Scott v Ivy Contractors Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Scott v Ivy Contractors Pty Ltd [2023] NSWPICMP 538
APPELLANT:	Gary Scott
RESPONDENT:	Ivy Contractors Pty Ltd
APPEAL PANEL
MEMBER:	Jacqueline Snell
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	26 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; remittal from Supreme Court of NSW; psychological injury and assessment under the psychiatric impairment rating scale; appeal with respect to diagnosis of secondary psychological injury by the Medical Assessor (MA), deduction by the MA for pain in respect of social and recreational activities, social functioning, concentration, persistence and pace, and employability, and in the alternative, inadequate reasons provided by the MA in making such deduction; Medical Panel accepted the MA erred in providing diagnosis of secondary psychological injury; erred in making a deduction for pain in respect of social and recreational activities, social functioning, concentration, persistence and pace, and employability, and erred in failing to provide adequate reasons for making such deduction; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 27 June 2022 Gary Scott (Mr Scott) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Peter Young, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 30 May 2022.
Mr Scott relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original 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).
As the delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out and an Appeal Panel comprising of Member Moore, Professor Glozier and Dr Andrews conducted a review of the MAC which was limited to the grounds of appeal on which the appeal was made.
Following a preliminary review of the MAC in the absence of the parties the Appeal Panel determined Mr Scott should undergo a further medical examination because the MA erred in the manner of his assessment of whole person impairment (WPI).
Following his medical examination of Mr Scott, Professor Glozier reported to the Appeal Panel and ultimately the Appeal Panel revoked the MAC issued on 30 May 2022 with a new MAC issued, with determination the MA had erred in making a deduction for the effects of pain and disagreement by Professor Glozier with the MA assessment impairment rating relevant to Mr Scott’s employability.
Mr Scott subsequently sought judicial review of the Appeal Panel’s decision, which came before Schmidt AJ for hearing on 18 July 2023, with the issues between Mr Scott and Ivy Contractors Pty Ltd (Ivy Contractors) in essence identified as follows:
(a)    did the appeal panel go beyond its statutory task and fail to adhere to the applicable guidelines;
(b)    did the appeal panel assign class rating for various factors which were not supported by any evidence;
(c)    did the appeal panel give adequate reasons, and
(d)    did the appeal panel fail to engage with Mr Scott’s case about the impairment he suffered.
On 1 August 2023 Schmidt AJ handed down her written judgement in which she said she was satisfied:
(a) the appeal panel erred in not confining itself to the correction of the MA’s accepted error that pain had contributed to Mr Scott’s impairment, and
(b) the appeal panel did not give adequate reasons.
In her judgement Schmidt AJ accepted that the consequence of physical injury and pain are not issues to be resolved by MAs and Appeal Panels dealing with the consequences of psychological injury as in Mr Scott’s case and said:
“It follows that in this case, given the grounds Mr Scott advanced and the errors found the appeal panel was not empowered to undertake the assessment of Mr Scott’s impairment afresh as it did.”
In her judgement Schmidt AJ also accepted that the Appeal Panel failed to explain why it concluded that the MA had erred in taking into account his view of what contribution of pain had made to Mr Scott’s impairment and said:
“Had it done so, it may not have fallen into the further error of not explaining, as it also needed to, why it considered that this error having been established, it was open to it to assess the level of his impairment afresh, taking into account the view it formed about the contribution of his physical injuries and pain to his impairment, in order to exclude that contribution.”
Having found that the Appeal Panel erred in not confining itself to the correction of the MA’s accepted error that pain had contributed to Mr Scott’s impairment and the Appeal Panel had erred in not giving adequate reasons for accepting such error, Schmidt AJ said it was not necessary to consider whether Appeal Panel had failed to engage with Mr Scott’s case as to the impairment he suffered and merely made comment:
“Before the Appeal Panel Mr Scott simply did not pursue a case that the correct assessment of his level of impairment was 22% and it cannot fairly be criticised for not having dealt with such a claim.”
Following some discussion as to the orders sought on judicial review, which included an order that the MAC be quashed and the Appeal Panel issue another certificate certifying that the degree of permanent impairment resulting from Mr Scott’s injuries was 22%, AJ Schmidt ultimately relevantly made orders that the Appeal Panel’s decision be set aside and the matter be referred back to the President of the Personal Injury Commission (Commission) to be dealt with according to law. This has now occurred.

RELEVANT FACTUAL BACKGROUND

Mr Scott suffered psychological injury as a result of an incident occurring when he slipped while on a ladder in the course of his employment. Mr Scott was reportedly approximately three storeys above the ground on the ladder when an unsecured ladder came away from the roof.
Using the Psychiatric Impairment Rating Scales (PIRS) in the Guidelines, the MA assessed 7% WPI. However, in the PIRS Rating Form the MA indicated a reduction “for pain contribution” in class a number of Classes, being those relevant to:
(a)     social and recreational activities;
(b)    social functioning;
(c)    concentration, persistence, and pace, and
(d)    employability.

PRELIMINARY REVIEW

This Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, and bearing in mind the findings of AJ Schmidt relevant to the pervious Appeal Panel’s determination that Mr Scott should undergo a further medical examination, the Appeal Panel determined it was not necessary for Mr Scott to undergo a further medical examination because the PIRS ratings made by the MA were open to him and the error disclosed related to a diagnosis of secondary psychological injury and modification of the PIRS ratings by the MA’s reduction “for pain contribution” in a number of Classes.

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 carefully considered by the Appeal Panel.
In submissions prepared by his counsel, Mr Moffat, Mr Scott submits in summary the MA erred in three respects,
(a)    failing to accept the nature of the injury, that is a primary psychological injury;
(b)    making a deduction for the effects of pain, and
(c)    failing to provide adequate reasons.
In submissions prepared by their solicitor, Ms Bellemore, Ivy Contractors submits in summary that the grounds of incorrect criteria and demonstrable error are not made out and the submissions made on behalf of Mr Scott do not disclose any grounds on which the Medical Appeal Panel should interfere with the MAC. Ms Bellemore submits the MAC should be confirmed.

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.

MAC

The MA recorded Mr Scott sustained injury on 9 January 2019 while carrying a heavy piece of equipment down from a roof while working on a building site. Mr Scott was approximately three storeys above the ground when an unsecured ladder came away from the roof. The MA noted the weight of the machine caused Mr Scott’s “body to arch backwards, his torso twisted, his right shoulder wrapped around the machine and his foot slipped from the ladder.” The MA noted Mr Scott experienced pain and feared he would fall and/or be crushed by the equipment he was carrying. The MA noted Mr Scott was able to regain his balance and descend the ladder after he alerted his co-worker to his predicament and the ladder was secured. The MA noted that following this incident, Mr Scott felt “in shock” and experienced pain throughout his body.
The MA recorded that after the incident Mr Scott did not seek medical attention, was able to clean up the site, pack up equipment and drive home. The MA also recorded that while travelling home Mr Scott contacted the general manager and following their heated exchange, which predominantly concerned issues of safety raised by Mr Scott, Mr Scott felt distressed both due to the pain he was in and because he felt the general manager did not respond appropriately to the issues of safety he had raised.
The MA recorded that although Mr Scott returned to working his normal duties the day following the incident, with Mr Scott continuing to experience pain during the week, he sought medical attention from his treating general practitioner and was certified with no current work capacity because of his physical injuries. The MA noted Mr Scott did not at that time confide in his general practitioner about the safety concerns he had about the circumstances in which he was injured.
The MA noted that with his pain deteriorating, Mr Scott underwent diagnostic investigations, specialist review, physiotherapy treatment and sacroiliac joint injection, with limited relief. The MA noted Mr Scott continued to ruminate about the safety concerns he had regarding the circumstances in which he was injured. The MA noted Mr Scott experienced a sense a helplessness when it came to managing his pain and reported that in August 2019 Mr Scott deliberately overdosed his medication, which resulted in a brief hospital admission.
The MA noted that when Mr Scott was certified with capacity to return to his pre-injury duties in September 2019, although Mr Scott reported an anxiety about using ladders and working at heights, Mr Scott said “I wasn’t given any choice.” The MA noted Mr Scott said while he was experiencing nightmares, insomnia, and intrusive thoughts about the incident, his complaints were dismissed by his general practitioner who “didn’t want to listen”.
The MA recorded Mr Scott continued to work through to mid-2020 with continuing pain. The MA noted Mr Scott came to further sacroiliac joint injection, with no apparent relief. Mr Scott was provided at that time with duties that did not require him to work at height, and following diagnostic investigation relevant to his right knee, Mr Scott came to surgical treatment. While Mr Scott reportedly suffered anxiety resulting from his pain and restricted activity, his general practitioner did not feel Mr Scott required referral for psychological counselling. The MA recorded that when Mr Scott was subsequently certified fit for restricted duties in October 2020, he was transferred into the role of product manager and suffered an exacerbation of back pain in November 2020 for which he underwent further diagnostic investigation, including nerve block procedure.
The MA recorded that in March 2021 Mr Scott transferred his general medical care to an alternate practitioner and was subsequently certified with no current work capacity and diagnosed with Post Traumatic Stress Disorder with referral to a psychiatrist and psychologist. The MA noted Mr Scott continued to experience pain, with no relief despite treatment.
The MA recorded that Mr Scott’s employment was terminated in April 2021.
The MA noted that in June 2021 Mr Scott was admitted to St John of God Hospital following an incident in which he injured his hand after punching a wall. While Mr Scott discharged himself on this occasion, he was re-admitted a short time later and received treatment in the Post Traumatic Stress Disorder program, which he found of some help.
The MA noted Mr Scott has a history of sexual abuse when he was in his first year at High School. Mr Scott did not receive any psychological assistance relevant to this abuse but began using cannabis, which resulted in an episode of psychosis when he was 14 years of age for which he was successfully treated with no recurrence.
The MA described Mr Scott’s presenting symptoms to include chronic pain, which is constant at moderate intensity and restricts him in participating in domestic chores as well as social and other activities with his family. Mr Scott told the MA “I don’t do anything.” The MA noted Mr Scott told him he does not box and neither does he play competitive golf and soccer because of pain.
The MA described Mr Scott’s presenting symptoms to also include insomnia, frequent nightmares that sometimes include falling, and intrusive thoughts about the incident occurring on 9 January 2019. Mr Scott told the MA he has reduced social contact and fears he may become violent if his anger is triggered by a reminder of the incident occurring on 9 January 2019. The MA reported that although Mr Scott has been treated with medication and the like, the only benefit Mr Scott was able to identify was a minor improvement in insomnia and “feeling ‘a little calmer’.”
The MA described Mr Scott’s social activities and activities of daily living:
“Mr Scott reports that as a result of his injury he is less motivated to maintain his personal appearance, nutrition, and fitness. He rarely gets haircuts and no longer showers daily. He does not generally contribute to domestic duties at home and eats toast, cereal or pre-prepared meals when required to cook for himself.
He said that he has lost interest and does not participate in social activities or sports that he previously enjoyed, saying that he mostly stays at home, ‘not doing much at all.’ He has lost contact with friends and there has been increasing conflict with his wife leading to a period of separation.
He said that he does not feel safe driving because of poor concentration and anxiety and consequently avoids driving except when essential because he feels unsafe.”
The MA noted the history obtained by him relevant to the onset of his post traumatic symptoms differed from that recorded in the contemporaneous clinical records of Mr Scott’s then treating general practitioner. With Mr Scott having continued working at height for more than a year following the incident occurring on 9 January 2019, the MA also noted the history obtained by him relevant to Mr Scott’s difficulty with working at height differed from that recorded in the clinical records of Mr Scott’s then treating general practitioner and the certificates of capacity issued. The MA provided comment it was apparent from the clinical notes and other information made available to him that Mr Scott’s psychological symptoms became increasingly prominent more than a year after he sustained injury in the incident occurring on 9 January 2019 against a backdrop that included chronic pain.
The MA summarised reports from Mr Scott’s treating practitioners and the independent medical examiners, Dr Khan and Dr Paisley. The MA reported Dr Khan’s reporting did not specify the timing of Mr Scott’s symptomology and provided opinion Dr Kahn did not sufficiently explore the relationship between Mr Scott’s psychological symptoms and his pain. The MA reported Dr Paisley’s reporting was more in line with the history he was provided by Mr Scott and the clinical records, being a gradual decline in Mr Scott’s mental health after the incident occurring on 9 January 2019 with Mr Scott becoming depressed and anxious, and demoralised by his chronic pain and disability.
The MA provided summary of injury and diagnosis:
“Overall Mr Scott’s presentation and history indicates an acute physical injury followed by the onset chronic pain and leading to secondary mental health effects including depression and elaboration of posttraumatic symptoms with delayed onset secondary PTSD.”
In assessing Mr Scott in Class 2 for social and recreational activities, the MA said:
“No longer participates in activities including playing golf, soccer, and amateur boxing. No longer coaches children’s teams or goes to gym. Lost interest in following sports.
(3-1 for pain contribution).”
In assessing Mr Scott in Class 2 for social functioning, the MA said:
“Marked reduction in contacts with friends. Avoids talking to people including family functions and does not actively participate. Has increased conflict in relationship including period of separation.
(3-1 for pain contribution).”
In assessing Mr Scott in Class 2 for concentration, persistence and pace, the MA said:
“Poor memory relies on reminders such as handwritten note, timetables, or text messages from his wife. Unable to concentrate on tasks without losing focus and becoming very agitated and frustrated.
(3-1 for pain contribution).”
In assessing Mr Scott in Class 3 for employability, the MA said:
“The degree of symptoms and impairments reported would likely render Mr Scott unable to sustain any substantive employment.
(5-2 for pain contribution).”
The MA provided an explanation for his calculations:
“As described by Mr Scott chronic pain is a substantial contributing factor to his current symptoms and functional impairments, therefore I have rated impairment in each category with allowance for the contribution of chronic pain.”

Legal considerations

Section 65A(4)(a) of the Workers Compensation Act 1987 provides for the degree of permanent impairment resulting from primary psychological injury is to be assessed separately from physical injury.
Assessment of psychiatric impairment is undertaken in accordance with Chapter 11 of the Guidelines.
Clause 11.4 relevantly provides the impairment rating must be based upon a psychiatric diagnosis. Clause 11.5 relevantly provides where there is pain present because of organic impairment, it does not constitute part of the assessment of psychiatric impairment. Clause 11.6 relevantly provides that it is expected a rationale for ratings based on a worker’s psychiatric symptoms be provided. Clause 11.11 relevantly provides that assessment of the degree of permanent impairment be made upon the behavioural consequences of psychiatric injury, being self care and personal hygiene; social and recreational activities; travel; social functioning; concentration, persistence and pace, and employability. Clause 11.12 of the Guidelines describes the application of the PIRS:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”

The task of the MA was to assess Mr Scott as he presented on the day of the examination and to apply his own clinical judgement in the application of the Guidelines[1] and the MA was not bound to agree with findings of other assessors, nor was he required to choose between their assessments. Campbell J described the task of an MA in State of New South Wales v Kaur:[2]
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same, but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or adjudicative: It is neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
[1] Guidelines paragraph 1.6.
[2] [2016] NSWSC 346.
Although in Campbelltown City Council v Vegan[3] the Court of Appeal held that an Appeal Panel is obliged to give reasons, where there are disputes of fact and it may be necessary to refer to evidence or other material on which findings are based, the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, while it is necessary to explain why one conclusion is preferred, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[3] [2006] NSWCA 284.
The standard of reasons required by a MA were described by Basten JA in Vitaz v Westform (NSW) Pty Ltd:[4]
“Although reasons are required so that the unsuccessful party may know why he or she has failed, it does not follow that a medical specialist has to give reasons which are immediately comprehensible to a person with no medical expertise. For example, a medical expert speaking to other practitioners might say that some degree of impairment was self-evidently caused by a pre-existing condition, despite the fact that the person was asymptomatic prior to the injury. On the other hand, such a conclusion may be medically contestable. In order for the applicant to succeed in this Court in asserting inadequacy of reasons, there must at least be material properly before the Court which demonstrates that the opinion falls into the latter category.”
[4] (2011) NSWCA 254.
Justification of intervention by an Appeal Panel was discussed in Ferguson v State of New South Wales[5] (Ferguson) Campbell J said at [24]:
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’…”
[5] [2017] NSWSC 887.
Harrison AsJ cited Ferguson in Parker v Select Civil Pty Limited[6] and said at [70]-[71]:
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self care and hygiene, that is to say, a moderate impairment of self care and hygiene…”

Review of independent medical evidence

[6] [2018] NSWSC 140.

Dr Khan

Mr Scott was psychiatrically assessed by Dr Khan in his capacity as independent medical examiner on 16 September 2021, which is only some seven months or so prior to assessment by the MA. Dr Khan provided a report dated the same day. Dr Khan recorded the history of resolved cannabis-induced psychosis. Dr Khan recorded the circumstances of injury occurring on 9 January 2019, which resulted in (a) multiple physical injury and chronic pain, and (b) a deterioration in mental state characterised by nightmares and flashbacks about the incident, distressing memories, hypervigilance, heightened startle reaction and avoidance of trauma related reminders.
Dr Khan reported of Mr Scott’s functioning at the time of assessment:
“Mr Scott continues to experience pervasive symptoms of trauma, depression, and anxiety, which have a profoundly negative impact on his functioning in the domains of self-care and personal hygiene, social and recreational activities, travel, social functioning, concentration, persistence and pace, and employability. His chronic pain served as constant reminder of his traumatic experience.”
Dr Khan provided diagnosis of post-traumatic stress disorder and major depressive disorder, which he said resulted from what he described as a traumatic incident occurring on 9 January 2019. Dr Khan accepted Mr Scott’s psychological injury was primary in nature. Dr Khan described Mr Scott’s prognosis as guarded.
In assessing Mr Scott in Class 3 for social and recreational activities, Dr Khan said:
“Mr Scott previously enjoyed socialising with family and friends, boxing, training, and playing golf. He no longer engages in any social and recreational activities. He remains socially withdrawn.”
In assessing Mr Scott in Class 3 for social functioning, Dr Khan said:
“Mr Scott described significant tension in his marriage and there have been numerous periods of separation due to the subject injury. He is currently living with his wife and is involved in raising their children. He has lost his close friendships.”
In assessing Mr Scott in Class 3 for concentration, persistence and pace, Dr Khan said:
“Mr Scott struggles to maintain attention and concentration for extended periods of time. He has always had difficulty focusing on reading, but his cognitive issues have become amplified since the subject injury. His memory is impaired.”
In assessing Mr Scott in Class 5 for employability, Dr Khan said:
“Mr Scott does not have capacity to work due to the pervasiveness of his mental health difficulties.”
Dr Khan assessed 22% WPI with 2% WPI adjustment for pre-existing impairment, resulting in a final WPI of 20% WPI.

Dr Paisley

Mr Scott was psychiatrically assessed by Dr Paisley in his capacity as independent medical examiner on 10 November 2021, which again is relatively close in time to assessment by the MA. Dr Paisley provided a report dated 15 December 2021. Dr Paisley took the history of child sexual abuse, drug-induced psychosis, but also noted there had been marital conflict before the incident occurring on 9 January 2019 due to Mr Scott’s drug and alcohol use. Dr Paisley recorded the circumstances of injury occurring on 9 January 2019, which resulted in (a) injury and (b) a decline in Mr Scott’s mental health in that he felt depressed and anxious, became more irritable, ruminated, and experienced frequent nightmares about the circumstances of the incident, suffered insomnia, fatigue, and loss of self-esteem.
Dr Paisley reported Mr Scott’s functioning at the time of assessment:
“He stopped his recreational pursuits of boxing, kayaking, and running. Mr Scott said that he has lost some of his friends because of social withdrawal. He said, ‘I do not see anyone anymore.’ He helps run the house by vacuuming and cleaning the kitchen. He cannot mow lawn because of his pain. He tries to keep busy and distracted to avoid thinking about the accident. He drinks excessive amounts of alcohol to numb his emotions. His wife works and he stays at home and looks after the children. There has been significant marital discord and they separated for a period. He stayed in temporary men’s accommodation prior to his recent admission to St John of God Hospital.
Mr Scott routinely wakes at 4-5am and does some exercise before caring for his youngest child. He prepares breakfast and school lunches. His wife starts work at 6am. He will sometimes clean the house and prepare the meals. His three-year old attends preschool two days per week. His wife returns from work at lunchtime. He does the laundry daily. Pain prevents him from driving more than 20 minutes. He will drive locally unaccompanied to go shopping or attends appointments. He travelled to the north coast of New South Wales with his family to visit his brother for three days. He no longer watches TV or reads. He also sometimes goes out for meals but is highly anxious. He will take medication before going out, but it can make him a ‘space cadet’. He can care for his children without supervision.”
Dr Paisley provided diagnosis of post-traumatic stress disorder and major depressive disorder, which he said resulted from the incident occurring on 9 January 2019. Dr Paisley accepted Mr Scott’s psychological injury was primary in nature. Dr Paisley described Mr Scott’s prognosis as poor.
In assessing Mr Scott in Class 2 for social and recreational activities, Dr Paisley said:
“Socially withdrawn. This [sic] motivated to engage in recreational activity.”
In assessing Mr Scott in Class 3 for social functioning, Dr Paisley said:
“Socially withdrawn and has lost friends. Rarely has social contact outside the family. Marital tension resulting in periods of separation. Can look after the children without supervision.”
In assessing Mr Scott in Class 2 for concentration, persistence and pace, Dr Paisley said:
“Subjective complaints of memory and concentration impairment. No apparent objective signs of cognitive impairment during the interview. Likely pre-existing attention deficits due to ADHD.”
In assessing Mr Scott in Class 3 for employability, Dr Paisley said:
“Could perform less than 20 hours per week in a different position, with physical restrictions, because of his psychiatric symptoms. His physical injuries cause additional impairment.”
Dr Paisley assessed 7% WPI with 1% adjustment for treatment effect, resulting in a final WPI of 8%

Consideration

In submission, complaint is made by Mr Scott that the MA provided diagnosis of secondary psychological injury and failed to provide diagnosis of primary psychological injury, being diagnosis of both Dr Khan and Dr Paisley. When Mr Scott sought judicial review of the previous Appeal Panel’s decision, there was no dispute between the parties that Mr Scott had sustained a primary psychological injury as the result the incident occurring on 9 January 2019.
Neither Dr Khan nor Dr Paisley provided diagnosis of secondary psychological injury and Mr Scott’s matter was referred to the MA for assessment of permanent impairment resulting from primary psychological injury, with no agreement or determination Mr Scott suffered secondary psychological injury. As there is no agreement or determination Mr Scott suffered secondary psychological injury, the MA was required to determine the degree of permanent impairment resulting from a primary psychological injury, without regard to symptoms or impairment arising from a secondary psychological injury.

This Appeal Panel considers the MA has in essence misunderstood his function in that there was no referral of secondary psychological injury to the MA and the MA was in error in providing diagnosis of secondary psychological injury in the absence of agreement or determination Mr Scott suffered secondary psychological injury as a result of the incident occurring on 9 January 2019.
In submission, complaint is also made by Mr Scott that the MA made a deduction for pain when he assessed Mr Scott relevant to his social and recreational activities; social functioning; concentration, persistence, and pace; and employability. The Appeal Panel considers the MA has misunderstood what constitutes a secondary psychological injury and the MA was in error in making a deduction for pain when he assessed Mr Scott relevant to his social and recreational activities; social functioning; concentration, persistence, and pace; and employability. The Appeal Panel considers the MA has conflated “pain” with secondary psychological injury and the MA was in error when he made a deduction for pain when he assessed Mr Scott relevant to his social and recreational activities; social functioning; concentration, persistence, and pace; and employability. Secondary psychological injury requires diagnosis of psychological injury (for example, Major Depressive Disorder) and “pain” is a symptom and is not a diagnosis of psychological injury. However, as noted above, (a) the MA was required to determine the degree of permanent impairment resulting from a primary psychological injury, without regard to symptoms or impairment arising from a secondary psychological injury and (b) in Clause 11.5, the Guidelines specifically provide where there is pain present because of organic impairment, it does not constitute part of the assessment of primary psychological injury.
While Ivy Contractors submits Clause 11.11 relevantly provides that assessment of the degree of permanent impairment be made upon the “behavioural” consequences of psychiatric injury and the MA did not use the wrong criteria when he assessed Mr Scott relevant to his social and recreational activities; social functioning; concentration, persistence, and pace; and employability, in that the MA reportedly reviewed all relevant material and undertook thorough clinical assessment, as noted above, the Appeal Panel considers the MA was in error when he made a deduction for pain when he assessed Mr Scott relevant to social and recreational activities; social functioning; concentration, persistence, and pace; and employability.
In submission, complaint is made by Mr Scott in the alternative that the MA failed to provide adequate reasons, in that he failed to adequately explain how it was appropriate to reduce his assessment of Mr Scott relevant to his social and recreational activities; social functioning; concentration, persistence and pace; and employability, in circumstances where Mr Scott’s recorded present psychological symptoms were independent of recorded presented pain symptoms. As noted above, the Appeal Panel considers the MA was in error in making a deduction for pain, and the Appeal Panel accepts Mr Scott’s submission the MA failed to provide sufficient explanation for such deduction in that he merely described the deduction for pain in terms of a reduction in class descriptor relevant to Mr Scott’s social and recreational activities; social functioning; concentration; persistence and pace; and employability, with additional minimal comment that Mr Scott’s reported chronic pain was a substantial contributing factor to his current symptoms and functional impairments and he accordingly had made allowance for the contribution of chronic pain.
No complaint is made by either Mr Scott nor Ivy Contractors as to the MA’s initial PIRS rating of Mr Scott relevant to his social and recreational activities; social functioning; concentration, persistence and pace, and employability, prior to the MA’s incorrect deduction for pain, and in such circumstances the Medical Panel is of the view the MA’s initial PIRS rating of Mr Scott relevant to his social and recreational activities; social functioning; concentration, persistence and pace; and employability, prior to his incorrect deduction for pain, should be adopted.

CONCLUSION

While this Appeal Panel is of the view the MA was in error in providing diagnosis of secondary psychological injury, the Appeal Panel notes there is no issue between the parties Mr Scott sustained a primary psychological injury as a result of the incident occurring on 9 January 2019 in the course of his employment with Ivy Contractors.
The Appeal Panel is of the view the MA was in error in making a deduction for pain when he assessed Mr Scott relevant to his social and recreational activities; social functioning; concentration, persistence, and pace; and employability, and in circumstances where there is no issue between the parties as to the MA’s assessment of Mr Scott relevant to his social and recreational activities; social functioning; concentration, persistence and pace; and employability, prior to his incorrect deduction for pain, the Medical Panel considers that such assessment should be adopted. The Appeal Panel cannot disturb any portion of the MAC assessment, that has not been appealed.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 May 2022 should be revoked, and a new MAC should be issued.

The initial unmodified PIRS rating from Dr Young’s assessment are 2 3 2 3 3 5, resulting in Median Class 3, with calculation of an aggregate score of 18, with the final WPI being 22%.
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:	W918/22
Applicant:	Gary Scott
Respondent:	Ivy Contractors Pty Ltd

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 Peter Young and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system

Date of Injury

Chapter, page and paragraph number in WorkCover Guides

Chapter, page, paragraph, figure, and table numbers in AMA 5 Guides

% WPI

Proportion of permanent impairment due to pre-existing injury, abnormality, or condition

Sub-total/s % WPI (after any deductions in column 6)

Psychiatric

09/01/019

Chapter 11 p 80-68

Chapter 14

22%

Total % WPI (the Combined Table values of all sub-totals)

22%

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

[2023] NSWPICMP 538

26 October 2023