Garrett v International Health and Medical Services Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Garrett v International Health and Medical Services Pty Ltd [2024] NSWPICMP 331
APPELLANT:	Ashley Garrett
RESPONDENT:	International Health & Medical Services Pty Ltd
APPEAL PANEL
MEMBER:	Marshal Douglas
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	24 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) correctly identified the injury referred for assessment; whether MA assessed the appellant’s permanent impairment from the referred injury; whether MA incorrectly apportioned appellant’s permanent impairment between the various matters from which the appellant’s injury arose; whether MA incorrectly made a deduction under section 323(1); Appeal Panel held that it is for the Commission to determine any controversy between the parties regarding what factors gave rise to the appellant’s injury and what the injury was the appellant suffered in her employment, and not for the MA or the Appeal Panel to do so; Appeal Panel held that MA wrongly apportioned appellant’s impairment between the various matters from which the appellant’s injury arose; Appeal Panel held MA erred by making a deduction under section 323; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 February 2024 Ashley Garrett, 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
29 January 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines).

RELEVANT FACTUAL BACKGROUND

The appellant commenced employment as a counsellor in June 2018 with International Health & Medical Services Pty Ltd, the respondent. She was stationed in Nauru. She worked in the Child and Adolescent Health Service for the respondent. Her work required her to undertake community outreach programs, home visits, face to face counselling and welfare checks. While stationed in Nauru she resided at the Menen Hotel where initially she shared a room with a colleague, before moving to her own room.
The appellant was contracted by the respondent to complete three periods of employment, the first between 22 August 2018 and 3 October 2018, the second between
14 November 2018 and 26 December 2018 and the last between 6 February 2019 and 27February 2019. It seems that she also travelled to Nauru as part of her employment with the respondent on 6 June 2018 to complete an induction. She last worked for the respondent on 26 December 2018, after her second period of employment and did not return for the third.
The appellant claimed that she suffered a psychological injury arising out of or in the course of her employment with the respondent. She claimed she suffered a permanent impairment from that injury. On 9 June 2022 her solicitors wrote to the respondent advising it that the appellant claimed compensation for permanent impairment from her injury. The particulars the appellant’s solicitors provided in their correspondence relating to the appellant’s injury included that the date of injury was 24 September 2018. It also included the following description of injury:
“The Applicant experienced/underwent a miscarriage at work and was/perceived that she was subsequently provided with no support and/or inadequate support by the Respondent.
The Applicant sustained her psychological injury as a result of the miscarriage and the/perceived lack of support and/or inadequate support which she was provided with by the Respondent.
The Applicant thereby as a result sustained psychological injury as either a frank injury or in the alterative as a disease injury, pursuant to section 4(b)(i) and 4(b )(ii) of the Act in the course of and/or as arising out of her employment with the Respondent with a date of injury of 24 September 2018.”
The appellant’s solicitors also enclosed with their correspondence several documents to support the appellant’s compensation claim. These included a report of psychiatrist Dr Richa Rastogi dated 2 November 2020. Dr Rastogi had examined the appellant on that date by means of a “telehealth session”.
The circumstances that Dr Rastogi detailed in her report relating to the occurrence of the appellant’s injury included that the appellant discovered she was pregnant before her second period of employment in Nauru. The circumstances she detailed also included the appellant being called to an emergency response to assess a client named Ahmed who was in distress and non-communicative and screaming and who had been given Ketamine by an emergency physician. Dr Rastogi described that Ahmed’s parents were screaming and pleading with the appellant to get their child fixed and that on the following morning Ahmed was flown to Sydney for ongoing management. Dr Rastogi also detailed that the appellant had to deal with children with trauma and work in a very stressful environment with children who had severe behavioural problems and who lacked support.
Dr Rastogi also detailed in her report the circumstances that occurred on 24 September 2018 when the appellant’s pregnancy miscarried. Those circumstances included the appellant having a syncopal attack and becoming disassociated and having intrusive suicidal thoughts and a panic attack.
Dr Rastogi also noted that the appellant had been the subject of a rumour that her pregnancy was due to a relationship with a refugee.
Dr Rastogi recorded that on the appellant’s return to work following her miscarriage she was subject to ongoing rumours and had intrusive memories and nightmares about Ahmed and other children and had nightmares about being in a pool of blood and screaming constantly.
Dr Rastogi noted that when the appellant’s period of work in which she suffered her miscarriage had concluded, she returned home. Dr Rastogi noted that when the appellant returned to Nauru for her next period of work the appellant continued to experience nightmares that were constant and the appellant was flooded with intrusive work memories. Dr Rastogi also recorded that the appellant in this period faced bullying and was again subject to rumours. Further, an allegation was made on 23 December 2018 about her having a relationship with a refugee. She was also accused of leaking information to the media and taking photos of a child.
Dr Rastogi recorded that the appellant reported experiencing constant panic attacks and becoming very isolated.
Dr Rastogi recorded that after her return to Australia the appellant attempted suicide on
29December 2018 by trying to gas herself in her car.
Dr Rastogi advised in her report that she diagnosed the appellant’s injury was major depressive disorder and post-traumatic stress disorder. Dr Rastogi commented as follows in her report regarding the formulation of her diagnosis:
“Ms Garrett was working as a counsellor in immigration detention Centre in Nauru since March 2018. She described the workload was very stressful and traumatic with lack of support. She stated that there were rumours spread about her about her sexual identity and allegedly having relationship with refuges resulting in pregnancy. She felt dismissed and ignored by her employer who was very unsupportive.
She had a miscarriage on 24th September 2018 and was dismissed and ignored by her manager as well as no support was provided. She alleged that she was not given the appropriate treatment given post miscarriage as well whilst at work.
She developed symptoms of PTSD given the traumatic miscarriage and not provided support by her employer/manager. She reported nightmares, flashbacks, intrusive traumatic memories of work, avoidance of stimulus and situations leading to being retriggered and emotional dysregulation. The lack of support and dismissal heightened her anxiety and trauma leading to poor outcomes.
There is presence of major depressive disorder with anhedonia, betrayal, hopelessness, worthlessness, sense of despair, anergia, amotivation and social avoidance associated with the way she was treated at work and medical and emotional neglect leading to poor outcomes.
Her psychiatric condition has been due to the miscarriage at work and lack of support with being ignored and not being provided with adequate support and treatment leading to poor outcomes and disability.”
In relation to a specific question the appellant’s solicitors had put her regarding the causation of the appellant’s injury, Dr Rastogi responded:
“Your client was suffering from significant stress at work but not enough to be diagnosed with psychological condition at the time prior to the miscarriage.
She reported stress associated with work pressures and the ongoing lack of support from her manager as well as false accusations and rumours made towards her causing tarnishment of her reputation and plummeting her confidence. The perceived stress and the lack of assistance did contribute to her current psychological condition with major depressive disorder. After the miscarriage. The miscarriage culminated in onset of PTSD and the PTSD was aggravated by work related stressors.”
Subsequent to the respondent receiving the appellant’s claim, its solicitors organised for the appellant to be examined on 8 March 2023 by Dr Yajuvendra Bisht and produced a report dated 28 March 2023. Dr Bisht had previously examined the appellant on 28 June 2019 and produced a report in respect to that consultation on 18 July 2019. In his report of
18 July 2019 Dr Bisht advised that he diagnosed the appellant had post-traumatic stress disorder and that the main contributing factor to cause of that was the appellant’s miscarriage. In that report Dr Bisht advised that the appellant “suffered a primary psychological injury out of in the course of her employment”. He advised:
“Her injury is a combination of the trauma arising out of the miscarriage as well as the stressful experiences at her last employment (including the sense of neglect she perceived in relation to managing her miscarriage, the perceived bullying and harassment, the stress of managing the complex clients and the disciplinary actions taken by the employer). Considering the substantial impact of the miscarriage (in relation to the fear of death she had when she had the miscarriage, along with the shock of losing the foetus), I am of the opinion that the trauma of the miscarriage and the employment related stress both contribute equally to her psychological injury.”
On 8 June 2023 the respondent’s insurer issued a notice to the appellant under s 78 of the 1998 Act advising her that it disputed her claim for compensation. It advised her its reason for doing so was that it contended she did not suffer an injury arising out of in the course of her employment.
Following that, the appellant lodged with the Personal Injury Commission (Commission) an Application to Resolve a Dispute (ARD), seeking determination by the Commission of her claim for compensation. In the application form in the box titled “Injury description/cause of injury and death” she provided the following particulars:
“The applicant sustained a psychological injury as a result of experiencing/undergoing a miscarriage and not being provided with any support and/or inadequate support by the respondent.
The worker sustained psychological injury pursuant to s 4 (b) (i) and 4 (b) (ii). The deemed date of injury for the workers’ injury is – lump sum date of claim
9 June 2022”
The Commission referred the matter to a Commission Member, namely Mr John Turner. On 11 October 2023, with the consent of the parties, Member Turner made the following determination:
“The Application to Resolve a Dispute (ARD) is amended by deleting the following from the injury description ‘The Applicant sustained psychological injury as a result of experiencing/undergoing a miscarriage and not being provided with any support and/or inadequate support by the Respondent.’ and inserting the following in place thereof ‘The applicant suffered psychological injury as a result of stressful and traumatic events/experiences whilst working at the Nauru immigration detention centre together with the psychological effects of a miscarriage whilst at her employment on or about
23 September 2018’.”
The Member, also with the consent of the parties, remitted the matter to the President of the Commission so that it could be referred to a Medical Assessor. The Member noted, again with the consent of the parties, that the matter to be assessed was the following:
“a. Date of injury: 9 June 2022 (deemed) Disease.
b. Body systems / parts: Psychological/psychiatric disorder
c. Method of Assessment: Whole person impairment”
On 2 November 2023 a delegate of the President of the Commission referred several medical disputes to the Medical Assessor for assessment that were described in the form of referral in the following terms:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
 the degree of permanent impairment of the worker as a result of an injury
(s319(c))
 whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion
(s319(d))
 whether impairment is permanent (s319(f))
 whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of injury: 9 June 2022 (deemed) – Disease.
Body systems /parts: Psychological/psychiatric disorder
Method of Assessment: Whole person impairment”
The documents that were provided to the Medical Assessor with that referral included the Certificate of Determination the Commission had issued in which was recorded Member Turner’s determination amending the injury description in the ARD.
Medical Assessor Verma examined the appellant on 7 December 2023 to conduct the assessment of the medical disputes that had been referred. As said, she issued the MAC in response to that referral on 29 January 2024. In that the Medical Assessor advised that the appellant’s presentation was consistent with a diagnosis of major depressive disorder. The Medical Assessor noted that Dr Rastogi had provided diagnoses of post-traumatic stress disorder and major depressive disorder and the Medical Assessor said she agreed “that there were crosscutting symptoms of nightmares and flashbacks, but I respectfully disagree that she had PTSD”.
The Medical Assessor provided the following explanation, under the heading “Summary”, for her diagnosis of major depressive disorder:
“Ms Garrett has worked as a counsellor at the Immigration Detention Centre in Nauru since March 2018. She reported that she had a miscarriage on 24 September 2018 and was dismissed and ignored by her manager, and no support was provided. She alleged that she was not given appropriate treatment, which further added to her stressors. She developed symptoms of anhedonia, lack of interest in activities, heightened anxiety, nightmares and flashbacks, sense of despair, worthlessness, anergia, amotivation, and social avoidance.
Her current mental health seems to be emanating both from the miscarriage at work and the perceived lack of support and being ignored and not being provided with adequate treatment.”
The Medical Assessor also noted that Dr Rastogi in a report dated 24 September 2023 had provided the following opinion:
“She had a miscarriage on 24^th September 2018 and was dismissed and ignored by her manager as well as no support was provided. She alleged that she was not given the appropriate treatment given post miscarriage as well whilst at work. She developed symptoms of PTSD given the traumatic miscarriage and not provided support by her employer/manager. I maintain the opinion that her employment was the main contributing factor to acceleration and exacerbation of her psychological condition.
I am of the opinion that had she been provided appropriate support and medical intervention and her employer was sensitive and empathetic to her trauma, it would led to better outcomes and prevented the onset of psychological condition and deterioration on the balance of probabilities, given she was going through traumatic event and also been exposed to traumatic incidents at work.”
Regarding that, the Medical Assessor expressed the following view:
“I respectfully disagree that perceived stress and the lack of assistance was the sole cause of her current functioning. I believe that even if she was well supported and had medical interventions and her employer was sensitive and empathetic, there was a high chance that she would still have developed similar sort of symptoms arising from the impact of traumatic miscarriage.”
The Medical Assessor assessed the appellant’s permanent impairment from her psychological condition was 22% whole person impairment (WPI). The Medical Assessor apportioned half of that to “employer related stressors”.
The Medical Assessor certified that a proportion of the appellant’s permanent impairment was due to previous injury or pre-existing condition or abnormality. She identified that as a “past history of witnessing domestic violence and being a victim of violence”, which the Medical Assessor said “surely impacted Ms Garrett’s mental health, which I have taken into account”. The Medical Assessor indicated in the MAC that she assumed in accordance with s 323(2) of the 1998 Act that the deductible proportion for s 323(1) of the Act is 1/10th.
The Medical Assessor also certified that the appellant’s impairment is permanent and that the degree of her permanent impairment is fully ascertainable.
Ultimately the Medical Assessor certified that she assessed the degree of the appellant’s permanent impairment from her injury was 10% WPI.
For clarity, the Appeal Panel notes that this is the product of the Medical Assessor making a 1/10th deduction under s 323(1) of the 1998 Act to the 22% WPI she assessed the appellant had overall and then dividing that by a half as a consequence of “apportioning 50% WPI to the employer-related stressors”.
The Appeal Panel notes too that neither party has taken issue with the Medical Assessor’s overall assessment of the appellant’s permanent impairment. The controversial issues raised in the appeal relate to the Medical Assessor making a deduction under s 323(1) of the 1998 Act and to her apportioning only 50% of the appellant’s permanent impairment to her work injury.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for the Appeal Panel to determine the appeal.

EVIDENCE

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

SUBMISSIONS

Both parties made written submissions. They have been considered by the Appeal Panel.
The appellant’s submissions were jointly prepared by her solicitor and counsel. Paraphrasing them, so as to provide a summary, they are that there was no basis for the Medical Assessor to apportion 50% of her WPI to her work injury and 50% to other factors. The appellant highlighted that the description of her injury was in accordance with the amendment made with the consent of the respondent to the ARD on 11 October 2023, which was recorded in the Certificate of Determination issued on that date. The appellant submitted that the Medical Assessor was required to assess her degree of permanent impairment from that injury, and that the Medical Assessor was wrong to apportion her impairment “in the manner she did”.
The appellant submitted that the Medical Assessor wrongly determined “liability issues”, specifically which of the two events that resulted in her injury were employment related. The appellant submitted the Medical Assessor, by doing this, went “beyond her jurisdiction”.
The appellant submitted that the Medical Assessor, by apportioning her permanent impairment between two events, failed to determine what degree of her permanent impairment was causally related to the accepted injury and consequently did not assess the degree of permanent impairment from her accepted injury, which the appellant submitted had been resolved between the parties to have been caused by the two events.
The appellant submitted that the Medical Assessor expressed the view that she had sustained a major depressive disorder caused by the two events. The appellant submitted, relying on Calman v Commission of Police[1] and Cluff v Dorahy Bros. (Wholesale) Pty Ltd,[2] that the Medical Assessor ignored the fact that a permanent impairment can have multiple causes. The appellant submitted that the event that the Medical Assessor considered was employment related did not need to be the sole, substantial or main contributing factor of her permanent impairment and that common law principles relating to causation applied, such that the entirety of the assessed impairment was causally related to her employment.
[1] [1999] HCA 60.
[2] [1979] 2 NSWLR 435.
The appellant submitted that the Medical Assessor’s reasons for her assessment did not sufficiently explain her path of reasoning.
The appellant submitted that the Medical Assessor’s deduction under s 323(1) was undertaken contrary to the requirement of s 323(1) because the Medical Assessor did not determine whether any prior psychological issues impacted on her WPI. The appellant submitted that s 323 required a deduction only when there is a pre-existing abnormality or condition that produces impairment and not just because there may be a susceptibility to impairment. The appellant submitted that she was fit, healthy and working in a demanding industry and fully functional before her injury.
The respondent’s submissions were prepared by its counsel. The Appeal Panel has also paraphrased them to provide a summary of them. They are that the trauma that the appellant suffered on 24 September 2018 when the appellant had a miscarriage and suffered the loss of her baby was not an injury within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act) and, further, was not in accordance with s 9A of that Act compensable. The respondent submitted that it was not liable to pay compensation under s 66 of the 1987 Act to the appellant for that event. The respondent submitted that the injury for which it is liable to pay compensation to the appellant is confined to that which resulted from its conduct to the appellant and not from the trauma the appellant suffered from her miscarriage.
The respondent submitted that the Medical Assessor was required to clarify what permanent impairment of the appellant had resulted from the compensable injury the appellant suffered, and the respondent submitted that this is what the Medical Assessor did by apportioning 50% of the appellant’s permanent impairment to the trauma associated with her miscarriage and 50% to the psychological injury relating to its conduct.
The respondent submitted that the miscarriage the appellant suffered was a tragic event that resulted in her having flashbacks and intrusive memories. The respondent referred to evidence that it contended established that the miscarriage the appellant suffered was causative of her suffering psychological symptoms and a psychological condition.
The respondent submitted that the amendment made to the description of injury as initially particularised in the ARD distinguished between the work related injury the appellant suffered whilst working at the Nauru Immigration Detention Centre and the effects of the appellant’s miscarriage. The respondent submitted the former was compensable but the latter not.
The respondent submitted that the appellant never presented a case that her miscarriage constituted a compensable injury and the respondent further submitted that such a case is not available on the evidence. The respondent submitted that the appellant’s contention that the two events were causative of her injury is a failure on the appellant's part to distinguish between compensable and non-compensable causal factors.
The respondent submitted that the Medical Assessor correctly assessed what impairment of the appellant resulted from “the work related cause” and what resulted from “non-compensable causal factors”, specifically “the non-compensable trauma associated with the appellant’s miscarriage”.
The respondent also submitted that the deduction the Medical Assessor made under s 323 was consistent with that which Dr Bisht had made. The respondent highlighted that the Medical Assessor had noted that the appellant had experienced traumatic circumstances during childhood.

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.
Dealing firstly with the issue regarding the deduction the Medical Assessor made under s 323(1) of the 1998 Act, the Appeal Panel accepts the appellant’s submissions, firstly, that there was no evidence before the Medical Assessor that would enable a deduction to be made under s 323 and, secondly, that a deduction under s 323 can only be made if a portion or part of the permanent impairment she suffered was due to a pre-existing condition.
In this case, whilst the appellant may have been exposed to stressors within her life prior to the commencement of her employment with the respondent, the evidence does not substantiate that she had any diagnosable condition prior to her being exposed to the factors in her employment that precipitated her injury. Simply put, the appellant did not have a pre-existing condition before the occurrence of her injury.
The Medical Assessor when describing the pre-existing condition said that the appellant had reported a history of witnessing domestic violence when growing up and had been victim of violence in earlier years and had run away from a refuge when she was 12 years of age. That is not a condition. Whilst the Medical Assessor said that those matters impacted the appellant’s mental health, she did not describe or diagnose any illness or condition arising as a consequence of them. There is nothing within the evidence that would enable such a diagnosis to be made.
The Medical Assessor erred therefore by equating stressors to which the appellant had been exposed in her childhood with a pre-existing condition. That is a demonstrable error because it led to the Medical Assessor wrongly making a deduction under s 323(1) of the 1998 Act when assessing the degree of the appellant’s permanent impairment from her work injury. The error she made was material to the outcome in this matter.
Regarding the issue of the Medical Assessor’s assessment of the appellant’s permanent impairment resulting from the referred injury, the Appeal Panel also broadly agrees with the submissions the appellant made and does not accept the respondent’s submissions.
The injury the subject of the referral to the Medical Assessor was that particularised by the appellant in the ARD, as amended with the consent of the parties, that amendment being recorded by Member Turner in the Certificate of Determination issued on 11 October 2023. The amended description of injury is:
“The applicant suffered psychological injury as a result of stressful and traumatic events/experiences whilst working at the Nauru Immigration Detention Centre together with the psychological effects of a miscarriage whilst at her employment on or about
23 September 2018.
The worker sustained psychological injury pursuant to s 4 (b) (i) and 4 (b) (ii).
The deemed date of injury for the workers’ injury is – lump sum date of claim 9 June 2022.”
It is the function of the Commission to determine factual and legal issues relating to the occurrence of an injury. Any factual controversy between the parties regarding the circumstances by which a worker alleges he or she suffered an injury and any legal issue regarding whether a worker suffered an injury within the meaning of s 4 of the 1987 Act must, in the absence of the parties resolving those controversies themselves, be determined by the Commission. The function of a Medical Assessor is to determine the degree of permanent impairment resulting from the work injury, and, as just said, what the injury is and what circumstances gave rise to it is determined by the Commission or the parties.
Simply put, any issue regarding what the injury is or what caused the injury is a matter exclusively for the Commission to determine, whereas the issue of what permanent impairment has been caused by that injury is a matter exclusively for a Medical Assessor.[3]
[3] Bindah v Carter Holt Harvey Wood Product Australia Pty Ltd [2014] NSWSC 264 at [109] – [112]; Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 at [80] – [81].
In the Appeal Panel’s view, the amended description of injury which was the subject of the referral to the Medical Assessor, is to be read such that the referred injury was result of the stressful and traumatic events/experiences to which the appellant was exposed at the Nauru Detention Centre and the psychological effects of the miscarriage she suffered when at Nauru on or about 23 September 2018. The Appeal Panel comes to that view because of the use of the words “together with” in the amended description of injury, which links the stressful and traumatic events with the miscarriage. In other words, the appellant’s psychological injury is the “result of” what is described within the amended description before the words “together with” and what is described in the amended description after those words. They “together” precipitated the referred psychological injury.
The Appeal Panel acknowledges that arguably there may be some ambiguity regarding this interpretation in that the amended description of injury could be interpreted such that it describes a psychological injury resulting from stressful and traumatic events to which the appellant was exposed at the Nauru Immigration Detention Centre separately from the psychological effects the worker endured due to the miscarriage she suffered. Different people may interpret the amended description in different ways, but as just indicated, the Appeal Panel considers it is to be interpreted such that there is one psychological injury that resulted from all of the events described in the amended description of injury. If there be any ambiguity, then that falls within the province of the Commission to determine, and it is for the Commission to hear argument and resolve that issue.
Given that, the Appeal Panel considers, consistent with what the appellant has submitted, that the Medical Assessor made an error when assessing the degree of the appellant’s permanent impairment from the psychological injury that was referred to her, by apportioning the appellant’s permanent impairment between the psychological effects the appellant experienced due to her miscarriage and the other work related events to which the appellant was exposed, and including only the latter in the appellant’s permanent impairment that resulted from the referred injury.
It would seem from the parties’ respective submissions to the Appeal Panel that there is presently controversy between them regarding what matters gave rise to the appellant’s psychological injury. But, the Medical Assessor’s function was not to resolve that controversy. Similarly, and this is repeating in different words what has been said above, it is not the Appeal Panel’s function to resolve that controversy. The resolution of that controversy potentially could involve consideration of whether the psychological effects the appellant suffered from her miscarriage, and indeed the miscarriage itself, is referrable to her presence at Nauru.[4] It might involve consideration of exactly what the psychological effects were that the appellant experienced from her miscarriage, which Dr Rastogi in a report of
[4]See for example, Comcare v PVYW [2013] HCA41 at [38], [40] [52].
2 November 2020 said included intrusive memories and nightmares about Ahmed and other children as well as nightmares of the appellant being in a pool of blood and screaming constantly. But again, all that is a matter for the Commission, and not the Appeal Panel.
Ultimately, what factors give rise to a workers’ injury and what the work injury is, is a matter for the Commission and not for a Medical Assessor. As the respondent submitted, it is the Medical Assessor’s role to assess the degree of permanent impairment of a worker from a compensable injury. It is not the Medical Assessor’s role to determine what is the compensable injury. That is a matter upon which the parties must agree or, if they cannot agree, for the Commission to determine.
It was not the role of the Medical Assessor, nor is the role of the Appeal Panel, to enter into any contest regarding what the compensable injury is and whether the appellant’s case supported her suffering a compensable injury.
For these reasons, the Appeal Panel has determined that the MAC issued on
29 January 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W5996/23
Applicant:	Ashley Garrett
Respondent:	International Health & Medical Services Pty Ltd

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

The Appeal Panel revokes the Medical Assessment Certificate of 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 WorkCover Guides

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

% WPI

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

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

Psychological/psychiatric disorder

9 June 2022 (deemed)

Chapter 11

22%

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

22%

[2024] NSWPICMP 331

24 May 2024