Delbridge v Newcastle Corporate Real Estate Services Pty Ltd t/a Knight Frank
[2025] NSWPICMP 171
•17 March 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Delbridge v Newcastle Corporate Real Estate Services Pty Ltd t/a Knight Frank [2025] NSWPICMP 171 |
| APPELLANT: | Sasha Delbridge |
| RESPONDENT: | Newcastle Corporate Real Estate Services Pty Ltd t/a Knight Frank |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 17 March 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of 17% whole person impairment (WPI) for psychiatric injury with a deduction of one half made pursuant to section 323; worker submitted that Medical Assessor (MA) applied incorrect criteria in the deduction of one half including relying on a predisposition as a basis for the deduction; Cullen v Woodbrae Holdings Pty Ltd considered; Appeal Panel satisfied that the MA applied incorrect criteria and made a demonstrable error in that she relied in part upon assumptions or hypotheses in considering any contribution made by a pre-existing condition to the assessment of impairment; worker also submitted that there was a failure by the MA to engage with clause 11.10 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines); the Appeal Panel accepts that the MA did not refer to clause 11-10 of the Guidelines and therefore failed to properly engage with the Guidelines at clause 11.10; worker re-examined; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 14 October 2024 Sasha Delbridge (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 September 2024.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 assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground 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, 4th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The appellant suffered a psychological injury in the course of her employment with Newcastle Corporate Real Estate Services Pty Ltd t/as Knight Frank (the respondent) deemed to have occurred on 11 January 2021.
The appellant commenced proceedings in the Personal Injury Commission (Commission) claiming 22% whole person impairment (WPI) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a psychiatric and psychological disorder injury deemed to have occurred on 7 October 2019.
The matter was heard by Member Kathryn Camp who issued a Certificate of Determination on 9 August 2024 in which she made the following findings and orders:
“The Commission determines:
1. The applicant sustained a disease injury being a psychological injury in the course of her employment with the respondent, pursuant to s4(b)(ii) of the Workplace Injury Management and Workers Compensation Act 1998.
2. The applicant’s employment with the respondent was the main contributing factor to the aggravation of the disease with a deemed date of injury of 11 January 2021.
The Commission orders:
3. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
(a) Date of injury: 11 January 2021 (deemed) – disease.
(b) Body systems: psychological.
(c) Method of Assessment: whole person impairment.
4. The documents to be reviewed by the Medical Assessor are:
(a) Application to Resolve a Dispute dated 20 March 2024, and attached documents;
(b) Reply to Application to Resolve a Dispute dated 11 April 2024, and attached documents;
(c) Application to Admit Late Documents dated 31 May 2024, and attached documents, and
(d) A copy of this Certificate of Determination.”
The Medical Assessor examined the appellant on 10 September 2024. The Medical Assessor assessed 17% WPI and deducted one half for pre-existing injury, condition or abnormality which resulted in a total of 9% WPI as a result of the injury deemed to have occurred on 11 January 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 Procedural Direction PIC7.
The appellant requested that she be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that there was a demonstrable error in the MAC and that it was necessary for the appellant 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
Medical Assessor Michael Hong of the Appeal Panel conducted an examination of the worker on 13 February 2025 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a) Ground 1 - the Medical Assessor applied incorrect criteria in the deduction of one-half pursuant to s 323 for pre-existing injury.
(b) The Medical Assessor applied Cl 11.10 of the Guidelines and s 323 of the 1998 Act to reach a WPI deduction of one-half. The Medical Assessor applied incorrect criteria. Firstly, the Medical Assessor noted at 10a(i): “Past history of childhood trauma that is physical abuse perpetrated by father” as a relevant previous injury, pre-existing condition, or abnormality. Secondly, the Medical Assessor noted at 10a(ii) that the appellant has a “longstanding history of depression and anxiety for which she has been on treatment with Escitalopram on a long-term basis”. Thirdly, the Medical Assessor noted at 10a(iii), the “history of deterioration of her mental health in the context of physical and verbal abuse by her ex-partner”. The Medical Assessor further noted “a past history of alcohol and drug use, which was exacerbated… in an abusive relationship”. Fourthly, the Medical Assessor noted at 10a(iv), a “diagnosis of multiple sclerosis, which also impacted her mental health”. Additionally, in paragraph 10c(i) the Medical Assessor noted: “depression has been linked to the inflammatory process underlying for multiple sclerosis”. Fifthly, the Medical Assessor noted at 10a(v) that a “knee injury impacted her mobility and overall physical well-being, which further exaggerated her mental health.”
(c) These five paths of reasoning used by the Medical Assessor were insufficient as they rely on a mere predisposition or susceptibility (Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416).
(d) The Medical Assessor presented the five points as a predisposition or susceptibility to mental health issues rather than as a pre-existing condition that directly contributed to the impairment assessed. This is reflected in the path of reasoning that links these factors to mental health symptoms and/or issues, because the appellant was more vulnerable, rather than finding a pre-existing injury or condition.
(e) Therefore, the Medical Assessor made a demonstrable error by failing to adequately highlight a pre-existing condition that directly contributed to the appellant’s impairment. Rather, the Medical Assessor merely relied upon insufficient assumptions or hypotheses based on her experience as an assessor and clinical psychiatrist.
(f) In respect of Ground 2, demonstrable error, the Medical Assessor failed to properly engage with the Guidelines at 11.10.
(g) As highlighted in Ground 1, the Medical Assessor failed to adequately assess and discuss the pre-injury level of functioning. Further, the Medical Assessor failed to adequately follow the process, or the deductive reasoning required by the Guidelines at 11.10 to assess the pre-existing WPI then subtract it from the current level of WPI. Consequently, the Medical Assessor did not apply a sufficient path of reasoning to reach the assessment of one-half deduction, and merely considered that because a deduction of “one tenth is at odds with the available evidence” then a deduction of one-half is more reasonable.
(h) This line of reasoning is inconsistent with Cole v Wenaline Pty Ltd [2010] NSWSC 78, Schmidt J said:
“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 of 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.”
(i) The assessment conducted by the Medical Assessor failed to have regard to the evidence as to the “actual consequences” of any earlier injury, pre-existing condition, or abnormality. Rather, the assessment hypothesised the extent of this possible pre-existing condition. The Medical Assessor erroneously made a one-half deduction under s 323.
(j) In the alternative, if it is found that a deduction under s 323 is warranted, it is submitted that the Medical Assessor made the wrong deduction by estimating a one-half deduction when the correct deduction as per s 323(2) would be a one-tenth deduction.
(k) The correct assessment is 17%, or alternatively 15%, as consistent with the class scores determined by the Medical Assessor. The Medical Assessor erroneously applied a one-half deduction under s 323 of the 1998 Act.
The respondent ‘s submissions include the following:
(a) Ground 1 - the Medical Assessor clearly identified not only the history of psychological stressors, but the nature of the pre-existing condition/illness. There is, in the MAC, a detailed history captured of symptomatic General Anxiety Disorder and Alcohol Use Disorder. Ground 1 should be rejected.
(b) Ground 2 – Failure to engage with the Guidelines at 11.10. The legislative requirements set out a Part 7 of the 1998 Act take precedence over the Guidelines.
(c) There is a consistent line of legal authority to the effect that the process of the Guidelines 11.10 is inconsistent with s 323 of the 1998 Act (Marks v Secretary, Department of Communities and Justice, (No 2) [2021] NSWSC 616 and Secretary, Department of Communities and Justice v Lewandowski (Lewandowski) [2023]NSWSC 334).
(d) The reasoning in Lewandowski has been cited with approval and followed in a line of recent Appeal Panel decisions of the Commission, including Fuller v Secretary, Ministry of Health, NSWPICMP 568, [42] and Thomson v Trustees of the Roman Catholic Church for the Diocese of Broken Bay [2024] NSWPICMP 631, [41].
(e) The Medical Assessor therefore did not err in not applying the psychiatric impairment rating scale (PIRS) to the appellant’s pre-existing condition/abnormality.
(f) The Medical Assessor carried the statutory task as set out per s 323 of the 1998 Act, consistent with the abovementioned authorities.
(g) Having identified a pre-existing condition/abnormality (Generalised Anxiety Disorder, Alcohol Use Disorder, etc), the Medical Assessor was required to deduct such proportion of the impairment that was due to such condition/abnormality.
(h) The Medical Assessor considered, consistent with s 323(2), that a deduction of 10% was inconsistent with the available evidence. The Medical Assessor applied a s 323 deduction in accordance with the reasons set out throughout the entirety of the MAC and summarised this at page 11.
(i) The reasons of a Medical Assessor need not be “lengthy or discursive”. Notwithstanding the above, the Medical Assessor provided a detailed discussion of the appellant’s pre-existing conditions and symptoms, and the respondent notes the references cited at paragraph 8 of these submissions, above.
(j) The MAC should be upheld.
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 Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for her conclusions as well as the evidence referred to above.
In the MAC under “History relating to the injury” the Medical Assessor wrote:
“Ms Delbridge is a 51-year-old female, who lives in Merewether, Newcastle. She has been supported by her mother who lives about five minutes away and support worker who helps her with activities of day-to-day functioning five days a week.
History: Ms Delbridge reported that she commenced working with Knight Frank Newcastle in 2018 and her last day at work was in December 2020. She resigned from her employment on 11 January 2021. She said that she is currently self-employed and grooms dogs and works about 15-16 hours per week. She reported that she has started her own business about 6 months back. She added that a friend who was also a dog groomer helped her to complete the course.
She attended a dog grooming school and completed the six-month course in a year and has been working as a dog groomer since then. She alleged that during her employment with Knight Frank Newcastle, she was ‘continually harassed and bullied, antagonised by Catherine’. She said that there were restrictions around her, not allowing her to wear heels. She was not allowed to speak to other staff members as her manager felt that they were quite busy. She was always asked to wear long sleeves to hide her tattoo.
She said that she has been in trouble for not stacking the dishwasher appropriately and not collecting the cups from everybody's desk. She added that there have been multiple instances where she has been screened (sic) at, in public and she was bullied. She said that she was diagnosed with multiple sclerosis in October 2019 and her supervisor was quite unsupportive. She added that even when she was diagnosed, they used to ‘call me up every single day to see when I am coming back to work’. She described that she felt that something was wrong when her left foot was ‘completely numb’ and then consulted the doctors. She was admitted to the hospital for about two weeks after the diagnosis.
She was asked to return to work immediately as one of the team members had to go overseas and there was ‘no care or consideration about her physical health’. She said that she returned to work after about three days of being discharged from the hospital. She said that her manager told everyone in the company about the diagnosis of multiple sclerosis, which frustrated her a lot as this is a confidential matter and should not have been disclosed to her colleagues. She said that her manager did not trust whatever she did and in fact, whenever Ms Delbridge took some time off for her medical appointments, her manager would ring the clinic to check if she has the appointments or not.
She said that despite being bullied and harassed, she continued working. She said that she had to work extra hours during this time as she had to see the doctors during her working hours. She said that her manager was not only unsupportive, in fact, she was given additional role of the member of the valuation team. Ms Delbridge said that she did not feel safe to go to a Christmas party and she requested a support person to attend the party which was declined. She said this made her feel quite anxious that she would be reprimanded of not attending the Christmas party.
She reported that on 5 March 2020, she fell in the office kitchen. She said that she dislocated her knees very badly and was sent home without any supports. Ms Delbridge alleged that she herself had called the ambulance and was operated on
11 December 2020. She said she got the approval for the surgery but her manager was not very supportive of getting the surgery at that time. She, however, went ahead and got the surgery in December 2020 and took about 4 to 5 weeks off. Ms Delbridge reported that she started experiencing difficulty in her work and remembers having nausea and vomiting on her way to work.She was unable to sleep, had nightmares and sweats. She added that she started getting more forgetful and lost interest in ‘How I looked? I was a very immaculate person, but I did not care about my looks at that time.’ She started to find communicating with people difficult and started withdrawing from her family members. She said that she was not bothered to talk to others and felt worthless. She also experienced ‘full-blown panic attacks when going to supermarket’. Ms Delbridge remembers feeling irritable, snappy and ‘lose my shit and scream and abuse my mom.’ She stated that she reported ‘the antagonisation to the CEO and the executive assistant, but nothing much was done about it.’
She started seeing a psychologist in 2020. She reported that she saw the psychologist about twice a week. In 2020, she had an overdose on Lyrica and took 48 tablets and was ‘fortunate enough that her mom found her unconscious and was taken to the hospital’ but was not admitted. In December 2020, she tried to swim in the ocean and tried to swim fast so that she would not have to return back. However, the watch guards realised that she had swam far off and came to rescue her.”
In the MAC, under “Personal History” the Medical Assessor noted that the appellant denied experiencing any childhood trauma or abuse or witnessing any adverse events.
Under “Drug and Alcohol History” the Medical Assessor wrote:
“Ms Delbridge reported that she imbibes alcohol on a daily basis and enough to ‘feel anaesthetised.’ She said that she drinks about half a bottle of wine on a regular basis and has been drinking this much for the last 2 years. She said that she earlier only drank socially. She also smokes THC about one joint every day and has been using that for the last 2 years.”
Under “Details of any previous subsequent accident and injuries” the Medical Assessor wrote:
“Ms Delbridge lodged a Worker’s Compensation Claim for the knee injury in 2020 and was off work for about 5-6 months. She also added that ‘I was a little sad when my dad left at the age of 6 years.’ She said that she however did not have to take any medications nor did she have to see any psychologist at that time. I asked her if there was any other history of mental health issues to which denied.
I then told her that I have noted that she was subjected to physical and verbal abuse from her ex-partner which led to the separation. She then agreed and told me that she separated from her ex-partner. I asked her if she received any treatment at that time to which first she denied, and then when I highlighted that I had read the documents that she received the treatment she quickly reported that she was prescribed Venlafaxine and took the medication for 6 months. She said that however the medication did not help as she was quite depressed and the medication was later changed to Duloxetine.
She also received counselling for about 20 visits at that time. She reported that she has been on Lexapro for a long time and was diagnosed with generalised anxiety disorder at the age of 30 years. She said that she has been taking Lexapro on and off since then.• General health: Multiple sclerosis, knee injury.”
Under “Summary” the Medical Assessor noted:
“I have noted a significant history of mental health issues in the past, mainly childhood history of abuse and being in a physically and emotionally abusive relationship. I have also noted chronic history of Generalised Anxiety Disorder for which Ms Delbridge has been on treatment off and on. Her current presentation is consistent with the diagnosis of Major Depressive Disorder and Alcohol Use Disorder.”
The Medical Assessor noted that there were multiple inconsistencies in the appellant’s presentation including:
“Ms Delbridge first denied having past history of any mental health issues. When I told her that I had the documents mentioning the diagnosis to which she said ‘oh yes, I had when I was little when my dad left, but I did not see anyone in particular’. I again said that I had noted that there was physical and emotional abuse from her ex-partner, which led to the separation to which she first denied and then agreed that she had mental health symptoms at that time. I then said that I had noted the documents that mentioned the lifelong history of having Generalised Anxiety Disorder, to which she said it was not significant. I also asked her specifically if she had any childhood history of any sexual or physical abuse, to which she denied having any. I have noted, however, that the documents mentioned a childhood history of abuse.”
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? Yes
f. If so, please indicate which body part/system is affected by the previous injury, preexisting condition or abnormality. Mental health”.
Under “Reasons for Assessment” the Medical Assessor commented on other medical opinions and wrote:
“IME by Dr Ben Teoh 23 April 2021. I have noted that Dr Teoh summarised that her presentation was consistent with Major Depressive Disorder. I noted that he had mentioned in the note she has been stressed following the diagnosis of multiple sclerosis and in the past she had episodes of depression and she was treated with antidepressant medication.
• Supplementary report by Dr Ben Teoh dated 15 May 2021, mentioning he did not agree with the diagnosis of Post-traumatic Disorder as mentioned by Ms Jenny Stuart, Psychologist. I agree with Dr Teoh’s assessment that Ms Delbridge’s presentation is not consistent with Post-traumatic Stress Disorder (PTSD) as she does not fulfil most of the criteria of PTSD, including the criteria 8 ‘exposure to actual or threatened, death serious injury of sexual violence, leads to the other symptoms of PTSD’
• IME by Dr Anthony Dinnen dated 23 May 2022. I have noted the history presented in the IME largely collaborates the one that I collected during my assessment. I have said WPI as 11% and PI 3% from treatment effect. The diagnosis made was adjustment disorder with anxiety and depressed mood. Dr Dinnen noted that “the positive factors are complex, apart workplace bulling and harassment. It seems that ongoing problems are caused by MS, as does the injury to the knee.”
• IME by Dr Vasantha Pothala dated 4 September 2023. Dr Pothala mentioned he has noted ‘Ms Delbridge had not provided any information related to treatments that had occurred in the Christmas party in December 2020. This critical information was also not mentioned in her statement but there was (sic) certificates, GP notes, GP medical report or IME reports. There was very little or no mention about her workplace issues prior to her resignation in January 2021.’
• Dr Pothala also mentioned WPI as 7%.
• I have noted by Dr Alexander Lobanov dated 8 March 2021.
• A letter by Jenny Stuart mentioned the diagnosis of Major Depressive Disorder and Posttraumatic Stress Disorder; however, I respectfully disagree with the diagnosis of PTSD as mentioned above.
• Clinical notes from Hunter Health Hub, various dates.
• Letter by Dr Marina Ramos, Consultant Psychiatrist dated 26 May 2020. She mentioned ‘Sasha described several months of difficulties until otherwise doing well ???’
• Letter by Jeannette Scott dated 3 December 2019.
• Letter by Ms Susan dated 28 October, mentioning ‘I saw Sasha and her mother today for post-hospital visit, in particular a need to decide the prophylactic MS therapy. She presented no neurological symptoms but has had ongoing side effects of Methylprednisolone. [feeling (sic) a bit shaky. She has some fatigue most days some days better than other. Some cognitive fog and emotional weariness and thus experience having had history of some anxiety but is managing well at the moment’.
• Notes from John Hunter Hospital.
• Letter by Pamela Delbridge, Ms Delbridge’s mother dated 12 April 2020, wherein
Ms Pamela Delbridge has mentioned that ‘Sasha has been treated for approximately 20 years for anxiety and depression and used drugs and alcohol during this time. She is a recovering alcoholic and needs to attend meetings each week, was sober for
13 years but used and drank again due to domestic violence.’• Letter by Verona Launcedale dated 7 February 2020, mentioning ‘Sasha also reported she experienced abuse in childhood and witnessed domestic violence perpetrated by her father. Domestic violence and childhood abuse have created trauma and psychological distress.’ He also mentioned “Sasha has history of drug and alcohol abuse however has managed to continue to deal with these. Sasha is managing these issues well and has no relapses since she separated from her ex-partner.”
Under “10. DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY” the Medical Assessor wrote:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) Past history of childhood trauma that is physical abuse perpetrated by father.
(ii) Longstanding history of depression and anxiety for which she has been on treatment with Escitalopram on a long-term basis.
(iii) History of deterioration of her mental health in the context of physical and verbal abuse by her ex-partner, and Ms Delbridge described the marriage as very traumatic. Ms Delbridge received therapy as a victim of domestic violence.
(iv) Diagnosis of multiple sclerosis, which also impacted her mental health. Treatment of multiple sclerosis with steroids.
(v) A knee injury impacted her mobility and overall physical well-being, which further exaggerated her mental health.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) Childhood history of physical abuse is known to predispose to mental health symptoms later in life. I have noted that Ms Delbridge also experienced intimate partner violence in her last relationship and alleged that her partner only wanted to be with her to get an Australian visa as they had met online. There was both physical and emotional abuse during the marriage. I have also noted a lifelong history of depression and anxiety for which she was receiving treatment with antidepressants.
The same has been corroborated in multiple documents by doctors and has been mentioned even by Ms Delbridge. I have also noted a past history of alcohol and drug use, which was exacerbated when Ms Delbridge was in an abusive relationship. Her alcohol use has been exacerbated currently in the context of the multiple stressors.
(ii) Diagnosis of multiple sclerosis. I believe the diagnosis of multiple sclerosis also impacted Ms Delbridge’s mental health. Clinical notes from Hunter Health Hub dated 16 April 2019 and 29 May 2019 mention the challenging separation of physical and verbal use. Accessed free counselling with victim services; anxiety has been resolved with a high dose of Effexor.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions:
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 for the following reasons:
(i) There is a significant history of mental health issues, namely depression, anxiety and alcohol use disorder, which would have predisposed Ms Delbridge to develop the current symptoms. Along with that, Ms Delbridge was diagnosed with multiple sclerosis and underwent treatment for the same with steroids which also impacted her mental health. Depression can occur in at least 50% of multiple sclerosis patients and is three times more common than in the general population.
Depression has been linked to the inflammatory process underlying for multiple sclerosis. Ms Delbridge also has a past history of alcohol use disorder, which was exacerbated in the context of multiple stressors, including workplace stressors. I believe that, therefore, the workplace stressors are not the only cause for her current presentation, and hence, the deductible proportion of 1/2 seems to be a more reasonable deduction.”
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.
Dr Teoh, consultant psychiatrist, in a report dated 24 March 2021 noted:
“Ms Delbridge got divorced a year ago.
She has a history of depression 15 years ago. She was treated with antidepressant medication, Lexapro, and she had psychotherapy for several weeks. ….
Her parents got divorced when she was six years old, she lived with her mother. There was no history of childhood trauma or abuse.
…She had a history of alcohol abuse in the past”.
Dr Dinnen, consultant psychiatrist, in a report dated 23 May 2022 noted that the appellant had separated from her husband three years ago and described that as “pretty brutal”. He noted that the applicant went to therapy and received counselling, some 20 visits. He wrote:
“Her psychologist thought she had been gaslighted and she was able to ‘move through’ this reaction successfully. She had not had any previous counselling or therapy.
However, the patient told me she had taken Lexapro for a long time. That was when she was diagnosed with a generalised anxiety disorder at the age of 30. She had always been anxious and short of breath and her general practitioner had diagnosed the condition. He treated her with Lexapro, which was effective, and she ‘never had a problem after that.”
Dr Dinnen noted that she uses very little alcohol and did try cannabidiol for her MS but found it made no difference, so she did not continue. He expressed the opinion that the appellant suffered from symptoms of anxiety and depression, aggravating a pre-existing generalised anxiety disorder as a result of workplace stressors.
In a report dated 19 October 2022, Dr Dinnen assessed 22% WPI. He wrote under “Pre-existing impairment”:
“Although the condition of anxiety disorder was present in the past, it does not appear that this had caused impairment until the subject of this claim. No adjustment is to be made.”
Dr Vasantha Pothala, consultant psychiatrist, in a report dated 4 September 2023, noted that the appellant reported she had a past history of generalised anxiety disorder saying: “I always suffered from Generalised Anxiety Disorder my entire life”. She said it was managed well with medication. Dr Pothala noted that the appellant had seen a counsellor when she went through a divorce and said it was horrible at the time but she was happier about it now. Dr Pothala noted that the appellant was referred to a psychologist and psychiatrist following her diagnosis of MS.
Dr Pothala noted that the appellant denied any abuse or trauma in her childhood. Dr Pothala considered that the appellant had been symptomatic when she commenced employment with the respondent. Dr Pothala deducted one tenth of the impairment assessed for pre-existing impairment.
In a clinical note dated 22 May 2018, Dr Alexander Tonkin, general practitioner, noted that this was the appellant’s first visit having moved to Newcastle from Sydney. Dr Tonkin noted: “Patient presented for script Lexapro. GAD very stable”.
In a clinical note dated 19 March 2019, Dr Alexander Lobanov, general practitioner, noted:
“Anxiety symptoms worsening. escitalopram hasn’t seemed to work. wants to look at changing meds. Recommend psychotherapy too - will engage with this. Issues with nightmares/reimagination. Long discussion – trial of prazosin for this. Has companion animal. Management: change to venlafaxine.”
Ground 1 - Evidence of a pre-existing condition, rather than a predisposition or susceptibility
The appellant argues that the five paths of reasoning used by the Medical Assessor were insufficient as they rely on a mere predisposition or susceptibility. In Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416, the Court reiterated the need for evidence, that is actual evidence of a pre-existing condition, rather than a predisposition or susceptibility and said at [46] “Thus to establish a pre-existing condition for the purposes of s 323(1) there must, at the relevant date, be an actual condition although it may be asymptomatic. A mere predisposition or even a susceptibility is not sufficient to constitute a condition.”
As noted above, the Medical Assessor expressed the opinion that the appellant suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
“(i) Past history of childhood trauma that is physical abuse perpetrated by father.
(ii) Longstanding history of depression and anxiety for which she has been on treatment with Escitalopram on a long-term basis.
(iii) History of deterioration of her mental health in the context of physical and verbal abuse by her ex-partner, and Ms Delbridge described the marriage as very traumatic. Ms Delbridge received therapy as a victim of domestic violence.
(iv) Diagnosis of multiple sclerosis, which also impacted her mental health. Treatment of multiple sclerosis with steroids.
(v) A knee injury impacted her mobility and overall physical well-being, which further exaggerated her mental health.”
The Appeal Panel accepts that the Medical Assessor presented the first of the five points as a predisposition or susceptibility to mental health issues, i.e. causation, rather than identifying a pre-existing condition and to what extent it contributes to the current impairment. The Medical Assessor explained at paragraph 10b(i) that “Childhood history of physical abuse is known to predispose to mental health symptoms later in life”. The Appeal Panel also noted that the history appears to be inaccurate in that there was no reference to physical abuse by the appellant’s father and only a reference to abuse and witnessing domestic violence perpetrated by her father in the report of Verona Launcedale dated
7 February 2020.At paragraph 10a(ii) the Medical Assessor stated that “There is a significant history of mental health issues, namely depression, anxiety and alcohol use disorder, which would have predisposed… to develop current symptoms.” Again, the Appeal Panel accepts that the Medical Assessor presented the history of mental health issues as a predisposition or susceptibility.
At 10a(iii) the Medical Assessor referred to physical and verbal abuse from an ex-partner. However, the Medical Assessor did not explain what psychiatric condition, if any, that abuse caused and it if did, whether such condition had resolved. The Medical Assessor proceeded on the basis, in our view, of an assumption that the abuse directly contributed to matters taken into account when assessing WPI without providing adequate reasons for doing so.
At 10a(iv) the Medical Assessor referred to the diagnosis of MS and believed that had impacted on the appellant’s mental health. At 10c(i) the Medical Assessor wrote: “Depression has been linked to the inflammatory process underlying for multiple sclerosis.” Again, the Medical Assessor proceeded in our view on the basis of an assumption that in this case the MS directly contributed to the matters taken into account when assessing WPI. On the contrary, any impairment arising from a comorbid physical condition, or one arising from the same injury (cl1.19 of the Guidelines) cannot be assessed by the PIRS.
Further, the Appeal Panel also noted that the appellant was diagnosed with MS in about October 2019. The deemed date of injury in this matter is 11 January 2021 but the appellant commenced work for the respondent in March 2018 and her last day of employment was in December 2020. In her statement dated 5 June 2023, the appellant described problems in her workplace from when she commenced employment, including problems with her supervisor and criticisms of her appearance. Any depression caused by MS would be a concurrent condition or even subsequent condition and not a matter to be taken into account in making a s 323 deduction.
At 10a(v) the Medical Assessor stated: “A knee injury impacted her mobility and overall physical well-being, which further exaggerated her mental health”. The appellant sustained the knee injury in March 2020 some two years after she had commenced employment with the respondent. The appellant described problems in her workplace from when she commenced employment, and any symptoms caused by the knee injury would have been a concurrent condition or even subsequent condition and not a matter to be taken into account in making a s 323 deduction.
The Appeal Panel is satisfied that the Medical Assessor applied incorrect criteria and made a demonstrable error in that she relied in part upon assumptions or hypotheses in considering any contribution made by a pre-existing condition to the assessment of impairment.
However, on reviewing the evidence in this matter, the Appeal Panel is satisfied that the appellant has a “longstanding history of depression and anxiety for which she has been on treatment with Escitalopram on a long-term basis”. The Appeal Panel concludes that the appellant did have a long-term pre-existing psychiatric condition, namely, a generalised anxiety disorder, at the time of the subject work injury.
Ground 2 – Failure to follow the Guidelines at 11.10
The appellant submits that the Medical Assessor failed to adequately assess and discuss the pre-injury level of functioning. The appellant argued that the Medical Assessor failed to adequately follow the process, or the deductive reasoning required by the Guidelines at 11.10 to assess the pre-existing WPI then subtract it from the current level of WPI.
The Appeal Panel accepts that the Medical Assessor failed to adequately assess and discuss the pre-injury level of functioning. The Medical Assessor failed to adequately explain how the prior condition (and not any pre-disposition) contributed to the impairment assessed.
The appellant submits that as a consequence the Medical Assessor did not apply a sufficient path of reasoning to reach the assessment of one-half deduction and merely considered that because a deduction of “one tenth is at odds with the available evidence” that a deduction of one-half is more reasonable. The appellant submits that the Medical Assessor failed to adequately follow the process, or the deductive reasoning required by the Guidelines at 11.10 to assess the pre-existing WPI then subtract it from the current level of WPI.
Clause 11.10 of the Guidelines provides:
“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.”
The Appeal Panel agrees that the Medical Assessor did not make the s 323 deduction using the approach set out in cl 11.10 of the Guidelines and did not provide any reasons for not adopting that approach.
The Appeal Panel accepts that there is a consistent line of legal authority to the effect that the process of the Guidelines 11.10 is inconsistent with s 323 of the 1998 Act. In Marks v Secretary, Department of Communities and Justice, (No 2) [2021] NSWSC 616 (Marks No 2), Simpson AJ held that to the extent that there is inconsistency between Guideline 11.10 and s 323 of the 1998 Act, s 323 prevails. She found that Guideline 11.10 was inconsistent with s 323 and invalid to the extent that it excludes, in the application of s 323(1) of the 1998 Act to any psychiatric or psychological impairment, consideration of any contribution made to the impairment of a pre-existing but asymptomatic condition.
In Lewandowski Griffiths AJ held that the Panel fell into jurisdictional error because, instead of acting consistently with the approach identified in Cole and Elcheikh, the Panel failed to determine what proportion of Ms Lewandowski’s pre-existing post-traumatic stress disorder contributed to her impairment. He noted that the Panel focused its attention not on the proportion of Ms Lewandowski’s impairment which was due to her post-traumatic stress disorder but rather on whether the impairment produced by the post-traumatic stress disorder could itself be measured.
The reasoning in Lewandowski has been cited with approval and followed in a line of recent Appeal Panel decisions of the Commission, including Fuller v Secretary, Ministry of Health, NSWPICMP 568, [42] and Thomson v Trustees of the Roman Catholic Church for the Diocese of Broken Bay [2024] NSWPICMP 631, [41].
Section 323(1) requires the Medical Assessor to establish what proportion the pre-existing condition contributed to a worker's permanent impairment, as assessed at the time the assessment is undertaken. That is a different process from using PIRS to measure what the permanent impairment of a worker was at an earlier point in time from the pre-existing condition for the purpose of establishing the deductible portion for s 323(1) (Lewandowski at [54]; Fardell v Clinton Industries Pty Ltd [2022] NSWSC111 at [81]).
In Quintilani-Johns v Secretary, Department of Education [2024] NSWSC 1200 Mitchelmore J considered the question of a deduction for pre-existing condition where the worker’s pre-existing condition was symptomatic before the onset of work-related stressors and the correct test to be applied to determine the extent of the deduction. His Honour held that the Appeal Panel in dismissing the complaint by the worker that the Medical Assessor did not approach the issue consistently with the Guidelines, adopted the same erroneous approach as the Medical Assessor, focusing on “the contribution to the current injury by the pre-existing bipolar disorder”.
Because of the inconsistency between the cl 11.10 of the Guidelines and s 323 (1) of the 1998 Act, the Appeal Panel does not accept that cl 11.10 of the Guidelines necessarily requires a Medical Assessor, when assessing what proportion of a worker's impairment from a psychiatric injury is due to a pre-existing condition, to assess the degree of the worker's permanent impairment from the pre-existing condition as at the time of injury and then to deduct that from the permanent impairment the Medical Assessor assesses the worker has at the time of assessment. There may be cases where a Medical Assessor for various reasons is unable to assess the degree of the worker's permanent impairment from the pre-existing condition as at the time of injury or where a worker is asymptomatic at the time of the work injury.
However, the Appeal Panel does accept that the Medical Assessor did not refer to cl 11-10 and therefore failed to properly engage with the Guidelines at cl 11.10. This ground of appeal is made out.
The Appeal Panel, having found error, concludes that it was necessary for the appellant to undergo a further medical examination because there is insufficient evidence on which to make a determination in respect of any deduction to be made pursuant to s 323. The Appeal Panel notes that in order to determine the impact of any pre-existing condition on current WPI, a comparative exercise is necessary and it would be logically incoherent to simply begin the exercise from a fixed starting point, ie, the 17% WPI assessment made by the Medical Assessor (Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191).
As noted above Medical Assessor Micheal Hong of the Appeal Panel examined the appellant on 13 February 2025. Medical Assessor Hong provided the following report:
“1. HISTORY RELATING TO THE INJURY
· Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Ms Delbridge reported that she joined Knight Frank in Newcastle in March 2018 and worked full-time in administration and receptionist roles until December 2020. She reported being antagonised almost immediately. Due to this, she has suffered a severe decline in mental health. Bullying behaviour increased after her MS diagnosis. She said due to her workplace injury, she cannot handle people anymore and can only deal with dogs. She said she just wants her life back.
Ms Delbridge reported a temporary increase in anxiety symptoms after the MA’s assessment in 2024, due to the stress involved, and requested more NDIS. She now has NDIS support 8 hours a day, 5 days a week. She reported that NDIS support was initially accepted for her Multiple sclerosis. She was diagnosed with MS in October 2019 and in 2020, she began having support workers to assist her with household chores, grocery shopping, and food preparation. Ms Delbridge said that now the NDIS support is also for anxiety management. Whilst she experienced transient increased anxieties, there is no significant change in her functioning overall.
Past psychiatric history:
We discussed Ms Delbridge's early life history and I noted that she was born in Australia and her parents separated when she was six. She is the only child from that relationship and she has half-siblings. When asked about early life trauma,
Ms Delbridge said there was no trauma.
On specific inquiry regarding anxiety, she said she has suffered from GAD. There was no particular event or trigger that brought it on.
She divorced in 2018. I asked whether her ex-partner was abusive, she said he was not a nice person but there was no abuse; he was just controlling. I asked about physical violence, she said there was physical violence, but it is not something that bothers her because she got over it and moved on. Her file noted abusive father and ex-husband.
She then met another partner. They never lived together. She said she ended the relationship in October 2024 because she gets angry and cannot talk to him after
Dr Verma's assessment.
In terms of prior treatment, she said she saw a psychologist maybe for 4 or 6 months during her divorce previously. She took a couple of medications including Venlafaxine and Duloxetine and has been on Lexapro for about 15 years now. She was taking 10 mg before she joined Frank Knight. She said the medication worked well because she had no anxiety problems anymore and only suffered a bit of depression every so often. Without Lexapro, she said she would have severe anxiety, therefore, she said her GP would not want to take her off the Lexapro and she would be “a hell lot worse” without it. On Lexapro, she said she functioned very well and her last job was with Bale Boshev Lawyers. She worked there for almost 2 years doing receptionist and administration work and then joined Knight Frank.· Present treatment:
Ms Delbridge is taking:
· Lexapro 20 mg
· Quetiapine IR, 12.5 mg at night
· Prescribed CBD gummies
She has not seen her psychiatrist for 1-2 years and not seen her psychologist for around 2 years.
She consulted her neurologist, a Professor, every 12 months.
She said after Dr Verma’s assessment, she ended the relationship with her last partner, and needed increased NDIS support. Her GP added Seroquel and Lexapro remains the same.· Present symptoms:
Ms Delbridge has generalized anxiety and depressive symptoms and sleep problems. She ruminates about workplace issues. She has panic attacks.
She said her weight is stable and eats one or two meals a day only. She said people prompt her to eat.
She described irritability problems and denied physical aggression. She screams when angry.
She has suicidal ideation and denied self-harm behaviour.
She reported having major problems with her concentration and memory.
She does not know what can help her.
Ms Delbridge reported that when seen by Dr Verma she was drinking every day but now she does not because she cannot afford it. She said now, a bottle of wine would last her for the whole weekend, for example when watching movies. She said that the cannabis she was using was medicinal cannabis, and she had it for 6 months but it was too expensive; it also made her anxious and paranoid - she was ‘thinking worse about myself’ so she stopped it. In the last 4 weeks, she started using CBD gummies which she said are not mind-altering and therefore, she is better.
Social activities/ADL:
Ms Delbridge is 51 years old and has no dependents. She lives with her dog. The last time she lived with someone, was before her divorce.
She said that with her last partner, they did not live together but she used to watch movies at home, go out to the shops to eat, and she would go to his place and help with the veggie patch that he has. She said she does not have a garden herself and she has a couple of plants only.
Ms Delbridge said she has had no friends for a long time now. I asked about Dr Verma's recorded history that she was visiting her friends and going to her friends' homes, she said that these are in fact her support workers who are her friends. She has four regular support workers and has been to two of their homes. She said they would do things together, get something to eat out or take a walk, and she likes to go and see the dogs in their homes.
Her support worker helps her shop online, as she would not go in person. She said if she orders something online and forgets an item, she becomes tearful and screams. She said she is scared of making mistakes because how she was treated at work previously.
Ms Delbridge said she is constantly triggered, confused, gets angry, anytime anyone said anything negative. She does not shower or care about her appearance. She said the only place she goes to is work.
She has a carer five days per week, who help her prepare dinner because she said physically, she cannot do it. Her carer prompts her to shower.
She can drive but reported problems driving, and said she drives in the local area only, and loud noises cause anxiety and she pulls over. She drives to work and see her mother. Her mother helps get things she needs.
She also orders her business equipment online, and buys everything she needs for the business online.
Normally, Ms Delbridge had regular recreational activities, e.g. swimming, surfing and going to the beach. She said she does not do these activities anymore and said physically she cannot. She also avoids people and crowds. She collected cactus and she said they all died.
She stopped contact with her friends. She said she has support workers and called them her friends. She goes out for lunch and coffee with her friends, by this, she said they are support workers who are friends.
She sees her mother 1-2 times per week and father once a fortnight. They visit her and have coffee at home. Her mother helps her washing. They do not go out, except sometimes to a local IGA supermarket. She has half-siblings interstate and never close to them, and she only calls them on Christmas and birthdays.
Ms Delbridge reported that she enrolled in a dog grooming course. It was meant to be 4 days a week over 6 weeks but she could not handle the class and the other students, so it was negotiated that she would have one-on-one tuition for 4 hours in one day, 1 day per week and completed it over 6 months.
Once Ms Delbridge completed that course, she started her dog grooming business about 12 months ago. She rents a shop front, which her mother helped pay for and said that it is in an isolated location. She has clients, who are either family, friends or referred by word of mouth, and she only goes to the shop when she has a client.
Ms Delbridge said that the support workers often help her dealing with people at the store. When there is a dog, she will wash and groom them. She will go in for four hours in one day and it is open Tuesday to Friday, and she said she never works more than 20 hours per week. She can focus on working with dogs.2. FINDINGS ON PHYSICAL EXAMINATION
Ms Delbridge was assessed by video. She was at home on her own with her dog during the assessment. I assessed her from my Sydney office. I have completed a full psychiatric assessment with consent. I have taken handwritten notes, and there was no audio-visual recording of the assessment.
Ms Delbridge was bespectacled and had light colour hair, and wore pink nail polish. She engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. She was moderately restricted in her affect range and reactivity. She smiled and laughed briefly. She spoke spontaneously and was anxious to talk, and gave long answers. She was not thought disordered and the provided history was easy to follow. She did not perseverate and spoke fast.Before I completed the assessment, I asked her for additional information that she wanted to add and she had no specific comments to make.
An unusual aspect of Ms Delbridge's presentation is that she seemed to focus well during the assessment today, even after 50 minutes she maintained good concentration. It is noted that she is no longer drinking alcohol daily and no longer on medicinal cannabis, which she said was making her paranoid and more anxious. I asked her about her concentration being good during the assessment, and she reported that she has taken all her medications and that she could focus well because she prepared herself with the help of a support worker for the assessment today. She was assessed on her own.3. SUMMARY
· summary of injuries and diagnoses:
In summary, Ms Delbridge has a history of pre-existing Generalized anxiety disorder, stabilised on Lexapro 10 mg, but she still had transient sub-clinical depressive symptoms which do not reach criteria for a psychiatric disorder, before the subject work injury. She reported functioning well with no impairment day to day and normally worked full-time and enjoyed surfing, swimming, gardening, and collecting cactuses.
She reported that after she started work with Knight Frank she was constantly antagonised and bullied, particularly after her MS diagnosis. This led to her developing Major depressive disorder and aggravation of pre-existing GAD.
| PIRS Category | Class | Reason for Decision | |||||||||
| Self-care and personal hygiene | 3 | Ms Delbridge relies on prompting for showering and eating. Her weight is stable, but only because she has prompting from her carers, who come 8 hours daily 5 days per week now. She is not independent in living. | |||||||||
| Social and recreational activities | 2 | She reported her carers are also her friends and they visit her, she also visits their homes, and they regularly eat out together. The type of activities she described, were more than paid support work roles, and are consistent with recreational activities between friends. She enjoys spending time with her dog and watching movies at home. | |||||||||
| Travel | 2 | Ms Delbridge has anxiety and avoids crowded places. She drives on her own locally. | |||||||||
| Social functioning | 3 | Ms Delbridge established a new partnership after her deemed date of injury and they did not live together. Subsequently, the relationship with her partner ended. She also formed new friendships with her support workers. | |||||||||
| Concentration, persistence and pace | 2 | Ms Delbridge described herself as having poor concentration but presented objectively as having reasonable concentration during the assessment, even after 50 minutes. She completed a course but took longer than a typical student. She can focus on dog grooming for 4 hours She can perform intellectually demanding tasks for up to 30 minutes. | |||||||||
| Employability | 3 | Ms Delbridge works in her dog grooming business, up to 20 hours per week for around 12 months now. She cannot perform full-time work. She is the now the owner of her business as opposed to doing admin and reception which is not necessarily lower-stress employment at less than 20 hours per week. She can no longer manage her pre-injury duties. | |||||||||
| Score | Median Class | ||||||||||
| 2 | 2 | 2 | 3 | 3 | 3 | =3 | |||||
| Aggregate Score Impairment | Total | % | |||||||||
| + | + | + | + | + | 15 | 15 | |||||
Current treatment effects = 0%
I have assessed her functioning before and after treatment, and there were no apparent substantial or total elimination of her permanent impairment with treatment. She is in some ways more impaired, despite treatment.”
The Appeal Panel adopts the report and findings of Medical Assessor Hong.
The Appeal Panel finds that the appellant has a pre-existing psychological condition, namely, a generalized anxiety disorder, and was on treatment for that condition at the time of the subject work injury. The Appeal Panel is satisfied that her pre-existing psychiatric disorder contributed to her current psychiatric impairment, because her pre-existing generalized anxiety disorder was aggravated as a result of her employment injury, resulting in greater overall impairment. Were it not for her pre-existing condition, her current impairment would not have been as great and this reflects aspects of her impairment solely attributable to the pre-existing condition and not the injury.
As the Appeal Panel considers that the appellant was essentially asymptomatic at the time of the work injury, Guideline 11.10 does not apply (Marks No 2). In addition, the Appeal Panel noted that Medical Assessor Hong found that the appellant cannot recall any meaningful information of her previous impairment and there is no contemporaneous clinical evidence and therefore the Appeal Panel concludes that the relevant proportion is difficult to determine. However, as the appellant functioned well generally, engaged in regular recreational activities and worked full-time before the subject injury and could be considered to have been asymptomatic, the contribution from her pre-existing psychiatric disorder is a relatively minor one, and one-tenth deduction pursuant to s323(2) of the 1998 Act is not at odds with the available evidence.
However, if the Appeal Panel is wrong and the appellant was symptomatic at the time of her work injury, Medical Assessor Hong found that he was unable to properly calculate pre-existing impairment using the same method for calculating current impairment level as set out in Guideline 11.10 because the appellant cannot recall any meaningful information of her previous impairment and there is no contemporaneous clinical evidence. Then the acceptable approach is to assess the contribution from the pre-existing psychiatric disorder, as the Appeal Panel has already done.
The Appeal Panel assesses 15% WPI and makes a one tenth deduction pursuant to s 323 (2) which results in 13.5% which is rounded up to 14% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on
16 September 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W2288/24 |
Applicant: | Sasha Delbridge |
Respondent: | Newcastle Corporate Real Estate Services Pty Ltd t/a Knight Frank |
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 Medical Assessor 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 NSW workers compensation guidelines | 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 | 11.01.2021 deemed | Chapter 11 11.4 -11.6 | Guidelines | 15 | 1/10th | 14% |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
0
7
0