Murphy v Tradelink Pty Limited

DETERMINATION OF APPEAL PANEL
CITATION:	Murphy v Tradelink Pty Limited [2021] NSWPICMP 67
APPELLANT:	Christopher Murphy
RESPONDENT:	Tradelink Pty Limited
APPEAL PANEL:	Member Paul Sweeney Dr Patrick Morris Dr Douglas Andrews
DATE OF DECISION:	4 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Appellant alleges five errors in the determination of Medical Assessor that he suffered 13% WPI in respect of psychiatric injury; appellant also sought to rely on additional relevant information pursuant to section 327(3)(b); those being a report dated two days before the assessment arising from an initial telehealth appointment with a general practitioner, a psychologist’s treatment recommendation and a report from a psychiatrist which post-dated the assessment; only the latter report held to be both relevant and not available before the assessment; Held- that assessor had made rounding error- Guidelines 1.26; otherwise the appellant had not demonstrated error; appellant did not challenge findings of assessor of pre-existing condition but alleged if it had been specially assessed -Guidelines 11.10- it would have yielded a deductible proportion of 0% rather that the 10% deducted by the assessor pursuant to section 323(2); that the assessor had provided clear reasons why it was not possible or difficult to fully ascertain extent of pre-existing condition; both IME’s had made an identical deduction on same basis; appellant alleged errors of classification in respect of Travel and Employability, although his IME had classified both categories in the same way; as assessor found inconsistencies in appellant’s account it was open to him to prefer the history recorded at his examination over the statement evidence of the applicant; assessor demonstrated the actual part of his reasoning; Wingfoot Australia Partners Pty Limited v Kocak applied; MAC revoked and new MAC issue to reflect rounding error.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 September 2020, Christopher Murphy (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 November 2018.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);

·        the assessment was made on the basis of incorrect criteria, and

·        the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The appeal panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant was employed as a branch assistant at the respondent’s store at Tamworth between 27 August 2017 and 10 January 2019. He last performed physical work for the respondent on 5 November 2018. He alleges that he developed a psychological injury as a result of bullying, harassment, and interpersonal conflict in the course of his employment before that date.
By these proceedings, the appellant claims compensation for permanent impairment pursuant to s66 of the Workers Compensation Act 1987. Although the respondent initially disputed that the appellant suffered a psychological injury, during the proceedings it conceded liability.
The appellant’s claim for permanent impairment compensation is based on the opinion of Dr Thomas Oldtree Clark, a psychiatrist, who saw the appellant at the request of his solicitors on 5 March 2020 and provided a report of the same date. After examining the appellant, Dr Clark expressed the opinion that he suffered a major depressive disorder. The condition had been caused by the appellant’s employment with the respondent. After deducting 1/10^th for a pre-existing condition, Dr Clark expressed the opinion that the appellant suffered 14% whole person impairment (WPI) as a result of the injury. He made an adjustment of 1% WPI for the effect of treatment, which he stated was in accordance with the Guidelines. Accordingly, he assessed 15% WPI.
The respondent had the appellant examined by Dr Deepinder Miller, a psychiatrist. Dr Miller consulted with the appellant by telephone on 20 November 2019 and provided a report of 5 December 2019. By that report, the doctor expressed the opinion that the appellant was not suffering from a psychiatric injury. She thought that he was involved in an “industrial dispute”.
Dr Miller again examined the appellant by telephone and provided a further report dated 11 June 2020. The doctor reiterated her opinion that the appellant was not suffering from a work-related psychiatric condition. She did, however, diagnose Anti-Social Personality Disorder on a background of childhood Conduct Disorder. She set out the DSM-V definition of Anti-Social Personality Disorder and stated that it was this condition that gave rise to the appellant’s irritability and aggressiveness.
Although the doctor did not believe that the appellant’s condition resulted from his employment, she also completed a psychiatric impairment rating scale (PIRS) assessment of the appellant’s condition. She assessed the appellant as suffering from 1% WPI. Like Dr Clark she made a deduction of 1/10^th to reflect the presence of a pre-existing psychological condition which contributed to the appellant’s impairment. Unlike Dr Clark, she made no allowance for the effect of treatment.
As the competing views of Dr Clark and Dr Miller gave rise to a medical dispute concerning permanent impairment, the Registrar referred the assessment of permanent impairment to an Approved Medical Specialist (AMS) (now described as a Medical Assessor), Dr Michael Hong.
The AMS issued a MAC on 5 January 2021 by which he assessed WPI at 15%. He also applied a 1/10^th deduction for a pre-existing condition or abnormality in accordance with s323(2) of the 1998 Act. He certified that the appellant suffered 13% WPI. It is from that certification that the appellant appeals.

PRELIMINARY REVIEW

The appeal panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the appeal panel concluded that the appellant had not proven that there was error in the reasoning or assessment of the AMS save for a rounding error when calculating the deduction to be made pursuant to s323(2) of the 1998 Act.
As the appeal panel was not persuaded that the appellant had established error on any other of the grounds of appeal made in his submissions and as the appellant had not sought a further medical examination, the panel determined that it was unnecessary for the worker to undergo a further medical examination by a member of the panel.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a)     a medical report of Dr Eric Lim dated 2 December 2020;
(b)    a report of Dr David Kumagaya, psychiatrist dated 13 January 2021; and
(c)    a document headed “Allied health recovery request” dated 4 December 2020, which requests referral to a psychologist for treatment to reduce the severity of the appellant’s psychological symptoms electronically signed by psychologist, Carl Nielsen.
The appellant submitted that this evidence was relevant to a determination of the PIRS category of Employability. It submitted that:
“These reports support the appellant’s current capacity to work, which is documented by both Dr Lim and Mr Nielsen as no capacity to work.”
The appellant submitted that the report of Dr Kumagaya dated 13 January 2021 was not available to him at the time of the medical assessment on 4 December 2020. In respect of the other documents sought to be admitted, he submitted that the report of Dr Lim dated 2 December 2020 was received by his solicitor by email on 4 December 2020, but the Allied health recovery request was not received until 18 January 2021. He submitted that an Application to Admit Late Documents attaching the report of Dr Lim was lodged with the Commission on 4 December 2020, “however this application was rejected by the commission on 10 December 2020.”
The respondent submitted that the additional documents on which the appellant sought to rely did not satisfy ss327(3)(b) and 328(3) of the 1998 Act. The respondent submitted that there was no reference in the appellant’s statement to him receiving treatment from Dr Lim, Dr Kumagaya or Mr Nielsen. The respondent continued:
“The appellant already has records from its GP attached to the application and there is no explanation why the appellant now seeks or has sought treatment from an alternative GP, being Dr Lim.
If Dr Lim, Dr Kumagaya, and Mr Nielsen were indeed the claimant’s treating doctors then their reports/records should have been requested and made available before the commencement of the proceedings and in the first instance, attached as part of the ARD.”
At the preliminary conference, the appeal panel determined that the report of Dr Kumagaya dated 13 January 2021 should be received into evidence on appeal, although the panel was of the view that it offered only limited assistance in addressing the issues in dispute. Conversely, the Panel concluded that the report of Dr Lim dated 2 December 2020 and the Allied health recovery request should not be admitted.
The evidence in respect of these documents did not satisfactorily establish when the appellant became aware that he was to consult with Dr Lim, presumably by telephone, on 2 December 2020 and when he instructed his solicitor in respect of the consultation. Further, there is no evidence as to steps, if any, the appellant’s solicitors took to obtain the report of Dr Lim dated 2 December 2020 as a matter of urgency.
Importantly, there is no evidence of any action the appellant’s solicitors took once they became aware that he was to consult Dr Lim and of the potential for the consultation to give rise to a medical report. There is also no evidence of any action they took in respect of the proceedings before the Commission. It was open to the appellant’s solicitors to urgently apply to the Commission to vacate the medical assessment examination or, if that was not practical, to discontinue the proceedings at any time prior to the assessment of the AMS with a view to recommencing proceedings for permanent impairment compensation after the appellant’s medical case was complete. To permit the matter to proceed to assessment when the appellant was to shortly consult with a new general practitioner seems inexplicable.
On the limited evidence which addresses the issue, the panel is not persuaded that the report of Dr Lim could not reasonably have been obtained by the appellant before the medical assessment. While it is not determinative of the issue, the panel observes that the appellant has previously been treated by general practitioners and psychologists in Tamworth. There is no explanation as to why he should consult medical practitioners at Parramatta by telephone in circumstances where distance, and his psychological condition, may prevent him from attending personally on those doctors for the foreseeable future and where the cost of travel for a face-to-face examination would be prohibitive.
Of more importance, the members of the panel who are specialist psychiatrists took the view that a medical report from a general practitioner prepared after one telehealth appointment was of limited evidentiary value. The report simply recorded the complaints of the appellant. The panel was not persuaded that the report was likely to advance the appellant’s case or assist the panel in determining the appeal. In circumstances where the appellant had been examined by several psychiatrists, including the AMS and Dr Kumagaya, for the purposes of the litigation and for treatment, the assessment of a general practitioner who had not seen the appellant in person is of limited probative value: c.f. Phillips v J W Williamson and
R W Williamson trading as Williamson Brothers [2016] NSWSC 1681 (30 November 2016), where Schmidt J considered the reasoning of the Court of Appeal in Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112 (6 May 2011) at [43]-[58].
The document from Mr Nielsen also has limited, if any, evidentiary value. It is not clear when Mr Nielsen consulted with the appellant or what history he took and whether he had knowledge of the appellant’s previous treatment prescribed by his general practitioner. The specialist psychiatrists on the panel took the view that it would be inappropriate to give weight to the document when the author’s opinions were not set out in report form so that they could be tested against the other medical opinion in the matter. The panel concluded that the document did not advance the appellant’s case. It is, therefore, not relevant.

EVIDENCE

The appeal panel has before it all the documents which were sent to the AMS for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the MAC given by the AMS that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the appeal panel. The appellant alleged five distinct errors in the assessment and calculation of WPI in the MAC. In addition, he alleged the availability of additional relevant information and that the assessment was made on the basis of incorrect criteria as grounds of appeal. But the latter allegation is merely a restatement of the demonstrable errors allegedly made by the AMS.
The first error alleged is that the AMS, having found a deductible percentage of 1.5 pursuant to s 323(2) he rounded it up to 2%, rather than subtracting it from the assessed WPI and then rounding that figure, 13.5%, up to 14% in accordance with Chapter 1.26 of the Guidelines.
The second error alleged related to the deduction of 1/10^th made by the AMS for a pre-existing condition in accordance with s323(2) of the 1998 Act. The appellant submitted that it was inappropriate in the circumstances of the case to apply s323(2) and make a deduction of 1/10^th. Rather, the AMS should have applied Chapter 11.10 of the Guidelines and assessed WPI in respect of the appellant’s psychiatric condition before the injury. The appellant continued thus:
“None of the symptoms described (namely a compulsion to put all the same coloured clothes together, (see past psychiatric history on page 3 of the MAC) would affect a pre-injury PIRS assessment being undertaken. It is hard to see how the AMS could come to the conclusion on the history he took and on the treatment the appellant had before the injury that any PIRS assessment taken before the injury would show any impairment especially given the lay evident (sic) from the appellant, his mother and ex-partner and the treatment from his doctors, whose notes describe low prescriptions of sertraline and their histories (in their clinical notes) are silent on the symptoms he suffered or more importantly any symptoms that would affect a PIRS assessment.”
The third error alleged by the appellant is that the AMS had not made an adjustment of WPI to reflect the effect of treatment. Dr Clark had made such an adjustment and set out his reasons for adding 1% WPI to his assessment. The appellant continued:
“The AMS has not considered that an increase in the appellant’s WPI could be increased for a “Mild effect of the treatment given” and has as such fallen into demonstrable error by only considering that only a substantial or total remission of symptoms can lead to an increase in the WPI found for “effects of treatment.”
Fourthly, the appellant alleged that the AMS made an error in assigning class I for the PIRS category of Travel. He referred to his own evidence and the evidence of his mother. In particular he referred to his evidence that he has “attacks whenever I drive on new roads or travel to new places” and “my mother will take me anywhere that I’m not familiar with”. Based on this evidence, the AMS should have concluded that the appellant could travel without a support person but only in familiar places and the appropriate classification for travel was class 2.
Fifthly, the appellant argued that the AMS erred in assessing employability. He relied on the additional evidence that was served with the submissions. He asserted that this evidence led to the conclusion that he should have been placed in class 5 with respect to employability or, alternatively, in class 4.
The appellant then dealt with the assertion of incorrect criteria by submitting that the demonstrable errors discussed above were also evidence that the assessment was made on the basis of incorrect criteria.
By its submissions in reply, the respondent contended that the determination of the AMS should be upheld. He had recorded that there were “numerous inconsistencies” in the appellant’s presentation at the assessment and that given the “significant inconsistencies” he largely relied on his own assessment and a consideration of the evidence before him. Understandably, the respondent makes no submission in respect of the rounding error alleged by the appellant.
In respect of the s323(2) deduction, the respondent noted that the appellant’s qualified specialist, Dr Clark, had also made a deduction of 1/10^th. It was a case where the AMS had considered all of the evidence and applied his own skill and judgement to make a deduction for a pre-existing condition.
In respect of the failure of the AMS to make an adjustment for the effect of treatment, the respondent sets out the criteria in Chapter 11.8 of the guidelines. It notes that the AMS recorded that the appellant’s symptoms were stabilised and not likely to alter in a substantial degree in the next 12 months. Further, the AMS recorded that the appellant had not gained a substantial or total remission with treatment. In those circumstances, the AMS had clearly considered the criteria in Chapter 11.8 and declined to make an adjustment for treatment. The reasoning of the AMS did not suggest a demonstrable error or incorrect criteria in respect of the effect of treatment.
In respect of the PIRS category of Travel, the AMS recorded a clear history that the appellant was “independent in travel to unfamiliar places and regularly goes out on his own”. That was similar to the history obtained by Dr Clark, who also assessed class 1.

In respect of the fifth alleged error, the classification of employability, the respondent argued that the AMS reached the view that the appellant could work 20 hours per week in a low stress environment. On the basis of that history he was entitled to assign class 3 for the category of employability. That was the same classification as Dr Clark in respect of the employability category.
The appellant, therefore submitted that the MAC should be confirmed.

FINDINGS AND REASONS

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.
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the 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 those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in his application.
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the AMS without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the AMS certificate is binding.

In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the AMS to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52 (Wingfoot) that it is only necessary for the MAC to explain the actual path of reasoning of the AMS in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot, it was said 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 give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”

The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
The AMS clearly fell into error in rounding up the deductible proportion pursuant to s 323(2) of 1.5% to 2%. Chapter 1.26 of the Guidelines states:
“Values less than 0.5 are rounded down to the nearest whole number and values of 0.5 and above are round up to the next whole number.”
Patently, the AMS is in error in rounding his deduction of 1.5% down to 1%. He should have deducted the 1.5% from the assessed WPI and then rounded that figure, 13.5%, up to 14%. This will be reflected in the new MAC issued by the panel.

Section 323(2)

While the evidence in respect of a pre-existing psychological condition is not uniform, the panel is of the opinion that it was open to the AMS to make a 1/10^th deduction pursuant to s323(3) of the 1998 Act in the circumstances of the case.
It is quite clear that the AMS formed the opinion that the history provided to him by the appellant was not entirely reliable. He noted that the appellant did not adopt the history that he had previously given to Dr Miller, the psychiatrist qualified by the insurer, or the formulation of pre-existing symptomatology made by Dr Clark. The AMS said that:
“I have attempted to reconcile the inconsistency as much as I can.”
He continued:
“Given the significant inconsistencies and problems in the supplied documents and the IME reports, I have largely relied on my assessment and his presentation on the day in arriving at my WPI assessment.
In respect of a pre-existing psychological condition, the doctor recorded the following:
“Mr Murphy describes some OCD symptoms which are life-long. He describes having irritable bowel syndrome and there is no question that he had been prescribed sertraline prior to the subject employment and the same medication had continued and later increased in the dose. It is not possible to fully ascertain the nature or severity of Mr Murphy’s pre-existing psychiatric condition, therefore I have applied a one tenth deduction. I suspect a greater deduction may be made if further information is obtained from his treating team or previous employers. In my opinion, Mr Murphy’s pre-existing depression and anxiety can be conceptualised as an adjustment disorder.”
At paragraph 11 of the MAC, the AMS stated:
“b. There is a pre-existing psychological condition which directly contributed to Mr Murphy's WPI.
c. The extent of the deduction is difficult and/or costly to determine, so in applying the provisions of s.323(2), I assess the deductible proportion as one tenth. This is not at odds with the available evidence.”
In the above passages, the AMS concluded that the evidence established a pre-existing psychological condition, probably an adjustment disorder. Patently he believed that it contributed to the appellant’s current permanent impairment. As it was “not possible” or “difficult” to fully ascertain the extent of the pre-existing adjustment disorder, the AMS made a 1/10^th deduction pursuant to s323(2)
The factual findings of the AMS that the appellant and suffered a pre-existing adjustment disorder are not challenged by the appellant. Rather, the appellant argues that the AMS should have attempted to assess the precise degree of his WPI as a result of a pre-existing psychological condition, in this case an adjustment disorder, prior to the injury. Had he adopted this approach he would have assessed the pre-existing WPI as zero and not made a deduction.
While the appellant denied to the AMS that he had sought treatment for previous psychological problems, the notes of the Tamworth General Practice record that Dr Javaluyas prescribed Zoloft for the appellant on 22 June 2016. On 12 November 2016, shortly before the appellant commenced work with the respondent, the doctor recorded that he had seen the appellant for “anxiety/depression”. He noted an anxiety flare-up and the fact that the appellant was “fidgety on Zoloft”.
By her report of 11 June 2020, Dr Miller recorded a history of “family difficulties including childhood sexual abuse”. She also recorded a history of the appellant being suspended from school “6 times due to smoking and truancy”. She recorded that he had worked in 16 jobs in the last 11 years and had been dismissed 6 times for attending work in an intoxicated state or repeatedly calling in sick. He also reported multiple episodes of major interpersonal conflict at work.
On the basis of this history, Dr Miller concluded that the appellant suffered from an Antisocial Personality Disorder which was entirely pre-existing. While Dr Clark does not record any relevant history from the appellant, he also thought that the appellant had a pre-existing psychological injury. By his report, Dr Clark stated:
“There is evidence of a pre-existing psychiatric condition, which would cause significant impairment though difficult to calculate. According to the NSW Workers Compensation & MAA Guidelines, if the percentage of pre-existing impairment cannot be assessed, the deduction is one tenth of the assessed WPI.”
The reference in Dr Clark’s report to the MAA Guidelines is, of course, irrelevant. Relevantly, the Guidelines for the evaluation of permanent impairment in respect of deductions for pre-existing conditions state:
“1.27 The degree of permanent impairment resulting from pre-existing impairments should not be included in the final calculation of permanent impairment if those impairments are not related to the compensable injury. The assessor needs to take account of all available evidence to calculate the degree of permanent impairment that pre-existed the injury.
1.28 In assessing the degree of permanent impairment resulting from the compensable injury/condition, the assessor is to indicate the degree of impairment due to any previous injury, pre-existing condition or abnormality. This proportion is known as “the deductible proportion” and should be deducted from the degree of permanent impairment determined by the assessor. For the injury being assessed, the deduction is 1/10^th of the assessed impairment, unless that it at odds with the available evidence.”
Chapter 11.10 of the Guidelines does provide for the measuring of pre-existing permanent impairment in a psychiatric case by reference to the PIRS rating scale as suggested by the appellant. However, 11.10 concludes thus:

“If the percentage of pre-existing impairment cannot be assessed, the deduction is one tenth of the assessed WPI.”
Obviously, the Guidelines cannot modify the way in which s323(2) of the 1989 Act operates, but they are not irrelevant to the task of assessment. They are delegated legislation enacted to indicate how relevant assessments are carried out.
In this case the panel has reached the conclusion that there was sufficient evidence, including other medical opinion of a pre-existing medical condition, to permit the AMS to find that the appellant more probably than not suffered a pre-existing adjustment disorder and that contributed to his present condition. Further, as the contribution made by the condition to the appellant’s impairment was difficult to determine, it was open to him to make a deduction in accordance with s323(2). Both the appellants IME and the AMS approached the matter on this basis. The AMS made explicit findings and clearly stated the reasons why it was necessary to apply s323 (2) in the circumstances of the case. His findings and reasons are consistent with the relevant Guidelines which are referred to above.
For the appellant to succeed on this point there must be demonstrable error. In Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324 (17 December 2018), the Court of Appeal approved the reasoning in earlier cases that a demonstrable error must be a “manifest error”. The appellant has not proven such an error.

Treatment effect

Chapter 1.32 of the Guidelines addresses adjustment for the effects of treatment. It states:
“Where the effect of long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
As the treatment prescribed in this case has not led to apparent substantial or total elimination of the appellant’s permanent impairment, it was not open to medical assessor to make an adjustment. In this respect, Dr Clark was in error. Conversely, the AMS was correct in declining to make an adjustment for the effect of treatment. The appellant has failed to establish error in respect of the assessor’s approach to this aspect of the case.

Errors of classification

Before considering the appellant’s assertions it may be useful to set out the classifications of Dr Oldtree Clark, on behalf of the appellant. His PIRS Rating Form is reproduced below.

Name	Mr Christopher MURPHY		Claim number/Reference	MI:ns:31550
D.O.B.	24 March 1991		Age at time of injury
Date of Injury	4 Nov 2018 to I Jan 2019		Occupation before injury	Hardware Assistant
Date of Assessment	5 March 2020		Marital status before injury	Engaged
Psychiatric Diagnosis	Major Depressive Disorder.
Is impairment permanent?	Yes.
PIRS category	Class	Reason for decision
Self-care and personal	3	Unable to live independently. Relies on his mother for care and support.
hygiene	From a psychiatric perspective, this is a moderate impairment.
Social and recreational	3	Has lost his former activities and has lost friends.
activities	From a psychiatric perspective, this is a moderate impairment.
Travel	I	Able to travel.
From a psychiatric perspective, there is no impairment.
Social functioning	3	His relationship has ended.
(relationships)	From a psychiatric perspective, this is a moderate impairment,
Concentration, persistence	2	He said he has some difficulty concentrating.
and pace	From a psychiatric perspective, this is a mild impairment.
Employability	3	Unable to return to work.
From a psychiatric perspective, this is a moderate impairment.

In determining whether there is error in respect of the categories of Travel and Employability, it is necessary to bear in mind that the AMS did not find the history provided to him by the appellant entirely reliable. The passages from the MAC in which he stated his reservations about the appellants history are set out above. The reservations which the AMS expressed in relation to history also extend to the appellants written evidence.
While there is conflicting evidence in respect of travel, the AMS and the two psychiatrists who examined the appellant for medicolegal purposes took reasonably consistent histories. The AMS recorded in the PIRS rating form the following information in respect travel:

“Mr Murphy is independent in travel to unfamiliar places, and regularly goes out on his own”
Dr Clark merely recorded that the appellant was “able to travel and that from a psychiatric perspective there was no impairment.” Dr Miller reported that the appellant was completely “independent” in travel.
In the opinion of the panel, there is no reason why the AMS should not have accepted what he was told at the assessment by the worker. A fortiori when two other psychiatrists, who examined the appellant during the previous 12 months recorded similar histories and reached identical conclusions as to classification.
It is true, as he submits, that in his supplementary statement dated 16 November 2020 the appellant states that his travel is restricted by his psychological condition. It is evident from the MAC that the AMS considered the information in the supplementary statement and the other lay evidence attached to the Application to Admit Late Documents lodged by the appellant’s solicitors on 16 November 2020.
But it was not incumbent on the AMS to accept this evidence when it conflicted with his own history and the history of medical practitioners. The certification of the AMS in respect of Travel reflected his consideration of all the evidence, his opinion as to its reliability, and his mental state examination of the appellant. In the opinion of the panel the appellant has not demonstrated error in respect of the classification of the PIRS category of Travel.
In classifying impairment in the PIRS category Employability and Adaption, the AMS has reached the same conclusion as Dr Clark. After setting out the instruction in the PIRS rating table, Dr Clark expressed the opinion that the appellant suffered a moderate impairment. Dr Miller, of course, expressed the opinion that the appellant had no impairment in respect of employability.
It is evident that in reaching his opinion that the appellant could “work 20 hours per week in a low stress environment within his physical capacity’, the AMS was relying on his mental state examination of the appellant and his consideration of all the medical evidence in the matter. Again, it must be borne in mind that the AMS found the history provided by the appellant unreliable and “largely relied” on his own assessment of the appellant’s presentation on the day in assigning classifications in the PIRS categories and certifying WPI.
In the opinion of the panel, the AMS was entitled to take this approach to assessment. Chapter 1.36 requires the AMS to utilise their entire range of skill and judgment when assessing permanent impairment. To paraphrase the language of Wingfoot, it is his role to express an opinion on the issue in dispute by applying his own medical experience and his own medical expertise. In performing this task, the AMS has adequately explained the “actual path of his reasoning”.
Having received into evidence the report of Dr Kumagaya dated 13 January 2021, the panel carefully considered its contents and concluded that nothing in that report is inconsistent with the opinion of Dr Clark or the AMS in respect of the issue of employability. Accordingly, this ground of appeal also fails.
As the determination of the panel results in a different outcome to that certified by the AMS, it is necessary to revoke the previous MAC. The new MAC will reflect the panel’s determination in respect of the rounding error made by the AMS.
For these reasons, the appeal panel has determined that the MAC issued on 5 January 2021 should be revoked and a new MAC issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002

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 Dr Michael Hong 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)
1. Psychological	5/11/2018 (deemed)	11, pages 55-60	14	15	1/10^th	14%
Total % WPI (the Combined Table values of all sub-totals)					14

The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

Paul Sweeney

Member

Dr Patrick Morris

Medical Assessor

Dr Douglas Andrews
Medical Assessor

[2021] NSWPICMP 67

4 May 2021