Lee v NSCA Foundation Ltd t/as National Security Council
[2025] NSWPICMP 424
•17 June 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lee v NSCA Foundation Ltd t/as National Security Council [2025] NSWPICMP 424 |
| APPELLANT: | Kathryn Rosemaire Lee |
| RESPONDENT: | NSCA Foundation Ltd t/as National Security Council |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Professor Nicholas Glozier |
| MEDICAL ASSESSOR: | John Baker |
| DATE OF DECISION: | 17 June 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal from psychological assessment of 22% whole person impairment (WPI) reduced pursuant to section 323 to nil; whether procedural fairness denied to worker; whether referral dictated that the injury was a disease injury contracted during employment; whether the referral dictated that the diagnosis was an adjustment disorder; whether error made in assessment of employability; whether section 323 100% deduction erroneous; Held – diagnosis a matter for the Medical Assessor (MA); Wingfoot Australia Partners Pty Ltd v Kocak applied; procedural fairness available but not used; section 327(3)(b) and section 328 considered; referral defined only ‘psychiatric/psychological’ injury and a deemed date of injury; MA at liberty to make decisions regarding causation as part of function; Bindah v Carter Holt Wood Products Australia (Pty) Limited applied; employability rating open to MA on facts; MA exceeded power by deducting 100%; Chapter 11.10 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 methodology used to establish quantum of section 323 deduction; conflict between Marks v Secretary, Department of Communities and Justice (No2) and Matheson v BaptistCare NSW and ACT noted; MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 December 2024 Kathryn Rosemaire Lee, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Melissa Barrett, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 November 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the 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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment. “PIRS” is a reference to the Psychiatric Impairment Rating Scale.
RELEVANT FACTUAL BACKGROUND
On 28 October 2024, an amended referral was made to the Medical Assessor for an assessment of WPI caused by psychiatric and psychological disorders on a deemed date of 25 May 2014, following consent orders made by Member Josephine Bamber on 7 August 2024.
The Application to Resolve the Dispute claimed that Ms Lee had suffered an injury on 26 November 2012, but the permanent impairment claim stated that the date of injury was 1 May 2014. No point was raised as to this apparent inconsistency, and we note that the referral was later amended to give the relevant date as 25 May 2014.
The history taken by the Medical Assessor noted prior psychiatric symptoms in 2011 in Ms Lee's previous workplace, O'Donnell Griffin, in which Ms Lee said her allegations were investigated and upheld in a previous workers' compensation claim.
Ms Lee began working at "City of Sydney" in late 2012 and gave, the Medical Assessor said, a history that was difficult to follow. Ms Lee’s statement said that she was contracted out to City of Sydney via NSCA Foundation Ltd t/as National Security Council (the respondent) and held basically a labour hire position. She began there on 12 November 2012, holding the position of Safety Officer.
Difficulties began, Ms Lee said, in 2013 when she underwent emergency gallbladder surgery. She stated that “LT” had told staff that she was having a baby (she was born in 1966), and she started receiving calls congratulating her and baby gifts.
She was assigned a personal assistant from 2014, “TF”, who had previously worked for LT and “ML.” TF, Ms Lee said, had suicidal tendencies. Ms Lee said that TF had been physically assaulted by LT and that Human Resources (HR) had locked TF in the office.
Ms Lee was particularly distressed regarding sexualized messages that were sent between LT and ML. LT had sent the messages by email to TF to harass her and those messages had been sent by TF to Ms Lee. It was alleged that LT physically assaulted Ms Lee and punched her, and that other people were holding her back.
Ms Lee was dismissed from the workplace in 2014, but took an unfair dismissal claim to Fair Work Australia where her claim was upheld.
The history taken by the Medical Assessor was that her psychiatric symptoms began on the day that she had been “bashed” from mid-2014 to mid-2015. Those symptoms became worse from mid-2015 when she became aware that a person previously employed by the “City of Sydney” had died by suicide. She had been contacted by Workcover as part of the investigation and she felt a sense of responsibility.
The Medical Assessor found 18% WPI, which the parties agreed had been erroneously calculated and should have been 22%. The Medical Assessor deducted the whole of the assessment pursuant to s 323 of the 1998 Act.
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.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the primary challenge to the MAC concerned the application of s 323 of the 1998 Act. This dispute depended on the evidence already before the Medical Assessor which related to prior injuries and pre-existing conditions and abnormalities. A secondary dispute related to the class rating for two of the categories in the PIRS, in respect of which there was no reason to re-examine the appellant, as the rating is a discretionary matter, as will be seen in our reasons, below. Further, in view of the inconsistencies in her histories, there is no point in conducting a re-examination with Ms Lee.
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 which 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 MAC
In taking Ms Lee's history, the Medical Assessor said:[1]
“Ms Lee reported that she had experienced psychiatric symptoms, depression, and fear of going to work in 2011, in the context of alleged assaults in the workplace. In her previous workplace, O'Donnell Griffin where she worked in a safety role she reported that when she informed a work colleague of a safety breach he responded aggressively, threatening to kill her and swearing at her. She states this was witnessed. She alleges she was subsequently locked in the office. She alleges that when she suggested to her employer involvement of police, they threatened her job security. She added that she had eight flat tyres, very unusual, apparently linking the flat tyres to the issues in the workplace.
In regard to her specific symptoms, she described fear of going to work, depression, that In regard to her specific symptoms, she described fear of going to work, depression, that she was ‘emotionally upset’ thus, she would ask her sister to stay with her. She was uncertain if she had nightmares. ‘I don’t know if they were nightmares or not.’
This was the subject of a previous Workers' Compensation claim. She was on leave from work. She states her allegations were investigated and upheld. She reports she saw a psychologist, Tony Georginis for about three months. She reported she made a complete recovery by 2012, and had no further symptoms.”
[1] Appeal papers page 35.
In taking the history of the events that distressed Ms Lee during her employment with the respondent, the Medical Assessor described assaults on her personal assistant when “LT” had assaulted her. The Medical Assessor said:[2]
“She appeared particularly distressed regarding sexualised messages that she alleges were sent between LT and ML. She alleges that LT had sent the messages to her that the assistant, ‘to harass her’, and that the assistant subsequently sent the messages to Ms Lee by email. She alleges LT physically assaulted her, punching her and that ‘other people were holding her back’. She stated she was dismissed from the workplace in 2014 but that she took an unfair dismissal matter to Fair Work Australia where her claim was upheld. She subsequently lodged a workers compensation claim.
In regard to her psychiatric symptoms, she stated they began ‘the day I was bashed. I’d had enough’ from mid-2014 to mid-2015. She says the symptoms worsened from mid- 2015 after she became aware that a person who had been previously employed by the City of Sydney had died by suicide and she had been contacted by WorkCover as part of their investigation of that matter. She said she felt a sense of responsibility.”
[2] Appeal papers pages 35-36.
The Medical Assessor referred to the present symptoms complained of by Ms Lee during the consultation. The Medical Assessor noted:[3]
“Present symptoms:
When asked to describe her current symptoms, she responded, ‘I go on a defence’. She stated she had ‘paranoia’ about being followed. She reported that over the last ten years she had been ‘watched extensively, by the insurers. Just last week she stated there was a car parked outside of her home. She expressed the view that she has been blacklisted for further employment at any government agencies. She stated recruiters have told her that the City of Sydney has labelled her problematic, a ‘whistle blower’ ‘they don’t want you, you’ve got too much evidence’.
She acknowledges she feels unsafe ‘you don’t know who is connected with who’. She said she is concerned about various people, former work colleagues LT and ML, the insurers, and she considers the City of Sydney Council has a strong mafia connection. She has responded to these concerns by putting up security cameras and is trying to put up a large fence. She described some referential beliefs. She considers that TV news items were positioned so that they would ‘tell me to back off, shut up’ for example, news items about setting up injured workers were messages to her ‘if she is keep going with this… She stated she felt paranoid about leaving her house.
She stated whilst driving she has feared that she was being followed and she sped up to avoid cars that she thinks are following her. This has resulted in a number of speeding fines.”
[3] Appeal papers page 36.
With regard to the two motor vehicle accidents Ms Lee suffered in 2016 and 2017, the Medical Assessor noted:[4]
“She has had two previous motor accidents, one in 2016 and 2017, each when she was stationary and hit from the rear. She stated that the 2016 accident at-fault driver’s father worked for the NRMA. She stated when her car was at the smash repairer, the at-fault driver’s father told her not to put the matters through the insurer. She suggested that the 2016 motor accident was intentionally set up, stating ‘everyone knew where I was going that day’. she also considered that the 2017 accident was ‘probably’ also intentional although she added, but I’m over it.”
[4] Appeal papers page 37.
In discussing Ms Lee's social activities, the Medical Assessor noted again that Ms Lee attributed having two car accidents in one year to have been intentionally set up.
The Medical Assessor also recorded:[5]
“She reports significant difficulty with concentration. Describing it as, ‘not good’. I asked her specifically about her involvement in the Supreme Court matters in regard to her father’s estate. She stated she had a solicitor who was fired by the duty judge. She stated ‘I’ve had four solicitors, ‘How and why?’. ‘It’s not normal – is it because of my evidence?’ ‘Do they have this sort of control over icare?’ She reported that she likes to read magazines.”
[5] Appeal papers page 39.
In the findings on examination at [5] of the MAC, the Medical Assessor stated:[6]
"She feels a strong sense of resentment, ‘I do everything right. Nothing has benefitted me’. She made numerous allegations about the last two long-term workplaces, including about two different work colleagues threatening to kill her, assaulting her, stalking her, and allegations of blacklisting, ongoing surveillance, and responsibility for two car accidents which she considers were intentional and related to this matter. Further there was evidence of some referential beliefs from the television, with an interpretation that various news items were placed there to warn her not to continue with the matter. She that she is unsafe, and considers that there is an ongoing risk from her former work colleagues, the insurers, the City of Sydney and their links to mafia. She has acted on these beliefs, installing security cameras, trying to put up a big fence around her home, speeding up to avoid cars she thinks are following her causing speeding tickets, and avoiding going out in public. In my clinical judgement, her concerns are consistent with the characteristics of paranoid delusions.”
[6] Appeal papers page 39.
The Medical Assessor noted at the same point "She has poor insight into her condition, and appears to have had a reluctance to utilize psychotropic medications."
In giving her summary at [7] of the MAC, the Medical Assessor said:
“In my view Ms Lee’s presentation is most consistent with the clinical presentation of chronic psychotic condition, with the differential diagnosis being a delusional disorder or schizophrenia.
She fulfils criteria as there appears to be a clear pattern of paranoid delusions, allegations about the behaviour of colleagues in the workplace, and additional allegations of being stalked by former colleagues from two different workplaces, that two different workplaces are responsible for various acts of violence against her, including slashing her tyres, and causing intentional motor accidents, and she has sustained concern about being watched and followed, which is at a level of intensity that has resulted in her acting upon these beliefs, installing security cameras, building a large fence, avoiding driving and avoiding being out in public, consistent with delusional intensity.
Further she described symptoms consistent with referential delusions, interpreting the placement of news items as designed to give her a particular message to cease the claim.
The mental state examination findings were consistent with a psychotic condition, noting her a restricted range of affect and importantly, her thought disorder, a circumstantial thought form. She did not provide a history of perceptual abnormalities and there was no clear objective evidence of hallucinations on examination at the time of assessment, but given the allegations of verbal threats by colleagues recorded in Dr Young’s report of May 2005, where none of her allegations from that workplace were upheld by witness statements, and her allegations of hearing a work colleague at the City of Sydney walk past and repeat, ‘It’s Kathryn’s fault’. There is a possibility of the presence of auditory hallucinations.
In addition the intensity of her preoccupation, at the expense of her relationships, capacity to work and the gradual and progressive worsening of psychosocial functioning, including self-care, is consistent with the clinical course of an untreated psychotic illness.
On cross-sectional assessment it is not possible to accurately differentiate between a
diagnosis of a delusional disorder or schizophrenia. The provisional diagnosis would be of delusional disorder.
Although Ms Lee provides a history of resolution of her previous symptoms by 2012, when she commenced work with City of Sydney, this is not consistent with records of her treating psychologist, who continued to treat her throughout this period. Further it is not consistent with history she provided to Dr Canaris when he assessed her in December 2013, or the history she provided to Dr Norman Rose, when he assessed her in July 2014.
Unusually although Dr Rose’s report was dated July 2014, she apparently did not relay to him any concerns about City of Sydney workplace, and instead presented that her employment with the City of Sydney had ended because her contract had ended.
It is common that individuals with these conditions having poor insight into their condition, and thus it is difficult to be certain of the onset of her symptoms. Based on Dr Young’s report, it may have been that there was some early evolution of her symptoms as early as 2005. Nevertheless, from at least 2011 here is clear evidence of ongoing symptoms of the psychotic condition, prior to commencement of work at the City of Sydney.”
In answering the templated question about whether Ms Lee was suffering from a pre-existing condition the Medical Assessor said at [8e] of the MAC:
"Yes, it is evident that Ms Lee’s condition was pre-existing, possibly beginning as early as 2005, but certainly from 2011, prior to beginning work in City of Sydney. The allegations she made regarding the previous workplace, O'Donnell Griffin, including that after she left her former work colleagues were then stalking her, damaging her property by slashing her tyres, flattening her battery and following her, is consistent with the nature and type of the paranoid delusions she has expressed regarding colleagues in the subsequent workplace of City of Sydney. It is the nature of such conditions that the person will develop new delusions in a new environment, such as a new home location or workplace, akin to her continuing to believe she is followed in different locations. The new delusions are evidence of the persistence of a chronic psychotic condition, likely delusional disorder, and do not represent a new condition.”
At [9] the Medical Assessor explained the facts on which she had based her assessment. . She said:[7]
“I have considered all of the medical evidence provided, which includes multiple independent psychiatric reports spanning a period from 2005 through until 2024. I have combined the information contained in those reports with my own examination, psychiatric history and mental state examination findings, and applied my clinical judgement and knowledge of the natural history and usual presentation and clinical course of this particular psychiatric condition.”
[7] Appeal papers page 42.
In giving her reasons for assessment, the Medical Assessor noted that Ms Lee had a "Significant psychiatric condition" and assessed her at what is now agreed to be 22%. The respondent has conceded that the WPI total of 18%, calculated in the PIRS, and repeated the formal certificate issued, was incorrect.
The Medical Assessor stated that she would take into account the following:
“Her history in regard to symptoms and the impact upon her current functioning, the examination findings of restricted affect, paranoid and referential delusions and circumstantial thought form which are consistent with the diagnosis, and the combination of all of the medical evidence which clearly demonstrates a progression of her psychotic symptoms, with associated gradual psychosocial decline, which is consistent with the natural history of these conditions, especially when untreated.”
In commenting on other medical opinions before her, the Medical Assessor said:[8]
“Many of the reports provided were written many years ago, including that of Dr Norman Rose which was written over ten years ago. Despite that, within each of the reports are some common themes, of an intense preoccupation with paranoid beliefs about each workplace, extending into ongoing concerns about being stalked or followed, which she was acting upon by avoiding certain locations or adopting various safety behaviours, such as not using public transport at night or going out at night. With the benefit of retrospect, these reports are consistently reporting paranoid delusions.
Further a number of psychiatrists noted some reduction in her self-care, restricted affect and importantly a circumstantial thought form, which are mental state examination findings consistent with a psychotic disorder.
I have formed a different diagnosis to that of my colleagues, but I expect that is because I have had the benefit of viewing all of the documentation, including multiple psychiatric reports spanning between 2005 and 2024, and therefore have been able to see the pattern of progression of her positive psychotic symptoms and psychosocial decline which confirms the diagnosis. My colleagues had provided diagnosis of adjustment disorder, or persistent depressive disorder, but neither of these diagnoses are appropriate in my opinion as neither explain her symptoms of paranoid and referential delusions or thought disorder.”
[8] Appeal papers pages 43-44.
The Medical Assessor explained the deductions she had made by stating at [11] that the pre-existing condition suffered by Ms Lee was "chronic psychotic condition, the differential diagnosis being delusional disorder or schizophrenia."
She explained further at [11b]:
“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:
There is evidence from the documentation, including numerous independent psychiatric reports, as well as the treating records of the then treating psychologist that Ms Lee had a symptomatic psychiatric condition, with paranoid delusions, prior to commencement of work at the City of Sydney. Her condition likely arose by 2011 at the latest, and possibly was in evolution from 2005.
Chronic psychotic conditions, such as delusional disorder or schizophrenia are by their nature ongoing. Without appropriate treatment with an antipsychotic agent, there will be persisting psychotic symptoms, with the content of delusions which may morph depending upon the environment the person is placed in. That is a person with paranoid delusions may believe they are being watched or followed in one particular work or home location, and may move home or employers to escape their persecution, but will inevitably develop new paranoid delusions about the new workplace or home. This is the pattern that has occurred in Ms Lee’s presentation. Her current condition therefore represents the continuation of the pre-existing condition arising in 2011.
Based on the information contained in independent psychiatric reports in the period closest to her period of employment with the City of Sydney, particularly that of Dr Norman Rose who completed the previous WorkCover medical assessment certificate on 11 July 2014, there was no exacerbation of the pre-existing condition caused by the events in the City of Sydney workplace. Instead, she already had the pre-existing condition of a chronic psychotic condition when she began working at City of Sydney, and as a result of the ongoing symptoms of the pre-existing condition, has developed paranoid and persecutory delusions about the City of Sydney Council.
In my opinion the deductible proportion is 18% for the following reasons:
(i) The current symptoms represent continuation of pre-existing condition of chronic psychotic condition, likely delusional disorder, and the expected natural history of this condition when untreated. There is no evidence of any exacerbation in the City of Sydney workplace.”
SUBMISSIONS
Ms Lee referred to the medical opinions that were remitted to the Medical Assessor. She submitted that the effect of the orders made by Member Bamber on 7 August 2024 was that Ms Lee had suffered a psychological injury arising out of or in the course of her employment to which her employment was the main contributing factor. She submitted that the main contributing factor was either to the contraction or the aggravation, et cetera, of a disease process as we understood her.
She said:
"….. As there had been no allegation of an aggravation of a pre-existing condition, the injury was a disease within the terms of s 4(b)(i) and 15. Any section 323 deduction could only relate to an injury, abnormality or condition that predates the first time that the appellant was employed in employment to the nature of which her injury was due"
She submitted that:
"On the evidence, the appellant was first subject to the behaviour capable of causing her injury when she was employed by Optus in 2005."
Ms Lee referred to Oswell v Sublime Install Pty Limited[9] in that regard but without any explanation as to why that authority was relied on.
[9] [2024] NSWC 1586.
Ms Lee said that the referral reflected the orders made by Member Bamber. Ms Lee said that although the injury was deemed to occurred on 1 May 2014, that was later amended to a deemed date of 25 May 2014.
It followed, Ms Lee argued, that the Medical Assessor was bound by “the effect of the orders.” She submitted that "given the agreement between the parties" the Medical Assessor was also bound to find that the injury was a major depressive disorder.
Ms Lee noted that the Medical Assessor in fact diagnosed her as having a chronic psychotic condition with a differential diagnosis of a delusional disorder or schizophrenia. That condition the Medical Assessor had found was pre-existing, possibly beginning as early as 2005.
It was submitted that the finding that the condition was pre-existing was incorrect.
Ms Lee noted that the Medical Assessor found there to be an 18% WPI, but that it should all be deducted pursuant to the provisions of s 323 of the 1998 Act.
Ms Lee submitted that the Medical Assessor had fallen into error in both her calculation of 18% and the deduction she made pursuant to s 323.
She then set out her submissions in point form.
Error one: incorrectly assessing employability
To was submitted that the Medical Assessor had erred in giving a class 4 rating in this category because she had not had any capacity for work since about 2018.
We referred to the Guides in that regard and the distinction between classes 4 and 5.
Ms Lee argued that since the Medical Assessor found that Ms Lee had no capacity to work since about 2018, the allocation of a class 4 rating indicated that she did have some capacity as defined in the descriptors for that class – "Cannot work more than one or two days at a time, less than 20 hours per fortnight." This, we understood Ms Lee to argue, was not an accurate summation of her employability.
Second error: the incorrect application of the Guides in calculating the impairment
A correct application of her findings and ratings in the PIRS table would have resulted in a 22% current WPI assessment Ms Lee argued – which has been conceded by the respondent.
Third error: the Medical Assessor had failed to comply with the terms of the referral
Ms Lee alleged that the referral followed a finding that there was a psychiatric injury that had arisen out of, or in the course of her employment and to which her employment had been the main contributing factor.
The Medical Assessor, it was argued, had failed to identify the work injury or to inquire what impairment resulted from it. It was submitted that she did not therefore engage in her statutory task.
We were referred to Bindah v Carter Holt Wood Products Australia (Pty) Limited[10] and Ooi v NEC Business Solutions Limited.[11]
[10] [2014] NSWCA 264 at [110].
[11] [2006] NSWWCCPD 131.
Ms Lee submitted that the Medical Assessor had concluded there was no injury, which was not open to her. She was required by the material to proceed on the basis that the injury was a major depressive disorder.
Fourth error: denial of procedural fairness
Ms Lee had not been diagnosed at any time by any psychiatrist to be suffering from a psychotic condition, she submitted. Dr Rastogi and Dr Ventura recorded denials of the same in October 2020 and March 2022 respectively, neither Dr Canaris nor Dr Samuell had found evidence of psychosis. The question had never been raised in the proceedings and Ms Lee had no opportunity to address the issue. This amounted to a demonstrable error, it was claimed, relying on Siddick v WorkCover Authority (NSW)[12] and Energy Australia Ltd v Butler.[13]
[12] [2008] NSWCA 116.
[13] [2010] NSWSC 487.
Ms Lee submitted that the Medical Assessor had based her opinion that Ms Lee had a clear pattern of paranoid delusions on her assertions that she had been stalked by former colleagues from two different workplaces. The relevant evidence had not been properly considered by the Medical Assessor, Ms Lee submitted, and the Medical Assessor did not refer to any evidence that established that the allegations were delusional.
The Medical Assessor had relied on a comment by Dr Young in 2005 that Ms Lee's assertions had been directly contradicted by other witnesses. There was however no evidence of any determination on the merits of that finding by Dr Young, Ms Lee said. The witnesses' identities were not known and neither was the basis on which Ms Lee's complaints had been contradicted. The fact that there were conflicting accounts was not a proper basis for concluding that Ms Lee's complaints were delusional, she submitted.
The Medical Assessor was also alleged to have erred by failing to consider that the earlier claim against O'Donnell Griffin Pty Limited had been determined on 23 April 2014 in Ms Lee's favour.
Ms Lee submitted further that there was no evidence to contradict the history she gave regarding the events that she witnessed whilst working for the respondent.
There was accordingly no basis for finding that those complaints were delusional.
Ms Lee submitted that in the face of the emails that verified her complaints which had been lodged in the Commission, it gave no basis for a finding that her complaints were delusional. The Medical Assessor was required in those circumstances to raise those matters with the parties and give them an opportunity to be heard it was argued.
This matter had not been raised by the parties or addressed directly in any of the evidence, Ms Lee submitted.
Finally, Ms Lee submitted that the Medical Assessor failed to identify a condition that could properly form the basis for a deduction pursuant to s 323.
Accordingly, it was submitted that Ms Lee should be re-examined by a member of the panel.[14]
[14] Which we decline to do for the above reasons, see [17], above.
Respondent
The respondent submitted that the appellant bore the onus of establishing error on behalf of the Medical Assessor. It firstly conceded that a proper assessment of the Medical Assessor's findings should have equated to 22% and not 18%.
Having said that however, the respondent did not accept that the Medical Assessor had fallen into error by making a 100% deduction in respect of Ms Lee's pre-existing psychotic condition.
The respondent submitted that there was no evidence that the examination by the Medical Assessor was defective, and it was submitted that it was in fact in accordance with the role and function of a Medical Assessor.
The respondent submitted that the appellant's assertion that there was no evidence lodged by the employer was not correct. It referred to its six dispute notices which declined liability because Ms Lee had failed to provide notice of her injury or lodge a claim within the time frames, which led to an inability by the respondent to properly investigate her allegations, including the obtaining of statements from the respondent's witnesses.
In regard to Ms Lee's submission as to the effect of the referral, it was submitted that the Certificate of Determination did not contain any agreement or orders that the appellant suffered a psychological injury arising out of or in the course of her employment, to which the employment was the main contributing factor for either the contraction or aggravation of a disease process pursuant to s 4(b) and ss 15 of the Workers Compensation Act 1987 (1987 Act).
The respondent noted that following the Certificate of Determination, the date of injury was later amended to read "25 May 2014 (deemed) for events between 26 November 2012 to 1 May 2014”. It was an overstatement to assert, it was submitted, that Ms Lee's claim was confined to the contraction of a disease pursuant to s 15 of the 1987 Act.
There had, it was submitted, been no such concession, and the pleadings and the medical evidence did not prevent a conclusion being reached that Ms Lee had suffered an injury consisting of an aggravation of a disease process as defined by s 16.
The relevant issue however the respondent submitted, was the extent to which s 323 of the 1998 Act was engaged in the circumstances where Ms Lee had either contracted or aggravated a disease condition.
The Medical Assessor appropriately applied the provisions of s 323 in the circumstances that she was considering, it was submitted.
The respondent noted that Ms Lee in her submissions agreed that she had been found to have a psychological injury whilst employed in 2005 for a different employer, Optus, and that injury had occurred some seven years before Ms Lee commenced employment with the respondent.
It followed that Ms Lee herself conceded that she was suffering from a pre-existing psychological injury it was argued.
The respondent submitted that that Ms Lee had failed to address the question of whether she did suffer from a pre-existing psychological condition, which were not necessarily related to her employment with the respondent.
The respondent referred to Oswell, noting that no submission had been made as to how that authority applied to the present situation.
With regard to Ms Lee's submissions regarding the obligation by the Medical Assessor to find that the injury consisted of a major depressive disorder, the respondent submitted that whilst the Medical Assessor was bound to provide an assessment in terms of the referral, the Medical Assessor was not bound by any diagnosis given by any other doctor. It was submitted that a diagnosis was a matter for medical opinion and "not a lawyer's analysis."
The Medical Assessor was required to draw her own conclusions based on her own examination, the evidence before her, her clinical judgment and expertise.
The respondent submitted that the Medical Assessor accordingly provided a diagnosis on those bases, which she had acknowledged in giving her comments at [10c] of her MAC.
With regard to the diagnosis the respondent, noted that the Medical Assessor made a diagnosis of "chronic psychotic condition with a differential diagnosis of delusional disorder or schizophrenia."
The respondent noted that the Medical Assessor held that that Ms Lee's condition was pre-existing, possibly as far back as 2005, and certainly by 2011, and that such a finding was open to her on the evidence.
With regard to Ms Lee's submissions about the correct rating the Medical Assessor ought to have made for the category of employment, we were referred to the reports of Dr Rastogi and Dr Bisht regarding Ms Lee's capacity for work. Her class 4 in the assessment, the respondent submitted, was open on the evidence.
The respondent addressed Ms Lee's submissions about the referral by repeating that the effect of the referral was to require the Medical Assessor to assess whether there was an impairment "of the worker's psychological body system" and if so, whether it resulted from the referred injury or from a pre-existing injury, condition, or abnormality, (or both) and to provide an assessment in accordance with her findings.
The respondent submitted that it was not correct, as asserted by the appellant, that the Medical Assessor did conclude that there was no injury. The respondent submitted rather that the diagnosable psychological condition that created the assessable impairment related to Ms Lee's pre-existing condition.
As to the submission that Ms Lee had been denied procedural fairness, the respondent submitted that the conclusions reached by the Medical Assessor arose on the basis of the evidence that was before her.
Indeed, it was submitted the Medical Assessor had said as much at [10c] of her MAC, which the respondent kindly reproduced in bold.
The respondent referred to the submissions that the Medical Assessor did not refer to the evidence before her in respect of her findings and submitted that to the contrary the Medical Assessor had gone to great lengths to discuss the relevant evidence in reaching her conclusions. It was submitted that the procedural fairness had not been denied to Ms Lee.
With regard to Ms Lee's submissions that the Medical Assessor failed to identify a condition that could properly form the basis of a deduction pursuant to s 323, the respondent submitted that sufficient evidence was before her.
We referred to the well-known cases of Cole v Wenaline Pty Ltd[15] and Vitaz v Westform (NSW) Pty Ltd.[16] There was no support for Ms Lee's submission that there was no evidence before the Medical Assessor in that regard. Indeed, it was submitted, it was significant.
[15] [2010] NSWSC 78.
[16] [2011] NSWCA 254 at [42]-[43].
We referred further to Ryder v Sundance Bakehouse[17] with regard to the application of s 323.
DISCUSSION
Legislation
[17] [2015] NSWSC 526.
Section 4 of the 1987 Act provides:
"‘injury’-
(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means-(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease’…”
Section 319 of the 1998 Act provides:
"‘medical dispute’ means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim-
(a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker's fitness for employment,
(c) the degree of permanent impairment of the worker as a result of an injury,
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e)the nature and extent of loss of hearing suffered by a worker,
(f) whether impairment is permanent,
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”
Section 323 of the 1998 Act provides relevantly:
“323 DEDUCTION FOR PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
The PIRS
The PIRS is established as the rating system for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
Chapter 11.12[18] provides:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
[18] Guides page 55.
The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[19]
[19] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides page 66.
The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[20] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Appeal Panel had fallen into jurisdictional error. He said at [23]:
“By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:
‘… the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face’.
24. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
25. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales[21]. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’: Appeal Panel reasons at [37].”
[20] [2017] NSWSC 887.
[21] [2015] NSWSC 633.
In Glenn William Parker v Select Civil Pty Ltd,[22] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:
“In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])…..”
[22] [2018] NSWSC 140.
In Jenkins Garling J said at [73]:
“It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review.”
It is accordingly necessary for the Appeal Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (to use the reference by Campbell J in Ferguson):
(a) if the categorisation was glaringly improbable;
(b) if it could be demonstrated that the AMS was unaware of significant factual matters;
(c) if a clear misunderstanding could be demonstrated, or
(d) if an unsupportable reasoning process could be made out.
In Lancaster v Foxtel Management[23] Basten AJ noted at [88-89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
[23] [2022] NSWSC 929.
The submission by Ms Lee that the effect of the orders given by Member Bamber meant that the Medical Assessor was bound to find a diagnosis of major depressive disorder was, with respect, misconceived. Further, the submission that the Medical Assessor was bound to find that the nature of the injury the Medical Assessor was to assess was limited by the provisions of s 4b(i) and s 15 of the 1987 Act, was also misconceived.
In Wingfoot Australia Partners Pty Ltd v Kocak[24] the High Court (French CJ, Crennan, Bell, Gageler and Keane JJ agreeing) held that:
“…. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[24] [2013] HCA 43.
In Bindah Emmett JA (Meagher and Ward JJA agreeing) said from [109]:
“Generally, the scheme for the settlement of compensation disputes established by the Management Act[25], read in conjunction with the Compensation Act,[26] is to have factual and legal issues resolved by an arbitrator, subject to an appeal to a President or Deputy President of the Commission, and to have certain medical issues decided by an approved medical specialist, subject to an appeal to an Appeal Panel. That scheme is designed to ensure that the degree of permanent impairment that results from injury, and any contribution to the worker's total impairment that is due to an earlier injury or pre-existing condition, are assessed in accordance with Pt 7 of Ch 7 of the Management Act, and not otherwise. If there is a medical dispute within the meaning of that term in s 319 of the Management Act, an arbitrator would have no jurisdiction to decide it. However, an arbitrator may refer such a medical dispute for assessment by an approved medical specialist under s 321. Section 321 confers a power that, in a proper case, an arbitrator is bound to exercise in aid of the private rights of the parties. Thus, because an arbitrator has no jurisdiction to decide a medical dispute, an arbitrator has no jurisdiction to make findings that are binding on an approved medical specialist or on an Appeal Panel. A finding made by a person without jurisdiction cannot bind a person or persons who have jurisdiction (see Haroun v Rail Corporation New South Wales [2008] NSWCA 192 at [16] and [19] - [21]).
However, that is not to say that there is no scope for an approved medical specialist or Appeal Panel to make findings of fact necessary for the performance of the function that they are given under the Management Act. Questions of causation are not foreign to medical disputes within the meaning of that term when used in the Management Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of ‘medical dispute’. Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski [2013] NSWCA 449 at [35]).
It is for the Commission to determine whether a worker has suffered an injury within the meaning of s 4 of the Compensation Act. The Commission must also determine whether there are any disentitling provisions, such that compensation is not payable in respect of that injury. It is also the function of the Commission to determine by whom any compensation is payable. Jurisdiction is conferred on the Commission by s 105 of the Management Act. However, that jurisdiction is subject to the restriction contained in s 65(3) of the Compensation Act, which precludes the Commission from awarding permanent impairment compensation if there is a dispute about the degree of impairment, unless the degree of impairment has been assessed by an approved medical specialist. [27] The fact that a medical dispute includes a dispute as to the degree of permanent impairment of a worker as a result of an injury is consistent with the entitling provision of s 66 of the Compensation Act in conferring an entitlement to receive compensation if the worker receives an injury that results in permanent impairment. The degree of permanent impairment that results from an injury is to be assessed as provided in Pt 7 of Ch 7.”
[25] The 1998 Act.
[26] The 1987 Act.
[27] Section 65(3) of the 1987 Act has since been abolished, and with similar amendments to s 293 and s 321 of the 1998 Act the Commission is theoretically able to assess WPI itself, but this option has not usually been used.
With the advent of the Personal Injury Commission and associated legislative changes, an “arbitrator” is now a “member” and an “approved medical specialist” is now a “medical assessor.”
It follows that when a medical dispute is referred to a Medical Assessor, he/she is required to apply his/her own medical experience and own medical expertise in forming his/her opinion on the medical question referred. Other opinions in the evidence whether expert or lay, are not binding and a Medical Assessor is at liberty to make such use of them as he/she chooses informing his/her opinion. This liberty is of course subject to the requirement that a Medical Assessor explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.[28]
[28] See El Masri v Woolworths Ltd [2014] NSWSC 1344 per Campbell J at [50].
It has not been submitted by Ms Lee that the Medical Assessor in this case has failed to set out her path of reasoning. Ms Lee’s submission is rather that the evidence before the Medical Assessor did not support the conclusions to which the Medical Assessor came, either as to diagnosis, or in the application of s 323.
The submission by Ms Lee that the Medical Assessor had failed to identify the work injury that had been referred to her, and indeed had found that there was no injury, was based on an assertion that the Medical Assessor had not complied with the terms of the referral. For the above reasons we reject the submission that the Medical Assessor was bound to find that Ms Lee had suffered a major depressive disorder. The terms of the referral simply sought an opinion on the dispute over the degree of impairment arising from an injury to the “Body parts,” namely, “psychiatric and psychological disorders.” Further, [7] of the MAC template envisages that there may be multiple “injuries” and “diagnoses” which may not be homologous, as the Medical Assessor is required to provide a summary of “injuries” and (our emphasis) “diagnoses” As has been seen, the Medical Assessor took an entirely different approach to that of the other experts, concluding not that Ms Lee was suffering a major depressive disorder, but that she was suffering a chronic psychotic condition, with a differential diagnosis being a delusional disorder or schizophrenia.
We also reject the contention that the Medical Assessor was obliged to accept that Ms Lee had contracted her condition whilst working for the appellant employer. The task of the Medical Assessor was to resolve a medical dispute, which is defined by s 319 of the 1998 Act, set out above, and specified in the referral. This included a consideration of whether any proportion of permanent impairment was due to any previous injury, or pre-existing condition or abnormality, and the extent that the proportion. A direction from a Member of the Commission that a Medical Assessor was required to accept that a claimant’s psychological condition had been contracted during the course of employment would have the effect of excluding any consideration of the provisions of s 323, offending s 319, and would have been beyond jurisdiction.[29] It may also have excluded the later development of any other unrelated psychological condition.
[29] See Haroun v Rail Corporation New South Wales [2008] NSWCA 192 at [16] and [19]-[21].
The Medical Assessor explained her reasoning throughout her MAC, and we have reproduced her many thoughtful observations accordingly. In summary, the Medical Assessor was satisfied that Ms Lee neither acquired nor exacerbated her condition when she joined the respondent, as she had already acquired a chronic psychotic condition, and developed paranoid and persecutory delusions about her experiences with the City of Sydney Council as a result of that pre-existing condition.
Ms Lee argued that the Medical Assessor had made a demonstrable error because she had not given Ms Lee an opportunity to be heard when there had been no suggestion in the evidence referred to the Medical Assessor that Ms Lee was suffering from a psychotic condition.
There are two answers to that criticism. Firstly, the High Court in Wingfoot has said that the process does involve procedural fairness to give the parties an opportunity to supply a Medical Assessor with material which may be relevant to the formation of a Medical Assessor’s opinion, and to make submissions on the basis of that material, which may include the opinions of other medical practitioners. At [47] the Court said:
“…It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions…”[30]
[30] This dicta applies also to the functions of a Medical Assessor: Western Sydney: Western Sydney Local Health District v Chan [2015] NSWSC 1968 at [13].
Secondly, there is a procedure available to appellants pursuant to s 328(3) that enables them to be heard. This provides:
“(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”
Further, one of the grounds of appeal pursuant to s 327(3)(b) is that there is available additional relevant information that was not available to an appellant and could not have been obtained by an appellant before the medical assessment appealed against. Clearly, a diagnosis that had hitherto not been considered might well have qualified for comment under this ground.
Thus Ms Lee had two statutory avenues for addressing any perceived procedural unfairness, which were not used. Accordingly, this submission is rejected.
It can be seen from the above authority that the Medical Assessor was entitled to draw her own conclusions as to the nature of the injury, provided that she found it was a psychiatric or psychological disorder as described in the referral. She was, however, constrained by the referral to accept that Ms Lee suffered such a disorder whilst working for the respondent on a deemed date of 25 May 2014. We are not aware of the reason why the parties agreed to amend the date from 1 May 2014 as ordered by the Commission, and it may be connected to the termination of Ms Lee’s employment. However, the terms of a referral are binding if they reflect the agreement between the parties as to the medical dispute, which we are satisfied is the case in this matter.[31]
[31] See generally Skates v Hills Industries Ltd [2021] NSWCA 142.
The Appeal Panel notes the Medical Assessor’s reasoning that:
“It is the nature of such conditions that the person will develop new delusions in a new environment, such as a new home location or workplace, akin to her continuing to believe she is followed in different locations. The new delusions are evidence of the persistence of a chronic psychotic condition, likely delusional disorder, and do not represent a new condition.”
However the Medical Assessor was required to accept that an injury affecting the body parts identified in the referral had occurred during the course of Ms Lee’s employment with the respondent. Her finding that the presence of Ms Lee’s paranoid and persecutory delusions during employment with the respondent was wholly due to her pre-existing condition therefore cannot stand legally. This is not to say that her finding was unsupportable from a medical standpoint.
Ms Lee objected to the categorisation of her factual assertions as being delusional. We note that the basis of Ms Lee’s claim was that she had been threatened and feared for her safety, which is consistent with a person with paranoid delusions. Ms Lee submitted that the Medical Assessor did not “properly consider” the evidence to be able to draw the conclusion of paranoid delusion on the basis, we presume, that none of her allegations had been tested and her fears may well have been genuine. It is that possibility that probably led to both Dr Rose and Dr Canaris diagnosing a mild adjustment disorder, there being no record that any of Ms Lee’s allegations were ever tested. Ms Lee made that point when referring to an earlier claim in 2005, where Dr Young had noted that her allegations had been directly contradicted.
Whilst we appreciate the force of that submission from a legal point of view, the repetition of similar claims against three employers enable a medical view to be reached, notwithstanding. This is particularly apparent from the history taken about the O’Donnell Griffin claim by Dr Canaris on 3 December 2011.[32]
[32] Appeal papers page 497.
Dr Canaris noted:
· after being abused by PT, she approached the police and was advised to get an Apprehended Violence Order (AVO).
· She subsequently made 28 calls to HR.
· She received death threats that she was going to be pushed off a 15m structure.
· She recounted that on 2 October 2010, she was at the opera and saw an unidentified workmate. It may have been the State Manager. (The narration is not clear.)
· In any event, she saw this person whilst she was at the opera wearing a tuxedo and she wondered how this person would have known she would have been at the opera. She said that she might have told workers as she was walking through the various sites on Fridays that she disclosed her own plans for the weekend when she was asking people about theirs.
· She had several flat tyres in a brief spell of time and she became hypervigilant in checking the locks and windows.
· She referred to the fact that a dog next door was "Barking for no reason," and thought that a new gardener spent an incredibly long time at her back gate when he had no equipment and had no water. Ms Lee advised Dr Canaris that she thought this person was taking photographs of her.
· She spoke to her real estate agent concerned about this perceived surveillance.
In the same dispute a MAC was issued by a Medical Assessor, Dr Norman Rose, who issued a MAC on 11 July 2014, following a referral that stated that Ms Lee had suffered a psychological/psychiatric disorder on 2 January 2011.[33]
[33] Appeal papers page 103.
Dr Rose took a history that was broadly consistent with that taken by Dr Canaris. Ms Lee commenced with O'Donnell Griffin in January 2010 and ceased work about August 2011. Her position had been as a workplace safety officer and Dr Rose took the history that Ms Lee was working at a site in an office when one of the employees had to be removed after receiving a static electricity shock. Ms Lee had run an investigation into the episode and the supervisor, PT “started to scream at her”.
Dr Rose took a history that PT then threatened to kill Ms Lee “and pull her apart.” She asked for PT to be removed, but that did not happen, and he became abusive to her about 24 hours later. A month later, he locked her in the site office and again threatened to kill her. On another occasion, he locked her and a male worker in an office and she felt frightened. On another occasion, PT allegedly threatened to push her off a flyover.
Dr Rose recorded:[34]
"She became, as she put it, paranoid about her safety at home because she believed that the tyres of her car had been tampered with and damaged. She claims that she was about to take out an apprehended violence order against (PT) but that when she told her employer about this, the employer threatened to terminate her employment."
[34] At [106].
Dr Peter Young, psychiatrist, was retained to advise on an action brought by Ms Lee against Optus, with which company she commenced in January 2004. Dr Young reported on 5 May 2005.[35] Dr Young took a history that Ms Lee was at that time a personal assistant employed by Optus.
[35] Appeal papers page 531.
Dr Young took a history of personality clashes with her managers which involved accusations of abuse and being unsupported.
Dr Young said that if Ms Lee's history was correct, then employment could be considered as constituting a substantial contributing factor to her condition, but Dr Young recommended an investigation.
In a second report, dated 13 May 2005[36] Dr Young then had the factual investigation carried out by the insurer and noted that Ms Lee's allegations of verbal harassment had been directly contradicted by other witnesses, and that therefore Ms Lee's history should be seen as unreliable.
[36] Appeal papers at 536.
This precis of Ms Lee’s claims over three separate claims for psychological injury show a pattern of complaint that is compatible with a person suffering from paranoid delusions, the content of which may well change according to the person’s circumstances. The Medical Assessor’s meticulous attention to the detail of the evidence was apparent from the comprehensive survey she carried out of the documentation in the first eight pages of her MAC. This was accompanied by a considerable record of what transpired during the assessment, and at various points in her MAC she was at pains to point out her diagnosis. To repeat:
· after describing Ms Lee’s allegations during the mental state examination, the Medical Assessor said, “In my clinical judgement, her concerns are consistent with the characteristics of paranoid delusions.”
· In her summary at [7] she said:
“In my view Ms Lee’s presentation is most consistent with the clinical presentation of chronic psychotic condition, with the differential diagnosis being a delusional disorder or schizophrenia.
…….
In addition the intensity of her preoccupation, at the expense of her relationships, capacity to work and the gradual and progressive worsening of psychosocial functioning, including self-care, is consistent with the clinical course of an untreated psychotic illness.
On cross-sectional assessment it is not possible to accurately differentiate between a diagnosis of a delusional disorder or schizophrenia. The provisional diagnosis would be of delusional disorder.”
· At [8e] when discussing whether any proportion of WPI was due to a previous injury, the Medical Assessor said:
“It is the nature of such conditions that the person will develop new delusions in a new environment, such as a new home location or workplace, akin to her continuing to believe she is followed in different locations. The new delusions are evidence of the persistence of a chronic psychotic condition, likely delusional disorder, and do not represent a new condition.”
· At [10a] the Medical Assessor said:
“Her history in regard to symptoms and the impact upon her current functioning, the examination findings of restricted affect, paranoid and referential delusions and circumstantial thought form which are consistent with the diagnosis, and the combination of all of the medical evidence which clearly demonstrates a progression of her psychotic symptoms, with associated gradual psychosocial decline, which is consistent with the natural history of these conditions, especially when untreated.”
· At [11] she said:
“Chronic psychotic conditions, such as delusional disorder or schizophrenia are by their nature ongoing. Without appropriate treatment with an antipsychotic agent, there will be persisting psychotic symptoms, with the content of delusions which may morph depending upon the environment the person is placed in. That is a person with paranoid delusions may believe they are being watched or followed in one particular work or home location, and may move home or employers to escape their persecution, but will inevitably develop new paranoid delusions about the new workplace or home. This is the pattern that has occurred in Ms Lee’s presentation. Her current condition therefore represents the continuation of the pre-existing condition arising in 2011….”
The Medical Assessor was alive to the fact that her diagnoses had not hitherto been made by any other medical practitioner. She explained her divergence as follows, at [10c]:
“I have formed a different diagnosis to that of my colleagues, but I expect that is because I have had the benefit of viewing all of the documentation, including multiple psychiatric reports spanning between 2005 and 2024, and therefore have been able to see the pattern of progression of her positive psychotic symptoms and psychosocial decline which confirms the diagnosis. My colleagues had provided diagnosis of adjustment disorder, or persistent depressive disorder, but neither of these diagnoses are appropriate in my opinion as neither explain her symptoms of paranoid and referential delusions or thought disorder.”
The Appeal Panel accepts this distillation of the most critical reasons for the diagnosis reached by the Medical Assessor. Her conclusions are consistent with the description of the task she was entrusted with, as described above by the High Court in Wingfoot, namely:
“…The function is in every case to form and to give [his/her] own opinion on the medical question referred to [him/her] by applying [his/her] own medical experience and its own medical expertise.”
It is also clear that the Medical Assessor used her expertise and experience in her face-to-face interaction with Ms Lee and the conclusions she thereafter drew.
However, there was one aspect of the diagnosis with which the Appeal Panel has some reservation. Whilst we agree with the Medical Assessor that the pattern of behaviour demonstrated by Ms Lee over the years is compatible with the presence of paranoid delusions, we hesitate to agree with the diagnosis of “a chronic psychotic condition, with the differential diagnosis being a delusional disorder or schizophrenia”
The Medical Assessor considered the inconsistencies in the histories given to those medical practitioners who were retained for the purposes of the workers compensation action involving O’Donnell Griffin Pty Ltd and those retained involving the present respondent. Whilst these inconsistencies were consistent with a person suffering from paranoid delusions, it is of relevance that they may have had a more prosaic intent.
In the action against O’Donnell Griffin Pty Ltd, Ms Lee advised Dr Canaris on 5 March 2014 that she was back in the workforce as a contractor to the City of Sydney dealing with workplace safety. She told Dr Canaris, "I love this job," as it was very hands-on and constituted a "turnaround from the garbage I received from the large organization and their bully boy tactics." [37]
[37] Appeal papers page 489.
The Medical Assessor in that action, Dr Rose, recorded that from November 2012 until one month before the assessment (on 3 July 2014), Ms Lee had been working full time, as a health and safety officer with the City of Sydney, but "this contract has now ceased," and she was looking for work.[38] He noted:[39]
"… [Ms Lee] developed symptoms of anxiety and depression, which have been treated through psychological means only. She has been able to return to full-time work, and her symptoms have been relatively mild, but persistent."
[38] Appeal papers page 481.
[39] Appeal papers at [110].
On 24 June 2014 Dr Samuell recorded:[40]
“[Ms Lee] subsequently ceased work at [O’Donnell Griffin] and has worked at TAFE and then the City of Sydney. In the latter role she was given good feedback and worked without difficulty for an extended period.”
[40] Appeal papers page 512.
The contrast with Ms Lee’s complaints to the medical practitioners she retained for the purposes of the current matter could be interpreted as a deliberate attempt by Ms Lee to downplay her experiences with O’Donnell Griffin in order to accentuate the significance of the complaints with the current respondent.
Dr Richa Rastogi recorded on 26 October 2020:[41]
“There is previous history of depression and anxiety in 2011 associated with work related injury and initiated workers compensation whilst working with [O’Donnell] Griffin. She received counselling and she demonstrated full return to work with her new employer NSCA and made full recovery. The worker compensation claim continued for four years…”
[41] Appeal papers page 142.
On 14 March 2022 Dr Rastogi again noted that Ms Lee had demonstrated a full return to work and that she had made a “full recovery” from her injury with O’Donnell Griffin.[42]
[42] Appeal papers page 149
On 20 May 2024 Dr Rastogi said:[43]
“Her pre-existing condition was in recovery at the time of the work related incidents….
….
I agree with Dr Bisht in his diagnostic formulation and causation with exacerbation. I would disagree with the pre-existing condition being active as she had made reasonable recovery to resume preinjury functioning and work in a complex multitasking role with [the respondent]. This would reflect that her pre-existing condition was in remission and had recovered. I agree with comorbid conditions in WPI, but do [not] agree with deduction of pre-existing conditions.”
[43] Appeal papers page 154
The Medical Assessor noted:[44]
“[Employment at O’Donnell Griffin] was the subject of a previous Workers' Compensation claim. She was on leave from work. She states her allegations were investigated and upheld. She reports she saw a psychologist, Tony Georginis for about three months. She reported she made a complete recovery by 2012, and had no further symptoms.”
[44] Appeal papers page 35.
We do not accept that such inconsistencies are compatible with an “untreated” “chronic” non-affective psychotic disorder such as delusional disorder or schizophrenia.
With regard to the challenge regarding the class rating of 4 for employability assessed in the PIRS, the Medical Assessor said:[45]
“She has had no capacity to work since about 2018. She has attempted some roles, but not been able to manage the demands of them or being fired after a brief period.”
[45] Appeal papers page 48.
The descriptors for classes 4 and 5 of employability are at Table 11.6 of the Guides:
“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.”
Ms Lee relied on the fact that she had not worked since 2018 to justify a class 5 rating. However, the rating system is based on the evaluation by the Medical Assessor of all the evidence, rather than the subjective view of an injured worker. Ms Lee has demonstrated a capacity for a range of employment activities since her employment with the respondent. At [27] of her statement of 3 September 2024 Ms Lee said possessed a restricted capacity for work and worked with IEDM in “a safety role for the construction and deconstruction work for V8 super track.” She performed that work in November 2015. At [31] of her same statement she said she made occasional attempts to work, as she needed an income. The appellant represented herself in a legal case many years after ceasing work with the respondent, which requires a similar capacity to that used at work. The class 4 rating was open to the Medical Assessor.
Thus, the MAC has to be revoked as the Medical Assessor stepped outside the bounds of the referral in making a 100% WPI deduction pursuant to s 323. The finding could not stand, as Ms Lee clearly had a capacity, notwithstanding her pre-existing condition, to engage in employment with the respondent and work there for eighteen months between November 2012 and May 2014. That Ms Lee did suffer a pre-existing psychiatric condition is clear, as is established by the MAC of Dr Norman Rose, and the reports of doctors assessing her in late 2011. The contribution to Ms Lee’s total impairment can be assessed without recourse to the statutory 10% provided in s 323(2) of the 1998 Act. There is, as has been demonstrated in this case, no shortage of evidence as to the presence of a pre-existing psychological condition.
Chapter 11.10 of the Guides provides:
“11.10 To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
PIRS
In Matheson v BaptistCareNSW and ACT [2025] NSWSC 213 per Basten AJ, some doubt was cast on the decision in Marks v Secretary, Department of Communities and Justice (No2) [2021] NSWSC 616.
We note also an earlier Medical Appeal Panel decision of Camden Council v Harle [2022] NSW PICMP 339, which held that the whole of Chapter 11.10 was ultra vires.
There is thus a conflict between the decision in Matheson and Marks in that Basten AJ in Matheson, considered that the decision in Marks was incorrect and that the part of Chapter 11.10 that had been held to be ultra vires in Marks, (and presumably the whole of chapter 11.10 in Harle) was wrongly decided.
It is unhelpful to embark upon any consideration of these superior court decisions, but we would observe in this case that the practical step of applying Chapter 11.10 is helpful in determining the appropriate deduction that should be made in Ms Lee's case.
We find the following PIRS scale to accurately represent Ms Lee’s impairment when she commenced employment with the respondent, as derived from the contemporaneous evidence.
Table 11.8: PIRS Rating Form
Name
Kathryn Rosemarie
Lee
Claim reference number
(if known)
DOB
Age at time of commencement of employment 28/11/12
46
Date of Injury
1 May 2014 for events
November 12 to 1 May
2014
Occupation at time of injury
Work health and safety officer
Date of
Assessment
4 November 2024
Marital Status before injury
Single, in relationship
Psychiatric diagnoses
Chronic psychotic condition, likely delusional disorder.
Psychiatric treatment
Previous brief trials of antidepressants, sertraline and agomelatine, psychological treatment.
Is impairment permanent?
Yes No (circle one)
| PIRS Category | Class | Reason for Decision |
| Self Care and personal hygiene | 1 | Able to care for herself and present for employment duties Described in late 2011 as “well-groomed” or “smartly dressed”, and with no impairment in self-care |
| Social and recreational activities | 2 | She cared for her cat and enjoys reading magazines. In December 2011 she told Dr Canaris she was socially reclusive due to her psychiatric symptoms but had an occasional glass of wine when out with friends . This is consistent with at least a class 2 impairment. |
| Travel | 1 | Her two motor vehicle accidents had not occurred in November 2012 and there was no evidence of impairment in this domain. |
| Social functioning | 2 | Dr Rose confirmed this rating in his assessment of the impairment arising from her social withdrawal friends and family, as also recorded by IMEs in late 2011 |
| Concentration, persistence and pace | 2 | In late 2011 she was reporting problems multitasking, taking much longer to do tasks and requiring a diary to remind her of tasks. |
| Employability | 1 | She was commencing employment fulltime and maintained this for many months. |
Scores
Median Class
1
1
1
2
2
2
= 2
Aggregate Score Impairment
Total
4%
1+
1+
1+
2+
2+
2
9
We are satisfied that this contribution is proper under the circumstances of this case. Accordingly the MAC will be revoked. The challenge to the employability assessment fails and the current WPI remains 22%. We are satisfied that the contribution to that impairment by Ms Lee’s previous injuries and pre-existing condition should be assessed at 4% WPI, so the fresh certificate will be in the amount of 18% WPI.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 November 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W23212/24 |
Applicant: | Kathryn Rosemaire Lee |
Respondent: | NSCA Foundation Ltd t/as National Security Council |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Melissa Barrett and issues this new Medical Assessment Certificate as to the matters set out in the table below:
Table - whole person impairment (WPI)
| 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 AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Psychiatric | 25/5/2014 (deemed) | Chapter 11 page 54 | NA | 22 | 4 | 18 |
| Total % WPI (the Combined Table values of all sub-totals) | 18% | |||||
0
19
0