Del Vecchio v Nicklaum Pty Ltd t/as Forams Health & Beauty Aids

DETERMINATION OF APPEAL PANEL
CITATION:	Del Vecchio v Nicklaum Pty Ltd t/as Forams Health & Beauty Aids [2023] NSWPICMP 470
APPELLANT:	Natalie Del Vecchio
RESPONDENT:	Nicklaum Pty Ltd t/as Forams Health & Beauty Aids
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	25 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in his application of section 323 because he failed to apply the correct statutory formula for the assessment of the proportion of impairment due to a pre-existing condition or abnormality; Panel found significant evidence of a long-standing pre-existing condition; the deduction under section 323 was appropriate, and not at odds with the evidence; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 April 2023 Natalie Del Vecchio (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
24 March 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· 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 ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because initially one was requested, but in submissions the appellant stated that a re-examination was not required. We agree, and consider that we have sufficient evidence before us to enable us to determine this appeal.
Similarly, the appellant “ticked the box” relating to relying on additional evidence, but none is referred to in the submissions. We assume this is just a typographical error.

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.

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 erred in his application of s 323 of the 1998 Act because he failed to apply the correct statutory formula for the assessment of the proportion of impairment due to a pre-existing condition or abnormality.
In reply, the respondent submits that no errors were made, and that the MAC should be confirmed.

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 appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological condition resulting from a deemed date of injury of 11 February 2016.
The Medical Assessor obtained the following history:
“Ms Del Vecchio is a 40-year-old single woman. She lives with her mother in Southport, Queensland. She is not working currently and has been on the Disability Support Pension since she was 15. Her last paid employment was a brief work trial in aged care as an assistant in nursing two years ago.
Ms Del Vecchio said she developed a psychological injury due to differential treatment, social exclusion and discrimination based on her disability while employed as a pharmacy assistant at Kalaf’s Priceline Pharmacy (formerly Soul Pattinson Chemist). She ceased work in 2016 when the relationship with her employer broke down because they could not provide shifts to accommodate her studies for a Certificate in Community Services three days per week. She was particularly anxious about the owner Mr Kalaf.
She subsequently attempted further vocational training with difficulty and had brief and unsuccessful trials of paid employment. She remained on the Disability Support Pension throughout.
Predating her employment with Soul Pattinson Chemist and later Priceline, she had a history of severe social anxiety, low self-esteem and depression, and a mild neurocognitive disorder (childhood non-complex seizures caused by a brain injury). She received the Disability Support Pension from age 15. She secured a job at Soul Pattinson Chemist for up to 10 hours per week through Disability Employment Service, a significant milestone in her occupational function and a marker of her improved mental health with treatment. Leading up to her injury, she told me she was taking care of herself, socialising, attending salsa dancing classes, cooking, cleaning her bedroom, and felt happy ‘as a regular person with a job’. She said she would go clubbing with friends and made a friend at work. She said she had some intimate relationships but never had a long-term partner. I note, however, from the clinical notes from her psychologist that these improvements were hard-won, and she continued to struggle with a background level of anxiety and interpersonal sensitivity throughout her employment with Soul Pattinson/Priceline.
She said that after working with Soul Pattinson and Priceline, her mental health was ‘hit and miss’. She told me she could sometimes go out and do things with people until issues at work began playing on her mind, and her depression and anxiety deteriorated. She said she felt uncomfortable at Soul Pattinson Pharmacy from the beginning because she did not find them welcoming. She said she dreaded going to work but enjoyed the customer service aspect. She said her capacity to confront her anxiety changed when she wore the uniform. She said soon after they changed their brand to Priceline, she was excluded from training to expand her skills beyond handling the cash register despite her efforts to upskill.
She said it began affecting her life outside of work not long before the situation came to a head in February 2016.
Four years ago, she moved with her stepfather to Moss Vale, and they built a house. Her brother sold the house in Moss Vale, and they moved to Southport last year. Not long after they moved to Moss Vale, her stepfather died. She said her stepfather raised her; she had known him since she was a toddler, and her father was absent from her life. She has never regained her best function since 2016. She has remained depressed and anxious since leaving Priceline in 2016.”
The Medical Assessor noted present treatment as follows:
“Ms Del Vecchio said she had taken venlafaxine 75mg (a broad-spectrum antidepressant) for the past two years. She has never been on a higher dose. Her general practitioner manages her medication. She has not seen a psychiatrist for specialist management since she was 18 and started fluoxetine for depression. She last saw a psychologist before she relocated with her mother to Southport about 18 months ago. She is yet to find a local general practitioner she feels comfortable with. She goes to the closest bulk billing general practitioner for her venlafaxine scripts.
She said that one of the barriers to seeing a psychiatrist was cost. Her mother explained they are both on pensions and are still finding their feet on the Gold Coast. Her mother explained that when they were in Moss Vale, they attempted to get a referral to a psychiatrist, but their general practitioner thought it unnecessary and switched her medication from fluoxetine to venlafaxine. During the independent medical examination with Dr Canaris, her mother told me he suspected she might be on the Asperger’s spectrum. They tried to get her into a psychiatrist, but only three in the area were dealing with autistic spectrum disorders, and they were all booked out. She said she has no objection to seeing a psychiatrist as long as she feels comfortable with them. She said she has difficulties trusting and is fearful of being judged.
She said she tried two antidepressants when she first started antidepressants but could not remember their names. She has never been treated with mood stabilisers or medications typically prescribed to augment antidepressants. She stopped antiepileptic drugs in childhood and has not had a seizure since she was 7.”
Present symptoms were noted as follows:
“I asked Ms Del Vecchio to rate her emotional quality of life. She reported that it was 5 out of 100, with 100 being the best she could feel.
Her mood is depressed. She said she feels worthless. She said she had hope before working at Priceline and wanted to make something of herself. Now she feels defeated. She said to work, she would have to go out and be seen. She said she does not want people to treat her as they did at Priceline. She says she sees people looking at her but denies hearing them talking about her. She denied delusions of reference, thought alienation or passivity phenomena (symptoms associated with severe, chronic psychotic illnesses such as schizophrenia).
She said she felt hopeless. She asks herself, ‘What’s the point’. She said she was made to feel worthless at Priceline, and she believed it and still believes it. She said each time she tried to re-enter the workforce after Priceline, she was told she was slow. All she wanted to do was hide.
She said she sometimes has suicidal thoughts because she wants to give up. She denied planning suicide. She said the more unhealthy physically she feels, the more hopeless she feels. She is not looking forward to anything. She emotionally eats sugary foods, or her mother buys her McDonald’s through the drive-through. She has eaten in a restaurant on birthdays with her mother and family, but it takes a lot of effort for her to go. She said she is quiet when she is there and anxious because the environment is too noisy. She becomes agitated and tends to tap, jiggle, and shake her legs compulsively.
She will not go out on her own. She said she only goes out when she goes food shopping with her mother. If she goes to the doctor, her mother will take her. Her mother insists that she go shopping. Ms Del Vecchio explained that she was frightened of seeing Mr Kalaf’s car or being seen by people she used to work with. She said she could not go into a Priceline pharmacy for many years. She said she could still see cars that reminded her of Mr Kalaf’s car. She said this preoccupation has improved since relocating to Southport, although she has lingering worries. Her concern about leaving the house is now mostly agoraphobic, such that she cannot even check the mail. Her mother noted her tendency to ruminate and over-analyse every interaction.
She has not had a full panic attack since the trip to Sydney between Moss Vale and Southport. She said she no longer puts herself in situations where she feels anxious, so the frequency is reduced.
She denied symptoms consistent with obsessive compulsive disorder, mania, hypomania or psychosis.”
The Medical Assessor then turned to consider “Details of any previous or subsequent accidents, injuries or conditions” and said:
“Ms Del Vecchio has an extensive history of low self-esteem, social anxiety disorder and recurrent major depression, with onset in early adolescence, a brain injury, and epilepsy in childhood. She had learning difficulties, developmental delays, a speech impediment and social deficits. She was bullied as she physically matured early and as she transitioned to high school. Between 15 and 20, she was agoraphobic and housebound with social anxiety disorder. She stopped going to school in year 8 and was home-schooled. She was on the Disability Support Pension from 15 because of her psychological condition. She said she was at her worst when she was depressed at 18 and could not stop crying. She started antidepressants at 18. She had not seen a psychiatrist since she was 18. She said she began to improve with treatment from her psychologist Mr Gaston until her employment with Priceline.
She has never been hospitalised in a psychiatric facility. She denied a history of self-harm or suicide attempts.
From Mr Gaston’s session notes, I note that improvements in Ms Del Vecchio’s function were hard-won and always on a background of underlying anxiety, low self-esteem and marked interpersonal sensitivity. In terms of objective markers of her function, however, she was able to leave the house, interact with customers, operate a cash register, socialise outside of work and attend social venues (albeit with the excessive use of alcohol on occasion), complete further studies (with difficulty), and acquire her driver’s licence and drive a car independently (again with difficulties). The documentation suggests that her function at work was impaired to some extent, particularly her social skills, poor boundaries and interpersonal sensitivity. I note boundary crossings with her manager at Priceline and a teacher at TAFE.
Ms Delvecchio and her mother provided me with the developmental history as follows:
Ms Del Vecchio has two nephews on the autistic spectrum. Her father has been diagnosed with bipolar. Her biological father left when she was 2 or 3. She has never had a relationship with him. She was raised by her stepfather, who died 18 months ago.
She denied exposure to abuse or family violence. However, in a statement prepared for her psychologist, I noted that she witnessed violence against her mother from her stepfather, who drank excessively and that she was scared of his temper.
She was born in the Sutherland Shire, a normal vaginal delivery, and her mother’s fourth child. There were no concerns at birth or about her development until the fall at age 2. She started school while she was on Dilantin, which was sedating, and she was drowsy. She started school at a 3-year-old level and required support and therapies, including occupational and speech therapy. Her mother described her primary school years as “troubled”. Ms Del Vecchio chose not to speak, and her brothers communicated for her. She started school in a small country school, and her brothers looked out for her. She said she was treated like a special person and was happy during primary school.
Her mother told me that her mental health deteriorated when she had to go to a large school and could not make friends. She was bullied in high school. Ms Del Vecchio said she would pretend she was sick so she would not have to go to school. She became anxious about attending school, was withdrawn in Year 8 and was home-schooled. She developed a social phobia at about the same time. She could not go out alone and had to be accompanied by her mother. When she turned 16, she decided she did not want to continue schooling. She said she had always been a reader and did her study independently ‘in my own way’.
She started seeing a psychologist in Canberra at 15 to treat social anxiety. She said she was housebound for five years. She said she became depressed when she was 18 and would cry for days and not eat, and she was started on medication at 18. She said she tried two antidepressants before settling on fluoxetine and remained on fluoxetine for 10 years. She started seeing a psychologist in Canberra when she was 15. She said she started seeing Jonathan Gaston when she was 17. She said he helped her with her anxiety, getting out, going to the shops, asking for things, and catching trains. She said she would often go to the movies, catch the train and then get McDonald’s for lunch, making a day out of her activities.
There were no subsequent accidents, injuries or conditions that were not linked to her pre-existing condition or the aggravation of her pre-existing condition related to her employment with Priceline.”
The Medical Assessor then set out in considerable detail Ms Del Vecchio’s general health and work history which we do not intend to set out as much of this information is covered in the body of the MAC.
The Medical Assessor then turned to consider the impact of Ms Del Vecchio’s injury on her activities of daily living and social activities, and said:
“She took her nephews and nieces to see Avatar 2, just herself and the children. She said her mental health suffered for doing it, and she would not leave the house, even with her mother, for some time. She said she sometimes has no choice but to do things with her nephews. They might play board games at home. She said it takes a lot of effort. She said she is not reading because it is too much effort. She said, at her best before the injury, she was going through a book every few days, mostly young adult and paranormal books. She said she had not read a book since before leaving Priceline. She watches television and is on the phone simultaneously, aimlessly scrolling and not paying attention. Her mother told me she has excellent computer skills.
She said she only enjoys sleeping and eating. Her mother cooks. Ms Del Vecchio can prepare a sandwich or get a snack from the fridge.
She said she washes her hair once a week because her mother makes her. She said she showers every second day with her mother’s prompting. Dental checkups are problematic because she has to go to a free clinic. Her last haircut was more than 12 months ago in Moss Vale. Her mother cuts her hair occasionally. She said before she worked at Priceline, she used to go for “girly days” at nail salons, but not since or during her employment with Priceline. She does not paint her nails or wear makeup. She said she used to love putting on makeup. She last wore makeup when she was working at Priceline. She changes her clothes every two days. Her mother does the washing. She said if her mother were not there, she would be “a lazy person, getting skin infections, living off takeaway food and junk food”. She told me that before and during her employment with Priceline, her mother could go away and leave her on her own several times per year, for example, on holiday to Vietnam with her stepfather. She said she could previously manage independently for several days to a week.
She has a driver’s licence but has not driven since she had a car accident about two years ago in Moss Vale when she thought she saw Mr Kalaf’s car and startled. She has been too scared to drive ever since. She has not been on any trips, including overseas travel. She said she went to Hawaii with her mother while employed with Priceline, her most recent overseas travel. She went to Thailand in her 20s and had cruised the South Pacific with her mother before her employment with Priceline. She said the only interstate travel was when they moved to Southport from Moss Vale. She said she would go away with friends and family before her employment with Priceline, but not since.
She said she argues with her mother occasionally, particularly over her lack of motivation and how she does not want to help herself. She said she had stopped talking to her cousins. She said she used to go clubbing with her cousin before and during her employment with Priceline. She said she weighed 90kg then, looked after herself, went on the Tony Ferguson diet and cared about her appearance. She is now indifferent to her appearance. She has gained weight, currently weighing 105kg.
She said she sleeps until lunchtime and puts the television on but has difficulty concentrating. She aimlessly scrolls through TikTok or plays an easy computer game. She does not cook because she has left the stove on too many times. She said she used to enjoy cooking before her employment with Priceline. She has no motivation to clean. Her mother does the cleaning.
She said she does not enjoy anything anymore. She said she could not go out and is not a member of any clubs or associations. She said she was volunteering at a community-funded art studio in Moss Vale, where she felt safe and did not feel judged. She said nobody there reminded her of anybody at Priceline.
She said her main social contacts are her mother and brothers. She said she has three brothers, two of whom are local, married with children, one niece and four nephews. They visit every two weeks for dinner. The children range in age from 4 to 15. She feels anxious when family visits, particularly if there are too many of them and they are loud. She said sometimes she might need to escape to her bedroom. She said she stays there and has a break and regroups. Besides taking her nieces and nephews to a movie once, she never babysits the children independently. She said she could not be trusted to do it. She said she rarely goes to their house, and if she does, only with her mother.
She said the thought of returning to work is more than she can handle. She said before her employment with Priceline, she was more confident and wanted to make a life for herself, but now she has lost all faith in herself.”

Findings on examination were reported as follows:
“Ms Del Vecchio was casually dressed. Her self-care was poor. She had matted, unwashed hair with grey roots, unbrushed and unstyled. She was overweight. Her eye contact varied. Her eyes were often downcast or averted. Her affect was restricted and dysphoric. She had mild dysarthria. Her speech was of normal rate, tone and volume. She described her mood as depressed.
Her thoughts reflected depressive themes, including worthlessness, hopelessness, despair and passive suicidal thoughts. She was preoccupied with reminders of her employment with Priceline Pharmacy, particularly about Mr Kalaf. She described hypersensitivity to reminders of her former employer, with associated avoidance. She reported attenuated hypervigilance and a preoccupation with running into former colleagues or her former employer. She described heightened sensitivity to social threats and exclusion and a preoccupation with negative evaluations by others. These beliefs were at the level of overvalued ideas, and there was no evidence of psychotic symptoms.
She was alert and orientated; I estimated her intelligence to be in the low average range. Her cognition was not formally tested. There were no overt cognitive deficits during the interview, although she was apathetic and found the interview tiring. Her insight and judgment were superficially intact, although impaired by the extent of her apathy, hopelessness and depressive world view.”
In summarising the injuries and diagnoses, the Medical Assessor said:
“Ms Del Vecchio is a 40-year-old woman with an accepted aggravation of a pre-existing psychiatric condition, aggravated while employed with Kalaf’s Priceline Pharmacy. As the aggravation of her pre-existing condition has been accepted by the Personal Injury Commission and the Respondent, the key issue is the degree and extent of impairment related to her pre-existing condition.
She has an extensive psychiatric history with confirmed social phobia, recurrent major depression, longstanding difficulties with low self-esteem and interpersonal sensitivity and a mild acquired brain injury. The events at Priceline Pharmacy aggravated her pre-existing condition to the extent that she could not continue working, and subsequent attempts to return to work failed. She has been on the Disability Support Pension since aged 15.
Before her employment with Priceline, she had made some headway with her social anxiety, albeit with constant background anxiety, low self-esteem and interpersonal sensitivity. She was limited in her work capacity by her pre-existing condition.
She meets the DSM-V criteria for a major depressive disorder with persistently depressed mood, anhedonia, sleep disturbance, fatigue, impaired concentration, depressive thoughts, including passive suicidal thoughts, worthlessness, and weight changes, with impairment in social, occupational and other important areas of functioning.
She meets the DSM-V criteria for agoraphobia with marked fear or anxiety about using public transportation, being in open spaces, or being outside the home alone. The agoraphobic situations almost always provoke pure anxiety and are actively avoided, require the presence of a companion or are endured with intense fear or anxiety. The fear or anxiety is disproportionate to the actual danger posed by the agoraphobic situations and the sociocultural context. The fear, anxiety and avoidance are persistent, lasting for six months or more. Fear, anxiety or avoidance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
She meets the DSM-V criteria for a social anxiety disorder with marked fear or anxiety about one or more social situations in which she may be exposed to possible scrutiny by others, including social interactions being observed and performing in front of others. She fears that she will act in a way or show anxiety symptoms that will be negatively evaluated, i.e. will be humiliating or embarrassing, leading to rejection or offending others. Social situations almost always provoke fear or anxiety. Social situations are avoided or endured with intense fear or anxiety; the fear or anxiety is disproportionate to the actual threat posed by the social situation and the sociocultural context. The fear, anxiety or avoidance is persistent, lasting six months or more. The fear, anxiety or avoidance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
I note Dr Roberts’ diagnosis of a neurocognitive disorder due to acquired brain injury. The relationship between psychiatric disorders, epilepsy and acquired brain injury is complex, and the effects of the acquired brain injury are best understood by examining the longitudinal history of her pre-existing condition.
The principal issues in dispute are the extent of the functional effects of the pre-injury conditions. The current depressive episode, social anxiety disorder and agoraphobia are an aggravation of the pre-existing conditions. The aggravation is, to some extent, work-related and ongoing, evidenced by Ms Del Vecchio’s preoccupation with events at Priceline and the long-term impacts on her confidence and mental health trajectory. There is ample evidence of substantial impairment from before the injury. An adjustment for the pre-existing condition is warranted.”
The Medical Assessor assessed 26% WPI from which he deducted one-half due to the pre-existing condition, leaving a total WPI of 13%.
He added:
“In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities: (i) Social anxiety disorder. (ii) Agoraphobia. (iii) Recurrent major depressive disorder.
Ms Del Vecchio has a well-established psychiatric history, specifically signs and symptoms of a social anxiety disorder, agoraphobia and recurrent major depressive disorder in addition to a mild neurocognitive disorder predating her employment with Soul Pattinson/Priceline.
Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is 50% for the following reasons:
(i)The impact of her pre-existing psychological conditions is established, and substantial and is no less substantial than the aggravating effects of the injury
(ii)(Ms Del Vecchio’s representations of her pre-injury function are tempered by the information provided by her psychologist’s clinical notes indicating substantial and ongoing problems with her mental health and social and interpersonal function, even considering the significant improvement in her condition in the years leading up to her employment with the Respondent. Improvements were hard-won and always in the context of continuing impairment.
(iii)I have not attempted to calculate the pre-injury impairment because I cannot reliably evaluate aspects of the functional assessment, such as the frequency of social and recreational activities based on her self-report or the information in the documents provided.”
The Medical Assessor set out in considerable detail, again, the other medical evidence and documents before him which we will address in the body of this decision.
He then said:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) Social anxiety disorder.
(ii) Agoraphobia.
(iii) Recurrent major depressive disorder.
b. The previous pre-existing condition directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) Ms Del Vecchio has a well-established psychiatric history, specifically signs and symptoms of a social anxiety disorder, agoraphobia and recurrent major depressive disorder in addition to a mild neurocognitive disorder predating her employment with Soul Pattinson/Priceline.
c. Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is 50% for the following reasons:
(i) The impact of her pre-existing psychological conditions is established, and substantial and is no less substantial than the aggravating effects of the injury
(ii) Ms Del Vecchio’s representations of her pre-injury function are tempered by the information provided by her psychologist’s clinical notes indicating substantial and ongoing problems with her mental health and social and interpersonal function, even considering the significant improvement in her condition in the years leading up to her employment with the Respondent. Improvements were hard-won and always in the context of continuing impairment.
(iii) I have not attempted to calculate the pre-injury impairment because I cannot reliably evaluate aspects of the functional assessment, such as the frequency of social and recreational activities based on her self-report or the information in the documents provided.”
The appellant submits that the Medical Assessor incorrectly applied s 323 of the 1998 Act, and failed to adhere to the Guidelines when making his assessment.
The appellant said:
“The guidelines mandate a deduction of 1/10th of the assessed WPI in these circumstances. The Medical Assessor did not do this and chose to deduct 50%. He did not explain why he did not apply the text of the guideline. The appellant submits that there was no basis that would have permitted this approach in any event.”
Section 323(1) of the 1998 Act requires a Medical Assessor to make a deduction when assessing the degree of permanent impairment a worker has from a workplace injury for any proportion of that impairment that is due to a previous injury or that is due to any pre-existing condition or abnormality. That task requires a consideration of whether a previous injury or pre-existing condition or abnormality contributes to an impairment caused by work injury. A proportion of permanent impairment will be due to a pre-existing condition if that condition makes a difference to the outcome for the worker in terms of the degree of permanent impairment a worker has from a work injury. Hence, to the extent that the pre-existing condition has made a difference to a worker’s permanent impairment from a work injury, there must be a deduction.
Further, the task of a Medical Assessor under s 323(1) requires the Medical Assessor to determine the contribution the pre-existing condition makes to the impairment resulting from the work injury, not the contribution of the pre-existing to the occurrence of a work injury.
A Medical Assessor’s assessment of the extent to which a worker’s permanent impairment resulting from the work injury is due to a pre-existing condition is a matter for medical assessment based on the evidence before the Medical Assessor.
Section 323 of the 1998 Act states:
“(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.”
Cole v Wenaline Pty Ltd (2010) NSWSC 78 (Cole) is relevant authority for s 323 of the 1998 Act. It is noted that in order for a deduction to be made under s 323 there must be evidence that a pre-existing abnormality; condition; or previous injury contributes to the impairment.
In Fire & Rescue NSW v Clinen [2013] NSWSC 629, Campbell J referred to D'Aelo vAmbulance Service of New South Wales (1996) NSWCCR 139; Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365; and Cole.
Campbell J said at [32]:
“As Schmidt J pointed out in Cole and Elcheikh, it is necessary to find a pre-existing abnormality or condition, here the latter, actually contributing to the impairment before s.323 WIM is engaged. This conclusion has to be supported by evidence to that effect. Assumption will not suffice.”
Campbell J also noted that it was;
“...necessary for the evidence acceptable to the appeal panel to actually support the connection between a previous injury (here, pre-existing abnormality or condition) and the overall degree of impairment in the instant case.”
Of course a pre-existing condition or injury does not automatically invoke a deduction under
s 323.The test is whether the pre-existing condition or injury actually contributes to the current impairment. If the evidence does not establish that the previous injury contributes to the impairment then no deduction can be made. However, if the previous injury does contribute, even if it was asymptomatic at the time of the later injury, then there must be a deduction.
To put it another way, we understand the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.
Of critical importance however is the obligation imposed on a Medical Assessor, when considering any deduction, to ensure that it is “not at odds with the available evidence”.
In this case the Medical Assessor clearly explained his reasons for the deduction he made in accordance with s 323 of the 1998 Act, and we agree with his assessment for reasons that follow.
To begin with, the appellant clearly had an extensive history of pre-existing psychological problems that impaired her in a range of domains. A deduction of one-tenth would be clearly at odds with all the available evidence.
As noted earlier, the Medical Assessor set out in considerable detail all the medical and other evidence he had before him.
For example, the Medical Assessor noted:
“Correspondence from Dr Jonathan Gaston, Psychologist, dated 9 June 2011, noted a long history of severe social anxiety, accompanied by feelings of low self-worth. He noted her main fears were the risk of rejection by others, primarily a concern that other people would negatively judge her. He noted that these fears caused significant anxiety and avoidance in various social and performance situations, resulting in a restricted social life. He noted they also led to Ms Del Vecchio struggling with most aspects of gaining employment, including talking on the telephone, upgrading her job skills and attending and performing in interviews. He noted a history of intermittent low mood and poor motivation. He outlined the cognitive behaviour therapy program, an evidence-based treatment for social anxiety and depression…
Subsequent notes from Jonathan Gaston include a background of chronic anxiety and low self-esteem with interpersonal sensitivity due to work and non-work-related stressors…”
In a report dated 5 October 2017, Mr Gaston said:
“I had previously consulted with Natalie Del Vecchio when she was an adolescent to help her with quite severe social anxiety problems. At that time, Natalie was severely restricted in her life, and often unable to leave her house…”
Medical records from Dr Rowan Vickers confirmed a long history of anxiety and depressive symptoms, recurrent.
In his report, dated 2 March 2020, Dr Christopher Canaris, noted a “work-related exacerbation of a longstanding condition…”
The appellant has been on the Disability Support Pension since she was 15 because of her psychological problems. She has never worked more than 10 hours per week because of the impairment in her adaptation arising from those problems. Her employment with the respondent, commencing in 2011, was in a highly supportive environment. She has never left home and lived independently, nor had a long -term relationship with a partner due to these problems.
In the PIRS rating form, the Medical Assessor clearly considered that the appellant was significantly impaired. For example, he said:
“Ms Del Vecchio can’t live independently without regular support… Without her mother’s support on the balance of probabilities she could not maintain a minimum level of hygiene and nutrition…
She is agoraphobic…She will not go out without a support person. Social situations almost always provoke fear or anxiety. Social situations are avoided or endured with intense fear or anxiety…
She cannot travel away from own residence without support person. Problems are due to excessive anxiety and cognitive impairment…
She has never had a long-term relationship with an intimate partner. Low self-esteem, interpersonal sensitivity, impaired social skills, and social anxiety significantly affect her social functioning.
She is easily overwhelmed by anxiety if she feels uncomfortable or under pressure, so she avoids most situations that challenge her.”
The medical evidence indicates that much of the current WPI ascribed by the Medical Assessor has been present for many years.
The levels of impairment ascribed by the Medical Assessor have been present for many years.
Although Dr Canaris did not consider that any deduction was warranted, he nonetheless conceded that the appellant had “a longstanding condition”.
The Panel notes that this claim was pleaded as: “Psychological injury and/or aggravation…of a pre-existing psychological condition…”
This characterisation of the appellant’s injury seems entirely consistent with the totality of the evidence.
The Medical Assessor obviously considered that there was a contribution to her impairment from work-related issues, concluding effectively that 50% of her impairment was as a result of the work injury.
But as we said previously, the appellant clearly had an extensive history of pre-existing psychological problems.
In our view, the deduction made by the Medical Assessor was appropriate given the totality of the evidence.
The MAC was both thorough and well considered.
For these reasons, the Appeal Panel has determined that the MAC issued on 24 March 2023 should be confirmed.

[2023] NSWPICMP 470

25 September 2023