Secretary, Department of Education v Preston

DETERMINATION OF APPEAL PANEL
CITATION:	Secretary, Department of Education v Preston [2023] NSWPICMP 693
APPELLANT:	Secretary, Department of Education
RESPONDENT:	Russell Preston
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	20 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Medical Assessor (MA) assessed 17% whole person impairment (WPI) for psychological injury in amended Medical Assessment Certificate (MAC); respondent appealed on basis MA conducted an assessment in which he continued to state this was an indicative assessment only despite certifying that maximum medical improvement (MMI) has been reached, incorrectly assigning class 4 for social functioning and making a deduction of one tenth for pre-existing condition which was not correct having regard to the evidence; Panel accepted applicant was at MMI; Panel agreed that MA erred in assessing social functioning as class 4 and reassessed as class 3; Panel agreed with the one-tenth deduction for pre-existing condition after reviewing the evidence; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 14 February 2023 the Secretary, Department of Education (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 January 2023.
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 ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The respondent, Russell Preston (Mr Preston), developed a primary psychological injury in the course of his employment with the appellant as a casual teacher on 13 November 2010.
Mr Preston commenced proceedings in the Personal Injury Commission (Commission) claiming 19% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury on 13 November 2010.
On 3 November 2022, in a Certificate of Determination – Consent Orders, Member Beilby ordered that the matter be referred the matter for assessment of a threshold dispute with the date of injury being 13 November 2010.
The Medical Assessor examined Mr Preston on 21 December 2022 through video link. The Medical Assessor formed the opinion that Mr Preston was not at maximum medical improvement (MMI) as he had not had adequate or appropriate treatment. The Medical Assessor then proceeded to provide a WPI only as an indicative assessment of his current status, rather than an assessment of his permanent impairment. On that basis, the Medical Assessor assessed 17% WPI, with 1/10 adjustment, resulting in 15% WPI as a result of the injury on 13 November 2010. This MAC (the first MAC) was issued on 17 January 2023.
The appellant lodged an Application to Appeal Against the Decision of a Medical Assessor on 14 February 2023.
On 4 April 2023, the Commission referred the matter back to the Medical Assessor for reconsideration pursuant to s 329(1A) of the 1998 Act.
The Medical Assessor re-examined the appellant on 28 August 2023 through video link.
On 1 September 2023, an amended MAC( the amended MAC) of Dr Yu-Tang Shen, Medical Assessor, was issued. The Medical Assessor was of the view that the Mr Preston had reached MMI. The Medical Assessor assessed 19% WPI but made a deduction of one-tenth under s 323 of the 1998 Act. Therefore, the total % WPI was 17% as a result of the injury on 13 November 2010.
On 28 September 2023, the Commission directed the parties to lodge amended grounds of appeal in light of the amended MAC dated 1 September 2023. On 12 October 2023, the appellant employer lodged amended submissions in support of the Application to Appeal the Decision of the Medical Assessor. On 27 October 2023, Mr Preston lodged amended submissions on Opposition to Appeal Against a Decision of Medical Assessor.

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 Workers Compensation Medical Dispute Assessment Guidelines 2019.
The appellant did not request that Mr Preston be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Mr Preston to undergo a further medical examination because there was sufficient evidence on which to make a determination.

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.
The appellant’s amended submissions dated 12 October 2023 include the following:
(a)    the amended MAC contained demonstrable errors and/or application of incorrect criteria in relation to:
(i)the fact of the Medical Assessor conducting an assessment which he continued to state is an indicative assessment only despite apparently certifying that MMI has been reached;
(ii)the Medical Assessor incorrectly assigning the class rating against the Psychiatric impairment rating scale (PIR category of “Social Functioning” having regard to the available evidence, and
(iii)the Medical Assessor failing to correctly apply s 323 of the 1998 Act and thereby not correctly applying a deduction having regard to the available evidence.
(b)    MMI – in paragraph 8(b) of the amended MAC the Medical Assessor stated that Mr Preston had reached maximum medical improvement. However, at paragraph 10 (a) of the amended MAC, the Medical Assessor stated: “I have provided a WPI only as an indicative assessment of his current status, rather than an assessment of his permanent impairment, 17%, with 1/10 adjustment”. The statement that the WPI was provided as an indicative assessment only was at odds with the statement that MMI has been reached and was an error on the face of the MAC.
(c)    The appellant did not wish to cavil with the finding in paragraph 8(b) that MMI has been reached but said that the inconsistency and error revealed by consideration of the statement in paragraph 10(a) of the MAC needed to be addressed. The appellant believed it was likely an error arose in the amended MAC as the Medical Assessor in part reproduced material from the first MAC.
(d)    PIRS Category of Social Functioning – the Medical Assessor’s determination of the PIRS category for Social Functioning demonstrated incorrect criteria and/or demonstrable error.The conclusion of the Medical Assessor was at odds with the applicant’s history of social functioning and represented the use of incorrect criteria and/or demonstrable error.
(e)    In the first MAC, the Medical Assessor reported that Mr Preston saw his children once or twice a week, and he had a good relationship with them. Mr Preston also reported to have some friendships, was able to attend his children’s soccer games and was able to engage with other parents to a certain extent. The breakdown of the marital relationship was not reportedly attributed to the psychological injury. In that MAC, the Medical Assessor rated Mr Preston in PIRS category “3” as a moderate impairment.
(f)    In the amended MAC, the Medical Assessor rated Mr Preston in PIRS category “4” as a severe impairment on substantially the same reasoning with the exception of the statement that Mr Preston did not have any long-term or sustained relationship with anyone apart from his daughter and he included a statement that Mr Preston remained estranged from his brother for seven to eight years.
(g)    The rating of a severe impairment was at odds with the evidence, such evidence including the information recorded in both the first MAC and the amended MAC.
(h)    It was recorded in both MACs that Mr Preston’s estrangement from his brother for the last seven to eight years was due to growing apart with separate families. There was no evidence that this was related in any way to Mr Preston’s psychological impairment and was an irrelevant consideration. Apparent reliance upon it by the Medical Assessor was evidence of error and application of incorrect criteria.
(i)    The history recorded in relation to Mr Preston’s sons (in the amended MAC) was that they live with their mother and he saw them infrequently. There was no evidence that this was related to Mr Preston’s psychological impairment. The history recorded in both MACs about acquaintances was similar though in the amended MAC the history recorded is that, “prior to the subject injury, he had limited friendships and he was more focused on his family.” The evidence did not establish that the current level of contact and interaction with acquaintances was reduced on account of psychological impairment or indeed materially different from that which existed prior to the injury on the account given by Mr Preston.
(j)    There was nothing evidenced by the description and reasoning of the Medical Assessor that justified his assessment of a severe impairment. The evidence including the Medical Assessor’s own expressed reasons demonstrated that the appropriate rating in this category ought to have been that of a mild impairment, namely Class 2, and the Medical Assessor had failed to correctly classify impairment in relation the PIRS social functioning category.
(k)    Section 323 deduction – the Medical Assessor in paragraph 11 (c) stated: “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. (can only be used when not at odds with available evidence)”.
(l)    There was medical and factual evidence that allowed a deduction to be made without reliance upon the assumption required to be made by s 323(2). The available medical and factual evidence was such that it was not difficult or costly to determine the extent of the deduction and s 323(2) should not have been engaged by the Medical Assessor.
(m)     the factual and medical evidence available supported a greater deduction than 10% given Mr Preston’s pre-existing and previous injuries/psychological condition. These previous injuries and conditions were recorded by the Medical Assessor in his review of the documentary evidence in paragraph 10 of the MAC and included depression, post-traumatic stress disorder, alcohol use and marital and financial strain.
(n)    The Medical Assessor expressed the opinion that there were several relevant previous injuries, pre-existing conditions or abnormalities which he listed in paragraph 11(a) of the MAC dated 1 September 2023 as follows: i. Major Depressive Disorder ii. Complex Post-Traumatic Stress Disorder iii. High Risk Alcohol Use iv. Marital Discord.
(o)    There was a substantial body of evidence that predated Mr Preston’s claimed injury as well as evidence that which dealt with the extent and impact of his pre-existing psychiatric conditions (the medical evidence of Helen Jordan, Dr George Rose, and Dr John Roberts).
(p)    The worker had pre-existing injury/conditions as a result of: (i) when he was a ward of the state at age of 10 and experiencing physical and sexual abuse (Dr Morris 21 November 2018); (ii) witnessing and being subject to domestic violence by his parents (Dr Morris 21 November 2018); (iii) being split from his family and living with his aunt in Wollongong (Dr Morris 21 November 2018); (iv) being the victim to domestic violence from his ex-wife (Dr Samson Roberts 20 December 2018) ; and (v) stress as a result of the worker’s ex-wife’s post-natal depression (progress notes Dr Rose dated 5 January 2010).
(q)    There was demonstrable error concerning the Medical Assessor determining a s 323 deduction of 10%. There was ample evidence contained within the Application to Resolve a Dispute (ARD) and the Reply on the basis of which the Medical Assessor ought to have properly been able to apply his skill and clinical judgement to determine the extent of the deduction that was appropriate.
(r)    In the circumstances the extent of the appropriate deduction was not difficult or costly to determine and it was not therefore appropriate to simply apply a 10% deduction in those circumstances where it is submitted the evidence allowed a properly considered deduction to be made. The statement by the Medical Assessor that the extent of the deduction was difficult or costly to determine (paragraph 11 (c) of the MAC dated 1 September 2023) demonstrated a failure to properly engage with the available evidence and was evidence of error both in the application of the facts and the application of the criteria relevant to s 323.
(s)    The evidence demonstrated Mr Preston was suffering from significant psychiatric injury and condition prior to the work-related injury (as accepted by the Medical Assessor) and that such prior injury condition on the evidence contributed significantly to Mr Preston’s present impairment. In those circumstances a deduction of substantially greater than 10% was warranted in accordance with the available evidence.
(t)    The amended MAC should be revoked, and a new MAC issued.
Mr Preston’s amended submissions dated 26 October 2023 include the following:
(a)    Mr Preston supported the ground of appeal concerning MMI and concurred with the appellant’s submissionscomncerning MMI.
(b)    Social functioning – the Medical Assessor in the amended MAC had the benefit of the materials and conclusions in the first MAC and made his finding based on the two clinical examinations he had conducted of Mr Preston and that material.
(a)    There was no reason for the Medical Assessor to assess “social functioning” as a category 2. There was no finding that Mr Preston’s separation from his brother was not related to his injury, or contributed to it, and in any event it was just an example of Mr Preston’s decline. The MA also referred to other difficulties Mr Preston had in maintaining social contacts and attending social functions.
(b)    There was no basis on the evidence or documents before the Medical Assessor to justify assessing Mr Preston as category 2 for “social functioning”, as submitted by the appellant, and, more importantly, that the Medical Assessor failed to correctly classify Mr Preston’s assessment and erred in assessing category 4.
(c)    The criticism of the Medical Assessor assessing category 4 was that he had maintained some pre-existing relationships. Category 4 (severe impairment) makes reference to pre-existing relationships having ended. The appellant was submitting that because he maintained contact with his daughters that this meant this criteria is not met. There was nothing in category 4 that required all pre-existing relationships to have ended. It was sufficient to show that some preexisting relationships have ended. This had clearly been established by the history taken by the Medical Assessor and it was open to the Medical Assessor to assess Mr Preston as category 4.
(d)    The appellant asserted that there was no evidence to support that Mr Preston’s marriage broke down because of the subject incident. That was incorrect. Mr Preston’s evidence, as set out in paragraph 20 of his Statement dated 1 August 2022 stated:
“In 2011, following the news of the allegation, my relationship with my wife began to deteriorate. The allegation ruined our ability to be intimate with one another, and it destroyed her trust in me. We separated, and my wife used the allegation against me, telling me if I tried to gain custody of my children that she would bring up the allegation in court.”
(e)    In further support that category 4 was an appropriate assessment of Mr Preston, as being unable to form or sustain relationships, was the evidence of Mr Preston at paragraph 32 of his statement dated 1 August 2022: “I have not had a romantic relationship since separating from my wife, nor have I ever sought one. I feel unable to show love or intimacy with other people without worrying about another accusation.”
(f)    There was no error in assessing him as category 4 for social functioning.
(g)    The Medical Assessor did not err in his application of s 323 and applying s 323(2) of the 1998 Act, that is, a 10% deduction for any pre-existing impairment.
(h)    The appellant set out five incidences alleged to amount to pre-existing injuries/conditions that warranted a substantial s 323 deduction. They included: (i) abuse as a ward of the state at age 10; (ii) domestic violence by his parents as a child; (iii) being split from his family and living with his aunt and uncle; (iv) being the victim of domestic violence by his ex-wife, and (v) stress as a result of the worker’s ex-wife’s post-natal depression.
(i)    All of these incidences were merely incidences Mr Preston had endured over his lifetime. Mr Preston is now 69 years of age. There was no medical evidence contemporaneous to the childhood events to support any contention that he suffered any psychiatric diagnosis or condition as a result of these incidences.
(j)    Mr Preston first sought psychological assistance in 2009 in response to marital issues. It was only then the history of abuse Mr Preston was subjected to as a child was raised. An enquiry about Mr Preston’s history would have been in the normal course of addressing the issues he was facing at the time. The events he endured as a child were then 46 years prior and some nearly 60 years prior to the assessment by the Medical Assessor.
(k)    Whilst the employer sought to suggest Mr Preston suffered significant psychiatric diagnoses and impairment prior to the subject incident, that was not supported on the evidence. As acknowledged by the Medical Assessor at paragraph 4 of his report, Mr Preston, prior to the subject incident, was not overwhelmed and was able to function still. He was working as a casual school teacher, looking for full-time work and looking after his children. In comparison, his every day functioning post the workplace incident and the appellant’s handling of it was grossly impaired, to the extent he experienced suicidal ideation.
(l)    Whilst the Medical Assessor addressed that these childhood issues have likely had some impact on Mr Preston, it was entirely reasonable for the Medical Assessor to consider the assessment of any pre-existing impairment deduction for pre-existing condition (if such existing) as being difficult and costly to determine.
(m)     The medical evidence referred by the appellant in their submissions did indicate Mr Preston suffered from prior psychological symptoms, but did not suggest any diagnosis or condition. It was clear from the quotes from Dr Jordan’s report that Mr Preston did endure experiences in his past that would have been distressing, but they raised issues that occurred some 50 years ago. In the absence of contemporaneous evidence, those medical reports were insufficient for the Medical Assessor to rely upon in attempting to assess Mr Preston’s pre-existing impairment.
(n)    For the reasons set out above, in the circumstances, it was entirely reasonable the Medical Assessor would consider the assessment of any pre-existing impairment to be extremely difficult, given the lapse in time, lack of contemporaneous medical consultation, diagnosis and evidence.
(o)    The Medical Assessor’s application of s 323 was entirely appropriate.
(p)    The appeal, apart from the first ground, should be dismissed.

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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

Discussion

The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
In Ferguson v State of New South Wales (2017) NSWSC 887 (Ferguson), Campbell J in dealing with whether there was error in the application of the categories and classes of the PIRS identified the following as relevant:
(a)     was the categorisation glaringly improbable;
(b)     was the Approved Medical Specialist (AMS) unaware of significant factual matters;
(c)     was there a clear misunderstanding by the AMS, and
(d)     was the AMS’s reason process unable to be made out?
In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker) Harrison AsJ at [66] said:
“66.   In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense…
70.    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.
71.    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…”
In Chalkias v State of New South Wales [2018] NSWSC 1561, Adamson J noted that the worker alleged that the Medical Appeal Panel (MAP) failed to identify the error in the MAC which was a necessary jurisdictional prerequisite, and had erred by substituting its own opinion for that of the AMS. Adamson J found at [33]-[36] that the MAP reasons demonstrated that it had correctly understood and exercised its jurisdiction. The MAP was satisfied that the AMS had made errors relating to the grading of the self care and personal hygiene category, and having identified the error, the MAP was entitled and obliged to review the assessment in relation to that category.
Adamson J found that the MAP’s assessment of the self care category did not amount to a mere difference of opinion of the kind described by Harrison AsJ in Parker, and that the MAP coming to a different assessment of that category did not “convert” its initial finding of error into a mere difference of opinion (at [36]). Adamson J dismissed the worker’s appeal of a MAP’s decision, finding there was no error of law or jurisdictional error.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Maximum medical improvement

The appellant submitted that the statement in the MAC at paragraph 10(a) that the WPI was provided as an indicative assessment only was at odds with the statement in paragraph 8(b) of the MAC that MMI has been reached. The appellant submitted that this was an error on the face of the MAC.
The Appeal Panel agreed that the Medical Assessor at 8(b) found that Mr Preston had reached maximum medical improvement. The Appeal Panel also noted that at paragraph 10 (a) the Medical Assessor stated that he had provided a WPI only as an indicative assessment of his current status, rather than an assessment of his permanent impairment.
The appellant believed that this inconsistency was likely to be an error in the MAC dated 1 September 2023 arising from reproducing in part material from the earlier MAC dated 17 January 2023. Mr Preston agreed with this submission.
The Appeal Panel also concluded that this inconsistency arose from from reproducing in part material from the earlier MAC dated 17 January 2023 and were satisfied that the Medical Assessor had found that Mr Preston had reached MMI. The Appeal Panel accepted that this was an error. Further, as the Guidelines did not authorise or make any provision for “indicative” assessments, any undertaking of an “indicative” assessment was contrary to the Guidelines and that part of the decision was made on the basis of incorrect criteria.

Social functioning

The appellant alleged error in respect of the assessment of the PIRS category of social functioning. The appellant submitted that the Medical Assessor incorrectly assignied the class rating against the PIRS category of social functioning having regard to the available evidence.
The examples under Table 11. 4 for “social functioning” in the Guidelines are:
“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).”
Clause 11.11 of the Guidelines classifies social functioning as an activity of daily living.
In the first MAC the Medical Assessor assessed Mr Preston as Class 3 for social functioning. In the PIRS Rating Form, the Medical Assessor wrote:
“Social functioning - Class 3
He has three children (20, 17, 15), whom he sees once or twice a week, and he has a good relationship with them. He doesn’t have a partner since divorcing, 11-12 years ago. The relationship was already on its way to ending. He still spends supervisory time with his children. There are still some friendships, such as the people he considered visiting in Wollongong, and not many friendships.
Hence, there is moderate impairment.”
In the first MAC, under “Social Activities/ADL” the Medical Assessor wrote:
“He currently lives in a rental at Wentworth Falls, alone. He has three children (20, 17, 15), who live with their mother. He sees them once or twice a week, and rarely with his middle child, and he has a good relationship with them. He doesn’t have a partner since divorcing, 11-12 years ago.
He has a brother whom he is estranged from for 7-8 years, due to growing apart with separate families.
He has acquaintances that he keeps in contact with, once a week and rarely goes out with them, and he talks to a few people when his daughter goes to soccer, and the last time was 2 weeks ago. He talks to some of them but is mostly keeping to himself.
…
He drives to go shopping, and he occasionally goes for little drives, like to Wollongong recently but didn’t stay long, as his friends there were too busy and not available”.
In the amended MAC the Medical Assessor assessed Mr Preston as Class 4 for social functioning. In the PIRS Rating Form, the Medical Assessor wrote:
“Social functioning - Class 4
His three children live with their mother. He sees his two sons infrequently, and he sees his daughter 4 times a week and talks to her and takes her to soccer. He has not had a partner since divorcing, 11-12 years ago.
He remains estranged from his brother for 7-8 years.
He has infrequent contact with acquaintances approximately every 3-4 weeks, including a friend from his daughter’s soccer team. He talks to one or two people who reach out at the soccer games.”
In the amended MAC, the Medical Assessor noted that Mr Preston had been diagnosed with lymphoma in January 2023 and was undergoing chemotherapy. The Medical Assessor noted that Mr Preston had not been able to enjoy much recently, apart from watching his daughter play soccer. He noted that Mr Preston had not been seeing friends or family much, and since being unwell with lymphoma other people have been reaching him out more, such as his children and neighbours.
On page 4 of the amended MAC, the Medical Assessor noted:
“He married his second wife in 2001, with a 22-year difference in age. They had three children together. She had postnatal depression with all three children, with possible full recovery in between children and she had accessed treatment. She was still experiencing post-natal depression after her third child, and was aggressive, screaming and crying, and she accessed help at the time. In the immediate time prior to the subject incident, ‘the tide was going out on the relationship, so to speak’. They have separated in 2011, but they have not officially divorced”.
Mr Preston in his statement dated 1 August 2022, stated:
“20. In 2011, following the news of the allegation, my relationship with my wife began to deteriorate. The allegation ruined our ability to be intimate with one another, and it destroyed her trust in me. We separated, and my wife used the allegation against me, telling me if I tried to gain custody of my children that she would bring up the allegation in court.
21.    At the time of the a/legation my three children were 8, 5 and 3. I struggled to bond with my children as I was scared to be alone with them, and scared to show any form of affection, as I did not want anyone to accuse me of inappropriate behaviour with my kids.
22.    Following the allegation, I avoided going out in public with my children. I would not bathe them, help them get dressed, or play with them. I am devastated that this allegation ruined my life with my children and my relationships with them.
23.    I remember driving my kids to soccer practice and having to hide inside my car, as I was petrified that other parents would call me a paedophile for being around the children.
24.    To this day I try to avoid situations with children.
25.    When I heard of the allegation in 2011, I moved from my home in Katoomba to a hotel in Blackheath. This was because of the relationship breakdown with my wife, and because I was scared of living in the small town where news of the allegation could spread.
26.    I had joint custody of my children in 2011, so they stayed with me from Thursday to Saturday in my hotel room. I felt like a failure of a father.
27.    I currently drive my daughter to soccer practice each week. I remain in the car and avoid being seen in social settings with my children, as I worry people will point me out as a paedophile and question my relationship with my children.
…
29.    I do not have any friends. I find it difficult to form and maintain friendships as I am anxious other people will only ever see me as a paedophile.”
Dr Patrick Morris, in his report dated 21 November 2018, assessed class 3 for social functioning and reported:
“Social functioning: Moderate impairment Mr Preston's relationship with his wife broke up as a result of his psychiatric symptoms. He has not been able to form a new relationship. He reports losing all his friendships. He still maintains a good relationship with his children..”
In his report, Dr Morris noted:
“He married for the second time at the age of 49. He has 3 children: a son aged 16, a son aged 13 and a daughter aged 10. This relationship broke up 5 or 6 years ago as a result of his symptoms following the accusation of sexual abuse. He shares the custody of his children with his ex-wife. He reports a good relationship with his children.”
Dr Morris also noted that Mr Preston's condition was likely to deteriorate in the future. He noted that Mr Preston was not keen to have medication for his condition and as such his condition was likely to worsen. Dr Morris was of the view that this would cause him increasing clinical distress and an increasing deterioration in his social and occupational functioning.
In a referral dated 8 April 2009 to Ms Jordan, psychologist, Dr Kelvin Lau , Mr Preston’s general practitioner, noted:
“Russell is married with 3 children. He is a casual teacher. Russell describes relationship problems with his wife at the moment – he states she is unwell with depression and he often has to ‘take up the slack’ with looking after the children. He finds relief from his stress by gambling. He has described symptoms including loss of libido, anhedonia and decreased appetite.”
In a progress note dated 5 January 2010 Dr Rose noted: “”Patient with problems with wife who has been having counselling. 3 children who are young. Wife has post natal depression.” In a progress note dated 30 September 2011, Dr Rose, Mr Preston’s general practitioner, noted: “Patient with marriage issues. Seperation in inevitable…” On 13 November 2011, Dr Rose noted that Mr Preston would require a referral to Mark Annis, psychologist, for personal issues.
A further referrsal to Ms Jordan was made on 2 March 2010 by Dr George Rose. Dr Rose noted that Mr Preston had a number of stressful personal issues.
In the clinical notes of Ms Jordan, treating psychologist, dated 5 March 2010, a number of questions were noted concerning whether the marriage was valid. Notes were made concerning negotiations, a pay out figure and potential custody issues with Mr Preston seeking full custody of their sons and daughter if possible. She proceeded to note: “Currently living separated under the same roof – toxic environment, domestic violence against you and all are being affective. What are your options?”
In a referral to Dr Lindsay Duncan dated 2 August 2013, Dr Rose wrote: “Presenting problem: Thank you for seeing Russell who has a number of issues including anger, depression and anxiety. His marriage broke up 3 years ago and he has 3 children for whom he has shared custody.”
The Appeal Panel accepted that some of the reasoning in the amended MAC was the identical to the reasoning in the first MAC with the exception of the statement that Mr Preston did not have any long-term or sustained relationship with anyone apart from his daughter. Reference was made in both MACs under “Social Activities/ADL” to Mr Preston being estranged from his brother for 7-8 years due to growing apart with separate families.
The appellant argued that the rating of a severe impairment was at odds with the evidence, such evidence including the information recorded in both the first MAC and the amended MAC. In particular, the appellant submitted that there was no evidence that the estrangement from his brother was related in any way to Mr Preston’s psychological impairment. Further, the appellant submitted that the evidence did not establish that the current level of contact and interaction with his sons and acquaintances was reduced on account of psychological impairment.
The Appeal Panel noted that Mr Preston had shared custody of his children. Dr Morris noted that he cooked for them when they stayed with him. The Appeal Panel was satisfied that Mr Preston was able to care for his children. While Mr Preston had less frequent contact with his sons, he saw his daughter regularly and the Appeal Panel was satisfied that he had maintained a caring relationship with his children and was able to care for them.
The Appeal Panel accepted that there was no evidence that the estrangement with his brother occurred as a result of Mr Preston’s psychological impairment. Indeed, Dr Samson Roberts, in his report of 20 December 2018, noted that Mr Preston was asked about his relationship with his brother, and reported that they had drifted apart, stating that his brother was jealous of him.
The Appeal Panel noted that Mr Preston had been experiencing severe marital difficulties, including separation and consideration of divorce and its financial and childcare sequelae, prior to the work injury. The Appeal Panel accepted that the work injury caused further problems in the marriage. Mr Preston had not formed any other relationships since his marriage broke down. The Appeal Panel accepted that Mr Preston had lost a number of friends but the Medical Assessor noted that he had infrequent contact with acquaintances approximately every three to four weeks, including a friend from his daughter’s soccer team and he talked to one or two people who reached out at the soccer games.
The Appeal Panel considered that the Medical Assessor failed to provide adequate reasons for assessing Mr Preston as Class 4 for social functioning in the amended MAC having assessed him as a Class 3 in the first MAC. Although the Medical Assessor had stated in the amended MAC that that Mr Preston had no long-term or sustained relationship with anyone apart from his daughter, there was evidence that he still had contact with his sons. Further, this rating was inconsistent with the updated history in the amended MAC that Mr Preston had not been seeing friends or family much, but since being unwell with lymphoma other people have been reaching out to him more, such as his children and neighbours.

The Appeal Panel determined that the failure to provide adequate reasons for rating Mr Preston as Class 4 for social functioning in the amended MAC was a demonstrable error.
The Appeal Panel has reviewed the evidence in the matter. The Appeal Panel noted that there were serious problems in Mr Preston’s marriage prior to the work injury and he and his wife had already separated although they continued to live in the same house. Mr Preston had a good relationship with his daughter and maintains contact with his sons. While he has not had a girldfriend or partner since his separation from his wife, and has lost friends, he still maintained some contact with a friend from his daughtere’s soccer team and neighbours. The Appeal Panel considered that an assessment of Class 3 for for social functioning was appropriate.

Section 323 deduction

The appellant submitted that the factual and medical evidence available supported a greater deduction than the 10% given for Mr Preston’s pre-existing and previous injuries/psychological condition. The appellant submitted that there was ample evidence contained within the ARD and the Reply on the basis of which the Medical Assessor ought to have properly been able to apply his skill and clinical judgement to determine the extent of the deduction that was appropriate.

The Medical Assessor expressed the opinion that there were several relevant previous injuries, pre-existing conditions or abnormalities which he listed in paragraph 11(a) of the MAC dated 1 September 2023 as follows: (a) Major Depressive Disorder; (b) Complex Post-Traumatic Stress Disorder; (c) High Risk Alcohol Use, and (d) Marital Discord.
The Medical Assessor then wrote at 11 b and c:
“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) These would have increased his likelihood of developing worsening depressive symptoms, anxiety,
(ii) There was already a high likelihood of his marriage separating even if the subject incident had not occurred.
c. 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. (can only be used when not at odds with available evidence).”
In his statement dated 1 August 2022, Mr Preston stated that prior to the allegations made against him which were the subject of ths claim, he was capable of working full-time on unrestricted duties. As noted above, he stated that the allegations caused his relationship with his wife to deteriorate and they separated. He stated that he struggled to bond with his children as he was scared to be alone with them and show any form of affection as he did not want anyone to accuse him of inappropriate behaviour with his children. He wrote: “I have not had a romantic relationship since separating from my wife, nor have I ever sought one. I feel unable to show love or intimacy with other people without worrying about another accusation”.
In relation to the prior historic abuse claim, Mr Preston wrote:
“51. In 2016, I received approximately $110,000.00 gross for a historic abuse claim against the state of New South Wales for abuse I suffered in a boys' home. I was represented by Kelso Lawyers.
52. The abuse suffered was physical and sexual.
53. At the time of the abuse allegation at the school I was able to function and work without issue”.
Dr Morris noted that Mr Preston grew up in Granville before his parent separated when he was aged about 10. After that, Mr Preston was bought up by an aunt and uncle in Wollongong. Dr Morris noted that Mr Preston had spent about a month in a boy's home at the age of 10 and reported experiencing physical and sexual abuse there. Dr Morris considered that Mr Preston had developed the condition of Major Depressive Disorder with Anxious Distress as a result of the work injury and in particular the delay of six months in hearing from the appellant employer that he had been cleared of the allegations. Dr Morris made no deduction for a pre-existing condition.
The Appeal Panel noted that the appellant submitted that Dr Morris had reported that Mr Preston witnessed and was subjected to domestic violence by his parents. However, the Appeal Panel found no reference to domestic violence involving his parents in Dr Morris’s report. The Appeal Panel did note that Dr John Roberts, in a report dated 8 July 2016, referred to Mr Preston describing his father as a violent and aggressive man and the parental home as being “terrible “ and characterised by abuse including physical abuse. However these constitute risk factors for psychiatric disorder and vulnerabilities, not pre-exising conditions
In a report dated 20 December 2018, Dr Samson Roberts, consultant psychiatrist, noted that Mr Preston referred to having been in a boys’ home for a period of three and a half weeks after his parents separated and that he saw someone about his experiences. Dr Roberts reviewed documents sent to him including the notes of Dan Marajason, a psychologist in Katoomba, whom Mr Preston first saw on 25 October 2010 with the last session being on 29 November 2010. These records noted that Mr Preston was “struggling to mange three kids under 8 and to assist the partner who may have an emotional/mental health problem.” Dr Roberts noted that there was no reference to the events that formed the basis of this claim and that the first sessions would have occurred before those events.
Dr Samson Roberts noted that his wife had been violent towards him and his children.
As noted above Mr Preston was referred on 8 April 2009 to Ms Jordan, psychologist, by Dr Kelvin Lau , Mr Preston’s general practitioner. Dr Lau noted:
“Russell is married with 3 children. He is a casual teacher. Russell describes relationship problems with his wife at the moment – he states she is unwell with depression and he often has to ‘take up the slack’ with looking after the children. He finds relief from his stress by gambling. He has described symptoms including loss of libido, anhedonia and decreased appetite.”
A further referral to Ms Jordan was made on 2 March 2010 by Dr George Rose, who noted that Mr Preston had a number of stressful personal issues.
As noted above in the clinical notes of Ms Jordan dated 5 March 2010, she noted: “Currently living separated under the same roof – toxic environment, domestic violence against you and all are being affective. What are your options?”
In a report dated 7 December 2010, Mr Dan Marajason, psychologist, noted that he had first seen Mr Preston on 25 October 2010. He wrote:
“Russell struggling to manage 3 kids under 8 and to assist a partner who may have emotional/mental health proble. Russell reports he is primary carer and struggles to hold employment as , he reports, he has to step in to mind kids and partner works. Validated Russell’s position and value as a primary carer and his ability to be a caring male. Validated his stress around partner’s emotional difficulty. Developed skills in resilience and how Russell has gained some. Marriage poised between separation and adjustment. Invited Russell to see relationship counsellor, as planned, and to work on relationship…”
In his clinical notes, Dr Rose made the following entries:
(a)     On 5 January 2010 ”Patient with problems with wife who has been having counselling. 3 children who are young. Wife has post natal depression.”
(b)     On 30 September 2011 “Patient with marriage issues. Seperation in inevitable…”
c)      On 13 November 2011 Dr Rose noted that Mr Preston would require a referral to Mark Annis, psychologist, for personal issues.
In a report dated 11 December 2015, Ms Jordan confirmed that during Mr Preston’s attendances in 2009 and 2010 which predated the work injury, the primary focus was on relationship/separation difficulties although, and issues although Mr Preston did indicate theer were issues concerning his childhood and family that continued to impact on his daily life.
In a report dated 17 September 2016, to Kelso Lawyers, Ms Jordan was requeted to provide an opinion of the report of Dr John Roberts dated 8 July 2016. The Appeal Panel noted that this report of Dr Roberts concerned allegations that Mr Preston was sexually, physically and emotionally abused whilst he was at Royleston Boys Home.
Mrs Jordan concluded at page 3:
“In conclusion, Russell still bears the scars of not only being a State Ward but also from the physical and sexual abuse he suffered at Royleston. Being there has fuelled anger and resentment towards authority and he suffers survivor’s guilt, believing that he has ‘dodged a bullet’ when considering the level of abuse suffered by others in Royleston. He continues to have reoccurring dreams, wakes frequently and is restless. He is hypervigilant especially when his children are present and feels the need to protect all children - the main reason he became a schoolteacher.
While other factors may have contributed to Russell’s current psychopathology, the severe impact of Royleston cannot be underestimated. As stated by Dr. Roberts on page 13, ‘such negative influences could have been ameliorated, if not necessarily totally abolished, if the environment at Royleston had been supportive and benevolent’. It was neither, and has contributed to Russell’s chronic psychopathology that Dr. Roberts considers ‘has impacted upon his capacity to advance maximally in terms of his career, has impacted upon his capacity to form interpersonal relationships and has overall negatively impacted upon his quality of life’.”
In a report dated 16 November 2018, Ms Jordan noted that Mr Preston had recontacted her in September 2015 and disclosed threats by his wife that she would use information pertaining to an incident when he was working as a school teacher against him if he became problematic and attempted to gain custody of the children. Ms Jordan wrote:
“On 17/11/10, Rusell received a call from local police to advise that they were investigationg an allegation that had been made against him – this occurred two months after the incident. Police proceeded quickly to investigate and then dismissed all allegations …Despite this it took the Education Department until May 2011 (8 months after the initial allegations) to contact Russell to advise that he had been cleared.
The impact of the Education Department’s treatment of Russell has seriously affected all aspects of his life. As a result of the false allegations, Russell experienced an immediate exacerbation of anxiety symptoms, he became quire hypervigilant especially around children, felt uncomfortable when required to attend his children’s sporting events and even became ‘scared’ when dealing with the basic needs of his own children, such as bathing, when they were in his care – originally for 4 nights a week.
Russel felt ashamed and withdrew from social contact as the same time he increased his drinking and gambling behaviours – further eroding his low self-esteem and self-worth. He lived in fear (and continues to do so) of potential scandal or gossip damaging his reputation and impacting negatively on his children. His elevated stress makes it impossible to relax, leading to constant fatigue and tendency to irritability. He lost motivation and confidence to look for work and doubted his ability to take his place in society and as a result, has become socially isolated. He remains unable to participate in group situations, decreasing his chances of any possible retraining. “
The Appeal Panel accepted that Mr Preston had previous injuries and conditions were recorded by the Medical Assessor in his review of the documentary evidence in paragraph 10 of the MAC and include depression, post-traumatic stress disorder, alcohol use and marital problems and financial strain.
The Appeal Panel accepts that s 323 of the 1998 Act requires that a deduction be made “for any proportion of the impairment that is due to any previous injury or that is due to any pre- existing condition or abnormality.” The Appeal Panel agreed with the Medical Assessor that there was some contribution to the current impairment assessed from pre-existing depressive symptoms and anxiety.
Section 323(2) of the 1998 Act provides:
“If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
Paragraph 11.10 of the Guidelines provides:
“To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed , and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI”.
Therefore in order to make a deduction pursuant to s 323 of the 1998 Act, it is necessary to consider what proportion of the impairment was due to any pre-existing condition and examine and even rate Mr Preston’s pre-injury level of functioning in each of the areas of function in the PIRS.
The Appeal Panel noted that before the injury on 13 November 2010 Mr Preston was working full time as a casual teacher. Despite childhood difficulties, including being abused in a boys’ home when he was a child, Mr Preston obtained his Higher School Certificate and became a primary school teacher. It would appear that any symptoms or condition caused by the abuse as a child were quiescent at the time of the work injury. Mr Preston had been employed as a causal teacher since returning to Australia from Hong Kong in 2002. The Appeal Panel considered that such employment was relatively demanding and stressful. His employment involved travelling to different schools. It was reasonable to assume that working at a school meant that Mr Preston had no deficit in self care and personal hygiene, employability, travel and concentration, persistence and pace. Mr Preston had a wife and three yound children. Ms Jordan noted that he was “taking up the slack as his wife was not caring for the family”. The Appeal Panel considered that any deficit in social and recreational activities or social functioning would have been minor or mild.
The Appeal Panel considered that Mr Preston was stressed pre-injury due to family issues, particularly, the problems that he had with his wife and the separation from his wife, although they continued to live in the same house. There was evidence that Mr Preston drank a lot, was gambling and was anhedonic. However, the Appeal Panel considered that despite the matrimonial problems and some symptoms, Mr Preston appeared to be functioning quite well before the work injury. The Appeal Panel also noted that there was limited information available from the treating doctors and psychologists before the work injury concerning Mr Preston’s level of functioning in the various PIRS categories. The lack of information concerning Mr Preston’s level of functioning in the various PIRS categories pre-injury made an assessment of the deduction under s 323 of the 1998 Act difficult to determine.
In those circumstances, the Appeal Panel agreed with the Medical Assessor that a one-tenth deduction was appropriate and not at odds with the evidence.
Therefore, the Appeal Panel assessed the median class score as 3, the aggregate score as a total of 16, which is converted to 15% WPI for the primary psychological injury.
For these reasons, the Appeal Panel has determined that the MAC issued on 1 September 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W6898/23
Applicant:	Russell Preston
Respondent:	Secretary, Department of Education

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Yu-Tang Shen and issues this new Medical Assessment Certificate as to the matters set out in the table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
1.Psychological Injury	13 November 2010	17%	One -tenth	15.3% rounded down to 15%%
Total % WPI (the Combined Table values of all sub-totals)					15%

[2023] NSWPICMP 693

20 December 2023