Lachlan Shire Council v Cunningham
[2024] NSWPICMP 200
•5 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lachlan Shire Council v Cunningham [2024] NSWPICMP 200 |
| APPELLANT: | Lachlan Shire Council |
| RESPONDENT: | William Cunningham |
| APPEAL PANEL | |
| MEMBER: | Jane Peacock |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 5 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Psychological injury; appellant alleged error in the assessment under one of the categories under the psychiatric impairment rating scale, namely, employability and error in failing to make a deduction for a pre-existing condition, abnormality or injury; no error found; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 October 2023 the employer Lachlan Shire Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, who issued a Medical Assessment Certificate (MAC) on
18 October 2023.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant did not request that William Cunningham (the respondent worker) undergo a re-examination. As a result of the Appeal Panel’s preliminary review, the Appeal Panel determined that the worker should not undergo a further medical examination because the Appeal Panel was not satisfied as to error and absent a finding of error the Appeal Panel has no power to require the worker undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.
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.
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.
The matter was referred to the Medical Assessor as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 7/08/2020 (deemed)
· Body parts/systems referred: Psychiatric and psychological disorders
· Method of assessment: Whole Person Impairment”
The Medical Assessor issued a MAC as follows:
Body Part or system
Date of Injury
Chapter, page and paragraph number in NSW workers compensation guidelines
Chapter, page, paragraph, figure and table numbers in AMA5 Guides
% WPI
WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)
Sub-total/s % WPI (after any deductions in column 6)
Psychiatric and psychological disorders
7/08/2020 (deemed)
Chapter 11, pages 60-68
Chapter 14
19%
Nil
19%
Total % WPI (the Combined Table values of all sub-totals)
19%
The assessment of impairment was based on the ratings ascribed by the Medical Assessor under the psychiatric impairment ratings scale (PIRS) as follows:
Table 11.8: PIRS Rating Form
Name
William Cunningham
Claim reference number (if known)
DOB
XXXX
Age at time of injury
54 years
Date of Injury
23 April 2023
Occupation at time of injury
Senior Regulation Officer
Date of Assessment
3 October 2023
Marital Status before injury
Defacto
Psychiatric diagnoses
Posttraumatic stress disorder DSM5 code 309.81.
Psychiatric treatment
Mr Cunningham was treated by his local medical practitioner, psychologist and psychiatrist. He was treated with evidence-based psychological treatment He remained in treatment at the time of this assessment with her general practitioner, psychologist and psychiatrist. He had been treated as an inpatient of a psychiatric hospital and as an outpatient of a psychiatric hospital. He was prescribed evidenced-based pharmacotherapy for his primary psychological injury.
Is impairment permanent?
Yes
PIRS Category
Class
Reason for Decision
Self Care and personal hygiene
2
Mr Cunningham reported that he was able to live independently at the time of this assessment. He reported that he had spent most of his time living with his partner. He did provide assistance to clean and maintain the family home. He reported that he could shop at his preferred shops.
Mr Cunningham maintained his medical team’s appointments both in person and by telehealth.
Mr Cunningham appeared unkempt, unshaven and ungroomed at the time of this assessment.
Social and recreational activities
3
Mr Cunningham reported that he did not participate in any of his extended family’s social events. He had ceased attending his local football club and participating at the local game when it was played. He had stopped attending his karate club where he was the assistant program instructor when his senior practitioner was absent from practice. He had lost interest in watching sport on television and had stopped sharing meals in the community with his partner as he would have each week prior to the onset of this primary psychological injury.
Travel
2
Mr Cunningham reported that he was able to drive to his medical and psychological appointments alone. He reported that the route was familiar to him. He was able to drive alone in local and familiar regions. He spent most of his time alone. He did not travel to unfamiliar locations alone as he would become frustrated and have angry outbursts with other road users.
Social functioning
2
Mr Cunningham reported that the relationship with his partner was strained. He reported that there had not been any separation or episodes of violence between them.
Mr Cunningham had suffered from angry outbursts when he was overwhelmed by fear that someone had entered his property without his knowledge or permission.
Mr Cunningham was unable to sustain relationships with his father and brother.
Mr Cunningham had lost friends from the local football club where he had attended prior to the primary psychological injury.
Concentration, persistence and pace
3
Mr Cunningham reports that he no longer paid bills or organised the family finances. He had made errors paying accounts or failed to pay the outstanding bills on time.
Mr Cunningham could not type long documents since the onset of this primary psychological injury. He could not prepare any document due to his concentration, persistence and pace being interrupted by intrusive distressing angry memories of himself trapped in his home whilst being threatened to be beaten severely by his fellow town resident.
Employability
5
Mr Cunningham was unfit to return to his primary substantive role with this employer at any time in the future. Mr Cunningham did not work or participate in employable activities on his block of land. The stock on the land was managed by his brother who held a smaller holding close to Mr Cunningham’s holding. The size of the holding was insufficient to be economic. Mr Cunningham had made no effort to manage the remaining stock and was reliant on his brother and father to clear the stock prior to the summer when there will be insufficient natural feed.
Score
Median Class
2
2
2
3
3
5
3
Aggregate Score Impairment
Total WPI 19%
2+
2+
2+
3+
3+
5=
17
The employer appealed.
In summary, the appellant submitted on appeal that the Medical Assessor made demonstrable error and made assessments on the basis of incorrect criteria as follows:
(a) when assessing Class 5 for employability when he should have assessed Class 3.
(b) When he made no deduction under s 323 of the 1998 for a pre-existing injury, condition or abnormality.
In summary, the respondent worker submitted on appeal that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and that the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The Medical Assessor took a detailed history as follows:
“• Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Cunningham commenced work with this employer in about 2003. He was initially employed as a storeman. About 11 years ago he applied for, and was awarded, the role of a regulation officer. He worked in this role until 7 August 2020. He was a senior regulation officer for the employer at the time of his last day of work. He had not worked since.
Mr Cunningham provided a long record of traumatic events he had endured whilst a regulation officer for this employer. His role included capturing and managing feral cats and dogs. He was often required to shoot injured and feral animals. Whilst he understood that the action was stopping the animals suffering, the repetitious and daily need to perform this activity was the cause of his loss of work hardiness and his self-esteem.
Mr Cunningham reported that he was frequently threatened by people who believed he had taken their dog that was missing. He reported that he was recurrently threatened by the ‘Smithies brothers’ and he was often called to their property. On arrival he would be greeted by the brothers who were brandishing iron pipes and threatening to assault him. He reported that he had been approached by a township resident who threatened to kill him. He stated the man was known to be violent and capable of inflicting serious ham on others.
Mr Cunningham reported that he had been threatened inside his own home. A man had come to his house at night and started knocking on the windows and demanding that Mr Cunningham come outside and ‘settle the argument’. Mr Cunningham did not go outside and he notified the NSW Police. The man left after a prolonged time. The following day the same man approached Mr Cunningham’s partner and patted her on the head whilst giving her a note.
Mr Cunningham reported he developed a negative and dysphoric mood whilst he was working. Members of his community began to make open and repeated direct threats to seriously physical injury him. Mr Cunningham became fearful of these people. He notified his senior management. He was not provided with any benefitable advice. He was told if he did not like the job, leave the role.
Mr Cunningham became overwhelmed by feelings of hopelessness and worthlessness. He had angry outbursts towards his partner and others. He developed intrusive distressing nightmares and visual imagery about shooting the animals. He reported that he commenced fearing for his own safety whilst at work without support from either his employer or the NSW police force.
Mr Cunningham developed the following psychological and psychiatric symptoms:
oExposure to a Category A stressor as defined by DSM5 code 309.81 PTSD due to his employment as a regulation officer
oIntrusive visual images of shooting animals
oNightmares about the animals he had killed as well as the threats made to seriously harm and kill him
oLess frequent angry outbursts towards his partner
oPoor sleep with him startling from sleep frequently due to nightmares of being threatened by the ‘Smithies brothers’
oInitial, middle and terminal insomnia
oShame and guilt that he was unable to work
oAvoidance of crowded places where he might be identified by people he had previously worked with or attended during his career
oPoor concentration due to intrusive ruminations about being trapped in his home with an angry town resident threatening to severely harm him
oLoss of hope with increased intrusive, destressing ruminations of worthlessness, hopelessness, shame and guilt
oLoss of appetite
oDysphoric mood
oLow energy with loss of interest in his sport and his partner’s activities
oLoss of interest socialising with old friends or at community social events
oAvoidance of social groups due to fear of public humiliation and shame
oPoor concentration with difficulty completing complex tasks such as typing long documents, or organising his finances
oAbandonment of managing the family finances
oStrain and tension in the marital relationship
oLoss of intimacy and libido
Mr Cunningham was treated by his psychiatrist and psychologist for this primary psychological injury. He had been treated with EMDR, CBT, Mindfulness and Relaxation techniques. He had been admitted to psychiatric hospital for an inpatient program to treat his posttraumatic stress disorder. He had attended about 4 outpatient treatment programs at the same hospital for his posttraumatic stress disorder. He had been prescribed Sertraline 200mg daily, Mirtazapine 30mg daily, Olanzapine 2.5 mg twice daily and Melatonin 2mg at night. This is evidenced-based pharmacotherapy for his primary psychological injury.
· Present treatment:
Mr Cunningham continued to be treated by his local medical practitioner, psychologist and psychiatrist. He continued to receive psychological treatment including CBT, EDMR, and Mindfulness. He had been treated as an inpatient of a psychiatric hospital and as an outpatient of a psychiatric hospital. He was prescribed Sertraline 200mg daily, Mirtazapine 30mg daily, Olanzapine 2.5 mg twice daily and Melatonin 2mg at night.
· Present symptoms:
Mr Cunningham reported that he continued to suffer from the following psychological and psychiatric symptoms caused by this work-related injury.
oExposure to a Category A stressor as defined by DSM5 code 309.81 PTSD due to his employment as a regulation officer
oIntrusive visual images of shooting animals
oNightmares about the animals he had killed as well as the threats made to seriously harm and kill him
oLess frequent angry outburst towards his partner
oPoor sleep with him startling from sleep frequently due to nightmares of being threatened by the ‘Smithies brothers’
oInitial, middle and terminal insomnia
oShame and guilt that he was unable to work
oAvoidance of crowded places where he might be identified by people he had previously worked with or attended during his career
oPoor concentration due to intrusive ruminations about being trapped in his home with an angry town resident threatening to severely harm him
oLoss of hope with increased intrusive destressing ruminations of worthlessness, hopelessness, shame and guilt
oLoss of appetite
oDysphoric mood
oLow energy with loss of interest in his sport and his partner’s activities
oLoss of interest socialising with old friends or at community social events
oAvoidance of social groups due to fear of public humiliation and shame
oPoor concentration with difficulty completing complex tasks such as typing long documents, or organising his finances
oAbandonment of managing the family finances
oStrain and tension in the marital relationship
oLoss of intimacy and libido
· Details of any previous or subsequent accidents, injuries or condition:
Mr Cunningham reported that he had never had a motor accident.
Mr Cunningham reported that he had acquired a number of infectious disease during his career working for this employer. These conditions included Q Fever, psittacosis, legionella and typus infections due to the vermin associated with the feral and injured animals Mr Cunningham was directed to handle during his employment. Mr Cunningham had confidence in his treating infectious diseases professorial medical practitioner located at Royal Canberra Hospital.
Mr Cunningham advised that this was his first primary psychological injury claim. Mr Cunningham advised the prior to this primary psychological injury he had never suffered from any diagnosed psychiatric or psychological condition before his employment with this employer. He reported that he had not suffered from any complications related to his childhood. He had never been exposed to any childhood trauma, abuse or neglect during his childhood development.
· General health:
Mr Cunningham reported he had surgical treatment to his right shoulder when he was about 26 years of age. He reported that he had sustained an injury to his rotator cuff whist playing tight head prop for his rugby union football team. The surgical treatment was successful and he had no impairment from this sporting injury.
Mr Cunningham has never smoked tobacco. He does not gamble. He had ceased all alcohol consumption. He does not use illicit substances. He did not suffer from any allergies.
Mr Cunningham had his infectious diseases well managed and control prior to this assessment.
Mr Cunningham reported he was prescribed Micardis 80 mg daily for hypertension and Metformin 1000mg twice daily for diabetes. His Metformin had caused a known side-effect of recurrent diarrhoea.
· Work history including previous work history if relevant:
Mr Cunningham worked as a farm labourer on leaving school after completing Year 10. At about 20 years of age he changed to work as an employee in a wool press business. Mr Cunningham then found employment as a weed controller.
At about 33 years of age he found employment with this employer. Initially he worked as a storeman. He completed a Certificate III as part of this role. About 11 years prior to this primary psychological injury, Mr Cunningham commenced his work as a regulation officer. He was required to work a vast area that included 8 townships and 2 indigenous settlements. To work in his role he had a commercial shooters licence and had been trained in using a high-pressure dart gun to anaesthetise injured animals.
Mr Cunningham reported that he held about 1000 acres of semi grazable land. His brother also owned land close to his property. There was no accommodation on the land. At the time of this assessment Mr Cunningham’s brother and father managed and worked the sheep. The land was pasture depleted and the management of clearing the sheep was left to his brother.
· Social activities/ADL:
Mr Cunningham was born in Forbes District Hospital. His father was aged 75 years. His mother was 75 years of age at the time of this assessment. Mr Cunningham had a younger brother aged about 52 years. Mr Cunningham was never married. He was in a stable relationship with his partner of 19 years. They had no children to the union.
Prior to the onset of this primary psychological injury Mr Cunningham had enjoyed supporting his local football team by attending local rugby union football games. He also enjoyed fishing and ‘yabbying’ in local water ways. He would take his partner to have dinner in local bistros and clubs most weeks. He would socialise with his club friends. He would also enjoy spending time with his father and brother on the family holdings. Their small properties were unable to be self-sustaining or economic.
Mr Cunningham reported that he was able to live independently at the time of this assessment. He reported that he had spent most of his time living with his partner. He did provide assistance to clean and maintain the family home. He reported that he could shop at his preferred shops. Mr Cunningham maintained his medical team’s appointments both in person and by telehealth. Mr Cunningham appeared unkempt, unshaven and ungroomed at the time of this assessment.
Mr Cunningham reported that he did not participate in any of his extended family’s social events. He had ceased attending his local football club and participating at the local game when it was played. He had stopped attending his karate club where he was the assistant program instructor when his senior practitioner was absent from practice. He had lost interest in watching sport on television and had stopped sharing meals in the community with his partner as he would have each week prior to the onset of this primary psychological injury.
Mr Cunningham reported that he was able to drive to his medical and psychological appointments alone. He reported that the route was familiar to him. He was able to drive alone in local and familiar regions. He spent most of his time alone. He did not travel to unfamiliar locations alone as he would become frustrated and have angry outbursts with other road users.
Mr Cunningham reported that the relationship with his partner was strained. He reported that there had not been any separation or episodes of violence between them. Mr Cunningham had suffered from angry outbursts when he was overwhelmed by fear that someone had entered his property without his knowledge or permission. Mr Cunningham was unable to sustain relationships with his father and brother. Mr Cunningham had lost friends from the local football club where he had attended prior to the primary psychological injury.
Mr Cunningham reports that he no longer paid bills or organised the family finances. He had made errors paying accounts or failed to pay the outstanding bills on time. Mr Cunningham could not type long documents since the onset of this primary psychological injury. He could not prepare any document due to his concentration, persistence and pace being interrupted by intrusive distressing angry memories of himself trapped in his home whilst being threatened to be beaten severely by his fellow town resident.
Mr Cunningham was unfit to return to his primary substantive role with this employer at any time in the future.
Mr Cunningham did not work or participate in employable activities on his block of land. The stock on the land was managed by his brother who held a smaller holding close to Mr Cunningham’s holding. The size of the holding was insufficient to be economic. Mr Cunningham had made no effort to manage the remaining stock and was reliant on his brother and father to clear the stock prior to the summer when there will be insufficient natural feed.”
The Medical Assessor conducted a mental state examination of which he recorded as follows:
“Mr Cunningham presented as an agitated, irritable and unkempt man. He suffered from episodes of anger and frustration that he attempted to control throughout the assessment. He reported suffering from a dysphoric mood. He had negative intrusive, distressing thoughts of hopelessness and worthlessness during the assessment. His mood was reported as anxious. He appeared hypervigilant. His speech was normal in rate. His volume of speech was normal.
Mr Cunningham required prompting to remain on topic as his concentration waned shortly after commencing the assessment. He complained of poor concentration, loss of motivation and loss of hope for his future. He could no longer read or completed complex easily tasks. He had lost hope and abandoned managing his own finances. He had lost his capacity to concentrate and persist with typing long documents. He could no longer concentrate to organise bill payments. He had lost interested in socialising since the onset of this primary psychological injury. Mr Cunningham reported distressing intrusive memories of injured animals and angry towns’ folk who had approached and threated to kill or severely injure him in the course of his daily employment. He reported episodic panic. He did not have any panic at the time of this assessment. He had restricted his travel due to increased anxiety and agitation. He stated he had lost his self-esteem and self-confidence due to this primary psychological injury alone.
Mr Cunningham did not describe any delusional ideas or psychotic symptoms. He was insightful into his condition. His judgment was fair. He did not report suicidal thought or plans at this assessment.”
The Medical Assessor summarised the injury and diagnosis and commented on the worker’s consistently of presentation as follows:
“Summary of injuries and diagnoses:
In my medical opinion Mr Cunningham’s primary psychological injury using DSM5 psychiatric criteria is Posttraumatic stress disorder DSM5 code 309.81.
Mr Cunningham had not been able to recover from his primary psychological injury sustained in the workplace. He had become socially isolated from his workplace, his friendship circle and his community. He had a dysphoric irritable and angry mood. He had angry outbursts towards others. He had intrusive distressing thoughts and loss of hope for his future career. He had lost his self-esteem, self-confidence, and workplace resilience.
Mr Cunningham continued to experience many symptoms of PTSD that had never fully resolved from the time of onset of this primary psychological injury to the date of this assessment. Mr Cunningham reported that he had never suffered from a psychiatric or psychological injury prior to the commencement of employment with this employer.
In my medical opinion Mr Cunningham did not have a pre-existing assessable psychiatric condition prior to commencement with this employer. There was no evidence in the forwarded documents indicating that he had suffered from any diagnosed psychiatric or psychological condition prior to his commencement of employment with this employer.”
The Medical Assessor considered that the worker was consistent in his presentation stating as follows:
“Mr Cunningham’s presentation was consistent with his diagnosed condition. His assessable psychiatric symptoms had not entered full remission at any time from the date of onset of this work-related injury to the date of this assessment due to the persistence of his primary psychological injury, alone.”
The Medical Assessor outlined the facts on which he based his assessment as follows:
“I have based my assessment of whole person impairment on the history I obtained from Mr Cunningham, the documentation provided with the referral and the mental state examination I conducted during this assessment.
Mr Cunningham stated he had started work for this employer in about 2003. He advised that prior to commencing work for this employer he had worked in other capacities without impairment.
Mr Cunningham was a Senior Regulation Officer. He had worked in this high-risk role for his employer for about 11 years prior to the onset of this primary psychological injury. He had experienced repeated threats to be killed or seriously injured by angry towns’ folk who wrongfully blamed Mr Cunningham as having killed their missing animals. He had experienced the fear of entrapment in his home as the frequency of people coming to his house at night and threatening him, as well as his partner in public, had increased. He had shifted house to protect himself and his partner. He had euthanised many feral and injured animals during his career. He was distressed that the resources needed to humanely anesthetise injured animals had been changed and the animals he attended he had to make do with less effective tools.
Mr Cunningham had attempted to manage his distressing psychiatric and psychological symptoms of posttraumatic stress disorder. He was admitted to psychiatric hospital for treatment of his posttraumatic stress disorder. Mr Cunningham attended the hospital to undertake frequent outpatient courses in an attempt to reduce the severity of his posttraumatic stress disorder symptoms, unsuccessfully.
Mr Cunningham did suffer from a dysphoric mood, negative emotions, cognitions and anger as well as frustration and dysphoria. These symptoms are recognised part of the common experience of posttraumatic stress disorder. The severity of his posttraumatic stress disorder symptoms had waxed and waned over time, as assessed by independent medical examiners. This is common in injured people who have not reached stabilisation of their primary psychological injury.
Mr Cunningham attended his local medical team and complied with all medical recommendations. He continued to use evidence-based psychological treatment. He received CBT, EMDR, Relaxation and Mindfulness for treatment of this primary psychological injury. He had been treated by a psychiatrist as an inpatient and outpatient in psychiatric hospital programs on many occasions. He had been treated with various psychiatric medication. He was prescribed Sertraline 200mg daily, Mirtazapine 30mg, olanzapine 2.5mg twice daily and melatonin 2mg at night. This is in keeping with current guidelines.
Mr Cunningham’s primary psychological injury had not recovered prior to this assessment. Mr Cunningham was permanently unfit to work in his primary substantive role with this employer. Mr Cunningham had not returned to work and remained totally impairment in his employability.
Mr Cunningham did not have any diagnosed pre-existing assessable psychological condition prior to his engagement with this employer. Mr Cunningham does not suffer from any subsequent nor non-work-related condition.”
The Medical Assessor set out a further explanation for his assessment as follows:
“In my medical opinion Mr Cunningham suffers from Posttraumatic stress disorder DSM5 code 309.81.
In making that assessment I have taken account of the clinical interview and mental state examination I have performed whilst Mr Cunningham was in the assessment via videoconference alone as well as the assessment using the Psychiatric Impairment Rating Scales.
Mr Cunningham was employed in his primary substantive role with this employer as a senior regulation officer. He had been resilient and able to continue work for about 11 years prior to this primary psychological injury commencing in 2020. He developed the onset of posttraumatic stress disorder whilst employed as a senior regulation officer. Mr Cunningham became unable to work as a senior regulation officer. He lost hope in his future career. He lost confidence in his management with whom he had sought help and been advised to stop work if he did not like the job.
Mr Cunningham had a dysphoric mood with hypervigilance, panic, outbursts of anger as well as threating other road users. The severity of his posttraumatic stress disorder symptoms caused by this primary psychological injury had fluctuated in severity as documented by various authors in the documents provided. He failed to ever reach full remission from the assessable symptoms for this primary psychological injury. He and his partner remained in a strained union.
I note that Mr Cunningham had received evidence-based psychological therapy for his assessable psychological and psychiatric work-related injury. He had been treated by his general practitioner, psychologist and psychiatrist. His condition had not recovered.
Mr Cunningham was compliant with all medical, and psychological recommendations. His local medical team monitors Mr Cunningham’s mental state routinely. He had not recovered prior to this assessment. There was no resolution in Mr Cunningham primary psychological injury. This primary psychological injury is now a permanent psychiatric impairment.
Mr Cunningham did not suffer from a pre-existing psychological condition.
a. An explanation of my calculations
Mr Cunningham did not have a pre-existing psychological condition. For this reason no deduction was not made.
Mr Cunningham remained psychologically symptomatic at the time of this assessment.
Mr Cunningham was treated with evidenced-based psychological treatment. He had received CBT, EMDR, Relaxation and Mindfulness for this primary psychological injury. Mr Cunningham’s posttraumatic stress disorder assessable symptom severity had fluctuated without any sustained recovery or return to his primary substantive role. His improvement was insufficient to enable him to return to his primary substantive role as a senior regulation officer prior to this assessment. He was permanently unfit to return to work for this employer prior to this assessment. His employability was totally impaired by the primary psychological injury alone. Mr Cunningham’s primary psychological injury was now permanent.
For these reasons there were no adjustments made to his final whole person PIRS assessment, in relation to the effects of treatment.
Worksheet /actual calculations attached? Yes.”
The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above.
It is clear that the Medical Assessor had regard to the other evidence that was before him and he made comment on the other evidence and opinions that were before him as follows:
“Application to Resolve a Dispute
Date of Injury 7/08/2020 (deemed)
Injury Description / Cause of Injury and Death
The Applicant engaged in the work of a ranger which included excessive hours and travel associated with work including impounding and seizing of animals associated dealings with purported owners of animals including aggressive confrontations from such persons during and after working hours. Additionally the Applicant's duties included inspection of premises and potential health hazards associated with such inspections including Q-Fever and legionella. Furthermore the Claimant made complaints to his employer in relation to the lack of support and resources which were ignored.
Statement of William Cunningham dated 9 November 2020
1. I have been employed with Lachlan Shire Council since 2002. Initially I worked as a storeman until taking up the role of ranger, Senior Regulations Officer, in 2009. My work as a ranger includes travel around the biggest area of roads in New South Wales looking after eight towns and villages and 2 Aboriginal missions…
2. In 2016 I contracted Q-fever which put me off work for two weeks. Unfortunately Q fever can be a chronic disorder and every year I need to have the condition monitored and I do experience symptoms which I believe are related to the condition. I have seen a Professor Bowden of Canberra, an infectious diseases expert regularly since 2016… I have also contracted psittacosis in 2015/2016 which I attribute to shooting pigeons which were inhabiting a building. Additionally, I have caught a legionella infection… I also have two types of rickettsia caused by ticks, fleas, mites from companion animals.
4. I recall speaking to the general manager in the 2019 and raising my concerns in relation to safety and he simply said that if that's a concern for me you should consider looking at other jobs. I was devastated by this comment.
5. Another problem is that there are not enough police locally and in relation to the incident described above when the person tapped on my window/door I phoned the police who told me that there were no available police. This also concerns me that I will not be able to get police assistance if I need it.
7. In late July early August a fellow knocked on my door at about 6.00pm and asked me if I had his dog. For some reason even though this is a common event, the build up of everything and the concerns about death threats made me think about the earlier approach from the muscular fellow from 2019 and I can only say that I broke down and after having the conversation referred to above in late July/early August I couldn't cope any more. I went to see a GP Dr Chandranan of a medical centre at Condobolin. I went off work on 8 August 2020 and I have not returned to work since…
Statement of William Cunningham dated 16 May 2021
8. I am employed by Lachlan Shire Council in the position of Senior/Regulations Officer. I have held my current positions for about 11 years. I been employed by the Council since about 2003.
10. On leaving school I worked in various farmhand type positions for various employers, performing duties such as wool presser, burr sprayer and general farmhand work, for various periods up until securing employment with Lachlan Shire Council.
13. My current medical condition is Work Related Depression and Anxiety as diagnosed by Dr Hewa Chandana Mutukumarana of 3-5 Melrose Street, Condobolin…
16. I have not suffered any previous psychological conditions or episodes.
29. I currently take prescribed medication: - two separate antidepressants. Sertraline taken of a morning and Mirtazapine of a night, I don't recall the dosage and don't have them on hand. Mirtazapine was prescribed for me by Dr Chandara on 7 August 2020. Approximately a week later Sertraline was prescribed also Melatonin. The dosage of the night time medication was halved after a few days because I had a bad reaction the following day. I also take Micardis and Minex both for high blood pressure. I have been taking these medication for 10 - 20 years. The dosage for Minax has remained constant for years however from late July this was increased threefold on advice from Dr Chandara. I also take Diabex for high sugar. I have been taking this medication for about three years with an increase in the dosage, from one to two tablets in late July 2020.
37. I do not have any other employment. I have a small farm but not a liveable area.
39. I also have a small farm near my brother's property located out of town where I keep some sheep.
43. I commenced employment at Lachlan Shire Council in about 2003. I commenced as Assistant storemen and worked in that role for about seven years before commencing in my current position.
58. I have never been placed on any form of performance improvement plan or performance management by Lachlan Shire Council.
88. There was also another incident in late 2019 which affected me mentally and made me fear for my safety when at my home.
90. Kim Piercy is a very big and fit man, he doesn't work, but attends the gym most days. He apparently knocked out the current Australian heavyweight champion, Jimmy Thunder many years earlier.
93. I think the reason he came to my residence that night had something to do with one of the local cat people who he was hanging around with and who had been putting some posts on Facebook about the Council Regulations Officers.
95. I did not go outside. I was terrified.
100. I did see Kym Piercy next day and he said ‘what's the problem’ at the service station and then walked off after this however about one week later he went to my partner's workplace, the IGA Store, came up to my partner, patted her on the head, gave her a letter and walked off.
103. I have spooked by this ever since and I freak out every time someone comes my front door or if I hear noises on the veranda or street.
107. I felt unsupported by management and have felt like this for the last few years.
Supplementary Statement of William Cunningham dated 30 May 2023
6. My medication hasn't changed since my first admission to hospital. I am taking mirtazapine 30 mg per day, sertraline 200 mg and Olanzapine 2.5 mg.
8. I find I am extremely agitated in crowds or where there are animals which reminds me of my experiences as a ranger. Additionally I avoid any situations where there is any suggestion that alcohol might be consumed by anyone. As a result I avoid going out to dinner or going to the pub. My partner and I before my psychological condition began would routinely go out to the local pub for dinner and a quick drink every Tuesday night. We have not done this for a number of years since my condition developed. I avoid contact with my former friends. I had a very close friend who passed away and I couldn't even bring myself to go to his funeral.
9. On the other hand I still feel that my relationship with my immediate family members including my wife and my father and brother is maintained. However I do get short with them at times and I always feel guilty about this.
11. I feel I am not looking after myself well. I go three or four days without showering. I do not have much hair left these days. However previously I used to shave my head. However now I tend to forget to do this.
12. Prior to my illness I enjoyed social activities such as meeting friends and family at the pub or going for a meal somewhere. I ceased doing this and I avoid these sorts of activities altogether. I used to enjoy going to the local football games. I no longer do this.
Psychiatrist Dr Frank Chow report dated 27 December 2022
He stated that he was working as a senior ranger with Lachlan Council at Condobolin. He initially worked as a storeman for 7 years and then as a ranger for 11 years. He stated that he used to have supportive bosses. He was on call 24/7, 52 weeks a year for 11 years.
He stated that he was depressed and did not understand what was going on. He felt that life was not worth living…
He is currently being followed up by his GP. He has attended outpatient PTSD and anxiety programs at the hospital, one day a week for 10 weeks.
He stated that he still has fluctuating mood and is anxious easily. He is hypervigilant and cannot go outside as he does not feel safe. He has moved out of town as he got triggered easily. He still has sleeping disturbance, waking 4-5 times a week from nightmares. He has recurrent flashbacks and avoidance behaviours. He mostly stays at home.
Medication
Mr Cunningham is on:
oSertraline 200 mg.
oMirtazapine 30 mg.
oMicardis.
oDiabex.
oOlanzapine 2.5 mg BD.
oMelatonin 5-10 mg.
oQuestran Light.
3. Diagnosis.
Post-traumatic stress disorder and major depressive disorder.
5. Your opinion in relation to his fitness for any employment.
Mr Cunningham remains totally unfit for work.
Calculation of PIRS:
With an Aggregate Score of 19 and a Median Class of 3, the PIRS is 24%.
There are no pre-existing conditions and no treatment effect.
Psychiatrist Dr Sanjay Sinha report dated 22 October 2020
He has as part of his job euthanised several stray and dangerous animals…[people] turn up at his door accusing him of killing them (missing animals).
He had poor sleep last several nights, had been very stressed and fearful of people knocking on his door in middle of the night threatening him and Police not offering protection when he needed them under crisis. He went to HR department and said he couldn’t deal with this anymore and broke down.
I have diagnosed him with:
·PTSD.
·Major Depression.
Psychiatrist Dr Ash Takyar report dated 12 February 2021
Current Work Status
Mr Cunningham has not worked since he stopped in July or August 2020, though he noted that he and his family have a farm. His father and brother put in hours informally to help manage the property. He stated that sometimes he has to sell cattle, but he did not think that he was generally working more than around 15 hours a month.
3. Diagnosis.
Mr Cunningham presents with a DSM-5 major depressive disorder and a post-traumatic stress disorder.
St John of God Richmond Hospital medical records various authors, various dates
PTSD Checklist for DSM-5 (PCL-5)
A total score between 31-33 is indicative of probable· PTSD, Mr Cunningham scored well above this threshold indicating symptoms consistent with PTSD (68/80).
Additionally, Mr Cunningham endorsed a high severity of symptoms across all PTSD, criterion domains rated, re-experiencing (criterion B), avoidance (criterion C), negative alterations in cognition and mood (criterion D) and hyper-arousal (criterion E).
The clinical impressions of Mr Cunningham at the assessment indicates that, consistent with Dr Singh's assessment, Mr Cunningham meets the DSM-5 criteria for diagnosis of Post-Traumatic Stress Disorder…
Dubbo Medical and Allied Health Group medical records various authors, various dates
Recorded by: Dr Sanjay Sinha Visit date: 22/10/2020 Recorded on: 02/02/2021
Used to Work as a Ranger
had 8 town & villages & 2 missions On call 24/7 for 11+ yrs
Has to shoot wounded & feral animals
O/E: agitated
Very distressed while talking of work
Speaking loudly/ fast with a lot of emotions
Anxious looking
Imp: PTSD
Major depression
--Work related
--Partial remission with time off work
Psychiatrist Dr Yajuvendra Bisht report dated 29 March 2021
William said that he started to have psychological symptoms a few months before stopping work.
He has been consulting a psychologist at Parkes, and has been having appointments every 2 weeks.
He has had 3-4 appointments with a psychiatrist Dr Sanjay Singh.
William denied any non-work-related stressor in the last few years.
There were no signs or indications of exaggeration, malingering, inconsistency or unreliability.
The worker's diagnosis would be adjustment disorder with mixed anxious and depressed mood, as per DSM 5.
Comment Dr Baker
I do not concur with this diagnosis. The applicant’s experience of being threatened at his own home to be seriously injured as well as his partner and himself being approached in public in the context of an ongoing threat by two other brother’s to kill him by bashing him with iron pipes, is in keeping with posttraumatic stress disorder Category A using DSM5 criteria. I further note that in his 2023 assessment Dr Bisht changed his diagnosis to post traumatic stress disorder and major depressive disorder, as documented below.
Psychiatrist Dr Yajuvendra Bisht report dated 28 March 2023
5. Diagnosis and prognosis of the worker's present psychological conditions (if any).
The diagnosis is post-traumatic stress disorder and major depressive disorder. The prognosis of further improvement is unfavourable, considering the long duration of the condition so far.
Considering that he has reached maximal improvement, his capacity is unlikely to change in the foreseeable future.
Psychiatrist Dr Yajuvendra Bisht report dated 10 July 2023
2. Do you believe the worker is incapacitated for work from a psychological perspective? If so, does the new material provided cause you to change your comments in relation to capacity provided in your previous report?
The new material provided does not change my comments in relation to capacity provided in my previous report.
I accept that he finds it difficult to leave his home, but he is doing some activities at home on a regular basis, and therefore he does have some capacity for work, rather than no capacity.
Aggregate Score = 15
Impairment (% WPI) from PIRS table = 15%
Deductions for pre-existing impairment (%WPI) = nil
Deduction for contribution from comorbid conditions = 1.5 percent
Comment Dr Baker.
I do not concur with this deduction of ‘1.5 percent’.
Dr Bisht documented in his 29 March 2021 report, page 380 / 402 the following:
1. OTHER PSYCHOLOGICAL STRESSORS IN THE LAST FEW YEARS:
William denied any non-work-related stressor in the last few years.
Dr Bisht documented in his 28 March 2023 report, page 391 / 402 the following:
2. OTHER PSYCHOLOGICAL STRESSORS IN THE LAST FEW YEARS:
William has been having shoulder neck and lower back pain.
He described that this is a chronic pain, and has been present for a few years.
Intermittently, he takes pain medications for the same.
Comment Dr Baker
I note that pain is not an assessable under current guidelines and it is not part of an assessment for PIRS whole person impairment.
12. Do you consider there to be any pre-existing and/or non-work-related factors which have caused or contributed to his incapacity for work?
Could you please state what these factors are and the degree to which they have caused or contributed to same?
There is likely some, although minor, contribution from the chronic pain that he suffers from, to his incapacity to work. I would attribute 10% of the current incapacity to the psychological stress caused by the chronic pain.
Comment Dr Baker
I note current guideline 11.5 that if pain is present as the result of an organic impairment, it should be assessed as part of the organic condition under the relevant table. This does not constitute part of the assessment of impairment relating to the psychiatric condition. The impairment ratings in the body organ system chapters in AMA5 make allowance for any accompanying pain.
I note that Dr Bisht does not provide reasons as to how he reaches his attribution of ‘10% of the current incapacity’. I note that Dr Bisht does not provide an opinion as to whether or not the claimant sufferers from a somatic symptom disorder. For these reasons I do not concur with the assessment as documented by Dr Bisht.
14. The client's condition has worsened since our last appointment…I'm (Dr Bisht) unable to specify what jobs he would specifically be able to do, as I'm not an expert in vocational assessment, i.e., identifying specific vocational options.
Comment Dr Baker
The above declaration by Dr Bisht has been noted.
Psychiatrist Dr Yajuvendra Bisht report dated 10 July 2023
In my (Dr Bisht) report dated 28 March 2023, I had stated that ‘The diagnosis is post-traumatic stress disorder and major depressive disorder. The prognosis of further improvement is unfavourable, considering the long duration of the condition so far.
I (Dr Bisht) would consider the stressors mentioned in the section 'other stressors in the last few years' of my report, as being substantial.
Comment Dr Baker
I note that Dr Bisht had not defined any specific condition in relation to other stressors. He does not provide any explanation or reasons as to why he considered the other stressor being ‘substantial’. I note in prior reports Dr Bisht stated that the stressors were ‘minor’. These two descriptions are inconsistent. The reason for the difference is not explained.
The symptoms of the adjustment disorder would overlap with the work-related condition and therefore the impact of the non-work-related condition on the functioning cannot be precisely demarcated from the impact on functioning resulting from the work-related condition.
Comment Dr Baker
I note that Dr Bisht did not diagnoses a DSM5 defined adjustment disorder. Dr Bisht did not document what symptoms he is referring to in his report. Dr Bisht did not explain which of the two documented conditions in his PIRS Rating Form he is referencing as is required to comply with guideline 1.9.
Form 2C - Application to Admit Late Documents
Psychiatrist Dr Jaspreet Singh report dated 21 March 2022
Thanks for requesting a report for William who has been discharged recently from the inpatient unit.
I believe William meets the criteria for Post Traumatic Stress Disorder as per DSM V.
As per the report received from Dr Sinha, his local treating psychiatrist and the history obtained by me during the inpatient stay, there were no past psychiatric issues and no other current stressors that may have led to his current symptoms or may affect his recovery.
As noted above, he did not mention/reveal any family/personal factors which may affect his return to work or recovery.
I believe his employment with Lachlan shire council is the main contributing factor to his current presentation.
At the moment, I do not believe he has nil capacity for work or commence a return to work plan.
Clinical psychologist Dielle Horne report dated 8 June 2022
Psychometric Measures
A total score between 31-33 is indicative of probable PTSD, Mr Cunningham scored well above this threshold indicating symptoms consistent with PTSD (68/80).
Mr Cunningham meets the DSM-5 criteria for diagnosis of Post-Traumatic Stress Disorder. Based his clinical interview it is apparent that since his workplace injury Mr Cunningham experiences.
Clinical psychologist Dielle Horne progress report dated 27 October 2022
Post-traumatic Stress Disorder (PTSD) Checklist for DSM-5 (PCL-5)
Pre-program score: 59
Post-program score: 60
Mr Cunningham scored above this threshold indicating symptoms consistent with PTSD. Additionally, Mr Cunningham endorsed symptoms across all PTSD criterion domains. These domains are re-experiencing, avoidance, negative alterations in cognition and mood, and hyper-arousal.
Patient Health Summary | Mr William Cunningham various authors, various dates
Current Medications:
Cialis 5mg Tablet 1 tablet prn
Melatonin 2mg Prolonged release tablet 1 tablet in the evening
Mirtazapine 30mg Tablet 1 tablet in the evening
Comment Dr Baker
The medical records regarding 22/10/2020, 15/12 2020, 1/01/2021 and 14/01/2021 have been read and considered.
PsychSolutions Health and Wellbeing
Rebecca Stone 19/04/2023 to 16/06/2023
Comment Dr Baker
I note that the claimant is continuing to attend for psychological treatment due to his posttraumatic stress disorder.
Dubbo Medical and Allied Health Group | Mr William Cunningham various authors, various dates
Medication
Cialis 5mg Tablet 1 tablet prn
Melatonin 5mg Tablet, 1 tablet in the evening
modified release
Mirtazapine 30mg Tablet 1 tablet in the evening
Olanzapine 2.5mg Tablet 1 tablet twice daily
Sertra 100mg Tablet 2 tablets in the morning
Mental Health from 13/01/2021 to 17/08/2021 page 49
Comment Dr Baker
This record has been read and considered.”
The appellant complains that the Medical Assessor has erred in respect of one of the PIRS categories assessed, namely Employability. The appellant also complains that the Medical Assessor erred when he failed to make a deduction under s 323.
The Panel cannot interfere with these ratings absent error by the Medical Assessor. The Panel cannot interfere with the rating because opinions might differ as to the best fit in each category. There must be error or assessment on the basis of incorrect criteria.
The appellant complained on appeal that the Medical Assessor should have assessed a Class 3 or moderate impairment for employability rather than the Class 5 or total impairment that was assessed.
In respect of Employability, Table 11.6 of the Guides provides as follows:
| Class 1 | No deficit, or minor deficit attributable to the normal variation in the general population. Able to work full time. Duties and performance are consistent with the injured worker’s education and training. The person is able to cope with the normal demands of the job. |
| Class 2 | Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required). |
| Class 3 | Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful). |
| Class 4 | Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic. |
| Class 5 | Totally impaired: Cannot work at all. |
Table 11.6: Psychiatric impairment rating scale – employability
The Medical Assessor rated Class 5 with the following explanation:
“Mr Cunningham was unfit to return to his primary substantive role with this employer at any time in the future. Mr Cunningham did not work or participate in employable activities on his block of land. The stock on the land was managed by his brother who held a smaller holding close to Mr Cunningham’s holding. The size of the holding was insufficient to be economic. Mr Cunningham had made no effort to manage the remaining stock and was reliant on his brother and father to clear the stock prior to the summer when there will be insufficient natural feed.”
The appellant submitted a Class 3 should have been assessed. The appellant submitted that the Medical Assessor gave undue weight to the worker’s specific past employment and employment activities in determining that he has a Class 5 impairment for employability and has not considered the respondent’s ability to engage in alternate form of work. The appellant goes on to submit that:
“...throughout the MAC, the MA has noted that the worker remains able to clean and maintain his home, shop at his preferred shop, maintain his medical appointments. He has not however considered whether these activities would lead to some kind of capacity for work.”
The appellant relies on the assessment of Dr Bisht, the Independent Medical Expert (IME) who was qualified to provide an opinion on behalf of the appellant who assessed a moderate impairment at Class 3 for employability on the basis of a finding that the respondent could work in unspecified employment that did not require to leave the house or interact with clients or perform detailed oriented tasks. The submission of the appellant is not persuasive. The appellant is pointing to a completely theoretical category of employment suggested by Dr Bisht, the IME qualified to provide an opinion on their behalf. The appellant does not specify with actual occupation this supposedly is or why Mr Cunningham has the capacity to perform this role. Being able to attend to self care and personal hygiene and attend medical appointments does not equate to employability. The Medical Assessor was entitled to make an assessment of employability at Class 5 on the basis of his clinical findings on the day of assessment having due regard to the other evidence that was before him and not based upon self report alone and in accordance with the correct criteria in the Guidelines.
The Appeal Panel can discern no error in the assessment of Class 5 when the MAC is read as a whole as the Medical Assessor’s findings were open to him on the basis of his findings on the day of assessment, using his clinical judgment and they accord with the criteria for that class and it is the best fit. The worker cannot work in his pre-injury employment with the appellant and the Medical Assessor finding that he cannot work at all was available to him on the basis of his clinical judgment on the day of assessment noting his diagnosis that the respondent workers suffer post-traumatic stress disorder which continues to produce florid symptoms that impair the worker from employment.
The Appeal Panel can discern no error in the rating of a total impairment. The guides give examples and it is up to the Medical Assessor to use his or her clinical judgment in deciding the best fit. The Appeal Panel cannot interfere because reasonable minds might differ in ascribing a class. Rather the Appeal Panel must be satisfied as to error. Here the Appeal Panel considers that a Class 5 for employability was open to the Medical Assessor in accordance with application of correct criteria and the Appeal Panel can discern no error.
The assessment by the Medical Assessor was open to him and is in accordance with correct criteria. The Appeal Panel can discern no error in the Class 5 rating for employability.
Turning next to the question of the deductible proportion under s 323. The Medical Assessor did not make a deduction under s 323 for reasons which are adequately explained when the MAC is read as a whole.
A deduction under s 323 can only be made if a pre-existing injury, condition or abnormality has contributed to the overall level of permanent impairment assessed.
There is no evidence that was before the Medical Assessor supports that any secondary psychological condition has in fact been diagnosed and could be considered a pre-existing condition. abnormality or injury that has contributed to the current overall level of permanent impairment assessed as a result of the primary psychological injury of post-traumatic stress disorder as diagnosed by the Medical Assessor.
For these reasons, the Appeal Panel has determined that the MAC issued on 20 September 2023 should be confirmed.
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