Krasny v Liverpool Plains Shire Council

DETERMINATION OF APPEAL PANEL
CITATION:	Krasny v Liverpool Plains Shire Council [2024] NSWPICMP 34
APPELLANT:	Marcela Krasny
RESPONDENT:	Liverpool Plains Shire Council
APPELLANT:	Liverpool Plains Shire Council
RESPONDENT:	Marcela Krasny
APPEAL PANEL
SENIOR MEMBER:	Kerry Haddock
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	24 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; worker sustained psychological injury; Medical Assessor (MA) assessed 7% whole person impairment (WPI) and issued Medical Assessment Certificate (MAC) on 2 August 2023; the worker lodged an appeal on the grounds that the assessment was made on the basis of incorrect criteria and the MAC contained a demonstrable error; the employer lodged an appeal on the grounds that the assessment was made on the basis of incorrect criteria and the MAC contained a demonstrable error; the Appeal Panel considered that the MA had erred in assessment of Psychiatric Impairment Rating Scale category “social and recreational activities” and the inclusion of matters in “social functioning”; therefore, error had been established; it was considered necessary for the worker to undergo a re-examination by a MA of the Appeal Panel; MA of the Appeal Panel found that the MA had erred in assessment of “social and recreational activities”; there was no deduction pursuant to section 323; the MA of the Appeal Panel assessed 7% WPI, which was the same as the assessment of the Medical Assessor, notwithstanding that the employer’s appeal regarding “social and recreational activities” was upheld; Held – MAC dated 3 August 2023 confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

The appellant in M1-W3711/23 and the respondent in M2-W3711/23, Marcela Krasny (Ms Krasny) sustained a psychological injury on 22 November 2017 arising out of or in the course of her employment with the respondent in M1-W3711/23 and the appellant in
M2-W3711/23, Liverpool Plains Shire Council (the Council). To avoid confusion, Ms Krasny is referred to in these reasons as the worker/Ms Krasny and the Council as the employer/Council.
The worker claimed permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of psychiatric/psychological injury.
On 17 July 2023, the worker was examined by Medical Assessor (MA) Surabhi Verma.
Dr Verma issued a Medical Assessment Certificate (MAC) on 2 August 2023. She assessed the worker with 7% whole person impairment (WPI).
On 29 August 2023, Ms Krasny lodged an Application to Appeal Against a Decision of Medical Assessor, on the following grounds:
(a) the assessment was made on the basis of incorrect criteria (s 327(3)(c) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)), and
(b) the MAC contained a demonstrable error (s 327(3)(d) of the 1998 Act).
The Personal Injury Commission (Commission) registered the worker’s appeal as
M1-W3711/23.
On 29 August 2023, the Council lodged an Application to Appeal Against a Decision of Medical Assessor, on the following grounds:
(a) the assessment was made on the basis of incorrect criteria (s 327(3)(c) of the 1998 Act), and
(b) the MAC contained a demonstrable error (s 327(3)(d) of the 1998 Act).
The Commission registered the Council’s appeal as M2-W3711/23.
On 19 September 2023, the Council lodged a Notice of Opposition to Appeal Against a Decision of Medical Assessor.
On 21 September 2023, the worker lodged a Notice of Opposition to Appeal Against a Decision of Medical Assessor.
The Delegate of the President determined on 4 October 2023 that, in M1-W3711/23, a ground of appeal pursuant to s 327(3)(c) of the 1998 Act was capable of being made out. She was satisfied the argument that the MA erred when carrying out the assessment of “social functioning” under the psychiatric impairment rating scale (PIRS) was capable of being made out.
The Delegate also determined on 4 October 2023 that, in M2-W3711/23, a ground of appeal pursuant to s 327(3)(d) of the 1998 Act was capable of being made out. She was satisfied the argument that the MA erred when assessing whether there was a deduction under s 323 of the 1998 Act was capable of being made out.
The Delegate therefore referred both appeals to a Medical Appeal Panel, to be dealt with together.
The Appeal Panel (Panel) has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeals are 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. A 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).

PRELIMINARY REVIEW

The Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
The worker requested in her appeal that she be re-examined by a MA who is a member of the Panel. The employer submitted in its appeal that the MA’s errors could be rectified by re-examination.
As a result of its preliminary review, the Panel found error, and determined that it was necessary for the worker to undergo a further medical examination.
Because it found error, the Panel’s power to require a re-examination was enlivened. Absent a finding of error, the Panel has no power to require a re-examination. The Panel cannot examine a worker to determine whether a ground of appeal has been made out: New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales.[1]
[1] [2013] NSWSC 1792.

Fresh evidence

Neither party sought to rely on fresh evidence.

EVIDENCE

Documentary evidence

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

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Panel.

Worker’s appeal

The worker’s submissions in support of her appeal included the following:
(a)    the PIRS criteria are to be reviewed and approached as a guide and on a “best fit” basis.[2]
[2] Beatty v State of New South Wales – Nepean Blue Mountains Local Health District – [2021] NSWPICMP 93 (Beatty).
(b)    The MA needed to enquire into the specific details, within the evidence, of each impairment or deficit. The MA did not consider the totality of the evidence and did not apply the rule of “best fit”.
(c)    The MA failed to consider and turn attention to the diagnostic criteria in the Guidelines and AMA 5, being:
(i) 11.8 of the Guidelines – Effects of Treatment, and
(ii) 14.2a of AMA 5 – Effects of Medication.
(d)    The worker had been suffering from a long-standing psychiatric condition for many years. According to the MA, she had had mild improvement and was diagnosed with major depressive disorder. She had not worked in over four years. She was prescribed Pregabalin 100mg and Dosulepin 75mg and was on anti-hypertensives, having previously tried venlafaxine and nortriptyline with less benefit, according to independent medical assessor Dr Nicholas Argyle. The MA also noted the worker was undergoing Cognitive Behaviour Therapy at the time of the examination but did not comment on the effect of this treatment.
(e)    Dr Yajuvendra Bisht had recommended that the worker continue monthly appointments with a psychiatrist, fortnightly appointments with a psychologist and continue taking medication for one to two years, with a view to consolidating her improvement, rather than bringing further improvement.
(f)    The MA had noted medication use but had not considered or commented on the specific medication, or effects or longevity of the treatment, noting the condition had been present for more than two years. This was a demonstrable error; and the MA had used the incorrect criteria.
(g)    The MA had allocated PIRS Class 2 for “self-care and personal hygiene”. It was open for the MA to apply PIRS Class 3 for Table 11.1 of the Guidelines, based on the evidence available, but also on the evidence not investigated by the MA.
(h)    The MA had allocated PIRS Class 1 for “travel”. It was evident there was a deficit and impairment in the worker’s ability to travel to familiar and different places, which was not a normal variation in the general population, as indicated in Class 1 for Table 11.3. The MA had preferred the assessment of independent medical examiner (IME) Dr Bisht, without explanation.
(i)    It was open for the MA to assess Class 2, rather than Class 1, for Table 11.3.
(j)    The MA had allocated Class 1 for “social functioning”. The evidence elicited was significantly contrary to the evidence tendered, in particular that of IMEs Drs Argyle and Bisht. Their observations and scores were contrary to the MAC.
(k)    There was no rationale for the score of Class 1 in Table 11.4 when Table 11.2 was scored as Class 3. The MA’s clinical findings were inconsistent, lacking rationale, and were a clear example of a demonstrable error. The MA should have applied Class 2.
(l)    The MA had allocated Class 2 for “concentration, persistence and pace”. The MA had demonstrably erred and utilised incorrect criteria in the descriptor at Table 11.5.
(m)     The MA had noted no evidence of the worker having the ability to undertake, or undertaking complex tasks, instructions, or activities. The MA failed to consider and explore significant criteria.
(n)    In consideration of the evidence, error by the MA in his [sic] descriptor, and lack of clinical examination of clear impairment and deficits, the MA should have concluded that the worker’s impairment best fitted Class 3 for Table 11.5.
(o)    The MA:
(i) failed to undertake a proper clinical examination of the symptoms and deficits noted in the examination and evidence;
(ii) failed to consider the severity and duration of the injury and symptoms, use of medication and [its] effects;
(iii) failed to consider relevant material/information pertinent to the assessment of PIRS, such that the MAC contained a demonstrable error, and
(iv) committed demonstrable error in descriptors and application of PIRS scores, with no rationale or clarity to the descriptors provided.
The employer’s submissions in opposition to the worker’s appeal included the following:
(a)    The MAC is to be read as a whole to see if the result reached has been adequately explained. It is not to be read “with an eye keenly attuned to the perception of error”.[3]
[3] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259.
(b)    On review of the comments made by Dr Verma in the MAC, when reading the MAC as a whole, Dr Verma’s conclusions on diagnosis and impairment, taking into account the worker’s medication and treatment, have been adequately explained, or in the alternative could be properly inferred. (This and the following submissions at paragraphs (d); (n); (o); (p); and (q) were repeated in support of each submission as to the various classes.)
(c)     Dr Verma considered and commented on the specific medication, effects of or longevity of the treatment, as he [sic] acknowledged the worker’s ongoing psychiatric and psychological treatment, which had resulted in “mild improvement”, which is in accordance with Part 11.8 of the Guidelines. Dr Verma also acknowledged the prescriptions the worker had been given and described her use of medication to address her insomnia, which is in accordance with Part 14.2 of AMA 5.
(d)    Although there is no requirement for the MA to follow the opinion of any qualified doctor[4], the medications detailed by Dr Verma were unchanged from those reported by Dr Argyle, according to the worker’s submissions, other than the medications previously trialled by the worker, which were no longer relevant to her current functioning and assessment of permanent impairment.
[4] Merza v Registrar of the Workers Compensation Commission & Anor [2006] NSWSC 939 (Merza).
(e)    Notwithstanding the principles in Merza, as regards Dr Bisht’s commentary on 9 January 2023 as to the worker’s requirement for ongoing treatment, the context of the response was that the examination took place prior to the s 66 claim being made; it was conceded that the assessment of permanent impairment was the focus; in the context of the examination taking place more than two years after the previous examination, and the worker’s entitlements continuing until the 260 week date, this was not the only line of enquiry presented to Dr Bisht, but included also the history of the injury; diagnosis; causation; treatment; and capacity for work.
(f)    Dr Bisht’s commentary should be viewed in this context, and the fact that he outlined the worker’s likely ongoing requirement for treatment did not implicate Dr Verma in doing so for an assessment of permanent impairment, outside of considering the stabilisation of the worker’s condition and the likelihood of treatment being changed and/or symptoms improving with treatment under Part 11.8 of the Guidelines.
(g)    Dr Verma’s conclusions on diagnosis and impairment were in accordance with the Guidelines and AMA 5; and the MA did not fall into error in considering the worker’s treatment or medication.
(h)    As regards “self-care and personal hygiene”, a Class 3 impairment, as asserted by the worker, suggested the worker would be unable to live independently without regular support, require prompting to shower daily and wear clean clothes, did not prepare her own meals, and should be visited by a family member or community nurse two to three times per week.
(i)    Dr Verma recorded that the worker reported she continued to perform domestic duties such as cooking, household chores, and grocery shopping. She did not show evidence of grossly impaired self-care. She was casually dressed and groomed.
(j)    It was accepted that the worker had relocated to Canberra to be closer to her sons. There was no indication this was due to her being incapable of self-care and personal hygiene, and required familial support, such that this was the catalyst for the move. Dr Verma had indicated housing expenses were shared but did not otherwise indicate the worker’s son provided any other support, other than could be reasonably expected.
(k)    When the MAC was read as a whole, Dr Verma’s assessment of impairment had been adequately explained, or could be adequately inferred. It was made in accordance with the Guidelines.
(l)    The examples provided in the Guidelines had been accepted as providing assistance or guidance and were not prescriptive.[5]
[5] Jenkins v Ambulance Service of New South Wales [2015] NSWSC 978 (Jenkins).
(m)     There was no requirement for the MA to follow the opinion of any of the qualified doctors or to discuss each and every piece of evidence. Any lack of reference should not be taken as the MA not having read or had regard to this evidence.[6]
[6] Beatty.
(n)    Dr Verma was entitled to give pre-eminence to his [sic] clinical observations when rating the worker’s impairment and their pre-eminence could not be underrated.[7]
[7] Ferguson v State of New South Wales & Ors [2017] NSWSC 887, [23] (Ferguson) (in reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36).
(o)    The decision in Ferguson was considered in Parker v Select Civil Pty Ltd[8] in which her Honour Harrison ASJ accepted that a difference in opinion as to whether the plaintiff ought to be categorised in Class 2 or Class 3 by the Panel was insufficient to amount to demonstrable error for the purposes of s 327(3) of the 1998 Act.
[8] [2018] NSWSC 140.
(p)    It had not been demonstrated that Dr Verma was unaware of significant factual matters. There was no evidence of a clear misunderstanding. The reasoning process was acceptable, and the categorisation was not only probable, but appropriate, in the face of his [sic] findings of the worker’s presentation on the day of the examination, in accordance with the Guidelines.
(q)    The appeal grounds constituted a mere difference of opinion, and demonstrable error had not been established.
(r)    As regards “travel”, when reading the MAC as a whole, Dr Verma’s assessment had been adequately explained, or could be adequately inferred.
(s)    The reasonable inference to be drawn from the history taken by Dr Verma was that the worker was able to attend shopping centres and other locations, such as her family member’s residence for Christmas.
(t)    Whether or not the worker became anxious at these locations was immaterial in assessing impairment under the category of “travel”, and was appropriately omitted by Dr Verma in assessing impairment, to ensure correct categorisation of conduct.[9]
(u)    It was not necessarily an indication of impairment that an individual should concentrate and take care while operating a motor vehicle, particularly in a new location; may prefer to walk on occasion; or that a learner driver would take an opportunity to fulfil their requirements, which must be done in the presence of a license-holding adult (such as the worker).
(v)    On this history, it was appropriate for Dr Verma to make an assessment of Class 1 impairment.
(w)   As regards “social functioning”, it was acknowledged that there may “as a matter of the English language, be some overlap between some of the categories of functional impairment”. In assessing impairment Dr Verma was obliged to assign the conduct to one or other of the scales, to avoid “taking into account an irrelevant consideration of the context of assigning a class to each of the distinct scales”.[10]
(x)    The assessment of impairment under the category of “social and recreational activities” is not required to align with the class of impairment selected for “social functioning”. To do so would have been inappropriate and involved taking into account irrelevant considerations.
(y)    As regards “concentration, persistence and pace”, Dr Verma’s assessment of a Class 2 impairment was appropriate – Wright v Ngroo Education Incorporated.[11]
(z)    The assessment of Dr Verma was available in the circumstances and was adequately explained or in the alternative could be reasonably inferred. Dr Verma’s observations during the clinical examination and subsequent assessment should be given considerable weight.
(aa)    The worker’s submissions have no valid grounds of appeal pursuant to ss 327(3) (c) or (d) of the 1998 Act and the appeal ought to be dismissed and the MAC confirmed.

Employer’s appeal
[9] Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas).
[10] Ballas.
[11] [2022] NSWPICMP 106.

The employer’s submissions in support of its appeal included the following:
(a)     As regards social and recreational activities, the MA erred in assessing the worker as having a Class 3 impairment.
(b)     Grocery shopping is neither a recreational nor social activity, merely a chore that may be more appropriately encompassed by “self-care and personal hygiene”.
(c)     In accordance with the Guidelines, an appropriate assessment of impairment under this category would have included taking into account the worker’s cultural background. This would have allowed Dr Verma to appreciate the worker’s social activities may not be typical of an individual who grew up in Australia, spoke English as a first language, and/or had friends who lived close by.
(d)     Many of the worker’s social relationships were maintained virtually or by phone. The reasonable inference from the evidence is that she had maintained her social connections and engagement in these activities, but they were not represented in the traditional (in-person) sense. (Emphasis in original.)
(e)     The worker had maintained the social connections she had in Australia, but the level of interaction may not have been as frequent.
(f)      The worker was able to visit her son in Canberra independently and without a support person, which aligned with a Class 2 impairment.
(g)     The activities consistently described by the worker as her recreational activities of choice were activities with which she continued to engage.
(h)     Although the worker denied to Dr Verma that her back injury caused ongoing pain or limitations in functioning, and said it was manageable, the medical evidence accepted that back pain was a chronic and ongoing condition.
(i)      It would have been appropriate for Dr Verma to consider the implications of the worker’s chronic back pain and pattern of ceasing physical hobbies as a result of this condition.
(j)      The activities described by the worker were consistent with a Class 2 level. The examples provided in Table 11.1 to 11.6 of the Guidelines have been accepted as examples only, to assist the MA. However, the examples, in view of the evidence are “sufficient to support a conclusion as to the level of disability” suffered by the worker.[12]
[12] Jenkins.
(k)     While the MA is entitled to give pre-eminence to their clinical observation when assessing impairment, the evidence established a pattern of involvement with social and recreational activities. The material was readily available to Dr Verma, so it appears there was a clear misunderstanding and/or unawareness of significant factual matters, to the extent that there is more than mere disagreement about the level of impairment[13] and the assessment of impairment warrants intervention.[14]
[13] Jenkins.
[14] Ferguson.
(l)      Dr Verma applied incorrect criteria and made a demonstrable error in assessing this category.
(m)    As regards “employability”, Dr Verma assessed the worker as having a Class 5 impairment. Dr Verma said the worker had “not been working owing to the symptoms that she has been having.” This did not provide any insight or support for a finding of a Class 5 impairment. “Has not been working” and “cannot work at all” (the Guidelines) are not analogous.
(n)     It was acknowledged that Dr Verma had said:
“I have marked [employability] as five as she doesn’t seem to be able to engage in employment because of her ongoing symptoms… I believe that because of an impairment in her attention and concentration, she would be unable to do the duties inherent to any job”.
However, Dr Verma only assessed the worker as having a Class 2 impairment in “concentration, persistence and pace”. This is considered a mild impairment. (Emphasis in original.)
(o)     The reasoning process used by Dr Verma is unsupportable and has not been made out, warranting intervention.[15]
[15] Ferguson.
(p)     The worker engaged in volunteer work; did an online skills assessment; reported interest in applying for an administrative role; and was in receipt of Jobseeker payments. These activities were suggestive of an ability and motivation to work, and it would have been appropriate for Dr Verma to take them into account when assessing impairment.
(q)     As regards the application of s 323 of the 1998 Act/co-morbid condition, whether or not the worker experienced “complete amelioration of her symptoms” is immaterial when deciding whether to make a deduction under s 323.
(r)      The accepted test is that if there was a previous injury or pre-existing condition or abnormality, even where it was asymptomatic or in remission, if it made the worker vulnerable or contributed to the impairment, a deduction is mandatory.[16]
(s)     It was held in Marks v Secretary, Department of Communities and Justice (No 2)[17] that to the extent that clause 11.10 of the Guidelines is inconsistent with s 323 of the 1998 Act, s 323 prevails. There is nothing in s 323 that authorises exclusion of asymptomatic pre-existing conditions as being causative or partially causative of a subsequent impairment.
(t)      Dr Verma made a demonstrable error by applying s 323 incorrectly, where there was a history of significant pre-existing and ongoing psychological symptoms.
(u)     The history taken by Dr Verma did not adequately consider the available medical evidence in reaching the conclusion that the only instance of pre-existing and/or continuing or comorbid psychological problems was in 2002, after the worker separated from her husband.
(v)     The medical evidence included ongoing psychological difficulties since at least 2002, with specific exacerbations of symptoms in 2012 and 2016, and the symptoms were ongoing. The medical evidence disclosed an exacerbation of symptoms in April 2021.
(w)    The worker had also experienced psychological symptoms associated with chronic back pain. Her chronic pain had continued.
(x)     The evidence of psychological symptoms experienced by the worker prior to and since the injury were not addressed in any detail by Dr Verma. While there is no requirement for Dr Verma to discuss in the MAC each and every piece of evidence, and any lack of reference should not be taken as her not having had regard to the material,[18] this material revealed significant stressors and other problems that did not otherwise appear in the MAC.
(y)     Adequate consideration of these factors would have resulted in a deduction under s 323 and/or an apportionment for a comorbid condition, or if not made by Dr Verma, an appropriate explanation as to why she reached this conclusion, in the face of the significant evidence.
(z)     Dr Verma made a demonstrable error in acknowledging only pre-existing psychological symptoms associated with the worker’s separation from her husband in 2002 when considering and providing justification for a deduction under s 323 of the 1998 Act and/or an apportionment of impairment to a comorbid condition.
(aa) The errors could be remedied by the worker being referred for re-examination to obtain a correct assessment of impairment in accordance with the Guidelines and accepted law; and the MAC dated 2 August 2023 being revoked.
[16] Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254.
[17] [2021] NSWSC 616.
[18] Beatty.

The worker’s submissions in opposition to the employer’s appeal included the following:
(a)     The employer had erred in concluding that she had maintained her social connections and engagements because she stayed in touch with her friends in Czechoslovakia. It is necessary to determine whether those interactions were maintained at the same level and whether the level of connection was the same as prior to the injury.
(b)     The MAC stated that “her friends call her and she talks to them on the phone”. There was nothing that indicated she initiated contact. This aligned with Class 3 under “social and recreational activities”, as the social activity occurred “when prompted by family or close friend”.
(c)     Class 3 was correct, taking into account her individual circumstances and non-traditional social activities.
(d)     As regards “employability”, Dr Verma did not provide sufficient information as to her opinion, but the brief description of reasons for the rating is in line with that of Dr Argyle, who concluded the same class of impairment.
(e)     She conceded that Dr Verma’s acknowledgment that her ability to return to employment was impeded by “impairment in her attention and concentration, she would be unable to do the duties inherent of any job” was inconsistent with the class of impairment Dr Verma gave her under “concentration, persistence and pace”, and inconsistent with the findings on examination for that category. That category was the subject of her own appeal.
(f)      The employer noted that she had engaged in volunteer work. However, even this had not been ongoing. It was in no way indicative of ability to hold down a job and be employable.
(g)     As regards s 323 deduction, there was no evidence before Dr Verma that indicated her mental health status immediately prior to the injury was such that it would give rise to impairment.
(h)     The events that triggered psychological responses were part of the normal stresses of life or part of grieving process. They were not recognised as diagnosable and there was no indication from any of the doctors who examined her that pre-existing psychological problems caused or contributed to the current impairment. Unless that can be established, no deduction for pre-existing impairment can be made.[19]
(i)      The MA considered the evidence and had correctly concluded that no deduction was required.
(j)      There was no evidence of comorbid or co-occurring condition that would warrant any further deduction. Such impairment would in any event be addressed under s 323.
(k)     The MAC of Dr Verma in regard to this appeal should be confirmed.
[19] Cole v Wenaline Pty Limited [2010] NSWSC 78.

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 ground(s) of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[20] the Court of Appeal held that the 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.
[20] [2006] NSWCA 284.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW[21]. The Court held that while prima facie the Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation.
[21] [2008] NSWCA 116.
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[22] Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “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.
[22] [2013] SC 1792.

Medical Assessment Certificate

The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, below.
Under “History relating to the injury”, at p 2 of the MAC, the MA said:
“Ms Krasny reported that in 2009 she moved to a small town, Quirindi, with her boys. She said that there was a training day with her first supervisor. Her supervisor started talking about her in front of her colleagues and that Ms Krasny had difficulties communicating in English.
She said that her supervisor filled in for her colleague but did not do it for her and didn’t support her. There were always issues regarding her ‘replacement’, and she didn’t feel supported.
She added that from then her relationship was ‘impacted with her Supervisor’. She said that when she was upset, it affected her English more. So she tried to calm herself before she attended to any customer.
She felt overwhelmed at her workplace following changes to the library’s staffing, which had occurred in 2013. She tried to do all she could to manage the volume of work and train the volunteers.
In 2014 she was diagnosed with bulging discs, so she completed a Risk Assessment report and submitted it to Council. She alleged that work was a contributing factor because she was on her own, lifting the crates of books and carrying them to the car…She also spent significant time at the computer, writing reports and press releases and working overtime to get through the work.
…
She added that in 2013 her support person’s working hours were cut off, and her work hours were reduced. She said that she even had to deal with ‘pressure from customers’.
She remembers getting yelled at [at] work, and gradually things build [sic] up.
…
She stopped working with Liverpool Council when she had a ‘breakdown for the second time’ at the end of 2018.
She reported that she started experiencing mental health issues in 2014. She said it was a ‘combination of work environment and not feeling unsupported’ [sic].
She started having [sic] depressed, exhausted and low. She said that she would feel very fatigued. Simple tasks turned into mammoth tasks…She was able to manage her [back] pain initially. Her first supervisor had organised someone to put books and move around heavy objects. She was given a high working station…
She added that she continued working as long as possible despite the ongoing difficulties.
…
She started experiencing less energy. She said that she used to sleep a lot and didn’t get enjoyment from things like socialising, going to the movies and travelling to see friends in Tamworth.
Her sleep was disturbed and she said that she wouldn’t sleep for hours. She noted that Belinda and her supervisor yelled at her, which made her even more anxious.
…
She started receiving treatment for her mental health symptoms in 2017. She started seeing a psychologist, Peter Smith, but she didn’t remember how often…She saw a psychiatrist in 2018. She didn’t remember the name of the medications as there were many changes.
…
She met her husband when he was on holiday in the Czech Republic. She visited him in Australia and married in 1992.
She migrated to Australia in 1993 on her own. She separated from him in 2002.
She has two sons – 30 years and 22 years. She currently lives with her younger son…
…
Present treatment: She currently sees a psychiatrist Dr Wilson. She sees him every
3-4 months. She is on Pregabalin – 100mg and Dosulpein 75mg Nocte. She is also on hypertensives.
She continues to see the psychologist every three weeks. She is working on Cognitive Behaviour Therapy.
Present symptoms: Ms Krasny reported that her mental health has improved. She pushes herself to do things…She is no longer in bed for days together.
Her sleep has improved, and the medication ‘knocks her out’. Sometimes, she has to increase the dose of Pregabalin when she has insomnia.
…
Her mood is usually emotional and often fluctuates. She said she feels exhausted quickly, even when doing things liked shopping. She feels pretty irritable and snappy. She has to control herself as she doesn’t want to have an ‘outburst’.
…
She will have coffee with her friends at times. Her friends call her, and she talks to them on the phone. She then cooks and goes shopping or to any appointments…She said that she ‘gets bored being at home.’
…
She was pessimistic and wasn’t even able to visualise her future. She had prominent feelings of worthlessness and hopelessness about her situation. She ruminates about what she has done wrong at work and why she was treated like this.
She is on Jobseeker payments, struggling financially, and is scraping by…
Details of any previous or subsequent accidents, injuries or condition: She denied having any history of mental health issues. She was depressed when she separated from her husband in 2002. She saw a psychologist at that time. She doesn’t remember if she had to see any psychiatrist. She denied being diagnosed with any major mental health issues at that time. She had a full recovery and denied having any residual symptoms.
…
Social activities/ADL (activities of daily living): She showers when she goes out shopping and goes out for appointments. She then said she doesn’t know how often she showers or changes clothes. She can cook food and sometimes share the chores with her son. She used to enjoy reading, music and dancing before the workplace incidents. She has been unable to do any of these activities as she often breaks down. She is able to go out to the shopping malls. If she feels anxious there, she would have to stand in a corner and calm herself down. She has to use headphones to distract herself. She continues to drive but must ‘concentrate’ and be careful. She sometimes would walk to shops if she didn’t feel like driving. Her son, who is on L plates, would sometimes drive her around. She denied having any accidents or near misses…
She spent the last Christmas in Canberra with some relatives.
She said she used to have [a] few friends but doesn’t see them as often. Even earlier, she would only meet them when they were available. She gets together with a friend from Romania a few times a year.
Her relationship with her son has been impacted. She said she finds it hard to talk to her son, but he is very supportive. She likes to watch movies with her son.
She reported her attention and concentration as poor, and she has to push herself to do things. She has stopped reading books as it reminds her of her work…She listens to audiobooks. She reported getting distracted very easily. She is, however, able to cook meals without significant difficulty. She can focus on things for periods up to 30 minutes and then gets distracted.”
Under “Findings on physical examination”, at p 5 of the MAC, the MA said:
“I reviewed Ms Krasny via Video…She was casually dressed and groomed. She was teary most of the time…but could be comforted and continued with the assessment. She remained slightly anxious…She took long pauses and had minor difficulties remembering some events etc. However, she could give details about workplace incidents, symptoms, and associated difficulties. She reported her mood as slightly better than before, but her affect was sad.
…her speech was spontaneous and normal in volume and tone and, at times, was circumstantial. Her thoughts were logical and goal-directed. She currently reports ongoing negative ruminations about the incidents at her workplace. Her thoughts centred around her inability to continue working and shame and guilt. There was no evidence of any manic or psychotic symptoms or perceptual abnormalities.”
Under “summary of injuries and diagnoses”, at p 5 of the MAC, the MA said:
“She has been seeing a psychologist and psychiatrist with mild improvement in her symptoms. Her current symptoms are suggestive of the diagnosis of Major Depressive Disorder. The diagnosis is based on the presence of DSM-5 criteria…
…
Depressed most of the day, nearly every day as indicated by subjective report…or observation made by others…
Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by subjective account or observation).
…
Insomnia or hypersomnia nearly every day.
…
Fatigue or loss of energy nearly every day.
Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick).
Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others).
…
The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
…
Her presentation is consistent with the documentation received and her mental status examination.”
Under “Reasons for assessment” at p 7 of the MAC, the MA Assessor wrote:
“a. …In making that assessment, I have taken into [sic] account of the following matters:
- Clinical interview
- Mental status examination
- Documentation received, including previous IME
…
c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where, applicable, the reasons why my opinion differs.
I have noted the report by Dr Nicholas Argyle dated 14.12.2022 in which he mentions
‘Ms Krasny previously had met criteria for Post-Traumatic Stress Disorder or at least for an Adjustment Disorder but the more specific post-traumatic symptoms…have reduced so she does not meet the full criteria for PTSD anymore. She does meet the criteria for Panic Disorder and these attacks are not clearly related to triggers associated with work. However, Panic Disorder has clearly evolved from the prior PTSD. She has some secondary depression but this is not sufficient to merit a separate diagnosis. Similarly, she has some level of generalised anxiety but this is not sufficient for a separate diagnosis of generalised anxiety disorder.’
I have noted that he calculated her WPI as 19%.
I have also noted a report by Neil Gaff, psychologist dated 14.7.2020 where he has diagnosed her with Generalised Anxiety Disorder DSM-5 300.01 (F411).
I have also noted the report by Dr Yajuvendra Bisht dated 24.4.2020. He diagnosed her with…’adjustment disorder with mixed anxious and depressed mood, as per DSM 5.’ I have also considered the report dated 9.1.2023. He mentions, ‘The diagnosis is major depressive disorder, as per DSM 5…’ He calculated her WPI to be 5%. Dr Bisht had made a deduction of 1/10 given the impact of chronic pain on her symptoms.
I have calculated her WPI as 7% and made no deductions. Kindly note the following reasons for the difference in rating the various domains.
-Self-Care and Personal Hygiene: I have rated her personal hygiene as mild impairment as she showers only when she goes out. She was, however, unable to tell me exactly how many times she showers etc. She can cook not only for herself but also for her son. Her mental status examination didn’t show any evidence of grossly impaired self-care.
-Social and recreational activities: She has stopped engaging in any recreational activities and has moderate impairment. She will occasionally watch movies with her son. She can leave home, though, for grocery shopping (Moderate Impairment).
-Travel: I agree with Dr Bisht’s assessment.
-Social Functioning: I have marked her social functioning as 1 as she mentioned that she hardly met her friends even before the workplace incidents. She is still in touch with her old friends and talks to them frequently. She lives with her younger son and finds him very supportive.
-Concentration, persistence and pace: I have marked this domain as 2. I agree with Dr Bisht’s assessment.
-Employability: I have marked that as five as she doesn’t seem to be able to engage in employment because of her ongoing symptoms. I have noted that Dr Bisht has rated her employability as 4. I believe that because of an impairment in her attention and concentration, she would be unable to do the duties inherent to any job.
I have not made any deductions as Ms Krasny did not appear to be affected much by the chronic pain and denied pain affecting her day-to-day functioning. I have noted the past history of possible adjustment disorder in the context of separation from her husband. I have not made any deductions, as she experienced complete amelioration of her symptoms.”
Under “Deduction (if any) for the proportion of the impairment that is due to previous injury or pre-existing condition or abnormality” at p 8 of the MAC, the MA wrote:
“a.     In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i) She was depressed when she separated from her husband in 2002. She saw a psychologist at that time. She doesn’t remember if she had to see any psychiatrist. She denied being diagnosed with any major mental health issues at that time. She had a full recovery and denied having any residual symptoms.
b.      The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) I have noted the past history of possible adjustment disorder in the context of separation from her husband. I have not made any deductions, as she experienced complete amelioration of her symptoms.
c.      There is no deductible proportion.”
The Panel reviewed the history recorded by the MA, her findings on examination, and the reasons for her conclusions, as well as the evidence referred to above.
The Panel considered the parties’ submissions, which have been summarised above.

Worker’s evidence

In a statement dated 11 December 2017, the worker stated that she left her husband about a year after the birth of their second child.
The worker thinks she suffered from post-natal depression after the birth of her first son, but this was not diagnosed. She also felt depressed when she was leaving her husband, and that was a very stressful time.
The worker developed a limp in 2014 and was diagnosed with two bulging discs in her lower back. Before the problem with her back, she used to go dancing and swimming, and to the gym. She went walking regularly, but had not been doing that this year, due to issues such as grief, work-related stress, and issues with her supervisor, with which she was dealing.
The worker had felt for the last few years that she was not coping with stress as well as she had previously. She began to experience neck pain and headaches. The doctor recommended an ergonomic assessment of her workstation.
The worker had been on leave since 22 November 2017. Her doctor diagnosed depression and prescribed anti-depressants.
The worker had lost interest completely in her job over the last month and did not want to go to work. There was so much to deal with, and it was becoming so frustrating.
The worker made a further statement dated 23 May 2023.
She was living with her son, who was 21, he having moved in in February 2022. She was able to take care of herself. She would miss showers or bathing on average four times a week. When she was exhausted from anxiety and panic attacks, she may miss brushing her teeth. She may brush her hair but did not remember the last time she visited the hairdresser.

She sometimes wore her sleep wear for the whole day when she did not leave the house. She did laundry once a week. She and her son shared the cleaning.
She went shopping with her son and cooked and baked. She sometimes missed breakfast or lunch because she did not feel like eating. On bad days she would only eat one meal.
She tried to walk around her area for her health. If her son was with her, they would go somewhere for walks. She exercised at home when she was feeling anxious and did not want to go out.
Because of her mental health, on a bad day she would smoke around 15 cigarettes. She rarely drank alcohol.
She did not go out socially by herself. She used to do social things on her own, but because of her anxiety, she did not go out without her family or close friend when they asked her. She attended her medical appointments and necessary things.
She spent time with her family and went out with her children when her son graduated. She had a friend who lived close by. They would go out for coffee, or her friend would visit. Sometimes she would get anxious and have panic attacks at home, especially when she was tired.
She did not go out for social events very often and was not very active, except for walking and attending appointments. Sometimes when she did so, her anxiety and panic wore her out and she got very exhausted.
She lost a lot of friends when she moved to the ACT (Australian Capital Territory). She could drive herself. She recently visited a friend in Thredbo, an hour’s drive away.
She did not interact much with the general public and was easily anxious and got panic attacks when interacting with people. She once got a panic attack when her optometrist was closed. Her body and mind did not react well to people anymore.
She had low mood and was depressed, and sometimes argued with her son because of her mood. She told her son she was in a good mood, and to calm down she would put on her headphones and listen to music, or go into her bedroom and close the door, to manage her mood. She was very touchy and [sic: with] her family and friend and they supported her.
Her memory was very bad, her concentration and memory fluctuated. Her English speaking and reading skills had suffered, and she had difficulty communicating and finding the right words.
Her reading ability was reduced, and she tried listening to audiobooks, but had trouble following them and sometimes had to restart. She sometimes read and did basic puzzles and games, which helped calm her in the evening.
She watched TV and had trouble finding things that interested her. On some days this annoyed her, and she sometimes lost track of what she was watching. She sometimes relied on subtitles. This exhausted her and she could not keep up with the show.
She overthought things. She still paid her bills, and her son contributed. She needed to keep reminders in her email and calendar and use direct debit.
She last worked in November 2018. She tried returning to work twice but could not continue. She did not know why. She kept getting panic attacks, anxiety, was nervous, and could not continue.
In 2019 she was admitted to hospital for treatment twice. She was reacting very badly and was so sensitive to people and things. She could not control or explain why, except that this all happened after her experiences at work.

Medical evidence

Dr Peter Ashkar – forensic psychologist and clinical neuropsychologist

Dr Ashkar was qualified by the employer and reported on 8 February 2018.
Dr Ashkar recorded that the “last straw” for the worker came when she was questioned about the visitor count for October 2017. She became very upset and angry, and her heart began to pound quickly. The next morning (22 November 2017) she went to her doctor, who diagnosed her with depression, prescribed anti-depressant medications, and placed her on sick leave.
The worker struggled to provide an account of her difficulties in the workplace and her thinking lacked clarity and focus. Dr Ashkar reported that it was possibly due in part to English being her second language. Her thinking was very disorganised.
Dr Ashkar recorded that the worker had been off work for approximately six weeks and returned part time on 8 January 2018. She had been struggling with her return because of neck and back pain.
Dr Ashkar recorded that the worker had been diagnosed in 2014 with two bulging discs in her lower back. Her psychiatric history was significant for periods of depression following the birth of her first son in or around 1995 and her separation from her husband in or around 2002. She was experiencing changes in mood, which she attributed to menopausal hormonal changes. She had been prescribed a low dose of Effexor.
Dr Ashkar opined that “it could be argued” the worker had developed an adjustment disorder, to which antagonism and hostility from her supervisor was the predominant contributing factor. She had recovered from her adjustment disorder. She had a tendency to develop physical symptoms in response to stress. There was likely to be a psychological component to her neck and back pain.
Dr Ashkar opined that the issue of the worker’s neck and back pain required further investigation. From a psychological standpoint, she would have difficulty sustaining a return to work until she felt able to work comfortably with, and feel supported and respected by, her supervisor. Other factors, such as workload, staffing, resourcing, and supervision, would also need to be addressed.

Dr Yajuvendra Bisht – psychiatrist

Dr Bisht was qualified by the employer and reported first on 27 April 2020.
Dr Bisht recorded that the worker’s new supervisor “became more intense” in 2017. The worker’s mother passed away in November 2016. She was grieving. She also had chronic pain. Her (psychological) symptoms were getting worse.
The worker’s general practitioner sent her to the chronic pain clinic for her back injury, but there was no one to replace her at work, so she could only go once. She would take painkillers when it was really bad.
In November 2017, the worker “completely broke down”. She started to feel constantly teary. She would get anxious even in day-to-day situations, like leaving the house. She started to have sleep disturbance most nights. Her concentration was affected even more. Her anhedonia became worse.
After six weeks, the worker returned to work for 16 hours a week, because of the pain and her mental health.
In April (2018) the worker “ended up in hospital because I returned to exactly the same environment…” She was admitted because of her mental health problems. She was in hospital for four weeks.
The worker returned to work in July/August 2018. She could not go to the library. She became a member of the new unit called the culture and safety unit. After a few months, she realised the WHS (work health and safety officer) had “lied”. He told her there would be a position in the records section. Her tasks were changed every week.
The worker was getting more upset and anxious. She broke down again at the end of 2018. She “ended up in a psychiatric hospital in January 2019 again.” There had been partial improvement in her condition since then.
Dr Bisht recorded that the worker’s pain was “off and on”, but she could manage it. She still got panic attacks when there were lots of things happening around her, or when she went out of the house, but they were not as intense.
The worker slept well, but “once in a while” she did not. She did not enjoy life as much as she used to.
As the worker was on her own, she had no idea about her concentration. She listened to audiobooks, and liked doing puzzles while she did this. Some days she could concentrate very well.
The worker really liked driving. She did not drive long distance for a long time. She went to Tamworth, a one-hour one way trip.
The worker sometimes got “low” for a few days and had to tell herself that she had to get out of it. She still got tired during the day.
The worker talked to her children every week. Before the (COVID-19) isolation, she would see her friends once or twice a month. They would go for walks or places she did not know. They went to Mudgee for the writers’ festivals.
The worker still communicated with some friends from Czechoslovakia. She would stay at a friend’s place overnight when she had an appointment, “before the virus”.
The worker spent some time cutting the grass and looking after the house. She had a small dog and a few plants. She did some photography. She tried to do stretches.
The worker had started volunteering but started having panic attacks about job search. This was “last year”.
The worker’s medical history included being “down for a few months” when she separated from her husband. She did not have any treatment and felt better after a few months.
Because the worker was talking to people all day, she made many friends. On the weekends, she liked to spend time on her own. She was still communicating with some friends from Czechoslovakia. She had a close friend in Tamworth. After her breakdown, her friends helped her a lot and looked after her. She saw her younger son every three months, and the older twice a year, but they talked every week.
The worker’s hobby was her job.
The worker started seeing Dr Wilson, psychiatrist, in November 2018, and was still seeing him every three to four months. She had been seeing a new psychologist since the end of 2019, every three weeks. She had seen a psychologist in mid-2017, for a few months, and again for a few visits in 2018.
The worker was on Lyrica 75mg at night, and antidepressant venlafaxine 150mg in the morning.
Dr Bisht recorded that the worker showed no evidence of self-neglect. Her personal hygiene appeared appropriate. There were no abnormal movements, tics, or mannerisms. She did not appear to be responding to non-existing stimuli and was able to give a good account of herself.
The worker was generally cooperative with the interview. She described her mood as “always edgy”. Her affect was somewhat anxious. It was appropriate to the content of the interview.
The worker tended to focus on themes of apprehension of unfamiliar situations. She showed no impairment in short-term memory and attention. There were no other cognitive deficits. She had reasonable insight into her illness and the need for treatment. Her judgment was not impaired.
Dr Bisht diagnosed the worker with adjustment disorder with mixed anxious and depressed mood. The factors that had contributed to the development of the condition were the death of her mother (33%); chronic pain (33%); and excessive workload and unsupportive supervisor (33%).
Dr Bisht opined that the worker’s adjustment disorder would be considered to have reached maximum medical improvement about two years after [she ceased] contact with the stressor, which would be towards the end of 2020. She had also not yet had adequate treatment.
Dr Bisht next reported on 9 January 2023.
The worker reported minimal improvement since the last appointment. She was still suffering panic attacks but thought she was getting better and believed she had learnt to cope with them. She minded very much that she still could not identify their triggers. She believed it might just be interaction with other people. She got very tired and sometimes felt she was getting red in the face. She sometimes had difficulty breathing. She hated having to work under pressure. If she went shopping and there was some sort of incident, it took her days to recover.
The worker felt that listening to music on her headphones calmed her down. Sometimes at home she perceived that sounds were louder. She realised this was happening and tried to calm herself with classical music.
The worker had learnt some coping strategies, like breathing slowly, from her psychologist, and was trying to use them. She was once anxious while seeing the doctor but could not use the strategy because everyone would notice.
The worker’s other persisting symptoms included frequent recollections of traumatic workplace experiences; frequent thoughts of worthlessness, hopelessness and helplessness; feeling anxious/sad while having these recollections/ruminations; lack of enjoyment of previously pleasurable activities; lack of motivation towards socialising, self-care and hobbies; poor sleep; feeling distant from people; difficulty concentrating for long periods and variation from day to day, depending on the level of anxiety; feeling anxious in day to day situations; and persistent flat mood.
The worker had been volunteering at the historical society since 2019 but had stopped because she was “trying too hard to fit in.” She had stopped before the COVID-19 restrictions. She said they had not affected her recovery because she had already given up on finding a job.
The worker had moved to Canberra, which was “scary”, and more expensive. Her older son had bought a unit and she was his tenant. Her younger son had started living with her in February 2022. She cooked because she had to cook for two. She had recently attended a ballet with her son, which was something new for her. She had also seen a stand-up comedian with him.
The worker had had a driver’s licence and had started to learn to drive. She did not need an instructor. She used to drive only small distances because she lived in a small town.
The worker talked to her friends on the phone, or they sent messages. She was in contact with her family in the Czech Republic. She had various appointments. She had been doing modules with Recovery Partners and had completed six modules of a job preparation course. She had found it quite difficult because it took her back to memories of the working situation.
The worker’s English language abilities had decreased because she had been at home for four years and not talked as much with others. Her older son and his girlfriend visited. Her younger son invited his father’s brother that year. She had friends in Canberra who were working, so it was difficult to catch up often. She had minded one friend’s house while they were away.
The worker had a Czech friend who lived in Canberra, an hour away, and whom she had visited once. Her friends had their own lives and activities.
The worker normally went shopping with her son. She went once when he was not there. There were lots of people and turmoil and she had a panic attack.
The worker’s concentration was sometimes OK and sometimes not, like if she was listening to audiobooks. She had to jot down what she had to do in the week. It was very difficult to judge the level of concentration when she was feeling overwhelmed.
The worker’s grooming was improving as she was going out more and getting more visitors. She was trying hard once or twice a day regularly to have a proper meal. She sometimes had a meal watching television and did not focus on whether she liked it or not. She enjoyed walking and did it regularly.
The worker’s relationship with her family was affected by her condition, as she had not been engaging in conversations as much as before and preferred to spend more time alone.
Dr Bisht recorded that the worker continued to have appointments with the same psychologist and psychiatrist, every few weeks. She took Lyrica and Dothep.
The worker’s presentation was much as it had been on the first occasion.
Dr Bisht recorded “other stressors” as the worker’s chronic pain condition. She was sometimes told that the pain was related to her mental state – “I don’t really understand it.” She had pain in her neck and lower back.
Dr Bisht diagnosed the worker with major depressive disorder. The contribution of “other stressors” to her current state would be minor, that is, 10%, to her impairment.
Dr Bisht did not find evidence of a previous injury or pre-existing condition or abnormality that could be relevant to the worker’s current illness. He also found no signs or indications of exaggeration, malingering, inconsistency, or unreliability.
Dr Bisht did not note anything significant about the worker’s past treatment or the absence of treatment. She required monthly appointments with a psychiatrist and fortnightly appointments with a psychologist, for about six months. She would also require medications for one to two years. The treatment would further consolidate her improvement, rather than bring about further improvement.
Dr Bisht opined that the worker was incapacitated for work but went on to opine that she would be able to work four hours a day, three days a week, in a job that did not involve frequent direct interactions with customers, or perform detail-oriented tasks, or manage other staff. She would require a vocational assessment and would not be able to work with the pre-injury employer. Even in that role, her attendance would be likely to be erratic.
Dr Bisht assessed the worker in the following PIRS categories:

Category

Class

Reason for decision

Self-care and personal hygiene

1

Marcela told me that her grooming is improving now that she is going out more and she is getting more visitors. She added - “I am trying hard once or twice a day regularly to have proper meal; sometimes I have a meal watching the television and I don’t focus on whether I like it or not. I do enjoy walking and I do that regularly.”

Social and recreational activities

2

The client does attend social gatherings, though infrequently. She has been engaging more in recreational activities such as watching shows, going for walks.

Travel

1

The client can travel without support person, if she is travelling to unfamiliar places, such as for her appointment today.

Social functioning

2

The client’s relationship with the family is affected by the psychiatric condition, as the client has not been engaging in conversations, and prefers to spend more time alone. There haven’t been any periods of separation though.

Concentration, persistence and pace

2

The client is able to sustain concentration on tasks such as driving, cooking, financial management. She has recently competed some modules for job readiness She was able to mind the house for a friend as well. However her concentration is less than adequate on some days.

Employability

4

Based on the functioning in various domains (please refer to the section “history of injury since last appointment”, for details), from a psychiatric perspective, the client would be able to work four hours a day, 3 days a week, in a job that does not require the client to have a role which involves frequent direct interactions with customers or perform detail-oriented tasks or manage other staff. The client would require a vocational assessment however, for a more accurate evaluation of the job options. The client is not able to work with the pre-injury employer. Even in that role, the client’s attendance would likely be erratic

Dr Bisht assessed the worker’s WPI as 6%. He deducted 0.6% for comorbid conditions. The final assessment of WPI was therefore 5%. There were no additions for treatment effect, as the treatment had not brought about substantial improvement.

Dr Nicholas Argyle – consultant psychiatrist

Dr Argyle was qualified by the worker and reported on 14 December 2022.
Dr Argyle recorded a history that the worker went to Quirindi Hospital in April 2018 with high levels of stress and was kept overnight.
In November 2018, the worker again went to the ED (Emergency Department) suffering from stress.
In January 2019 the worker was sent to Tamworth Hospital as being more distressed and kept overnight. The diagnosis was acute stress, but they queried whether she might be psychotic. She remembered some unusual visual experiences.
In April 2020, Dr Bisht diagnosed adjustment disorder with mixed anxiety and depressed mood.
The worker’s psychologist, whom she had seen many times and continued to see, reported on 14 July 2020 that she had generalised anxiety disorder with panic attacks.
The worker had not worked in 2019, 2020, 2021 or 2022. She had recently taken a course regarding applying for jobs.

The worker had separated from her husband in 2002 and experienced some stress but did not have any medication or therapy.
The worker’s medication was Lyrica 75mg at night and an additional dose if she was stressed. Lyrica is used for pain but also has a recognised effect on anxiety. The worker also took perindopril for blood pressure and dothiepin 75mg a day for anxiety and depression. She had previously tried venlafaxine and nortriptyline with less benefit.
The worker had flown from Canberra to Sydney, “which she was pleased to have achieved” for the assessment. She appeared generally anxious and was more so when discussing her future or any work-related topic. She was not disassociated, and Dr Argyle found no evidence of psychosis. She was well motivated to engage in the interview and expressed strong motivation to return to work.
Dr Argyle opined that the worker’s panic disorder had evolved from the prior PTSD. She had some secondary depression that was not sufficient to merit a separate diagnosis. She also had some generalised anxiety that was not sufficient to merit a separate diagnosis.
There was a period of grief following the worker’s mother’s death in 2016, but she had already been under stress and her grief resolved.
Dr Argyle reported that the worker was not improving despite regular psychology attendances and appropriate medication. This had not been of great use. He did not anticipate that she would make substantial improvement in the next year.
Dr Argyle opined that the worker had no current capacity for paid work.
Commenting on Dr Bisht’s report, Dr Argyle noted that Dr Bisht had seen the worker over 2.5 years ago. He had found significant anxiety and depression. Since then, the worker had continued unwell and in some ways had deteriorated.
Dr Argyle assessed the worker in the following PIRS categories:

Category

Class

Reason for Decision

Self-Care and Personal Hygiene (A)

2

Ms Krasny has no problems with immediate self-care. Her attention to domestic chores is good but her ability to shop or help with household needs outside of the house is variable and some weeks she is quite reliant on her sons. This relates to anxiety and energy levels.

Social and Recreational Activities (B)

3

She was quite active when younger in terms of sports like tennis and gardening but has ceased these due to physical pains. She distracts herself with audiobooks, word puzzles and jigsaws. She will rarely go out socially as she finds crowded places difficult and a recent trip to her son’s graduation dinner was exceptional and left her exhausted.

Travel (C)

2

In a bad week she will not feel confident enough to drive at all. In a better week she will drive locally though finds heavy traffic difficult. She was very pleased to have managed to fly on her own to Canberra today.

Social Functioning (Forming and Maintaining Relationships) (D)

2

She keeps in touch with friends in Czechoslovakia through the internet and with a few people back in New South Wales. One son is living with her currently and she sees her other son and his partner about twice a week and has good relationships with all three people.

Concentration, Persistence and Pace (Cognitive Functioning) (E)

3

If listening to an audio book she manages about 15 minutes. She will generally follow a short TV episode such as a mystery. A recent back to work course of one hour once a week she just managed to complete finding the end of each hour difficult.

Adaptation (Employment) (F)

5

She has not worked since 2018 and is only now considering she may be able to start the process of finding work. The main impediments are her variable levels of fatigue and anxiety, her fear of having panic attacks at work, and a fear of failing at work. Her imperfect English is also a factor as her English ability is worse when she is more anxious.

Dr Argyle assessed the worker’s WPI as 19%. He recorded the effect of treatment as “none significant” and made no deduction for any pre-existing condition.
The Panel considered that error had been established in respect of the MA’s assessment of social and recreational activities, and the inclusion of matters in “social functioning”. It was considered necessary for the worker to undergo a re-examination by a MA member of the Panel.
Dr Douglas Andrews of the Panel was requested to undertake a re-examination of the worker. He undertook the examination and reported to the Panel as follows:
“PERSONAL INJURY COMMISSION
APPEAL AGAINST MEDICAL ASSESSMENT
REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR MEMBER OF THE APPEAL PANEL
Matter Number: M1-W3711/23
Appellant: Marcela Krasny
Respondent: Liverpool Plains Shire Council
Matter Number: M2-W3711/23
Appellant: Liverpool Plains Shire Council
Respondent: Marcela Krasny
Date of Determination: 18 December 2023
Examination Conducted By: Dr Douglas Andrews
Date of Examination: 18 December 2023
Attendance: Marcela Krasny
1.     The worker’s medical history, where it differs from previous records.
Ms Krasny confirmed that the history obtained by the MA was substantially correct. She relocated to Canberra from Quirindi to remain close to her sons. She lives with her
22-year-old son in a unit owned by her 29-year-old son.
Ms Krasny stated that she had no history of any previous mental health problems. The MA had suggested a possible adjustment disorder when she separated from her husband in 2002.
IME psychiatrist Dr Peter Ashkar referred to postnatal depression in 1995, a recurrence of depression in 2002 and mood changes secondary to menopause for which she took venlafaxine. There was a grief reaction when her mother died in 2016.
General practice notes from May 2011 state, ‘Had postnatal depression has suffered with that in the past…’ And from 4 June 2016, ‘depression, likely due to chronic pain – escitalopram.’
Ms Krasny stated that her pain is under reasonable control and believes that it is not now affecting her mental health.
2.     Additional history since the original Medical Assessment Certificate was performed.
Ms Krasny was admitted to a mental health unit in Canberra under her psychiatrist Dr Eoin Wilson, because she became acutely unwell after the assessment with the MA. She felt that repeating her history had been distressing for her. She remained in the hospital over one weekend and was discharged, continuing on the same medication, pregabalin and dosulapin (dothiapin).
She consulted her psychologist every 2 weeks after the stint in hospital, but the frequency is now 3 weeks. She sees her psychiatrist every few months.
Recent symptoms:
Ms Krasny feels ‘numb’ with a pervasive low mood and diurnal variation. She has some capacity to experience positive emotions. For example, she enjoys the company of her sons, watching television shows, listening to audiobooks and contacting her friends.
Her energy is low, and she is quickly exhausted.
She is easily frustrated and irritable.
She is anxious, especially in new situations. She found the move to Canberra challenging but values being closer to her sons.
She has subjective difficulties with concentration, attention and memory.
She denied thoughts of suicide.
She goes to bed at about 10pm, may take several hours to fall asleep and is bothered with middle insomnia.
She eats a good diet, and her weight is stable.
She smokes cigarettes but infrequently drinks alcohol.
Activities of daily living:
Ms Krasny gets out of bed between 9 and 10am, sometimes later. She starts the day with coffee and a cigarette, skipping breakfast. She checks messages on her tablet before showering and planning her day.
She attends to housework, including cleaning, laundry and cooking. She often goes to the shops, either alone or with her son.
She goes for a walk every other day and tries to do exercises for her back. She is less diligent about her exercise regimen than she was before her injury, but this has not led to a deterioration in her lumbar spine condition.
She enjoys doing puzzles on her tablet. She doesn’t read; she thinks this may be due to associating reading with her librarian work. However, she listens to audiobooks, enjoying mysteries and self-help books. She occasionally has to rewind the audiobook but said this was because she sometimes does puzzles at the same time. She watches television, favouring British mysteries, which she manages with subtitles. She can follow and engage with the plot and characters.
She had a group of friends in Quirindi but hasn’t made new friends since moving to Canberra. She used to enjoy socialising by visiting friends, attending cafés or restaurants, parties, movies and other celebrations. She plans to celebrate Christmas with her sons and her son’s girlfriend at her home.
She goes out to cafés or restaurants with her sons, especially at times for family celebrations. Her ex-brother-in-law recently visited Canberra from the Czech Republic, and she spent time with him and their extended families. She recently visited the Czech club with her older son to see a performer. She goes out for coffee with her friend Monica, who recently relocated from Thredbo to Canberra.
She is independent with local travel and can travel further afield. In 2023, she flew alone twice to Sydney for independent medical examinations. Before Monica moved to Canberra, she drove to Jindabyne or Thredbo to visit her, a trip of more than 2 and a half hours each way. She recently drove to Batemans Bay with her younger son, staying overnight, a journey of more than 2 hours each way. Her younger son has a learner’s licence, and she assists him with his driving practice. She finds driving stressful sometimes, but this doesn’t limit her. Her ex-brother-in law for [sic: offered] her accommodation if she wants to travel to the Czech Republic. She says she has no plans to do so for financial reasons.
She has caring and supportive relationships with her sons, allowing for occasional disagreements due to a ‘generation gap’. She remains close to her friend Monica. She is also close to her friends in the Czech Republic and Quirindi, whom she keeps up with by telephone or social media. She denied having lost any friends since the onset of her illness, saying, ‘I still have my friends that I had before.’
She is engaged in a project to sort out family photographs, which she wants to do for the sake of her boys.
She is now on a jobseeker allowance but has lost confidence and has no idea what work she could do. Last year, she completed a job-finding course with Recovery Partners. She has not applied for any jobs.
Diagnoses:
The MA diagnosed Ms Krasny with a major depressive disorder. She meets the DSM-5 criteria for a chronic major depressive episode. Because it has been present for more than 2 years and is associated with significant anxiety, a diagnosis of a persistent depressive disorder with an ongoing major depressive episode and anxious distress is warranted.
Whole person impairment:
Self-care and personal hygiene – MA rating class 2 – Ms Krasny lives with her son but manages housework, cooking and shopping without significant support. She showers daily and presented herself at examination today neatly groomed. She eats a good diet but skips meals, especially breakfast, and is less attentive to her exercise regimen. At most, she has a minor deficit. Class 2 is appropriate.
Social and recreational activities – MA rating class 3 – The only recreational activity noted by the MA was going to shopping malls. However, Ms Krasny was more active than this. She has regular outings with her sons and her single friend in Canberra. She had social outings with her ex-brother-in-law when he visited Canberra recently. She has attended the Czech club to see a performance. She celebrates family events such as birthdays and Christmas, including guests at her home. She has recently visited Batemans Bay for an outing with her son and Thredbo to see her friend Monica. Her outings are less frequent, and she is more anxious in social settings than before. A class 2 rating is more consistent with her activity level.
Travel – MA rating class 1 – Ms Krasny is independent with local travel. In 2023, she travelled alone to Thredbo and with her son to Batemans Bay. She takes responsibility for supervising her son’s driving whenever they go together, even on a more extended trip, because he is a learner. She has flown alone twice to Sydney in 2023. A class 1 rating is appropriate.
Social functioning – MA rating class 1 – Ms Krasny has continued good relationships with her sons, her son’s girlfriend, her ex-brother-in-law and his family, her friend Monica and friends in the Czech Republic and Quirindi. Except for her sons and Monica, she has seen her friends less frequently since moving to Canberra, but this is due to the geographical distance rather than a lack of social engagement. She keeps in contact with her more distant friends by telephone and social media. She is functioning within the normal variation of the general population. A class 1 rating is appropriate.
Concentration, persistence and pace – MA rating class 2 – Ms Krasny has subjective difficulties with concentration and memory. She no longer reads because she associates reading with her library work. However, she listens to audiobooks and watches television shows with comprehension, able to follow the plot and characters. She plays puzzle games on her tablet. She is reorganising her family photos for the benefit of her sons. She was vague about how much time she spends doing any of these activities but does them for extended periods each day. She did a work readiness program successfully. There was no evidence of cognitive or attentional difficulties during my 75-minute assessment. This is consistent with a class 2 rating.
Employability – MA rating class 5 – Ms Krasny has not worked in any capacity over the last 5 years. She has lost confidence and is easily fatigued. She continues with moderately severe symptoms. Although she is on a jobseeker allowance, whether she could work in any capacity is untested. A class 5 rating is open on these grounds.
S323 – Ms Krasny denies any pre-existing mental illness, although she acknowledges challenges at times of stress. She struggled with her marriage failure and had some depression after the birth of her son. She struggled with ongoing back pain. She had a significant grief reaction when her mother died. This is a pattern of developing adjustment disorders at times of stress and suggests a sensitivity or vulnerability rather than a pre-existing condition. There is no evidence that she previously had a major depressive disorder or persistent depressive disorder. Her previous conditions are not contributing to the severity of her symptoms now or to the associated impairment.
Effects of treatment – the worker has not had ‘substantial or complete elimination of impairment’. The gains with psychotherapy are likely to last when treatment is withdrawn, and adjustment for the effects of treatment is discretionary, in accordance with the Guideline.
Ms Krasny has an aggregate of 13 on the PIRS and a median of 2, equating to a 7% WPI. This is the same rating determined by the MA, notwithstanding that the appellant employer’s appeal regarding social and recreational activities was upheld. There is no deduction for a pre-existing condition.
3.     Findings on clinical examination
I reviewed Ms Krasny on her own by video link for 75 minutes. The connection quality was adequate to do a comprehensive assessment.
She presented casually attired and well-groomed, with her hair pulled back and wearing a dark top.
She was cooperative throughout the interview. Her mood was low, and she was anxious. Her affect was restricted, consistent with her stated mood and congruent with the interview contact.
There was no evidence of any disorder of thought-form or perception.
She gave a coherent account without apparent attention, concentration or recall difficulties. She occasionally drifted off-topic and responded to redirection.
4.      Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations have been done.”
The Panel agrees with the assessment of MA Andrews.
Although the employer’s appeal regarding social and recreational activities was upheld, the Panel assessed the worker’s WPI as 7%, the same WPI as assessed by the MA.
For these reasons, the Panel has determined that the MAC issued on 2 August 2023 should be confirmed.

Category	Class	Reason for decision
Self-care and personal hygiene	1	Marcela told me that her grooming is improving now that she is going out more and she is getting more visitors. She added - “I am trying hard once or twice a day regularly to have proper meal; sometimes I have a meal watching the television and I don’t focus on whether I like it or not. I do enjoy walking and I do that regularly.”
Social and recreational activities	2	The client does attend social gatherings, though infrequently. She has been engaging more in recreational activities such as watching shows, going for walks.
Travel	1	The client can travel without support person, if she is travelling to unfamiliar places, such as for her appointment today.
Social functioning	2	The client’s relationship with the family is affected by the psychiatric condition, as the client has not been engaging in conversations, and prefers to spend more time alone. There haven’t been any periods of separation though.
Concentration, persistence and pace	2	The client is able to sustain concentration on tasks such as driving, cooking, financial management. She has recently competed some modules for job readiness She was able to mind the house for a friend as well. However her concentration is less than adequate on some days.
Employability	4	Based on the functioning in various domains (please refer to the section “history of injury since last appointment”, for details), from a psychiatric perspective, the client would be able to work four hours a day, 3 days a week, in a job that does not require the client to have a role which involves frequent direct interactions with customers or perform detail-oriented tasks or manage other staff. The client would require a vocational assessment however, for a more accurate evaluation of the job options. The client is not able to work with the pre-injury employer. Even in that role, the client’s attendance would likely be erratic

[2024] NSWPICMP 34

24 January 2024