Port Stephens Council v Pearsall

DETERMINATION OF APPEAL PANEL
CITATION:	Port Stephens Council v Pearsall [2023] NSWPICMP 207
APPELLANT:	Port Stephens Council
RESPONDENT:	Andrew Pearsall
Appeal Panel
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	15 May 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological Injury; appellant employer alleged error in assessment under four categories of the Psychiatric Impairment Ratings Scale (PIRS); social and recreational activities; travel; social functioning; concentration, persistence and pace; Appeal Panel found error in the assessments for social and recreation activities and social functioning; appellant employer also alleged error in extent of deduction under section 323 for a condition he diagnosed as Autism Spectrum Disorder (ASD); the respondent worker challenged the finding of ASD; earlier in the Medical Assessment Certificate (MAC), the Medical Assessor (MA) had said that such a diagnosis of ASD required corroborative evidence; despite stating that this was required the MA went onto diagnose ASD and make a deduction on this basis; there is no other medical evidence to support such a diagnosis; a pre-existing eccentricity of personality or vulnerability does not equate to a pre-existing psychiatric or psychological condition or abnormality; no deduction should have been made for a condition of ASD in these circumstances; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 10 January 2023 Port Stephens Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr John Lam-Po Tang, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 13 December 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the 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).

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.
The appellant did not request that the worker be re-examined. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel found error, there was sufficient material before the Appeal Panel for a determination to be made.

EVIDENCE

Documentary evidence

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

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

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

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
·    Date of injury:   7 November 2017
·    Body parts/systems referred:        Psychological
·    Method of assessment:                  Whole Person Impairment”
The Medical Assessor issued a MAC certifying as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psychological	7.11.2017	Chapter 11, page 6, table 11.8	N/A	24%	1/10	22%
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					22%

The assessment was based on his assessment under the permanent impairment rating scale (PIRS) as required by the Guidelines as follows:

Table 11.8: PIRS Rating Form

Name	Andrew Pearsall	Claim reference number (if known)
DOB	[redacted]	Age at time of injury	42 years
Date of Injury	7 November 2017	Occupation at time of injury	Assistant Trades Gardener
Date of Assessment	21 November 2022	Marital Status before injury	Single

Psychiatric diagnoses	1. Persistent Depressive Disorder		2. Autism Spectrum Disorder
3.		4.
Psychiatric treatment
Is impairment permanent?	Yes	No (circle one)

PIRS Category

Class

Reason for Decision

Self Care and personal hygiene

2

Mr Pearsall estimated he bathes 3 or 4 times per week, and attends to dental hygiene weekly.

Mr Pearsall reported eating one meal per day, which is lower the 2 or 3 meals per day he used to eat.

Mr Pearsall lives with his parents, but has always done so; he has never lived independently.

Social and recreational activities

3

Mr Pearsall rarely goes out to social events, though this pre-dates the onset of the work-related matters.

Mr Pearsall does not work on his classic cars, even though they are stored at his place of residence, and he has resources and time to do so.

Travel

3

Mr Pearsall advised that he does not leave his place of residence without a parent accompanying him.

At the time of commencing work with the council, Mr Pearsall was able to drive around his local area by himself. He no longer does so.

Mr Pearsall was able to catch the train from Newcastle to Sydney with his mother on the day of assessment.

Social functioning

3

Mr Pearsall has continued to maintain relationships with his parents, with whom he lives.

Whilst Mr Pearsall has not been able to form relationships with people from outside his family, this pre-dates his employment with the council.

Mr Pearsall reported limited contact with his sister or her family, and little desire to do so, though this predates his employment with the council.

Concentration, persistence and pace

3

Mr Pearsall reported subjective impairment in concentration.

Mr Pearsall was able to maintain focus during the 2-hour IME assessment.

Mr Pearsall advised that he was able to read and attend to shorter documents, but not lengthy documents.

Employability

5

Mr Pearsall has not demonstrated a capacity to work on a full-time or part-time capacity for 5 years.

Taking into consideration Mr Pearsall's described activities at home, he has not been able to maintain activities that could form the basis of transferable skills in a voluntary or paid capacity.

Score

Median Class

2

3

5

= 3

Aggregate Score Impairment

Total

%

2 + 3

+ 3

+ 5

19

24%

The Medical Assessor made a deduction of one-tenth under s 323 in respect of a pre-existing condition or abnormality that he diagnosed as autism spectrum disorder (ASD), leaving an assessment of 22% whole person impairment as a result of injury.
The employer appealed. In summary the appellant submitted that the Medical Assessor erred as follows:
(a)    the Medical Assessor applied incorrect criteria in his assessment of Class 3 in respect of Social and Recreational Activities and the MAC contains a demonstrable error as a result;
(b)    the Medical Assessor applied incorrect criteria in his assessment of Class 3 in respect of Travel and the MAC contains a demonstrable error as a result;
(c)    the Medical Assessor applied incorrect criteria in his assessment of Class 3 in respect of Social Functioning and the MAC contains a demonstrable error as a result;
(d)    the Medical Assessor applied incorrect criteria in his assessment of Class 3 In respect of Concentration, Persistence and Pace and the MAC contains a demonstrable error as a result, and
(e)    when he made a deduction of one-tenth under s 323 when he should have made a higher deduction of at least 20% because there was available evidence as to the respondent worker’s pre-injury behaviour and personality to support a deduction greater than one-tenth and the MAC contains a demonstrable error as a result.
In summary, Mr Andrew Pearsall (the respondent) submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The respondent submitted in respect of the s 323 deduction of one-tenth applied by the Medical Assessor, that “given there was no corroborative evidence and certainly no persuasive evidence to establish the diagnosis (of ASD) it is a little difficult to see how the assessment could be anything other than 10%”. However, if an Appeal Panel is convened, “the worker specifically challenges the finding of ‘ASD’ and says that such should be revoked. The worker says the conclusion is inconsistent with the reasoned findings”.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The Medical Assessor took a history which was broadly consistent with the other evidence before him. He recorded in detail the appellant’s reporting of present symptoms and impact on activities of daily living (ADLs). The Medical Assessor recorded as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
Mr Pearsall explained that he first worked for Port Stephens Council on a casual basis in 2011. From 21 November 2012, he was employed on a permanent full-time basis as a gardener - operator.

At the time Mr Pearsall commenced working for the council, he was able to drive a car alone, up to three hours, and was able to travel by car with his parents to Victoria. He was a member of a car enthusiasts club. He said he showered daily, sometimes twice daily, and ate regular meals, though only sometimes had three meals per day. He was single, and had never had a long-term relationship or partner, and other than attending car club meetings, had solitary pursuits, describing himself as not very social. He did not socialise with friends. He had never been prescribed psychotropic medications.
In 2014, Mr Pearsall's role at the council was changed to an assistant trades gardener.
Whilst working for the council, Mr Pearsall alleged that he was subjected to verbal harassment and bullying. Some of the basis for the harassment was Mr Pearsall's solitary nature: ‘Because I chose not to get married, I get called a p*fter’. He said other staff members accused him of ‘watching gay movies... [like] Brokeback Mountain: I never actually saw this movie’.
Mr Pearsall alleged that at work, he was allocated a heavy workload by his supervisor, alleging that the tasks he was directed to do were meant to be shared amongst people. He said that this was the case from the start of his employment.
In 2015, Mr Pearsall said he first raised concerns about his work with his employer. A supervisor, Nicholas B, had commenced work in February 2015 as a trades gardener, a role senior to that of Mr Pearsall. Mr Pearsall complained to him about being asked to cut a tree which had powerlines through the branches, and being asked to cut up an uprooted tree.
Mr Pearsall explained that he did not socialise with other employees at the council. He recalled being invited to social gatherings by co-workers, but never attended these.
On 21 April 2017, Mr Pearsall was advised that that Chris M, another assistant trades gardener, had made threats to harm him. He also said that he was referred to as a paedophile and homosexual by Chris M. When asked about the motivation that Chris M might have to behave in this manner, Mr Pearsall replied, ‘I don't know’.
Mr Pearsall advised that he ceased work in late 2017, following allegations made against him, in particular, an allegation that he had threatened to harm another council employee. Other allegations were that Mr Pearsall was unwilling to follow instructions, and that he had given out confidential information. He clarified that his employment was suspended on the basis of the allegations, and that he did not return to work. He said, ‘Basically there was no resolution to anything’. He asserted that the allegations were ‘unfounded, against me, yes’. He said that the main issue was a grievance against the council, Mr Pearsall believing that the council's actions were unjustified. He continued to hold this belief.

Since ceasing work, Mr Pearsall reported persistent anxiety, adding, ‘I'm worried about things’. He has not attempted to return to any kind of work since that time, citing difficulty concentrating, loss of interest and a sense of hopelessness. He sought medical attention, and was prescribed an antidepressant medication, desvenlafaxine, the dose of which was gradually increased from 50 mg to 200 mg per day. He reported some benefit attributable to this, commenting, ‘It makes me less harmful to myself’.
In December 2017, Mr Pearsall was referred to a clinical psychologist, Dr Danielle Clifford, whom he continued to consult for several years.
Around six weeks after ceasing work, Mr Pearsall said that his workers' compensation payments were ceased. He advised he had not received payment for medical treatment.
In 2018, Mr Pearsall said that there was an arbitration meeting. He said that his account that he had been called a paedophile was contested by his employer. Referring to the council, he said, ‘They're accusing me of creating things, I didn't do it’.
By May 2018, when Mr Pearsall had an IME with Dr Ash Takyar, he was prescribed desvenlafaxine 100 mg daily, to which had been added a sedative-hypnotic medication, temazepam 10 - 20 mg nightly, and an antipsychotic medication, olanzapine 2.5 mg nightly. He opined the latter reduced agitation.
In late 2018, Mr Pearsall began to receive Centrelink payments; he was not sure of the initial benefit provided, but recalled he was provided with a healthcare concession card.
Mr Pearsall denied any history of repeated deliberate self-harm. That said, as noted in the history, he engaged in several episodes where he engaged in impulsive and potentially injurious behaviour such as opening the car door whilst it was travelling at speed. He initially stated this occurred three times in total, and nominated them occurring within the last two years however, it is noted in Dr Ashkar’s independent medical examination of 2020, that Mr Pearsall had engaged in this behaviour by the time of that report. On no occasion has Mr Pearsall actually thrown himself from a moving car. He reported no history of psychiatric hospitalisation, or management by community mental health services.
Around three years ago, Mr Pearsall was referred to Dr Ashwinder Anand, a consultant psychiatrist, who has prescribed medications and continued to review him to date.
By early 2021, during another IME with Dr Takyar (see report dated 3 March 2021),
Mr Pearsall had been prescribed a mood stabiliser, lithium carbonate 450 mg twice daily, and propranolol 40 mg twice daily for tremors (caused by lithium).
At some stage in 2021, Mr Pearsall's GP, Dr Raschke, retired, and he began consulting another, Dr Peter Rawlings, from February 2021 onwards.

At some stage after ceasing work, Mr Pearsall reported being irritable towards others. He provided an example from a couple of years ago where he became very angry towards an NBN technician who was trying to sort out a matter regarding the internet to his parents' property. He did not actually harm the person in question.
When asked about which psychiatric diagnosis or diagnoses had been provided by treating clinicians, Mr Pearsall said that he has been advised he has Major Depressive Disorder and one of the anxiety disorders. He thought that autism had been mentioned in one of the independent reports that had been conducted, but he has never been formally assessed for Autism Spectrum Disorder.
Present treatment:
a. Treating clinicians:
Dr Peter Rawlings, general practitioner: Mr Pearsall initially consulted Dr Rawlings on 8 Feb 2021, following the retirement of his former GP, Dr Raschke. He currently consults Dr Rawlings a monthly basis, and estimated that the consultations were around seven minutes in duration. He stated the nature of consultations includes review and prescription of medication, and organisation of referrals.
Dr Ashwinder Anand, consultant psychiatrist: Mr Pearsall first consulted Dr Anand approximately three years ago. He estimated that he consults Dr Anand every four months, and was due to see him 6 December 2022. He estimated consultations lasted around 30 minutes. When asked to describe the nature consultations Mr Pearsall replied, ‘He listens to me and what I’m going through, how I'm worried’.
Mr Pearsall is not currently seeing a psychologist, and is not engaged with a rehabilitation provider.
b. Medications: lithium carbonate 450 mg twice daily
desvenlafaxine 200 mg daily
temazepam 10-20mg nightly
olanzapine 1.25 - 2.25 mg twice daily as needed
propranolol 40 mg twice daily
atorvastatin 40 mg nightly
metformin 1000 mg twice daily
c. Psychological treatment:
Mr Pearsall was not receiving psychological treatment at the time of the IME. He did not indicate a current referral to see a psychologist.
Present symptoms:
When Mr Pearsall was asked to describe is mood, he replied, ‘Moody… suspicious… I'm worried that something is going to happen to me’. He rated his mood as 3/10 on a ten-point scale, where 0/ 10 represents a very depressed mood, and 10/10 represents a very cheerful mood. His mood was described as fluctuating, with no diurnal mood variation reported. Mr Pearsall reported no suicidal ideation within the past month. When asked about motivation, Mr Pearsall replied, ‘I can’t be bothered doing anything’. He described his energy levels as ‘moody… low’. He reported intermittent enjoyment of food. He described his weight as fluctuating.
Mr Pearsall described his sleep as ‘all over the place, I can for sleep all over the day…’, but stated he found it difficult to fall asleep at night. At other times, he reported remaining wake for two days. He stated he takes temazepam 20 mg most nights to sleep. When asked to outline the quality of sleep, Mr Pearsall stated he woke up angry and frustrated, and noted, ‘I feel tired on waking’.
Mr Pearsall expressed concern that he may be persecuted or attacked by one of his former co-workers at the Port Stephens Council. He based his opinion on verbal threats that had been conveyed to him at least five years in the past. He held these fears rigidly, and they had the quality of an overvalued idea, rather than a delusional belief. He expressed the belief that council employees might still be discussing him, based on people's body language. Mr Pearsall denied any auditory, visual or olfactory hallucinations. He denied any delusions of reference.
Mr Pearsall advised that he had poor concentration, and whilst he was able to read short communications from the Personal Injury Commission, stated that when it came to longer documentation, he could not read this and required assistance. When asked about memory symptoms, Mr Pearsall replied, ‘I can remember what I did this morning, but not several days ago’. Of his long-term memory he reported, ‘I have a good memory for what happened to me at Port Stephens Council’.
Details of any previous or subsequent accidents, injuries or condition:
a. Past psychiatric history:
Mr Pearsall stated that during his primary school years, he repeated one grade. He was not referred to a child and adolescent counsellor, educational counsellor or psychologist whilst in school.
Prior to 2017, Mr Pearsall had never been referred to a psychologist, nor had he been prescribed psychotropic medications of any kind. Prior to being referred to Dr Anand several years ago, he had never been referred to a consultant psychiatrist.
b. Past compensation history:
Mr Pearsall reported no history of workers' compensation claims of either a physical or psychiatric nature prior to the current claim against Port Stephens Council. He reported no other compensation claim.
General health:
a. Medical & surgical history:
Mr Pearsall was diagnosed with Type 2 Diabetes Mellitus approximately five years ago. He has never been a prescribed insulin, but has been prescribed an oral hypoglycaemic medication, metformin, which he continues to date. He was diagnosed with hypercholesterolemia more than 12 months ago, and is prescribed a lipid-lowering agent, atorvastatin. He thinks his blood pressure has been elevated, but was unable to provide additional details on this. He reported no history of other medical conditions. He advised he has never had any surgical procedures, and stated he'd never had a head injury that resulted in loss of consciousness or concussion. He reported no known medication or other allergies.
b. Alcohol & other substance use:
Mr Pearsall is a regular smoker, and stated he smokes a pack of 25 g of tobacco over the course of a week. He drinks a 1.25 L bottle of Coke No Sugar every day. He stated he does not drink alcohol at all at present, and has not done so since the mid-1990s. He reported no history of illicit substance use.
Work history including previous work history if relevant:
Mr Pearsall completed his HSC in 1993, and described his academic performance as ‘average’. After high school, he worked as a floor tiler for his father for seven years. After this, he decided he wanted to go to university, stating he ‘didn’t want to work on my hands and knees for life’. He enrolled a in a Bachelor of Construction Management in 2000, at the University of Newcastle, but did not re-enrol after the first year. Thereafter he worked in a variety of roles, including cleaning industrial filters in restaurants, a building cost estimator with a focus on tiling for 12 to 18 months, and then in warehousing or storeman roles for brief periods of time, some jobs lasting a month.
In the 2000s, Mr Pearsall completed a Certificate III in warehousing and distribution, a Certificate III in warehousing and storage, a Certificate III in car sales. He had earlier completed a Certificate IV in contract management.
In 2011, Mr Pearsall completed a Certificate II in horticulture. Around this time, he had a period of unemployment lasting approximately a year. While studying horticulture, he was recommended to apply for a role at the Port Stephens Council, as a labour hire worker. He worked on a casual basis from 2011-2012, and roles included traffic control and patching potholes. He stated he spent 22 months as a casual employee, but explained that he typically worked full-time hours. in 2012, he began working as an assistant trades gardener for the Council, his first day being 21 November 2012, and he was employed on a full-time basis. He ceased working in late 2017; he has not worked for almost 5 years.
· Social activities/ADL:
a. Current social situation:
Mr Pearsall was born in Fairfield, Sydney, the elder of two children. The family moved to Newcastle when he was 13. He attended the local high school until Year 12. He stated that whilst at high school he did not participate in any sporting activities, nor any extracurricular activities. Whilst he referred to having friends in high school, on questioning, these did not appear to be close. By way of example, he never slept over a friend's home and does not appear to have spent much time with people outside of school hours. He reported a particular interest in computing and technical drawing whilst in high school. He did not date in high school. He does not appear to have dated as an adult.
Mr Pearsall lives with his parents in Medowie; they are in their seventies. He explained he has never lived out of the family home. He explained he has never been in a long-term relationship, and has never had a partner. He commented, ‘No, it doesn't interest me’. He reported limited contact with his younger sister who is married and lives on the Central Coast. He stated he does not visit her when their parents go to visit her, and does not have a relationship with her children. When asked about social relationships with extended family members, Mr Pearsall explained he had two cousins but added, ‘I don't even know them’. Despite having lived in the same residence for 20 years,
Mr Pearsall advised he does not know his neighbours, but explained that his mother visits a close neighbour, and his father has introduced himself to a new neighbour.
Mr Pearsall advised he was not interested in knowing or getting to know his neighbours. He stated he does not have any friends from any previous TAFE courses he's undertaken nor from previous jobs.
Mr Pearsall stated his current income is derived from a Centrelink benefit. He advised he does not receive any monies from a workers’ compensation claim. He does not derive any secondary income. He described himself as debt-free, and has no financial liabilities, such as a mortgage.
Mr Pearsall described an interest in cars. He owns a 2017 Nissan X-Trail, a 1958 Morris Minor and another vintage Morris Roadster Car. He has owned the vintage cars for around 25 years, and these are kept on the family property. He explained, "I like the classic cars... I like the period of the era, but they are not so practical to drive on roads these days". His interest in vintage cars dates from childhood. He used to belong to a car club and attend meetings, but no longer does so. He has not retained any friendships from these organisations. He does not go out socially with his parents or by himself, and the last social gathering he recalled attending was his mother’s 70th birthday. He doesn't undertake any exercise or participate in any sporting activities. He does not follow any sporting teams. He is not a churchgoer and reported no religious affiliations.
Mr Pearsall also described a longstanding interest in computing. In 1985 his parents bought him a Commodore 64 home computer, and he became interested in programming. He still has an interest in computing, but no longer has an interest in computer games. He used to run a website for a Morris car group nine years ago, undertaking the webmaster role for four or five roles. He stated he ceased this following a member of the club criticising him for being late with updates on the website. Other than classic cars and computing, Mr Pearsall reported no other interests.
b. Current level of function:
With respect to activities of daily living, Mr Pearsall estimated he bathes three or four times per week, and attended to dental hygiene once a week. His mother clips his hair once every six months. He typically eats one meal per day, such as a ham and salad sandwich. He states he does not eat meals with his parents, and if they happen to be eating at the same time, he eats in his bedroom. This is a longstanding pattern of behaviour.
Around the house, Mr Pearsall commented that ‘I don't do any’ chores or maintenance of the property. He clarified he does not undertake any cooking, cleaning, laundry, or other household chores. He sometimes goes to buy his tobacco, but does not do household or personal shopping. This pattern of activity around the home is longstanding.
Mr Pearsall stated he cannot drive alone at present, though has been able to do so in the past. He explained that he bought a new car in 2017, and since that time he has driven less than 5000 kilometres. He explained his mother drives him to appointments when necessary. He elaborated he is unable to use public transport alone. On the day of the assessment, Mr Pearsall and his mother caught a train from the Broadmeadow transport interchange in Newcastle to Sydney. When asked if thought he would have been able to do this if his mother were not able to assist him, Mr Pearsall expressed the view he would not have been capable of doing so. He stated he does not go for walks in his local neighbourhood.
As noted, Mr Pearsall has an interest in computing and technology. He explained whilst he has a mobile phone, he does not answer phone calls. He is able to send and receive emails. He does not have any social media accounts. He has a debit card, but no credit card. He is able to manage his finances. He is able to access the internet and undertake various computing activities.
With respect to leisure, Mr Pearsall stated he watches Netflix from time to time, but explained this was not very frequent, and that he prefers to watch videos on YouTube. These range from five to 30 minutes in duration, and he typically views videos once a day. He explained he can watch movies based on true stories or documentaries, last doing so 3 to 4 days prior to the assessment, but he commented he fell asleep during the movie. He stated he can maintain concentration for up to 30 minutes whilst watching videos, and when asked about themes of the videos stated he would watch videos on reviews of products, World War I or World War II.
Mr Pearsall has not undertaken any paid or unpaid work since 2017. He estimates he leaves the family home once a week on average, always with his parents.”

The Medical Assessor conducted a mental state examination and recorded his findings as follows:
“Mr Pearsall presented as a Caucasian man appearing older than stated age. He was casually dressed, wearing a baseball cap, polo shirt, shorts and a black face mask. He carried a backpack. Immediately before the assessment, when seen in the waiting area of the Personal Injury Commission, he appeared tense and nervous, shaking his right knee. At the start of the assessment, Mr Pearsall continued to display a right knee tremor, however after 30 minutes this dissipated. He gestured appropriately with both hands, and there were no mannerisms or stereotypic movements observed at any stage. No verbal or motor tics were observed. He made good eye contact. He answered all questions; he was polite. At times Mr Pearsall referred to documents that he carried in a folder.
Mr Pearsall’s speech was hesitant at times, and soft to normal in volume, hesitant to normal in rate. There was no idiosyncratic word usage noted, and no neologisms noted. His affect was restricted in range, and he presented as anxious throughout the assessment. He was not labile or tearful. His affect appeared of normal intensity. His mood was subjectively anxious and depressed. He was not objectively irritable, elevated or apathetic. His thought form was logical and sequential with no formal thought disorder. His responses to questions were often highly detailed and elaborated. There was no poverty of ideation. There was no delusional thought content expressed or observed. He denied any thoughts of self-harm or suicide at the time of the assessment. He was alert and oriented throughout the interview, with no drowsiness observed, and no fluctuation level of consciousness.”
The Medical Assessor made a diagnosis as follows:
“summary of injuries and diagnoses:
Mr Pearsall is a 47 year old man with a pre-morbid history of very limited social interactions and interest therein, with two solitary interests, Morris cars and computing, who has always lived at home, has had few friends, expressed almost no interest in interacting with others, even his sister and nieces, and never had a relationship. This pattern is suggestive of an Autism Spectrum Disorder. That said, he was able to complete a number of TAFE courses and work in several occupational roles. Corroborative developmental information would be required in order to establish a diagnosis of Autism Spectrum Disorder.
Following commencing work at Port Stephens Council, Mr Pearsall alleged he was subjected to both an unfair work allocation, and also subjected to harassing behaviour by other council employees. Whilst these have been contested, the Personal Injury Commission accepted the majority of his complaints. Complaints were also against Mr Pearsall, and in the context of these, he developed symptoms of anxiety and depressed mood, and ceased work in late 2017.
Despite psychological intervention and pharmacological treatment being implemented shortly after development of psychiatric symptoms, and enhancement of treatment through increased medications and referral to a consultant psychiatrist in the first couple of years after ceasing work, Mr Pearsall reported ongoing psychiatric symptoms and significant functional incapacity. The symptoms arising from Mr Pearsall's employment are consistent with a Persistent Depressive Disorder.
consistency of presentation
The history provided by Mr Pearsall with relation to the workplace matters was consistent with reviewed documentation. His history was not consistent with the reviewed documentation in relation with his premorbid functioning.”
The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above. The assessments in the categories of social and recreation activities and social functioning are the subject of complaint on appeal.
The Medical Assessor had regard to the other evidence that was before him upon which he made brief comments:
“Correspondence from Dr Danielle Clifford, clinical psychologist, dated 30 November 2017:
Dr Clifford's correspondence is provided from the perspective of a treating clinician, to Mr Pearsall's GP at the time, Dr Raschke. Symptoms of low mood, anxiety, ruminations, insomnia, anhedonia and feelings of worthlessness were described. She believed that Mr Pearsall's symptoms were related to work-related matters.
Independent psychological examination report by Dr Peter Ashkar, Forensic Psychologist and Clinical Neuropsychologist, dated 3 April 2018:
This report is addressed to David Richards, State Cover Mutual, and the assessment upon which it was based occurred several months after the reported date of injury.
Dr Ashkar note that Mr Pearsall had ‘a strong tendency towards excessive acquiescent true responding (i.e., answering ‘yes’ to questions irrespective of their content)’. He added that this response style invalidates the test profile. Dr Ashkar opined that
Mr Pearsall's ‘unco-operative response style’ rendered questions pertaining to symptoms, diagnosis, treatment need and capacity for employment unanswerable. As such, Dr Ashkar made no diagnosis, and further, stated that he ‘found no evidence... to support a clinical diagnosis’.
Independent medical examination report by Dr Ash Takyar, consultant psychiatrist, dated 11 May 2018:
This is the first of Dr Takyar's assessments, and was conducted within 6 months of
Mr Pearsall ceasing work. It was addressed to Scott Dougall, Carroll & O'Dea Lawyers. Mr Pearsall was not working at the time of this assessment. He was prescribed the following psychotropic medications: desvenlafaxine 100 mg daily, olanzapine 2.5 mg nightly, and temazepam 10 mg as needed. Dr Takyar noted ‘no premorbid personality disorder evident’, noting that Mr Pearsall described himself as ‘... a quiet person, shy’.
Dr Takyar diagnosed Mr Pearsall with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He attributed this condition to Mr Pearsall's employment at the Port Stephens Council. He did not believe that Mr Pearsall had a pre-existing psychiatric condition. He did not believe that Mr Pearsall would be able to return to his pre-injury employer.
Independent medical examination report by Dr Ash Takyar, consultant psychiatrist, dated 3 October 2019:
Dr Takyar's second assessment was similarly addressed to Scott Dougall, Carroll & O'Dea Lawyers. Treatment recorded at the time of this assessment included reviews by Dr Ashwinder Anand and Ms Danielle Clifford. Mr Pearsall was prescribed desvenlafaxine 200 mg daily and lithium carbonate 900 mg daily.
Independent psychological examination report by Dr Peter Ashkar, Forensic Psychologist and Clinical Neuropsychologist, dated 4 April 2020:
Dr Ashkar undertook structured psychometric tests in Mr Pearsall's case. He concluded that some of Mr Pearsall's responses indicated over-reporting of symptoms, based on an increased number of responses to uncommon symptoms, a high number of symptoms endorsed and a high number of somatic symptoms endorsed. Dr Ashkar concluded that this pattern of responses ‘provides compelling evidence of symptom exaggerations and (in the context of this claim) malingering’. Again, in light of the test results, Dr Ashkar opined that it was ‘not possible to formulate a diagnosis or comment on his prognosis’, and further, ‘... it is impossible to know where his genuine and exaggerated symptoms begin and end’.
Independent medical examination report by Dr Ash Takyar, consultant psychiatrist, dated 3 March 2021:
This is Dr Takyar's third independent assessment, and addressed to Ms Afifa Kausar, Carroll & O'Dea Lawyers. Mr Pearsall was prescribed the following psychotropic medications:
lithium carbonate 450 mg twice daily
desvenlafaxine 200 mg daily
temazepam 10 - 20 mg nightly as needed
olanzapine 1.25 - 2.5 mg twice daily
propranolol 40 mg twice daily
Mr Pearsall's antidepressant and the dose thereof had not changed for at least 17 months, and there had been no change in the daily dose of lithium carbonate over the same period.
Mr Pearsall had not seen a psychologist for over a year prior to this assessment. He was consulting Dr Anand every few months.
Dr Takyar revised the psychiatric diagnosis in Mr Pearsall's case, noting that due to the persistence of symptoms, diagnoses of Major Depressive Disorder and Generalised Anxiety Disorder were appropriate. He opined Mr Pearsall had reached maximum medical improvement, and calculated a whole person impairment score of 24%.
Independent psychological examination report by Dr Peter Ashkar, Forensic Psychologist and Clinical Neuropsychologist, dated 15 November 2021:
Dr Ashkar's third assessment of Mr Pearsall also involved application of structured psychometric testing. The reported findings were similar to those documented in his April 2020 report. His interpretation of the test results were also unchanged.
Dr Ashkar speculated that Mr Pearsall maintained his sick behaviour as a way of maintaining his justification of injustice and maltreatment whilst employed by Port Stephens Council. Moreover, he speculated that Mr Pearsall was not motivated to ‘move forward with his life because... this would be akin to reneging on his claim and absolving the council of its wrong doing’. Mr Ashkar opined that Mr Pearsall demonstrated a pattern of ruminating and inflexible thinking that was ‘possibly delusional’.
The Medical Assessor made a one-tenth deduction under s 323 explaining:
“a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Autism Spectrum Disorder
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i)Mr Pearsall described longstanding persistent restricted social relationships and interactions; he reported a limited range of leisure activities.
The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth.”
The Medical Assessor had explained earlier in the MAC:
“Mr Pearsall had an aggregate score of 19 on the Psychiatric Impairment Rating Scale (PIRS), with a median class value of 3. Due to the difficulties in clarifying an accurate level of function at the time Mr Pearsall commenced work with Port Stephens Council, a deduction of 1/10 was made.”
The appellant complains that the Medical Assessor has erred in respect of four of the categories assessed, namely, Social and Recreational Activities, Travel, Social Functioning and Concentration, Persistence and Pace.
The Panel cannot interfere with the ratings ascribed by the Medical Assessor to the categories of Social and Recreational Activities, Travel, and Social Functioning, and Concentration, Persistence and Pace absent error by the Medical Assessor. The Panel cannot interfere with the rating because opinions might differ as to the best fit in this category. There must be error or assessment on the basis of incorrect criteria.
In respect of Social and Recreational Activities, Table 11.2 of the Guidelines provides as follows:
“Table 11.2: Psychiatric impairment rating scale – social and recreational activities

Class 1

No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.

Class 2

Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).

Class 3

Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.

Class 4

Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.

Class 5

Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.”

The Medical Assessor assessed a moderate impairment at Class 3 with the following reasoning:
“Mr Pearsall rarely goes out to social events, though this pre-dates the onset of the work-related matters. Mr Pearsall does not work on his classic cars, even though they are stored at his place of residence, and he has resources and time to do so.”
The appellant submitted that a Class 2 or mild impairment should have been assessed.
The Appeal Panel considers that the Medical Assessor has erred in an assessment of a moderate impairment in circumstances where the only change to social and recreational activities is in respect of the worker no longer working on his classic car and no longer attends car club meetings. Otherwise his social activities remain as before injury. In these circumstances Class 2 is the best fit.
In respect of Travel, Table 11.3 of the Guidelines provides as follows:
Table 11.3: Psychiatric impairment rating scale – travel

Class 1

No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.

Class 2

Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.

Class 3

Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.

Class 4

Severe impairment: finds it extremely uncomfortable to leave own residence even with trusted person.

Class 5

Totally impaired: may require two or more persons to supervise when travelling.

The Medical Assessor assessed a moderate impairment at Class 3 with the following reasoning:
“Mr Pearsall advised that he does not leave his place of residence without a parent accompanying him. At the time of commencing work with the council, Mr Pearsall was able to drive around his local area by himself. He no longer does so. Mr Pearsall was able to catch the train from Newcastle to Sydney with his mother on the day of assessment.”
The appellant submitted that a Class 2 or mild impairment should have been assessed.
The Appeal Panel can discern no error in the assessment of a moderate impairment. The appellant is unable to travel and does not travel from his residence without one of his parents accompanying him. Prior to injury, he was able to do so, driving his own car independently. He can no longer do this and the Appeal Panel can discern no error in a Class 3 assessment which is the best fit.
In respect of Social Functioning, Table 11.4 of the Guidelines provides as follows:
“Table 11.4: Psychiatric impairment rating scale – social functioning

Class 1

No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).

Class 2

Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.

Class 3

Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.

Class 4

Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).

Class 5

Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.”

The Medical Assessor assessed Class 3 with the following reasoning:
“Mr Pearsall has continued to maintain relationships with his parents, with whom he lives. Whilst Mr Pearsall has not been able to form relationships with people from outside his family, this pre-dates his employment with the council. Mr Pearsall reported limited contact with his sister or her family, and little desire to do so, though this predates his employment with the council.”
The appellant submitted that the Medical Assessor should have assessed a mild impairment at Class 2.
The Appeal Panel considers that the Medical Assessor has erred in respect of the Class 3 rating which is not the best fit. Social functioning is concerned with the impact of the quality of the workers relationship as a result of impairment from injury. The worker maintains a relationship with his parents which remains his predominant relationship. Otherwise his social functioning remains as prior to injury and Class 1 is the best fit.
In respect of Concentration, Persistence and Pace, the Medical Assessor assessed a moderate impairment at Class 3 and the appellant submitted a Class 2 should have been assessed.
In respect of Concentration, Persistence and Pace, Table 11.5 of the Guides provides as follows:
“Table 11.5: Psychiatric impairment rating scale – concentration, persistence and pace”

Class 1	No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.
Class 2	Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3	Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.
Class 4	Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.
Class 5	Totally impaired: needs constant supervision and assistance within institutional setting.

The Medical Assessor assessed a Class 3 with the following reasoning:
“Mr Pearsall reported subjective impairment in concentration. Mr Pearsall was able to maintain focus during the 2-hour IME assessment. Mr Pearsall advised that he was able to read and attend to shorter documents, but not lengthy documents.”
Assessment has not been based on self-report alone. The Medical Assessor has to make an independent assessment on the day of examination using his clinical expertise. He has done that over a period of two hours with the opportunity to observe the worker and apply his clinical expertise to an assessment of Concentration, Persistence and Pace. The Medical Assessor has done that here and has based his assessment on the correct criteria and the Appeal Panel can discern no error in the assessment of Class 3 which was open to the Medical Assessor.
What this means is that the categories of Self Care and Personal Hygiene at Class 2 and Employability at Class 5 remain as assessed because they were not the subject of appeal. Travel at Class 3 and Concentration, Persistence and Pace at Class 3 have been confirmed on appeal. With the Panel’s assessments of Class 2 for Social and recreation activities and Class 1 for social functioning, in ascending order the Classes are 1,2,2,3,3,5 which gives a total score of 16 and a median of 3. This equates to 17% whole person impairment.
Turning now to the question of a deduction under s 323 which was the subject of appeal. The Medical Assessor made a deduction under s 323 of one-tenth to account for the contribution to the level of permanent impairment assessed by the pre-existing condition which he diagnosed as ASD. Earlier in his MAC the Medical Assessor had said that such a diagnosis required corroborative evidence. Despite stating that this was required the Medical Assessor went onto diagnose ASD and make a deduction on this basis. There is no other medical evidence to support such a diagnosis. A pre-existing eccentricity of personality or vulnerability does not equate to a pre-existing psychiatric or psychological condition or abnormality. No deduction should have been made for a condition of ASD in these circumstances.

For these reasons, the Appeal Panel has determined that the MAC issued on
13 December 2022 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:	W1272-22
Applicant:	Andrew Pearsall
Respondent:	Port Stephens 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 John Lam Po-Tang 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 AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psychological	7.11.2017	Chapter 11, page 6, table 11.8	N/A	17%	NIL	17%
2.
3.
4.
Total % WPI (the Combined Table values of all sub-totals)					17%

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Citations

Port Stephens Council v Pearsall [2023] NSWPICMP 207

Cases Citing This Decision

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Campbelltown City Council v Vegan [2006] NSWCA 284

[2023] NSWPICMP 207

15 May 2023