Secretary, Department of Planning, Industry and Environment v Lowe

DETERMINATION OF APPEAL PANEL
CITATION:	Secretary, Department of Planning, Industry and Environment v Lowe [2024] NSWPICMP 574
APPELLANT:	Secretary, Department of Planning, Industry and Environment
RESPONDENT:	Kim Lowe
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	15 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Whether Medical Assessor (MA) erred by failing to assess the worker in accordance with the terms of the Personal Injury Commission’s referral, thus, failing to carry out his statutory task; whether MA erred in respect of the deduction for a pre-existing condition/previous injury; Held – MA erred; the worker had a substantial pre-existing condition; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 23 April 2024 Secretary, Department of Planning, Industry, and Environment (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerard Walsh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 26 March 2024.
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
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and the Appeal Panel considers that we have sufficient evidence before us to enable us to determine this appeal.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred firstly, by failing to assess the worker in accordance with the terms of the Personal Injury Commission’s (Commission) referral and thus, failing to carry out his statutory task; and secondly, in respect of the deduction for a pre-existing condition/previous injury.
The appellant noted:
“Agreement was reached between the parties that the worker would discontinue the allegation of injury flowing from an aggravation of a disease on a journey, that is, travelling from home to work in exchange for the insurer accepting that the worker received a work-related psychological injury caused by the nature and conditions of employment between 16 June 2021 to February 2022.”
In reply, the respondent submits that no errors were made.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological injury on a date of injury described as “16/06/2021 to February 2022”.
The Medical Assessor obtained the following history:
“When asked about the injury from 16/06/2021 to February 2022, she said that before June 2020, she was a completely different person. She said that she was always happy, laughing often, was very social and was happy with life. She said that she worked with a team of 170 people, was praised for her work and there were no discipline issues. She said that her mental health then was very good, and she only had very occasional anxiety symptoms.
The claimant said that in 2020, the Department of Planning, Industry and Environment, for which she worked, moved out to Parramatta. She said that she was catching public transport despite the distance. It was when the COVID-19 lockdown occurred resulting in staff being out of the office for around 10 months.
She said that she was told to return to the office once the lockdown was ceased. She said that she asked if could continue working from home. She had concerns about using public transport because her husband was immunosuppressed at the time, and she was fearful of exposing him to community sources of infection.
She said that this request was declined which she felt was unfair for several reasons. She said that other people were working remotely from around Australia and there were no issues with them doing this; she had continued to complete her work to a high standard whilst working from home; and she won the ‘Most Valued Person’ award a few months before.
She felt that her manager was on a “power trip” and took access to jobs that she had done for years away from her. She said that there was a gradual “chipping away” at her. The claimant said that she was accused of doing things that she had not done. She said that there were negative comments about her appearance. She said that she was humiliated in front of a director.
The claimant said that she was struggling with her anxiety when driving. She said that she was denied sick leave to attend a doctor.
She said that PTSD symptoms re-emerged around June 2021 after she had to return to working remotely from home due to COVID-19 restrictions. She had to engage with a psychologist again. Around July 2021 she had sick leave and planned EMDR and EAP. She said that around that time when she was driving, she could hear sounds associated with the 1989 accident and began to experience anxiety and panic symptoms. She said that she had to drive for 2 hours at the time and travel at speed which was triggering her. When she stopped driving, it settled but there was baseline anxiety.
She said that when she complained, she was told that she had received an apology and that there was nothing else that needed to be done. She said that this took away her confidence.
Her last working day was in February 2022. At that time, she returned from leave and worked only two days.”
The Medical Assessor then set out details of her present treatment regime and said:
“Medications: metoprolol half bd blood pressure, irbesartan 75mg nocte, natural supplements. She said that she had a reaction to one antidepressant following the death of her brother years ago. Therefore, she does not want to try antidepressants again. Psychology: She has been linked with a psychologist since July 2020. Initially, sessions were weekly but in the last few months, sessions have been every 2 to 3 weeks. Psychiatrist: She said that she has never seen a psychiatrist.”
Present symptoms were noted as follows:
“Mood - She said that her mood is “very flat and can go 0 to 100 with just someone looking at me the wrong way”. Anhedonia – She said that she lacks interest in doing the activities that she used to do. Appetite - She said that she has put on around 9kg since 2020. She said that she eats to pass the time rather than being interested in food. Sleep - She said that she generally has difficulty maintaining sleep and wakes frequently. She reported that around 2 to 3 times per month, she experiences “night terrors”. She said that her husband wakes her during these because she is whimpering and crying in her sleep. She said that the theme of these dreams is that people want to hurt her, that they come from behind her in the dream to restrain her. She said that she has the feeling that everything has been taken away from her which she associated with the loss of her life since the workplace issues. Psychomotor disturbance Fatigue - She said that she often needs to sleep for a couple of hours during the day to pass the day. Worthlessness – she feels embarrassed about her mental health and how it has been affected by workplace issues. She described how she was isolated and embarrassed about her weight.
Concentration - She said that she has very poor concentration which is described later. Suicidal - She said that she is not suicidal, and she has never been suicidal.
Anxiety: Frequency - She said that she becomes anxious 2 to 3 times every day and stress increases the frequency. Duration – She said that it can last from 15 minutes to an hour. Triggers – She said that it comes on with no identifiable trigger. Made better - She said that she employs her coping mechanisms by doing activities to distract herself and that sometimes settles the anxiety down. At other times she goes into her room and locks herself in. The claimant reported symptoms of anxiety include increased heart rate, palpitations, not hearing things properly, sweating, shaking, choking, chest discomfort, feeling faint, pins and needles, and fear that something is wrong or is going to happen.
PTSD regarding the car accident in 1989: Intrusive thoughts –, she said that intrusive thoughts are manageable, and she has learnt how to push these thoughts away. Dreams - She said that she has not had dreams or nightmares about the accident. Flashbacks – She denied having flashbacks. Psychological and Physiological distress – She said that the anxiety that she experienced was not the anxiety that she experienced from the 1989 accident. distress –Negative thoughts – She did not have any negative thoughts related to the accident. Distorted cognitions – She said that there are some memories that she cannot recall such as the exact date of the accident. Negative emotional state – She reported not experiencing negative emotional states. Diminished interest - Detachment – She said that she is emotionally close to her family and friends. No positive emotions – She said that she does not feel happy based on the workplace issues rather than PTSD.
She said that her diminished interest, irritability, hypervigilance, poor sleep and concentration were related to her mood and how she had been treated in the workplace, rather than due to the 1989 accident.”
When asked to provide “Details of any previous or subsequent accidents, injuries, or conditions” the Medical Assessor said:
“In 1981, her brother died, and she was prescribed an antidepressant, but she did not recall which one, during the bereavement period.
She stated that at the end of September 1989, around 35 years ago, she was a passenger in a vehicle driven by her husband. She was not asked the details of this, but it was in the documentation that there was a fatal accident in which her 20-month-old niece, who was on the claimant’s lap, was killed. It was also documented that she suffered a head injury with severe bruising and lost consciousness and later was diagnosed with PTSD. She said that anxiety began immediately at the time and PTSD symptoms of avoidance, nightmares, intrusive thoughts and psychological distress. She said that she was treated mainly with psychotherapy for around 6 months which helped her manage her panic attacks and all the other symptoms resolved. She reported that the only remaining symptom was anxiety which she felt was under control for the following 10 years and almost completely over the subsequent 20 years.
As already described, she said that PTSD symptoms re-emerged around June 2021 when she began experiencing problems at work.
The claimant denied any prior engagement with mental health services or admissions to mental health units. The claimant also denied any history of previous self-harming behaviours, suicide attempts or harm towards others…
She said that her father died at the age of 66 from motor neuron disease, her mother died from cancer at the age of 74, and her older brother died at the age of 23 from Duchenne muscular dystrophy…”
The Medical Assessor then turned to consider the impact of Ms Lowe’s injury on her social activities and activities of daily living (ADL’s) and said:
“Self-care and personal hygiene: Bathing: She said that she bathes most days except for one day a week when she does not feel like it. She said that on those days, she thinks, “What is the point”. Dressing and grooming: She stated that most days she stays in her pyjamas all day because she does not leave the house. She said that she does not take pride in her appearance or wear makeup anymore like she used to. Cooking: The claimant said that her husband cooks mostly as she does not enjoy doing this activity anymore. Household chores: She reported that her husband does all the laundry and vacuuming. Shopping: She stated that her husband does the shopping, and she goes with him. She said that she does not go shopping alone as she is fearful about having a panic attack. She said that before 2020, she gained pleasure from cooking every day, and took pride in her appearance. She said that when she had been working, she was told by colleagues that she was the most fashionable person in the building.
Social and recreational activities: She said that does very little in the way of activities nowadays. Hobbies: She said that she might repot a plant. She said that she does not read anymore due to a lack of interest and poor concentration. Exercise: She stated that every day her husband makes her walk for a 30-minute return trip to the shops. She said that before 2020, she used to frequently go to the beach, but she has not gone for a swim thus far in 2024.
Travel: She said that after the car accident in 1981, she avoided driving for 10 years as it triggered PTSD symptoms. She said that nowadays she does not drive alone but every 2 weeks will go for a short drive just in the local area. She said that her husband must be in the car with her as a support person because she is fearful of having a panic attack when driving. She said that she does not take public transport anywhere.
Social functioning: Relationship with her husband: She said that her husband “walks on eggshells” when he is around her. She said that she feels guilty that her husband had to give up her career to look after her. They have never fought, had periods of separation, nor has there been domestic violence.
Relationship with children: She stated that she has two very supportive adult children with whom she speaks daily. She said that she does not see them as often now because they live some distance away.
Relationship with siblings: The claimant said that she has three sisters; their brother died at age 23. She said that she often speaks to her sisters and describes them as a “lifeline”. She said that they have not fought or had issues in the relationship. Relationship with parents: She reported that both parents were deceased.
Relationship with friends: She stated that she used to have a lot of close friends. However, she now has 3 close friends and speaks to them once a month. She said that she lost many work-related friends and now only hears from two of them. She said that she does not contact them as she is embarrassed about what occurred in the workplace and because of her mental health issues.
Frequency of socialising: She said that she used to be very social and enjoyed going to lunch with friends and meeting with colleagues. She recalled how she used to go out socially 2 or 3 times a week. However, since the work-related issues, could not recall the last time she went out socially with friends but thought that it was around 2021. She stated that nowadays, she goes out once a week for a meal only with her husband. Involvement when out: She reported that when out with her husband she engages in conversation.
Concentration, persistence and pace: Duration of concentration: She said that she has very poor concentration to such an extent that she cannot read a book or watch television. Uncharacteristically, she said that she has difficulty retaining information. She said that she can read 3 or 4 pages of a book but must often re-read to understand it. Maximum complexity: She did not think that she would be able to read anything of a complex nature.
Employability: Work: She said that she has not been doing any work since she left her workplace. Volunteering: She stated that she does not do volunteer work currently but recently discussed with her psychologist about potentially doing something. She said that she recently approached the local marine rescue but that she panicked when they told her what that would entail. Hours per week: The claimant said that she spends 2 hours a week in the garden pulling out weeds. Or she rearranges cupboards to keep active.”
Findings on mental state examination were reported as follows:
“Appearance: The claimant appeared her stated age and was well groomed. She had blonde hair tied back and wore a hairband. She had glasses and a sleeveless top. Behaviour: There was no psychomotor disturbance but she appeared on edge at times in her chair. There was good eye contact with the videoconference camera. She was very tearful towards the end of the assessment when talking about what occurred in the workplace. Speech: Speech was spontaneous and was normal in volume, rate, rhythm, and prosody. Mood: Mood was described as generally low but “Up and down”. Affect: Affect was warm, reactive, and appropriate, with a restricted range. She was able to talk about the 1981 accident without any changes in her affect albeit the finer details of that accident were not sought. Thought form: The thought form was logical with no formal thought disorder noted. Thought content: The main themes were about the effects of the injury on her life. She stated that she was embarrassed about her mental health and felt guilty about what her husband had sacrificed to stay at home to look after her. Perceptions: There was no perceptual abnormality described and she did not appear to be responding to any abnormality on observation. Cognition: Formal testing of cognition was not performed. The claimant attended the assessment alone at the correct time. A reasonable history was obtained though she did appear to struggle at times with recalling details.”
The Medical Assessor diagnosed:
“Persistent Depressive Disorder, as she has persistent depressive symptoms which exceed 2 years. Symptoms have included low mood, anhedonia, poor appetite, sleep, and concentration.
Post-Traumatic Stress Disorder, as the circumstances of the accident in 1989, is sufficient to meet Criterion A, and she also has sufficient symptoms to meet Criterion B to E, with sufficient duration longer than a month, causing significant distress and impairment.
Anxiety is a combination of the depressive disorder and PTSD. She was almost, but never completely, free of anxiety following the accident in 1989.”

The Medical Assessor assessed 24% WPI from which he deducted one-tenth in respect of the pre-existing condition, leaving a total of 22% WPI.
He then turned to consider the other medical opinions and material before him and said:
“23/02/2022 – IME, Dr Samuel Lim, Consultant Psychiatrist.
Symptoms: She reported feeling unsafe leaving the house due to COVID-19 concerns and was isolated at home. She felt insecure about taking public transport. Employment: Dr Lim opined that the claimant was permanently not fit to return to work in her substantive position based on property and development, working with her current co-workers for the foreseeable future. Diagnosis: aggravation of PTSD. Treatment: She told Dr Lim that she had been offered medication but declined to take this due to a general disinclination to take psychotropic medication. This was due to side effects experienced 40 years ago with an antidepressant. Impression: Dr Lim opined that she appeared to have experienced an aggravation of her posttraumatic stress disorder related to having to be present in person in the workplace. Work: She was considered permanently unfit to return to the workplace. Prognosis: Prognosis was noted as uncertain. Impairment: PIRS was not requested.
19/05/2023 to 21/02/2024 – IME, Dr Howard Napper, Psychiatrist, Assess Medical Group
Symptoms: PTSD symptoms were current at the time when she had been experiencing recollections of the 1989 car accident, had nightmares, had panic attacks, lacked interest in anything, and reported poor concentration. Diagnosis: PTSD, Panic Disorder and Agoraphobia. Treatment: Dr Napper noted that from July 2021, the claimant saw a psychologist, lan O'Neill. Sessions weekly to two weekly. Psychology sessions included a variety of psychological techniques including relaxation, meditation, EMDR and Bi-Tapp therapy. Her GP tried antidepressants, but she developed side effects and did not try any more antidepressants. Impression: Dr Napper opined that the alleged bullying was a contributing factor over and above the effects of the driving on the claimant’s psychological well-being. Work: It was opined that the claimant was completely unfit for work and unfit to work in any other occupation due to her psychological symptoms. Prognosis: The prognosis for further improvement was reported as guarded. Impairment: PIRS classes were 3,3,3,2,3,5 thus the aggregate was 19 and 24% WPI with 0% adjustment for pre-existing impairment and 0% for treatment effect. The final WPI was 24%.
02/08/2023 to 29/09/2023 – IME, Dr Ashwinder Anand
Symptoms: she was withdrawn, had poor concentration and motivation, found it difficult to read, was sleeping for long periods and had mood swings. She was anxious and did not want to be left alone. She reported nightmares and anhedonia. Diagnosis: Post-Traumatic Stress Disorder and Major Depressive Disorder. Treatment: At that time, she was on antihypertensives metoprolol and irbesartan. She was seeing a psychologist lan O'Neill fortnightly. She was not seeing a psychiatrist and her GP is Dr Joanna Guy. Her psychological injury was predominantly caused by the triggering of her PTSD due to various factors as described above and the alleged bullying harassment at her workplace. Work: Dr Ashwinder opined that she had no capacity for any kind of work in the open labour market. Prognosis: “Guarded if not poor, noting the chronicity of her symptoms”. Impairment: PIRS classes were 2,3,3,2,3,5 thus the aggregate was 18 and 22% WPI with 2% adjustment for pre-existing impairment and 0% for treatment effect. The final WPI was 20%.”
The Medical Assessor added: “My assessment of 22% WPI% is between those of Drs Anand and Napper. My reasoning for each specific domain is to be found within the PIRS.”

The appellant’s submissions

The submissions are as follows:
(a)    The task of the Medical Assessor was to only assess permanent impairment resulting from the psychological injury sustained as a result of the interactions with the employer in the period between June 2021 and February 2022.
(b)    The Medical Assessor failed to engage with the terms of the referral. He made multiple references to the triggering and re-emergence of post-traumatic stress disorder/aggravation of the post-traumatic stress disorder but made no adjustment for the effects of the aggravation of that condition on the assessment. The aggravation of the post-traumatic stress disorder diagnosis resulted in continuing anxiety, panic attacks and sleep disturbance. The Medical Assessor acknowledged that the present anxiety the worker was experiencing was a combination of the depressive disorder and the post-traumatic stress disorder.
(c)    The Medical Assessor also explained the reasons for only applying a one-tenth deduction. He explained: “There had been a grieving period in the context of her brother’s death, but the symptoms resolved completely. Symptoms from the accident in 1989 appeared to have largely settled after 6 months but with ongoing anxiety as per the claimant’s report re-emerged when the problems at the workplace began”. (emphasis added)
(d)    This explanation by the Medical Assessor reveals that he included in the permanent impairment assessment the aggravation of the post-traumatic stress disorder by the driving. There is no other possible interpretation.
(e)    The Medical Assessor made no attempt to disentangle what impairment results from the post-traumatic stress disorder and what impairment results from the persistent depressive disorder. There is nothing in his process of reasoning that could be viewed as engaging with that material issue. The reasons given by the Medical Assessor in the MAC should be taken to be the extent of his reasons, which fail to engage with the contribution of the worker’s pre-existing post-traumatic stress disorder to her current condition.
(f)    On any objective assessment, the trauma of the motor vehicle accident would have contributed significantly to the worker’s current condition, its underlying potential for re-emergence having been triggered by the driving, which, without any pre-existing substrate would have been significantly less substantial.
(g)    The deduction under s 323 is confined by the Medical Assessor to the post-traumatic stress disorder that resulted from the 1989 car accident, the Medical Assessor having dispensed with the brother’s death in 1981.
(h)    It is clear that the Medical Assessor considered that the anxiety from which the worker continues to suffer resulted, at least in part, from the re-emergence/aggravation of the post-traumatic stress disorder as a result of the driving that she undertook in 2021.
(i)    A larger deduction ought to made as there is a clear contribution to the impairment assessed by the aggravation of the post-traumatic stress disorder/anxiety that occurs as a result of the driving to Parramatta as found by the Medical Assessor.
(j)    The medical evidence from Dr Joanne Guy, the worker’s general practitioner, supports a larger deduction. In her report to the insurer on 7 July 2021, she described the “flare” up of post-traumatic stress disorder as “severe”. In the clinical notes Dr Guy has recorded on 16 June 2021 that the worker was experiencing “extreme anxiety in relation to driving to work, full panic attacks and overwhelmed with anxiety.” On 7 July 2021, Dr Guy has recorded that the worker was experiencing “ongoing flashbacks of severe accident 30 years ago”. The worker herself described “significant anxiety”, “panic attacks” and “difficulties sleeping”.
(k)    The clinical notes record ongoing anxiety from that time that does not abate.
(l)    The Medical Assessor did not grapple with the issue of the aggravated post-traumatic stress disorder that occurred as a result of the driving in 2021 and did not grapple with the issue of a deduction pursuant to s 323 in respect of this pre-existing condition which was clearly full blown by June 2021.
The appellant also made reference to the decision in Ryder v Sundance Bakehouse [2015] NSWSC 526, [45]:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
As stated earlier, the respondent submits that no errors were made. Specifically, “it is clear from the face of the MAC that the MA understood the terms of the referral.”

Discussion

This is an extremely complex matter.
The starting point must be the terms of the referral.
On 29 February 2024, Member Homan issued Consent Orders in the following terms:
“1. The allegation of injury in the nature of an aggravation of a disease whilst on a journey is discontinued.
2. The accepted psychological injury is one in the nature of an aggravation of a disease caused by alleged bullying and harassment at work between 16 June 2021 and February 2022.
Date of injury: 16 June 2021 to February 2022.”
The Commission issued the referral for assessment on 4 March 2024 reflecting the orders made by Member Homan.
Although not specifically stated, we assume that the “disease” referred to by the Member was the acknowledged post-traumatic stress disorder.
The task then of the Medical Assessor was to assess impairment (if any) resulting from the aggravation of the post-traumatic stress disorder caused by the “alleged” bullying and harassment at work during the period referred to above.
It was common ground that any exacerbation of post-traumatic stress disorder due to travel was not part of the WorkCover claim. It pre-dated the claim period (16 June 2021 to February 2022), and so is a pre-existing injury whose contribution to the compensable injury must be considered.
This must then be looked at in the context of the diagnoses made by the Medical Assessor, namely:
“Persistent Depressive Disorder, as he (sic) has persistent depressive symptoms which exceed 2 years. Symptoms have included low mood, anhedonia, poor appetite, sleep, and concentration; and
Post-Traumatic Stress Disorder, as the circumstances (sic -consequences?) of the accident in 1989, is sufficient to meet Criterion A, and he (sic) also has sufficient symptoms to meet Criterion B to E, with sufficient duration longer than a month, causing significant distress and impairment; and
Anxiety is a combination of the depressive disorder and PTSD. She was almost, but never completely, free of anxiety following the accident in 1989.”
The Medical Assessor appears to have diagnosed “persistent depressive disorder” as a consquence of the alleged “bullying and harassment” in the workplace.
There is an overlap in the symptoms of persistent depressive disorder and post-traumatic stress disorder, as mood symptoms are a symptom cluster in post-traumatic stress disorder. Further, mood disorders such as persistent depressive disorder are often co-morbid with post-traumatic stress disorder and may be caused by it.
The difficulty arises since the Member referred to the “accepted” psychological injury but only referred to the “alleged” bullying and harassment at work between the dates referred to above.
The appellant’s submissions do not address this such that the Panel can only surmise that, having “accepted” the occurrence of a psychological injury, the alleged bullying and harassment must have been accepted.
There is no doubt in our minds that the post-traumatic stress disorder arising from the 1989 car accident contributed to Ms Lowe’s current impairment since symptoms persisted for many years, and especially in 2021 as noted by Dr Joanne Guy.
These symptoms were primarily triggered by Ms Lowe being required to drive to work, an activity she had avoided following the car accident.
As a consequence of this, she developed an aggravation of her post-traumatic stress disorder which we consider must have contributed to her impairment.
The bullying and harassment in the workplace then led to a further exacerbation of the pre-existing post-traumatic stress disorder and subsequently to a further condition, namely a persistent depressive disorder as diagnosed by the Medical Assessor, resulting from workplace events over about a seven-month period.
How much did that pre-existing condition contribute to Ms Lowe’s current impairment?
In our view, significantly.
Or, noting the decision in Ryder referred to above, “the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
We are satisfied that this is indeed the case in this particular matter.
Having said that, we accept that Ms Lowe was able to function very well in her high- level role with the respondent for many years, notwithstanding occasional symptoms, which we have also taken into account.
However, it is also true that her level of functioning was declining as her symptoms increased with the exacerbation of post-traumatic stress disorder related to travel.
The Medical Assessor assessed 24% WPI deducting one-tenth for the pre-existing condition.
This was manifestly inadequate, and we accept the appellant’s submission that the Medical Assessor failed to provide adequate reasons for his assessment.
He merely stated:
“My assessment of 22% WPI% is between those of Drs Anand and Napper. My reasoning for each specific domain is to be found within the PIRS.”
His reasons were essentially confined to the various PIRS categories.
When asked about any deduction, he simply stated:
“Symptoms from the accident in 1989 appeared to have largely settled after 6 months but with ongoing anxiety as per the claimant’s report but re-emerged when the problems at the workplace began. There was a one-tenth deduction.”
The Medical Assessor has erred in his assertion that the symptoms re-emerged when the “problems in the workplace began.” For this claim, problems in the workplace began on
16 June 2021, and the symptoms of post-traumatic stress disorder re-emerged when the respondent needed to drive to her workplace in late 2020.
The Panel has considered the pre-existing condition and its contribution to her current impairment in its entirety. With regard to the whole of the evidence, in our view, a deduction of 40% or four-tenths is appropriate because of the extent of the ongoing post-traumatic stress disorder symptoms for over 30 years and the severity of the aggravation in 2020.
For these reasons, the Appeal Panel has determined that the MAC issued on
26 March 2024 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:	W8964/23
Applicant:	Kim Lowe
Respondent:	Secretary, Department of Planning, Industry and Environment

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

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Gerard Walsh and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in 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. Psycholo gical Injury	16/06/ 2021 to February 2022	Chapter 11, page 54	Chapter 14, pg 361-365	24%	4/10ths	14%
Total % WPI (the Combined Table values of all sub-totals)					14%

[2024] NSWPICMP 574

15 August 2024