Clarke v SMG Labour Pty Ltd t/as Sue Mann Nursing and Community Care

DETERMINATION OF APPEAL PANEL
CITATION:	Clarke v SMG Labour Pty Ltd t/as Sue Mann Nursing and Community Care & Ors [2022] NSWPICMP 268
APPELLANT:	Susan Clarke
RESPONDENT:	SMG Labour Pty Ltd t/as Sue Mann Nursing and Community Care
APPEAL PANEL:
MEMBER:	William Dalley
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	6 July 2022
CATCHWORDS:	WORKERS COMPENSATION – The appellant worker alleged error with respect to the deduction of one half of the assessed assessment of impairment found to have arisen from a pre-existing psychological condition; appellant submitted no evidence of pre-existing condition; Held – after seeking further submissions as to the appropriate date at which to consider the existence of a pre-existing condition the Panel accepted that this date was the date of commencement of employment; a report of the treating psychiatrist established the existence of a pre-existing condition and assessment of deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 was open to the Medical Assessor and appropriate; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 June 2021 the appellant, Susan Clark, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 10 May 2021.
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,
· the 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 grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
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 (the Guidelines)

RELEVANT FACTUAL BACKGROUND

Ms Clark suffered a psychological injury in the course of her employment as a Community Care Assistant with the respondent, SMG Labour Pty Ltd, trading as Sue Mann Nursing and Community Care. The injury was due to a number of events which occurred in the workplace and is deemed to have occurred on 1 July 2019.
Ms Clarke consulted her psychiatrist, Dr Vasantha Pothala, who had treated her on previous occasions. She also received treatment from a psychologist, Janice Mackay. She has not returned to work.
At the request of the insurer, Ms Clarke was examined by an independent medical expert, Dr Ben Teoh, psychiatrist, who diagnosed Ms Clarke as suffering an “adjustment disorder with anxious mood.” He identified workplace incidents as the predominant cause of this condition.
On 13 January 2020 Ms Clarke was examined by an independent medical expert, Dr Martin Allan, psychiatrist, at the request of Ms Clarke’s solicitors. Dr Allan diagnosed Ms Clarke as suffering a Major Depressive Disorder, occurring as the result of issues in the workplace.
Dr Allan examined Ms Clarke again in a Telehealth interview on 6 August 2020. Dr Allan confirmed the diagnosis of Major Depressive Disorder and assessed Ms Clarke as suffering 24% whole person impairment (WPI).
Ms Clarke’s solicitors made a claim for lump-sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (1987 Act). The respondent arranged for Ms Clarke to be examined again by Dr Teoh on 22 September 2020. Dr Teoh confirmed his earlier diagnosis and assessed Ms Clarke as suffering 15% WPI. Dr Teoh deducted 2% in respect of a pre-existing psychiatric condition, noting that Ms Clarke “had treatment for more than 10 years prior to July 2019” to give 13% WPI as a result of the subject injury.
Ms Clarke’s solicitors then filed an Application to Resolve a Dispute (ARD) in the Workers Compensation division of the Personal Injury Commission (the Commission). Issues of liability between the parties were resolved and the dispute as to the extent of impairment was referred to the Medical Assessor to determine the extent of impairment suffered by Ms Clarke as a result of the subject injury.
The Medical Assessor examined Ms Clarke on 28 April 2021. He diagnosed Ms Clarke as suffering a persistent depressive disorder with a current major depressive episode (severe) and anxious distress. He said, “she meets the criteria for a major depressive disorder on the background of persistent depression (dysthymia).” The Medical Assessor assessed Ms Clarke as suffering 28% WPI. He attributed one half of that impairment to a pre-existing condition pursuant to s 323 of the 1998 Act so as to assess 14% WPI as a result of the subject injury.

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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because sufficient material was available to allow the Panel to determine the appeal.

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.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, 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.
In summary, the appellant submits that the Medical Assessor had failed “to apply the correct criteria for pre-existing conditions deductions in the failure to correctly consider the evidence with respect to pre-existing conditions”, arguing that the Medical Assessor “has failed to correctly deal with the guidelines for pre-existing conditions and the section 323 of the WIM Act”. The appellant submitted that there was no evidence to suggest there was any diagnosable pre-existing condition and that the Medical Assessor had “provided no reason as to why he did not utilise the method in cl 11.10 [of the Guidelines] nor did he provide any justification or reasons as to why he found half of the WPI assessment to be caused by pre-existing factors.”
In reply, the respondent submits that there was clear evidence of a relevant, pre-existing condition and the extent of the deduction was open to the Medical Assessor, being appropriately based on the available evidence.

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[1] 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.
[1] [2006] NSWCA 284.
The Medical Assessor noted that Ms Clarke had suffered mental health problems following the birth of her first child, 17 years previously. At that time she had been diagnosed with postnatal depression. He noted that Ms Clarke had been on treatment “almost continuously since then, although she has functioned during that time”.
The Medical Assessor noted that Ms Clarke’s medication at the time of examination included lithium carbonate although the Medical Assessor doubted that Ms Clarke had any form of bipolar disorder.
After making a diagnosis of “persistent depressive disorder with a current major depressive episode (severe) and anxious distress)”, the Medical Assessor reported:
“Ms Clarke has a long-standing mood disorder which has been exacerbated by her work with Susan Mann. She meets the criteria for a Major Depressive disorder on the background of persistent depression (dysthymia).
I could find no evidence of bipolarity, an inference that may have been drawn because of her use of low-dose lithium carbonate. However, this drug is also used in difficult to treat depression.
She denies developmental trauma or emotional dysregulation before 2019. Her psychiatrist has suggested borderline personality traits, citing long-standing problems, which is likely true. I have insufficient information to make a formal diagnosis of a personality disorder.”
The Medical Assessor noted that Ms Clarke asserted that her pre-existing mental health problems were well-controlled and not impacting on her life prior to the subject injury. Ms Clarke told the Medical Assessor:
“She had a supportive and caring upbringing, social life was active and rewarding, she enjoyed fishing and outings with friends, she had never had problems with alcohol use, her problems with emotional dysregulation, interpersonal sensitivity and relationships only started with her workplace problems.”
The Medical Assessor commented that these assertions were contradicted by clinicians’ notes “written before the start of the workplace problems, at a time when she said she was enjoying her work.” Although Ms Clarke denied that the notes were accurate, the Medical Assessor preferred the evidence of the clinical notes where these conflicted with statements by Ms Clarke, but otherwise accepted her account.
The Medical Assessor considered that Ms Clarke suffered from a pre-existing condition reporting:
“I make my diagnoses relying on criteria outlined in the Diagnostic and Statistical Manual Fifth Edition (DSM-5), published by the American Psychiatric Association.
oPersistent depressive disorder with anxious distress.
Ms Clarke has long-standing mental health problems, including postnatal depression and persisting depression with anxiety. She had a prejudicial childhood and exhibited features of a borderline personality structure. She has had a pattern of alcohol abuse in the past, if not now”
The Medical Assessor noted the contemporaneous reports from Ms Clarke’s treating psychiatrist and general practitioner “written before problems started in the workplace and when she told them she was enjoying her work”. The Medical Assessor reported:
“Whilst the extent of the deduction is difficult or costly determined, the available evidence is that the deductible proportion is large, and deduction of 1/10 is at odds with the available evidence. In my opinion, the deductible proportion is one half for the following reasons:
(i) In the time before the workplace issues arose, Ms Clarke attended her GP, who described her depression is profound., Estrangement from her parents, having no friends and no hobbies or interests. These things indicate severe mental illness with significant impairment, but the information is insufficient to accurately (using a PIRS Table) determine the pre-existing impairment. I attribute at least one half of her current impairment to pre-existing factors”
The appellant asserts that she did not suffer from any previous psychological/psychiatric injury, or from any relevant pre-existing psychological/psychiatric condition or abnormality. The appellant submits that there is no evidence establishing the existence of any previous or pre-existing condition or abnormality. That submission appears to be based upon a conclusion that the appropriate time at which any deduction is at the date of commencement of employment with the respondent (March 2018).
It appears to the Panel that the Medical Assessor may have considered the point in time at which the issue of whether a deduction should be made to be mid-2019. This inference is suggested by the reference to reports of the treating general practitioner and the treating psychiatrist “written before problems started in the workplace and when she told them she was enjoying her work”.
The reports and clinical notes referred to by the Medical Assessor appear to be dated after the date of commencement of employment but before the complaint handling process in mid-2019. The respondent appears to adopt a similar position, pointing to evidence of medical records prior to mid-2019.
The Panel noted that it is critical to the consideration of cl 11.10 of the Guidelines and s 323 of the 1998 Act to establish the point in time at which it is appropriate to consider the existence of previous injury or prior condition or abnormality.[2]
[2] Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416.
The ARD filed in the proceedings alleged psychological injury said to have been caused because “throughout the course of her employment, the applicant was subject to bullying and harassment at the hand of her co-worker”.
Although the description of injury in the ARD asserts a single date of injury, 1 July 2019, the consent orders made on 9 February 2021 refer to 1 July 2019 as being a deemed date of injury. The Panel understands this to be a reference to an injury occurring by way of a gradual process pursuant to s 15 or s 16 of the 1987 Act. It is not clear from any material before the Panel as to when it is alleged that the “gradual process” commenced.
The Panel required the assistance of further submissions to determine the appropriate point in time to consider the issue of pre-existing injury or previous condition or abnormality, to determine whether demonstrable error and/or application of incorrect criteria have been made out and, if appropriate, for the purposes of reassessment.
The parties were unable to agree on the relevant date and the respective submissions demonstrated that this was a matter in dispute between them. The appellant submitted.
“The appropriate time for the purposes of s323 and cl 11.10 is immediately prior to the development of the Appellant’s condition, from the events alleged to have caused it. The Appellant's condition developed from the commencement of her employment with the Respondent on 1 March 2018. Her case is pleaded in those terms.”
The appellant noted that the ARD described the injury as having been caused throughout the course of employment and drew attention to the following evidence:
“a)     The Appellant outlines, at paragraphs 7 to 23 of her statement of 9 October 2019 (pages 1 to 3 of the Application), that from the time she commenced working for the Respondent on 1 March 2018 she was provided cleaning as opposed to nursing duties, and this was a perceived slight.
(b)     At paragraph 47 of the Appellant's statement of 9 October 2019 (page 7 of the Application) she describes meeting with Ms Kailie Naughton at her home on several occasions, mostly in mid-2019, to discuss client complaints where she felt ’targeted and isolated’
(c)     In her supplementary statement of 10 December 2020, at paragraph 5 (page 23 of the Application) the Appellant states ‘Throughout the course of my employment, I was exposed to ongoing interpersonal conflicts with my colleagues as a systemic issue rather than as the product of one single incident or meeting...’
(d)     At paragraph 6A of the supplementary statement (page 24 of the Application) the Appellant states; ‘In or around September 2018, I had an informal meeting with Kailie at McDonald's’.
(e)     On page 5 of Dr Allan's report of 13 January 2020 (page 62 of the Application), Dr Allan's history included the following ‘I understand that Ms Clarke was desirous of having 'nursing' shifts rather than 'domestic assistance' and 'shifts' (sic) but would repeatedly for unclear reasons not be given such shifts....’
(f)      At page 6 of Dr Allan's report of 13 January 2020 (page 63 of the Application) he took the further history ‘Clearly Ms Clarke has perceived mistreatment at the hands of Kailie Naughton’.
(g)     On page 7 of Dr Allan's report of 13 January 2020 (page 64 of the Application), Dr Allen opined ‘The workplace stress has primarily arisen out of Ms Clarke having failed to being given nursing tasks and instead being given domestic tasks, being treated poorly from her regional manager, Kailie Naughton, and predominantly being placed on performance management in extremely odd circumstances....’
(h) On page 1 of Dr Pothala's report of 30 October 2020 (page 91 of the Application) he took the history ‘She was only given some relief nursing duties while they were recruiting some new staff and kept refusing to give her the same nursing duties. When she asked for nursing duties and met with HR, she was told there were a number of complaints against her by some clients...’
(i)      On page 3 of Dr Pothala's report of 30 October 2020 (page 93 of the Application) he opined 'Ms Clarke also felt that over the period of her employment she was being targeted and was not appropriately treated by her superiors. She was particularly upset that she was not given general nursing duties and was asked to do domestic duties... ‘ (Appellant's emphasis).
(j)      The Appellant refers to the clinical notes of her psychologist, particularly page 111 of the Application, where it is noted under the sub-heading of ‘Presenting Problem,’ in relation to a consultation on 28 August 2019 ‘Got sent for cleaning etc plus not nursing’ and page 112, under the sub-heading History of Problem ‘Feb 2018, when she started this job....’
(k)     The Appellant refers to the WorkCover NSW Certificate of Capacity dated 1 July 2019 of Dr Burbidge (page 183 of the Application) where amongst the issues noted to be causative of her condition, one of those is noted to be ‘Job capacity, CCA role versus nursing duties’.”
Based on that evidence, the appellant submitted that the date for assessing the existence or otherwise of a pre-existing condition or abnormality or previous injury was 28 February 2018, the day prior to commencing her employment with the respondent.
The respondent submitted that the evidence supported a finding that the appropriate date to consider the application of paragraph 11.10 of the Guidelines or s 323 of the 1998 Act “ought to be no earlier than 1 June 2019”. The respondent noted that Ms Clarke’s statement dated 9 October 2019 “suggests that the earliest record of any incident which are said to contribute to her psychological injury occurred in June 2019, although specific dates are not given”. It was in Ms Clarke’s later statement of 27 February 2020 that Ms Clarke stated that events in the workplace from the commencement of her employment contributed to her condition.
The respondent pointed to the clinical evidence, submitting:
“The clinical records of the Boulevarde Family Practice (page 95 ARD) make reference to an attendance in January 2019 wherein depression and stress are diagnosed following relationship breakdown, a prior suicide attempt many years ago following stress with daughter, post natal depression, and complex anxiety pattern. On 24 January 2019 (page 96/97 ARD) a diagnosis of Bipolar 2 Disorder is noted, with the worker presenting asking to be re-started on Lithium, and noting panic attacks, episodes of hypomania and profound depression. Subsequent attendances at this practice as evidenced in the clinical notes reveal presentation for Bipolar 2 Disorder, and relevantly make no reference to any work related complaints until 2 August 2019.”

For the Panel to determine the appeal, it is necessary to make a finding as to the point in time at which events in the workplace began to give rise to the psychological injury agreed to have been suffered by Ms Clarke. The appellant asserts that this is immediately prior to 1 March 2018 and the respondent no earlier than 1 June 2019.
For the reasons set out below, the Panel accepts that, prior to her commencing employment with the respondent, Ms Clarke suffered a relevant pre-existing condition which contributed to the extent of impairment assessed by the Medical Assessor.
The Panel notes that the description of injury referred to in the ARD is:
“At the time of injury, the applicant was employed by the respondent as a community care assistant/support nurse. Throughout the course of her employment, the applicant was subject to bullying and harassment at the hands of her co-worker. As a result she developed a psychological injury.”
As noted above, that injury was alleged to have occurred on 1 July 2019. Although not pleaded as a disease injury, the ultimate referral did refer to a deemed date of injury, thereby indicating that the injury was agreed to have accrued over a period of time.
The Panel places little weight upon the allegation in the ARD. The procedure for dispute resolution in the Commission is not one involving strict pleading. The prescribed form of reply makes no provision for the respondent to admit, deny or excuse[3] allegations as to the cause of injury. The issue of the relevant date is to be determined by the evidence.
[3] in common law terms, to traverse, admit or plead in confession and avoidance to an allegation of fact.
In her statement dated 9 October 2019 Ms Clarke said that she had commenced employment in March 2018 with the respondent as a Community Care Assistant. She said:
“There are three types of Community Care Assistants. 1. Domestic Assistant. 2. Nursing. 3. Community Care Assistant. I thought I was employed to provide nursing services, which is what I was told in the interview, however, was told by Gabrielle Blanch head of HR when I started that I had to be working with the insured for 12 months before I would be able to perform nursing duties.”
Ms Clarke said that she had spoken to the shift scheduler “multiple times (practically from the time I started) about picking up more work, that is, to perform nursing duties.” She said that six months prior to the date of the statement a new scheduler had provided her with “as much cleaning duty shifts as I could do, however, I was still not offered nursing shifts. I had no choice but to accept the cleaning shifts, as I needed the money.”[4]
[4] ARD, page 3, paragraph 19.
Ms Clarke also said that, after having been employed for 12 months, she had asked Gabrielle [described earlier as “head of HR”] and Lissa Wyborn, HR manager, on multiple occasions for more nursing work and they had said they would speak to the scheduler.[5] Ms Clarke said: “The direction and instruction I received was not adequate, due to the fact that I was promised nursing work, however, I received predominantly domestic duties.”[6]
[5] ARD, page 4, paragraph 20.
[6] ARD, page 4, paragraph 23.
Ms Clarke stated that she had experienced depression and anxiety for many years since having children and that this had been managed by medication and by her doctor. She said she was taking Lexapro, lithium and sleeping tablets. She said that the respondent had been aware of her depression and anxiety when she commenced employment.[7]
[7] ARD, page 5, paragraph 31.
The letter of offer by the respondent to Ms Clarke dated 23 February 2018 stated, “You will be employed in the classification of a Healthcare Worker and will be referred to as a Community Care Assistant (‘CCA’) – Level 3B.” That letter of offer was accepted by Ms Clarke. The Panel accepts that this letter accurately describes the nature of the employment which Ms Clarke was undertaking at commencement of that employment.
Ms Clarke confirmed that she had received a psychological injury, describing this as “workplace bullying and harassment”. Under the heading “Circumstances of Injury” Ms Clarke described a number of incidents. The first of these was at a meeting with Kialie Naughton “at her home on several occasions, mostly in mid-2019 to discuss client complaints.” Ms Clarke said “I felt targeted and isolated at having to meet at Kialie’s home.” She explained why she felt this. Ms Clarke said that she “found it intrusive and felt bullied” that Kialie had copies of her payslips. She also felt bullied being asked to perform a shift for a client who was a good friend of Kialie when Kialie was rostered to perform the following shift. She said that she felt that Kialie would criticise her work. She subsequently attended a meeting with Lissa Wyborn on 14 August 2019 when she was told that she was not being offered nursing work because “there were 18 CI [Continuous Improvement[8]] logs” against her. Ms Clarke said that she had known nothing of these complaints and was distraught. [9]
[8] Statement of Lissa Wyborn, Reply, page 64, paragraph 37.
[9] ARD, page 7, paragraph 47.
Ms Clarke described a second incident which occurred in late June 2019 when she was told that the Regional Manager, Kialie Naughton, wanted to meet with her at her home. She attended that meeting on 4 July 2019. Ms Naughton had raised timekeeping issues and Ms Clarke had said that these issues would not occur again. She was told that Ms Naughton wanted to meet with her again in a months’ time. No reason was given for this.
Ms Clarke then set out issues that involved her relationship with Ms Naughton and events occurring subsequently. These post-date the date of injury but apparently have been accepted by the parties as causally related to the original injury.
In the statement dated October 2019 Ms Clarke does not refer to incidents occurring prior to June 2019 under the heading “Circumstances of Injury”.
Under the heading “Medical treatment for injury” Ms Clarke said that she had first seen her general practitioner, Dr Andrew Burbidge, from the Boulevarde Family Practice at Toronto on one July 2019 as she was feeling “very stressed about work”. She said, “I felt like I was being bullied as I was not receiving any nursing shifts.” At a subsequent visit on 14 August 2019 the general practitioner had prescribed Valium and referred Ms Clarke for treatment with a psychologist, Janice [McKay] and a psychiatrist, Dr Pothala. She said “He [Dr Pothala] increased my medication (Lexapro) to 30 mg per day (maximum dosage that medication), and an extra 250 mg of lithium carbonate.”[10]
[10] ARD, page 11, paragraph 78
In a further statement dated 27 February 2020 Ms Clarke noted that her previous statement had been taken by an investigator on behalf of the insurer. She said the contents of her earlier statement were true and correct but in respect of any inconsistencies the more recent statement was to be preferred.
Ms Clarke set out her previous medical conditions and injuries:
“10. In or around 2004, I began to experience post-natal depression. I managed this condition with medication and regular visits to my doctor. With time and conservative treatment my mental health stabilised and I have not experienced psychological symptoms since approximately 2010.
11.    In or around 2015, I consulted with a psychiatrist to ensure my medications continued to be adequate as I had been on them long-term. No changes to my medication or treatment were required and I was able to work and function throughout this period.
12.    Prior to the subject injury, I did not suffer from any significant medical conditions that had any ongoing impacts upon my capacity to work.
13.    Immediately prior to the subject injury, I did not suffer from any psychological or mental conditions that had a significant or ongoing impact upon my ability to complete daily duties. My personal and family life was unproblematic and I enjoyed great social relationships, good health and overall wellbeing.
14.    I considered myself to have a happy and calm disposition with strong mental fortitude. I did not let every day and personal stressors get in the way of my active participation in work duties.”[11]
[11] ARD, page 14, paragraphs 10-14.
Ms Clarke confirmed that she had commenced employment with the respondent in March 2018. She said “I was recruited through Castle Personnel who handle clients who have depression and anxiety. Sue Mann Nursing and Community Care was aware of this arrangement at the time that I commenced employment.”[12].
[12] ARD, page 14, paragraph 15.
Ms Clarke said that she was initially employed as a Community Care Assistant and had progressed to become a Support Nurse, working 20 hours per week with occasional weekend shifts.
With respect to the subject injury Ms Clarke said:
“Throughout the course of my employment, I was exposed to ongoing interpersonal conflicts with my colleagues as a systemic issue rather than as the product of one single incident or meeting. As a result, I sustained psychological injuries in the form of Major Depressive Disorder, deemed by the insurer to have occurred on 1 July 2019. The factual circumstances surrounding the interpersonal conflicts leading to my psychological injury are comprehensively provided for in my previous statement.”[13]
[13] ARD, page 15, paragraph 18.
Ms Clarke noted that the insurer had initially rejected her claim, relying upon reasonable actions of the employer. She set out why she believed that was not the case. Ms Clarke noted that the insurer had asserted that her injuries were the result of three performance meetings. She said that it was also a result of being bullied and belittled by the HR manager, Lissa Wyborn, “in the presence of 100 co-workers and management” at a meeting in June 2019[14]. Ms Clarke also detailed issues with inconsistent procedures for notifying delay in attending to clients.[15]
[14] ARD, page 17, paragraph 25.
[15] ARD, page 17, paragraph 26.
Ms Clarke said that she had been informed at interview that she was to be employed as an Assistant in Nursing, but at induction had been informed that her position had been changed to a Community Care Assistant. She said that she had subsequently been informed that staff who were not trained as Assistants in Nursing were being allocated shifts.[16]
[16] ARD, page 17, paragraph 27(a).
Ms Clarke said that permanent clients that she had been looking after were gradually taken away from her and she was only being offered cleaning positions, except when she was offered a care shift at the last minute. She said that she was not aware of any complaints against her at that time.[17] Ms Clarke also said that she had been unfairly allocated to Saturday shifts and had been allocated on her own to clients who required the assistance of two care workers, creating safety issues.[18]
[17] ARD, page 17, paragraph 27(b).
[18] ARD, page 17, paragraph 27(c) and (d).
Ms Clarke detailed treatment that she had received following a panic attack in January 2020 and to subsequent treatment. She noted that, at the time of making that statement, medication included:
“a.     Lexapro 300 mg for depression,
b.      Valium 10 mg for panic attacks,
c.      Lithium 250 mg for mood stability, and
d.      Zopiclone 7.5 mg for sleep aid”.
The balance of Ms Clarke’s statement deals with continuing symptoms and her capacity to work.
In a further supplementary statement dated 10 December 2020 Ms Clarke again attributed a psychological injury to ongoing interpersonal conflicts in the workplace as set out in her earlier statement. She addressed allegations relating to events in the workplace including the meeting at McDonald’s with Kaillie Naughton where she was asked about her timekeeping. She had explained the problems that she had experienced and how she had remedied the situation.[19]
[19] ARD, page 24, paragraph 6(a).
She next discussed the meeting with Kaillie Naughton that had taken place at Ms Naughton’s home in late July 2019. As noted in her first statement she had been concerned that Ms Naughton had copies of her payslips. Other events occurring after the date of injury in August 2019 and September 2019 were also referred to. Ms Clarke referred to matters raised by the insurer with respect to the defence of “reasonable actions” then being relied upon by the insurer.
Ms Clarke noted that the insurer had asserted that she had consulted her general practitioner, Dr Burbidge, on 7 January 2019 when she was said to have reported suffering from depression and stress “from a relationship breakdown”. Ms Clarke said that she did not recall discussing this with Dr Burbidge as she had ended this relationship in April 2015. She said that this did not relate to her workplace injury in any way.
Ms Clarke disputed the insurer’s assertion that she had been diagnosed with bipolar disorder. She said that her pre-existing psychological condition had been “completely managed” through the use of medication and that she was “not experiencing significant symptoms” immediately prior to the workplace injury.[20]
[20] ARD, page 28, paragraph 7(e).
Ms Clarke set out in detail her response to the allegations made against her with regard to workplace performance. She said that she had not become aware of any complaints against her until a meeting with Lissa Wyborn on 14 August 2019.
Ms Clarke provided details of her activities of daily living, contrasting these with her activity prior to psychological injury.
A fellow worker, Katrina Burns, provided a statement dated 12 January 2021 which was in evidence. Ms Burns said that Ms Clarke had made complaints to her consistent with Ms Clarke’s statement. Ms Burns said that she believed that bullying and harassment of Ms Clarke had commenced when a long-time male client had upgraded his care package. She did not indicate when this occurred.
Records from Ms Clarke’s general practitioner, Dr Burbidge, were in evidence. In a letter of referral to the psychologist, Janice McKay, dated 7 January 2019, Dr Burbidge referred Ms Clarke for opinion and management, noting “She’s been having a big up-and-down over the last few weeks with the kids being away and Christmas.” Medication was noted to include Lexapro 20 mg.
A Mental Health Plan dated 7 January 2019 noted “low mood and affect congruent with this.” Ms Clarke was noted to be feeling “flattened fatigued and sad about her kids”. Under the heading “Insight” the general practitioner has noted “intact with recognition of mental illness”. Dr Burbidge diagnosed depression and noted “she has been having a big up-and-down time over the last few weeks with the kids being away and Christmas.”[21]
[21] ARD, page 122.
Records from a health provider, UHG, from December 2018 appear to deal with weight loss, an injury suffered when a patient fell on Ms Clarke in the shower and other physical health issues. An entry dated 7 January 2019 notes:
“depression and stress
§    stems from a relationship breakdown
§    moved away from Dubbo
§    kids still in Dubbo
§    come to visit every now and then
§    complex anxiety pattern and stress
§    noted: kids 10 and 13
§    noted prior suicide attempt many years prior with stress with daughter
§    noted postnatal depression”
Under the heading “Management” the record notes “discuss for medication management in the coming weeks currently on Lexapro and has had a long complex pattern in the past perhaps agomelatine.”
On 24 January 19 is a record of a visit in respect of “bipolar 2 disorder”. The history is recorded:
“presents for mental health consultation – currently having panic attacks – describes as that she was previously on lithium as a mood stabiliser but self stop this a while ago – is now displaying episodes of hypomania and profound depression – wants to start back on her lithium – discussed the process pros and cons – she would like to start on this following her mood in the last few weeks.”[22]
A recommendation for psychiatric review was made and Ms Clarke was prescribed lithium and Valium. Ms Clarke was referred to Dr Pothala for opinion and management. Dr Burbidge noted “she has previously been on lithium for mood stabilisation”.
[22] ARD, page 141.
On 12 February 2019 improvement is noted with lithium. On 7 March 2019 the record shows an increase in the prescription for lithium. On 2 August 2019 Ms Clarke presented with “work problems”. The note records “Presents for review work stress – currently having issues with workplace bullying – counselling and support – working for Sue Mann – having issues with senior management.”[23]
[23] ARD, page 147.
A number of reports from Dr Pothala were in evidence. In his report dated 19 March 2019 Dr Pothala reported that he had reviewed Ms Clarke on 6 March 2019. He reported:
“Susan reported chronic mental health problems characterised by emotional lability, poor distress tolerance, interpersonal sensitivity and anger management issues.
Susan reported mood swings characterised by rage, anger and she lashes out at others, mostly family members. She reported that she can be very nasty during such periods and can say very hurtful things that she later regrets. These seem to be getting more frequent in the recent times and also contributed occasionally by intoxication with alcohol.”
Susan reported a lot of anger appears to be chronic and she copes with it by blocking it. She reported chronic unhappiness stemming from her childhood experiences. She reported being marginalised by her mother was always domineering and critical of her. Her mother favoured her sister and was very harsh towards Susan. Her father is timid and never supported Susan.
On background of such prejudicial childhood, Susan developed Postnatal Depression in 2004 after she had her first child. Both the children were born with IVF and it was difficult and stressful. Ever since, she suffered from bouts of depression, which was chronic in nature.
Susan eventually separated from her husband and moved to Newcastle to live with her brother-in-law and nephew. She has good relationship with her children and her ex-husband and she sees the children on a regular basis and feels this was a better decision for her and her family. However, her parents are not approving her decision and have stopped contact with her.
Susan remains socially isolated and has no friends. She works full-time and enjoys her job but has no other hobbies or social activities. She is frequently frustrated and when she gets depressed she consumes alcohol and gets angry and abusive.” (Emphasis added.)
Dr Pothala noted that Ms Clarke had previously been prescribed lithium and antidepressants when living in Dubbo. She had been admitted to Mater Hospital and seen by the Community Mental Health Team following an overdose two years earlier. All medication had been stopped at that time and changed to Lexapro. Dr Pothala diagnosed Persistent Depressive Disorder and recommended long-term psychotherapy and medication. The psychiatrist noted that this was a “one-off assessment”.
Dr Pothala saw Ms Clarke again on 18 September 2019. He noted a history of employment as a Community Care Assistant. The psychiatrist recorded:
“She was upset as she was asked to do house cleaning as opposed to nursing duties even after 12 months. She was only given some relief nursing duties while they were recruiting some new staff and kept refusing to give her the same nursing duties. When she asked for nursing duties and met with HR she was told there were a number of complaints against her by some clients. She was surprised by these as she was not aware of those complaints except a few.
Ms Clarke reported having problems with her regional manager who she alleged was personally targeting her and harassing her. Susan was asked to attend housecleaning at a client on about three (3) occasions, and she later found that she was the regional manager’s friend. In August she was told that this client had made a complaint, which distressed her. She stopped working on 8 August 2019 and attended her GP.”

Dr Pothala noted that Ms Clarke had a “past history of depressive disorder and was on medication for many years”. He agreed that “Ms Clarke’s employment was the main contributing factor to Ms Clarke’s injury and/or condition, subsequent incapacity and need for treatment.”
In discussing the report supplied to the insurer by Dr Teoh, Dr Pothala noted:
“Ms Clarke also felt that over the period of her employment she was being targeted and was not appropriately treated by her superiors. She was particularly upset that she was not given general nursing duties and was asked to do domestic duties. She also felt she was not well treated at the time of meetings were conducted about the allegations made against her, the majority of which she was not even aware of.”
Dr Pothala provided a report dated 1 November 2019, apparently in support of an application for the release of superannuation money held on Ms Clarke’s behalf. He reported “Susan Clarke has a history of mental illness being Bipolar Affective Disorder and is currently experiencing severe depression with suicidal ideation in the context of work-related injury.” Dr Pothala stated that Ms Clarke required an urgent admission to hospital to start treatment.
Clinical notes from the psychologist, Ms McKay were in evidence. The notes record attendances from 28 August 2019 onwards. They do not assist in determining the issue of the point at which events in the workplace began to result in or contribute to psychological injury.
Reports by independent medical expert, Dr Ben Teoh, psychiatrist, were in evidence. Dr Teoh examined Ms Clarke at the request of the insurer on 28 October 2019. In his report dated 8 November 2019 Dr Teoh noted Ms Clarke’s history of employment with the respondent for a period of 18 months, having last worked on 8 August 2019. He noted “Ms Clarke reported that she had consulted her general practitioner for another medical condition on 1 July 2019. She informed her general practitioner that she was not happy with work.”
Dr Teoh noted that the general practitioner had prescribed Lexapro which he said Ms Clarke had been taking for 20 years “as a result of anxiety/depression and panic attacks”. He recorded: “She reported that she was unfairly treated and bullied at work. She said that she was offered a position which was ‘pulled off in March 2019, without explanation’. She reported that she had to attend a meeting in July, 2018 at the manager’s house.”
Dr Teoh commented that Ms Clarke was “vague about her history in relation to the ‘bullying’” and “she said that she was not given a nursing role, and she was ‘fed up’”. Dr Teoh diagnosed Adjustment Disorder with Anxious Mood. He noted “a history of significant anxiety symptoms” and stated “It is my opinion that her anxiety symptoms are not caused by specific events or work injury. She had a relapse of her anxiety condition as a result of her allegations at work and industrial issues.” He reported: “The performance appraisal and disciplinary meeting is the predominant cause of the aggravation of her pre-existing anxiety condition.”[24]
[24] Reply, page 156.
Ms Clarke participated in a Telehealth Assessment with Dr Teoh on 22 September 2020. Dr Teoh noted additional details relating to issues Ms Clarke said she had experienced at work with “several meetings in 2018 and 2019 regarding her performance and management of clients”. Dr Teoh diagnosed “Chronic Adjustment Disorder with Mixed Anxious and Depressed Mood”. He explained why he disagreed with the assessment of Dr Allan as to the extent of impairment.
Ms Clarke was examined by an independent medical expert, Dr Martin Allan, consultant psychiatrist, on 13 January 2020 at the request of Ms Clarke’s solicitors. Dr Allan noted Ms Clarke’s domestic arrangements in her employment as a community care Assistant with the respondent for whom she had last worked in August 2019. He noted that Ms Clarke had suffered significant weight gain since July 2019.
Dr Allan recorded that Ms Clarke was taking Valium up to three times a week when experiencing a panic attack and had been taking this medication “since July 2019”. She was also noted to be taking Escitalopram [Lexapro] with a dosage increase to 30 mg a day. She had been on this medication as well as lithium for over a decade. He noted that she was consulting her psychiatrist, Dr Pothala, who, he said, she had been seeing for three years.
Dr Allan noted a history of postnatal depression approximately 16 years earlier. It was at that time she had commenced on treatment for her mental health. He noted that Ms Clarke denied that she had ever been diagnosed with bipolar affective disorder and commented that he found no indication of manic symptoms in the past. He commented “Despite this she has been managed on lithium and mood stabilising medication in the long-term.” He reported: “Ms Clarke indicated that she has been stable on medication without any mental health symptoms for much of the last decade until the middle of 2019.”
Ms Clarke denied any enduring psychological symptoms for years at the time of commencing work with the respondent.
Dr Allan recorded Ms Clarke’s reported history of issues in the workplace and impact on the health: “Ms Clarke described her health going downhill in July 2019 in the context of stress in the workplace”. He said that Ms Clarke had some difficulties giving a clear timeline of the various stress or she experienced in the workplace and was assisted by her friend and former colleague, Katrina Burns, who also worked for the Sue Mann organisation previously. He said:
“The evolution of events was somewhat difficult to follow. I understand that Ms Clarke was desirous of having ‘nursing’ shifts rather than ‘domestic assistant’ shifts but would repeatedly for unclear reasons not be given such shifts. This was however in the context of also being provided a nursing shift every third Saturday and occasionally at short notice being called in to complete such shifts. She indicated a sense of frustration at the observation that other colleagues were given such desirable shifts and she was being declined them. Ms Clarke and a colleague described Ms Clarke as being ‘physically made’ to do such nursing shift every third Saturday ‘when it suited them’ referring to her superiors.”
Dr Allan noted the issues regarding complaints and meetings with Ms Naughton and the issues that Ms Clarke perceived with Lissa Wyborn, Trish Watts and Alison Mohan. Dr Allan diagnosed Major Depressive Disorder. He said: “I regard Ms Clarke as having a pre-existing depressive disorder which had first emerged in a postnatal period. This essentially resolved with treatment from the history provided she would have benefited from ceasing medications a long time ago.”.
With respect to causation, Dr Allan said:
“The workplace stress has primarily arisen out of Ms Clarke having failed to being (sic) given nursing tasks and instead being given domestic tasks, being treated poorly from the regional manager, Kialie Naughton, and predominantly being placed on performance management an extremely odd circumstances where Ms Clarke alleged she was not told specifically that she was being placed under such conditions. The performance management that was described as to have been put in place appears to have been done without clarity by her employer leaving Ms Clarke to be entirely unsure of her situation.”.
Dr Allan again assessed Ms Clarke on 6 August 2020 at the request of Ms Clarke’s solicitors. Dr Allan was supplied with a number of documents, including the report of Dr Pothala dated 1 November 2019. In his report dated 5 January 2021 Dr Allan reported that he had reviewed the additional material. He noted “a past psychiatric history with Ms Clarke which showed her having postnatal depression approximately 16 years ago.” He noted that Ms Clarke denied ever having been diagnosed with a bipolar affective disorder but said that this had been considered as a possible diagnosis for her previously. He did not accept that she had that disorder but noted that she had been managed on lithium in the long-term.
Dr Allan noted that Ms Clarke had been “stable on medication without any mental health symptoms from right through the last decade until the middle of 2019”. He said “In regards to her workplace issues, I noted that her health had been ‘going downhill’ from mid-2019 in the context of workplace stress.”
Ms Clarke’s solicitors asked Dr Allan to comment on the report by Dr Teoh and the investigation report. He commented:
“I found no history to indicate that Ms Clarke had ‘significant anxiety symptoms’ that had been observed by Dr Teoh. I do not feel that she had enduring symptoms or fluctuant symptoms in regards to her past mood issues. She appeared to be in a paved state of stability in regards to these past problems and had been maintained on medication, only for the circumstances of the work to bring about an exacerbation of her condition.”
Dr Allan said that his overall impression was that the “various issues” outlined in his report were the cause of Ms Clarke’s problem developing. He said “This includes the focused targeted treatment that she alleges being in receipt of. This led to her impression of there being a ‘vendetta’ against her.” The various issues referred to by Dr Allan included the expectation of a nursing role.
The Medical Assessor, under the heading “Details of any previous or subsequent accidents, injuries or condition” stated:
“Ms Clarke first had mental health problems after the birth of her first child, 17 years ago. She was diagnosed with postnatal depression. She has been on treatment almost continuously since then, although she has functioned during that time.
She denies any hypomanic or manic episodes, and it is unlikely that she has had any form of bipolar disorder.
Although she has problems with emotional dysregulation now, she denies that this was the case before she started work at Sue Mann (see below)
GP notes from 7 January 2019 and 10 January 2019 discuss severe mental health problems from relationship difficulties. There is mention of panic attacks, hypomania, and profound depression.
She was referred to her psychiatrist, Dr Pothala, before the onset of workplace difficulties and Dr Pothala first offers a report on 19 March 2019. I discuss this in more detail below.”[25].
[25] MAC, page 3.
Under the heading “summary of injuries and diagnoses” the Medical Assessor diagnosed persistent depressive disorder with a current major depressive episode (severe) and anxious distress. He reported:
“Ms Clarke has a long-standing mood disorder with anxiety, which has been exacerbated during her work with Susan Mann. She meets the criteria for a major depressive disorder on the background of persistent depression (dysthymia).
I could find no evidence of bipolarity, an inference that may have been drawn because of the use of low-dose lithium carbonate. However, this drug is also used in difficult to treat depression.
She denies developmental trauma or emotional dysregulation before 2019. Her psychiatrist has suggested borderline personality traits, citing long-standing problems, which is likely true. I have insufficient information to make a formal diagnosis of a personality disorder.”.
The Medical Assessor noted “considerable inconsistencies”, between the account provided to him by Ms Clarke on the day of examination and the information available in contemporaneous notes from treating clinicians. He observed “These inconsistencies also carry through to the assessments of IME psychiatrists”. The Medical Assessor noted that Ms Clarke reported that her mental health problems were well-controlled and did not impact on her life. She reported having a supportive and caring upbringing, social life was active and rewarding enjoyed fishing and outings with friends. She said she never had problems with alcohol use and her problems with emotional dysregulation, interpersonal sensitivity and relationships only started with her workplace problems.
The Medical Assessor noted that these assertions by Ms Clarke were contradicted by clinicians’ notes, written before the start of her workplace problems, at a time when she said she was enjoying her work. The Medical Assessor raised this issue with Ms Clarke who stated that the accounts of the treating clinicians were not accurate.
The Medical Assessor concluded:
“I do not have confidence that Ms Clarke has provided a complete and accurate history. I rely on my clinical judgement, using the interview with Ms Clarke and documents provided by the PIC in making my determination of diagnoses and impairment. Where there is no evidence that contradicts it, I accept the version offered by Ms Clarke.”
The Medical Assessor determined 28% WPI but deducted one half for pre-existing impairment and the contribution of the pre-existing condition. The Medical Assessor noted the observations of Dr Burbidge on 7 January where the general practitioner noted depression and anxiety which “stems from relationship breakdown … Complex anxiety pattern and stress noted prior suicide attempt many years prior with stress with daughter” and the observations on 10 January 2019 “currently having panic attacks… Episodes of hypomania and profound depression.” The Medical Assessor noted that the first discussion of work-related problems with the general practitioner was in August 2019.
The Medical Assessor quoted from the report of Dr Pothala from March 2019 extracted above, recording complaint of “chronic mental health problems”, “chronic unhappiness” and feeling “socially isolated and has no friends” although she was reported as enjoying her job.
The Medical Assessor reviewed the reports of the respective independent medical experts, noting areas of disagreement. With respect to the history provided to the independent medical experts by Ms Clarke he commented:
“The clinical notes present a very different picture that put forward by Ms Clarke. They suggest that she had severe mental health problems with significant impairment before the onset of workplace problems. She tells her psychiatrist in March 2019 that she enjoys her job. At this time, she is unwell and socially isolated due to relationship difficulties and her move from Dubbo. She has no friends, is living apart from the children, and is estranged from her parents. She tells her psychiatrist that she has no hobbies or interests.
Contrary to what she said today, she discussed with her psychiatrist a prejudicial childhood, personality based emotional dysregulation and sensitivity, and alcohol use problems. I had asked her specifically about these issues, and she denied them, including stating that reports written about her were incorrect.”
The Panel accepts that the records of the general practitioner, Dr Burbidge and the treating psychiatrist, Dr Pothala, record a significantly different situation to that subsequently recalled by Ms Clarke and reported to Dr Teoh and Dr Allan at the time of their respective assessments of her mental state. It is consistent with the psychological condition suffered by Ms Clarke that she has come to view past events in a negative light and as causative of her condition.
Neither Dr Allan nor Dr Teoh appear to have been supplied with Dr Pothala’s report of 19 March 2019. The Panel accepts that the Medical Assessor was correct to prefer the contemporaneous records to the subsequent account given by Ms Clarke after June 2019.
The evidence before the Medical Assessor establishes the existence of a pre-existing condition. The Panel accepts the diagnosis of that condition as described by Dr Pothala in his report of 19 March 2019 as “persistent depressive disorder”. The Panel does not accept the view of Dr Allan that the prior condition had resolved. That view is contradicted by the continued requirement for medication and is at odds with the recruitment of Ms Clarke through an agency specialising in clients suffering depression and anxiety.
As noted in the direction for further submissions issued to the parties, it was necessary for the Medical Assessor to determine the point of time at which it was appropriate to consider whether the pre-existing condition contributed to the impairment assessed upon examination by the Medical Assessor.
On the basis of the evidence before the Medical Assessor, it is evident that the Persistent Depressive Disorder diagnosed by the treating psychiatrist, Dr Pothala, predated the events in June 2019 but also predated the commencement of Ms Clarke’s employment with the respondent.
The Panel accepts that, whether considered at the time of commencement of her employment in March 2018 or in June 2019, Ms Clarke suffered from a pre-existing psychological condition which contributed to the impairment assessed upon examination by the Medical Assessor.
In January 2019 Dr Pothala diagnosed a persistent depressive disorder (also called dysthymia). This is one of the same disorders diagnosed by the Medical Assessor as still being present when he assessed her. By definition in the Diagnostic Services Manual 5 the diagnosis of this disorder requires that the person have a “depressed mood for most of the days, for more days than not… for at least 2 years” with at least two other specified symptoms, and that “these symptoms cause clinically significant distress or impairment in social, occupational or other important areas of functioning”. As such Dr Pothala identified that Ms Clarke had been symptomatic with some impairment for at least two years prior to his assessment and thus for at least a year prior to her commencing employment with the respondent.
The appellant submitted “there was no diagnostic evidence identified by the assessor of a diagnosable pre-existing condition. He accordingly fell into error”[26] and;
“There was no evidence for the assessor to determine that before the workplace condition her ‘depression was profound’. There is no evidence to suggest that there was any diagnosable pre-existing condition. There was simply an assumption by the assessor that she had a significant psychological condition.”
[26] Appellant’s submissions, paragraph 3.27.
The Panel does not accept that submission. The report of Dr Pothala in March 2019, the clinical notes of the treating general practitioner, the pre-existing long-term reliance on medication and the referral to employment by an agency handling clients suffering from anxiety and depression[27] establish the existence of a pre-existing psychological condition. As well as the requirement for a specialised employment agency indicating some vocational impairment, Dr Pothala’s report indicates significant impairment in the domains of social and recreational activities and social function.
[27] Appellant’s statement, dated 27 February 2020, paragraph 15.
The appellant further submitted:
“Further the medical assessor stated at 11.c ‘information was insufficient to accurately (using a PIRS Table) determine the pre-existing impairments’. With respect the assessor has made this statement but has not indicated what information if any he additionally required, nor has he correctly considered information which she had before him. In doing so he fell into a demonstrable error and has incorrectly assessed matter based on incorrect criteria.”
The Panel does not accept that submission. Although not specifically stated as the basis for his determination, that the information was insufficient to accurately determine pre-existing impairment by means of a PIRS Table, the Medical Assessor made it clear that he was unable to accept Ms Clarke’s account of her pre-injury level of function as it conflicted with the description provided by Dr Pothala in his report of March 2019. At the time of examination by the Medical Assessor, Ms Clarke was correctly found to be suffering a relatively severe level of impairment due to psychological injury. That condition would result in Ms Clarke having a distorted recollection of her pre-injury condition. There is insufficient detail in Dr Pothala’s report from March 2019 to permit accurate assessment of the areas of function prior to employment.

The result is that there was insufficient reliable evidence for the Medical Assessor to apply paragraph 11.10 of the Guidelines which requires the Medical Assessor to assess the appellant’s class of impairment with respect to each of the six areas of function described in paragraph 11.11 prior to the subject injury.
To the extent that the condition was asymptomatic, the decision of Simpson AJ in Marks v Secretary, Department of Communities and Justice (No 2)[28] held that cl 11.10 of the Guidelines was ultra vires the 1998 Act. Whether Ms Clarke was asymptomatic prior to the commencement of employment or not, the Panel accepts that it is not possible from the information available to apply paragraph 11.10 of the Guidelines. In that situation, it is necessary to consider whether the assumption that there should be a deduction of one tenth is at odds with the available evidence[29].
[28] [2021] NSWSC 306.
[29] 1998 Act, section 323(2).
The Panel is satisfied that the pre-existing condition, although perceived by Ms Clarke as asymptomatic, would have been disabling by its nature and would have significantly borne upon Ms Clarke’s perception of events in the workplace and her ability to function with respect to her activities of daily living.
Although Ms Clarke describes her pre-injury condition in positive terms, it is clear from Dr Pothala’s report in March 2019 that she was already showing significant symptoms of that pre-existing condition. It was open and appropriate for the Medical Assessor to assess that a deduction of one tenth was at odds with the evidence, and to assess the pre-existing condition as contributing one half to the impairment assessed at the time of his examination.
For these reasons, the Appeal Panel has determined that the MAC issued on 10 May 2021 should be confirmed.

[2022] NSWPICMP 268

6 July 2022