.
[3] [2018] NSWSC 451.
The appellant submitted that the Medical Assessor did not apply s 323(1) correctly in that the Medical Assessor did not consider, and therefore did not establish, whether her impairment after her workplace injury is greater by reason of any pre-existing condition.
The appellant referred to her having completed a tertiary degree in 2012 which she submitted indicated that she was high functioning and capable of performing work in high stress environments prior to her suffering her work injury.
In reply, the respondent submitted that it was a matter for the clinical judgment of the Medical Assessor, on his evaluation of the evidence, to determine which PIRS categories the activities in which the appellant engages ought to be assessed. The respondent submitted that the strength of the appellant’s relationships with her husband, son and close friend are correctly considered in the PIRS for social functioning but the nature of the activities in which the appellant engages with these people is to be considered in the PIRS for social and recreation activities.
The respondent submitted that the appellant’s submissions with respect to the Medical Assessor’s rating of her impairment in travel in fact provided support for the Medical Assessor’s rating of her impairment in this PIRS as class 2. The respondent submitted that the appellant’s submissions and the history recorded by the Medical Assessor demonstrated that the appellant is capable of travelling without a support person within her local area and that justifies a class 2 rating in the PIRS for travel.
The respondent submitted that the Medical Assessor’s conclusion that the appellant’s relationship with her family was strained, as opposed to severely strained, was open to him on the evidence. The respondent submitted that the Medical Assessor considered the available evidence including the impact of the appellant’s injury on her relationships. The respondent submitted that it was a matter for the Medical Assessor’s clinical judgment whether he considered the evidence constituted a strained or severely strained relationship the appellant had with others.
The respondent submitted that the fact that there was not in the material before the Medical Assessor evidence that the appellant had been formally diagnosed with a pre-existing depression does not mean that the appellant did not have a pre-existing condition. The respondent submitted that it must be inferred from the Medical Assessor’s decision to make a deduction that he considered that the pre-existing condition contributed to the impairment present.

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.

Social and recreational activities

The Appeal Panel considers the Medical Assessor was correct to have regard to the activities in which the appellant engages with her family and her friend when rating the appellant’s impairment in the PIRS for social and recreational activities. A person’s engagement in social activities and recreational activities will often be with those with whom they maintain social relations, that is members of their family and their friends. The conduct of a person in engaging in social activities must be assessed by the Medical Assessor within the PIRS category of social and recreational activities, whereas the conduct of the person in maintaining the relationship with their family and friends must be assessed by the Medical Assessor within the PIRS category of social and functioning. So long as the Medical Assessor’s focus is on the social and recreational activities in which the person is in engaged when assessing the worker’s impairment in social and recreational activities and the Medical Assessor’s focus is on the worker’s relationship with family and friends when assessing the worker’s impairment in social functioning, then there is no error of the type identified in [84]-[94] of Ballas.
Saying that another way, focusing on the case to hand, the activity of the appellant in going to a local club for dinner with her husband and going for coffee with her friend and also accompanying her husband to her friend and her friend’s partner’s residence involves more than one type of conduct. It involves both engaging in social activity with her husband, her friend and her friend’s husband and it also involves her in maintaining her social relations with those persons.
In the Appeal Panel’s view, the Medical Assessor, by considering the appellant’s activity of going out with her husband to dinner, and going for a coffee with a friend, and going with her husband to her friend’s place, when rating the appellant’s impairment in social and recreational activities, has focused on the conduct of the appellant that involves her engaging in social activity, and not her maintaining her social relations. Consequently, the Medical Assessor did not misassign this conduct of the appellant into an incorrect category, and thereby have regard to an irrelevant consideration, when rating the appellant’s impairment in social and recreational activities.
The Appeal Panel also considers that the Medical Assessor correctly considered the appellant’s activity of swimming when rating her impairment in social and recreational activities. The Appeal Panel does not agree with the appellant’s submission that Ballas limits the activity that is to be considered in this PIRS to that in which a person engages only with others.
Ballas concerned a matter in which a delegate of the Registrar of the former Workers Compensation Commission was not satisfied, based on the face of the application for appeal and the submissions the parties had made, that at least one of the grounds for appeal specified in sub-s 327(3) had been made out and consequently the delegate, in accordance with s 327(4), did not allow the appeal against the medical assessment to proceed to an Appeal Panel. Bell P and Payne JA, with Emmett AJA agreeing, said at [100]:
“The ‘social and recreational activities’ scale looks to the injured worker’s degree of participation in such activities. This scale, it was argued, was directed towards an assessment of an injured worker’s interaction with other people, and not a solitary activity such as gambling on poker machines. As was put in the submissions to the Delegate, when one examined the examples that were given for classes 1-5 in Table 11.2 of the Guidelines, all involved some degree of interaction with others, to a greater or lesser degree and on a sliding scale. It was plainly arguable in our opinion that that was the case, and this being so, the requisite level of satisfaction under s327(4), as explained earlier in these reasons, should have been held to have been met.”
Accordingly, what the Court of Appeal held in that case was that it was arguable that conduct of a worker that is to be considered under the PIRS category of social and recreational activities needs to involve the interaction by the worker with another person in order that the conduct can be characterised as correctly falling within the PIRS category of social and recreational activities. The Court of Appeal did not hold that the conduct must involve interaction with others before it is to be considered under that PIRS category but rather because the worker in that case submitted that as part of the appeal against the Medical Assessor in that case, and because that particular submission was arguable, the matter should have proceeded to an Appeal Panel to consider the merit of the submission.
The Appeal Panel observes that paragraph 11.12 of the Guidelines provides descriptors of activities for the various classes available to a Medical Assessor to rate a worker’s impairment in the several PIRS categories. They are examples only. They are not prescriptive and are intended only to provide guidance to a Medical Assessor when determining the extent of the seriousness of a worker’s impairment within each of the PIRS.[4] The Appeal Panel considers that the examples listed within Table 11.2, which is the relevant table for social and recreational activities, are not to be read such that a Medical Assessor when rating a worker’s impairment in social and recreational activity is limited to considering only activity in which a worker engages with others. Activities such as swimming, surfing, running, playing a computer game, and bush walking, are some of numerous recreational activities in which someone may engage without a social interaction with others. Such an activity is, in the Appeal Panel’s view in the nature of recreation and rightfully considered under Table 11.2.[5]
[4] Jenkins v Ambulance Service of NSW [2015] NSWSC 633 at [65].
[5] Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [72]-[73].
The Appeal Panel considers that the appellant swimming daily, which she described as soothing to the Medical Assessor when she counts the laps, is rightfully to be considered has a recreation for her.
The Appeal Panel considers that it was open to the Medical Assessor to rate the appellant’s impairment in social and recreational activities as class 2, that is a mild impairment. The Medical Assessor took account of the fact that the appellant since her injury has been less motivated for recreation and engages mostly in home-based activity and has reduced her social activities since her injury. The Medical Assessor nevertheless correctly took account of the fact that the appellant continues to socialise regularly with her husband and a close friend. The Medical Assessor noted that the appellant goes to a local club with her husband every four to six weeks for dinner. The Medical Assessor noted that the appellant has coffee with her friend at a familiar social venue. The Medical Assessor also had regard to the appellant swimming daily.
In addition to that, the Appeal Panel notes that the appellant goes with her husband to her friend’s place to socialise with her friend and her husband.
The Appeal Panel considers that the Medical Assessor’s rating of the appellant’s impairment based on the matters he highlighted and for the reasons he provided was not glaringly improbable. Further, the Appeal Panel considers it cannot be demonstrated that the Medical Assessor was unaware of relevant factual matters. The Appeal Panel notes that the appellant highlighted certain elements of the history the Medical Assessor obtained such that the appellant said she does not go anywhere and there is no one to impress and that she has not attended a movie for a large number of years, but clearly the Medical Assessor had regard to those factors, as he noted them in the history he obtained, and therefore he weighed them with the other matters he noted in the PIRS rating form to assess the appellant’s impairment in social and recreational activities.
The Appeal Panel also considers it cannot be demonstrated from the reasons the Medical Assessor provided that he misunderstood any matter or that his reasoning process is unsupportable.[6]
[6] Ferguson v State of New South Wales [2017] NSWSC 887 at [23]-[24] siting with approval the reasons of a constituted Appeal Panel in the matter of NSW Police Force v Daniel Wark [2012] NSWWCC MA36.
The Appeal Panel considers that the Medical Assessor applied the correct criteria to assess the appellant’s impairment in social and recreational activities and that his assessment demonstrates no error.

Travel

The Appeal Panel also considers that the Medical Assessor applied the correct criteria to rate the appellant’s impairment in travel as class 2, that is a mild impairment, and that there is no error demonstrated from his rating the appellant’s impairment in this PIRS as such. The fact that the appellant only travels out of necessity and prefers to travel with her husband, is beside the point. What is relevant is that the appellant has the capacity to travel and does so. She travels to familiar areas alone and further afield with her husband, which is what the Medical Assessor detailed.
The Medical Assessor was aware that the appellant is a 58-year-old lady. That is apparent because he said so in the MAC. The Medical Assessor was also aware that the appellant resided in the Hunter region, which is near Newcastle. Again, that is apparent because the Medical Assessor noted in the MAC that the appellant had lived in the Hunter Valley for 24 years. The Appeal Panel considers that those matters do not impact on the Medical Assessor’s rating of the appellant’s impairment in travel.
The Appeal Panel finds that the Medical Assessor applied correct criteria, and this is because he rated the appellant’s impairment by reference to the criteria of Chapter 11 of the Guidelines. The Appeal Panel can discern no error in his rating. He had regard to all relevant matters, there is no demonstrable flaw in his reasoning for his rating.

Social functioning

The Appeal Panel also considers that the Medical Assessor’s rating of the appellant’s impairment in social functioning as class 2 was not in error and was not based on incorrect criteria. The Medical Assessor noted that the appellant had lost friendships and that her relationships with her daughter and step daughter were strained. The Medical Assessor noted that that there was no prospect of the appellant’s marriage being in danger.
The Appeal Panel also observes that, based on the material that was before the Medical Assessor, that the appellant’s relationship with her husband is very close. Further, it is also apparent to the Appeal Panel from the MAC that the appellant maintains a close relationship with her son and also with her one friend.
There needs to be more than a difference of opinion on a subject matter about which reasonable minds might differ in order to establish error on the part of a Medical Assessor.[7]
[7] Parker v Select Civil Pty Ltd [2019] NSWSC 140 at [66]; Coenradi v The GEO Group of Australia Pty Ltd [2022] NSWSC 864 at [136].
Whilst in this matter some Dr Teoh rated the appellant’s impairment as class 3. It may be the case that if other examiners assessed the appellant they also may have leaned to such a rating, but it cannot be said, in the Appeal Panel’s view, that the Medical Assessor’s weighing of the relevant matters so as to rate the appellant’s impairment as class 2 was glaringly improbable.
Further, the Medical Assessor took account of relevant factual matters. He was aware of the appellant’s relationship with her daughters and took account of that. He was aware of the appellant’s relationship with her husband and took account of that. He set out in his history he obtained the details of the appellant’s relationship with her son and also with her close friend. It is apparent from the matters that the Medical Assessor detailed in the MAC, coupled with his noting that the appellant had lost some friendships, that the Medical Assessor was aware that the appellant had a diminished ability to form and maintain relationships. In any event, that factor, in the Appeal Panel’s view, does not detract from the Medical Assessor giving weight to the relationships that the appellant is currently maintaining when assessing that the appellant’s impairment in this PIRS is class 2.
The Appeal Panel also cannot discern any error in the Medical Assessor’s reasoning process with his rating the appellant’s impairment as class 2. He has revealed in his reasons those factors that support a class 2 assessment.

Section 323

The Appeal Panel does not agree with the appellant’s submission to the effect that the Medical Assessor was wrong to find that she had a pre-existing condition. The evidence that the Medical Assessor detailed in the MAC, being the appellant’s prior presentations to her general practitioner, reveal that she suffered recurrent episodes of depression for which she was treated on at least three occasions including taking antidepressants, that she consulted a psychiatrist and that she had therapy with a psychologist over many years.
The appellant is correct in her submission that it is irrelevant that her pre-existing condition pre-disposed her to or made her more vulnerable to suffering a work injury. What is relevant is whether a proportion of her pre-existing condition of depression contributed to the permanent impairment that the Medical Assessor assessed her to have at the time of assessment. The appellant is also correct in her submission that a proportion of her permanent impairment can only be due to her pre-existing condition if the impairment the Medical Assessor assessed her to have is greater by reason of her pre-existing condition.[8]
[8] Ryder v Sundance Bakehouse [2015] NSWSC 52 at [45].
The Medical Assessor’s reasons for deducting a proportion of the appellant’s impairment as a consequence of a pre-existing condition were that “her history of prior depressive episodes increases her vulnerability to subsequent depressive episodes”. The Medical Assessor consequently wrongly focused on the increased risk the appellant had, as a consequence of per-existing condition, of suffering a further depressive episode as a consequence of workplace stressors, rather than, as s 323(1) required, assessing whether the appellant’s pre-existing condition of depression made her permanent impairment from her injury greater.
Whilst the Medical Assessor did not apply the correct test to assess that issue, the Appeal Panel nevertheless considers that that error does not change the outcome. This is because the Appeal Panel considered that the appellant’s recurrent episodes of prior depression, with similar, and at times more severe, symptoms recorded in the contemporaneous notes during these episodes to those elicited by the Medical Assessor, has made her current depression more severe and chronic, and consequently has added to the impairment she otherwise would have were she not to have had prior episodes of depression. This accords with the Medical Assessor’s observation that her “condition has progressed….consistent with chronic stress models of depression.” The Appeal Panel notes that the appellant has had at least three episodes of depression in the past. The Appeal Panel considers that her work stressors resulted in a recurrence of this pre-existing disorder, such that it has now become chronic and more resistant to treatment. In other words, what is occurring now is a further episode of her recurrent depression which is more difficult to treat. What she is experiencing now, including the adverse effect of her illness on her functioning, is made more grave as a consequence of her past psychiatric illness.
Consequently, her pre-existing depression does contribute to a proportion of her current permanent impairment. In the Appeal Panel’s view it is too difficult to determine exactly what that proportion is and hence it must be assumed in accordance with s 323(2) that it is 10%, which is not at odds with the evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on 16 November 2023 should be confirmed.

[2024] NSWPICMP 185

28 March 2024