Inner West Council v BFZ

DETERMINATION OF APPEAL PANEL
CITATION:	Inner West Council v BFZ [2024] NSWPICMP 613
APPELLANT:	Inner West Council
RESPONDENT:	BFZ
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	29 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Respondent worker sustained a psychiatric injury, namely, an aggravation of a pre-existing schizoaffective disorder; Medical Assessor (MA) assessed 24% whole person impairment and deducted one-fourth for pre-existing condition; appellant employer appealed the deduction of one-fourth on the basis that MA failed to consider the contextual and historical evidence, give adequate reasons for the deduction of only one quarter and did not apply Clause 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 March 2021); Held – grounds of appeal not made out; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 1 July 2024 Inner West Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 3 June 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 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

[BFZ] suffered a psychological injury, being an aggravation of a pre-existing psychiatric disease, in the course of her employment with the appellant deemed to have occurred on 11 December 2019.
BFZ commenced proceedings in the Personal Injury Commission (Commission) claiming 20% 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 11 December 2019.
The matter was heard by Principal Member John Harris who issued a Certificate of Determination on 5 April 2024 in which he made the following findings and orders:
“Findings
1. The employment was the main contributing factor to the aggravation of the disease within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act).
2. The applicant’s injury was not wholly or predominantly caused by action with respect to discipline under s 11A of the 1987 Act.
Orders
3. The matter is remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment as a result of psychological injury deemed to have occurred on 11 December 2019. The material set out at paragraph 36 of these Reasons is to be provided to the Medical Assessor with a copy of these Reasons.
4. The matter may be relisted following the provision of a Medical Assessment Certificate or the determination of any appeal to a Medical Appeal Panel.”
The Medical Assessor examined [BFZ] on 21 May 2024. The Medical Assessor assessed 24% WPI and deducted one quarter for pre-existing condition which resulted in a total of 18% WPI as a result of the injury deemed to have occurred on 11 December 2019.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that [BFZ] 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 [BFZ] 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 include the following:
(a)    Ground 1 - The Medical Assessor failed to consider, adequately or at all, the prior history and therefore, made a deduction of one-quarter based on an inadequate and incomplete understanding and analysis of [BFZ]’s prior psychiatric history and severe past non-work trauma. The Medical Assessor proceeded to make a deduction without regard to the actual consequences of the pre-existing condition. The Medical Assessor failed to consider, adequately or at all, relevant contextual and historical evidence, clinical histories and other relevant factors (including how [BFZ]’s prior injuries and pre-existing conditions made her more susceptible to an aggravation of her disorders and how the pre-existing disorders more likely led to her suffering greater impairment). The Medical Assessor gave inadequate reasons for his deductible proportion determination and his conclusion of a one-quarter deduction was glaringly improbable in the circumstances and amounted to a demonstrable error warranting intervention (Ferguson v State of NSW [2017] NSWSC 887, [23] in reference to NSW Police Force v Daniel Wark [2012] NSWSCCMA 36).
(b)    Ground 2 - The Medical Assessor fell into error by failing to undertake the s 323 deduction with the approach required by cl 11.10 of the Guidelines.
(c)    This clause required the Medical Assessor to assess pre-existing impairment by applying the same method for calculating her current level of overall impairment, and to rate [BFZ]’s pre-injury level of functioning in each of the areas of function and then subtract the pre-existing WPI% from her current level. While the Medical Assessor engaged in some consideration regarding her pre-injury functioning, the exercise required by cl 11.10 was not undertaken by the Medical Assessor.
(d)    Ground 3 - The Medical Assessor fell into an error by failing to provide any explanation or reasons or any adequate explanation or reasons for his deduction under s 323 of one-quarter where the available evidence and alternate considerations obliged him to do so.
(e)    No reasons were provided by the Medical Assessor as to why he arrived at a deduction of one quarter as opposed to a deduction of one half or three quarters, for example. The available evidence referred to of [BFZ]’s extensive past psychiatric history and trauma, meant it was certainly open to the Medical Assessor to apply a deduction that was substantially greater than one-quarter. It follows that the Medical Assessor was obliged to give reasons for reaching his determination of a mere one quarter deduction when there were alternative conclusions.
(f)    The presence of contrasting assessments of the extent of the deductible proportion presented the Medical Assessor with an obligation to engage in further consideration of the alternative conclusions available to him and to provide some reasons for arriving at the deductible proportion determination of one quarter that he applied.
(g)    A deduction of one-quarter is an objectively insufficient deduction having regard to the long, distressing and profound history of mental illness and severe past traumatic incidents including at least three previous sexual assaults, domestic violence, revenge porn and stalking by a former partner or partners, parental abandonment, familial estrangements, recurring eating disorders and past psychotic episodes. [BFZ] was not exposed to any sexual assaults or acts of actual violence during her employment with Council (albeit there were two threatening episodes with aggressive motorists where she was at risk of physical violence – referred to at paragraphs 205-210 of the reasons of Principal Member Harris).
(h)    The Medical Assessor ought to have explained why he came to the view that the contribution of [BFZ]’s prior injuries and pre-existing conditions were “not greater than” the contribution from her work injury aggravation, when such a view seems inconsistent with the available evidence and some of his own observations. A deduction of more than 50% would have been consistent with a number of the conclusions and observations made by the Medical Assessor himself and more consistent with the available evidence.
(i)    Ground 4 - The Medical Assessor fell into error by failing to consider, adequately or at all, the possibility that the work injury consisted of a temporary aggravation of [BFZ]’s pre-existing, underlying condition which has ceased and not resulted in any permanent impairment (being a real possibility which Principal Member Harris identified at paragraphs 544 and 545 of his decision as a conclusion that he said was “open” to the Medical Assessor).
(j)    The Medical Assessor was obliged to at least consider this possibility and provide some reasons as to why he did not consider the work-related injury was a temporary aggravation that had ceased. By failing to consider this as being a real possibility and worthy of consideration, the Medical Assessor failed to provide adequate reasons and committed a demonstrable error.
(k)    Ground 5 - In the alternative, the Medical Assessor fell into error by making a deduction under s 323 which was inadequate and at odds with the available evidence.
(l)    The Medical Assessor ought to have discussed the study referred by Dr Lee which supported his conclusion that heritability of schizophrenia and schizoaffective disorders has been estimated at 80% as this was relevant to a determination of the extent to which the work-related aggravation had contributed to the current level of WPI and suggested that a deductible proportion of one quarter was inadequate.
(m)     The Medical Assessor should have referred to finding at paragraph 462 of the decision of the Principal Member that at all times during the period of employment the worker was prescribed various medications for her underlying psychological condition as this was relevant to a determination of the extent to which the work-related aggravation had contributed to the current level of WPI and suggested that a deductible proportion of one quarter was inadequate.
(n)    [BFZ] was likely to be more susceptible to the occurrence of an aggravation injury, and in turn, more likely to suffer greater impairment as a result of the aggravation, due to her pre-existing underlying condition and this was relevant to a determination of the extent to which the work-related aggravation had contributed to the current level of WPI and suggested that a deductible proportion of one quarter was inadequate.
(o)    A deduction of one-quarter was an objectively insufficient deduction having regard to the long, distressing and profound history of mental illness and severe past traumatic incidents, including at least three previous sexual assaults, domestic violence, revenge porn and stalking by a former partner or partners, parental abandonment, familial estrangements, recurring eating disorders and past psychotic episodes. [BFZ] was not exposed to any sexual assaults or acts of actual violence during her employment with the appellant (albeit there were two threatening episodes with aggressive motorists where she was at risk of physical violence).
(p)    On an assessment of all of the available evidence, a fair balancing of the respective contributions of the multiple prior injuries and serious pre-existing psychological conditions, as against the workplace events which caused the aggravation injury, would lead one to conclude that the prior injuries and pre-existing conditions contributed most, and more than half of [BFZ]’s current level of permanent psychiatric impairment.
(q)    The Medical Assessor fell into error by making a deduction under s 323 which was inadequate and which was at odds with the available evidence and this constituted a demonstrable error and/or the application of incorrect criteria relating to the assessment of the deductible proportion.
(r)    Ground 6 - The Medical Assessor fell into error when assessing permanent impairment under the Psychiatric Impairment Rating Scales (PIRS) category of ‘concentration, persistence and pace’ by failing to give sufficient consideration and weight to his clinical observations in preference to [BFZ]’s self-report.
(s)    The Medical Assessor’s clinical observations should be given significant weight over [BFZ]’s self-reported functioning in this category, and the Medical Assessor was entitled to give pre-eminence to his clinical observations.
(t)    The Medical Assessor fell into error by failing to engage with the Guidelines for assessing impairment under this category, and by failing to consider (adequately or at all) [BFZ]’s circumstances (whether self-reported or objectively observed during the assessment) when concluding a class 3 impairment was appropriate.
(u)    The MAC should be revoked and a new MAC issued by the Appeal Panel which applies a larger deductible proportion, of more than one half, which would be consistent with the evidence and more consistent with a correct application of the Guidelines.
The respondent ‘s submissions include the following:
(a)    Ground 1 - The appellant submits that the Medical Assessor did not expressly refer to or discuss a number of factual matters relevant to pre-existing impairment. However, the appellant acknowledges that there is no requirement on the Medical Assessor to discuss each piece of evidence in the MAC and lack of reference should not be taken as the Medical Assessor not having had regard to the material (Beatty v State of New South Wales NepeanBlue Mountains Local Health District [2021] NSWPICMP 92).
(b)    It is clear from the content of the reasons provided by the Medical Assessor that he did indeed have regard to all the evidence presented to him. He notes on page 9 of the MAC that he received 1,422 pages of documents, refers to significant parts of the evidence in detail in the MAC, and his final sentence on page 11 of the MAC when discussing the deductible proportion reads “ ... there is an abundance of evidence of (the worker's) psychological symptoms and impairment immediately before the subject injury ...”.
(c)    This ground of appeal should be rejected and dismissed.
(d)    Ground 2 - the Medical Assessor has clearly undertaken the exercise required by cl 11: 10 of the Guidelines with respect to assessment of the deductible proportion, and his path of reasoning as to what he decided about the deductible proportion and the reasons why are rational, clear and without error.
(e)    This ground of appeal should be rejected and dismissed.
(f)    Ground 3 - the Medical Assessor has properly assessed the deductible proportion, and his path of reasoning as to what he decided about the deductible proportion and the reasons why are rational, clear and without error.
(g)    The appellant's submission that the Medical Assessor ought have deducted more than 50% for impairment from pre-existing injury/condition completely ignores the Medical Assessor's findings of a deterioration/decline in impairment in the areas of selfcare/ personal hygiene, social and recreational activities, social functioning, concentration/persistence/pace, and employability following the work injury, and the comments by the Medical Assessor on pages 6 and 11 of the MAC including his description of the current impairment as "more severe than previously".
(h)    To assess a greater than 50% deductible proportion, the Medical Assessor would have had to assess a pre-existing injury/condition median class score for the six PIRS categories of class: 3 median with an aggregate score of 14 or more; refer to Table 11. 7 Conversion table. That would have been at odds with the Medical Assessor’s current PIRS category class rankings set out on pages 13 and 14 of the MAC (which are unchallenged by the appellant save for Table 11.5) and at odds with his findings that the [BFZ]'s functioning had "deteriorated'' and "declined'' since the work injury.
(i)    This ground of appeal should be rejected and dismissed.
(j)    Ground 4 -The Medical Assessor 's finding as to injury was clearly stated on page 5 of the MAC: "Following employment with the council, [BFZ] suffered an aggravation of pre-existing schizoaffective disorder (which can also be conceptualised as major depression with trauma feature or delusional disorder, and to a degree, it overlaps with a borderline PD) and this aggravation has not ceased."
(k)    This ground ought to be rejected. The very wording of the above finding on injury by the Medical Assessor makes it clear the Medical Assessor adjudicated on the issue of whether or not the aggravation had or had not ceased. He clearly found it "has not ceased." It is clear from the findings, referred to extensively in these submissions, that [BFZ]’s functioning had "deteriorated'' and "declined'' since the work injury and therefore the Medical Assessor 's reasons on this issue are clear and without error.
(l)    Ground 5 - the Medical Assessor has properly assessed the deductible proportion, and his path of reasoning as to what he decided about the deductible proportion and the reasons why are rational, clear and without error.
(m)     The appellant's submission that the Medical Assessor's finding as to the deductible proportion was erroneous and ought to have been more than half, completely ignores the Medical Assessor's findings of a deterioration/decline in impairment in the areas of self-care/personal hygiene, social and recreational activities, social functioning, concentration/persistence/pace, and employability following the work injury, as set out in the 'Reason for Decision' content of the PIRS Rating Form (MAC pages 13 and 14) and the comments by the Medical Assessor on pages 6 and 11 of the MAC.
(n)    To assess a greater than 50% deductible proportion, the Medical Assessor would have had to assess a pre-existing injury/condition median class score for the six PIRS categories of class 3 median with an aggregate score of 14 or more; (refer to Table 11.7 Conversion table), which would have been at odds with the Medical Assessor' s current PIRS category class rankings (which are unchallenged by the appellant save for Table 11.5) and at odds with the findings that [BFZ]’s functioning had "deteriorated'' and "declined'' since the work injury.
(o)    This ground of appeal should be rejected and dismissed.
(p)    Ground 6 - This ground of appeal challenges the class 3 ranking for the PIRS category 'Concentration, persistence and pace'.
(q)    The reasons provided by the Medical Assessor are adequate and indicative of a moderate impairment, which is the basis of a class 3 ranking according to Table 11.5 of the Guidelines. It is assumed the appellant considers a class 2 ranking of mild impairment ought to have been assessed. Such a result would not result in any change in the class 3 median score finding in this matter. This is a matter for judgment by the Medical Assessor, and no error is made out and this ground of appeal should be rejected and dismissed.
(r)    None of the six grounds relied upon by the appellant are made out.

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.

Ground 1 – failure to consider relevant contextual and historical factors when making the one-quarter deduction under s 323

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.

The Medical Assessment Certificate

In the MAC, under “History Relating to the Injury” the Medical Assessor noted that [BFZ] commenced work with the appellant on 3 April 2018 and after about six months was promoted to be a senior parking officer. She told the Medical Assessor that the bullying and harassment at work was mostly after her promotion. The Medical Assessor wrote:
“I noted to [BFZ], the similarity in many of her symptoms before and after she worked at the council and asked her whether there were any new symptoms that she had not had before the council. She reported that she has not had problems with her family relationships, or with going to family functions before, but now she avoids all family gatherings and she missed her uncle's funerals, three cousin's weddings, she then refused for her father to visit her. Even though they talk, she does not want him to visit as she gets agitated and thinks that constantly people are attacking her. She said she is withdrawn, and this is not something she had before. I noted to her that in 2017, she was described as being socially isolated. I also noted to her, strained family relationships were noted on 21 June 2018 by Dr Menendez, treating psychiatrist report and there were no mention of work stress then.”
Under “present symptoms” the Medical Assessor noted that [BFZ] was easily fatigued and described concentration and memory problems. He noted under “Details of any previous or subsequent accidents, injuries or conditions” that in terms of past history, [BFZ] clearly struggled to recall her history. The Medical Assessor wrote:
“I asked about Dr Thomas Hance, psychiatrist, but she had no recollection of the name, or the last psychiatrist she had before the council.
I tried to clarify the onset of [BFZ]'s paranoia and psychotic symptoms and noted that an entry indicated her symptoms began in 2014 but she does not believe this is correct. She confirmed she had paranoia before the council.
It was equally difficult to clarify [BFZ] mental state in 2017 or immediately before she commenced work with the council.
I confirmed there were sexual assaults, by three different people with another assault, possibly in early 2018.
[BFZ] said that she didn’t suffer ‘alcoholic blackout’ as recorded, but her drinks were spiked. Initially she said she was not a cannabis user, later she confirmed she was had cannabis at the time, and explained this does not mean she was a cannabis user (she may have meant cannabis dependency by ‘user’). She went on and said that despite her psychological symptoms she functioned very well and worked all through 2017.
I asked about increased alcohol intake and possible vomiting and haematemesis. She said that she was vomiting blood and had an endoscopy due to an antibiotic she was given causing the problem, and she was in hospital for three days and this was not related to alcohol intake.
I discussed with [BFZ], some of the issues that were regarding her work before the council, and she confirmed there was workplace bullying and harassment, leading to her being terminated, not long before the council. She reported in 2016 or 2017 she worked for a coffee roaster doing office and receptionist work. Initially she said she resigned because they lost a big client and didn’t need her. Later, she said she was having problems there and was being bullied. [BFZ] said she has subsequently had continues temporary jobs through the agency.
She said the last time she took any medication was Fluoxetine in 2014. I discussed with her when seen by Dr Menendez in June 2018, he had written she had been on Fluoxetine for three or four years by that time and started Zyban for about two months prior to that report. She said she could not be sure of her past treatment and I confirmed the contemporaneous evidence is more accurate than her recollection.
Regarding being terminated without pay due to workplace bullying and harassment as noted in November 2016, she said that this is the small family business that she discussed earlier. She said she was underqualified but instead of recognising she was underqualified, they made fun of her to get rid of her. She did not take out WorkCover.
I discussed with [BFZ], the psychological symptoms recorded during 2017 that she was socially isolated, having panic attacks, sleep problem, tiredness and motivation problem. She was binge eating and Topamax was prescribed for it. In November 2017, noted she lost 7kg in a month and she was down to 54 kg and stressors were noted then. She had no specific recollection of these symptoms.”
Under “Social activities/ADL” the Medical Assessor noted that “In the past she said she enjoyed going to the gym, doing disc jockeying and enjoys music and yoga but she does not do these anymore”.
Under “Findings on Physical Examination”, the Medical Assessor wrote:
“She engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. She was consistently restricted in her affect range and her affect was not blunted. She spoke spontaneously. She had a disorganized narrative and was not thought disordered.
Before I completed the assessment, I asked her for additional information that she wanted to add and she discussed she could not look after her dog and her mother took over, and she is withdrawn from the society and her workplace treatment dehumanized her.”
In the “Summary of injuries and diagnoses”, the Medical Assessor again noted that
[BFZ] had difficulty recalling her prior psychiatric history or her mental state in 2017, immediately before she started work for the appellant. However, the Medical Assessor did note that there was an abundance of information regarding her pre-existing mental health history including her symptoms and functioning in 2017. He made a diagnosis of an aggravation of pre-existing schizoaffective disorder (which can also be conceptualised as major depression with trauma features of delusional disorder, and to a degree, it overlaps with a borderline PD). The Medical Assessor found that that this aggravation has not ceased.
The Medical Assessor wrote:
“In terms of a s 323 assessment, Dr Lee’s assessment is confusing and varied greatly between his assessments, at one point deducting 10% and at another point deducting 90% for pre-existing condition. Dr Allan’s report is also seems [sic] unusual as he did not appear to have read the GP entries in 2017 in concluding that she had no assessable impairment before the subject injury, but then made a deduction for pre-existing impairment at 2%.
Overall, my view is that [BFZ] has a significant pre-existing condition, which was symptomatic and causing psychiatric impairment in various important domains of her life. According to the GP record there was a problem with [BFZ]’s self-care and binge eating and rapid weight loss. There was a problem with travel and being out, as she was socially isolated with difficulty leaving home at times. There was a problem with her relationship and with people and also strained “closer family relationships” and there were problems with employment with previous workplace bullying and not being able to maintain employments due to her psychological symptoms. However, I do not believe her pre-existing psychiatric disorder contribution is greater than her subject employment, and therefore I apply a one quarter deduction.”
The Medical Assessor under “Reasons for Assessment”, referred to the decision of Principal Member Harris in considerable detail. He noted that Member Harris referred to [BFZ]’s psychological symptoms as far as 1998, with previous psychological/psychiatric treatment, and issues related to her stepfather causing her to leave home at 18. The Medical Assessor wrote:
“Over the years, [BFZ] had weight issues, possible eating disorder, suicidal ideation and psychiatric admissions. Major depressive disorder, anxiety and depression with psychotic symptoms and there was evidence of various life trauma, including a domestic violence relationship. She resigned from work in 2014 and had difficulties going out (due to various reasons, including anxiety), her phone was hacked. Member Harris noted paranoid delusion before the subject injury. Dr Thomas Hance was the last psychiatrist before the subject injury and he diagnosed Schizophreniform disorder and eating disorder, and treated [BFZ] with antipsychotic medication Risperidone and antidepressant Fluvoxamine. In September 2017 [BFZ]’s psychologist noted a major assault on her causing psychological sequelae, including Acute stress disorder (a precursor to PTSD). Member Harris discussed non-work factors concurrent to her work injury. The treating team’s records and probative weight were discussed at length. Dr Martin Allan’s IME assessments with changed opinions over time were discussed. [BFZ] has had various diagnoses including Major depressive disorder, Acute stress disorder, PTSD, borderline personality disorder, eating disorder, psychosis, Schizophrenia or Schizophreniform disorder (which can progress to Schizophrenia if the conditions persist beyond a set time.). The study referred by Dr Lee that heritability of schizophrenia and schizoaffective disorders has been estimated at 80%... However, whilst that study supports Dr Lee’s conclusion on causation of the disease, it does not preclude and otherwise supports the finding that other factors (e.g. employment) can aggravate the underlying schizophrenic illness... Member Harris agree with Dr Lee’s opinion that the records do not suggest that [BFZ] was ‘fine’ at the commencement of her employment with the respondent. At all times during the period of employment [BFZ] was prescribed various medications for her underlying psychological condition. He discussed the respondent’s position is that [BFZ] has been mentally unwell for most of her life and was mentally unwell during the course of her employment with the respondent and continues to be mentally unwell and no doubt will be mentally unwell for the rest of her life – the submission ignores the fact that
[BFZ] was in full-time employment with the respondent and obtained a promotion after a period of approximately six months.”
The Medical Assessor noted that he had received 1,422 pages of documents and specifically referred to [BFZ]’s statements, Dr Allan’s reports, Dr Nepal’s report of
21 June 2021, Dr Elhassadi’s letter dated 3 September 2018, Dr Menendez’s report of
21 June 2018, the Mental Care Plan from Dr Elhassadi dated 13 June 2018 and the records in 2017 of the general practitioner (GP) and psychologist , Dr Lee’s reports dated
21 May 2021 and 22 November 2023 and the article “Genetic Relationships Between Schizophrenia, Bipolar Disorder and Schizoaffective Disorder” by Cardno and Owen,
24 February 2014.
In considering the deduction for the proportion of the impairment due to pre-existing condition, the Medical Assessor expressed the opinion that [BFZ] had a pre-existing condition, consistent with a Schizo-affective disorder. He considered that the pre-existing condition contributed to the current impairment because the current psychological injury was an aggravation of a pre-existing psychological condition, resulting in a greater overall impairment. He wrote:
“I note many of her previous psychological symptoms and types of impairment are similar to her current psychological impairment, but her employment has caused an aggravation and her impairment is more severe than previously.
I assess the deductible proportions as ¼ for a pre-existing injury as 1/10 would be at odds with the GP records and available evidence. Her past psychiatric history was not a minor one, and there is an abundance of evidence of psychological symptoms and impairment immediately before the subject injury and the contribution is more than a minor contribution to her current impairment.”

Ground 2 – failure to consider prior history when making the one-quarter deduction under s 323

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.
The appellant submits that the Medical Assessor made a demonstrable error by failing to consider, adequately or at all, the prior history and therefore, made a deduction of one-quarter based on an inadequate and incomplete understanding and analysis of [BFZ]’s prior psychiatric history and severe past non-work trauma. The appellant argues that the Medical Assessor proceeded to make a deduction without regard to the actual consequences of the pre-existing condition, and the Medical Assessor failed to consider, adequately or at all, relevant contextual and historical evidence, clinical histories and other relevant factors (including how [BFZ]’s prior injuries and pre-existing conditions made her more susceptible to an aggravation of her disorders and how the pre-existing disorders more likely led to her suffering greater impairment). The appellant argues that the Medical Assessor gave inadequate reasons for his deductible proportion determination and his conclusion of a one-quarter deduction was glaringly improbable in the circumstances and amounted to a demonstrable error.
The appellant accepts that there was no requirement on the Medical Assessor to discuss each and every piece of evidence in the MAC, and any lack of reference should not be taken as the Medical Assessor not having had regard to the material.
It is important to note that it is not the function of a Medical Assessor to refer to every piece of evidence before him. The function of a Medical Assessor is similar to that required of a Medical Appeal Panel, In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 the Court held at [48] that a Medical Assessor’s function is to set out the actual path of reasoning by which he formed his opinion based on his own medical experience and expertise. The Court said: “...The function ....is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question.”
In Western Sydney Local Health District v Chan [2015] NSWSC 1968, Justice Adams stated:
"As the volume of material in this case shows, to require an AMS to discuss all matters relevant to a claimant's history would often be an enormous task. He or she is required by s 325 to state ‘the facts upon which ...[the] certificate is based.’ He stated those facts were: ‘The clinical examination and perusal of documentation submitted by the parties….
I do not see that he needed to say anything more than he did on this point, namely that he had perused the material provided. It was not unreasonable, let alone “illogical and irrational and not based on findings or inferences of fact supported by logical grounds” for the Panel to conclude, in effect, that Dr Parmegiani was aware of the supplementary and reduced assessment of Dr Snowden but simply did not feel the need to mention or discuss it, a view, which, plainly enough, they shared.”
In the MAC, the Medical Assessor specifically commented on receiving 1,422 pages of documents and he specifically referred to [BFZ]’s statements, Dr Allan’s reports,
Dr Nepal’s report of 21 June 2021, Dr Elhassadi’s letter dated 3 September 2018,
Dr Menendez’s report of 21 June 2018, the Mental Care Plan from Dr Elhassadi dated
13 June 2018 and the records of the GP and psychologist in 2017, Dr Lee’s reports dated
21 May 2021 and 22 November 2023 and the article “Genetic Relationships Between Schizophrenia, Bipolar Disorder and Schizoaffective Disorder” by Cardno and Owen,
24 February 2014.
The Appeal Panel accepts that it is clear from the content of the reasons provided by the Medical Assessor that he did indeed have regard to all the evidence presented to him. He notes on page 9 of the MAC that he received 1,422 pages of documents, refers to significant parts of the evidence in detail in the MAC, and his final sentence on page 11 of the MAC when discussing the deductible proportion reads " ... there is an abundance of evidence of (the worker's) psychological symptoms and impairment immediately before the subject injury…”.
The Appeal Panel notes that the appellant submitted that the Medical Assessor did not adequately consider documents including parts of the clinical records of Westmead Hospital. The clinical records of Royal Prince Alfred Hospital, clinical records of Dr Choudhary, the report of Dr Menendez dated 21 June 2018, clinical records of Petersham Family Medical Centre, clinical records of Psych Central, clinical records of Primary Health Care Medical and Dental Centre clinical records of Bankstown Mental Health Services, report of Dr Leonard Lee dated 17 June 2021 and statements of various employees of the appellant.
The Medical Assessor did, in fact, refer to (even if he did not discuss) Dr Menendez’s report of 21 June 2018 and the records of the GP and psychologist in 2017. The GP records in 2017 are from Petersham Family Medical Centre and include reports of Ami Iketani, psychologist.
The Appeal Panel rejects the submission that the Medical Assessor had an inadequate and incomplete understanding and analysis of [BFZ]’s prior psychiatric history and severe past non-work trauma.
The Appeal Panel is satisfied that the Medical Assessor had regard to the material that the appellant submits he did not consider adequately or consider at all. The Appeal Panel rejects the submission that the Medical Assessor failed to consider, adequately or at all, relevant contextual and historical evidence, clinical histories and other relevant factors including how [BFZ]’s prior injuries and pre-existing conditions made her more susceptible to an aggravation of her disorders and how the pre-existing disorders more likely led to her suffering greater impairment. The Medical Assessor clearly described [BFZ]’s clinical history and took this into account in his assessment. The Appeal Panel notes that many of the records referred to by the appellant related to events that occurred many years ago. The Medical Assessor appropriately focused on the more recent history while still referring to
[BFZ]’s long-term issues, because it is necessary to look at the contribution of the pre-existing condition to the current assessed impairment and in part this is done by looking at [BFZ]’s impairment and functioning before her subject work injury. The Appeal Panel accepts that Ms Wash had a long prior psychiatric history and severe past non-work trauma but notes that despite these events she functioned reasonably well and demonstrated a degree of resilience until the work injury. The Appeal Panel agrees that [BFZ]’s prior injuries and pre-existing conditions made her more susceptible to an aggravation of her disorders but susceptibility is not a basis for a deductions. The Appeal Panel is satisfied that the Medical Assessor took into account how the pre-existing disorders resulted in her suffering a greater impairment when making the deduction under s 323.

The appellant argues that the Medical Assessor gave inadequate reasons for his deductible proportion determination and his conclusion of a one-quarter deduction was glaringly improbable in the circumstances and amounted to a demonstrable error.
The evidence reveals that [BFZ] had been doing sufficiently well, notwithstanding her pre-existing condition, to obtain employment with the appellant, attend in a presentable fashion and interact with the public and colleagues such that she was promoted about six months later, before her injury. It is apparent from the evidence that [BFZ] was prescribed various medications for her pre-existing condition during the period of employment with the appellant, but her GP increased the dosage of Pristiq on
20 November 2019 to 100mg per day from 50mg per day as prescribed on
19 September 2019 and 24 June 2019. While [BFZ] reported a series of failed relationships, including domestic violence and sexual traumas, eating disorder, history strain in family relationships and the death of her brother 12 years ago and recent death of her cat to Dr Menedez on 21 June 2018, she was still able to perform her work duties during this period and to such a standard that she was promoted a few months later in October 2018.
The Appeal Panel has reviewed the material identified by the appellant in its submissions and agrees with the deduction made by the Medical Assessor. The Appeal Panel agrees that a 1/10 deduction is at odds with the evidence, and that the deduction required is more than minor. However the stepwise decline in functioning after the subject work injury resulted in [BFZ] becoming substantially more impaired, and this has been sustained over the last four years. [BFZ] did have previous treatment but was able, for most of the time, to obtain employment, hold down jobs and keep relationships, and her level of functioning was substantially greater that it is now. The Appeal Panel considers that there was a significant difference in [BFZ]’s functioning pre and post injury.
The Appeal Panel rejects the submission that the Medical Assessor gave inadequate reasons for his deductible proportion determination and that his conclusion of a one-quarter deduction was glaringly improbable in the circumstances. The Appeal Panel having reviewed the evidence did not agree that a deduction of one quarter was “glaringly improbable in the circumstances”. This ground of appeal is not made out.

Ground 2 - Failure to make a deduction in accordance with Part 11.10 of the Guidelines

Clause 11.10 of the Guidelines provides:
“To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed, and the pre- -existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
The appellant submits that the Medical Assessor fell into error by failing to undertake the s 323 deduction with the approach required by cl 11.10 of the Guidelines.
The Appeal Panel accepts that the Medical Assessor did not make the s 323 deduction using the approach set out in cl 11.10 of the Guidelines. However, nothing within Marks v Secretary, Department of Communities and Justice (No.2) [2021] NSWSC615 (Marks) requires that, irrespective of whether the pre-existing condition is symptomatic or asymptomatic at the time that the worker suffers injury, that method, that is subtract the permanent impairment of a worker has at an earlier point in time from the permanent impairment the worker has at the time of assessment, be adopted. To do so would result in a conflict with what s 323(1) of the 1998 Act requires the Medical Assessor to do. Section 323(1) requires the Medical Assessor to establish what proportion the pre-existing condition makes to a worker's permanent impairment, as assessed at the time the assessment is undertaken. That is a different thing from using PIRS to measure what the permanent impairment of a worker was at an earlier point in time from the pre-existing condition for the purpose of establishing the deductible portion for s 323(1) (Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC334 at [54]; Fardell v Clinton Industries Pty Ltd [2022] NSWSC111 at [81]).
Because of the inconsistency between the cl 11.10 of the Guidelines and s 323 (1) of the 1998 Act, the Appeal Panel does not accept the submission of the appellant that paragraph 11.10 of the Guidelines requires a Medical Assessor, when assessing what proportion of a worker's impairment from a psychiatric injury is due to a pre-existing condition, to assess the degree of the worker's permanent impairment from the pre-existing condition as at the time of injury and then to deduct that from the permanent impairment the Medical Assessor assesses the worker has at the time of assessment.
However, when considering what proportion the pre-existing condition makes to a worker's permanent impairment, as assessed at the time the assessment is undertaken, the method outlined in cl 11.10 of the Guidelines may provide some guidance in determining the deduction to be made.
In the PIRS category 'Self-care and personal hygiene', the Medical Assessor stated the following reasons for his class 2 assessment:
“[BFZ]'s self-care has declined. She told me she showers every second day without prompting. She goes to the shops and buys essential items, generally with her mother, occasionally on her own and goes to the shops early in the morning as there are only a few people there. She relies on premade meals and makes toasts. She said she lost 7kg gradually in the past 4 years as she has no appetite and eats snacks and toast. She uses the microwave to warm up premade meals. Similar to other assessors, I concluded she is capable of independent living.”
On page 6 of the MAC the Medical Assessor stated relevant to this category when setting out reasons for a "significant" pre-existing condition finding of a one quarter deduction, "According to the GP record there was a problem with [BFZ]'s selfcare and binge eating and rapid weight loss." The Appeal Panel accepts [BFZ]’s submission that in the period of employment with the appellant commencing April 2018 [BFZ] was attending work full time and obtained a promotion in this work and so it must be inferred that her self-care and personal hygiene pre work injury was acceptable for the workplace. The Medical Assessor on page 5 with respect to the physical examination noted "[BFZ] appeared dishevelled ... ". The Medical Assessor found that whilst [BFZ] had previous problems with her self-care, it had "declined' since the work injury.
There is no challenge by the appellant to the assessed class 2 rating or to the Medical Assessor’s finding that [BFZ]’s self-care had “declined” since the work injury. With the finding of a decline from previous functioning in this category post work injury, the Appeal Panel assesses the impairment from pre-existing injury/condition rating as class 1 for “Self-care and personal hygiene”.
In the PIRS category “Social and recreational activities', the Medical Assessor stated the following reasons for his class 4 assessment:
“She used to go out with her family regularly. She relinquished her usual recreational activities and refused visitors, even from her father. Her main visitor is her mother who comes to care for her." On page 5 of the MAC the Medical Assessor also noted "In the past she said she enjoyed going to the gym, doing disc jockeying and enjoys, music and yoga but does not do these anymore.”
On page 6 of the MAC, the Medical Assessor stated when setting out reasons for a "significant" overall pre-existing condition finding of a one quarter deduction: “There is no question that [BFZ] had relinquished her previous recreation activity, but she was living by herself before injury as she does now. She finds it difficult to have visitors and overall, I rate a 4”. Dr Allen rated impairment in this category as class 3 and Dr Lee rated it as class 5 (report of 22 November 2023).
According to Table 11.2 a class 4 rating for social and recreational activities is a "Severe impairment". This class ranking by the Medical Assessor is not challenged on appeal by the appellant. The Appeal Panel considers that the evidence referred to by the Medical Assessor makes clear that there has been a deterioration in this category. The Appeal Panel rates the impairment from the pre-existing injury/condition for social and recreational activities as "Moderate" and so class 3.
In the PIRS category “Travel”, the Medical Assessor stated the following reasons for his class 2 assessment: "[BFZ] has anxiety and avoids going out. She drives on her own locally." The Medical Assessor on page 6 of the MAC stated relevant to this category: “There was a problem with travel and being out, as she was socially isolated with difficulty leaving home at times.”
According to Table 11.3 a class 2 rating for travel is a "Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour." The Appeal Panel considers that it probable that there had been no significant change in this class and rated the impairment from the pre-existing injury/condition for social and recreational activities as "Mild", that is, class 2.
In the PIRS category “Social Functioning”, the Medical Assessor stated the following reasons for his class 3 assessment: "She is anxious and socially avoidant, and ceased contact with all her friends. The relationship with her immediate family has deteriorated and remains intact. She does not have contact with extended relatives." The Medical Assessor on page 6 of the MAC stated relevant to this category:
"There was a problem with her relationship and with people and also strained "closer family relationships.
…In terms of social functioning, Dr Lee and Dr Allan both rated 4. In my assessment, I noted that she no longer had contact with any friends and she thinks she had friends before the subject injury, although not with great certainty. She mainly has contact with her family comprising of her mother, father and one sister. She doesn't have contact with other family members, such as cousins. She was single when the injury happened and overall, this is more consistent with a 3.”
According to Table 11.4 a class rating of 3 is a Moderate impairment ''previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children." A class 2 rating is a mild impairment "existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships."
There is no challenge by the appellant to the Medical Assessor's class 3 rating. With the finding by the Medical Assessor that [BFZ] ceased contact with all of her friends and a deterioration in the relationship with her immediate family from previous functioning (MAC pages 13 and 14), the Appeal Panel rates the impairment from the pre-existing injury/condition for social functioning as likely to be "mild " and so class 2.
In the PIRS category “Concentration. persistence and pace” the Medical Assessor stated the following reasons for his class 3 assessment (MAC page 14):
"[BFZ] described having poor concentration. She cannot read books or watch TV, or study. She knits 15 minutes, mostly to stop her from skin picking, and this requires little concentration and is not an intellectually demanding task. Her mental state examination is consistent with 3 and she is not thought disordered."
The Medical Assessor noted on page 2 of the MAC that in the period of employment with the Inner West Council commencing April 2018 [BFZ] was attending work full time and obtained a promotion in this work. The Appeal Panel considers that before the work injury happened, [BFZ]’s concentration, persistence and pace was no worse than a mild impairment and rates the impairment from the pre-existing injury/condition for concentration, persistence and pace as class 2.
In the PIRS category 'Employability', the Medical Assessor stated on page 14 of the MAC the following reasons for his class 5 assessment: "Her paranoia, anxiety and depressive symptoms and high interpersonal sensitivity render her incapable of work." There is no challenge by the appellant to this assessment.
The Medical Assessor on page 6 of the MAC had earlier stated relevant to this category when setting out reasons for the finding of a one quarter deduction: " ... there were problems with employment with previous workplace bullying and not being able to maintain employment due to her psychological symptoms." However, the Medical Assessor also noted in the MAC that [BFZ] was able to work full time for the appellant and obtain a promotion after her initial six months of that job.
The Appeal Panel considers that before the work injury happened, employability was no worse than a mild impairment, and rates the impairment from the pre-existing injury/condition for employability as class 2.
Therefore, in calculating the pre-injury level of function, the median class score is 2 and the aggregate score on the PIRS categories is 12. Table 11.7 conversion table in the Guidelines permits a WPI percentage range for median class 2 rated matters of between 4% WPI and 10% WPI depending on the aggregate score assessed. An aggregate score of 12 with a median class score of 2 in converted to 6% permanent impairment.
The Medical Assessor deducted 6% WPI for pre-existing injury/condition. The Appeal Panel has made an assessment of function before the subject work injury (as outlined in 11.10 of the Guidelines) and considers that the Medical Assessor’s deduction reflected the levels of function pre-injury and post injury.
The Appeal Panel makes this assessment using the methodology set out in cl 11.10 as a guide only to the level of functioning before the subject work injury. The Appeal Panel accepts that s 323(1) requires the Medical Assessor to establish what proportion the pre-existing condition makes to a worker's permanent impairment, as assessed at the time the assessment is undertaken, and that is a different assessment.
However, if the Appeal Panel is wrong in relation to cl 11.10 of the Guidelines and it should have been applied, the failure by the Medical Assessor to undertake the s 323 deduction as required by cl 11.10 of the Guidelines did not result in any material error.

Ground 3 –failure to provide any explanation or reasons or any adequate explanation or reasons for the deduction under s 323 of one-quarter

The appellant submits that the Medical Assessor fell into an error by failing to provide any explanation or reasons or any adequate explanation or reasons for his deduction under s 323 of one-quarter where the available evidence and alternate considerations obliged him to do so.
The Medical Assessor provided reasons for his deduction of one quarter as follows:
“In terms of a s 323 assessment, Dr Lee’s assessment is confusing and varied greatly between his assessments, at one point deducting 10% and at another point deducting 90% for pre-existing condition. Dr Allan’s report is also seems (sic) unusual as he did not appear to have read the GP entries in 2017 in concluding that she had no assessable impairment before the subject injury, but then made a deduction for pre-existing impairment at 2%.
Overall, my view is that [BFZ] has a significant pre-existing condition, which was symptomatic and causing psychiatric impairment in various important domains of her life. According to the GP record there was a problem with [BFZ]’s self-care and binge eating and rapid weight loss. There was a problem with travel and being out, as she was socially isolated with difficulty leaving home at times. There was a problem with her relationship and with people and also strained ‘closer family relationships’ and there were problems with employment with previous workplace bullying and not being able to maintain employments due to her psychological symptoms. However, I do not believe her pre-existing psychiatric disorder contribution is greater than her subject employment, and therefore I apply a one quarter deduction.”
The Medical Assessor then provided further reasons:
“I note many of her previous psychological symptoms and types of impairment are similar to her current psychological impairment, but her employment has caused an aggravation and her impairment is more severe than previously.
I assess the deductible proportions as ¼ for a pre-existing injury as 1/10 would be at odds with the GP records and available evidence. Her past psychiatric history was not a minor one, and there is an abundance of evidence of psychological symptoms and impairment immediately before the subject injury and the contribution is more than a minor contribution to her current impairment.”
A Medical Assessor is required in accordance with s 325(2) of the 1998 Act to set out his reasons for the assessment made and to set out the facts upon which the assessment is based. That obligation requires a Medical Assessor to reveal the reasons by which he arrived at the assessment in sufficient detail such that it can be ascertained whether there is any error in their reasoning (Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43 , 22 CLR 480 (Wingfoot) at [55]; applied by Campbell J in State of New South Wales (NSW Department of Education) v Kaur[2016] NSWSC 346 at [24]-[25](Kaur) andby Harrison AsJ in Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320. The reasons do not necessarily need to be comprehensible to a person with no medical expertise. In a circumstance where an assessment or conclusion of a Medical Assessor would be self-evident to a medical practitioner and there is no medical contest regarding it, a Medical Assessor can shortly state his or her reasons. If, however, a conclusion is medically contestable or controversial a more extensive explanation will be required (Campbelltown City Counsel v Vegan [2006] NSWCA 284 at [122], 67 NSWLR 372; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [34]).
The appellant argued that no reasons were provided as to why the Medical Assessor arrived at a deduction of one quarter as opposed to a deduction of one half or three quarters, for example. The Appeal Panel considers that the amount of the deduction is a matter for clinical judgment made after taking into account the examination findings and evidence in the matter including opinions expressed by other doctors. The Medical Assessor explained that the deductions made by Dr Lee and Dr Allen were confusing in many respects. The Appeal Panel noted that Dr Lee’s assessment of the deduction varied substantially from 10% to 100%. In those circumstances, the Appeal Panel considered that the Medical Assessor engaged sufficiently with the alternative considerations and provided adequate reasons for making a deduction of one quarter. The alternate conclusions, of course, included an assessment of a deduction below one quarter.
The appellant submits that available evidence of [BFZ]’s extensive past psychiatric history and trauma, meant it was open to the Medical Assessor to apply a deduction that was substantially greater than one-quarter and therefore the Medical Assessor was obliged to give reasons for reaching his determination of a mere one quarter deduction when there were alternative conclusions.

The MAC should be read as a whole. The Medical Assessor made findings of a deterioration/decline in impairment in the areas of selfcare/ personal hygiene, social and recreational activities, social functioning, concentration/persistence/pace, and employability following the work injury, and his comments on pages 6 and 11 of the MAC including his description of the current impairment as "more severe than previously". The Medical Assessor also made findings that the [BFZ]'s functioning had "deteriorated'' and "declined'' since the work injury.
The Appeal Panel consider that the Medical Assessor provided sufficient reasons for his deduction under s 323 of one quarter when the MAC is read as a whole.
The appellant argued that a deduction of one-quarter is an objectively insufficient deduction having regard to the long, distressing and profound history of mental illness and severe past traumatic incidents. This submission has been dealt with above.
The appellant submitted that the Medical Assessor ought to have explained why he came to the view that the contribution of [BFZ]’s prior injuries and pre-existing conditions were “not greater than” the contribution from her work injury aggravation when such a view seems inconsistent with the available evidence and some of his own observations. The appellant argued that a deduction of more than 50% would have been consistent with a number of the conclusions and observations made by the Medical Assessor himself and more consistent with the available evidence.
There is no specific requirement to that the Medical Assessor explain why he came to the view that the contribution of the worker’s prior injuries and pre-existing conditions were “not greater than” the contribution from her work injury aggravation. The reasons for making a deduction of one quarter are set out above in paragraphs 47 and 48. The Appeal Panel do not accept the appellant’s submission that the Medical Assessor’s view was inconsistent with the available evidence or that a deduction of more than 50% would have been consistent with a number of the conclusions and observations made by the Medical Assessor himself and more consistent with the available evidence. Indeed, the Appeal Panel are of the view that a larger deduction would have been inconsistent with the evidence and findings on examination by the Medical Assessor.
The Appeal Panel considers that when the MAC is read as a whole the Medical Assessor has adequately explained the basis for the deduction of one quarter, consistent with the extent of reasons the Medical Assessor was required to provide.
The amount of a s 323 deduction as noted above is a matter for clinical judgement. There was a vast range between the deductions made by Dr Lee in his various assessments and also between Dr Lee’s later deductions and Dr Allen’s deduction. The Medical Assessor identified inconsistencies in the deductions assessed by Dr Allen and Dr Lee. The functioning of [BFZ] pre-injury was addressed above but she was able to obtain employment, keep jobs, go out, socialise and have relationships and see her family. There were as observed some periods of fluctuation, chaos and symptoms and treatment was required but since 2019 there has been a stepwise change and her level of functioning substantially affected.
The Medical Assessor consequently did not err by making a deduction of one quarter. This ground of appeal has not been made out.

Ground 4 – Failure to consider if the work injury was a temporary aggravation

The appellant submitted that the Medical Assessor fell into error by failing to consider, adequately or at all, the possibility that the work injury consisted of a temporary aggravation of [BFZ]’s pre-existing, underlying condition which has ceased and not resulted in any permanent impairment (with reference to Principal Member Harris’ decision at paragraphs 544 and 545 of his decision).
The appellant argued that the Medical Assessor was obliged to at least consider this possibility and provide some reasons as to why he did not consider the work-related injury was a temporary aggravation that had ceased. By failing to consider and engage with this as being a real possibility and worthy of consideration, the appellant says the Medical Assessor failed to provide adequate reasons and committed a demonstrable error.
Principal Member Harris did not say that cessation of the work related aggravation was a real possibility but merely that there were “differing views as to whether there is anything other than a temporary aggravation of the underlying condition”. Principal Member Harris went on to say that: “As this conclusion is open, the matter has been referred to a Medical Assessor prior to determining the issue of weekly payments”. At paragraph 545, he wrote:
“It is a matter for the Medical Assessor to determine whether there is any impairment as a result of injury…Part of that process is to determine whether the aggravation of the psychological condition has ceased for the purposes of determining whether there is any permanent impairment as a result of injury.”
In the MAC under the “Summary of injuries and diagnoses”, the Medical Assessor again noted that [BFZ] had difficulty recalling her prior psychiatric history or her mental state in 2017, immediately before she started work for the appellant. However, the Medical Assessor did note that there was an abundance of information regarding her pre-existing mental health history including her symptoms and functioning in 2017. He made a diagnosis of an aggravation of pre-existing schizoaffective disorder (which can also be conceptualised as major depression with trauma features of delusional disorder, and to a degree, it overlaps with a borderline PD). The Medical Assessor then found that that this aggravation has not ceased.
The Medical Assessor referred to the decision of Principal Member Harris in some detail. In particular, he wrote:
“Member Harris note the differing views as to whether there is anything other than a temporary aggravation of the underlying condition. As this conclusion is open, it is a matter for the Medical Assessor to determine whether there is any impairment as a result of injury and part of that process is to determine whether the aggravation of the psychological condition has ceased for the purposes of determining whether there is any permanent impairment as a result of injury.”
The Appeal Panel is satisfied that the Medical Assessor was clearly aware that he had to consider whether “there is anything other than a temporary aggravation of the underlying condition”.
The appellant submits that the Medical Assessor should have referred to finding at paragraph 462 of the decision of the Principal Member that at all times during the period of employment [BFZ] was prescribed various medications for her underlying psychological condition as this was relevant to a determination of the extent to which the work-related aggravation had contributed to the current level of WPI. There is no basis for this submission as the Medical Assessor did in fact refer to paragraph 462 on page 8 of the MAC when discussing Principal Member Harris’ decision noting:
“Member Harris agree with Dr Lee’s opinion that the records do not suggest that [BFZ] was ‘fine’ at the commencement of her employment with the respondent. At all times during the period of employment [BFZ] was prescribed various medications for her underlying psychological condition.”
The Medical Assessor also referred to the various medications that [BFZ] was prescribed in the MAC under “Present Treatment” (page 2) and in the second paragraph on page 4 where he wrote:
“She said the last time she took any medication was Fluoxetine in 2014. I discussed with her when seen by Dr Menendez in June 2018, he had written she had been on Fluoxetine for three or four years by that time and started Zyban for about two months prior to that report. She said she could not be sure of her past treatment and I confirmed the contemporaneous evidence is more accurate than her recollection.”
The Medical Assessor was aware that there were differing views as to whether the aggravation of the pre-existing condition had ceased. The Medical Assessor referred to various reports of Dr Allan and Dr Lee. The Appeal Panel was satisfied that the Medical Assessor considered the question of whether there had been a temporary aggravation and found and clearly stated that the aggravation had not ceased. The reasoning for this is to be found in the various sections of the MAC, which should be read as a whole. It is clear from the findings of the Medical Assessor that [BFZ]’s functioning had “deteriorated” and “declined'” since the work injury. The Medical Assessor found a clear and significant stepwise change in function since subject work injury. This change in function had not resolved in the years since the injury.
This ground of appeal has not been made out.

Grounds 5 – s 323 deduction inadequate and at odds with the evidence

The appellant submitted that, in the alternative, the Medical Assessor fell into error by making a deduction under s 323 which was inadequate and which was at odds with the available evidence. The appellant referred to the study referred by Dr Lee which supported his conclusion that heritability of schizophrenia and schizoaffective disorders has been estimated at 80% as relevant to a determination of the extent to which the work-related aggravation had contributed to the current level of WPI and suggested that a deductible proportion of one quarter was inadequate.
This study, Genetic Relationships Between Schizophrenia, Bipolar Disorder and Schizoaffective Disorders by Alastair Cardo and Michael Owen (published in the Schizophrenia Bulletin in May 2014) addresses the causation of psychosis but not the cause of a serious aggravation of schizophrenia and schizoaffective disorders, which is the case in this matter. The Appeal Panel considered that the article did not assist in determining the extent to which the work-related aggravation had contributed to the current level of WPI.
The appellant submitted that the Medical Assessor should have referred to finding at paragraph 462 of the decision of the Principal Member that at all times during the period of employment the worker was prescribed various medications for her underlying psychological condition as this was relevant to a determination of the extent to which the work-related aggravation had contributed to the current level of WPI and suggested that a deductible proportion of one quarter was inadequate. This submission was addressed above at paragraph 55.
The appellant submitted that [BFZ] was likely to be more susceptible to the occurrence of an aggravation injury, and in turn, more likely to suffer greater impairment as a result of the aggravation, due to her pre-existing underlying condition and this was relevant to a determination of the extent to which the work-related aggravation had contributed to the current level of WPI and suggested that a deductible proportion of one quarter was inadequate. This submission was dealt with above under Ground 1.
The appellant submitted that a deduction of one-quarter was an objectively insufficient deduction having regard to the long, distressing and profound history of mental illness and severe past traumatic incidents, including at least three previous sexual assaults, domestic violence, revenge porn and stalking by a former partner or partners, parental abandonment, familial estrangements, recurring eating disorders and past psychotic episodes. The appellant noted that [BFZ] was not exposed to any sexual assaults or acts of actual violence during her employment with the appellant although there were two threatening episodes with aggressive motorists where she was at risk of physical violence.
The appellant submitted that on an assessment of all of the available evidence, a fair balancing of the respective contributions of the multiple prior injuries and serious pre-existing psychological conditions, as against the workplace events which caused the aggravation injury, would lead one to conclude that the prior injuries and pre-existing conditions contributed most, and more than half of [BFZ]’s current level of permanent psychiatric impairment.
The evidence reveals that [BFZ] had been doing sufficiently well, notwithstanding her pre-existing condition, to obtain employment with the appellant and then promotion about six months later, before her injury. It is apparent from the evidence that [BFZ] was prescribed various medications for her pre-existing condition during the period of employment with the appellant, but her GP, Dr Seliathurai, increased the dosage of Pristiq on 20 November 2019 to 100mg per day from 50mg per day as prescribed on
19 September 2019 and 24 June 2019.
While [BFZ] reported a series of failed relationships, including domestic violence and sexual traumas, eating disorder, history strain in family relationships and the death of her brother 12 years ago and recent death of her cat to Dr Menedez on 21 June 2018 she was still able to perform her work duties during this period and in such a manner that she was promoted a few months later in October 2018. She was able to maintain a 10-year relationship until 2006 (Clinical Notes of Royal Prince Alfred Hospital dated 13 January 2011(page 371 of the Reply). She maintained employment, she attended gym and yoga and used to enjoy music and disc jockeying (MAC page 5). Mr Richard Erber, rehabilitation counsellor and vocational assessor, in an Earning Capacity and Assessment Report dated 8 May 2020 provided details of [BFZ]’s employment history:
“She attended [redacted] High School and completed Year 10 in 1996. She commenced working as a receptionist/general clerk for [redacted]
where she worked from 1996 to 1998. She then worked as a customer service officer/call centre contact worker with [redacted] from 1998 to 2001. She then worked as a customer service officer/sales support officer for [redacted] from 2001 to 2003. From November 2007 to March 2009, [BFZ] worked as a customer service/complaints handling officer with [redacted]. From 2009 to 2011, she worked as a customer service representative with [redacted]. From July 2012 to December 2014, [BFZ] worked at [redacted] as a customer service officer. She then gained a job as a sales support officer and was promoted to an office manager whilst working at [redacted]. She worked for this employer from December 2014 to March 2017. From April 2017 to March 2018 she worked as an accounts assistant with [redacted]. She then obtained her pre-injury role as a parking officer with Inner West Council in April 2018. She was promoted to a senior parking officer in November 2018.”
The fact that [BFZ] was obviously able to cope with her employment until the occurrence of the circumstances that led to the aggravation of her pre-existing condition is, as indicated above, a factor relevant to weigh when assessing the proportion of her permanent impairment that is due to her pre-existing condition. In assessing impairment, it is important to focus on functioning rather than particular events in [BFZ]’s history. Other changes in functioning, apart from employability, are clearly described above under Ground 2 when the Appeal Panel considered what the pre-injury level of functioning was in the various PIRS categories. This exercise demonstrated that a deduction of one quarter for pre-existing condition and injuries is appropriate and it is reasonable to conclude that the prior injuries and pre-existing conditions contribute one quarter to the current level of psychiatric impairment assessed. The Appeal Panel does not accept that the prior injuries and pre-existing condition contribute “most, and more than half of [BFZ]’s current level of impairment”.
The appellant submits that the Medical Assessor fell into error by making a deduction under s 323 which was inadequate and at odds with the available evidence and this constituted a demonstrable error and/or the application of incorrect criteria relating to the assessment of the deductible proportion. The Appeal Panel rejects this submission for the reasons set out above. This ground of appeal has not been made out.

Ground 6 – Concentration, Persistence and Pace

The appellant submitted that the Medical Assessor fell into error when assessing permanent impairment under the PIRS category of ‘concentration, persistence and pace’ by failing to give sufficient consideration and weight to his clinical observations in preference to the worker’s self-report.
The relevant descriptors in this category are at Table 11.5 of the Guides:
“Class 1
No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.
Class 2
Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3
Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
In Table 11-8 the Medical Assessor assessed class 3 for concentration, persistence and pace. He provided the following reasons:
“[BFZ] described having poor concentration.
She cannot read books or watch TV, or study. She knits 15 minutes, mostly to stop her from skin picking, and this requires little concentration and is not an intellectually demanding task.
Her mental state examination is consistent with 3 and she is not thought disordered.”
In the MAC, under “present symptoms” the Medical Assessor noted that [BFZ] was easily fatigued and described concentration and memory problems. On examination he noted:
“She engaged well with the assessment process. There was no psychomotor slowing or abnormal movements. She was consistently restricted in her affect range and her affect was not blunted. She spoke spontaneously. She had a disorganized narrative and was not thought disordered.
Before I completed the assessment, I asked her for additional information that she wanted to add and she discussed she could not look after her dog and her mother took over, and she is withdrawn from the society and her workplace treatment dehumanized her.”
In her statement dated 20 October 2023, [BFZ] wrote:
“46. I sometimes will watch a show on TV. I only have to concentrate for short periods of time due to the ad breaks. I tend to zone in and zone out whilst watching . I don't have the concentration to watch a series or a movie as I can't follow what is
happening.
47. I find sports are good to watch because I don't need to concentrate it's just something to look at.
48. I am unable to read more than a page of writing otherwise I have to re-read and reread and then I get tired and fall asleep. I like magazines such as fashion magazines as I can just look at the pictures.
…
51. I rarely go on the computer unless I need to for checking emails and I don't use social media. My mum is paying all my bills now.”
Dr Lee, in his report dated 17 June 2021, noted that [BFZ] had no daily routine and had to keep rewinding movies because she cannot concentrate. Dr Lee assessed class 2 for concentration, persistence and pace. He provided the following reasons: “Able to concentrate for 30 minutes during the assessment.” However, in his report dated 22 November 2023,
Dr Lee assessed class 3 for concentration, persistence and pace. He provided the following reasons: “She reports inability to concentrate but is able to live independently”.
Dr Allan in his report dated 2 March 2021 assessed class 3 for concentration, persistence and pace. He provided the following reasons:
“She is moderately impaired. She cannot concentrate to any extent. She loses her
focus. She is amotivated. She does not tend to any complex or demanding tasks.”

The assessment of concentration, persistence and pace involves clinical judgment. The Medical Assessor described all that [BFZ] self-reported and then his clinical observations. It is clear that the Medical Assessor used both self-report and clinical observations to make his assessment in this category. In his reasons in Table 11.8, the Medical Assessor took into account concentration, an inability to read, watch TV or study. He mentioned being able to knit for 15 minutes (which required little concentration and was not intellectually demanding). In the MAC he referred to a disorganised narrative.
On balance the Appeal Panel is satisfied that the descriptors provided in Table 11.8 for concentration, persistence and pace by the Medical Assessor are class 3 descriptors. Therefore, the Appeal Panel is satisfied that the reasoning process for assessing [BFZ] as class 3 in this category was able to be made out. The Appeal Panel agrees that [BFZ] should be rated as class 2 for concentration, persistence and pace.
The Appeal Panel is satisfied that there was no demonstrable error in the MAC in relation to the ratings in the PIRS scale of concentration, persistence and pace and that the assessment in this class was not made on the basis of incorrect criteria.
The Appeal Panel is satisfied that the grounds of the appeal have not been made out.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 June 2024 should be confirmed.

[2024] NSWPICMP 613

29 August 2024