Fisher v KPD Pty Ltd
[2023] NSWPICMP 416
•28 August 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Fisher v KPD Pty Ltd [2023] NSWPICMP 416 |
| APPELLANT: | Adam Fisher |
| RESPONDENT: | KPD Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Michael Hong |
| DATE OF DECISION: | 28 August 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; appellant worker alleged error by the Medical Assessor in the application of a one-tenth deduction under section 323; the Appeal Panel was not satisfied as to error; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 25 May 2023 Mr Adam Fisher (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 27 April 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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against), 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 grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the 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).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that he be re-examined. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could discern no error and absent a finding of error, the Appeal Panel has no power to require that the worker undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
Fresh evidence
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) Notice of Suspension of Forearms Licence dated 23 June 2021.
The appellant submits that the evidence is relevant. The appellant submits that although the evidence was available, its significance was not appreciated prior to the issue of the MAC.
The respondent objects to the admission of the additional evidence because it was available prior to the Medical Assessment.
The Appeal Panel determines that the evidence should not be received on the appeal because it was available to the party before the medical assessment (it was a suspension notice issued to the appellant) and accordingly may not be given on appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
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 matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 8 October 2020 (deemed)
· Body parts/systems referred: Psychiatric/psychological disorders
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC certifying as follows:
| 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 AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric / psychological disorders | 8 October 2020 (deemed) | Chapter 11 pages 60 – 68 | Chapter 14 | 15% | 1/10 | 13% |
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
The assessment was based on his assessment under the permanent impairment rating scale (PIRS) as required by the Guidelines as follows:
Table 11.8: PIRS Rating Form
| Name | Adam Fisher | Claim reference number (if known) | |
| DOB | Age at time of injury | 30 years | |
| Date of Injury | 8 October 2020 (deemed) | Occupation at time of injury | Tradesman, Joiner Shopfitter |
| Date of Assessment | 11 April 2023 | Marital Status before injury | Married |
| Psychiatric diagnoses | · Persistent depressive disorder with intermittent persistent major depressive episodes without current episode DSM5 code 300.4 · Alcohol Use Disorder of mild severity DSM5 code 305.00 |
| Psychiatric treatment | Mr Fisher was treated by his local medical practitioner, clinical psychologist, and psychiatrist. He had received evidence based psychological therapy and evidenced based pharmacotherapy. He had been treated as an inpatient of a psychiatric hospital. He had not been treated with rTMS or ECT. |
| Is impairment permanent? | Yes |
| PIRS Category | Class | Reason for Decision |
| Self Care and personal hygiene | 2 | Mr Fisher stated that his self-care and personal hygiene was poor. He would attend his barber to have his hair cut about once every two months. He appeared unkempt at the time of this assessment. He reported his appetite was poor. He relied more on take-away food and food prepared by his wife. He would occasionally skip meals when not hungry. His wife orders groceries online so that the family could avoid accidental contact with people who were at the worksite when Mr Fisher was injured. He helps less with cleaning, laundry and gardening since the onset of this injury. Mr Fisher was able to live independently at the time of this assessment. |
| Social and recreational activities | 3 | Mr Fisher reported he had become socially isolated from his friendship group. He had his sporting guns removed from his home by the local NSW Police. He had his sporting shooter’s licence cancelled by the same police officers. Mr Fisher had stopped attending all AFL matches played in the ACT since the onset of this injury. He had become isolated and withdrawn and had stopped socialising with his wife and children in public. Mr Fisher spent his time at home alone and not sharing television or sporting events with his children. Mr Fisher’s gym membership had lapsed since the onset of this injury due to his loss of interest and avoidance of co-workers who were on the work site when he was injured. |
| Travel | 2 | Mr Fisher reported he rarely left his local town. He had stopped driving his car outside of his town limits as he would become agitated and fearful of meeting people who worked at the workplace whilst he was injured. He would avoid service stations were he thought these same people frequented. He reported having a co-worker approach and ridicule him in the local community about one month prior to this assessment. |
| Social functioning | 3 | Mr Fisher reported that his relationship with his wife was severely strained. This is evidenced by his periods of separation from his wife and the sale of the family home. His reported his wife taking the children and living with her parents. Mr Fisher reported his relationship with his son was also severely strained with his son preferring to stay with his maternal grandparents instead of sharing time with Mr Fisher. Mr Fisher reported no episodes of domestic violence. Mr Fisher reported that he attempted reconciling with his wife. He is uncertain about the future of his marriage. Mr Fisher reported that his relationship with his father-in-law and mother-in-law was strained as they were required to assist with the childcare of his three children. |
| Concentration, persistence and pace | 3 | Mr Fisher’s concentration, persistence and pace is moderately impaired. He could not persist with complex jobs such as organising, quoting and installing shop fittings as he had prior to this injury. His mother manages his finances. He would become irritable and agitated as he could not read more than short news articles. He lacked concentration, persistence and pace due to poor motivation. His loss of interest and motivation made following complex instructions difficult. His concentration waned within a few minutes of commencing this assessment, with him requiring prompting to remain on topic. |
| Employability | 2 | Mr Fisher’s employability is mildly impaired. He is unfit to return to his primary substantive role with this employer at any time in the future due to this injury. He remains anxious, depressed and avoidant of all workplaces where he was injured. He had returned to work for a different employer. He works about 20 hours per week in a role that is less skilled, qualitatively different and less stressful. He would, on occasion, work a further 4 hour shift on the weekend with his known client. He failed to return to work as a qualified tradesman prior to this assessment. |
| Score | Median Class | ||||||||
| 2 | 2 | 2 | 3 | 3 | 3 | 3 | |||
| Aggregate Score Impairment | Total | 15% | |||||||
| +2 | +2 | +2 | +3 | +3 | +3 | 15 | |||
| Score | Median Class | ||||||||
| 2 | 2 | 2 | 3 | 3 | 3 | 3 | |||
| Aggregate Score Impairment | Total WPI 15% | ||||||||
| 2+ | 2+ | 2+ | 3+ | 3+ | 3= | 15 | |||
The Medical Assessor made a deduction of one-tenth under s 323 in respect of a pre-existing condition or abnormality.
The worker appealed. The appeal concerns only the Medical Assessor’s deduction under
s 323. In summary, the appellant submitted that the Medical Assessor erred in this regard by failures which included the following:· in failing to adequately explain his reasoning for making a deduction;
· in failing to give reasons for disagreeing with the opinion of Dr Allan, the independent medical expert (IME) qualified on behalf of the appellant who did not make a deduction;
· in relying on assumptions that the pre-existing psychiatric condition had contributed to the impairment assessed, and
· In failing to explain why the pre-existing conditions which were not permanent were the subject of a deduction when the psychiatric conditions suffered by the appellant only became permanent after the work injury.
In summary, KPD Pty Ltd (the respondent) submitted that the Medical Assessor did not err and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories and when making a deduction under s 323. A deduction under s 323 can only be made if any pre-existing injury, abnormality or condition has contributed to the level of permanent impairment assessed.
The Medical Assessor took a detailed history which was broadly consistent with the other evidence before him. The Medical Assessor recorded as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Fisher had commenced work for this employer in about May 2020. His last day of work was in about October 2020. Mr Fisher reported that he had changed his employer from Fredon Air Conditioning to KPD Pty Ltd as the work for the air-conditioning company was coming to an end on the worksite where he was employed in the Wagga Wagga region. He commenced work for this employer the day after he ceased with the air-conditioning contractor.
Mr Fisher reported that he had worked in his trade for other employers within the greater Riverina region without suffering from bullying and harassment in the past. He reported that he understood the difference between workplace banter and bullying and harassment. He reported that he was bullied and harassed predominantly by one co-worker. The co-worker would persistently taunt, humiliate and bully Mr Fisher.
Mr Fisher reported a significant incident when he was in a group of co-workers and the co-worker who was bullying him started screaming unexpectedly at him, ‘Watch out! Watch out! Watch out!’ Mr Fisher reported that the workers on site had been previously cautioned about cranes and overhead loads. Mr Fisher immediately panicked as he believed he was in immediate danger. The co-worker who was bullying and harassing him started laughing at Mr Fisher whilst encouraging the group of co-workers to engage in the known phenomena of “mobbing”. ‘Mobbing’ at work is characterised by the systematic psychological abuse or humiliation of a person by an individual or a group, with the aim of damaging his reputation, honour, human dignity and integrity, and ultimately driving the victim to quit the job.
Mr Fisher immediately felt shame and humiliation. He believed his reputation had been damaged by the incident. He reported that the bullying and harassment continued. Mr Fisher stated that this co-worker would hide his essential tools whilst on site. The same man would scream and verbally threaten Mr Fisher most days he was at work. On return to his vehicle, Mr Fisher would find his car covered in discarded coffee or melted ice-cream spilt over the vehicle’s panels and windscreen. He also would have his car’s windscreen wipers persistently interfered with so frequently that Mr Fisher had to check his windscreen wipers prior to commencing to drive home each day, to ensure the safety of his travel home after each shift.
Mr Fisher reported that the mobbing, bullying and harassment became overwhelming. Mr Fisher reported that his mood became depressed as he dwelt on the unsafe workplace and risk to himself that he had to place himself in each day at work. He became unable to sleep. His work hardiness became impaired. He lost self-confidence as he was constantly bullied and harassed. His energy level decreased, and he eventually became overwhelmed and unfit to work as a tradesman. Mr Fisher left his workplace depressed, sullen and overwhelmed with distressing, depressive ruminations and suicidal thoughts that required inpatient psychiatric care to ensure Mr Fisher’s immediate safety.
Mr Fisher reported that he experienced the following symptoms caused by this primary psychological injury:
o Depressed mood
o Loss of interest in his trained career as a tradesman
o Depressive ruminations and auditory imagery of his main co-worker who bullied and harassed Mr Fisher “whispering derogatory statements” that affected his concentration
o Recurrent suicidal thoughts with admission to hospital and repeated Emergency room attendances with his last attendance about two months prior to this assessment
o Poor sleep with initial insomnia
o Irritability and poor frustration tolerance with angry outbursts towards others
o Intrusive, depressive ruminations of hopelessness, worthlessness and loss of motivation
o Social isolation and social withdrawal from friendships and family events
o Loss of self-esteem and self-confidence
o Poor concentration with difficulty performing complex tasks
o Low energy
o Loss of libido
o Avoidance of places where he might be approached by past co-workers
o Startling with hypervigilance that he will be approached by past co-workers as occurred about two months prior to this assessment.
o Marked increase in weight of about 10kgs since commencing pharmacotherapy
Mr Fisher had been admitted to psychiatric hospital as an inpatient in relation to this work-related injury for about one week. His evidence-based treatment was managed by a general practitioner, psychiatrist, and psychologist. He stated that he had been commenced on Effexor XR (Venlafaxine) 37.5 mg daily and increased to 225mg daily as well as Seroquel XR (Quetiapine) 50mg at night and Lamictal (Lamotrigine) 100mg daily. He had attended a clinical psychologist and received cognitive behavioural therapy (CBT) as well as Mindfulness for his primary psychological injury.
Mr Fisher had lost interest in his self care, diet and personal hygiene. He felt shame and guilt that he was no longer able to work in his trade.
· Present treatment:
Mr Fisher reported at the time of this assessment he had received ongoing treatment from his GP, psychologist and psychiatrist. He attended his GP about once every four weeks. He was prescribed Venlafaxine XR 225 mg each morning with Quetiapine 25 mg at night as well as Lamotrigine 100mg daily. He had received CBT, and Mindfulness as his evidence based psychological treatments. He had been treated as an inpatient of a psychiatric hospital in Wagga Wagga for about one week. He did not receive rTMS or ECT during this hospitalisation.
· Present symptoms:
Mr Fisher reported the following symptoms continued to be treated at the time of this assessment:
o Depressed mood
o Loss of interest in his trained career as a tradesman
o Depressive ruminations and auditory imagery of his main co-worker who bullied and harassed Mr Fisher “whispering derogatory statements” that affected his concentration
o Irritability and poor frustration tolerance with angry outbursts towards others
o Intrusive, depressive ruminations of hopelessness, worthlessness and loss of motivation
o Social isolation and social withdrawal from past friendships and family events
o Loss of self-esteem and self-confidence
o Poor concentration with difficulty performing complex tasks
o Low energy
o Avoidance of places where he might be approached by past co-workers.
o Startling with hypervigilance that he will be approached by past co-workers as occurred about two months prior to this assessment.
o Marked increase in weight of about 10kgs since commencing pharmacotherapy
Mr Fisher reported that he had failed to return to his primary substantive role with this employer. He reported he was unable to persist with his work role as he was too agitated and overwhelmed by depression caused by the workplace bullying and harassment he experienced whilst employed by this employer.
· Details of any previous or subsequent accidents, injuries or condition:
Mr Fisher did report suffering a right knee injury. The injury occurred at work. He lodged a NSW Workcover claim. The injury was surgically treated in about 2018. He recovered without impairment.
Mr Fisher reported that his twin brother died in a motorcycle accident whilst riding in a State Forest. Mr Fisher advised that he suffered a depressive disorder for about two years after the death of his brother in about 2014.
Mr Fisher stated that this was his first primary psychological injury claim. Mr Fisher did not suffer from any psychological or psychiatric conditions whilst a child. He stated that he never suffered from any childhood abuse, neglect or trauma.
· General health:
Mr Fisher reported that he did not smoke tobacco. He did drink alcohol.
Mr Fisher reported the death of his brother in a motorcycle accident in 2014. He suffered from a depressive disorder and was treated with an antidepressant medication prescribed by his general practitioner. He reported that he was drinking increased amounts of alcohol and chose to attend the local AA meeting for assistance. He attended on two occasions. He changed his strength of beer from full strength to mid-strength. He then reduced his consumption of beer to about half a box of 30 cans per week. His depressive disorder resolved after about 2 years. Mr Fisher’s DSM5 code 305.00 Alcohol Use Disorder of mild severity persisted to the time of this assessment. He would usually miss a number of days prior to consuming an unsafe amount of alcohol in one session.
Mr Fisher reported that his last attendance at Wagga Wagga Base Hospital Emergency Room for suicidal thoughts was comorbid with unsafe consumption of alcohol immediately prior to presentation.
Mr Fisher reported that whilst working at Trevor Sutherland Racing Stables he was introduced into the sport of horse racing. He reported that he commenced gambling with his peers. After a short period he decided to stop gambling. He had never met criteria for DSM5 code 312.31 Gambling Disorder.
Mr Fisher did not report suffering from non-anaphylactic allergic reactions to bee stings.
Mr Fisher suffered from an injury to his right knee in about 2015. He lodged a NSW Workcover claim. He received surgical treatment for his right knee ligament injury in 2018 at Calvary Riverina Hospital, Wagga Wagga, NSW. He recovered without impairment.
· Work history including previous work history if relevant:
Mr Fisher first commenced employment working for MacDonald’s Restaurants as a crew member between 15 to 16 years of age.
Mr Fisher then commenced his apprenticeship as a Joiner and Shopfitter. He completed his trade after four years. He attended the Wagga Wagga TAFE to complete the theory component of his trade. Mr Fisher then joined Trevor Sutherland Racing Stables. He worked in his trade repairing damaged horse boxes and the stable facilities for about 7 years. Mr Fisher worked at the Wagga Wagga abattoirs for about two years.
In 2014 after the death of his twin brother he took about one year off work. Mr Fisher returned to his trade as a joiner and commenced working for Riverina Bench Tops. He worked for this company for approximately 2 years.
Mr Fisher then found employment working for a battery recycling factory at Bowmen. Whilst working for this company he fell about five metres and injured his right knee and lodged NSW Workcover claim in about October 2018. His knee was surgically repaired and he recovered in about 8 months without impairment.
Mr Fisher then found labouring work with the Solar Farm at Bowman and was there for approximately 3 months. Mr Fisher then found employment with Fredon Airconditioning. He was working in his trade for this company for about 8 months. He reported that as the work for Fredon was finishing he applied for work as a casual tradesman for KPD Pty Ltd working in his trade at the same worksite in May 2020.
· Social activities/ADL:
Mr Fisher was born in Wagga Wagga Base Hospital, NSW. His father was aged 59 years and was a trade electrician. Mr Fisher’s father separated from his mother when Mr Fisher was about 13 years of age. Mr Fisher lived with his mother after the separation. His mother was 60 years of age. She suffered from a psychiatric condition that had received the diagnoses of Bipolar Disorder, Schizophrenia and recently reclassified as Schizoaffective disorder.
Mr Fisher reported that he an elder brother aged 34 years and a sister aged 30 years. He stated that his fraternal twin brother died in motor accident in 2014. Mr Fisher was married. His wife was 32 years of age. She worked as a midwife at Wagga Wagga Base Hospital. They had three children to the union aged 8 years, 3 years and 2 months.
Mr Fisher was educated at Forrest Hill Public School. He attended Wagga Wagga High School until Year 10. He commenced his apprenticeship as a Joiner and Shopfitter on leaving school.
Mr Fisher stated that his self-care and personal hygiene was poor. He would attend his barber to have his hair cut about once each two months. He appeared unkempt at the time of this assessment. He reported his appetite was poor. He relied more on take-away food and food prepared by his wife. He would occasionally skip meals when not hungry. His wife orders groceries online so that the family cold avoid accidental contact with people who were at the worksite when Mr Fisher was injured. He helps his wife less with cleaning, laundry and gardening since the onset of this injury. Mr Fisher was able to live independently at the time of this assessment.
Mr Fisher reported he had become socially isolated from his friendship group. He had his sporting guns removed from his home by the local NSW Police. He had his sporting shooter’s licence cancelled by the same police officers. Mr Fisher had stopped attending all AFL matches played in the ACT since the onset of this injury. He had become isolated and withdrawn and had stopped socialising with his wife and children in public. Mr Fisher spent his time at home alone and not sharing television or sporting events with his children. Mr Fisher’s gym membership had lapsed since the onset of this injury due to his loss of interest and avoidance of co-workers who were on the work site when he was injured.
Mr Fisher reported he rarely left his local town. He had stopped driving his car outside of his town limits as he would become agitated and fearful of meeting people who worked at the workplace whilst he was injured. He would avoid service stations were he thought these same people frequented. He reported having a co-worker approach and ridicule him in the local community about one month prior to this assessment.
Mr Fisher reported that his relationship with his wife was severely strained. This is evidenced by his periods of separation from his wife and the sale of the family home. His wife took the children and commenced living with her parents. Mr Fisher reported his relationship with his son was also severely strained with his son preferring to stay with his maternal grandparents instead of sharing time with Mr Fisher. Mr Fisher reported no episodes of domestic violence. Mr Fisher reported that he attempted reconciling with his wife. He is uncertain about the future of his marriage. Mr Fisher reported that his relationship with his father-in-law and mother-in-law was strained as they were required to assist with the childcare of his three children.
Mr Fisher’s concentration, persistence and pace is moderately impaired. He could not persist with complex jobs such as organising, quoting and installing shop fittings as he had prior to this injury. His mother manages his finances. He would become irritable and agitated as he could not read more than short news articles. He lacked concentration, persistence and pace due to poor motivation. His loss of interest and motivation made following complex instructions difficult. His concentration waned within a few minutes of commencing the assessment with him requiring prompting to remain on topic.
Mr Fisher’s employability is mildly impaired. He is unfit to return to his primary substantive role with this employer at any time in the future due to this injury. He remains anxious, depressed and avoidant of all workplaces where he was injured. He had returned to work for a different employer. He works about 20 hours per week in a role that is less skilled, qualitatively different and less stressful. He would, on occasion, work a further 4 hour shift on the weekend with his known client. He failed to return to work as a qualified tradesman prior to this assessment.”
The Medical Assessor conducted a mental state examination and recorded his findings as follows:
“Mr Fisher presented as a sullen and unkempt man wearing an ungroomed beard and unbrushed hair. He spoke in an irritable and agitated manner throughout the assessment. He suffered from loss of interest in his chosen career as a tradesman. He stated repeatedly, ‘I can never work as a tradesman again.’ He reported that he continued to experience depressive ruminations about the bullying and harassment he endured. He reported that he was hypervigilant when outside his home as he feared being bullied and harassed by old co-workers who lived in his small town. He reported having overwhelming emotions of shame and guilt after being approached by an old co-worker who continued to harass Mr Fisher when he was working for his new employer, about two months prior to this assessment. Mr Fisher stated, ‘Everyone knows’ and ‘I try to avoid them all now.’
Mr Fisher described becoming increasingly pre-occupied with ruminations involving themes of hopeless and worthlessness. He reported persistent suicidal thoughts had required him to be hospitalised. He described his suicidal thoughts were less severe. He reported that he was not interested in his new work and was less able to persist with the hours that he was told he should be able to do. Mr Fisher reported that he was unable to concentrate for prolonged durations. He no longer was able to concentrate to perform his trained role as a tradesman and complete complex tasks he could have easily performed prior to this injury. He had intrusive angry thoughts about being overwhelmed by his co-worker who had harassed him out of his career.
Mr Fisher spoke of losing his interest in his favourite AFL football team, the Hawkes, and that he would never travel to watch a game as he feared future approaches from old co-workers who had been involved, or known, about Mr Fisher’s bullying and harassment. He felt he had lost his self-esteem. He felt he had lost his self-confidence. He felt shame about his inability to work as a tradesman.
Mr Fisher did not describe any delusional ideas or psychotic symptoms. He did report experiencing derogatory auditory imagery where he experienced intrusive memories of the main co-worker who bullied and harassed him. The content of the auditory imagery involved memories of the taunts that had been yelled at him by this co-worker.
Mr Fisher was insightful into the nature of these distressing auditory experiences. His judgment was normal. He had no plan to harm himself or others at the time of this assessment. He described episodic suicidal thoughts when acutely distressed by the symptoms of this injury.”
The Medical Assessor made a diagnosis as follows:
“summary of injuries and diagnoses:
In my medical opinion Mr Fisher’s primary psychological injury was Persistent depressive disorder with intermittent major depressive episodes without current episode DSM5 code 300.4 and Alcohol use disorder of mild severity DSM5 code 305.00.
I note that Mr Fisher was treated for this primary psychological injury by his general practitioner, psychologist and psychiatrist. He had been suffering from persistent impairment in his capacity to work since the onset of this primary psychological injury. He had slowly demonstrated increased capacity to work. His capacity to work at the time of this assessment was less than what had been forwarded in the documents with this referral.
At the time of this assessment Mr Fisher’s capacity to work was four hours daily, five days per week. The reduction in Mr Fisher’s employability was due to the incident when he was approached by an old co-worker who knew about Mr Fisher’s injury and engaged in another episode of bullying and harassment, about 2 months prior to this assessment. The other factor that reduced Mr Fisher’s capacity to work was the presentation to hospital for acute suicidal ideation after having consumed an unsafe amount of alcohol, about two months prior to this assessment, as reported by Mr Fisher at the time of this assessment.
Mr Fisher had been prescribed antidepressant and mood stabilizing mediations without complete resolution of all his symptoms associated with this primary psychological injury. At the time of this assessment Mr Fisher was suffering from a Persistent depressive disorder with intermittent major depressive episodes without current episode and mild Alcohol use disorder. I note that Mr Fisher continues to work to his maximal safe capacity without him suffering from increased severity of his primary psychological injury symptoms.
In my medical opinion Mr Fisher did have a pre-existing psychological/psychiatric impairment prior to the onset of this work-related injury. Whilst Mr Fisher’s depressive disorder was documented as entering remission, his unsafe use of alcohol persisted at a less harmful level. The ongoing unsafe use of alcohol was reported by Mr Fisher at the time of this assessment with him reporting a recent emergency presentation to hospital for suicidal ideation soon after ingestion of an unsafe amount of alcohol.
I note that Mr Fisher had made efforts to reduce the total amount of alcohol he consumes however his reported pattern of drinking more than the recommended safe amount of alcohol in one session, that is capable of acutely exacerbating his suicidal thoughts and depressive disorder, continues to impair his full recovery from this primary psychological injury.
· consistency of presentation
Mr Fisher’s presentation was consistent with his diagnosed condition. Mr Fisher’s primary psychological injury symptoms had not entered remission at any time from the date of onset of this work-related injury to the date of this assessment.”
The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above. These assessments are not the subject of complaint on appeal.
The Medical Assessor made a deduction under s 323 of one-tenth and this is the subject of complaint on appeal.
The Medical Assessor set out the facts on which his assessment was based which included details of the pre-existing conditions affecting the appellant as follows:
“The facts on which I have based my assessment of whole person impairment are the history I obtained from Mr Fisher, the documentation provided with the referral and the mental state examination I conducted during this assessment.
Mr Fisher reported he commenced work for this employer in about May 2020 working in his role as a skilled tradesman. He reported that he had suffered from a depressive disorder and unsafe use of alcohol after the death of his twin brother with about one eyer off work in 2014. Mr Fisher had worked for other employers in his role as a tradesman performing his trained skills without impairment prior to commencing his employment with this employer.
On commencing employment for this employer Mr Fisher became the focus of recurrent, severe and ongoing bullying and harassment. The co-worker who performed most of the bullying and harassment engaged in the known workplace phenomenon of ‘mobbing’ perpetrated against Mr Fisher. The escalation of the bullying and harassment with mobbing continued to be enacted against Mr Fisher most days whilst at work. He eventually became overwhelmed by his unsafe workplace. He was unable to sustain his work hardiness. Mr Fisher’s workplace resilience was broken along with his self-esteem. Mr Fisher became emotionally overwhelmed by the psychiatric symptoms of this primary psychological injury. He left the workplace never to return to his skilled role as a tradesman.
Mr Fisher had a pre-existing psychological or psychiatric impairment prior to the onset of this work-related injury. He had suffered from a depressive disorder with an Alcohol use disorder. Mr Fisher attended AA for his Alcohol use disorder. This attendance resulted in him using a harm minimisation strategy to minimise the severity of his alcohol use disorder. Mr Fisher’s Alcohol use disorder was not in full sustained remission prior to the onset of this primary psychological injury.
Mr Fisher had no subsequent psychological or psychiatric impairments.”
The Medical Assessor gave reasons for his opinion and assessment which include details of the appellant’s pre-existing conditions as follows:
“In my medical opinion Mr Fisher suffers from Persistent depressive disorder with intermittent major depressive episodes without current episode DSM5 code 300.4 and Alcohol use disorder of mild severity DSM5 code 305.00.
In making that assessment I have taken account of the clinical interview and mental state examination I have performed whilst Mr Fisher was in the assessment via videoconference as well as the assessment using the Psychiatric Impairment Rating Scales.
I note that Mr Fisher had received evidence based treatments. He had attended a clinical psychologist and received CBT, and Mindfulness as his psychological treatment. His primary psychological injury had been treated by a psychiatrist. He had received Venlafaxine 37.5mg daily with Quetiapine 25mg at night and Lamotrigine 100mg daily. This is evidence based pharmacotherapy for this primary psychological injury. He had been admitted as an inpatient of a psychiatric hospital for one week of treatment for this primary psychological injury. He had not been treated with rTMS or ECT. There was no resolution in Mr Fisher’s work-related injury that is now a permanent psychiatric impairment.
Mr Fisher was permanently unfit to work in his primary substantive role as a qualified tradesman with this employer. He had returned to work in a lesser role. Mr Fisher’s primary psychological injury had caused this permanent psychiatric impairment. His employability was less at that time of this assessment due a presentation to the emergency room for acute suicidal ideation shortly after consumption of alcohol about two months prior to this assessment.
Mr Fisher had a pre-existing psychological injury/impairment. He had suffered from about a two-year depressive disorder treated with pharmacotherapy as well attendance at AA for a comorbid alcohol use disorder. Mr Fisher had spent about one year off work during this episode of sustained psychiatric illness.
Mr Fisher’s primary psychological injury persists at the time of this assessment. About two months prior to this assessment he was unexpectantly bullied and harassed whilst performing his new role by an old co-worker. The old co-worker approached Mr Fisher and engaged in another incident of bullying and harassment that had resulted in deterioration in Mr Fisher’s employability prior to this assessment.
Mr Fisher had not been able to return to his primary substantive role with this employer. He was now totally impaired in his capacity to work as a tradesman. He was employed in a lesser role at the time of this assessment.”
When explaining his calculations, the Medical Assessor stated:
“Mr Fisher had a pre-existing psychiatric condition. A one tenth (1/10) deduction was made for this reason.”
The Medical Assessor had regard to the other evidence that was before him upon which he made brief comments including in regard to the pre-existing psychiatric condition of the appellant: (emphasis in original)
“Application to Resolve a Dispute
Injury Description / Cause of Injury and Death
As a result of constant and unrelenting bullying and harassment during almost the entire period of his employment with the Respondent, the Applicant suffered psychological injuries (Adjustment Disorder and Aggravation Alcohol Use Disorder) causing him to become incapacitated thereby from 8 October 2020.
Dr Geoff McDonald psychiatrist report dated 29 October 2021
Date of Work Resumption: About May 2021 (Disability Support Worker 28 hours per week)
Comment Dr Baker
I note that at the time of this assessment Mr Fisher was working less than 28 hours per week. He would work four hours shifts, five days per week.
Current Status:
Mr Fisher obtained part-time work as a support worker for people with disabilities about May 2021. He works 28 hours per week with clients, one-on-one who have conditions such as schizophrenia, OCD or autism. He takes them for walks, they have conversations, and he takes them to the shops. Mr Fisher said that he enjoys this work, especially with the younger clients, but said that sometimes it is ‘stressful’ and he has taken ‘a few days off work’.
Comment Dr Baker
Mr Fisher reported being confronted, bullied and harassed by an old co-worker who unexpectedly approached him whilst he was working with a disabled client. Mr Fisher’s capacity for employability was reduced due to increased psychological symptoms caused by this primary psychological injury.
He described his mood as low, particularly since he recently separated from his wife and children. He denied any intention to suicide.
He said he holds out some hope for reconciliation with his wife, but he said his hopes have been largely dashed, since he ’has suspicions’ that ‘she is talking to someone new’.
Mr Fisher said that his relationship with his 7-year-old son has deteriorated, which causes him a lot of distress. He does not want to stay over at Mr Fisher's place, preferring to stay with his mother or maternal grandparents.
He said that he has lost a couple of friends, since his marital separation, and he now feels isolated in Wagga.
Comment Dr Baker
Mr Fisher reported that after his periods of separation from his wife and children, he had returned to his home and remained isolated from his family and extended family.
Current Treatment:
Mr Fisher's GP is Dr Elmosallamy. He has recently increased his antidepressant Venlafaxine from 150 mg to 225 mg daily. He is taking the sedating antipsychotic 2.5 mg at night. He is no longer taking melatonin or temazepam. He saw a psychologist for a few visits about a year ago, Ms Rayner, that he stopped because the insurance company stopped paying.
Previous Psychiatric History:
Mr Fisher said he was depressed for at least two years, about 2014 to 2015, after his non-identical twin brother died in a motorbike accident. He took the antidepressant Escitalopram for about two years. He stated he recovered from this.
I note that one of the factual statements from one year ago says that Mr Fisher is a gambler. I asked him about this, and he stated that he likes to gamble on horses and sports when at the pub, but he denied that this is a problem, denied that he is in debt, and denied any current online gambling.
Drug and Alcohol History:
At our last meeting in November 2020, Mr Fisher acknowledged drinking alcohol heavily after his brother died in 2014. He told me that he was drinking about six beers per week November 2020.
Today, however, he provided a very different history of alcohol use. l asked specifically about Alcoholics Anonymous (AA) because factual statements you provided report he identified as alcoholic and attended AA.
He told me that he commenced drinking alcohol about age 18. He drank heavily after his brother died, about 2014 to 2016.
He drank heavily after his knee operation in 2017.
He attended AA or a few months in 2019 and said that he was abstinent for 70 days until about late 2019.
The report you have provided from psychiatrist Dr Allan 13 August 2021 states that Mr Fisher reported heavy binge drinking from late 2020 to August 2021, an estimated 30 beers per week.
Mr Fisher today estimated his current consumption at 60 cans of beer every week (two 30 can cartons), bingeing about 20 cans about three days per week. He last drank yesterday and denied drinking prior to this interview.
Social History:
Mr Fisher had a 7-year relationship with Kirra. They married in 2017 and have a son aged 7 and daughter aged 2.
They separated about May 2021.
The family home was sold three weeks ago, and Mr Fisher has now moved in to live with his mother.
Mental State Examination:
He has no intention of returning to AA.
Mr Fisher hopes to be able to move out from his mother's place within about six months, into rented accommodation.
I shall now address your specific questions:
(a) History received (including a detailed history of the claimant's prior psychological treatment);
Please refer to the body of my report under "History", "Previous Psychiatric History'' and my initial report dated 30 November 2020.
Mr Fisher has now provided history consistent with alcohol use disorder from at least 2014.
(m) Please note any compensation is only payable in respect to the degree of loss or impairment caused by the injury. In making an assessment it will be necessary for you to distinguish any apportionment of the loss of impairment that is due to any previous injury or that is due to any pre-existing condition or abnormality.
Mr Fisher expressed the opinion that his alcohol use disorder worsened after the alleged injury.
Thus, I (Dr McDonald) think it is improper to assign any Permanent Impairment Ratings resulting from the alleged work injury.
His WPI = 0%
Comment Dr Baker
I note that the recording of WPI = 0% is an assignment of an assessable WPI in Class 1 as per the Aggregate score table documented in the current guidelines.
I note that Dr McDonald had not provided a PIRS Worksheet or any reasons as to how he concluded his finding of WPI = 0% in his report dated 29 October 2021. For theses reason I do not concur with Dr McDonald’s assessment as documented in his report.
Statement by Adam Daniel Fisher dated 19 August 2022
2. I am married to Kina Fisher. I have two children, a boy, Zaid Fisher, born on 29 May 2014 and a girl, Tilby Fisher, born on 13 July 2019. My wife and I separated in December 2021 and have recently reconciled. We still share custody of the children, 40/ 60 in favour of my wife and my mother helps me when it is my turn. My wife works as a student mid wife at the Wagga Wagga Base Hospital.
6. In 2014 my twin brother passed away after a motorbike accident. I was suffering with grief and depression following his death and was prescribed anti-depressant medication. I was on this medication for approximately 8 months. I was also drinking more than usual during this time as a way to deal with my grief. I had recovered fully of all symptoms of depression by 2016.
11. I began drinking excessively whilst I was recovering from this operation as I was isolated at home, on crutches and in pain. I went to AA for 6 months in 2019 and got control of my drinking.
13. I then started to work for Fredon who were installing the duct work for the air conditioning at the new Wagga Hospital. I did labouring work for them. Their work was coming to an end and I noticed that the joiners were continuing to work there. I spoke to a Mr. John Broeren, a site manager and said I was running out of work. I was given an application for employment on 18 May 2020 and was employed as a casual tradesman and was required to work fulltime hours from Monday to Saturday. Annexed and marked "B'' is a copy of my application for employment.
15, We were sent tradesmen from Sydney to assist with the project. This is when the bullying and harassment at the workplace started to occur. The harassment started with them hiding my tools around the worksite making it impossible for me to complete my tasks.
16. They began calling me names like "sheep shagger" and "little girl" poking fun at me because they thought Wagga Wagga being a country town and its tradesmen were inferior. I was constantly criticized and judged on the work I completed onsite.
17. My anxiety became worse when they began to pull pranks on me like pretending that objects that were being suspended by the onsite crane were falling. They would also play pranks, like littering my car, hiding tools and equipment and telling me to call my supervisor and that it was urgent.
18. They started asking me personal questions about my relationship with my wife, like whether we attended "swingers" parties. This went on unrelenting for months.
19. When the harassment become unbearable, I contacted the site manager, John Broeren who reportedly had informed management of my complaints, yet nothing had been done.
20. Eventually James Page, the site manager organized a meeting at the jobsite, and everyone was told to 'cut it out'. The bullying and harassment only became worse after this meeting.
21. My alcohol consumption increased over this time as I was stressed and anxious about going to work I felt uncomfortable and unsupported as nothing had been done to address the bullying. I also lost a lot of confidence and had trouble sleeping at night due to the stress.
25, Over the next few months, I was extremely anxious and paranoid. I had stopped wanting to go into town to complete the shopping or even take the children out. I was paranoid that I would run into someone from work and didn't want to face them.
26. The only previous marital problems I had experienced in prior to December 2021 was after my brother passed away and I was using alcohol to self-medicate. These issues had resolved after I attended AA.
29. My wife and I separated in January 2021. My wife told me that I was not the same person as I was before, and certainly was not as supportive as I use to be. I was extremely depressed following the separation and had episodes where I had suicidal thoughts.
30. I was admitted to Wagga Wagga Hospital in 2021 for one-week due to my depression.
32. My wife and I reconciled in June 2022 and we are making arrangements to move back in together. My wife has told me that the issues in our marriage where the direct result of the changes in my behaviour whilst I was employed with KPD and the aftermath of my resignation.
36. I am currently on medication to help me sleep as well as anti-depressants. The full list of my current medications is as follows:-
(i) Venlafaxine 225mg.
(ii) Tevatiapine XR 50 mg.
Dr Martin Allan psychiatrist report dated 13 August 2021
Diagnosis and Opinion
I (Dr Allan) regard him as suffering from a work-related adjustment disorder with depressed and anxious mood and an exacerbation of a pre-existing alcohol misuse disorder as a direct result of the circumstances of his workplace.
4. In the light of your finds, what do you believe to be the connection between the injuries you found on examination and the history?
I regard the ongoing bullying and harassment he describes experiencing in his workplace as being the whole cause of the development of his adjustment disorder with depressed and anxious mood and the cause of an exacerbation of Mr Fisher’s pre-existing alcohol misuse disorder.
6. Please advise whether you believe that the workers employment is a substantial contributing factor to his injury.
In my opinion, the employment is the substantial contributing factor to his injury.
7. Pursuant to the Workers' Compensation guidelines, please let us have your assessment in respect to whole person impairment expressed as a percentage.
No deduction for any pre-existing injury in my opinion. There is no evidence of any functional impact from his previous alcohol use and that he was working full time, maintaining a relationship and by his account, entirely unimpaired.
The final WPI is 15%
Comment Dr Baker
I do not concur with this assessment of Whole Person Impairment as documented by Dr Allen
Dr Martin Allan psychiatrist supplementary report dated 7 March 2022
Whilst his alcohol symptoms could be related to simply his alcohol use. I (Dr Allan) believe that the situation is more complicated than this. Alcohol use pre-dates work related difficulties. I believe his alcohol use disorder was essentially aggravated by the workplace difficulties. His psychiatric issues therefore should be considered to have worsened as a result of the alleged stress in the workplace.
Comment Dr Baker
I do concur with this assessment of Mr Fisher’s pre-existing alcohol use disorder and history as documented by Dr Allen in his supplementary report dated 7 March 2022.
Ms Rebecca Rayner psychologist report dated 14 December 2020
1. What do you believe to Adam's current diagnosis? Please provide your rationale and make reference to the DSM-5 criteria.
Mr Fisher completed a Depression, Anxiety and Stress Scale on 12/11/2020 and his results place his ratings for Anxiety in the Extremely Severe Range, Depression in the Normal Range and Stress in the Moderate Range.
Additional information provided by Mr Fisher via a clinical interview on 19/11/2020 indicated that he has been experiencing the following since the beginning of October 2020:
o Sleep disturbance: goes to bed/sleep at about 10.30pm and wakes at about 3.30am/4am and is unable to go back to sleep, seven days per week. Mr Fisher advised that upon early morning waking he often accesses his phone for extended periods of time. Takes short naps throughout the day.
o Appetite: Reduced appetite which includes eating only two meals per day, smaller portions, seven days per week
o Tension: In his lower back and realises this when he lays down
o Concentration: Unable to remember appointments, has difficulty absorbing and retaining information given
o Anhedonia: Has reduced enjoyment in social activities with friends and past times such as fishing
o Motivation: Has reduced motivation and is constantly tired. He has enlisted the support of his Mother to assist with the care of his children.
o Worry: Upon waking in the morning, begins worrying about providing for his family, being embarrassed by the names he was called at work, missing appointments and being late for appointments and future employment opportunities.
o Avoidance of work colleagues, the job site at the Wagga Rural Referral Hospital and a reluctance to return to work given the relocation of the main perpetrator to another town and work site.
Impact of the above: Mr Fisher reported that he has withdrawn emotionally from his wife and this has caused some estrangement from her. He also reported that he has extreme difficulty having anything to do with his employer or the work site given the humiliation that he endured from particular co-workers. Mr Fisher stated that he has difficulty concentrating and communicating effectively with others generally.
Given the above information, it is my opinion that Mr Fisher is experiencing an Adjustment Disorder with Anxious Features.
Dr Geoff McDonald psychiatrist report dated 30 November 2020
He recommenced working as a joiner at KPD about May 2020, employed casual full-time at the Wagga Wagga Base Hospital in New South Wales.
Summary and Assessment
Diagnoses:
Axis I: Adjustment disorder with depressed and anxious mood
Axis II: Unknown
Axis Ill: Knee injury 2017
Axis IV: Alleged bullying from April to October 2020; marital problems; mortgage financial
stress; a pattern of generalised and wholesale avoidance of activity and
socialisation over recent weeks.
Axis V: GAF
Comment Dr Baker
I note that the above diagnostic statement is in the DSM IV / DSMIV TR format and not the current DSM 5 format.
1. In your opinion, what is WORKER'S current psychological diagnosis as per the DSM-5? Please give details with specific examples of WORKER'S presentation and symptomatology.
Please refer to the body of my report under "Diagnosis".
4. Have Adam's psychiatric or psychological injuries resolved or are they continuing? If they are continuing what is the estimated timeframe for resolution?
Mr Fisher's panic attacks, agoraphobic avoidance, social anxiety, avoidance of social interactions and depressed inactive mood are all persisting.
Form 2C - Application to Admit Late Documents
Ms Kirra Fisher correspondence dated 25 April 2021
I am writing this letter on behalf of myself, in relation to Mr. Adam Fisher and our current relationship. I am Mr Fisher’s wife; we have been together for 12 years and married since 2017. Our relationship has recently broken down due to Mr. Fisher’s, mental health condition… Since we have struggled financially which has put a lot of strain on our marriage and has led to the separation of Mr Fisher from me…”
The Medical Assessor gave reasons for making a deduction of one-tenth under section 323 to take account of the pre-existing psychiatric condition suffered by the appellant. He specifically explains how in his clinical judgment the pre-existing psychiatric conditions as identified by him (namely depressive disorder with comorbid alcohol use disorder) , the diagnosis of which is consistent with the medical evidence that is before him, have contributed to the level of permanent impairment assessed by him on the day of examination as follows:
“a In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Depressive disorder with comorbid alcohol use disorder.
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:
·Mr Fisher’s Depressive disorder after the death of his twin brother persisted for about two years. During this period he had about one year off work due to his depressive condition. It is not possible to assess the extent of the permanent impairment suffered by Mr Fisher. The evidence available supports the finding that this component of psychiatric illness suffered by Mr Fisher after the death of his twin brother had resolved.
·Mr Fisher’s depressive disorder was comorbid with a DSM5 code 303 Alcohol use disorder of mild severity. Mr Fisher’s DSM5 code 305.00 Alcohol Use Disorder of mild severity persisted to the time of this assessment. Mr Fisher stated that he did not drink alcohol in a small amounts daily. He would usually miss a few days prior to consuming an unsafe about of alcohol in one session. Mr Fisher reported that his last attendance at Wagga Wagga Base Hospital Emergency Room for suicidal thoughts was comorbid with unsafe consumption of alcohol immediately prior to presentation.
c. The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth.”
The IME qualified on behalf of the appellant Dr Allen made no deduction under s 323. The appellant complains on appeal that the Medical Assessor was required to do more than state that he did not agree with Dr Allan’s assessment.
The Medical Assessor is required to reach his own independent opinion. He must explain his reasons adequately. The appellant submits that the Medical Assessor failed to do so. However, in determining whether the path of reasoning is adequate the MAC must be read as a whole. The Medical Assessor has provided a detailed and thoroughly reasoned MAC that had taken care with the recording of the history and has had due regard to the other evidence before him, including in regard to the appellant’s pre-existing psychiatric conditions.
A deduction can only be made if a pre-existing condition, abnormality of injury has contributed to the level of current permanent impairment assessed. This depends on the evidence before the Medical Assessor and the exercise of clinical judgment by the Medical Assessor. In this case the available evidence establishes that the appellant suffered a pre-existing psychiatric condition that required many months of treatment but was in remission at the time of the work injury, as well a co-morbid chronic alcohol use disorder. These were not transient psychological difficulties in response to the stressors of life but pre-exiting diagnosable psychiatric conditions that were chronic in nature, effectively the same, conditions diagnosed as existing currently, with similar symptoms and which on the available evidence amount to a pre-existing psychological condition or abnormality that has contributed to the level of permanent impairment assessed by the Medical Assessor as a result of the work injury. The reasons for making a deduction under s 323 are adequately explained and the Appeal panel can discern no error.
For these reasons, the Appeal Panel has determined that the MAC issued on
27 April 2023 should be confirmed.
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