Coca-Cola Amatil (now Coca-Cola Europacific Partners API Pty Ltd) v Pombinho

DETERMINATION OF APPEAL PANEL
CITATION:	Coca-Cola Amatil (now Coca-Cola Europacific Partners API Pty Ltd) v Pombinho [2023] NSWPICMP 98
APPELLANT:	Coca Cola Amatil (now Coca-Cola Europacific Partners API Pty Ltd)
RESPONDENT:	Luis Manuel Pombinho
Appeal Panel
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	20 March 2023
CATCHWORDS:	wORKERS cOMPENSATION - Impairment resulting from psychiatric injury; appellant alleged error as Medical Assessor (MA) failed to consider any secondary psychiatric injury from concurrent physical injuries; MA failed to consider the General Practitioner’s clinical notes; MA failed to consider impact of physical injuries and covid pandemic on assessment of Psychiatric Impairment Rating Scale (PIRS) categories; MA failed to make a deduction for a pre-existing injury; Panel satisfied that MA did not consider whether worker had a secondary psychiatric injury; worker re-examined; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 8 November 2022 Coca Cola Amatil (now Coca-Cola Europacific Partners API Pty Ltd) (the appellant) made an application to appeal against a medical assessment (the appeal) to the President of the Personal Injury Commission (Commission). The medical assessment was made by Dr Surabhi Verma, Medical Assessor and issued on 26 October 2022.
The respondent to the appeal is Luis Manuel Pombinho (Mr Pombinho).
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 pursuant to
s 327(3)(c) of the 1998 Act, 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 grounds 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

Mr Pombinho developed a primary psychological injury in the course of his employment with the appellant as a warehouse machine operator.
Mr Pombinho commenced proceedings in the Commission claiming 23% whole person impairment (WPI) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 31 May 2021.
In a Certificate of Determination – Consent Orders (COD) dated 19 August 2022 Member Snell determined:
“1.     The applicant’s claim for permanent impairment resulting from primary psychological injury sustained in the course of his employment with the respondent, with deemed date of injury of 31 May 2021, as agreed, is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from that injury.
2.     The following documents are to be referred to the Medical Assessor together with this Certificate of Determination Consent Orders:
a. Application to Resolve a Dispute and attached documents,
b. Reply and attached documents.
c. Application to Admit Late Documents dated 11 August 2022 and attached documents lodged by the applicant, and
d.Application to Admit Late Documents dated 15 August 2020 and attached documents lodged by the respondent.
Notations
A.      The Medical Assessor is to make such deduction as the Medical Assessor sees fit in respect of secondary psychological injury (if any).”
The matter was referred to the Medical Assessor on 29 August 2022 for assessment of WPI of Mr Pombinho’s psychological injury deemed to have occurred on 31 May 2021.
The Medical Assessor examined Mr Pombinho on 21 September 2022 through video link. The Medical Assessor assessed 24% WPI as a result of the injury deemed to have occurred on 31 May 2021.

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 Mr Pombinho 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 necessary for Mr Pombinho to undergo a further medical examination because there was insufficient 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.

Further medical examination

Professor Nicholas Glozier of the Appeal Panel conducted an examination of Mr Pombinho on 1 March 2023 and reported to the Appeal Panel.

Medical Assessment Certificate

The parts of the Medical Assessment Certificate (MAC) 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)    Ground 1 - The Medical Assessor failed to consider the contents of the COD dated 19 August 2022 and the notation in the COD that the Medical Assessor was to “make such deduction as the Medical Assessor sees fit in respect of secondary psychological injury (if any)”. There was no consideration of this in the MAC.
(b)    The COD contained no consideration by the Medical Assessor as to whether
Mr Pombinho had a secondary psychological injury resulting from the concurrent physical injuries to the right knee and both shoulders and, if so, whether there was any WPI resulting for such an injury for the purposes of s 65A of the 1987 Act.
(c)    An email was sent to the Commission on 30 August 2022 requesting that the notation be specifically included in the referral to the Medical Assessor, however, the referral did not appear to have been amended. In any event, the notation was included in the material but did not appear to have been considered by the Medical Assessor. This was a failure by the Medical Assessor to take relevant evidence or relevant considerations relating to a potential secondary psychological injury into account.
(d)    The Medical Appeal Panel (MAP) decision in Christine Susan Dellaca v Chubb Security Australia Pty Limited [2020] NSWWCCMA 153 determined that the MAC contained a demonstrable error in that the Medical Assessor failed to give reasons for his opinion and at [36] accepted that the Medical Assessor “has not provided adequate or appropriate reasons”.
(e)    The Medical Assessor’s failure to consider the notation was a demonstrable error and further, even if the Medical Assessor had considered the notation, she failed to provide any reasons or express an opinion on the issue.
(f)    Ground 2 - The Medical Assessor did not consider the material contained in the Reply or the appellant's Application to Admit Late Documents (AALD). The referral to the Medical Assessor included the Reply and the appellant's AALD. However, the list of documents at page 1 of the MAC did not reference the Reply or the material contained therein with the exception of the report of Dr Bisht. The MAC made no reference to the evidence submitted on behalf of the appellant, including the clinical records from Hassall Grove Medical Centre. While there was a cursory reference to the reports of Dr Bisht and Dr Akkerman at page 1 of the MAC, there was no further reference or consideration of these reports, including Dr Bisht's opinion in relation to a secondary psychological condition.
(g)    In Massie v Southern NSW Timber and Hardware Pty Ltd [2006] NSWSC 1045 (Massie) Sully J noted that the Approved Medical Specialist (AMS) issued a MAC containing a number of errors which included a failure to take into account a medical report filed pursuant to an AALD. In Massie, Sully J noted at [40] that:
“…What that application is really contending is that it is demonstrable that Dr O’Neill, through no fault of his own, did not take into account Dr Harris’ report, and that Dr O’Neill’s certificate, even if it is clearly sustainable on the whole of the material that Dr O’Neill did in fact consider, should nevertheless not be permitted to stand because of a demonstrable need to reconsider the reasoning underpinning the certificate, and to do that taking into proper account Dr Harris’ report.”
(h)    In Thomas Galvin v Comtam Pty Ltd [2020] NSWWCCMA 3 (Galvin) the Medical Appeal Panel (MAP) determined that the MAC contained a demonstrable error and noted at [27] that an AMS “does not have to refer to every item of evidence to explain his or her assessment of a worker”, but they do need to “consider all the evidence” and that “it is an error…not to consider all relevant and significant material.” The MAP concluded at [26] in Galvin that it was not for them “to speculate as to what the AMS would have made of that evidence”, but “the fact that the AMS did not consider it, amounts to an error in the AMS's assessment”. The MAP ultimately revoked the MAC and re-examined the appellant worker.
(i)    There was a demonstrable error in that the Medical Assessor failed to consider the contents of the Reply and AALD and while the Medical Assessor was not required to refer to all the evidence, she was required to consider the significant material that included the reports of Dr Bisht and Dr Akkerman (which she had access to) as well as the material contained in the Reply, in particular, the clinical records from Hassall Grove Medical Centre.
(j)    Even if it was established that the Medical Assessor did consider the appellant's evidence, there was a failure to provide any or any adequate reasons as to why her opinion differed to that of Dr Bisht.
(k)    Ground 3 - In combination with Grounds 1 and 2 of above, the Medical Assessor failed to appropriately consider the impact of Mr Pombinho’s physical injuries, including any medication he might be taking for those conditions, as well as the impact of the COVID-19 pandemic on the Psychiatric Impairment Rating Scale (PIRS).
(l)    The Medical Assessor recorded Mr Pombinho’s social activities and activities of daily living at page of 4 of the MAC and was informed, inter alia, that he:
a. used to enjoy renovating furniture, but had not done that in a long time;
b. used to travel overseas every two years but had not travelled in the last four years;
c. was not actively involved in doing household chores, and
d. had not worked since December 2019.
(m)     The Medical Assessor's failure to consider the presence of a secondary psychological injury and to consider the appellant's evidence further resulted in a failure by the Medical Assessor to consider the impact of any secondary psychological condition and his concurrent workers compensation claims relating to his physical injuries in addressing the impact on the PIRS.
(n)    The Medical Assessor's assessment of moderate impairment for "travel" omitted the possibility that Mr Pombinho had been unable to travel in the last two years as a result of the restrictions on travel resulting from the COVID-19 pandemic as well as his various concurrent physical injuries.
(o)    There was a demonstrable error in the Medical Assessor's failure to consider the impact of any secondary psychological condition, the concurrent physical injuries and COVID-19 on the PIRS and/or otherwise failed to provide any or any adequate reasons as to why these matters would not have an impact on the PIRS.
(p)    Ground 4 - The Medical Assessor detailed Mr Pombinho’s previous and subsequent accidents, injuries and conditions at pages 3 and 4 of the MAC and confirmed that he developed mental health issues and was on antidepressants. She further noted that Mr Pombinho was on Lovan at the time of his present injury, but that he reported he was “mentally fit and fine when he started working” with the appellant. The Medical Assessor expressed the view at page 5 of the MAC that there was
“no proposition of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality as although he was on antidepressants at the time of the alleged injury, he was symptomatic at that time.”
On this basis, no deduction was applied by the Medical Assessor for the purposes of s 323 of the 1998 Act.
(q)    In Marks v Secretary, Department of Communities and Justice (No. 2) [2021] NSWSC 616 (4 June 2021) (Marks) Simpson AJA held at [16] that:
"the more important question, which the plaintiff's submissions did not address, is whether a pre-existing condition, notwithstanding that it is asymptomatic at the time of the injury in respect of which the assessment is undertaken, may, nevertheless, contribute to the degree of impairment."
Further at [19] she held that
“… there is nothing in s323(1) that authorises exclusion of asymptomatic pre-existing conditions as causative or partially causative of a subsequent impairment.”
(r)    The clinical records from Hassall Grove Medical Centre contained at page 138 of the Reply and the report of Dr Akkerman dated 10 April 2013 at page 3 of the AALD clearly demonstrated a previous psychiatric history. The Medical Assessor accepted that this had a lasting impact on Mr Pombinho noting the ongoing treatment by way of medication.
(s)    Having regard to the entries in the clinical notes of Hassall Grove Medical Centre, and a history of previous psychiatric complaint, the suggestion that Mr Pombinho was mentally fit and well prior to commencing with the appellant and the suggestion that he was asymptomatic at the time of the alleged injury did not accord with the clinical records and the presentations in the notes that detail his ongoing psychological complaints and physical injuries. Consideration ought to have been given to the contribution of the pre-existing psychological condition to the degree of impairment, whether or not it was symptomatic, and a deduction applied under s 323 of the 1998 Act.
(t) Incorrect Criteria – the “demonstrable errors” referred to above in terms of the Medical Assessor's failure to consider or properly consider the relevant and significant material and the failure to apply a deduction under s 323 of the 1998 Act also resulted in an incorrect application of the Guidelines. The foregoing submissions and observations highlight the application of both “incorrect criteria” and the presence of “demonstrable error” in the MAC for the purposes of s 327(3) of the 1998 Act.
Mr Pombinho’s submissions include the following:
(a)    Ground 1 - The Application to Resolve a Dispute (ARD) described the injury relied upon as a significant primary psychological injury as a result of interpersonal conflict with the appellant’s employees and being exposed to risk of harm in the workplace resulting in physical injury. A claim was made for 23% WPI relying upon the assessment of Dr Clark in his report dated 16 April 2021.
(b)    In a s 78 notice dated 17 June 2021 the claim for permanent impairment compensation was denied on the basis that there was a dispute in respect of the injury, whether employment was a substantial contributing factor to any injury, or whether employment was the main contributing factor to any injury or to any aggravation of an injury. In a subsequent s 78 notice dated 23 September 2021 the appellant repeated the grounds for denying the claim and added an allegation that the injury was wholly or directly caused by reasonable action taken or proposed to be taken with respect to discipline and dismissal of workers. The Reply did not expand upon the s 78 notice.
(c)    The matter first came before Member Snell on or about 26 July 2022. In a direction issued on that date the Member recorded the issues which were in dispute:
a. The applicant had failed to comply with the time frame within which his claim for compensation must be made.
b. The respondent’s injury was wholly or predominately caused by reasonable action taken by or proposed to be taken on behalf of the appellant with respect to discipline and / or dismissal of workers.
c. Whether the impairment resulting from primary psychological injury was below the prescribed threshold of 15%.
(d)    There was no allegation of the existence of a secondary psychological injury being made at that stage.
(e)    In a conciliation and arbitration conference on 19 August 2022, an agreement was reached that Mr Pombinho had brought the claim within time and that the s 11A defence had not been made out. The consent orders provided for a referral to the Medical Assessor and identified the documents to be sent. The consent orders did not include any finding that there was a secondary psychological injury. The existence or otherwise of a secondary psychological injury was a matter to be determined by the Commission member and not by the Medical Assessor.
(f)    The notation that “the medical assessor is to make such deduction as the medical assessor sees fit in respect of secondary psychological injury (if any)” did not constitute a finding of the existence of a secondary psychological injury. It was merely a notation and not the subject of any order by the Commission. The referral made no mention of the notation. Because of the lack of a finding of a secondary psychological injury, the Medical Assessor was entitled to treat the matter as an assessment of the impairment resulting from a primary psychological injury. This was precisely what the Medical Assessor did.
(g)    In the absence of a finding of a secondary psychological injury there was no basis on which the Medical Assessor could make a deduction for the effects of such an injury. In the circumstances the Medical Assessor was not under any obligation to give reasons for not making such a deduction.
(h)    The Medical Assessor was entitled to rely upon his own history taking. The history taken by the Medical Assessor did not disclose any psychological symptoms or complaints secondary to Mr Pombinho’s physical injuries. This was also consistent with Mr Pombinho’s statement which only identified symptoms as a result of the interpersonal conflict to which he was exposed. He made no complaint about any symptoms resulting from a physical injury.
(i)    Ground 2 - At part 2 of the MAC the Medical Assessor identified the documents which had been provided including the report of Dr Bisht of 9 September 2021 and the report of Dr Akkerman of 10 April 2013. The report of Dr Akkerman was in respect of assessment carried in April 2013. This was prior to Mr Pombinho commencing employment with the appellant. The report contains an assessment of WPI.
(j)    The Medical Assessor took a history that Mr Pombinho’s current psychological symptoms which arose in or about April 2018 shortly after he was threatened by his supervisor. This was five years after the examination by Dr Akkerman. The Medical Assessor was aware that Mr Pombinho had a past history of major depressive disorder however he accepted the history from Mr Pombinho that he was asymptomatic at the time of the deemed injury. He was coping well, was working full time and there was no evidence of deterioration in his professional or personal functioning. This was consistent with the clinical notes referred to by the appellant which showed that after July 2014 Mr Pombinho ceased being prescribed Luvox. That prescription only recommenced in February 2017 noting that on 5 July 2017 presentation was in relation to anxiety only at workplace. The Luvox was ceased in November 2017. In the circumstances there was no need for the Medical Assessor to expressly refer to Dr Ackerman’s report as it was consistent with the history that he had taken and therefore did not need further comment.
(k)    The report of Dr Bisht did not require specific comment. The Medical Assessor identified it as a document that was before her and stated that she had based her assessment of WPI on the basis of the documentation received and the assessment conducted on 21 September 2022. The report of Dr Bisht required no further comment. Dr Bisht expresses some views on the causation of injury, attributing it to the disciplinary process. As injury was no longer in issue,
Dr Bisht’s opinion on causation was no longer relevant and did not require comment. Otherwise, Dr Bisht had carried out an assessment of WPI on the basis of what he believed the condition to be as at September 2021. The medical assessment was carried out more than 12 months later. The Medical Assessor clearly set out the basis for her assessment and why she had assigned the various classes in each of the categories.
(l)    Reading the MAC there was no doubt about the basis on which the Medical Assessor reached her conclusion and made her assessment. The Medical Assessor clearly stated that the assessment was based upon the assessment conducted on 21 September 2022. In the circumstances it was self-evident why the Medical Assessor reached a different conclusion to Dr Bisht and no further reasons were necessary. The appellant asserted that some of the psychological restrictions identified by the medical assessor could be attributed to
Mr Pombinho’s physical injury but no evidence was cited in support of this submission. It was clear that Mr Pombinho had not travelled in the last four years and did not like leaving the house without his wife. He also has road rage episodes but continued to drive in the same capacity. Clearly, the overseas travel was restricted by Mr Pombinho’s inability to travel due his psychological symptoms. Similarly, he was not actively involved doing household chores in the context where his relationships have been strained as he had been very aggressive and lost his temper very easily. The Medical Assessor clearly considered that Mr Pombinho had no capacity to work due to his psychological injury.
(m)     Ground 4 - s 323 deduction. The Medical Assessor acknowledged the existence of a previous psychological condition but had accepted Mr Pombinho’s statement that at the time he started working with the appellant he was asymptomatic, was coping well, was working fulltime and there was no evidence of any deterioration in his professional and personal functioning. The appellant did not refer to any evidence that disputed that Mr Pombinho was coping well, was working fulltime and that there was no evidence of deterioration in his professional and personal functioning. The only evidence referred to were the clinical notes which showed Mr Pombinho reported stress at the workplace from early 2017. Mr Pombinho’s evidence was that when he started with the appellant he was very happy and thought he had a job for his later working years. The medical records showed that the dosage of Luvox was reducing. The Luvox ceased on 21 November 2017, which was prior to Mr Pombinho commencing work with the appellant. When closely analysed the clinical records were consistent with the history taken by the Medical Assessor. In the circumstances the Medical Assessor was entitled to reach the conclusion that she did.
(n)    If contrary to these submissions, the view was taken that there should be a deduction pursuant to s 323 of the 1998 Act, it should only be 1/10th.

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 the case of 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] SC 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 1 of the MAC, under evidence the Medical Assessor noted:
“Documentary Evidence
The following documents were referred by the Commission for this assessment:
1.     Certificate of Determination - Consent Orders
2.     Form 2: Application to Resolve a Dispute
3.     Statement of Claimant 21.12.2021
4.     Witness Statement: Mrigank Pawar: 28.03.2022
5.     Workers Injury Claim Form
6.     Certificate of Determination: Workers Compensation Commission: 9.9.2014
7.     Letter of Claim P.K.Simpson: 31.5.2021
8.     Section 78 Notice - Gallagher Bassett: 17.06.2021
9.     Medicolegal Report: Dr Thomas Oldtree Clark 16.04.2021
10.   Referral to Psychologist: Dr Remon Botros
11.   Treatment Report Leslie Spitz: 2.8.2021
12.   Workcover Capacity: Dr Remon Botros: 29.4.2021
13.   IME Report Yujuvendra Bisht :09.09.2021
Additional Information
The following information was obtained in accordance with Section 324(1) of the 1998 Act:
Late Documents:
1.     Claimants’ Statement dated 11.08.2022
2.     Signed Statement by Rhett Appleyard: 30.06.2021
3.     IME Report by Dr Klaas Akkerman:10.04.2013”
On page 3 of the MAC under “Details of any previous or subsequent accidents, injuries or condition”, the Medical Assessor wrote:
“He reported that we were working in Foxtel in 2013 where there were 2 guys who were stealing and wanted him to steal as well. They bullied him and accused him of stealing. There was an enquiry and it was proved that Mr Pombinho wasn’t involved in any such activities.
But he developed metal health issues and was on antidepressants as he was depressed. He continued taking the antidepressant probably Lovan (he wasn’t sure of the medication) and continued it.
He was on Lovan when the incident at Coca Cola happened. He reported that he was mentally fit and fine when he started working with Coca Cola….
General health: … He also reported that “bad knees” have been a problem and he was attending a Physiotherapist earlier…”
Under “Summary of injuries and diagnoses” the Medical Assessor noted:
“Mr Pombinho reported history of alleged bullying, lack of support at his workplace, Coco Cola when he was working as a Warehouse Machine Operator. He reported feeling depressed, fatigued, lack of attention and concentration, low energy levels and sleep disturbances. He also has been withdrawing and has stopped socialising much. This has overtly affected his capacity to work and he has been off work since the deemed psychological injury. These symptoms are consistent with the diagnosis of Major Depressive Disorder.”
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? There is no proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality as although he was on antidepressants at the time of alleged injury, he was asymptomatic at that time.
f. If so, please indicate which body part/system is affected by the previous injury, pre-existing condition, or abnormality. Knees affected by injuries.”
At 10 of the MAC under “Reasons for Assessment”, the Medical Assessor noted:
“I note the WPI calculation mentioned in Dr Thomas Oldtree Clark’s report. I have not made the deduction as even though he did have past history of Major Depressive Disorder, he was asymptomatic at that time. He was coping well, was working full time and there was no evidence of any deterioration in his professional or personal functioning.”
At 11 of the MAC, the Medical Assessor noted:
“11. DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITIES
a.      In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
i.        Past History of Major Depressive Disorder
b.      The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were considered when assessing the whole person impairment that results from the injury, being the matters considered in 10a, and in the following ways:
i.        Nil
This is based on the fact that he was asymptomatic at the time of the deemed injury. He was coping well, was working full time and there was no evidence of any deterioration in his professional or personal functioning.”

Discussion

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

Ground 1 – Secondary psychological injury

The appellant submitted that the Medical Assessor failed to consider the contents of the COD dated 19 August 2022 and the notation in the COD that the Medical Assessor was to “make such deduction as the Medical Assessor sees fit in respect of secondary psychological injury (if any)”. Although the COD was referred to on page 1 of the MAC, there was no consideration by the Medical Assessor as to whether Mr Pombinho had a secondary psychological injury resulting from the concurrent physical injuries to the “right knee and both shoulders” (sic) and, if so, whether there was any WPI resulting for such an injury for the purposes of s 65A of the 1987 Act.
Section 65A of the 1987 Act provides that no permanent impairment assessment is to be made of secondary psychiatric and psychological impairments.
The COD dated 19 August 2022 was referred to by the Medical Assessor in the list of documents on page 1 of the MAC.
The issue of whether there was a secondary psychological injury resulting from the concurrent physical injuries was raised in a s 78 Notice dated 17 June 2021. This Notice included the following:
“You suffered an injury on 30 April 2018 to your left knee and underwent an arthroscopy on 30 April 2018. In mid-2019 you made a claim for a consequential injury to your right knee as a result of your left knee injury. You were recommended surgery and we understand you underwent a right knee arthroscopy in or about March 2021.
On 9 September 2019 you suffered an injury to your right arm (bicep). In
February 2021 you underwent a right long head bicep repair.
On 16 December 2020, having regard for injuries to your right and left knee and right bicep and medical evidence, your employment was terminated as you were unable to return to your pre-injury duties due to permanent restrictions.
On 31 May 2021 a lump sum claim was made pursuant to section 66 in respect of 23% whole person impairment and medical expenses in regard to a psychological injury suffered between December 2017 and November 2020. The claim was supported by two reports of Dr Thomas Oldtree Clark dated 16 April 2021.
Dr Oldtree Clark took a history that you suffered a prior psychological injury and received a workers compensation settlement two years ago. He noted that you reported you were bullied, picked on/humiliated by your supervisor. He diagnosed a recurrent of persistent depression which presents as a major depressive disorder and considered employment was a substantial contributing factor. He noted this was a longstanding depression and episodes have been recurrent over the years since the development of your traumatic state. He assessed 23% whole person impairment after making a 10% deduction in respect of your prior claims.
By letter dated 10 June 2021 a Worker’s Injury Claim Form dated 8 June 2021, completed by you was provided. It alleged you suffered a psychological injury between December 2017 and November 2020 …
On 12 December 2020 Dr Botros forwarded to your case manager of your right bicep injury claim a referral to Ms Vaati Sundaram at Mount Druitt Community Health Centre in respect of assessment and management of your stress and anxiety since the work-related injury. Approval was given for an initial consultation only.
Dr Botros in his certificate of capacity dated 29 April 2021 in respect of your knee injury on 30 April 2018, amended his certificates to include ‘anxiety in relation to the accident’.
Based on this further information it appears you suffered a secondary psychological condition.”
The Appeal Panel noted that Dr Bisht made a deduction for secondary psychiatric injury. In his report of 9 September 2021, Dr Bisht formed the opinion that Mr Pombinho suffered from a combination primary psychological injury and a secondary psychological condition as a result of work-related physical injuries. Dr Bisht was of the view that the cause of the secondary injury was the knee and shoulder injuries. Under “Other psychological stressors in the last few years” Dr Bisht wrote:
“Luis told me – ‘In the beginning of this year, I lost mum with COVID. That is when things went really, really bad.’ His father had passed away when he was 68 years old.
Luis told me- ‘My knees have had operations but they have a lot of arthritis. I am doing physiotherapy.’ He said that he has chronic pain and it is worse in the morning.
‘It is very hard for me to go upstairs and downstairs, especially downstairs. I can’t put Me(sic) knees on the floor. I still can’t feel one of my legs. When I stay in the car for too long, then I get more pain. My shoulder could have been good if the operation had happened straight away, but one day before the operation, the operation was cancelled. Then finally I got the operation one year after. The doctor was there for 3 hours; he tried to repair the tendon but it kept breaking. Every time I try to screw something or lift something heavy it feels like there is a knife going through my muscle. Even with shaving it starts hurting. Even if I scratch my back’.”
The Appeal Panel agreed with the appellant that there was no consideration by the Medical Assessor as to whether Mr Pombinho had a secondary psychological injury resulting from the concurrent physical injuries to the knees and right arm and, if so, whether there was any WPI resulting from such an injury. The Appeal Panel considered that the Medical Assessor erred in not considering or adequately considering the issue of secondary injury and if there was a secondary injury whether any WPI resulted from it.

Ground 2 – Failure to consider evidence

The appellant submitted that the Medical Assessor had not considered the material contained in the Reply or in the appellant's AALD. The referral to the Medical Assessor included the Reply and the appellant's AALD. The list of documents on page 1 of the MAC did not specifically refer to the Reply or to the material contained therein with the exception of the report of Dr Bisht. The MAC made no reference to the clinical records from Hassall Grove Medical Centre.
The Appeal Panel accepted that the Medical Assessor was not required to refer to all the evidence, however, she was required to consider the significant material. Although the Medical Assessor referred to the reports of Dr Bisht and Dr Akkerman, there was no reference to the clinical notes and records from Hassall Grove Medical Centre. The Appeal Panel considered that the clinical notes and records from Hassall Grove Medical Centre were relevant and significant.
The Appeal Panel considered that the Medical Assessor made a demonstrable error in that she failed to consider the contents of the Reply and AALD.

Ground 3 - Failure to consider the impact of Mr Pombinho’s physical injuries as well as the impact of the COVID-19 pandemic on the PIRS

The Appellant submitted that in combination with grounds one and two above, the Medical Assessor failed to appropriately consider the impact of Mr Pombinho’s physical injuries, including any medication he may be taking for those conditions, as well as the impact of the COVID-19 pandemic on the PIRS.
The Appeal Panel found above that there was no consideration by the Medical Assessor as to whether Mr Pombinho had a secondary psychological injury resulting from the concurrent physical injuries to the knees and right arm and, if so, whether there was any WPI resulting from such an injury.
In relation to the impact of the COVID-19 pandemic on the PIRS, the appellant submitted that the Medical Assessor's assessment of moderate impairment for "travel" omitted the possibility that Mr Pombinho has been unable to travel in the last two years as a result of the restrictions on travel resulting from the COVID-19 pandemic as well as his various concurrent physical injuries.
The Medical Assessor under “social activities and activities of daily living” noted that
Mr Pombinho:
“a.     Used to enjoy renovating furniture, but has not done that in a long time.
b.      Used to travel overseas every two years but has not travelled in the last four years.
c.      Is not actively involved in doing household chores.
d.     Has not worked since December 2019.”
The Medical Assessor rated Mr Pombinho as Class 3 for Travel providing the following reasons:
“He used to travel overseas every 2 years but hasn’t travelled in the last 4 years. He doesn’t like leaving house with his wife. He also has road rage episodes but continues to drive in the same capacity.”
The Appeal Panel accepted the appellant’s submission that the Medical Assessor failed to consider the impact of the concurrent physical injuries and COVID-19 on the PIRS. In particular, the restrictions in place for travel because of the COVID-19 pandemic had not been considered.

Section 323 deduction

The appellant also submitted that the Medical Assessor has erred in his assessment by not providing a deduction pursuant to s 323 of the 1998 Act. The appellant submitted that having regard to the entries in the clinical notes of Hassall Grove Medical Centre, and a history of previous psychiatric complaint, the suggestion that Mr Pombinho was mentally fit and well prior to commencing work with the appellant and at the time of the alleged injury did not accord with the clinical records and the notes. The appellant submitted the Medical Assessor erred in not considerating the contribution of the pre-existing psychological condition to the degree of impairment, whether or not it was symptomatic, and whether a deduction should be applied under s 323 of the 1998 Act.
The Guidelines at part 2 under “Deductions for pre-existing conditions or injuries” at guidelines 1.27 and 1.28 provide:
“1.27 The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.
1.28 In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as ‘the deductible proportion’ and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10th of the assessed impairment, unless that is at odds with the available evidence.”
The Guidelines at guideline 11.10 under “Pre-existing impairment” provide:
“To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
Section 323 of the 1998 Act provides:
“(1)    In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2)     If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3)     The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter.
(4)     The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole. Schmidt J said:
“29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 …That is a matter of fact to be assessed on the evidence led in each case.”

However, in Cole the injury concerned was physical and, therefore, one to which the AMA 5 Guides, adopted by the Guidelines (issued pursuant to s 376 of the 1998 Act) were applicable. Guideline 11.10 had no application and the relevant Guideline was 1.28.
In Ryder v Sundance Bakehouse [2015] NSWSC 526 Campbell J noted:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality.”
In Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616 (Marks) at [29] where Simpson AJ noted the following:
“I have therefore concluded that Guideline 11.10 of the Workers Compensation Guidelines is, to the extent that it excludes, in the application of s 323(1) of the WIM Act to any psychiatric or psychological impairment, consideration of any contribution made to the impairment by a pre-existing but asymptomatic condition, inconsistent with s 323(1) and invalid.”
Marks confirmed that guideline 11.10 of the Guidelines is to be applied unless the assessment is that of a pre-existing but asymptomatic condition.
Mr Pombinho stated that he commenced employment with the appellant in or about December 2017.
The clinical records of Hassall Grove Medical Centre included the following:
(a)    Dr George Ibrahim on 15 August 2011 noted “Reason for contact: GORD (Gastro-oesophageal Reflux Disease) depression”. Prescribed Luvox 100 mg once daily.
(b)    Dr George Ibrahim on 19 July 2012 prescribed Luvox 100 mg once daily.
(c)    Dr George Ibrahim on 23 January 2013 prescribed Luvox 100 mg once daily.
(d)    Dr George Ibrahim on 17 July 2013 prescribed Luvox 100 mg once daily.
(e)    Dr Viole Rizk on 24 April 2014 prescribed Luvox 100 mg once daily.
(f)    Dr George Ibrahim on 15 September 2016 prescribed Luvox 100 mg once daily.
(g)    Dr George Ibrahim on 21 February 2017 prescribed Luvox 100 mg once daily.
(h)    Dr George Ibrahim on 23 March 2017 prescribed Luvox 100 mg once daily.
(i)    Dr Remon Botros on 24 May 2017 noted reason for visit “stress” and reported a psychiatric history of “Anxious. No suicidal thoughts.” He prescribed Luvox 50 mg once daily.
(j)    Dr Remon Botros on 5 July 2017 noted reason for visit “anxiety only at workplace alright at home, weekends and holidays”. He advised referral to a psychologist.
(k)    Dr Remon Botros on 17 October 2017 noted Luvox 50mg tablet ceased and “Dose of Luvox 100mg tablet change from two daily to 1 ½ daily”.
(l)    Dr Remon Botros on 21 November 2017 noted reason for visit was “Results review, moderate right knee pain, depression”. Luvox 100 mg ceased prescribed Lexapro 10mg 1 daily.
(m)     Dr George Ibrahim on 20 December 2017 noted “persistent symptoms Lexapro not helping”. He reported “Poor sleep. Low self-esteem. Depressed mood. Anxious. Irritability” and prescribed Zoloft 100mg tablet 1/2.
(n)    Dr Remon Botros on 2 February 2018 noted “adverse drug reaction… after increasing dosage of Zoloft”. Dose of Zoloft 100mg tablet changed from one to ½ daily.
(o)    Dr George Ibrahim on 7 March 2018 noted “not happy with Zoloft due to S/E getting ED, reluctant to see psychiatrist, wants to go back on Luvox as his worse stresses improved”.
(p)    Dr George Ibrahim on 25 April 2018 noted “still very irritable”, and “Normal sleep. No early morning waking. Low self-esteem. Depressed mood. Anxious. No stress at work. No relationship problems. No financial problems. Irritability.” He was prescribed Luvox 100mg once daily.
(q)    Dr Remon Botros on 4 May 2018 - notes a moderate left knee injury when he “slipped and landed on flexed knee”.
(r)    Dr Remon Botros on 25 July 2018 noted “work related injury, initial certificate, referred for MRI”.
(s)    Dr Remon Botros on 8 August 2018 diagnosed a moderate left meniscus tear and made a referral to a specialist.
(t)    Dr Remon Botros on 20 August 2018 noted reason for visit “anxiety”. Advice was given about referral to CBT. Luvox 100mg tablet ceased and prescribed Valium 5mg.
(u)    Dr Remon Botros on 24 August 2018 noted “is proceeding with divorce”. Prescribed Lexapro 20mg once daily.
(v)    Dr Remon Botros on 14 September 2018 noted reason for visit “marital problem” and provided counselling and active listening.
(w)   Dr Remon Botros on 2 October 2018 noted “Letter to Regina Tan written re referral to a specialist. Counselling and active listening.”
(x)    Dr Remon Botros on 27 October 2018 prescribed Lexapro 20mg once daily. Counselling and active listening.
(y)    Dr Remon Botros on 7 November 2018 noted Mr Pombinho reported being sent a letter full of allegations which according to him were not true.
(z)    Dr Remon Botros on 28 November 2018 - noted “GP Mental Health Care Plan” and letter written to Regina Tan “re Referral to a specialist”.
(aa)    Dr Remoin Botros on 11 December 2018 prescribed Lexapro 20mg once daily. Noted “K10 has been given. Advised about referral to CBT.”
(bb)    Dr Remon Botros on 18 December 2018 - noted “so stressed, insurance is rejecting ?? Regina Tan, referred to another psychologist in the city with too much hassle in travelling they were not helping at all.”
(cc)     Dr Viola Rizk on 6 February 2019 noted “left knee pain after hit on pallet at work last night”.
(dd)    Dr Remon Botros on 5 March 2019 noted “Pain management discussed”.
(ee)    Dr Remon Botros on 1 May 2019 prescribed Lexapro 20mg once daily.
(ff)    Dr Remon Botros on 23 May 2019 noted reason for visit “counselling, relationship”.
(gg)    Dr Remon Botros on 29 July 2019 noted reason for visit “Pain management”.
(hh)    Dr Remon Botros on 9 September 2019 noted “at work and while putting box on high shelf heard a snap sound and pain in the right arm …? ruptured biceps”.
(ii)    Dr Remon Botros on 18 December 2019 prescribed Lexapro 20mg once daily and noted “counselling and active listening”.
(jj)    Dr Remon Botros on 22 January 2020 prescribed Lexapro 20mg once daily.
(kk)     Dr Remon Botros on 20 March 2020 noted “concerned about his prostate father and grandfather were diagnosed with prostate cancer”.
(ll)    Dr Remon Botros on 28 April 2020 noted reason for visit “stress”. Counselling and active listening.
The Appeal Panel noted that the Medical Assessor found that Mr Pombinho had a pre-existing injury and condition, injury, namely a major depressive disorder. However, the Medical Assessor considered that this pre-existing injury made no direct contribution to the permanent impairment assessed because
“he was asymptomatic at the time of the deemed injury, was coping well, was working full time and there was no evidence of any deterioration in his professional or personal functioning.”
The Medical Assessor did note that Mr Pombinho was on antidepressants at the time of the subject injury.
The Medical Assessor made no reference to the various entries in clinical records of Hassall Grove Medical Centre. In particular, no reference was made to the entries in 2017 before
Mr Pombinho commenced work with the appellant in December 2017. These entries were evidence of a pre-existing condition which required treatment, a referral to a psychologist and the prescription of Luvox. Mr Pombinho complained to his general practitioners (GPs) of stress in May 2017, anxiety in the workplace in July 2017 and depression in November 2017. The Appeal Panel considered that these clinical notes were evidence of Mr Pombinho’s psychological state in 2017 and that at the stage when he commenced employment with the appellant, he was suffering psychiatric symptomatology.
In failing to review the clinical notes of the treating GPs, the Medical Assessor did not actually properly address whether a proportion of the permanent impairment was due to a previous injury or pre-existing condition. The Appeal Panel were of the view that the Medical Assessor failed to provide adequate reasons not making a deduction pursuant to s 323 in view of the evidence of the treating doctors. The Appeal Panel considered that the Medical Assessor erred not giving appropriate weight to the clinical notes and records of Hassall Grove Medical Centre and in finding that the pre-existing condition affecting Mr Pombinho was asymptomatic at the time of the subject injury.
The Appeal Panel concluded that it was necessary for Mr Pombinho to undergo a further medical examination because there was insufficient evidence on which to make a determination. Having found error, the Appeal Panel considered it necessary to re-assess the PIRS categories as this could be relevant to the assessment of any deduction.
As noted above, Medical Assessor Glozier re-examined Mr Pombinho on 1 March 2023. Medical Assessor Glozier provided the following report:
“Date of Injury:     13.08.2020 (deemed)
1.   The worker’s medical history, where it differs from previous records
From the outset of evaluating Mr Pombinho’s pre-injury medical history the assessment was fraught. We required his wife to intervene on a number of occasions as he became agitated, describing the contemporaneous medical records as ‘lies’ placed in the file by the insurers. He was also overtly suspect of the Commission employee, Gurmeet, who appeared briefly on Teams to confirm that there were no technical difficulties, suggesting that she may be some employee of the insurer who he sees as conspiring to ruin his life. Although I had asked his wife to step into the other room, she spent much of the assessment with him, calming him down and trying to get him to focus as at one stage he was threatening to terminate the interview. He did however calm down halfway through.
While attempting to clarify his mental state prior to the employment with Coca Cola Amatil and in the first few months, Mr Pombinho reported that he was very happy, had no problems and could not understand why the two doctors, whom he said he trusts, would write ‘such lies about me.’ His wife did acknowledge that there may have been some sexual side effects from the antidepressant in early 2018. He had been prescribed an antidepressant consistently from the commencement of these notes in August 2011. In July 2017 he was noted to be anxious but not suicidal, and this anxiety was only at his (pre-Coca Cola) workplace. It was clinically significant enough to warrant a referral to a psychologist. The dose of his long term medication was changed in October 2017; I believe it was reduced but this is hard to ascertain from the notes. In the subsequent months of late 2017, just prior to joining Coca-Cola he was noted to be tired, lethargic and with ‘depression’. His antidepressant was changed on 21/11/2017 – there is no indication of the reason but one presumes due to lack of efficacy as no side effects were reported, and the new medication is described as ‘not helping’ at his next appointment in late December 2017 where significant psychiatric symptoms are recorded. Another antidepressant is prescribed. In February 2018 there are sexual sides effects recorded and he is noted to be ‘not feeling improvement’. He is referred to a specialist as a result (Dr Anis is a psychiatrist).
As such there is a marked inconsistency between Mr Pombinho’s recollection of his state at the time and the contemporaneous medical records which identify ongoing need for antidepressants and significant psychiatric symptoms prior to him joining in the first few months of his time at Coca Cola Amatil prior to the knee injury and the subsequent bullying behaviour, Mr Pombinho appears to have continued to meet the criteria for ongoing psychological problems requiring treatment, and of such severity that it warranted specialist referral.
Mr Pombinho said that in retrospect the episode of his knee injury and subsequent actions represented attempts to kill him by co-workers. His wife tried to intervene and suggested that this was not a specific attempt to kill him but rather that this may have been the sequelae to their actions, but it was difficult to understand whether he agreed with this as throughout he remained highly aggrieved about these individuals’ actions. This was in marked contrast to his very rosy view of Coca Cola Amatil as an employer, whereby he said that working for them was ‘a dream job’ after having had difficulties with a previous employer who had not come forth with overtime and that he would be happy to return to work for them tomorrow, if he were allowed to.
Given that there was not only a question about a pre-existing injury but a potential secondary injury, we explored his musculoskeletal conditions. He reported he has problems with both knees, particularly the left knee following the injury at Coca Cola Amatil. He reports pain in the knees, particularly if he sits for too long or on getting up after sitting for too long. They frequently lock and at least weekly he sustains a fall following a painful lock, one recently leading to an ankle injury. He has had two cartilage operations but has been told he is too young for a total knee replacement. However he says that although the knees can be painful and very bad intermittently, they have little limitation on him. For instance he had mowed the grass today and was going to mow his parents’ grass that afternoon. He has bought an SUV and is able to drive long distances, driving up to Coffs Harbour, Queensland and Forster in the past few months, and believes he could drive a forklift if required. He has also painted the house a number of times and the knee limitations do not prevent this. He says when the knee does flare up, particularly at night, he can get very angry about what has happened and how this occurred to him.
He also reported a right bicep injury which he said was not operated on in time, leading to some right arm difficulties, e.g. with it being hard to lift heavy objects, a reduced range of movement particularly affecting showering although no other aspect of his self-care.
He uses Mobic, Panadol Osteo, Panadeine Forte and Endone in an alternating fashion to prevent tolerance and side effects.
He reported being treated for hypercholesterolaemia and GORD.
He describes drinking beer socially if people come over, and thus drinking on a weekly or two-weekly basis.
He was particularly aggrieved that the insurer ‘stopped paying’ for his psychologists a year ago and despite referrals from his GP for a psychiatrist, this has also not been paid for. He stated that he feels like the ‘system has kept playing him’ and specific people from case management and insurers have been complicit with this.
2.   Additional history since the original Medical Assessment Certificate was performed
Symptomatically he described significant rumination and anger about the way he has been treated and how he feels his life has been altered by how people tried to harm him at the workplace. Although he goes to bed between 10pm and 11pm, having watched TV in the evening with his wife, he says he can take some time to fall asleep and he will play Candy Crush and tile games on his phone until he does. He appears to have an onset insomnia associated with thinking about work. When he falls asleep he says he has a few hours of heavy sleep and then wakes in the early hours of the morning, watching TV, dozing in and out and may return to the couch and fall asleep there, finally getting up for the day around 7am. He feels dysphoric much of the time although can feel better when he is with family, friends and neighbours. He distracts himself from thinking about work by keeping himself busy for much of the day, as described below, and described a significant range of activities, both within the home and social to enable this.
His wife confirmed that he can frequently flare up and become irritable and at times aggressive over his perceived treatment by the insurers and the specific staff at Coca Cola and that this can be difficult for her to handle, although she has remained very supportive.
Their description of his functioning appeared quite different than that elicited by the MA. Mr Pombinho reports that his wife has always done the cooking at home, although he will do barbeques if required. He says when he gets up in the morning he feeds the dogs and his birds, makes himself coffee & breakfast, does the chores he has to do, such as mowing the grass and cleaning the pool, and then keeps himself busy throughout the day with jobs around his and his parents’ home. He noted that his family comment that his house changes colour often as he paints it frequently, and enjoys doing this. He may help his wife with the shopping and does some basic chores although suggested that some heavier ones can be difficult because of his bicep problem.
The family have regular get-togethers every Thursday and he describes going to family parties at weekends with them. He sees his best mate, Carlos, regularly and every month they go out for dinner. He feels somewhat embarrassed that Carlos always pays because he is less financially capable. He feels his self-confidence and self-esteem as a man has been diminished by him being less able to provide for his family. He remains good friends with his neighbours, enjoyed a big party at New Year’s Eve with them, and enthused about the food they had there. He has been attending Big Bash games with his son-in-law over the past season, going to the games at SCG, and is a Sixers fan. He also follows TV soccer frequently, watching the games on TV, and always follows his beloved Benfica. We talked about their recent European championship results and potential progress, as well as Portugal’s fate and team in the recent football world cup. Last Sunday he and the family went down to the Jamberoo water park although he said he did not go on any of the rides because he is scared of what would happen if he fell down and injured his knee again but otherwise enjoyed being with the family for the day.
He describes being able to drive long distances, e.g. he and his wife drove to Coffs Harbour one night and then onto the Queensland another night. Over Christmas he and his wife went to Forster, just the two of them as their normal friends could not go. He described them sharing the driving as it is such a long drive, but otherwise no difficulties. He has never had any reason to use public transport and has not flown since COVID. It appears that there is no difficulty travelling as and where he needs to and the longer distance travelling accompanied by his wife is because that is what he always does for holidays. He reported that he has no problems driving beyond that from his knee.
He can have significant periods of tension with his wife and I note in the medical notes there have been difficulties described between them over a number of years, although she was supportive today and he describes her today as very supportive. He describes close relationships with his family, children, best friend and neighbours although his wife suggested that this was less warm than previously. He has never been one for cognitive activities beyond playing phone games which he still does. He describes recent watching Netflix, MAFS, can watch a whole movie but says at times he has trouble recalling what was on there and at times can be distracted by thoughts of Coca Cola or his pain.
He said that if he could get a job back at Coca Cola, he would love to do this, or maybe love to get a job at the airport after having done some aspects of this previously with quarantining. He reported today that he would go ‘immediately’ to a job with Coca Cola. It was very hard to elicit why he has not looked at other roles as he appears utterly fixated on only returning to Coca Cola, as apparently this was his ‘dream job’ and he won’t countenance going anywhere else.
3.   Findings on clinical examination
Mr Pombinho was initially anxious, apprehensive, irritable and aroused. This escalated on attempting to explore the contemporaneous medical records where he remained adamant that these were lies and displayed some quite marked paranoid ideation about the insurers, possibly even his doctors and a member of the Commission team. He later calmed down and apologised and the second half of the interview was characterised by a much greater degree of engagement and no irritability. He also appears particularly fixated on Coca Cola as having been ‘the dream job’ and the only thing he will ever do, whilst at the same time noting how angry he gets about certain people there. He describes no Coca Cola-related avoidance or arousal, in fact saying he still really loves drinking Coca Cola and drinks it every day. He describes being frequently sad about what has happened to him and some reduction in interest although by no means anhedonia, retaining significant interest in a range of previously-interesting activities although he said to some level this may be distracting. He sees himself as less capable, less of a person through what has happened, how he felt treated, threatened and his life in danger, which he sees as being deliberate. He describes some onset and late insomnia and a reduced broken sleep duration. His predominant mood however is one of anger. He described being somewhat hopeless and helpless about his situation and reduced libido. I was unable to elicit any panic attacks, avoidance or significant anxiety beyond the anxiety over aggravating his knee injuries. I was unable to elicit any more extensive paranoid ideation, delusions or other abnormalities of thought or perception. He reports some subjective distractibility in some tasks but was able to recollect a number of aspects of his current state, e.g. all of his medications although with some prompting.
4.   Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Summary
Mr Pombinho presents as aggrieved, dysphoric and has enough clinically significant symptoms to warrant the diagnosis of a Major Depressive Disorder. I was unable to elicit the features of avoidance required for Post-Traumatic Stress Disorder although he obviously had a highly traumatic incident and remains aggrieved about this. However his presentation was somewhat inconsistent and he may have a forme fruste of a Post-Traumatic Stress Disorder.
There was quite clearly a pre-existing psychiatric condition that was symptomatic and under ongoing treatment at the time, necessitating treatment alteration and specialist referral in the period just before and just after starting at Coca Cola Amatil. At the very least this would require a section 323 deduction. Given the inconsistency in
Mr Pombinho’s history compared to the contemporaneous notes, it would be impossible to accurately determine the level of impairment prior to the injury and this is best dealt with under a section 323 one-tenth deduction, although I given how symptomatic he was the contribution to his current impairment is likely much greater.
I was unable to elicit any significant psychological sequelae to his physical injury and other musculoskeletal conditions beyond some sleep disturbance and anger. I am not of the opinion that there is a secondary psychiatric injury although his musculoskeletal conditions are somewhat limiting.
Self-Care
Mr Pombinho reports being able to undertake numerous activities around the home and in terms of self-care, can wash, clean, look after himself and cook on the barbeque but has never cooked inside; although he describes some distractibility and at times difficulty with these chores, which at the most is a mild impairment. Class 2
Social and recreational activities
He continues to do most of the activities he did previously from a social perspective, going to regular cricket games at the SCG, family events, sees his best friend on a regular monthly basis, going out for a Portuguese meal, and holidaying with his partner. He acknowledged – and his wife confirmed – he can be irritable at these and less involved: a mild impairment. Class 2
Travel
He reports no psychological limitations travelling as and where he needs to. Class 1
Social functioning
There is some tension within the family and he and his wife both describe him being irritable, aroused, particularly when aggrieved at his perceived treatment, although he continues to be well-supported by his family, close friend and neighbours: a mild impairment. Class 2
Concentration, persistence and pace
He was able to concentrate today once he’d settled down, reports being able to watch a movie and TV programmes as well as play games for some time, although these can be distracted by his thoughts, which is at most a moderate impairment. Class 3
Employability/Adaptation
Although he suggested he could work fulltime for Coca Cola Amatil in the same job or forklift truck driving if offered this job, I am unclear whether the degree of arousal and agitation he reports would enable him to work fulltime and certainly he could not work at the same location but could certainly work for several hours a week and in fact does a range of home renovation and other tasks for many hours a week to keep himself busy: a moderate impairment. Class 3
Classes in ascending order: 1, 2, 2, 2, 3, 3
Aggregate score: 13
Median class: 2
Interim whole person impairment: 7%
(Less Section 323 1/10^th deduction = 0.7%)
Final whole person impairment = 6%
There is no addition for treatment as he is on minimal treatment and is in fact aggrieved at the lack of treatment he is receiving.”

The Appeal Panel has adopted the report and findings of Medical Assessor Glozier.
The Appeal Panel noted that Medical Assessor Glozier did not elicit any significant psychological sequelae to the physical injury and other musculoskeletal conditions beyond some sleep disturbance and anger. Apart from the report of Dr Bisht dated
9 September 2021, there was little evidence that suggested Mr Pombinho had a secondary psychiatric injury. No referral had been made by his treating doctors for pain management treatment. Although Mr Pombinho told Dr Bisht that he had chronic pain, none of the treating doctors appeared to have made such a diagnosis. The Appeal Panel concluded that
Mr Pombinho did not have a secondary psychiatric injury causing any permanent impairment.
The Appeal Panel found that Mr Pombinho had a previous injury and pre-existing condition and were satisfied that a deduction pursuant to s 323 of the 1998 Act was required as a proportion of the impairment assessed was due to that previous injury or pre-existing condition. Mr Pombinho had a chronic and recurrent depressive disorder and was on a high level of antidepressants before the injury, although he was able to work full time.
The Appeal Panel considered that a deduction of 1/10^th was appropriate and was not at odds with the evidence for the reasons expressed by Medical Assessor Glozier in the re-examination report above.
As noted above, the appellant alleged error in respect of the assessment of the PIRS categories generally and specifically in travel. Medical Assessor Glozier carried out an assessment of the PIRS categories in his re-examination. The Appeal Panel agreed with this assessment.
The Appeal Panel was satisfied that the rating of Class 3 by the Medical Assessor for travel was in error. The Appeal Panel considered that the history obtained by the Medical Assessor was not consistent with Class 3 rating for travel as she had noted that “he continued to drive in the same capacity”.
The Appeal Panel agreed with the assessments made by the Medical Assessor in the PIRS category of self care and personal hygiene and concentration persistence and pace. The assessment made by the Medical Assessor in these categories was consistent with the descriptors set out in Table 11.2 and Table 11.5 of the Guidelines.
Following the re-examination by Medical Assessor Glozier, the Appeal Panel assessed social and recreational activities as Class 2 (not Class 3 as assessed by the Medical Assessor), social functioning as Class 2 (not Class 3 as assessed by the Medical Assessor) and employability as Class 3 (not Class 5 as assessed by the Medical Assessor).
In summary, the Medical Assessor made an assessment of 24% WPI in respect of a psychological injury. The Appeal Panel has made the same ratings in respect of the scale for self care and personal hygiene and concentration, persistence and pace. However, the Appeal Panel has assessed Class 2 in the scale for social and recreational activities, Class 1 in the scale for travel and Class 2 in the scale for social functioning and Class 3 for employability. The Appeal Panel therefore made an assessment of 7% WPI in respect of a psychological injury.
The Appeal Panel then made a 1/10^th deduction pursuant to s 323 of the 1998 Act. Therefore, the assessment of total WPI by the Appeal Panel is 6% WPI in respect of the injury deemed to have occurred on 31 May 2021.
For these reasons, the Appeal Panel has determined that the MAC issued on
26 October 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W3925/22
Applicant:	Luis Manuel Pombinho
Respondent:	Coca Cola Amatil (now Coca-Cola Europacific Partnesrs API Pty Ltd)

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Surabhi Verma and issues this new Medical Assessment Certificate as to the matters set out in the Table below.

Table - Whole Person Impairment (WPI)

Body Part or system

Date of Injury

Chapter, page and paragraph number in WorkCover Guides

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

% WPI

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

1.Psychiatric injury

31/5/2021

(deemed)

Chapter 11, page 60, Table 11.8

one tenth 0.7% rounded up to 1%

Total % WPI (the Combined Table values of all sub-totals)

6% WPI

The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

[2023] NSWPICMP 98

20 March 2023