Henc v Michaelis Group Pty Limited

DETERMINATION OF APPEAL PANEL
CITATION:	Henc v Michaelis Group Pty Limited [2023] NSWPICMP 205
APPELLANT:	Jordan Henc
RESPONDENT:	Michaelis Group Pty Limited
Appeal Panel
MEMBER:	Brett Batchelor
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	15 May 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act1998; appeal by worker against findings in Medical Assessment Certificate (MAC) in respect of the psychiatric impairment rating scale (PIRS) category of travel, and in respect of the deduction from whole person impairment assessment pursuant to section 323; finding of error on the part of the Medical Assessor (MA) in failing to provide adequate reasons for placing the appellant worker in Class 1 of the PIRS for travel, having regard to history recorded in the MAC; finding that a re-examination of the appellant was required to determine the PIRS category for travel; having regard to improvement in the appellant’s ability to travel, Class 1 for travel was appropriate; finding that the section 323 deduction of one tenth made by the MA was correct, but not for the reason he gave; such a deduction was appropriate as the appellant’s prior psychological condition contributed to his level of impairment following the work-related injury; the extent of the deduction was difficult to determine, therefore section 323(2) was engaged, and a one tenth deduction was appropriate; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 22 December 2022 Jordan Henc (the appellant/Mr Henc) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 January 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant suffered psychological injury, deemed to have occurred on 29 October 2019, arising out of or in the course of his employment as a general hand labourer with Michalis Group Pty Limited (the respondent) at All Pro Chemical & Cleaning Supplies (Al Pro).
Mr Henc commenced that work in or around March 2010, and states that for most of his career at Al Pro he thoroughly enjoyed his job, and got on well with his co-workers and managers without complaint. However, around 2017, he states that the management team at the workplace became increasingly unfriendly and intimidating, He was also subject to bullying and harassment from co-workers, mostly through verbal aggressive comments. He felt constantly humiliated and mistreated as a result of those workers speaking to him in derogatory terms and calling him names. Further, management, according to the appellant, would single him out and yell at him in front of other staff. Morale was low and the atmosphere was constantly tense, which caused him to become even more anxious and fearful while on shift.
In October 2018 the appellant consulted his general practitioner, Dr Fiona Middleton, about his work situation. After further consultations with Dr Middleton in December 2018 and early 2019. Mr Henc was referred to psychologist, Elizabeth Walsh. He did not find sessions with her helpful
In January 2019 the appellant suffered a back injury at work. He took some time off work, and returned on light duties. Management was aware of these planned light duties, but despite this Mr Henc was subject to various kinds of verbal taunts about his injury from co-workers and management. As part of his light duties he was sent to an isolated shed away from other workers, which made him feel that his work was less enjoyable, as he felt he was capable of more onerous work. He was removed from co-workers, alienating them from him, and making them believe he was getting special treatment.
In February 2019 there was an incident with a co-worker who made a derogatory comment about the appellant and his back injury. This comment belittled and humiliated Mr Henc and caused him to become extremely upset.
From March 2019, Mr Henc continued to consult with his general practitioner.
Matters came to a head in October 2019 when the appellant was asked to carry out physical work beyond his certified capacity. Following an exchange with a manager about the work he was capable of doing, Mr Henc suffered a panic attack, left work, and had to get his wife to come and pick him up. He has not returned to work since.
The appellant continued to consult with Dr Lianne Neville, which helped. He saw Dr Hollier, a general practitioner, who referred him to a psychiatrist.
In or around February 2021 the appellant’s condition continued to deteriorate. Throughout the year he suffered from significant symptoms of extreme anxiety, feelings of worthlessness, panic attacks and nightmares.

PRELIMINARY REVIEW

The Appeal Panel (the 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 Panel determined that the worker should undergo a further medical examination because was of the view that an error appeared in the MAC in the failure of the Medical Assessor to properly explain why he assessed the appellant in respect of travel, and there was other material in the MAC which indicated that the appellant may have been placed in Class 1 for travel erroneously. It was also noted that the appellant’s statement that he needs to be accompanied by his wife when he travels did not appear to correlate with the fact that he had been separated from his wife for three months as at the date of examination by the Medical Assessor. The Panel was of the view that the only way to properly assess the appellant in respect of travel was to have him re-examined.

EVIDENCE

Documentary evidence

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

Further medical examination

Professor Nicholas Glozier of the Panel conducted an examination of the worker on 3 May 2023 and reported to the Panel.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Appellant

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that in order to make an assessment it was necessary for the Medical Assessor to consider all of the factual material before him. From the descriptors for travel it is apparent that it is significant to determine what restrictions there are on travel and whether travel causes excessive anxiety. It is also relevant to determine whether travel can be conducted with or without a support person.
The appellant submits that the reasons given by the medical assessor do not address those fundamental criteria. He has not considered whether the appellant suffers anxiety when leaving home or the circumstances in which he is able to do so, and has failed to consider relevant and important evidence which was before him.
The appellant refers to [27] and [28] of his statement dated 28 September 2021[1] in which he notes that his condition continued to deteriorate, he began to avoid places he knew his old co-workers frequented such as local shops or the movies, and would only leave in the company of his wife.
[1] Appeal Papers (AP) p 48.
These symptoms continued throughout 2021, and he constantly required his wife Bec to accompany him when he left the house as he feared he would run into people from work.
This situation in respect of travel restrictions is referred to at [37] of the statement.
The appellant notes that he saw Dr Khan on 2 February 2022[2] who noted that he continued to experience pervasive symptoms of depression and anxiety which impacted on his functioning in the domain of, inter alia, travel. Dr Khan assessed Class 2 for travel.
[2] AP p 86.
The appellant submits that the Medical Assessor had before him a body of evidence which established that he still suffered from a mild to moderate impairment of travel, and this evidence clearly supported an assessment of at least Class 2, with some features which would have justified an assessment of Class 3. The significant feature was the requirement to be accompanied by his wife if he left home. That requirement is, according to the appellant, totally inconsistent with an assessment of Class 1 for travel.
The appellant submits that the Medical Assessor incorrectly refers to his statement in respect of leaving the house in his wife’s company. What is said in the statement is that he can only leave in the company of his wife as he fears he will run into people from work. Later he says that he most often leaves the house in the company of his wife. The appellant submits that the evidence was strongly suggestive of the fact that he needs the support of his wife to be able to leave home. This was not a matter that was identified by the Medical Assessor in his summary of the statement.
The appellant submits that in his history taking, the Medical Assessor does not record having sought any information about any restrictions on his ability to leave home unaccompanied. He merely records that he, the appellant, is able to drive. That enquiry does not satisfy the information requirements for properly assessing the class for travel.
The appellant notes that the Medical Assessor refers to Dr Khan’s assessment of the psychiatric impairment rating scale (PIRS), and observes that there may have been some improvement in his condition with respect to capacity to undertake study and the formation of new friendships. He does not refer to travel, or why his assessment differs from that of Dr Khan. The appellant submits that, given the evidence before the Medical Assessor which outlined an impairment in travel, it was necessary for an explanation to be given as to why his assessment differed from that of Dr Khan. This failure to give reasons amounts to a demonstrable error.
The appellant submits that a conclusion by the Medical Assessor that there was no impairment in respect of travel was not a conclusion that was open to him. This is a demonstrable error.
In respect of the deduction under s 323 of the 1998 Act, the appellant notes that the reasons given by the Medical Assessor for making a one tenth deduction from the degree of impairment assessed by him is that the earlier experiences of bullying may contribute to sensitivity to being bullied again in other scenarios, and previous depressive episodes may have contributed to developing further depressive episodes.
The appellant submits that with respect to bullying, the Medical Assessor has not identified a relevant injury or pre-existing condition or abnormality. To establish a pre-existing condition for the purposes of s 323(1) there must, at the relevant date, be an actual condition although it may be asymptomatic. A mere predisposition or even a susceptibility is not sufficient to constitute a condition (Cullen v Woodbrae Holdings Pty Ltd[3]). The appellant submits that the Medical Assessor does not identify any relevant condition.
[3] [2015] NSWSC 1416.
The appellant submits that with to depressive conditions he suffered during his teenage years the Medical Assessor was required to consider whether the pre-existing condition contributed to the impairment flowing from the subsequent injury. The assessment cannot be made on the basis of an assumption or hypothesis but requires a consideration of whether there has been an actual contribution (Cole v Wenaline Pty Ltd[4] and Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation)[5]). In order to conclude that there is a s 323 deduction is necessary to conclude that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in the outcome, that is to say, if the degree of impairment is not greater than what otherwise would have been as a result of injury, it is impossible to say that the proportion of it is due to pre-existing abnormality (Ryder v Sundance Bakery[6]).
[4] [2010] NSWSC 78 (Cole).
[5] [2014] NSWSC 3675 (Elcheikh).
[6] [2015] NSWSC 526.
The appellant submits that the Medical Assessor does not address the essential question for determining whether there is a s 323 deduction. All that he has identified is an increased vulnerability or susceptibility as a consequence of having previously suffered from depressive symptoms. There is no evidence that those previous symptoms, from which he had recovered prior to being exposed to further workload stress in 2017, in any way contributed to the current impairment. Neither Dr Khan nor Dr Vickery attributed any part of any current impairment to the depressive symptoms experienced during the appellant’s school years.
The appellant submits that the Medical Assessor has committed a demonstrable error by failing to properly identify a pre-existing condition and by failing to properly consider whether any pre-existing condition in fact contributed to the degree of permanent impairment following the workplace injury. Rather, the Medical Assessor seems to have asked a different question, which is whether the previous symptoms had made him more susceptible or vulnerable. The only conclusion of the Medical Assessor is that the symptoms “may” have contributed to developing further depressive episodes. The Medical Assessor does not say whether there was, on the balance of probabilities, such a contribution.
The appellant submits that when the evidence is properly considered, there was no basis for a s 323 deduction.
The appellant submits that the MAC should be revoked and a new certificate issued in which travel is assessed in Class 2. This results in an assessment of 17% whole person impairment (WPI) with no deduction pursuant to s 323 of the 1998 Act.

Respondent

In reply, the respondent submits that it was open to the Medical Assessor to assess the appellant as falling within Class 1 for travel, and that the Medical Assessor has given reasons to account for the basis upon which he assessed the appellant in that category. It was a finding open to him using his clinical judgement on the day of the examination and ought not be disturbed.
The respondent submits that the Medical Assessor reviewed the statements of the appellant dated 11 November 2019 and 28 September 2021, and refers to the Medical Assessor’s comments in respect of current social activities and activities of daily living.
The respondent notes that the Medical Assessor agreed with the diagnosis of Dr Khan, although their assessments under the PIRS differed slightly. The Medical Assessor considered that there may have been some improvement in the intervening period.
The respondent submits that the Medical Assessor did not make a demonstrable error, and that the totality of the evidence is consistent with the conclusion that travel is assessed as Class 1. The respondent submits that the Medical Assessor properly assessed the criteria.
In respect of the deduction made pursuant to s 323 of the 1998 Act, the respondent refers to the report of Dr Khan and his diagnosis of major depressive disorder with anxious distress. Dr Khan recorded that the appellant suffered from “…depression when he was roughly in 1999, in the context of bullying at school, with intermittent depressed mood, lasting for hours, and was not constant.”
The respondent refers to:
(a) the Patient Health Summary from Bay Medical Group printed 6 November 2019 recording that the appellant saw a counsellor when he was young and was started on Champix as a result, and
(b) the Patient Health Summary from UHG Chapel Street printed 21 May 2021 in which there is recorded a history of depression and anxiety from 2011, depression on and off since the appellant’s teens, with possible elevated period at the time and commencement on Lithium in 2016, and restarting on Sertraline 50 in 2018.
The respondent submits that the Medical Assessor did consider whether the pre-existing condition contributed to the permanent impairment, and no demonstrable error was made. The conclusion of the Medical Assessor was that the pre-existing condition of depression may have directly contributed to the appellant developing further depressive episodes.
The respondent submits that the Medical Assessor correctly applied s 323 as he noted that the extent of the deduction is difficult or costly to determine, so that in applying the provision, the deductible proportion is assessed at one tenth, noting that this can only be used when not at odds with the available evidence.
The respondent submits that the deduction of one tenth made by the Medical Assessor was a finding open to him and ought not be disturbed.
In conclusion, the respondent refers to the intent of the statutory scheme that a properly educated registered medical practitioner should be given the authority to make binding judgements as to the matters set out the legislation s 326 of the 1998 Act (Radivoj Matic v Calcono (NSW) Pty Ltd[7]).
[7] [WCC 109378 – 04].
The respondent submits that the view that one class in the PIRS categories is “more appropriate” than another reflects only a difference of opinion and is not a demonstrable error. More than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error when the assessment is made on the behavioural consequence of a psychiatric condition or disorder (Parker v Select Civil Pty Limited,[8] citing Campbell J in Ferguson v State of New South Wales[9]).
[8] (2018) NSWWCC 140.
[9] (2017) NSWSC 887.
The respondent refers to [1.6] of the Guidelines, and the pre-eminence of the clinical observations of the Medical Assessor in determining the relevant class within each PIRS category cannot be understated (NSW Police Force v Danial Wark[10]).
[10] [2012] NSWWCCMA 36].
The respondent submits that it was open to the Medical Assessor to use his skill, judgment and expertise to come to thew conclusion that he did, and that the appellant was assessed appropriately. The statutory obligations of the Medical Assessor have been discharged appropriately, and the assessment of 14% WPI ought to be confirmed.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. An Appeal Panel is limited to determining error as alleged by the appellant, but must assess in accordance with the Guidelines. Once error is made out, the Panel may “review” the MAC. (See Siddik v Workcover Authority of NSW[11] and NSW Police Force v Registrar of the Workers Compensation Commission of New South Wales[12]).
[11] [2008] NSWCA 116.
[12] [2013] NSWCA 1792.

In Campbelltown City Council v Vegan[13] 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.
[13] [2006] NSWCA 284.
Table 11.3 of the PIRS in the Guidelines sets out the descriptors for the category of travel. Class 1 is:
“No deficit, or minor deficit attributable to the normal variation in the general population: can travel to new environments without supervision.”
Class 2 is:
“Mild impairment: Can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.”
Class 3 is:
“Moderate impairment: Cannot travel away from own residence without support person. Problems may be due to excessive anxiety of cognitive impairment.”
One of the appellant’s submissions is that the Medical Assessor had before him a body of evidence which established that he still suffered from a mild to moderate impairment of travel, and this evidence clearly supported an assessment of at least Class 2, with some features which would have justified an assessment of Class 3. Notwithstanding this submission, the Panel finds that, quite clearly on the evidence before the Medical Assessor, Class 3 for travel would be an incorrect assessment. The real issue is whether the appellant should be placed in Class 1 or 2 for travel.
The medical assessor gave the following Reason for Decision for placing the appellant in Class 1:
“He has been able to drive, to the local area and can drive long distances as well. He has no impairment.”
As noted above, the Panel is of the view that this description is not adequate, and simply repeats what is recorded earlier in the MAC under “Social activities/ADL”.[14] The Medical Assessor does say that he agrees with the diagnosis of Dr Khan, and that his assessment of PIRS differs only slightly from that of Dr Khan, attributing it to perhaps some improvement in the interval between assessments. He does not refer to Dr Khan’s assessment in respect of travel. The Reason for Decision given by the Medical Assessor does not address whether or not he needs a support person.
[14] AP p 27.
The report of Professor Nicholas Glozier to the Panel dated 3 May 2023 is reproduced in full as follows:

“Examination Conducted By:		Professor Nicholas Glozier
Date of Examination:		3 May 2023

The assessment was conducted via the Teams platform. There were no technical difficulties.
1. The worker’s medical history, where it differs from previous records
We confirmed that Mr Henc had a left total hip replacement on 29 August last year. He currently takes no regular medication for this nor undergoes any physiotherapy. He says he occasionally has pain from muscle overuse and notes if he is in the car, particularly if there are low seats, it can become stiff and it is harder for him to get out. He has to stop at times when driving longer distances as a result. His work capacity is limited to three days a week by his GP and he receives EML payments for this physical work-related injury.
I also confirmed aspects of the medical history. He noted that his GP in 2016 had suggested he had Bipolar Affective Disorder and he confirmed prior symptoms indicative of possible brief hypomanic episodes. He was treated with the mood stabiliser lithium for some time. He said he also had a further such episode in 2018. However he said that he has been told by his current GP that these may reflect recurrent periods of severe anxiety rather than hypomania. The notes also indicate psychological treatment in 2007 and again from 2008-2010, many years of treatment with Sertraline for depressive, anxiety, interpersonal sensitivity symptoms, at times related to work-problems very similar to the index injury, although of a less severe nature. These include contemporaneous notes from his first episodes of treatment at the Lifewise Centre from 2008-2010, showing that by the time he finished treatment his depression had improved to moderate in range and stress and anxiety were normal, but he continued counselling to build his self-confidence and address his remaining depression. The notes from one GP practice indicate that in mid-2018 he was seen, having restarted Sertraline with stressors including work but particularly relating to his family, his wedding, his mother and interpersonal issues there. The Bay Medical notes from Salamander Bay noted in June 2017 the prior psychiatric problems and he was started on Champix to address his smoking. Three months later he presented seeking further restarting of his SSRI medication for a range of stressors including work, family, with symptoms indicative of low mood, anhedonia, low energy, irritability, panicky, anxious, insomnia, tearful, poor concentration and in late 2017 noted that the main issues at work were the predominant cause of his recurrence of his mood disorder. There was no evidence of hypomanic or other features at that time.
2. Additional history since the original Medical Assessment Certificate was performed
Mr Henc’s situation and impairment appears to have changed quite substantially over the past four months. In early January 2023 he started working at a warehouse in Adamstown, three days a week. He works as a warehouse hand in an organisation that sells cars, refurbishes medical equipment and sells frozen yoghurt machines. He does not have a forklift licence but will undertake manual work and use the walk-behind forklift. His three-day-a-week limitations are due to his physical injury. This work is a 60-minute drive each way and he has done this without restriction over the past four months. Only last weekend he moved out of his parents’ home to live with two friends in Thornton near East Maitland. He has established himself in the home, gone shopping and - from the pictures on Teams – seemed to have organised his room. He said he was prompted to do this by his psychologist. He was ready to move on from living with his parents and there were no interpersonal problems with them or his brother. There are increasing issues with his wife and her solicitors as well as her extended family who have sided with her. The split was ‘messy’. The solicitor’s letters and contacts can cause him to have panic attacks, as can some interactions with EML. As a result of moving home, he is in transition from moving gyms and has not been for a little while. He describes being able to go shopping, travel as and where he needs, and has no reason to go to places where he would potentially bump into ex-colleagues or his ex-wife and so can manage all of his travel activities. He describes no problems driving, except from a physical discomfort if driving for long periods. He says he is fine driving as long as he has regular stops to manage his physical restrictions. He also reported flying down to Melbourne late last year for a gaming convention where he caught up with some of the online gamers that he plays with. He currently has to manage all of his shopping, cooking, cleaning etc. When he gets home from work he will have a rest and then shower if he has work the following day although sometimes does not if he does not have work. He then starts gaming (much of which has an extensive MMRG social component), often with friends, and YouTubes. This appears to comprise most of his social life and there appears to be a social connection through gaming and with the people he has met in the house, one of whom also games. He no longer goes to church as people at work were associated with that church and he is not seeking any new church to go to. He does little other social activity. He can manage going to the shops locally in East Maitland or Thornton without problem, as well as getting takeaways. He uses IT extensively, can game and focus for hours and ‘loses himself in a different reality.’ He watches quite a bit of YouTube, does internet banking, manages all of his own finances and budgeting, but tries to stay off social media because he will see his ex-wife, her family and people from his workplace and how they are moving on with their lives. His weight has increased to 130kg with reduced activity and poor food choices (I note from the GP notes his weight has yo-yoed with a broad range of almost 25kg at different times with rapid gains and losses.
He continues to see his psychologist, Steven. He describes ‘unloading’ and unjumbling his experiences, breathing exercises and behavioural activation. Otherwise his care is managed by his GP, mainly Dr Tyler Schofield. He currently takes Amitriptyline 100mg and Atenolol 100mg. He only rarely has to use a Stilnox now: circa weekly, particularly now he is more active.
3. Findings on clinical examination
Mr Henc was a bearded man, looking his stated weight, slightly unkempt but in a well-maintained room. There was some restriction of affect but he was not overtly anxious or depressed. He describes his mood as ‘numb, flat and rarely excited’. He goes to bed around 10pm or 11pm, watches YouTube for some time and when he feels sleepy, puts on rain music and falls sleep generally within 30 minutes. He wakes once very briefly in the night for the toilet and falls back to sleep quickly, waking with his alarm at 7am. As such he currently has no clinically significant sleep disturbance. His phase is shifted by an hour or so on weekends. He has enough energy ‘just’ to do what he needs to do in his physical job and says he is often tired and will lay on his bed and recover after work. He says what makes him most anxious over the years are people’s expectations, living up to what others want of him in a range of situations, and described high levels of arousal and even panic attacks when placed under extra expectations, e.g. from insurers or solicitors, about what he should do. Although he can be more anxious in certain situations, he described no formal avoidance and can generally push through these. He can be wary of meeting people in certain places and has been addressing his safety behaviours in treatment. I could identify no recent hypomanic phenomena including grandiosity, thoughts racing, excess energy, as identified by his GP some years ago.
There was no psychotic phenomena.
4. Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Summary
I agree with the diagnosis of the MA of the presence of a Persistent Depressive Disorder with at least one cardinal feature and a few other features, as well as Generalised Anxiety Disorder and some Panic Disorder although he is no longer agoraphobic. He also appears to have had chronic social anxiety and probably the most parsimonious explanation is that he has marked Cluster C personality traits, if not disorder. He certainly appears to have had recurrent episodes of mood disorder over his lifetime, possibly Bipolar II but more likely, from reading the psychology notes, representing a personality- trait or disorder mood instability. Regardless, the Panel have accepted that there is substantial evidence of pre-existing psychiatric disorder whose symptoms/impairment were not only similar to that experienced currently but likely the chronic interpersonal sensitivity is part of the causation of this injury as well as contributing to the current level of impairment.
Currently Mr Henc reports being able to drive as and where he needs, drives 60 minutes each way to work, travels into town, has flown interstate on his own and does not require any accompaniment for this travel. I note the Appellant’s lawyer suggested he required his wife to accompany him. This was obviously erroneous given they had split at the time the Appeal was made and even then he did not require her to accompany him on travel. It may be that the removal of this support has enabled him to increase his capacity and there is no evidence that he is currently clinically significantly impaired in his travel and the PIRS classification of the MA remains.
Signed: Professor Nicholas Glozier
Date: 3 May 2023”

The Panel accepts that report. It is quite clear that there has been a considerable improvement in the appellant’s condition such that in respect of travel, he suffers from either no deficit, or minor deficit attributable to the normal variation in the general population. This is evident by what is recorded by Professor Glozier that Mr Henc engaged in a 60 minute drive each way to and from work over the previous four months, and that he is able to travel as and where he needs. As he has no reason to go to places where he would potentially bump into ex-colleagues or his ex-wife, he can manage all his travel activities. He is fine driving as long as he has regular stops to manage his physical restriction. He also reported flying down to Melbourne for a gaming convention.
The Panel accepts that there should be a deduction of one tenth from the 15% WPI assessed by the Medical Assessor, but not for the reason he made such a deduction.
The Medical Assessor made the s 323 deduction because he said that:
(a) the appellant’s earlier experiences of bullying in school may contribute to his sensitivity to being bullied again in other scenarios, and
(b) his previous depressive symptoms in his teens may have contributed to developing further depressive episodes.
The Panel accepts the appellant’s submission that there must be a consideration of whether there has been an actual contribution to the impairment flowing from the subsequent work injury by any pre-existing condition or injury (see Cole and Elcheikh).
The Panel notes that Professor Glozier confirmed with the appellant aspects of his medical history. This history includes:
(a)    psychological treatment in 2007, and again from 2008 – 2010 at the Lifewise Centre contemporaneous notes of which showed that by the time treatment finished improvement in depression to moderate in range, and that stress and anxiety were normal;
(b)    continued counselling to build self-confidence and address remaining depression;
(c)    many years of treatment with Sertraline for depressive, anxiety, interpersonal sensitivity symptoms, at times related to work problems very similar to the index injury although less severe in nature;
(d)    a suggestion by the appellant’s general practitioner in 2016 that he had Bipolar Affective Disorder, and
(e)    treatment with the mood stabiliser Lithium for some time.
There was also recorded in the clinical notes of one general practitioner practice that in mid-2018 Sertraline was restarted with stressors including work, but particularly relating to his family, his wedding, his mother, and interpersonal issues. In 2017 Mr Henc was started on Champix to address his smoking, and that in late 2017 the main issues at work were the predominant cause of his recurrence of his mood disorder.
The Panel considers that this medical history recorded by Professor Glozier clearly indicates that Mr Henc’s previous psychological condition contributes to the impairment flowing from the work injury. A deduction pursuant to s 323 is necessary. The extent of that deduction is difficult to determine, and therefore s 323(2) of the 1998 Act is engaged, and the deduction should be 10% of the 15% WPI assessment resulting from the appellant being assessed in Class 1 for travel.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 January 2023 should be confirmed.

[2023] NSWPICMP 205

15 May 2023