Holmes v Secretary, Department of Education

DETERMINATION OF APPEAL PANEL
CITATION:	Holmes v Secretary, Department of Education [2024] NSWPICMP 17
APPELLANT:	Sharon May Holmes
RESPONDENT:	The Secretary, Department of Education
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	11 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; Medical Assessor (MA) assessed 19% whole person impairment (WPI) and deducted one third pursuant to section 323 of which resulted in an assessment of 13% WPI; worker appealed ratings in the psychiatric impairment rating scale (PIRS) categories of self-care and personal hygiene, travel and social functioning and in respect of the deduction made for pre-existing condition; Panel satisfied that the ratings in the PIRS categories were open to the MA on the evidence; Panel satisfied that the pre-existing conditions contributed to her current impairment and there was no error or the application of incorrect criteria in the assessment of the section 323 deduction by the MA; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 28 September 2023, Sharon May Holmes (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 31 August 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 developed a primary psychological injury in the course of her employment with the Department of Education (the respondent) as a teacher at Centaur Public School.
The appellant commenced proceedings in the Personal Injury Commission (Commission) claiming 19% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 15 August 2018.
The Medical Assessor examined the appellant on 30 August 2023 through video link. The Medical Assessor assessed 19% WPI and then deducted one third in respect of a pre-existing condition pursuant to s 323 of the 1998 Act. Therefore, the total WPI assessed was 13% as a result of the injury deemed to have occurred on 15 August 2018.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant did not request that she be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for the appellant to undergo a further medical examination because there was sufficient evidence on which to make a determination.

EVIDENCE

Documentary evidence

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

Medical Assessment Certificate

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

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions included the following:
(a)    Ground 1- the Medical Assessor did not, either in the psychiatric impairment rating scales (PIRS) rating form, or in the body of his report, specifically refer to the requirements of paragraph 11.12 of the Guidelines, or the differences in classes which are relevantly contained in Tables 11.1, 11.3 or 11.4;
(b)    the reasoning process by which the Medical Assessor arrived at his determination for each class for each of the scales was inadequate;
(c)    the Medical Assessor failed to take into account the mandatory relevant requirement in paragraph 11.12 of the Guidelines that he consider activities that are usual for the appellant’s age, sex and cultural norms;
(d)    the Medical Assessor did not set out the relevant descriptors of the competing relevant classes for each category under the PIRS, or indicate that he has not considered those alternatives when making his assessment, nor did he provide any adequate reasons as to how he arrived at the determination he does. The failure to do so was both a demonstrable error and a failure to apply the correct criteria;
(e)    in respect of Grounds 2 and 3, the focus of the descriptors in this scale for classes 2 and 3 was on a person’s ability to properly care for themselves and maintain their own personal hygiene. It was clear from the facts as found by the Medical Assessor that she is not able to look after herself adequately, and that she requires considerable external support from her partner in order to do so;
(f)    the Medical Assessor referred to the inadequacies of her self care, namely, that she pays less attention to hygiene and skips showering three times a week. She was also described to rely considerably on her partner to do most of the shopping. These facts were at least, if not preponderantly, more consistent with Class 3 and the appellant should be placed in Class 3 for self-care and personal hygiene;
(g)    in the alternative, based on the Medical Assessor’s factual findings, there was more than one conclusion open between Classes 2 and 3. For example, although the Medical Assessor described that the appellant contributes to some housework, the extent to which she relied upon her partner for these tasks was not sufficiently described. This made it difficult to determine if the appellant was capable of living independently or not and the Medical Assessor makes no such conclusion on this issue. A finding that the appellant wa unable to live independently without regular support indicated a class 3 impairment. As such, it was incumbent on the medical assessor to provide adequate reasons as to why he preferred Class 2 over Class 3. His failure to do so was an error of law;
(h)    in respect of Grounds 4 and 5, the appellant submits that the assessment of Class 2 in respect of travel, was not consistent with the Medical Assessor’s factual findings recorded in Table 11.8 of the MAC;
(i)    the appellant was anxious when driving and could not take extended trips without her partner and even then, the longest journey she had taken over the last six months was only one hour and twenty minutes. In the “Present symptoms” section of the MAC, the Medical Assessor described that she was anxious, has frequent panic attacks and was frequently overwhelmed especially when she is away from home. The appellant should be placed in Class 3 for travel;
(j)    in the alternative, there was more than one conclusion open between Classes 2 and 3 and as such it was incumbent on the Medical Assessor to provide adequate reasons as to why he preferred Class 2 over Class 3. He has not set out his pathway of reasoning for determining Class 2 over Class 3, and this failure constitutes an error of law;
(k)    in respect of Grounds 6 and 7, the assessment of Class 2 in respect of social functioning, was not consistent with the Medical Assessor’s factual findings recorded in Table 11.8 of the MAC;
(l)    since the injury, the appellant’s previously established relationships with friends became severely strained to the point that she was no longer interacting with friends. This indicated an impairment greater than Class 2 as all her relationships with her friends were not merely strained, but were now non-existent;
(m)     her relationship with her family has also become severely strained as evidenced by her loss of intimacy with her partner and sleeping in a separate room to him and documented tension and arguments with him. Her relationship with her daughter-inlaw was also described as being distant since she had become unwell. These facts were more consistent with Class 3. The appellant should be placed in Class 3 for social functioning;
(n)    in the alternative, there was more than one conclusion open between Classes 2 and 3 and as such it was incumbent on the Medical Assessor to provide adequate reasons as to why he preferred Class 2 over Class 3. His failure to do so was an error of law;
(o)    in respect of grounds 8 and 9, it is submitted that the Medical Assessor erroneously applied a one-third deduction for pre-existing conditions under s 323 of the 1998 Act. The assessment made by the Medical Assessor was contrary to the Guidelines;
(p)    prior to her work-related injury, despite the existence of the pre-existing conditions, the appellant was able to engage in full-time employment even while studying. It was not until after the work injury that she was incapacitated for work.
(q)    the Medical Assessor noted “She has had lifelong cognitive and interpersonal challenges and mood and anxiety problems.” However, he failed to determine the specific consequences of these pre-existing conditions to her impairment;
(r)    the Medical Assessor did not apply a sufficient path of reasoning to how his assessment of a one-third deduction was reached, and merely relied upon an insufficient assumption or hypothesis based on his experience as an assessor and clinical psychiatrist;
(s)    accordingly, the Medical Assessor erroneously made a one-third deduction under s 323 when the history taken by him suggested the appellant’s pre-existing conditions caused her no impairment prior to the work injury. In the alternative, if it was found that a deduction under s 323 is warranted, the Medical Assessor made the wrong deduction by estimating a one third deduction when the correct deduction as per s 323(2) would be a one tenth deduction;
(t)    the Medical Assessor stated “It isn’t possible to determine her precise pre-injury level of function.” Accordingly, due to the difficulty in determining the level of impairment caused by complexity of her pre-existing conditions, a one-tenth deduction should have been applied. The decision to make a one-third deduction based on his “experience as an assessor and clinical psychiatrist” was arbitrary;
(u)    a deduction of one-tenth would not be considered at odds with the available evidence, particularly considering that the appellant was able to work full-time while studying prior to the subject enquiry, indicating that any potential pre-existing impairment was minimal;
(v)    the Medical Assessor incorrectly applied a one-third deduction under s 323 when the history taken by him suggests the appellant’s pre-existing condition caused her no impairment prior to the work injury;
(w)   the correct classes for the three disputed scale classes are: (a) Self-care and personal hygiene – Class 3 moderate impairment; (b) Travel – Class 3 moderate impairment; (c) Social functioning – Class 3 moderate impairment. Based on those revised classes for each scale, the Median Class score is 3, with an Aggregate Score of 20. This would result in a 26% WPI using Table 11.7 of the Guidelines, and
(x)    the Medical Assessor erroneously applied a one third deduction under s 323 of the 1998 Act. In the alternative, if it was found there was a deduction to be made under section 323, the correct amount was a one-tenth deduction.
The respondent ‘s submissions included the following:
(a)    in relation to self care and personal hygiene, the Medical Assessor took a thorough history including and his assessment of Class 2 impairment for self care and personal hygiene was consistent with the history taken and the medical report of Dr Chow dated 4 March 2022, in which he also assessed a Class 2 impairment. The Medical Assessor’s assessment of Class 2 impairment for self care and personal hygiene was also consistent with report of Dr Clayton Smith dated 25 May 2022, in which he assessed a Class 2 impairment;
(b)    the Medical Assessor’s findings were consistent with the findings of the appellant’s qualified independent medical examiner, and the respondent’s qualified independent medical examiner;
(c)    importantly, the Medical Assessor obtained his own history at the examination which he was required to do. In that history, he was able to obtain from the appellant that she is able to complete a variety of household chores including cleaning, laundry, gardening and cooking and that her separate diagnoses of fibromyalgia and pain limited some of her activities;
(d)    the Medical Assessor appropriately identified household chores that were completed by the appellant that gave rise to her being able to live independently, with the only exception to this being her pain limitations that are unrelated to her subject psychological work injury. The Medical Assessor’s findings that the appellant can complete household chores that including cleaning, laundry, and cooking indicated that an assessment of Class 3 that the worker cannot live independently or without regular support and cannot prepare meals or frequently misses meals was not appropriate;
(e)    the Medical Assessor had also taken a thorough history and gave appropriate consideration to the appellant’s showering and hygiene routine. The Medical Assessor records that while the appellant skips showering three times per week, she wore clean clothes most days without prompting from her partner. This was consistent with a Class 2 finding, that although the appellant may appear unkempt at times, she did not require prompting that was indicative of a Class 3 assessment;
(f)    the Medical Assessor made an assessment consistent with the prior assessments of Dr Chow and Dr Smith. On the totality of the evidence, the Medical Assessor reached a conclusion that was open to him, namely, that the appellant has a mild impairment;
(g)    the Medical Assessor had carefully considered the history before arriving at Class 2. Accordingly, there was no demonstrate error and the MAC was not based on incorrect criteria;
(h)    Travel - the Medical Assessor correctly assessed Class 2 in travel. The submissions that she was anxious when driving and could not take extended trips without her partner falls short of establishing that her impairment in travel ought to have been appropriately assessed as a Class 3;
(i)    the appellant has provided no submissions, nor pointed to any evidence, that the appellant “cannot travel away from own residence without support person”;
(j)    the Medical Assessor’s assessment of the appellant was consistent with the history recorded by the Medical Assessor on the day of the assessment. Moreover, while not a requirement in order to make an assessment free of error, the Medical Assessor’s assessment of a mild impairment was consistent with assessments of Dr Chow and Dr Smith;
(k)    the submission that the Medical Assessor made an error in assessing Class 2 and ought to have assessed Class 3, or otherwise did not provide adequate reasons for assessing a Class 2 over a Class 3 should be rejected particularly noting that the Medical Assessor appeared to make an assessment consistent with the appellant’s history given on the day and the prior assessments of
Dr Chow and Dr Smith. The appellant had not provided sufficient evidence in support of this submission;
(l)    on the totality of the evidence, the Medical Assessor reached a conclusion that was open to him, namely that the appellant had a mild impairment. The Medical Assessor has carefully considered the history before arriving at Class 2. Accordingly, there was no demonstrate error and the MAC was not based on incorrect criteria;
(m)     the Medical Assessor correctly assessed Class 2 in social functioning. The Medical Assessor has taken a thorough history. The Medical Assessor’s assessment of Class 2 impairment for social function was consistent with the history taken by the Medical Assessor and with the report of Dr Chow dated
4 March 2022, in which he also assessed a Class 2 impairment. The Medical Assessor’s assessment of Class 2 impairment for social functioning was also consistent with the eport of Dr Clayton Smith dated 25 May 2022, in which he assessed a Class 2 impairment;
(n)    the Medical Assessor obtained his own history at the examination which he is required to do. In that history, he was able to obtain from the appellant that she has a loving and supportive relationship with her partner, and that she has maintained her relationship with her son and grandchildren. The Medical Assessor appropriately identified relationships that the appellant has maintained since her injury, albeit the relationships were strained as compared to prior to the appellant’s injury. The history taken by the Medical Assessor did not indicate that the appellant disclosed to the Medical Assessor that she and her partner had any periods of separation or domestic violence that would warrant a Class 3 assessment;
(o)    the Medical Assessor recorded that the appellant no longer interacts with friends. This was consistent with a finding of Class 2 for social functioning, which includes the loss of some friendships. Conversely, the examples given for a Class 3 description do not include any reference to friendships. The appellant has failed to provide sufficient reasoning as to how the appellant’s loss of friendships would give rise to a finding of Class 3 impairment for social functioning;
(p)    the submissions that her relationship with her partner had become severely strained as evidenced by a loss of intimacy and documented tension and arguments giving rise to a Class 3 impairment should not be accepted. Strain, tension, and arguments with a partner were all examples given to describe a Class 2 impairment. Similarly, the fact of the appellant’s daughter-in-law becoming distant since her injury did not give rise to a Class 3 impairment;
(q)    in light of the history taken by the Medical Assessor and the medical evidence available to him, including the assessments of Dr Chow and Dr Smith of Class 2 impairment in social functioning, it was open to the Medical Assessor to make an assessment of Class 2 impairment in social functioning;
(r)    furthermore, more than one conclusion was not open to the Medical Assessor and there was no requirement for him to provide reasons as to why he preferred a Class 2 over a Class 3 as the history and medical evidence was consistent only with a finding of Class 2. The Medical Assessor appeared to make an assessment consistent with the prior assessments of Dr Chow and Dr Smith;
(s)    on the totality of the evidence, the Medical Assessor has reached a conclusion that was open to him, namely that the appellant has a mild impairment. The Medical Assessor has carefully considered the history before arriving at Class 2. Accordingly, there was no demonstrate error and the MAC was not based on incorrect criteria;
(t)    Section 323 deduction - The Medical Assessor gave reasons as to why he disagreed with Dr Chow’s decision to make no deduction for pre-existing impairment. The Medical Assessor gave reasons as to why he disagreed with
Dr Smith’s decision to assess 5% WPI prior to her injury, which he considered was inadequate for the contribution of pre-existing conditions. The Medical Assessor took a considered and correct approach in assessing a one-third deduction for contribution of the appellant’s pre-existing conditions to her current presentation. The submission that the Medical Assessor’s deduction of one-third was arbitrary should be rejected, as the Medical Assessor clearly stated his reasons based on his experience as an assessor and clinical psychiatrist and his review of the appellant’s stated history and presented medical evidence;
(u)    the Medical Assessor took a thorough history of the appellant and her pre-existing conditions, which he considered give rise to considerable impairment;
(v)    the submissions that the appellant was able to work full-time and study prior to her injury fell short of establishing that she had little to no impairment prior to her injury. The appellant’s capacity to work and study was relevant only to one category of the PIRS scale, being employability. The appellant has raised no issue with the Medical Assessor’s assessment of her employability;
(w)   the appellant’s attack on the Medical Assessor’s deduction due to her capacity to work and study prior to the injury defied both fact and law, as this argument failed to give consideration to the effect that of the appellant’s pre-existing conditions on five of the six PIRS categories;
(x)    the Medical Assessor’s decision to apply a one-third deduction to the appellant’s WPI rating took into consideration the effect of the appellant’s numerous and severe pre-existing conditions on each of the six PIRS scale categories. In the alternative, if the appellant’s submission that the Medical Assessor’s decision to apply a one third deduction was in error succeeds, then the Medical Assessor’s opinion that a one-tenth deduction was at odds with the available evidence ought to stand and the appellant ought to be subjected to re-examination by a member of the Appeal Panel to determine her current impairment and to assess any impairment due to her pre-existing injuries which ought to be deducted from her current impairment, per the Guidelines at Part 11.10, and
(y)    Conclusion - accordingly, there was no demonstrable error nor was the assessment based on incorrect criteria. The MAC should be confirmed.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] the form of the words used in
s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
In Queanbeyan Racing Club v Burton [2021] NSWCA 304, Basten JA, with whom Leeming JA and McCallum JA agreed, said at [22]: “…it is clear that the Appeal Panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made”. At Basten JA said:
“32…It would have been impermissible for the Appeal Panel to reconsider an element of the assessment which had not been the subject of the appeal to it.
33. To suggest that once the Panel has determined to set aside the certificate, it was “required to undertake a fresh assessment of the plaintiff’s whole persom impairment in accordance with the Guides” is also erroneous. The fact that the Panel decided to set aside the certificate did not expand the scaope of its appeal function: rather, setting aside the certificate was the necessary consequence of the proper exercise of the appeal function.”

Ground 1

The appellant made some general submissions concerning failure by the Medical Assessor to specifically refer to the requirements of paragraph 11.12 of the Guidelines, or to the differences in classes which are relevantly contained in Tables 11.1, 11.3 or 11.4. The appellant argued that the reasoning process by which the Medical Assessor arrived at his determination for each class for each of the scales was inadequate.
Paragraph 11.12 of the Guidelines provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
The Appeal Panel did not consider that it was necessary for the Medical Assessor to set out the relevant descriptors of the competing relevant classes for each category under the PIRS, or to specifically indicate that he had considered those alternatives when making his assessment. It can be inferred that these alternatives would have been considered when making the assessment. It can also be inferred that the Medical Assessor considered activities that were usual for the appellant’s age, sex and cultural norms when making the assessment.
The appellant also submitted that the Medical Assessor did not provide adequate reasons for his assessment. The Appeal Panel will address this submission below in the various grounds of appeal.

PIRS categories

The appellant alleged error in respect of the assessment of the PIRS categories of self care and personal hygiene, travel and social functioning.
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
In Jenkins v Ambulance Service of NSW [2015] NSWSC 633 Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
In Ferguson v State of New South Wales (2017) NSWSC 887 (Ferguson), Campbell J in dealing with whether there was error in the application of the categories and classes of the PIRS identified the following as relevant:
(a)     was the categorisation glaringly improbable;
(b)     was the AMS unaware of significant factual matters;
(c)     was there a clear misunderstanding by the AMS, and
(d)     was the AMS’s reason process unable to be made out?
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“66.   In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense…
70.    To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
71.    The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error…”
The Medical Assessor is required to interview the worker and provide his assessment of WPI and opinion based upon his own findings as at the date of the examination.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Grounds 2 and 3 - Self care and personal hygiene

The appellant submitted that from the facts found by the Medical Assessor were at least, if not preponderantly, more consistent with Class 3 rating. Further, if there was more than one conclusion open between Classes 2 and 3, it was incumbent on the Medical Assessor to provide adequate reasons as to why he preferred Class 2 over Class 3.
The examples under Table 11.1 for “Self care and personal hygiene” in the Guidelines are:
“Class 1 No deficit, or minor deficit attributable to the normal variation in
the general population.
Class 2 Mild impairment: Able to live independently; looks after self
adequately, although may look unkempt occasionally; sometimes
misses a meal or relies on take-away food.
Class 3 Moderate impairment: Can't live independently without regular
support. Needs prompting to shower daily and wear clean clothes.
Does not prepare own meals, frequently misses meals. Family member
or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition”.
The Medical Assessor assessed the appellant as Class 2 for self care and personal hygiene. In the PIRS Rating Form, the Medical Assessor wrote:
“Self care and personal hygiene- Class 2
Ms Holmes lives with her de facto partner. She contributes to housework, including cleaning, laundry, gardening and cooking. She does some shopping, although most of this is left to her partner. She pays less attention to hygiene, skipping showering three times a week. She does not require prompting.”
Under “General health ” the Medical Assessor wrote:
“Because of increased appetite and reduced exercise, she has gained 8 kg but lost 3kg of this by attention to diet. Her current weight is 66 kg; at 162 cm, her BMI is 25.1, in the healthy range.”
Under “Social activities/ADL” the Medical Assessor noted:
“Ms Holmes lives with her de facto partner of 14 years, Samit, a psychiatrist.
She rises at about 5:30 AM and attends to housework, including cleaning, laundry,
gardening and cooking. Her fibromyalgia and pain limit some of her activities.
During the week, she does art therapy, equine therapy and photography, with professional support.
She walks her dogs, attends a pool for exercise, and a physiotherapy program.
Her partner does most of the shopping, although she sometimes goes to the shops herself.
She showers and wears clean clothes most days without prompting from her partner. She misses showering about three days a week.”
Dr Chow, in his report dated 4 March 2022, assessed a Class 2 impairment for self care and personal hygiene and providing the following reasons:
“Ms Holmes is not as attentive to her hygiene and appearance. She is showering every day and is wearing clean clothes. She is able to perform some house chores, depending on her mood and motivation.”
Under “Lifestyle” Dr Chow wrote:
“Ms Holmes stated that she is not as attentive to her hygiene and appearance. She is now showering every day and is wearing clean clothes. She is performing house chores depending on her mood and motivation. She avoids grocery shopping, which is usually performed by her partner.”
Dr Clayton Smith, in his report dated 25 May 2022, also assessed a Class 2 impairment for self care and personal hygiene, and provided the following reasons:
“Ms Holmes is able to live independently and look after herself adequately, although she may look unkempt occasionally and may occasionally miss showering.”
In his report under “Progress since last review”, Dr Smith noted:
“She said she has been overeating and has gained weight over the last two years. She said she has not been able to move or be active in the same way as she was prior to the injury.
She said she takes her dogs for a walk nearly every morning…
She said she gets up around 6:00 am and takes her dogs for a walk around the neighbourhood. She said she comes home and has a coffee and breakfast and goes to appointments. She said she goes to the exercise physiologist three times per week, a five-minute drive. She said she tidies up around the house, cooks, and gardens…
She said she has a shower in the evening and skips a shower every few days. She said she had her haircut and coloured one month ago. She said she would usually get her hair cut every four months. She said she has not been to a beautician.
She said her husband does the shopping.”
The appellant submitted that the facts found by the Medical Assessor were more consistent with a Class 3 rating.
The Appeal Panel did not accept that the evidence supported a greater impairment of self care and personal hygiene. Both Drs Smith and Chow assessed Class 2 for self care and personal hygiene. There was no evidence of any deterioration relating to activities in this class since those assessments.
The Medical Assessor noted that the appellant attended to housework, including cleaning, laundry, gardening and cooking. He reported that although her partner did most of the shopping, she sometimes went to the shops herself. The Medical Assessor noted that the appellant showered and wears clean clothes most days without prompting from her partner, but missed showering about three days a week. The appellant did not challenge this history. Dr Chow reported that the appellant showered every day and wore clean clothes. Dr Smith reported that the appellant had a shower in the evening and skipped a shower every few days. Dr Smith noted that the applicant was able to live independently and look after herself adequately. The Appeal Panel considered, on balance, that based on these histories that the applicant was able to live independently without regular support. She prepared meals, was able to manage her diet to lose weight when required, showered most days and wore clean clothes without prompting.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of Class 2 for self care and personal hygiene considering the evidence available and the history taken during the assessment by the Medical Assessor.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS category of self care and personal hygiene and the assessment in this class was not made on the basis of correct criteria. The categorisation of Class 2 for self care and personal hygiene was not glaringly improbable; the Medical Assessor was not unaware of significant factual matters, there was no clear misunderstanding by the Medical Assessor and his reasoning process was sufficiently clear.
The appellant submitted that if there was more than one conclusion open between Classes 2 and 3, it was incumbent on the Medical Assessor to provide adequate reasons as to why he preferred Class 2 over Class 3.
The Medical Assessor did not suggest that there was more than one conclusion open between Classes 2 and 3 in the rating for self care and personal hygiene.
In Vitaz v Westform (NSW) Pty Limited [2011] NSWCA 25 Basten JA said at paragraph 43,
“The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury. In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”
The Appeal Panel considered that in this matter there was an the absence of any medical evidence establishing a contest as to whether the appellant should be rated Class 2 or Class 3 for self care and personal hygiene, the appellant’s complaint about a failure to give reasons should fail.

Travel

The appellant submitted that the assessment of Class 2 in respect of travel, was not consistent with the Medical Assessor’s factual findings recorded in Table 11.8 of the MAC and she should be placed in Class 3 for travel. In the alternative, the appellant submitted that there was more than one conclusion open between Classes 2 and 3 and the Medical Assessor failed to provide adequate reasons as to why he preferred Class 2 over Class 3.
The examples under Table 11.3 for “Travel” in the Guidelines are:
“Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.
Class 2 Mild impairment: Can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3 Moderate impairment: Cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment”.
The Medical Assessor assessed Class 2 in relation to travel noting:
“She independently travels locally. She is anxious when driving. Occasionally, she takes a more extended trip, but only with her partner. The longest journey in the last six months was about one hour and 20 minutes to see her son.”
Under “Social Activities/ADL” the Medical Assessor noted:
“She is independent in local travel, driving herself to appointments. In the last six months, she has driven to visit her son in New South Wales (she lives in southern Queensland), a trip of about one hour and 20 minutes with her partner. She is more anxious about travelling away from home.”
In his report dated 4 March 2022, Dr Chow assessed Class 2 for travel and provided the following reasons: “Ms Holmes able to drive locally, but she gets anxious easily”.
In his report dated 25 May 2022, Dr Smith assessed Ms Holmes as Class 2 for travel and provided the following reasons:
“Ms Holmes can travel without a support person but only in a familiar place such as the local shops or to visit her son She is able to travel further afield with a support person.”
Dr Smith noted:
“She said she went to Sydney on the weekend for her mother’s partner’s funeral. She said she flew down. She said they drove to Sydney once. She denied overseas travel. She said she mostly drives locally and avoids driving out of the local area.”
The appellant submitted that the assessment of Class 2 in respect of travel, was not consistent with the Medical Assessor’s factual findings and she should be placed in Class 3 for travel.
The Appeal Panel did not accept that the evidence supported a greater impairment in travel. Both Drs Smith and Chow assessed Class 2 for travel.
The Medical Assessor noted that the appellant independently traveled locally, was anxious when driving and occasionally took a more extended trip, but only with her partner. He noted that the longest journey in the last six months was about 1 hour and 20 minutes to see her son. Dr Chow reported that the appellant was able to drive locally, but she got anxious easily. Dr Smith reported that the appellant could travel without a support person but only in a familiar place such as the local shops or to visit her son. Dr Smith noted that she was able to travel further afield with a support person. The Appeal Panel considered, that based on these histories, that the applicant had a mild impairment for travel as she could travel without a support person but only in a familiar area.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of Class 2 for travel considering the evidence available and the history taken during the assessment by the Medical Assessor. A consideration of the evidence available resulted in the Appeal Panel concluding that the appropriate class for travel was Class 2. The Medical Assessor provided clear and adequate reasons for assessment of Class 2 for travel.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS category of travel and the assessment in this class was not made on the basis of correct criteria.
The appellant submitted that if there was more than one conclusion open between Classes 2 and 3, it was incumbent on the Medical Assessor to provide adequate reasons as to why he preferred Class 2 over Class 3. The Medical Assessor did not suggest that there was more than one conclusion open between Classes 2 and 3 in the rating for travel. The Appeal Panel also considered that where there was an absence of any medical evidence establishing a contest as to whether the appellant should be rated Class 2 or Class 3 for travel , the appellant’s complaint about a failure to give reasons should fail.

Social functioning

The appellant submitted that the assessment of Class 2 in respect of social functioning was not consistent with the Medical Assessor’s factual findings recorded in Table 11.8 of the MAC and she should be placed in Class 3 for social functioning. In the alternative, the appellant submitted that there was more than one conclusion open between Classes 2 and 3 and the Medical Assessor failed to provide adequate reasons as to why he preferred Class 2 over Class 3.
The examples under Table 11.4 for “Social functioning ” in the Guidelines are:
“Class 1: No deficit, or minor deficit attributable to the normal variation
in the general population: No difficulty in forming and sustaining
relationships (e.g., a partner, close friendships lasting years).
Class 2: Mild impairment: Existing relationships strained. Tension and
arguments with partner or close family member, loss of some
friendships.
Class 3: Moderate impairment: Previously established relationships
severely strained, evidenced by periods of separation or domestic
violence. Spouse, relatives or community services looking after children.”
The Medical Assessor assessed Class 2 in relation to social functioning noting:
“She has a loving and supportive relationship with her de facto partner, although they have less intimacy because of her loss of libido and choice of sleeping alone because of her nightmares. She is close to her son and mother, but there is strain on her relationship with her daughter-in-law. She is no longer interacting with friends.”
Under “Social Activities/ADL” the Medical Assessor noted:
“She has a loving and supportive relationship with her partner, although they have reduced sexual intimacy. They no longer share a bedroom because she has frequent nightmares and restlessness. She remains close to her adult son, Ron, who occasionally visits, sometimes bringing her two grandchildren. Her relationship with her daughter-in-law is distant since she has become unwell. She is also close to her mother, who lives nearby.”
In his report dated 4 March 2022, Dr Chow assessed Class 2 for social functioning and provided the following reasons:
“Ms Holmes has no contact with her friends and has lost friendships. The relationship with her partner is strained due to her psychological difficulties although her partner remains supportive. She has some phone contact with her son.”
Dr Chow noted under “Personal/Social history”:
“She has a 29-year-old son from her first relationship. She has moved from Central Coast to Gold Coast with her son as she was previously bullied by her boss in Northern Sydney and needed to move away.
She has been with her current partner for 10 years. The relationship is strained due to her difficulties although her partner remains supportive.
Her father and three brothers have passed away.
She has limited contact with her mum and some phone contact with her son.”
Dr Chow under “Lifestyle” noted : “She has no contact with friends and has lost friendships.”
In his report dated 25 May 2022, Dr Smith assessed the appellant as Class 2 for social functioning and provided the following reasons:
“Ms Holmes' existing relationships were already strained prior to the injury. There was already tension and arguments with her partner and close family members.
She had difficulties maintaining, creating and sustaining friendships. She had problems with trust and self esteem.”
The Medical Assessor’s assessment of Class 2 impairment for social functioning was consistent with assessments of Dr Chow and Dr Smith.
The appellant submitted that the assessment of Class 2 for social functioning was not consistent with the Medical Assessor’s factual findings and she should be placed in Class 3. In the alternative, the appellant submitted that there was more than one conclusion open between Classes 2 and 3 and the Medical Assessor failed to provide adequate reasons as to why he preferred Class 2 over Class 3.
The Appeal Panel did not accept that then evidence supported a greater impairment insocial functioning . Both Drs Smith and Chow assessed Class 2 for Social functioning.
The Medical Assessor noted that the appellant had a loving and supportive relationship with her partner, although they have less intimacy because of her loss of libido and choice of sleeping alone because of her nightmares. He reported that she was close to her son and mother, but there was strain on her relationship with her daughter-in-law, and she was no longer interacting with friends. Dr Chow reported that the appellant had lost friendships and had no contact with her friends and the relationship with her partner was strained due to her psychological difficulties although her partner remained supportive. Dr Chow noted that she had some phone contact with her son. Dr Smith noted the appellant said she saw her son every five weeks and she would visit him every six months. Dr Smith noted that she said she has always found socialising hard and said that she had no friends at all. The Appeal Panel considered, that based on these histories that the applicant had a mild impairment for social functioning as existing relationships were strained and there was a loss of friendships. There was no evidence of any periods of separation from her partner or domestic violence.
Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that it was open to the Medical Assessor on the evidence to make an assessment of Class 2 for social functioning considering the evidence available and the history taken during the assessment by the Medical Assessor. A consideration of the evidence available resulted in the Appeal Panel concluding that the appropriate class for social functioning was Class 2. The Medical Assessor provided clear and adequate reasons for assessment of Class 2 for social functioning.
The Appeal Panel was satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS category of social functioning and the assessment in this class was not made on the basis of correct criteria.
The appellant submitted that if there was more than one conclusion open between Classes 2 and 3, it was incumbent on the Medical Assessor to provide adequate reasons as to why he preferred Class 2 over Class 3. The Medical Assessor did not suggest that there was more than one conclusion open between Classes 2 and 3 in the rating for social functioning. The Appeal Panel also considered that where there was an the absence of any medical evidence establishing a contest as to whether the appellant should be rated Class 2 or Class 3 for social functioning, the appellant’s complaint about a failure to give reasons should fail.

Section 323 deduction

The appellant submitted that the Medical Assessor Andrews erroneously applied a one-third deduction for pre-existing conditions under s 323 of the 1998 Act which was contrary to the Guidelines.The appellant submitted that prior to the work-related injury, despite the existence of the pre-existing conditions, she was able to engage in full-time employment even while studying. It was not until after the work injury that she was incapacitated for work.
Section 323 of the 1998 Act requires that a deduction be made “for any proportion of the impairment that is due to any previous injury or that is due to any pre- existing condition or abnormality.”
The Medical Assessor noted that the appellant had “lifelong cognitive and interpersonal challenges and mood and anxiety problems.” The appellant submitted that the Medical Assessor failed to determine the specific consequences of these pre-existing conditions to her impairment. The appellant submitted that the Medical Assessor did not apply a sufficient path of reasoning to how his assessment of a one-third deduction was reached, and merely relied upon an insufficient assumption or hypothesis based on his experience as an assessor and clinical psychiatrist.
The Medical Assessor under “Details of any previous or subsequent accidents, injuries or condition” noted:
“Ms Holmes has a complex mental health history. She suffered neglect and sexual abuse as a child and carried responsibility for raising her three brothers. Her father was an alcoholic, and her mother used medically prescribed opiates.
She developed bulimia as an adolescent and was hospitalised on one occasion.
She was in three relationships before her current de facto partnership; she experienced domestic violence in all three.
She has been diagnosed with ASD and ADD, developmental disorders she has carried throughout her life.”
Under “Summary of injuries and diagnoses” the Medical Assessor diagnosed Autism spectrum disorder (ASD), Attention deficit disorder (ADD), Complex PTSD (cPTSD) - This is an ICD-11 diagnosis and Persistent depressive disorder with anxious distress. He wrote:
“Dr Khan has comprehensively assessed Ms Holmes regarding her developmental disorders, including neuropsychological testing. I accept the accuracy of these diagnoses.
Considerable developmental trauma and domestic violence have led to mood and anxiety problems in the past and increased the likelihood of decompensation when faced with any stressors in her life. Workplace events have exacerbated her pre-existing mood and anxiety problems.”
Under “consistency of presentation” the Medical Assessor wrote:
“Ms Holmes tended to minimise her pre-existing mental health problems from her prejudicial childhood and early relationship difficulties. However, she correctly pointed out that despite these circumstances, she has achieved a great deal, educationally and vocationally. She came across as honest and has shown resilience in dealing with life events before her decompensation at work.”
The Medical Assessor in addressing the question “Is any proportion of loss of efficient use or impairment or whole person impairment due to a previous injury, pre-existing condition or abnormality?” wrote:
“Yes. Ms Holmes ASD and ADD are developmental conditions arising in childhood and persisting into adulthood. They cause cognitive challenges, including executive dysfunction, difficulty focusing and persistence at tasks and interpersonal and relational problems. These conditions make it more likely that she would be targeted in the workplace and that she will decompensate when this occurs. She also has cPTSD from childhood and adult trauma, causing emotional dysregulation, negative self-beliefs and interpersonal difficulties.”
Under “Reasons for assessment” the Medical Assessor wrote:
“Ms Holmes has tended to minimise the effect of her pre-existing conditions. She has had lifelong cognitive and interpersonal challenges and mood and anxiety problems. She has a five-year history of bulimia that once required inpatient mental health treatment. It isn't possible to determine her precise pre-injury level of function. Even if it were, this would not adequately reflect the contribution of her pre-existing conditions to her current presentation. Using my experience as an
assessor and clinical psychiatrist, I estimate that one-third of her current impairment is due to the contribution of her pre-existing conditions.”
In commenting on other medical opinions and findings, the Medical Assessor reviewed the medical evidence relied on by the parties. On pages 6-10 of the MAC, the Medical Assessor carried out a detailed review of the medical evidence which the Appeal Panel considered not only served to explain his diagnoses but also provided background and explained his opinion and reasoning for giving a one-third deduction.
The Medical Assessor noted that the appellant in her statement dated 8 December 2022 said that prior to her diagnosis in 2017 of ASD she undertook regular counselling to cope with with social workplace difficulties at Centaur. She also referred to her “social awkwardness”.
The Medical Assessor noted that complex post-traumatic stress disorder was an ICD diagnosis that arises with repeated trauma and leads to difficulty controlling emotions, negative self-view, difficulty with relationships, detachment from the trauma and loss of meaning. He noted that common causes of this condition are childhood abuse or neglect and domestic violence.
In a referral to Dr Ashar Khan, consultant psychiatrist, dated 11 August 2017, which pre-dated the deemed date of her subject injury by approximately five months, by Dr Peter Meulman (the appellant’s general practitioner) stated:
“She is a primary school teacher in NSW. She was abused physically and sexually including as young child, she claims. Has been user of MJ [marijuana] and alcohol in past and perhaps currently at times. Her two brothers died at age 22 - one drowned and one was hit by car. Sharon has ongoing problems with anxiety and depression. She is vulnerable to criticism and mistreatment by family and colleagues. She was
caught DUI and unable to drive for some time 2016-2017. She bought a unit for her brother to rent cheaply but he began mistreating her after moving in. She reports he is now being treated for some oral cancer so she does not feel empowered to defend herself from him…
She struggles with scrutiny and judgement from colleagues.”
Treating psychiatrist, Dr Saveena Singh, in the discharge summary dated 20 December 2017 from Robina Private Hospital (where the appellant was admitted from 28 November 2017 to 21 December 2017) diagnosed complex post-traumatic stress disorder, borderline personality disorder, alcohol dependence, Asperger’s Disorder and attention deficit disorder. Dr Singh wrote:
"Sharon was referred by her psychiatrist due to significantly depressed mood, anhedonia and excessive use of alcohol to cope with negative emotions related to shame and guilt as well as anger. Sharon described a long history of problems managing her emotions with significant periods of impulsivity, self-loathing and anger outbursts. She also described herself as having a significantly rigid personality with perfectionistic and highly self-critical traits and obsessional rigidity. Several stressors had led to a deterioration in mood and maladaptive coping including her reinitiating contact with her brother who had been diagnosed with mouth cancer. He had become very ill and Sharon had taken him under her wing and allowed him to live in her home. She states that he was significantly abusive to her and his presence in her life may have contributed to her relapse and further deterioration in mood as it triggered her past traumas."
Under “Developmental history”, Dr Singh noted:
“She experienced significant childhood trauma including sexual abuse from the age of 3 to 5. She also described significant attachment issues related to her mother who was unable to provide emotional support to Sharon. Her relationship with her father has always been quite traumatic with significant abuse suffered from his hands. She developed bulimia and depression in her late teens. She subsequently has been involved in several abusive relationships characterised by physical and sexual abuse.
She had however been able to manage to educate herself and completed a degree in teaching. She had her first child at the age of 22. She raised her child largely as a single mother. Two other significant traumas from her past include one of her brothers being run over and dying from the accident whilst intoxicated with alcohol, and another brother dying from drowning. She states that she has had a lifelong binge drinking cycle.”
Dr Khan on 16 October 2018, wrote:
"I do not want to psychiatrisise [sic] this issue but you already know that Sharon has struggled for so long with her fragility and more lately, what we have seen of her Depression and Neurocognitive status. I think the time away from school has helped and lessened her 'Sensory Overload'.
…
The bottom line is that her ADD/ASD Spectrum has definitely sustained her fragility.
The trauma in life from abuse, etc. has been a double whammy for her and has dented her sense of self. Despite same, her strength lies in intellect, academics, pragmatism and problem solving. It is almost 'contraindicated' for her to go back to the past or revisit emotional thoughts of the past as has been happening throughout her life."
In a report dated 18 May 2020, Dr Khan noted that he had treated the appellant since
August 2017. He wrote:
“I can confirm that her diagnosis is of Complex Post-Traumatic Stress Disorder, Recurrent Depressive Disorder, currently in Partial Remission, Alcohol Dependence Syndrome, currently in Abstinence, Autism Spectrum Disorder, as well as Attention Deficit Hyperactivity Disorder of the Inattentive Subtype. Additionally, she has suffered from severe Anxiety, meeting at times criteria for Organic Anxiety Disorder, Generalised Anxiety Disorder and Panic Disorder without Agoraphobia. Mrs Holmes has been under my treatment for all of the aforementioned conditions since she was referred to me.
Mrs Holmes has received Psychotherapy for her Autism Spectrum Disorder and ADHD, as well as extensive Neurocognitive interventions, testing and Psychostimulant treatment. She has also been on a plethora of Antidepressants for her accompanying Mood Disorders during this time”.
Dr Trevor Lotz, treating psychiatrist, in a report dated 28 March 2019 noted previous problems with alcohol use. He recorded, "Her first three partners appear to be abusive, and she was the victim of domestic violence [she] describes a traumatic childhood with violence and abuse, but managed to finish year 12 at school."
Dr Lotz diagnosed the appellant as having an adjustment disorder with mixed anxiety and depression, autism spectrum disorder and attention deficit disorder. He considered that she had "no overt personality disorder."
Treating psychologist Ms Sarah Gurrin, in an undated report to Dr Khan, noted she had carried out neuropsychological testing and assessed the appellant as average for crystallised intelligence, above-average for fluid reasoning, average for visual processing and processing speed, below-average for working memory, and extremely below-average (<1 percentile) for executive functioning. Ms Gurrin wrote:
"Sharon's lower Working Memory scores are not uncommon in individuals diagnosed with ADHD. Working memory underpins all learning and individuals with a deficit in their working memory abilities commonly experience difficulties retaining information in their mind while using it to complete a task. Sharon can think and reason at a higher level than she can hold in her mind at one time and will be frustrated by her inability to hold onto her thoughts while she plans and organises them.”
Ms Gurrin noted concerns with executive functioning skills and her ability to inhibit impulsive responses, adjust to changes in routine or task demands, modulate emotions, monitor social behavior, initiate problem solving or activity, sustain working memory, plan and organise problemsolving approaches, attend to task-oriented output, and organise environment and materials. She reported that scores on the Shift and Emotional Control scales were elevated compared to age-matched peers and the profile suggested significant problem-solving rigidity combined with emotional dysregulation.
The Appeal Panel agreed with the Medical Assessor that these deficits, particularly, her reduced working memory and extremely below average executive functioning, were fixed and long-standing, relating to her ADD or ADHD and autism spectrum disorder, and predating the work injury.
The clinical notes of Dr Meulman’s practice, included the following entries:
(a)    In an entry dated 19 April 2018 Dr Meulman wrote:
“she says that once when she was about 22 her then partner bashed her up then she went to her mother and she bashed her as well then her father gave her alcohol and had sex with her the next day she was bashing her head on a wall to kill herself she confronted him about this about 8y later now she has learned that he told the whole family and friends and town that she was on drugs and made these accusations against him.”
(b)    In an entry dated 11 April 2017 Dr Meulman wrote:
“brother has had his surgery - oral cancer she visited him many tirnes in hospital now he is out, drinking and smoking again and already abusing her and making her feel guilty and full of doubt.”
(c)    In an entry dted 22 December 2016, Dr Meulam noted:
“daughter-in-law has stopped talking to her and sent her nasty texts but Sharon unsure why so we spoke about how she is dealing with this.”
(d)    In an entry dated 5 August 2016, Dr Meulman noted:
“post traumatic stree disorder has not being going well.”
(e)    In an entry dated 22 July 2016, Dr Meulman noted:
“post traumatic stress disorder ..
Has some emotional upheaval recently
4 wks ago – thought it was PMT
It lasted 9 days and he was as bad as she has ever been -tearful, angry, morose and some suicidal thinking…
DASS21 Depression; 40 (Extremely Severe);
DASS21 Anxiety: 32 (Extremely Severe);
DASS21 Stress: 36 (Extremely Severe).”
(f)    In an entry dated 19 February 2016, Dr Meulaman noted:
“she has been seeing a SW counsellot butI think she teally needs a psychologist.”
(g)    In an entry dated 24 July 2014, Dr Meulman noted:
“she did a course for survivors of sexual abuse and found the psychologist there very good • Angie McCall suspects she might have dyslexia she prefers big picture concepts and not sequential things she can be clumsy and confuses L +R spelling and grammar is still a struggle for her her brother is similar she has always felt she thinks differently to other people and arrives at conclusions from unconventional directions
DASS21 Depression; 32 (Extremely Severe);
DASS21 Anxiety: 24 (Extremely Severe):
DASS21 Stress: 42 (Extremely Severe)”
(h)    In an entry dated 17 July 2015, Dr Michelle Lai noted: “post traumatic stree disorder”.
(i)    In an entry dated 24 February 2014, Dr Meulman noted: “ post traumatic stress disorder”.
(j)    In an entry dated 1 October 2013, Dr Meulman noted:
“she tells me she has a complex past with domestic violence and sexual abuse she was abused by a friend of the family between 3 to 5 she was not believed and it caused a lot of family problems the alleged culprit has since died so she has not had validation she turned to cannabis and alcohol but has stopped this now Mum was a drug addict and father alcoholic lost 2 brothers - one was epileptic and drowned, another was killed by a drunk driver - both died at 22 and died 15mths apart! she had been raising the two boys because her parents were so useless One brother remains but he is now a drinker incl on waking
ex-partners have abused her, smashed her property, stabbed teddybears into the wall this one proved to be a bikie hit man the next relationship was with someone she had broken up with then he stalked her and eventually she was kept hostage in her house and raped repeatedly over hours she was told not to scream or her son would be harmed she did not pursue him through the courts over threats to her family she has been diagnosed with PTSD”

In a report dated 11 May 2016, Ms Leanne Fendley, treating psychologist, noted that the applicant had completed an initial assessment on 11 May 2016. She reported that the concerns raised were in relation to anxiety, stress and depressive symptomatology, in the context of a significant history of trauma and abuse. Ms Fendley wrote:
“Sharon is a middle aged lady who presents with anxiety, stress and depressive symptomatology, in the context of an extensive history of trauma and abuse. Precipitating event for the presentation is a sense of being "stuck", and unable to move on from the past. Sharon is genetically predisposed to mental health problems, reports a history of domestic violence, sexual abuse, eating disarders, drug and alcohol abuse, dysfunctional family dynamics and poor coping skills. Perpetuating her current presentation are issues in her workplace, estrangement from her son, problems in the relationship with her partner, and limited supports. Positively Sharon is help seeking, intelligent, has had positive effects from therapy in the past, ond is motivated to move through this current situation. Prognosis for an improvement in current functioning is positive, but will require a healing therapeutic process and an ability on Sharon's part to block the impact of past stressors on the current situation.”
Ms Fendley’s clinical notes included the following entries:
(a)    on 16 May 2016, Ms Fendley reported that the appellant had been seen by another therapist, Sue, from 2009 to 2014 originally for depression (2009) through victim services after a history of domestic violence including a fractured skull and wrists;
(b)    on 17 June 2016, Ms Fendley noted that they discussewd EFT and EMDR as possible interventions to address trauma;
(c)    on 22 June 2016, Ms Fendley noted that the main focus of interventions was relationships at work. She noted difficulties at work, feeling threatened and judged by Mel at work, raised fears of being forced out of a job, and feeling tainted by her history;
(d)    on 12 July 2016 Ms Fendley reported difficulty “focusing on life situations such as tax paperwork, tends to be quite disorganized";
(e)    on 26 July 2016 Ms Fendley noted that the appellant reported being unable to function and shutting down emotionally and cognitively. She reported that the appellant was unable to identify a trigger;
(f)    on 30 July 2016, Ms Fendley noted "received a series of texts from Sharon who reported drinking last night, accident and DUI”. She noted the appellant was making enquiries around AA, and had contact in the past approximately 24 years ago";
(g)    on 21 December 2016, Ms Fendley noted that the appellant had had six sessions of trauma work and “was going well”. She noted that the appellant had a deterioration in the relationship with her son, issues with her daughter-in-law and her brother, and her partner had left the house for two days over her drinking behaviours;
(h)    on 31 January 2017, Ms Fenfley noted that Ms Holmes had applied under an expression of interest to fill her current temporary position but had been unsuccessful and that the position had been given to someone who had not been in the role or trained for the position and was the wife of one of the senior staff in the school. The appellant reported that this was a major trigger for her;
(i)    on 6 October 2017, Ms Fendley noted she had received a text from the appellant who said that the psychiatrist had diagnosed her with ADD and high functioning Asperger’s, and
(j)    on 16 October 2018, Ms Fendley received a text from the appellant who said that DR Khan advised her that according to the test results her executive functioning was “the lowest he has seen” and that her memeory was low.
Dr Chow reported the following history:
“Ms Holmes stated that she had a traumatic childhood with sexual abuse and attachment issues. She was in a parentified role, looking after three younger siblings.
She stated that she suffered from bulimia in her late teens and was admitted to Royal Prince Alfred Hospital for treatment.
When she was 27, she was prescribed antidepressant for short period due to domestic violence relationship. She has had numerous counsellors over the years.
Whilst at Centaur, she was having regular counselling to help her cope with work.
In 2016, she was admitted to Robina Private Hospital. She was formally diagnosed with PTSD, ADHD (inattentive type) and autistic spectrum disorder by a psychiatrist and she was started on stimulant and antidepressant.”
Dr Chow diagnosed her with a major depressive disorder and opined that her employment was the "main contributing factor to her psychiatric injury”. He determined a 19% WPI (Classes 2, 3, 2, 2, 3, and 5). He further noted: "She was able to work full-time and maintain social contact with friends and family and engaging in hobbies and activities. Therefore, it is my opinion that there is no deduction for her pre-existing conditions."
Dr Smith reported the following history:
“She has a complex mental health history including exposure to attachment and developmental trauma, an eating disorder in her adolescence, repeated exposure to trauma in the context of domestic violence relationships and a diagnosis of autistic spectrum disorder and attention deficit hyperactivity disorder. She has required psychological and psychiatric treatment at various points throughout her life. She was gainfully employed with the Department of Education for 18 years prior to the alleged injury.”
Dr Smith diagnosed Ms Holmes with a major depressive disorder that he considered to be chronic and stable. He determined a 19% WPI (Classes 2, 3, 2, 2, 3, and 5). He considered that a pre-existing injury existed and used a PIRS table to assess this at 5% (Classes 1, 3, 1, 2, 2, and 1). By subtraction, he arrived at a final 14% WPI.
The Appeal Panel agreed with the Medical Assessor that it was unclear from Dr Smith's assessment at what point in the appelant’s life he believed the 5% WPI impairment existed. In any case, the Medical Assessor was of the view that the 5% WPI assessment inadequately accounted for the contribution from the pre-existing conditions. The appropriate assessment to be made is that of the degree to which the pre-existing disorder(s) contribute to the current level of impairmen and Dr Smith’s approach does not fully address this.
The Medical Assessor accepted, and the Appeal Panel agreed, that the appellant had shown resilience, had considerable achievements academically and vocationally, had formed a loving and caring relationship with her partner, which she has sustained for 14 years. However, the Medical Assessor was of the opinion that her history made it clear that her pre-existing conditions contributed significantly to her current condition and impairment.
The Medical Assessor gave reasons as to why he disagreed with Dr Chow’s decision to make no deduction for pre-existing impairment, and with Dr Smith’s decision to assess 5% WPI prior to her injury, which he considered unclear and inadequately accounted for the contribution of pre-existing conditions.
The Medical Assessor further considered whether a deduction of one-tenth was appropriate, and concluded at page 11 of the MAC that a “deduction of one-tenth is at odds with the available evidence”. This statement followed the Medical Assessor’s detailed review and consideration of the available evidence, which includes the appellant’s treating clinical notes and independent medical examinations. The Medical Assessor stated his reasons for considering a deduction of one-third, which were: “Ms Holmes had significant challenges from her ASD and ADD, complicated by complex PTSD. In the past, she had coped poorly with years of bulimia, requiring hospitalisation.”
In the ARD, the injury was pleaded as both a personal injury with the date of injury being
15 August 2018 and a disease injury with a deemed date of 15 August 2018. The injury description provided was as follows: “The Applicant began suffering severe anxiety and depression as a result of interactions with the executive at the Primary School where she has been teaching at Banaora Point.” The appellant in her statement stated that she was employed at Centaur Public School from 2008 to 2018. She stated that she had been hospitalised on 28 November 2017 after a year of maltreatment from certain Centaur staff. This would suggest that events causing the work injury took place between 2016 and 2018.
Section 323 of the 1998 Act provides:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.(4)The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section”.
Clause 11.10 of the Guidelines provides:
“To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured workerr’s current level of WPI% is then assessed and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole). Schmidt J said:
“29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre- existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30 Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 …That is a matter of fact to be assessed on the evidence led in each case”.
At [38] of Cole, Schmidt said:
“38. What s323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”
In Elcheikh v Diamond Formwork (NSW) Pty Ltd [2013] NSWSC 365 Schmidt J referred to her decision in Cole, stating:
“88. Section 323 requires that once the level of impairment which results from a work injury has been established, that a medical specialist must make 'a deduction for any proportion of the impairment that is due to any previous injury'. As discussed in Cole v Wenaline Pty Limited at [29] that requires a conclusion:
‘on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment'.”
In Ryder v Sundance Bakehouse [2015] NSWSC 526Campbell J considered the legislative and authoritative history of s 323. He said at [42]:
“In the present context the critical question is the causation question which, expressed by adapting the terms of the statute is whether a portion of the 15 per cent whole person impairment Ms Ryder suffered as a result of her work injury was due to a pre-existing condition or abnormality i.e. degenerative disc disease. The argument advanced on behalf of Ms Ryder is effectively that the proportion must be capable of assessment in accordance with the WorkCover Guides for s 323(1) to be satisfied. With respect this overlooks the requirement that the section must be read as a whole and in its legislative context. ...
43. I acknowledge that the express words of s 323(1) require that some definite part, even if it is difficult or costly to assess in precise terms, of the impairment has been caused by, in this case, a pre-existing condition. But the interpretation adopted by the Court of Appeal is that the section is engaged if the pre-existing condition, or previous injury where applicable, is a concurrent necessary condition, with the work injury, of the degree of permanent impairment.”
In Marks v Secretary, Department of Communities and Justice [2021]NSWSC 616 (Marks No 2) Simpson AJ’s concluded that cl 11.10 was inconsistent with s 323(1) and invalid to the extent that it excluded consideration of any contribution made to the impairment by a pre-existing but asymptomatic condition.
As discussed by Simpson AJ, cl 11.10 focused on the “pre-injury level of functioning” and not on the contribution made to the current level of functioning by a pre-existing condition. Simpson AJ said:
“16. The more important question, which the plaintiff’s submissions did not address, is whether a pre-existing condition, notwithstanding that it is asymptomatic at the time of the injury in respect of which the assessment is undertaken, may, nevertheless, contribute to the degree of impairment. In respect of physical injuries, it has long been held that it can: Government Cleaning Service v Ellul (1996)13 NSWCCR 344; Matthew Hall Pty Ltd v Smart[2000]NSWCA 284; (2000) 21 NSWCCR 34; Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liquidation) [2013] NSWSC 365 at [91] and [95].
17. In the light of this consistent line of authority, s 323(1) must be construed as requiring deduction from the assessment of the degree of permanent impairment of any proportion of the impairment that is due to “previous injury ... or ... pre-existing condition or abnormality”, whether or not the pre-existing condition or abnormality is symptomatic at the time of injury. As noted in the preliminary reasons, the cases which have previously considered this question all related to physical injury. However, as was observed on behalf of the first defendant, s 323(1) does not distinguish between physical and psychiatric or psychological injuries. It applies to all injuries equally.
18.Guideline 11.10, with its focus on “pre-injury level of functioning”, does not allow for deduction from the assessment of impairment in cases where an asymptomatic pre-existing condition contributes to the degree of permanent impairment assessed. To the extent that Guideline 11.10 excludes consideration of any contribution to the permanent impairment that might be made by an asymptomatic pre-existing condition, it is inconsistent with s 323(1).”
The Appeal Panel noted the decisions in Camden Council v Harle [2022] NSWPICMP 339 and Secretary, Department of Communities and Justice v Lewandowski [2023] NSWPICMP 500 which held that the focus of the calculation should be on the pre-existing condition itself, and the evidence relating to its actual consequences.
The appellant submitted that Medical Assessor did not apply a sufficient path of reasoning to how his assessment of a one-third deduction was reached, and merely relied upon an insufficient assumption or hypothesis based on his experience as an assessor and clinical psychiatrist. The appellant noted that the Medical Assessor noted that she had “lifelong cognitive and interpersonal challenges and mood and anxiety problems” but failed to determine the specific consequences of these pre-existing conditions to her impairment.
The appellant submitted that the Medical Assessor erred in making a one-third deduction under s 323 when the history taken by him suggested the appellant’s pre-existing conditions caused her no impairment prior to the work injury. In the alternative, if it was found that a deduction under s 323 was warranted, the Medical Assessor made the wrong deduction by estimating a one third deduction when the correct deduction as per s 323(2) would be a one tenth deduction as he stated that it was not possible to to determine her precise pre-injury level of function.
The appellant did not argue that cl 11.10 of the Guidelines should have been applied by the Medical Assessor but argued that a one tenth deduction should have been applied pursuant to s 323(2) if it was found that a deduction was warranted.
The Appeal Panel considered that the MAC needed to be read as a whole. The Medical Assessor noted that the appellant was prescribed lisdexamfetamine 50 mg daily, which is a stimulant medication used to treat ADD. The prescription of this medication indicated that it was necessary to improve symptoms such hyperactivity, inattention, and impulsivity, and improve functioning in areas such as concetrration, persistence and pace and social functioning.
The Medical Assessor noted that ASD and ADD were developmental conditions arising in childhood and persisting into adulthood and they caused cognitive challenges, including executive dysfunction, difficulty focusing and persistence at tasks and interpersonal and relational problems.
The MAC contained a very detailed review of the reports of treating doctors and psychologists. Many references provided evidence of symptoms and problems functioning in areas such as concentration, persistence and pace, social functioning and social and recreational activities. In particular:
(a)    Dr Meulman in 2013 reported the appellant had a complex past with domestic violence and sexual abuse. He noted that she was abused by a friend of the family between 3 to 5, was not believed and it caused a lot of family problems and the alleged culprit has since died so she has not had validation. He noted that she turned to cannabis and alcohol but has stopped this now. He reported that her mother was a drug addict and her father an alcoholic. He noted that she had lost two brothers; one was epileptic and drowned, and the other was killed by a drunk driver both brothers died at the age of 22 and 15 mths apart. Dr Meulman noted that she had been raising the two boys because “her parents were so useless”. He noted that one brother remains but he is now a drinker including on waking. He noted that ex-partners have abused her, smashed her property, stabbed teddy bears into the wall. The next relationship was with someone she had broken up with then he stalked her and eventually she was kept hostage in her house and raped repeatedly over hours, and told not to scream or her son would be harmed. She did not pursue him through the courts over threats to her family. He noted she had been diagnosed with “PTSD”;
(b)    Ms Fendley in 2016 reported that the appellant had been seen by another therapist, Sue, from 2009 to 2014 originally for depression (2009) through victim services after a history of domestic violence including a fractured skull and wrists;
(c)    Dr Singh reported a a long history of problems managing her emotions with significant periods of impulsivity, self-loathing and anger outbursts. She noted that tha appellant developed bulimia and depression in her late teens;
(d)    Dr Khan reported a history of physical and sexual abuse including as young child, use of marijuana and alcohol in past and the death of her brothers the age 22 - one drowned and one was hit by car. He noted that the appellant had ongoing problems with anxiety and depression, and
(e)    Ms Gurrin noted concerns with executive functioning skills and her ability to inhibit impulsive responses, adjust to changes in routine or task demands, modulate emotions, monitor social behavior, initiate problem solving or activity, sustain working memory, plan and organise problem solving approaches, attend to task-oriented output, and organise environment and materials. She reported the profile suggested significant problem-solving rigidity combined with emotional dysregulation.

The Appeal Panel considered that these deficits identified by Ms Guerrin, particularly, has lower working memory and extremely below average executive functioning, were fixed and long-standing, relating to her ADD and autism spectrum disorder, and obviously predated the work injury and would affect her level of functioning in areas such as concentration, persistence and pace, social functioning and social and recreational activities. The Appeal Panel agreed with the Medical Assessor that long-standing complex post-traumatic stress disorder affected the impact of trauma on the individual throughout their life, even when the complex post-traumatic stress disorder is asymptomatic. This detrimental impact results in greater symptoms and impairment in subsequent psychological disorders.
Taking these matters into account, the Appel Panel considered that the Medical Assessor did provide adequate reasos to how his assessment of a one-third deduction was reached, and did not merely rely upon an assumption or hypothesis “based on his experience as an assessor and clinical psychiatrist”.
The Appeal Panel did not accept that the Medical Assessor made a demonstrable erroring or applied incorrect criteria in making a one-third deduction under s 323 of the 1998 Act. The appellant had been diagnosed with a number of pre-existing conditions, namely, ASD and ADD and complex post-traumatic stress disorder caused by childhood and adult trauma, causing emotional dysregulation, negative self-beliefs and interpersonal difficulties. She had a five year history bulimia. The history obtained by the Medical Assessor and the reports and notes in the medical evidence established, in our view, that her pre-existing conditions did cause her symptoms and some impairment prior to the work injury. The Appeal Panel determined that there was no demonstrable error or the application of incporect criteria in the Medical Assessor assessment of the deduction to be made under s 323 of the 1998 Act.
For these reasons, the Appeal Panel has determined that the MAC issued on
31 August 2023 should be confirmed.

[2024] NSWPICMP 17

11 January 2024