Middleton v Secretary, Department of Education

DETERMINATION OF APPEAL PANEL
CITATION:	Middleton v Secretary, Department of Education [2024] NSWPICMP 46
APPELLANT:	Pauline Joy Middleton
RESPONDENT:	Secretary, Department of Education
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrew
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	2 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; pleaded as a frank incident of assault, not a deemed date; assessment under the Psychiatric Impairment Rating Scale; assessment for social and recreational activities glaringly improbable; Ferguson v State of New South Wales considered; section 323 deduction; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 10 October 2023 Pauline Middleton lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerald Chew, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 September 2023.
Ms Middleton 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 was satisfied that, on the face of the application, at least one ground of appeal was made out – being that the MAC contains a demonstrable error. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Middleton was employed by the Secretary, Department of Education (the Secretary) as a special education teacher. In her Application to Resolve a Dispute she pleaded that she suffered psychological injury on 8 September 2020 as a result of being assaulted by a student.
In a very brief MAC, the Medical Assessor assessed 19% whole person impairment (WPI) under the Psychiatric Impairment Rating Scale (PIRS). He placed Ms Middleton in class 3 for self care and personal hygiene, class 2 for social and recreational activities, travel and social functioning, class 3 for concentration, persistence and pace and class 5 for employability. The Medical Assessor deducted one-tenth of the total under s 323 of the 1998 Act because Ms Middleton had a pre-existing condition which required long term medication. The final assessment was 17% WPI.

PRELIMINARY REVIEW

We 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, we determined that it was not necessary for Ms Middleton to undergo a further medical examination because there is sufficient information in the file to determine the appeal.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC that are relevant to the appeal are set out in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but we have considered them.
In summary and in submissions prepared by Mr Hart of counsel, Ms Middleton submitted that she relied on a deemed date of injury of 8 September 2020 and that there was uncontested evidence of work-related stress and increasing challenges at work until the assault on 8 September 2020. Ms Middleton highlighted the consequences of an assessment of 17% on her entitlement to long term statutory benefits.
Ms Middleton submitted that the Medical Assessor failed to record relevant findings of fact such that he failed to show the path of his reasoning, both in his assessment generally and in respect of the deduction under s 323. She said that if the Medical Assessor was to depart from the assessment made by Dr George (who examined her at the request of her solicitors) a process of reasoning was required.
She submitted that the Medical Assessor based his assessment on incorrect criteria in making a deduction under s 323 and erred in his assessment for social and recreational activities. In that regard, Ms Middleton said that it was glaringly improbable that she suffered only a mild impairment. Ms Middleton sought reassessment.
In reply, the Secretary submitted that, while the MAC is brief, the Medical Assessor recorded facts consistent with the histories obtained by Dr George and by Dr Vickery (qualified on its behalf). The Secretary noted that there was evidence about Ms Middleton’s pre-existing condition which supported a deduction under s 323. The Secretary submitted that there was no error in the Medical Assessor’s assessment of social and recreational activities, noting the significant time period between the date of Dr George’s assessment and the MAC and that Dr Vickery had obtained a history of some improvement in Ms Middleton’s condition.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales,[1] Davies J considered that the form of words used in s 328(2) of the 1998 Act – ‘the grounds of appeal on which the appeal is made’ - was intended to convey that the appeal is confined to the errors identified by a party in their submissions. We have only considered those grounds specifically raised by the appeal.
[1] [2013] NSWSC 1792.
In Campbelltown City Council v Vegan[2] the Court of Appeal held that an 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.
[2] [2006] NSWCA 284.

The date of injury

Ms Middleton’s submission that the date of injury was a deemed date is inconsistent with the claim made and the way the Application to Resolve a Dispute (ARD) was pleaded. The ARD relies only on the assault on 8 September 2020. There is no description of relevant events before that date and the deemed date of injury box is not ticked.
The claim for permanent impairment compensation served on 22 October 2022 was similarly limited to that event. Dr George’s report dated 16 September 2022 was also prepared in respect of that event though he did note that Ms Middleton had some “difficulties with a colleague” a few years before.
Ms Middleton relied on a statement prepared on 14 October 2022 in respect of “this incident” which occurred on 8 September 2020. The statement is very short and deals only with the events of that day and the impact of it.
The referral to the Medical Assessor is only in respect of a date of injury of 8 September 2020. It is the practice of the Personal Injury Commission to send the referral to the parties for comment before it is sent to the Medical Assessor. It does not appear from the file that Ms Middleton raised any objection to the form of the referral.
While there may have been past events which caused or contributed to her impairment, we are unable to accept the submission that Ms Middleton relied on a deemed date of injury. The only injury referred for assessment was that on 8 September 2020.

The MAC

The MAC is exceptionally brief. The Medical Assessor recorded a history of the event on which Ms Middleton relied and set out the treatment undertaken:
“She was assaulted by a male student on 8/9/20.
She left work distressed. She developed depressive symptoms including low mood, poor sleep, rumination about the event.
She also developed anxiety and panic attacks.
She has been treated by her GP, psychologist and psychiatrist.”
In respect of previous conditions, the Medical Assessor recorded:
“She experienced some stress while at University in Newcastle in 2004 and received some counselling.
She experienced anxiety in the context of workplace difficulties in 2018 prior to the index incident. She said that she received treatment with Lexapro. She said that this episode of anxiety fully recovered in around 8 weeks. She continued to take the Lexapro long term.”
The Medical Assessor took only a brief history of Ms Middleton’s activities:
“Social activities/ADL: reduction in ADLs. Reduction in self care. Good relationship with supportive husband. Is in contact with some friends but has lost some friendships. She doesn’t drive. She goes for walks and can walk to the local shops and chemist. She describes reduced concentration.”
The Medical Assessor diagnosed a persistent depressive disorder. He said that the explanation for his calculations appeared in the PIRS table and commented on other reports in the file saying:
“Dr Vickery – Panic Disorder and PDD with WPI of 17%
Dr George – Adjustment Disorder with WPI 22%
Social and recreational activities – I agree with Dr Vickery – she has been able to visit friends on occasion. Impairment is mild.
Travel – I agree with Dr George- there is mild impairment. She is able to travel independently in the local area.
Social functioning – I agree with Dr George- there is mild impairment. She has good relationship with husband but has reduced with friends.
I agree with Dr Vickery that a 1/10 or 2% deduction is appropriate for a pre-existing condition which required long term medication.”
The reasons given for assessment in class 2 for social and recreational activities in the PIRS rating form is “has visited friend with husband.”

Independent Medical Examiners

Ms Middleton’s statement is very short and essentially adopted the history in the report of Dr George who assessed Ms Middleton at the request of her solicitors on 16 September 2022. His report is also quite short. The date of injury relied on is 8 September 2020. He recorded:
“Ms Middleton said that, a few years ago, she had difficulties with a colleague, and she said this brought about a degree of anxiety and depression for her at that time. However, she had learnt to cope with those difficulties to a degree, although still found them to be upsetting.”
Dr George did not set out any details of medication taken previously. The only PIRS category under which he made a different assessment to the Medical Assessor was social and recreational activities and he said:
“She does do some walking. She has not been able to persist with gardening. She has not been able to persist with reading. She has withdrawn from friends. Class 3.”
Dr George did not make any comment about s 323 and he did not record a history of past treatment. He did not set out his assessment in accordance with the PIRS rating form (as he was required to do by paragraph 11.12 of the Guidelines), and doing so may have alerted him to comment on any s 323 deduction.
Dr Vickery first assessed Ms Middleton on 12 April 2021 when he obtained a history that:
“Mrs Middleton had been commenced on a SSRI antidepressant for panic attacks in 2018 with ‘the pressure of feeling overloaded as I was put on a regular classroom and it was a struggle but the anxiety and the panic attacks settled after a few months on the medication.’
There was counselling while attending Newcastle University in 2004.”
He said:
“Mrs Middleton is watching Netflix and ‘I haven’t done much cooking or housework.’ She is only walking occasionally whereas ‘I was a big walker before.’
Mrs Middleton was previously outgoing and mixed socially however ‘I don’t do that now and I’m only in contact with two close friends.’ She is avoiding social interaction and ‘I haven’t visited any friends but sometimes they may visit or a neighbour may visit.’
There is a supportive marital relationship. She does not have close friends.
There is reduced reading as ‘I don’t retain what I have read and I lose track of what I’m watching and I can forget something that I know I should remember.’ ”
Dr Vickery’s report was also prepared in respect of an injury on 8 September 2020 though he recorded as part of the history:
“Mrs Middleton reported ‘work was my whole life but over the past year I’ve had a succession of teacher’s aides who were inexperienced and difficult to work with but I had been dealing with it.’
There was the Annual Performance Development Assessment in July 2020 when ‘I had to go on a support programme for five weeks and then I was to go on a Performance Improvement Plan and that was when the incident occurred and I left.’ ”
Dr Vickery said that the pre-existing issues were prolonging Ms Middleton’s recovery.
Dr Vickery saw Ms Middleton again and reported on 8 February 2023. In respect of Ms Middleton’s psychiatric history he recorded:
“Mrs Middleton had been commenced on a SSRI antidepressant for panic attacks in 2018 with ‘the pressure of feeling overloaded as I was taken out of my special education classroom and put on a regular classroom with students with behavioural problems and it was a struggle, but the anxiety and the panic attacks settled after a few months on the medication, and I was placed back in my special education classroom the following year.’ ”
Recording Ms Middleton’s current symptoms, Dr Vickery said:
“Mrs Middleton reported ‘I can’t go anywhere without my husband, or I will have a panic attack apart from when I go for a walk around where I live but my husband has to ring me to make sure I’m okay.
…
Mrs Middleton watches television however ‘I don’t take it in, and I was an avid reader but now I don’t have the motivation.’
There is reduced long and short-term memory. She has poor concentration and ‘I’m not interested in reading.’”
Dr Vickery assessed 19% WPI, placing Ms Middleton in class 2 for social and recreational activities. In the PIRS rating form he said:
“Mrs Middleton has been visiting a close friend with her husband and ‘I have three friends who ring me.’”
He made a deduction of one-tenth under s 323 because of treatment in 2018. He noted that Ms Middleton said she was asymptomatic at the time of the injury but that she remained on medication. Dr Vickery said that he generally agreed with Dr George but said that her depression had improved.

Social and recreational activities

In State of New South Wales (NSW Department of Education) v Kaur[3] Campbell J said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or 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 perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[3] [2016] NSWSC 346.
Contrary to Ms Middleton’s submission, the Medical Assessor was not required to set out his path of reasoning in order to “reduce” the score for social and recreational activities from that assessed by Dr George or to “reject any score provided by Dr George” because there is no primacy in Dr George’s opinion. He was, however, required to carefully document the history he obtained.
Chapter 11 of the Guidelines replaces the method of assessment for psychiatric injuries in AMA 5 but the opening words draw the Medical Assessor’s attention to the principles for the preparation of reports in chapters 1 and 2 of AMA 5. Paragraph 2.3 of AMA 5 stresses the need for a detailed history and the reason for obtaining it:
“Performing an impairment evaluation requires considerable medical expertise and judgment. Full and complete reporting provides the best opportunity for physicians to explain health status and consequences to patients, other medical professionals, and other interested parties such as claims examiners and attorneys. Thorough documentation of medical findings and their impact will also ensure that reporting is fair and consistent and that individuals have the information needed to pursue any benefits to which they are entitled.”
The Medical Assessor was required by paragraph 1.6 of the Guidelines to make his own assessment of Ms Middleton as she presented on the day of his examination. He was required to exercise his own clinical judgement to determine a diagnosis and make any deductions for pre-existing conditions.[4] While it was appropriate for him to comment on the other assessments in the file, he was not bound to adopt the assessment made by any examiner or to choose between the assessments. It was necessary to set out the facts on which he relied.
[4] Guidelines paragraph 1.7.
Ms Middleton submitted that the Medical Assessor’s assessment was contrary to uncontested facts. Those facts were not identified in the submissions other than in the submission that the Medical Assessor should have assessed moderate impairment because she required a support person to visit a friend. We do not agree that a reference to Ms Middleton having “visited friend with husband” necessarily means that she required a support person to do so, though that is the only support in the MAC for assessing Ms Middleton in class 2 for social and recreational activities.

The Medical Assessor did not set out any detailed history of her daily activities other than that she is in contact with some friends and lost other friendships, and that she goes for walks. The history taken by the Medical Assessor is inadequate, and more detail is contained in the reports of Drs George and Vickery. Ms Middleton’s statement adopted the history obtained by Dr George which was that she attempted gardening but has not been able to persist with it and that she struggles with activities.
In Ballas v Department of Education[5] Bell P and Payne JA said that the table “looks to the injured worker’s degree of participation in such activities”. A solitary activity is not a social activity, though it may be a recreational activity.
[5] [2020] NSWCA 86 at [100].
In Ferguson v State of New South Wales[6] Campbell J said:
“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.”
[6] [2017] NSWSC 887 at [25].
The examples in Table 11.2 for assessment in class 2 are:
“Mild impairment: Occasionally goes to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favorite team).”
The examples for assessment in class 3 are:
“Moderate impairment: rarely goes out to such events, and mostly when prompted my family or close friend. Will not go out without a support person. Not actively involved remains, quiet and withdrawn.”
The available evidence shows that Ms Middleton has reduced her former recreational activities and does very little by way of recreation. Her friendship circle has reduced so that she has little social interaction and she spoke only of visiting one friend with her husband. Taking the other histories in the file into account, we consider that the Medical Assessor’s assessment in class 2 was glaringly improbable and that the appropriate assessment was in class 3, moderate impairment.

Section 323

Section 323 provides:
“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.
…”
Ms Middleton submitted that:
“From the commentary in the ‘Brief History’ in the MAC [at page 2], it is evident that Dr Chew took the view that the ‘injury’ was the only event that occurred on 8 September 2020. Her prior condition was, in fact, within a series of events that were part of the development of her disorder and were caused by her employment with the respondent.”
As we said above, the only injury relied on in these proceedings was a frank incident on 8 September 2020. It may have been possible for Ms Middleton to frame her case as an injury caused by events over a period but she did not do that. Therefore, any pre-existing condition as a result of events before 8 September 2020 falls to be considered under s 323 and there is considerable evidence to support a deduction.
In Cole v Wenaline Pty Ltd[7] Schmidt J said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, It will always, ‘irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.[8]
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience…”[9]
[7] [2010] NSWSC 78.
[8] At [29]-[30].
[9] At [38].
In Ryder v Sundance Bakehouse[10] Campbell J said:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
And
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.”[11]
[10] [2015] NSWSC 526 at [45].
[11] At [54].
The information in Dr George’s report about Ms Middleton’s pre-existing condition is vague and he did not discuss s 323. It is not clear from his report what information he was provided with or had regard to.
Ms Middleton’s general practitioner is Dr Thambar whom she consulted for the first time on 26 April 2018. A complete copy of the notes appears in the Secretary’s Reply. On 26 April 2018 Dr Thambar recorded:
“Long mental health consult
has been experiencing a lot of anxiety and panic lately due to work and social stressors
is a school teacher and is to begin new term next week, feels she cant cope
personael stressor -
husband recently developed arthritis and can no longer do stuff around the house
MIL in hospital and has to go into aged care - has been trying to find a place for her” [sic]
Dr Thambar provided a medical certificate for the period 26 April to 2 May 2018 and advised Ms Middleton to “go to ED or call 000 if develop any acute panic symptoms or suicidal ideation”.
The certificate was extended to 4 May on the following visit. Dr Thambar prescribed 10mg of Lexapro and recommended follow up the following week for a Mental Health Care Plan and referral to a psychologist.
At the next consultation, Ms Middleton said that she felt she was doing well on Lexapro though continued to experience personal stressors. She declined to see a psychologist. The notes show that Ms Middleton continued to take Lexapro and that the does was gradually increased to 15 and then 20mg in January 2020.
On 5 August 2020 Dr Sein, at the same practice, provided a certificate for the period from 5 to 10 August 2020, noting:
“patient comes for a medical letter
a behavioural school teacher
handling 7 students at work
working with a new teacher's aide, no experience
the classroom was left like a mess. understaffed and cannot cope any more
patient becomes overstressed and left working place at 1530 last monday and is not able to go back
School support unit arranged meeting with a counsellor tomorrow
no other stressors ie D&A, home violence, addiction, financial etc
compliant with SSRI.”
On 9 September 2020 Dr Sein wrote:
“…
mental health:
extra stress and anxiety lately
in view of ‘improvement program at school
needs to do daily paperworks and deadline at the end of the day
recently grabbed by a 14 yr old student who shouted loud in her ears
that started panic and she could not sleep well since then
an incident report came through, pricpal and deputy came down
Particular student has been suspended a dew times in the past
aim seeing school counsellor x 3 sessions over the phone
no other extra stressors… [sic]”
The notes that follow show that Ms Middleton made a workers compensation claim for the first time after the incident on 8 September 2020. She agreed to referral to a psychologist.
On 8 October 2020 Dr Thambar completed a questionnaire for the Secretary’s insurer. He described the incident which caused the injury on 8 September 2020 but said that he was aware of other issues in the workplace being:
“Pauline has expressed stress of workplace due to increase workloads
Performance review, workplace harassment and bullying.”
Dr Thambar said there was a past history of generalised anxiety and that Ms Middleton had “experienced similar symptoms due to work stress and psychosocial stressors in 2018.”
Ms Glendenning, psychologist, saw Ms Middleton for the first time on 29 October 2020 and took a detailed history of the incident on 8 September. She said:
“Pauline disclosed that she experienced stress and anxiety in 2017 relating to workplace relationship issues. Pauline advised that she commenced anti-depressant medication at this time to help cope with her symptom discomfort.
Pauline did not disclose any other psychiatric history.”
Dr Lockman, psychiatrist, reported on 3 April 2022, having first seen Ms Middleton on 7 July 2021. Confirming the existence of previous issues, she said:
“In my opinion, her current incapacity to work is related to the reported incident on the 8/9/2020. It is my opinion also that about 1 year before this incident. Ms Middleton has a pre-existing issue with her performance which she claim was attributed by the difference of opinions by the new supervisor that was assigned to her classroom. This differing opinion, and I suppose ‘personality clash’ I could have contributed to her believe that she was not supported when that incident occurred on that day…”
Ms Dibley, the school principal, provided information to the Secretary’s insurer and said:
“Leading up to this event, Pauline was placed on a Teacher Improvement Program. During meetings in the support phase, Pauline discussed her anxiety and how this was impacting on her being observed teaching. The lessons observed did not meet the expected standards of a proficient teacher.
…
In my opinion, Pauline has found the pressure of being expected to be operating at the level of a proficient teacher, all too much and this incident was then an opportunity to not be at school.”
All of that material confirms that Ms Middleton had a pre-existing anxiety condition for which she was taking medication at the time of the injury. That medication was prescribed almost two and a half years before the injury and the dose had been increased slowly. The Medical Assessor was correct to say that Ms Middleton had been on long term medication.
The notes of Dr Thambar’s first consultation confirm that the condition was contributed to by events related to and outside her employment. It appears that the condition was exacerbated by events at work shortly before the injury, so that Ms Middleton had been absent from work due to that pre-existing condition in August 2020, only a month before the assault. She did not make a claim for compensation until after the incident on 8 September 2020 and limited the claim to the events of that date.
Ms Middleton had a pre-existing condition that was symptomatic and was being treated at the time of her injury. The injury exacerbated this pre-existing condition, worsening her symptoms. This was more than a vulnerability, and the pre-existing condition directly contributes to her condition and impairment now. Her impairment would not now be as severe were it not for the pre-existing condition.
Until August 2020, Ms Middleton was functioning reasonably well on treatment before the injury, despite her pre-existing condition. The Medical Assessor was correct to apply the presumption in s 323(2).

Conclusion

The appropriate scores under the PIRS are 2, 2, 3, 3, 3, 5. The median class score remains 3 and the total is 18. Under Table 11.7, the WPI is 22.
When one-tenth is deducted under s 323, Ms Middleton has 20% WPI
For these reasons, we have determined that the MAC issued on 11 September 2023 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

Applicant:	Pauline Middleton
Respondent:	Secretary, Department of Education

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 Gerard Chew 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 WorkCover Guides	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 and psychological disorders	8/9/20	Chapter 11	N/A	22	1/10^th	20%
Total % WPI (the Combined Table values of all sub-totals)					20%

[2024] NSWPICMP 46

2 February 2024