City of Canada Bay Council v Nounnis

DETERMINATION OF APPEAL PANEL
CITATION:	City of Canada Bay Council v Nounnis [2023] NSWPICMP 61
APPELLANT:	City of Canada Bay Council
RESPONDENT:	Elesha Nounnis
Appeal Panel
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	28 February 2023
CATCHWORDS:	wORKERS cOMPENSATION - Assessment of a psychiatric injury; appellant employer submitted that Medical Assessor (MA) exceeded his jurisdiction in considering events outside the referral; that the MA assessed an incorrect whole person impairment (WPI) because he took into account incidents that ought not have been taken into account; that MA failed to assess the correct WPI as he failed to reduce the impairment for pre-existing condition and a subsequent condition; Held – Panel confirmed the Medical Assessment Certificate as any error did not lead to a different result.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 December 2022 City of Canada Bay Council (the appellant) made an application to appeal against a medical assessment to the President of the Personal Injury Commission (Commission). The medical assessment was made by Medical Assessor Michael Hong and issued on 4 November 2022.
The respondent to the appeal is Elesha Nounnis (Ms Nounnis).
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the Medical Assessment Certificate (MAC) contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 April 2016 reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Nounnis developed a primary psychological injury in the course of his employment with the appellant as a childcare centre coordinator.
Ms Nounnis commenced proceedings in the Commission claiming 22% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 28 August 2019.
In a Certificate of Determination – Consent Orders (COD) dated 6 May 2022 Member Snell determined:
“1.     The Application to Resolve a Dispute is amended in the ‘Injury Details’ to add an allegation of an aggravation of pre-existing migraine disease and consequential cerebellar ischaemic stroke as a result of the pleaded psychological injury that occurred on 28 August 2019 and in the alternative a consequential condition of an aggravation of pre-existing migraine disease and consequential cerebellar ischaemic stroke;
2.     Award for the respondent in respect of the allegation of aggravation of pre-existing migraine disease and consequential cerebellar ischaemic stroke as a result of the pleaded psychological injury that occurred on 28 August 2019 and in the alternative a consequential condition of an aggravation of pre-existing migraine disease and consequential cerebellar ischaemic stroke referred to in Order 1 above;
3. The respondent agrees to pay the applicant weekly compensation in the sum of $1,028.57 per week from 1 September 2020 to 6 May 2022 (agreed to total $90,000) in accordance with s 36 and s 37 of the Workers Compensation Act 1987;
4.     Award for the respondent in respect of any claim for weekly compensation payable from 5 January 2020 to 31 August 2020;
5. The claim for medical and related treatment expenses payable under s 60 of the Workers Compensation Act 1987 is discontinued, and I dispense with the requirement to lodge and serve notice of discontinuance relevant to this component of the applicant’s claim;
6.      The applicant’s claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting primary psychological injury sustained by the applicant in the course of her employment with the respondent, with deemed date of injury of
28 August 2019 (sic). The documents to be provided to the Medical Assessor together with this Certificate of Determination – Consent Orders are
a)the Application to Resolve a Dispute with annexures;
b)the Reply with annexures;
c)the Application to Admit Late Documents dated 27 April 2022 with annexures lodged on behalf of the applicant;
d)the Application to Admit Late Documents dated 28 April 2022 with annexures lodged of behalf of the respondent;
e)the Application to Admit Late Documents with annexures to be lodged on behalf of the applicant in accordance with my Direction dated today, and
f)the Application to Admit Late Documents with annexures to be lodged of behalf of the respondent in accordance with my Direction dated today.
Notations
A.   The applicant admits and agrees that upon payment of the weekly compensation referred to in Order 3 above she has received her full entitlement to weekly compensation.”
The matter was referred to the Medical Assessor on 6 September 2022 for assessment of WPI of Ms Nounnis’ psychological injury deemed to have occurred on 28 August 2019.
The Medical Assessor examined Ms Nounnis on 25 October 2022 through video link. The Medical Assessor assessed 19% WPI as a result of the injury deemed to have occurred on 28 August 2019.

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 WorkCover Medical Assessment Guidelines 2006.
The appellant did not seek a further examination of Ms Nounnis but confirmed that this would be a matter for the Appeal Panel to determine.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Ms Nounnis to undergo a further medical examination because there was sufficient evidence on which to make a determination.

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. The Appeal Panel noted that the appellant filed a complete copy of the Royal Rehabilitation Private Hospital Multidisciplinary Discharge Report as the document attached to the Application to Resolve a Dispute (ARD) was not a complete copy, as it was missing some pages. Ms Nounnis made no objection to the complete report being filed and the Appeal Panel admitted it into evidence.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    Background - Ms Nounnis alleged that she suffered psychological injury in the course of her employment as a result of interpersonal conflict and verbal abuse. The date of injury or deemed date of injury pleaded was 28 August 2019. There was no evidence that the date of incapacity was 28 August 2019 because
Ms Nounnis continued working her usual duties and hours until she suffered a migrainous stroke on 5 January 2020 (save for a few days of sick leave on
3 September, 23 – 24 September 2019, 3 – 4 October and
14 – 15 October 2019). In these circumstances, it appeared from the pleading of the date of injury that Ms Nounnis relied on the events that occurred at the meeting on 28 August 2019 as having caused her psychological injury and WPI.
(b)    The permanent impairment claim form identified psychological injury with a date of injury of 28 August 2019. In making her claim Ms Nounnis relied upon the report of Dr Teoh dated 30 April 2020 who recorded that Ms Nounnis had a meeting with a manager and a centre coordinator on 28 August 2019, and she was “verbally attacked”. She said that she had attended monthly management meetings, and there was a “power struggle” at work.
(c)    By reference to the evidence relied upon by Ms Nounnis, the basis of the injury that was accepted, and which was referred to the Medical Assessor, was a psychological injury arising from the 28 August 2019 event. In the Consent Orders dated 6 May 2022 the first two orders referred to “the pleaded psychological injury that occurred on 28 August 2019” (in the context of an amendment to the pleading of the injury to add an allegation of an aggravation of pre-existing migraine disease and a consequential cerebellar ischaemic stroke, in conjunction with a consent award for the respondent in respect of any allegation of an aggravation of pre-existing migraine disease and a consequential cerebellar ischaemic stroke).
(d)    This background was relevant to the following submissions addressing the grounds of appeal against the MAC.
(e)    Ground 1 - in relation to the summary of injury and diagnosis on page 5 of the MAC, the Medical Assessor stated:
“Ms Nounnis had no prior psychiatric injury. She reported suffering stress due to a particular worker over a few years, with work stress escalating in 2019. … I have diagnosed a major depressive disorder, which is her primary injury arising from the events at work and associated work stress. The issue of secondary injury is for the Commission to determine and has not been referred to me.”
(f)    Earlier, on page 2 of the MAC, the Medical Assessor recorded and apparently accepted a history that:
“Ms Nounnis reported that work stress was predominately related to a
co-worker and there were years of passive aggressive behaviour and bullying. The interpersonal difficulties escalated in 2019. They were having the regular team meetings and Ms Nounnis was subjected to repeated verbal abuse.”
(g)    The injury that was pleaded and agreed between the parties was the incident on 28 August 2019, involving the argument between Ms Harrison and Ms Nounnis during a meeting on that date. The injury was not pleaded as ‘bullying and harassment’ and/or ‘passive-aggressive behaviour’ and/or ‘repeated verbal abuse’ by Ms Harrison over 'years'. While it was conceded that Ms Harrison raised her voice and behaved unreasonably towards Ms Nounnis at this single meeting on 28 August 2019, in her statement, Ms Harrison denied ever having behaved inappropriately or unreasonably towards Ms Nounnis prior to that meeting.
(h)    The Medical Assessor provided an assessment of impairment which related to alleged injurious events which strayed outside of the pleaded, agreed and accepted injury and thereby committed a demonstrable error. The identification of, and the injury assessed, by the Medical Assessor did not accord with the pleadings, Consent Orders and accepted injury and hence represented a demonstrable error.
(i)    Ground 2 - whilst the appellant did not accept that the injury as referred to the Medical Assessor involved the assessment of any psychological condition/injury relevant to pre-28 August 2019 events, there was evidence of Ms Nounnis suffering a pre-existing psychological condition.
(j)    Reference was made to the clinical entries of 3 October 2019, 6 February 2020 and the history as recorded during Ms Nounnis’ admission to Concord Hospital in January 2020 where Ms Nounnis stated she has mild anxiety at times but does not usually take anything for this but feels “her condition is making her very anxious at the moment”. The reference to “her condition” in this entry in the hospital records must be a reference to her very recent migrainous stroke. Physiotherapy progress note of 13 January 2020 referred to Ms Nounnis “struggling a little” on the weekend and “discussions between depression post stroke [sic]” which she said she had reported to the doctor this morning.
(k)    In the Royal Rehab Private Hospital Multidisciplinary Discharge Report,
Ms Nounnis:
“…reported premorbid traits of generalised anxiety and worry about further strokes. This is not unusual. She did states her worries were difficult to control which makes her feel anxious. She has been seeing a psychologist and has acknowledged anxiety traits. During the inpatient stay she was introduced to some cognitive challenging techniques and education around the risks and symptoms of strokes was discussed. She would continue to benefit from seeing a psychologist for continual support over her anxiety if she finds it helpful.”
(l)    Further, it was recorded that Ms Nounnis:
“…described herself as being quite an anxious person who worries a lot. She is concerned about another stroke. She stated that due to a workplace experience she had experienced she has been seeing a psychologist through a mental health care plan. She plans to continue this therapy following her discharge. She does not feel she will require any in home support services.”
(m)     The handwritten initial (diagnostic) assessment from the psychologist recorded “ongoing depression and anxiety – post work related incident and post stroke (caused by workplace event)”. It was accepted between the parties that the stroke was not a workplace caused event or work-related consequential condition. The document recorded “psychological symptoms occurred initially after incident – occurrence and severity would increase during work … incident caused her to retrigger migraine activity (which hadn’t happened in 15 years)”. The records referred specially to the 28 August 2019 meeting but also recorded “bullying in workplace has occurred for five years”. As indicated above, the claim pleaded and referred to the Medical Assessor was the injury arising from the
28 August 2019 event only. The document recorded “accumulated stress resulted in increased migraine activity leading to stroke – physical injury (numbness of the right side and left leg)”. The document went on to record Ms Nounnis reporting:
“…suicidal thoughts - very prevalent after incident and mediation and ever since the stroke … still has suicidal thoughts every now and then …. numbness from stroke has caused limited physical mobility … loss of sense of balance and vertigo attacks …as result of the incident has had cerebellum stroke.”
(n)    As outlined above, the Medical Assessor was not to assess any impairment arising from injury other than that occurring by reason of the workplace events on 28 August 2019. The history provided to the Medical Assessor, and accepted by him, that there was no prior psychological condition was patently incorrect.
(o)    The clinical records and the self-reports of Ms Nounnis identified her as having long-standing premorbid traits of generalised anxiety. This was evidence of a
pre-existing condition and/or abnormality and the Medical Assessor has committed a demonstrable error by failing to consider the above-mentioned relevant evidence in the clinical records which demonstrated the existence of a pre-existing anxiety condition or anxiety abnormality, and he had incorrectly assumed that there was no pre-existing condition or abnormality at all when determining the s 323 deductible proportion issue. In addition to amounting to a demonstrable error, the MA based his assessment on incorrect criteria by failing to properly apply a deduction pursuant to s 323 and the Guidelines.
(p)    Ground 3 – there were no submissions made in respect of Ground 3.
(q)    Ground 4 – the Medical Assessor stated that there was no further injury subsequent to the subject work injury. Referring to the records identified above, the impact of the stroke (which the parties agree was not a work injury or work-related condition) had a significant impact on Ms Nounnis’ psyche and represented a subsequent injury or aggravation of an anxiety disorder/disease arising from the stroke, including the fear of further strokes. The Medical Assessor had incorrectly determined that there was “no subsequent injury” in his answer to question 8g and this determination amounted to a demonstrable error, or a determination based on incorrect criteria. This resulted in the Medical Assessor failing to modify, or consider modifying, his assessment of WPI accordingly, to account for the subsequent non-work psychological injury or aggravation from the stroke, being a subsequent injury he had failed to identify.
(r)    Ground 5 – Reference was made to cl 1.36 of the Guidelines concerning inconsistent presentation. The submissions above asserted the presence of both a pre-existing and subsequent psychological condition/injury. The Medical Assessor made a demonstrable error and/or applied incorrect criteria by failing to identify inconsistencies in Ms Nounnis’ presentation and by failing to consider modifying his impairment rating to account for the inconsistent presentation and general unreliability.
(s)    Ms Nounnis’ denial of pre-existing psychological conditions (including anxiety) and a subsequent psychological injury or aggravation (from the non-work stroke) was evidence of inconsistency and unreliability. Further, Ms Nounnis informed
Dr Miller that she had suffered migraines in the past, however she asserted that she had not had an attack for at least 15 years until after the injurious workplace meeting on 28 August 2019. This history was incorrect and was evidence of unreliability on the part of Ms Nounnis. Reference was made to the clinical notes of her general practitioner (GP) which referred to a migraine and anxiety in 2014, a referral for investigation of a deteriorating floater in her left eye, a report of Concord Eye Care referring to a diagnosis of visual migraines on 26 March 2017 and on 28 February 2019 an attendance to her GP reporting neck pain with triggered migraine. There was reference to migraine in the clinical entry of
3 September 2019 but the history provided was that Ms Nounnis had suffered similar migraines in the past in childhood, which stopped when she was a teenager but had come back more stronger and longer lasting in the “last few years”. The history thus provided to Dr Miller was clearly incorrect and inconsistent and further demonstrated that in the context of this claim Ms Nounnis has been an unreliable and inconsistent historian.
(t)    In conclusion, the evidence of inconsistency and unreliability included her false or unreliable denials of pre-existing psychological conditions (including long-standing anxiety) and of a subsequent psychological injury or aggravation (from the non-work stroke), the abovementioned false history to Dr Miller in relation to her history of migraines and her inaccurate history to the Medical Assessor that “besides seeing the doctors and doing school pickup, she does not leave home” which was contradicted by the surveillance footage of her attending Bunnings. The Medical Assessor accepted her explanation for that inaccurate history in relation to going to Bunnings but if the other examples of inconsistency and reliability outlined above had been identified by the Medical Assessor he could have been less accepting of that aspect of her history of activities which was contradicted by the surveillance evidence. The Medical Assessor failed to identify, address and consider the issue of inconsistencies and also consequently failed to apply part 1.36 of the Guidelines and failed to thereby modify his impairment rating accordingly, with appropriate explanation, when considering the assessments in multiple psychiatric impairment rating scale (PIRS) categories.
(u) For the reasons discussed above, the MAC contained demonstrable errors and was based on incorrect criteria within the meaning of s 327(3) of the 1998 Act.

Ms Nounnis’ submissions include the following:
(a)    The appeal seemed to be based on the following general allegations:
(i)the Medical Assessor exceeded his jurisdiction by considering events/incidents that were outside the referral;
(ii)the Medical Assessor failed to assess a correct WPI, because he took into account events/incidents that ought not to have been taken into account, and
(iii)the Medical Assessor failed to assess the correct WPI, because he failed to reduce the impairment for pre-existing conditions and/or unrelated conditions. The difficulty in accepting the above is that it was based on a false premise, that is, the Medical Assessor was only permitted to assess impairment flowing from the events on 28 August 2019 which was plainly wrong.
(b)    First, the Commission could not bind the Medical Assessor: Haroun v Rail Corp of New South Wales [2008] NSWCA 192 and Wilkie Fleming & Associates Pty Ltd v Highlands [2014] NSWWCCPD 39. Second, the matter had been referred on the basis of a disease, not a frank injury. The appellant seemed to misunderstand the nature of the “deeming” provisions. The appellant is estopped from submitting the Medical Assessor was bound by the events on
28 August 2019, in light of its conduct in settling the proceedings. Third, the dispute that had to be assessed was that based on the evidence, not the pleadings: Skates v Hills Industries Ltd [2021] NSWCA 142.
(c)    The evidence overwhelmingly supported a disease and not a frank injury:
(i)statements of Ms Nounnis dated 8 April 2020 and 1 July 2020;
(ii)report of Dr Nakhle dated 5 February 2021; Certificates of Capacity (ARD 179);
(iii)Dr Teoh (noting his history);
(iv)Dr Miller’s report dated 12 May 2020, and
(v)Dr Bertucen’s report dated 11 October 2021.
The appeal must be dismissed.
(d)    Grounds 1 and 2 - the appellant’s submission was based on a misunderstanding as to the nature of the injury referred and the deeming provisions. The appellant submitted (erroneously) that the only events that could be considered were those on 28 August 2019. That was manifestly wrong. It ignored the Certificate of Determination issued, the conduct of the parties at the conciliation/arbitration, and the evidence in the case.
(e)    The appellant is estopped from making the submission in light of its conduct. Obviously, Ms Nounnis would not have resolved the case on such a basis. Moreover, the evidence plainly supported a disease as set out in (c) above.
(f)    The Medical Assessor was plainly correct to assess events outside the
28 August 2019 date in accordance with the evidence, claim and pleadings. That being the case, there were no pre-existing conditions at all. The earlier events were part of the disease. The references to “years” of stress and symptoms relates to the conduct of the employer itself.
(g)    Ground 3 - the appellant has not raised any submissions under this ground.
(h)    Ground 4 – the appellant’s assertions under this ground should be rejected. First, the appellant did not point to any evidence to establish that the stroke had a causative effect on her WPI. Second, even if there was such evidence, the Medical Assessor had to use his own clinical judgment and skill when considering the stroke. He obtained an accurate history, reviewed the material, and then provided a WPI which did not include any component relating to the stroke (see pages 5, 7 and 10 of the MAC in particular). At p 5, he says “…The issue of secondary injury is for the commission to determine and has not been referred to me”.
(i)    It was material to note that the appellant had not raised any objection to the PIRS Categories or the assessment i.e. the appellant accepted the Medical Assessor properly assessed the impairment based on psychiatric factors alone. This ground should be dismissed.
(j)    Ground 5 - it was a little difficult to follow this ground. The Medical Assessor was aware of the requirement to assess her credibility and reliability. He specifically did so on page 5 of the MAC. Moreover, on page 7 of the MAC, the Medical Assessor made a number of “comments”, which clearly showed that he was constantly assessing her in terms of consistency.
(k)    The employer was merely unsatisfied with the Medical Assessor’s conclusion that he found her to be inconsistent [sic]. Whilst the appellant was encouraged by the surveillance footage, the Medical Assessor commented that “the surveillance material is consistent with my impairment assessment”. Again, the impairment assessment itself has not been challenged. This ground should be dismissed.
(l)    The appeal should be dismissed.

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.
The role of the Medical Appeal Panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

The Medical Assessment Certificate

On page 2 of the MAC, under “Brief history of incident/onset of symptoms and of subsequent related events, including treatment” the Medical Assessor noted:
“Ms Nounnis had worked at the Canada Bay Council from 2014, and was the child care centre coordinator at Well Bank from March 2019. She worked full time and had no secondary employment. She stopped work after 5 January 2020, when she had a stroke, and has not performed other work.
She reported suffering migraines in her teenage years and took Panadol and never needed to consult a neurologist. She reported having suffered recurrent headaches in the context of work stress at the Council, and then in January 2020 she suffered a cerebellar stroke, which was deemed a migrainous stoke.
She reported that after two-month rehabilitation, she completely recovered with no further neurological problems. I discussed with her evidence of possible further physical problems, for example, when Dr Miller assessed her in May 2020, she advised that she had an ataxic gait (Comment: Dr Miller did not provide a mental state examination, and her comments regarding her gait may be based on her treatment records and not on her examination finding). Her GP, Dr Tongson saw her in December 2020 and noted that she developed new neurological symptoms and needed urgent referral to Concord Hospital for cerebral MRI scan. I did not find a discharge summary from that presentation, but Ms Nounnis told me she attended Concord Hospital and had MRI. She was not admitted. She was told that she had an anxiety attack, because she had seen the person who bullied her. She stated it was panic attack and not a neurological event.
Physically, she said she has completely recovered now. She can run, she can walk without difficulties, she can lift things and there are no balance problems. She stated she has not had a migrainous attack since December 2020.
Ms Nounnis reported that work stress was predominately related to a co-worker and there were years of passive aggressive behaviour and bullying. The interpersonal difficulties escalated in 2019. They were having the regular team meetings and
Ms Nounnis was subjected to repeated verbal abuse. She said she consulted her manager a few times, but the council never did anything to address the problems she raised. She has taken sick leave for her migrainous headaches and for panic attacks and consulted the Employee assistance program, and not long after that she developed the stroke.
Psychologically, Ms Nounnis reported that she is always anxious and depressed since the problems at the Council. She feels hopeless and worthless and embarrassed. Everything stresses her. She stated she gets frustrated with her family. She worries when she goes out she will see family or co-workers from the centre and therefore, does not like to leave home. She stated she does not trust anybody.”
On page 3 of the MAC under “Details of any previous or subsequent accidents, injuries or condition”, the Medical Assessor wrote:
“Past psychiatric history:
Nil.
Subsequent psychological injury:
Nil.”
Under “Summary of injuries and diagnoses” the Medical Assessor noted:
“Ms Nounnis had no prior psychiatric injury. She reported suffering stress due to a particular worker over a few years, with work stress escalating in 2019. She suffered a migrainous stroke and has not been able to return to work since. She has improved physically, but remains quite incapacitated by her psychiatric injury and her current anxiety and depressive symptoms.
She developed anxiety and depressive symptoms as a result of workplace bullying and harassment, and this is consistent with a major depressive disorder. Her condition has now become entrenched and there is no prospect of further improvement, even if she consults a psychiatrist. Therefore, my view is her condition has stabilized.
I have diagnosed a major depressive disorder, which is her primary injury arising from the events at work and associated work stress. The issue of secondary injury is for the commission to determine and has not been referred to me.
In terms of WPI assessment, I noted Dr Teoh’s two assessments. The main difference is in the social functioning category, where Dr Teoh rated a 3 and noted that she had a strained relation due to irritability and being easily startled and agitated. In my assessment, I noted the relationship with the family and husband has deteriorated. There has been no domestic violence or separation. She does not contact her friends anymore, but has regular contact with other family, and the relationship is reasonable there. Therefore, I rated 2.”
Under “consistency of presentation” the Medical Assessor noted: “I have found no inconsistency in Ms Nounnis’ presentation”.
At 8 of the MAC under “Evaluation of Permanent Impairment”, the Medical Assessor wrote:
“e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
No, there is no pre-existing psychological condition.
f. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition or abnormality.
This question is not applicable.
g. Indicate whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment this should not be included with the assessment of impairment due to the subject work injury.
No further injury.”
Under “Reasons for Assessment” the Medical Assessor wrote:
“The Certificate of Determination noted Ms Nounnis’ primary psychiatric injury and cerebellar ischaemic stroke and she has been referred to assess her primary psychiatric injury.
Ms Nounnis’ statement noted a similar workplace history, predominantly in relation to a specific worker. There were performance issues raised against her. She was subjected to verbal abuse. She was shocked and suffered anxiety attacks. She felt physically sick by that worker’s conduct. She did not go to work and took sick leave for migraine. She had a stroke and saw the neurologist at Concord Hospital, Dr Todd Hardy, who told her that the migrainous stroke is connected to migraines and stress. After the stroke, she was prescribed antidepressant medication.
Ms Nounnis’ further statement noted treatment with Ross Cantali, her Psychologist. She will stay in bed until late in the day, generally remain in pyjamas. She is prompted to shower. She has put on weight. She feels ashamed and embarrassed and not going to the shops for same reason. She has not tried public transportation. She lost all her friendships. Ms Nounnis’ friends stopped contacting her because she does not make effort anymore.
Dr Ben Teoh IME psychiatrist reported on 10 May 2020, diagnosed an adjustment disorder and noted that Ms Nounnis had no prior psychiatric problem and advised that she had recovered from her stroke. He also recorded that she suffers a major depressive disorder.
Dr Teoh, on 30 April 2020, and also 24 April 2020, diagnosed an adjustment disorder with WPI of 19%.
Dr Teoh, on 10 May 2021 diagnosed a major depressive disorder with WPI of 22%.
Associate Professor Todd Hardy, neurologist, 1 April 2020, advised she had a migrainous stroke and that has worsened in the context of recent stress.
GP record noted:
·Ms Nounnis was treated with Cipramil and Lyrica 25 mg.
·14 January 2021, tension headaches causing severe migraines, thought she had another stroke, MRI was reassuring, could not get through to neurologist. We will try again next month.
·Dr Thomson, 14 December 2020 noted migrainous headache early this year, still recovering from it. Now developed new symptoms in last two days with severe headache, left side, face and arms, paraesthesia and weakness, needs urgent neurologist review.
Certificate of capacity noted, anxiety, stress, and depression from severe aggravation with no pre-existing factors.
Handwritten reports and records from Ross Cantali, her psychologist noted some suicide thoughts and vertigo attacks and numbness from the stroke, presents as tired, but well groomed. 19 June 2020 had an initial assessment with Mr Cantali.
Dr Deepinder Miller, IME psychiatrist reported on 12 May 2020, noted Ms Nounnis suffered panic attack with work stress. There were no other factors. She was diagnosed with an adjustment disorder and advised that since her stroke, she has been unable to work due to ataxic gait and left-sided weakness, and becomes reliant on husband for most domestic duties. She has no daily routine. Comment: as previously noted, it is unclear if Ms Nounnis was ataxic during that assessment.
Dr Jeff Bertucen, IME psychiatrist reported on 11 October 2021 reported Ms Nounnis’ stroke and migraine have improved in the last four months, but her psychiatric injury improved little.
He advised that her work had caused a major depressive disorder but does not believe MMI has been reached at this point. Comment: my view is that she has had sufficient treatment and MMI has been reached now.
Earning Capacity Assessment dated 11 September 2021 had been noted.
Dr Bertucen reported on 6 April 2022 advised that he is not persuaded she has suffered incapacity directly from the workplace incident August 2019, and after he set aside the physical and psychological incapacity consequences of non-work stroke, his view is that she would have been psychologically fit to return to full time work had it not been her migrainous headache and stroke, and the anxiety that she was suffering similar neurological events again.
Comment: Ms Nounnis reported she does not have significant physical impairment now, therefore a secondary psychological injury is unlikely relevant. In any case, I have assessed her impairment from a psychological perspective, in terms of her primary psychological injury from bullying and harassment only.
Ms Nounnis’ statement in relation to surveillance material has been noted in regards to going to Bunnings and dentist.
Worksite investigation surveillance 6 April 2022, and photograph had been noted. In April, she was observed to walk to Bunnings and dental practise in company of her husband and daughter when she is out. Comment: the surveillance material is consistent with my impairment assessment.”
At 11 of the MAC, the Medical Assessor noted:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) There is no previous injury.
b. 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:
(i) No pre-existing injury.
c. There is no deductible proportion.”

Discussion

The Medical Assessor is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Ground 1 – injury assessed did not accord with the pleading

The appellant submitted that the injury in this case was pleaded and agreed between the parties as the incident on 28 August 2019, involving the argument between Emma Harrison and Ms Nounnis during a meeting. The appellant submitted that the Medical Assessor provided an assessment of impairment which related to alleged injurious events which strayed outside of the pleaded, agreed and accepted injury and thereby committed a demonstrable error.
In the ARD under “Injury Details” the type of injury was identified as a disease with a deemed date of 28 August 2019. The “Injury Description/Cause of Injury” was set out as: “The Applicant suffered a psychological injury in the course of her employment, as a result of interpersonal conflict and verbal abuse in the course of her employment”.
As noted above, the COD dated 6 May 2022 amended the ARD in the “Injury Details” to add an allegation of an aggravation of pre-existing migraine disease and consequential cerebellar ischaemic stroke as a result of the pleaded psychological injury that occurred on
28 August 2019 and in the alternative a consequential condition of an aggravation of pre-existing migraine disease and consequential cerebellar ischaemic stroke. This reflected an agreement between the parties to add a further allegation of injury and did not otherwise amend the original pleadings. In order 6 on the COD the applicant’s claim for permanent impairment compensation was remitted to the President for referral to a “Medical Assessor for assessment of whole person impairment resulting primary psychological injury sustained by the applicant in the course of her employment with the respondent, with deemed date of injury of 28 August 2019”. There was no question that this matter had been referred on the basis of a disease with a deemed date of injury and not as a frank injury. Such a referral did not restrict the Medical Assessor to consideration of the events on 28 August 2019. The appellant did not, it appears, raise any issue with the terms of the referral.
The Appeal Panel was not satisfied that there was any evidence of an agreement between the parties to limit the injury in this case to the incident on 28 August 2019, involving the argument between Ms Harrison and Ms Nounnis.

The Appeal Panel accept the submission from Ms Nounis that the dispute that had to be assessed was that based on the evidence, not the pleadings. In Skates v Hills Industries Ltd [2021] NSWCA 142, Basten JA and Leeming JA held that the “application to resolve a dispute”, together with the accompanying medical reports, identified the dispute concerning the degree of permanent impairment caused by the injury to the worker. Further, the purpose of the statutory regime was to resolve the medical dispute identified by the parties’ competing claims.
The evidence supported a disease and not a frank injury. In her statement dated
8 April 2020, Ms Nounnis stated that she had been employed by the appellant for five years. She stated that she had issues with her manager, Ms Harrison, and her levels of stress and anxiety “in these four years grew”. Ms Nounnis wrote: “I would feel my blood boiling each day going into work. I could not sleep and the sarcastic remarks and bitching every day was intimidation”. Ms Nounnis described an incident in around February 2019 when a child had an anaphylactic reaction in the baby room. She stated that she was excluded from the internal investigation and a meeting conducted the night after the incident. Ms Nounnis wrote: “I suffered a physical response to this incident of stress and anxiety. Being excluded directly from the debriefing and subsequent investigation was overwhelming and sickening”. Ms Nounnis also described the events in the meeting on 28 August 2019.
In a report dated 5 February 2021, Dr Peter Nakhle, Ms Nounnis’ GP, wrote:
“Elesha advised me that the primary incident occurred when she was abused verbally by her manager but this was culminated after four years of verbal abuse.”
In a Certificate of Capacity dated 7 June 2021, Dr Nakhle answered the question “How is the injury related to work…” as follows: “Bullying at work aggressive verbal abuse at work from a colleague followed by months of mental stress and anxiety”.
Dr Teoh in his report dated 30 April 2020, under “history” noted:
“Ms Nounnis reported that she had a meeting with a manager and a centre coordinator on 28 August 2019, and she was, ‘verbally attacked’. She recalled that in the meeting, the centre coordinator had sworn and screamed at her, and she felt physically intimidated. She recalled that the centre coordinator had stood up and pointed her fingers at her physically. She said that she had attended monthly management meetings, and there was a ‘power struggle’ at work”.
In a report dated 5 May 2020, Dr Teoh, wrote:
“I documented that Ms Nounnis was employed as a coordinator of a childcare centre in Concord for five years, and she had last worked on 3 January 2020. She reported that she was harassed and bullied at work. She had felt intimidated.”
In a report dated 12 May 2020, Dr Deepinder Miller, noted that Ms Nounnis stated that she was verbally harassed and bullied by Ms Harrison, the Centre Coordinator, and alleged that this resulted in months of mental stress, anxiety, [and] migraine. Dr Miller wrote:
“Ms Nounnis stated that she was experiencing issues with Emma as my manager. She alleged that Ms Harrison instructed me on who I could and could not talk to at work and asked her to avoid speaking to certain members of staff. She stated that she experienced growing levels of stress and anxiety as a result of this and Ms Harrison's sarcastic remarks and b**ching every day. She alleged that Ms Harrison also kept me out of networking opportunities and on one instance provided her with an unfair appraisal. Ms Nounnis alleged that she felt that Emma was trying to veer me away from applying for the role of Centre Coordinator.
Ms Nounnis reported that around February 2019, there was a major incident involving a child at the centre having an anaphylactic reaction in the baby room. She alleged that this event caused her to experience stress and anxiety. She stated that in the aftermath of the incident she believed that Emma purposely kept me out of the internal investigation into that incident and felt that being excluded directly from the debriefing and subsequent investigation was overwhelming and sickening. Ms Nounnis stated that following the conclusion of the internal investigation, Ms Harrison informed her that she would be transferring to the Victoria Avenue Centre as she was looking for a fresh start.
Ms Nounnis alleged that in a meeting on 29 August 2019, before Ms Harrison's departure, Ms Harrison became highly emotional and agitated whilst discussing hiring and recruitment at the centre, which was now under Ms Nounnis' management... She alleged that Ms Harrison raised her voice at me with agitation and aggression and pointed her finger at me saying, ‘How dare you take my f**king fingerprint off the door without telling me.’ Ms Nounnis claimed that she was in a state of shock at that point and alleged that Ms Harrison continued addressing her in an aggressive manner while using expletive language.”
Dr Miller expressed the opinion that Ms Nounnis' adjustment disorder with mixed anxiety and depressed mood was wholly related to the conflict she experienced at work with Ms Harrison.
In a report dated 11 October 2021, Dr Jeff Bertucen wrote:
“Ms Nounnis alleges that she experienced some subtle bullying and harassment from Emma over the next four years and claims that inter alia:
‘Emma instructed me on who I could and could not talk to at work. Emma instructed me not to talk to certain staff at Wellbank, as it made her feel uncomfortable as she has issues with those staff members… She also made comments about certain staff members that I should and should not have lunch with at work’.”
Dr Bertucen noted that Ms Nounnis claimed that Emma referred to several of her colleagues as “bitches” and described Emma’s language as occasionally intimidating and aggressive. She described her “blood boiling each day going into work… I could not sleep, and the sarcastic remarks and bitching every day was intimidation”. She began to experience a number of physiological anxiety symptoms in the period 2014-2019 including irritable bowel syndrome and nausea (particularly prior to work shifts). During performance appraisals (conducted by Emma), Ms Nounnis claims that she was made to “not feel that I was a team player”.
Dr Bertucen noted that in February 2019, Ms Nounnis reported that there was a major incident involving a child under her care, who developed an anaphylactic reaction.
Ms Nounnis remained with the child until ambulance officers arrived and an EpiPen was administered.
The Medical Assessor was correct to assess events outside the 28 August 2019 date in accordance with the evidence, claim and pleadings. The identification of, and the injury assessed, by the Medical Assessor was in accord with the pleadings, Consent Orders and accepted injury and did not represent a demonstrable error.

Ground 2 – pre-existing psychological condition

The appellant submitted that while it did not accept that the injury referred to the Medical Assessor involved the assessment of any psychological condition/injury relevant to
pre-28 August 2019 events, there was evidence of Ms Nounnis suffering a pre-existing psychological condition.
The appellant argued that the clinical records and the self-reports of Ms Nounnis identified her as having long-standing premorbid traits of generalised anxiety. This was evidence of a pre-existing condition and/or abnormality and the Medical Assessor has committed a demonstrable error by failing to consider the above relevant evidence in the clinical records which demonstrated the existence of a pre-existing anxiety condition or anxiety abnormality, and he had incorrectly assumed that there was no pre-existing condition or abnormality at all when determining the s 323 deductible proportion issue. In addition to amounting to a demonstrable error, the Medical Assessor based his assessment on incorrect criteria by failing to properly apply a deduction pursuant to s 323 and the Guidelines.
First, the Appeal Panel considered that the Medical Assessor was correct to take into account in his assessment events in her employment with the respondent that occurred before 28 August 2019.
The appellant referred to various clinical entries. In the entry dated 3 October 2019 Dr Tao recorded “Sore throat, congestion, no cough …. long history of anxiety. Recently work incidence – verbally attacked by another colleague, anxiety getting worse, upset, does not feel depressed much but teary. Got union involved. HR trying to sort the problem but need lots report interview etc, lots of extra stress. Feels not able to cope. Sometimes get panic attack. Consent to have GPMHCP”. In the entry of 6 February 2020 Dr Tao noted: “anxiety/migraine aggregated [sic]. by work stress”.
Nurse Tina Hardy at Concord Hospital on 5 January 2020 noted:
“pt states that she has mild anxiety at times but does not usually take anything for this but feels ‘her condition is making her very anxious at the moment. Pt encouraged to do deep breathing and let nursing staff know if she gets worse.”
In the Royal Rehabilitation Private Hospital Multidisciplinary Discharge Report attached to the appellant’s submissions, Erin Mitchell, social worker, reported on 29 January 2020 that Ms Nounnis:
“described herself as being quite an anxious person who worries a lot. She reported feeling quite concerned about the stroke and whether she would go on to experience another one. Mrs Nounnis stated that due to the work-place incident that she experienced, she has been seeing a psychologist through a mental health care plan. She plans to continue this therapy following her discharge from hospital.”
Tia Ven, clinical psychologist, reported on 16 January 2020 that Ms Nounnis:
“reported some premorbid traits of generalised anxiety and was worried about further strokes. This worry is not unusual given her presentation of symptoms. However, she does note that worries are difficult to control and does make her feel anxious. She has been seeing a psychologist and through that, has acknowledged her anxiety traits. During her inpatient stay, she has been introduced to some cognitive challenging techniques such as identifying her worries and her experiences and using logical analysis/facts to analyse her worries. Some education around the risks and symptoms of strokes was also discussed with her. She would continue to benefit from seeing her psychologist for continual support over her anxiety if she finds it helpful.”
The handwritten initial (diagnostic) assessment dated 19 June 2020 by Ms Cantali, psychologist recorded “ongoing depression and anxiety – post work related incident and post stroke (caused by workplace event)”. Ms Cantali recorded “psychological symptoms occurred initially after incident – occurrence and severity would increase during work … incident caused her to retrigger migraine activity (which hadn’t happened in 15 years)”. The records referred to the 28 August 2019 meeting but also recorded “bullying in workplace has occurred for five years”.
The appellant did not refer to the report of Dr Miller dated 12 May 2020 in which Dr Miller wrote:
“Ms Nounnis did not report any other issues or problems in her life such as family difficulties, marital problems or breakdown, custody/access issues, grief, financial, alcohol, substance abuse, gambling or other health issues (including migraines) which could have caused, or contributed to, her mental state, in the second half of 2019, or could have contributed to her current psychiatric state. It is my opinion that Ms Nounnis' Adjustment Disorder with mixed anxiety and depressed mood is wholly related to the conflict she experienced at work with Ms Harrison.”
Dr Bertucen, in his report dated 11 October 2021, wrote:
“There was no evidence to suggest that Ms Nounnis was actually suffering from any pre existing psychiatric disorders prior to the commencement of employment with the Council in June 2014.”
The Appeal Panel noted that the Medical Assessor found that Ms Nounnis had no pre-existing psychological condition.
The appellant submitted that the clinical records identified Ms Nounnis as having long-standing premorbid traits of generalised anxiety and this was evidence of a pre-existing condition. However, to establish a pre-existing condition for the purposes of s 323 there must, at the relevant date, be an actual condition although it may be asymptomatic. A mere predisposition or even a susceptibility is not sufficient to constitute a condition.
Campbell J in Fire & Rescue NSW v Clinen [2013] NSWSC 629 said:
“The context here is provided by s 323 and arises from the juxtaposition of words ‘previous injury’, with ‘pre-existing condition or abnormality’. The natural meaning in that restricted context of ‘condition’ is ‘medical or like condition’ in the sense of a diagnosable, or established, clinical entity.”
The Appeal Panel was satisfied that pre-morbid traits of generalised anxiety, even if such traits predated the conflict at work that constituted the deemed injury, do not constitute a psychiatric or psychological condition. The references provided by the appellant relating to an anxiety trait were all made in clinical records after Ms Nounnis stopped work in
January 2020. There was no reference in the GP’ notes which dated from
21 November 2005 to a diagnosis of any psychiatric or psychological condition, apart from the entry on 27 May 2014 when Dr Tao referred to Ms Nounnis being “very stressed at work, anxiety, migraine, vomit yesterday, also some loose stools due to anxiety”. There was no record of any treatment for any psychiatric or psychological condition, or any other complaints or symptoms that suggested Ms Nounnis had any diagnosable psychiatric or psychological condition before she commenced employment with the appellant.
The Appeal Panel was satisfied that the Medical Assessor did not make a demonstrable error in finding that that there was no pre-existing condition or abnormality when determining the s 323 deductible proportion issue. Further, the Medical Assessor based his assessment on the correct criteria.

Ground 3 – not pleaded

The appellant provided no submissions in respect of Ground 3. There was no issue for the Appeal Panel to determine in relation to Ground 3.

Ground 4 – deduction for subsequent condition

The appellant submitted that the Medical Assessor had incorrectly determined that there was ‘no subsequent injury’ in his answer to question 8g and this determination amounted to a demonstrable error, or a determination based on incorrect criteria. The appellant argued that this resulted in the Medical Assessor failing to modify, or consider modifying, his assessment of WPI accordingly, to account for the subsequent non-work psychological injury or aggravation from the stroke, being a subsequent injury he had failed to identify.
At 8 e of the MAC, the Medical Assessor found that there had been no further injury subsequent to the subject work injury.
The Medical Assessor made a diagnosis of a major depressive disorder, which was her primary injury arising from the events at work and associated work stress. The Medical Assessor wrote: “The issue of secondary injury is for the commission to determine and has not been referred to me”.
In the history relating to the injury, the Medical Assessor noted that Ms Nounnis suffered a cerebellar stroke in January 2020 and she reported that after two-month rehabilitation, she completely recovered with no further neurological problems. The Medical Assessor discussed with her evidence of possible further physical problems, for example, when
Dr Miller assessed her in May 2020, she advised that she had an ataxic gait. The Medical Assessor noted that her GP, Dr Tongson, saw her in December 2020 and noted that she developed new neurological symptoms and needed urgent referral to Concord Hospital for cerebral MRI scan. Ms Nounnis told the Medical Assessor she attended Concord Hospital, had an MRI and was not admitted. She said that she was told she had an anxiety attack, because she had seen the person who bullied her. She stated it was panic attack and not a neurological event. The Medical Assessor wrote:
“Physically, she said she has completely recovered now. She can run, she can walk without difficulties, she can lift things and there are no balance problems. She stated she has not had a migrainous attack since December 2020.”
The Medical Assessor noted that after the stroke, Ms Nounnis was prescribed antidepressant medication.
The Medical Assessor noted Ms Nounnis reported that she did not have significant physical impairment now, and therefore a secondary psychological injury was unlikely relevant. He wrote: “In any case, I have assessed her impairment from a psychological perspective, in terms of her primary psychological injury from bullying and harassment only”.
The Appeal Panel considered the references to anxiety in the notes from Concord Hospital dated 5 January 2020 (referred to in paragraph 53 above) and the Royal Rehabilitation Private Hospital Multidisciplinary Discharge Report (referred to in paragraphs 54 and 55 above).
Dr Miller, in a report dated 12 May 2020, noted that Ms Nounnis stated that in February 2020 her GP prescribed Citalopram. Ms Nounnis stated that she has continued to take this medication for the past two months and did not report taking any other psychotropic medication in the past.
Dr Miller also recorded:
“Since Ms Nounnis experienced her Cerebrovascular Accident (CVA), she has been unable to work as she continues to experience an ataxic gait with left sided weakness. As a consequence, Ms Nounnis is increasingly reliant on her husband for most domestic duties, but she continues to support her family emotionally and practically to the best of her abilities. Ms Nounnis stated that since her CVA, her mood has deteriorated significantly and she has been crying 'all the time.’ This has caused her to withdraw from her friends and from her extended family.”
The Appeal Panel was satisfied that in January 2020 Ms Nounnis experienced anxiety associated with the stroke and fear of a further stroke. However, as the physical sequalae of the stroke ameliorated, the anxiety associated with the stroke resolved, with a brief exacerbation in 2020, two years before the Medical Assessor’s assessment. The Appeal Panel agreed with the Medical Assessor that the anxiety associated with the stroke in January 2020 did not contribute to the current permanent impairment assessed.
The Appeal Panel accepted that the Medical Assessor erred in determining that there had been no subsequent injury, but such error did not lead to a different result. The anxiety caused by the stroke, which had resulted in a temporary aggravation of the work-related psychological injury, had resolved well before the Medical Assessor made an assessment of permanent impairment.
The Appeal Panel also considered the possibility that even if the anxiety associated with the stroke in January 2020 had not completely resolved and resulted in a permanent aggravation of the work-related psychological injury and some minor degree of additional impairment, that additional impairment would not have occurred but for the work injury deemed to have occurred on 28 August 2019.
In the unanimous decision in Calman v Commissioner of Police [1999] HCA 60; (1999) ALR 91 (Calman), the High Court stated:
“[38] It has long been settled that incapacity may result from an injury for the purposes of workers' compensation legislation even though the incapacity is also the product of other - even later – causes (Salisbury v Australian Iron and Steel Ltd (1943) 44 SR(NSW) 157 at 162; The Commonwealth v Butler [1958] HCA 56; (1958) 102 CLR 465 at 476; Conkey & Sons Ltd v Miller (1977)51 ALJR 583 at 585; 16 ALR 479 at 484; Bushby v Morris [1980] 1 NSWLR 81 at 86-88).
[39] … The incident, which was the immediate cause of his incapacity, merely exacerbated the underlying anxiety disorder which continued to exist, notwithstanding that immediately before the incident it manifested no symptoms. In those circumstances, the injury was a contributing cause to the incapacity.”

Ground 5 - Consistency

The appellant submitted that the Medical Assessor made a demonstrable error and/or applied incorrect criteria by failing to identify inconsistencies in Ms Nounnis’ presentation and by failing to consider modifying his impairment rating to account for the inconsistent presentation and general unreliability.
While the appellant submitted that Ms Nounnis’ denial of pre-existing psychological conditions (including anxiety) and a subsequent psychological injury or aggravation (from the non-work stroke) was evidence of inconsistency and unreliability, the Appeal Panel rejected that submission as it was satisfied that there was no pre-existing psychological condition and no evidence of any impairment from a subsequent psychological injury or aggravation.
The appellant then focused on Ms Nounnis’ history of migraine alleging that the history provided to Dr Miller that she had suffered migraines in the past but had not had an attack for at least 15 years until after the injurious workplace meeting on 28 August 2019 was incorrect and was evidence of unreliability.
The Appeal Panel accepted that the clinical notes of Dr Tao dated 27 May 2014 referred to a migraine and anxiety in 2014. There was also a reference to Ms Nounnis being referred for investigation of a deteriorating floater in her left eye, with a report of Concord Eye Care referring to a diagnosis of visual migraines on 26 March 2017. However, visual migraine can occur without pain and can last for very short periods and the Appeal Panel did not consider that the reference to a visual migraine was significant. In an entry dated 28 February 2019, Dr Tao noted that Ms Nounnis had neck pain for a few days which triggered migraine. In an entry dated 3 September 2019, Dr Lee, who did not appear to be Ms Nounnis’ usual GP, noted that Ms Nounnis had migraine with neck pain and had had suffered similar migraines in the past in childhood, although, that these stopped when she was a teenager but had come back “more stronger and longer lasting in the last few years”. Dr Lee recorded that
Ms Nounnis described that the migraine started from the neck and could last a few days and occur every few months and intensify over a couple of days. It was noted she had had “auras” with migraines.
Dr Nakhe in a report dated 5 February 2021 wrote:
“I first saw Elesha on 18 February 2020 where she advised me of her stroke in the left cerebellar area. She was under the care of a neurologist and had a monitor. She also advised me of her anxiety and that she had been stressed prior to the stroke and that this stress could be a cause of the stroke. She had many issues at work and was abused. She was prescribed Cipramil (anti-depressant)…
The assertions by the insurer of Elesha having stronger and longer lasting migraine headaches is not consistent with her history. She had minor occasional migraines but nothing severe except 20 years prior.”
While it could be said that a small part of the history provided to Dr Miller appeared to be incorrect, the Appeal Panel did not consider that this demonstrated that Ms Nounnis was an unreliable and inconsistent historian. The Medical Assessor described Ms Nounnis as having poor concentration and poor cognitive functioning. It is not unusual for such patients to make minor mistakes in providing a detailed history and many patients have difficulties in recalling the exact dates or details of medical appointments. Some aspects of a history may depend on the wording of the question put to a patient but the precise questions asked were not recorded. In this case, there appeared to be a distinction drawn by Ms Nounnis and some of the doctors between “severe migraines” and other migraines including the visual migraines and this distinction may have affected the history recorded. The migraines were also associated with neck pain which was unrelated to any psychological problem. The Appeal Panel considered that any minor inconsistencies in the history relating to migraine given by Ms Nounnis were not significant and the history of migraine had no real relevance in the assessment of permanent impairment for a psychological injury.
The appellant also identified the surveillance footage showing Ms Nounnis attending a Bunnings store as being inconsistent with the history she gave to Dr Miller that “besides seeing the doctors and doing school pickup, she does not leave home”.
First, the history given by Ms Nounnis to Dr Miller was taken on 29 April 2020. The surveillance footage of the trip to Bunnings by Ms Nounnis and her husband was taken on
3 April 2022, nearly two years after the consultation with Dr Miller. Ms Nounnis’ ability to leave her house may have changed since the consultation with Dr Miller. Second,
Dr Bertucen, upon whose report the appellant relied, was provided with the surveillance footage. Dr Bertucen stated: “Having reviewed the surveillance footage provided, I am not persuaded that any of the activities demonstrated therein by Ms Nounnis are incompatible with the levels of impairment outlined in my report. Accordingly, I stand by my original impressions”. Third, the Medical Assessor considered the surveillance footage and accepted Ms Nounnis’ explanation for the inaccurate history. The Appeal Panel did not consider that the activities recorded in the surveillance footage were inconsistent with any of the descriptions of function made by the Medical Assessor.
The Appeal Panel rejected the submission that the Medical Assessor failed to identify, address and consider the issue of inconsistencies and failed to thereby modify his impairment rating accordingly, when considering the assessments in multiple PIRS categories.
In summary, the Appeal Panel found that the Medical Assessor erred in not considering or adequately considering the question of whether there was a subsequent psychological injury. However, after considering the evidence, the Appeal Panel concluded that such error did not lead to a different result. The other grounds of appeal were not made out.
The assessment of total WPI by the Appeal Panel was the same as that made by the Medical Assessor. In those circumstances the Appeal Panel will confirm the MAC as the review has not led to a different result and should not be interfered with (Robinson v Riley [1971] 1 NSWLR 403).
For these reasons, the Appeal Panel has determined that the MAC issued on
4 November 2022 should be confirmed.

[2023] NSWPICMP 61

28 February 2023