Serco Australia Pty Ltd v Cadman

DETERMINATION OF APPEAL PANEL
CITATION:	Serco Australia Pty Ltd v Cadman [2023] NSWPICMP 697
APPELLANT:	Serco Australia Pty Ltd
RESPONDENT:	Kieran Cadman
APPEAL PANEL
MEMBER:	Rachel Homan
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Nicholas Glozier
DATE OF DECISION:	21 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; availability of additional relevant information; Medical Assessor made an assessment of severe impairment for employability under the Psychiatric Impairment Rating Scale; SIRA Certificate of Capacity issued 11 days after assessment and before Medical Assessment Certificate (MAC) certified the worker as having capacity to engage in pre-injury duties; Appeal Panel satisfied that the ground of appeal in section 327(3)(b) made out; re-examination conducted; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 7 August 2023, Serco Australia Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 19 July 2023 following an examination of Kieran Cadman (the respondent) on 27 June 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):
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against), 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).

RELEVANT FACTUAL BACKGROUND

The respondent was employed by the appellant as an Asset Manager and claimed to have suffered a psychological injury due to a hostile work environment.
On 30 September 2022, the respondent made a claim for lump sum compensation under s 66 of the Workers Compensation Act 1987 in reliance upon an assessment of 15% whole person impairment (WPI) made by Dr Abdal Khan.
The claim was disputed in a notice issued pursuant to s 78 of the 1998 Act by the appellant’s insurer on 30 November 2022 on the basis that the injury had not resulted in at least 15% WPI pursuant to s 65A(3) of the 1987 Act in reliance upon an assessment by Dr Abdul Virk of 6% WPI.
Proceedings were commenced by lodgement of an Application to Resolve a Dispute in the Personal Injury Commission and the medical dispute referred to the MA. The MA assessed 17% WPI from which a 1/10 deduction was made pursuant to s 323 of the 1998 Act leaving 15% WPI.
In his assessment of the Psychiatric Impairment Rating Scale (PIRS) category of “Employability”, the MA found the respondent fell within Class 4 for a “severe impairment”.

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 fresh evidence sought to be adduced by the appellant ought to be given.
Upon consideration of the fresh evidence, the Appeal Panel determined that there was additional relevant information available such that the ground of appeal in s 327(3)(b) of the 1998 Act was made out.
The Appeal Panel further determined that it was necessary for the respondent to undergo a further medical examination because there was insufficient evidence on which to make a determination. The Appeal Panel appointed Medical Assessor Graham Blom, one of its members, to undertake that examination.

Fresh evidence

Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to have the following evidence admitted:
(a) a State Insurance Regulatory Authority (SIRA) Certificate of Capacity issued by Dr Danish Khan, dated 8 July 2023, certifying the respondent as fit for pre-injury duties.

The appellant submits that the evidence is relevant to the assessment of impairment for “Employability” under the PIRS.
The appellant submits that the Certificate of Capacity dated 8 July 2023 was not available and could not reasonably have been obtained before the assessment by the MA on 27 June 2023 because it was issued after that assessment took place.
The respondent opposed the admission of the Certificate of Capacity on the grounds of relevance, stating that it post-dated the assessment and contained a forward looking opinion of the respondent’s capacity over the coming month. The MA had a duty to examine the respondent as he found him on the day and time of assessment.
The admission of fresh evidence on appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance (Ross). In Ross, the Deputy President stated:
“A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435; McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418; Orr v Holmes (1948) [1948] HCA 16; 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
In Orr v Holmes (1948) 76 CLR, at pp 640-642 the relevant principles were summarised as follows:
"… new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue. The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable.”
It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of “substantive prima facie probative value”. In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:
“...in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act.”
The Certificate of Capacity which the appellant seeks to have admitted post-dates the MA’s medical assessment but pre-dates the MAC. It is prima facie evidence that the respondent had capacity as at the date of the Certificate of Capacity to engage in his pre-injury duties. That evidence is substantially different to the assessment of a “severe impairment” under the PIRS category of “Employability” made by the MA. The Certificate of Capacity places a significantly different different complexion upon the evidence regarding employability which was before the MA.
Although the Appeal Panel accepts that the MA was obliged to make an assessment based on the respondent’s presentation on the day of the assessment, the close temporal proximity of the certificate to that assessment was such that the Appeal Panel considered that the evidence had substantial prima facie probative value and ought to be given.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination.
In addition, the Appeal Panel has before it:
(a) SIRA Certificate of Capacity issued by Dr Danish Khan, dated 8 July 2023, certifying the respondent as fit for pre-injury duties.

Further medical examination

Dr Blom of the Appeal Panel conducted an examination of the worker on 1 December 2023 and reported to the Appeal Panel.

Medical Assessment Certificate

The parts of the medical certificate given by the MA 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.
In summary, the appellant submitted that with respect to s 327(3)(b), further evidence had come to light, in the form of the Certificate of Capacity dated 8 July 2023, which confirmed that the respondent was not incapacitated for employment as assessed by the MA. The appellant submitted that the Certificate of Capacity dated 8 July 2023 was not available before the assessment by the MA.
With respect to s 327(3)(d), the appellant submitted that the MA had fallen into error by assessing the respondent as having a Class 4 impairment for “Employability”, under the PIRS. The appellant submitted that the fresh evidence confirmed that the respondent was not severely impaired for employment as assessed by the MA.
The appellant submitted that a reduction in just one class of the PIRS category for “Employability”, from a Class 4 to a Class 3, would result in a reduction in impairment from 15% WPI to 14% WPI, thus substantially altering the respondent’s rights and entitlements in respect of his injury.
The appellant submitted, without seeking to adduce any further evidence, that the respondent had returned to work in his pre-injury role on 4 July 2023, working five hours per day, three days per week. On 8 July 2023, the respondent’s capacity for work was upgraded to pre-injury duties by his nominated treating doctor and he commenced in this capacity on 10 July 2023.
The respondent ceased work again on or around 28 July 2023 and went on personal leave. In a phone conversation with his case manager on 26 July 2023 the respondent indicated that he was already applying for new managerial jobs on Seek. On 15 August 2023, the respondent resigned from his employment with the appellant.
In reply, the respondent submitted that the Certificate of Capacity dated 8 July 2023 was not relevant to an assessment carried out on 27 June 2023 as it post-dated that assessment. The opinion contained in the Certificate of Capacity was a forward focused opinion. It was not an assertion of what the respondent’s capacity was, but what the doctor estimated it to be over the coming month.
Although the respondent attempted a return to work on 10 July 2023, he ceased work again on 28 July 2023. This demonstrated that the opinion contained in the Certificate of Capacity was wrong or at least an over-estimation of the respondent’s capacity. The respondent submitted that the Certificate was not evidence of a demonstrable error in the MAC.
The respondent noted that the appellant mentioned a telephone conversation alleged to have been held between the respondent and a claims officer, in which the respondent was alleged to have said he was looking for ‘managerial jobs’. The respondent submitted that there was no evidence adduced with respect to this call and the respondent denied it.
The respondent submitted that if the appellant was successful in its argument, a further assessment was warranted.
The respondent attached to its submissions a further SIRA Certificate of Capacity issued by Dr Khan on 20 September 2023, certifying the respondent as having no current work capacity.

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 claim for lump sum compensation in this case was made in reliance upon medico-legal opinions and an assessment given by Dr Abdal Khan, in reports dated 14 October 2021 and 29 August 2022.
In his first report, Dr Khan noted that the respondent was a 61-year-old man who had been employed by the appellant on a full-time basis for approximately two and a half years prior to the injury.
Dr Khan was asked to comment upon the impact of the injury on the respondent’s prospects of employment and/or earning capacity. Dr Khan responded:
“At this stage, it is remains uncertain whether Mr Cadman’s current psychiatric/psychological condition will affect his prospects of employment and earning capacity. Mr Cadman had a period of total incapacity to work from 24 March 2021 to 17 September 2021. He attempted to return to work but after further issues with his employer in a meeting, he was stood down on 29 September 2021. Given these recent events where he felt mistreated again by his employer, it remains uncertain as to whether Mr Cadman is likely to be able to return to his pre-injury work capacity in the future. Given that his psychiatric/psychological condition has not stabilised, it is difficult to determine how pervasive this impairment, in relation to earning capacity prospects, will be into the future.”
Dr Khan said the respondent was currently totally incapacitated for work.
In his supplementary report, Dr Khan noted that the respondent had been certified by his general practitioner as having capacity to work three hours per day, three days per week as part of a return to work trial with his pre-injury employer. In making an assessment of the PIRS categories, Dr Khan assessed the respondent as having a Class 3 impairment in relation to “Employability” commenting,
“Mr Cadman cannot work more than 10 hours per week due to the pervasiveness of his mental health and cognitive difficulties.”
The respondent provided evidence in a written statement, dated 3 February 2023, in which he said:
“… my rehabilitation provider prepared a return to work plan in an attempt to get me back to similar employment, with a different employer, however, this was placed on hold when I become unwell. I was willing to give this a go but in all honesty, I was unaware as to whether I would be able to carry out such duties and what my capabilities would be.
I have thoroughly enjoyed working at Serco and am unhappy that I will be unable to return. I put a lot of time and effort into learning my job, the policies and procedures and I took pride in it. I am disappointed and believed I fit in well with that team. This job was close to home, I was receiving a great wage and I was also provided with a lot of flexibility.
Since Christmas, I have attempted to return to work with a different employer on multiple occasions. Particularly, I have recently applied for in excess of 15 jobs, to which I have not received a response from any. I believe this is purely due to my age, as the experience I have collected is quite extensive. I am close to retirement age and do not believe employers are looking for someone who is in this situation.”
The appellant disputed the claim in reliance upon a medico-legal opinion from Dr Abdul Virk, dated 23 November 2022. Dr Virk reported that the respondent told him that he intended to work until he retired. The respondent stated that he was hoping to hear back regarding an offer for full-time employment as a maintenance manager with Hume Housing and was confident that he could do the required duties.
Asked for an opinion on the respondent’s capacity for work, Dr Virk responded:
“In my professional opinion, Mr Cadman is not fit to return to his pre-injury duties with Serco. Due to the strong sense of perceived injustice and unresolved workplace disciplinary issues, I anticipate that Mr Cadman’s psychological symptoms would be exacerbated by him returning to work with Serco.…
Mr Cadman suffers from partial incapacity for work as a consequence of his psychological injury. This incapacity relates to his inability to work with Serco. However, Mr Cadman’s description of his recent job seeking efforts indicates that he clearly retains sufficient cognitive and emotional functioning to be able to search for potential jobs, send out resumes and interview for various new positions in an effort to find new employment. As such, I believe that he would be able to work full-time with an alternate employer, evidenced by his recent application for the Hume Housing maintenance manager position.”
Dr Virk found a Class 2 impairment in the PIRS category of “Employability”, commenting:
“Awaiting to hear back about a job as maintenance manager for Hume Housing where he would be working more than 20 hours per week.”
The appellant also relied upon an Injury Management Consultant report prepared by Dr Barbara Schiff on 21 March 2022. Dr Schiff expressed the opinion,
“…this worker should be able to work pre-injury duties if the industrial issues were separated and the Co-morbid entities are separated. Theoretically, Kieran agreed.”
The most recent Certificates of Capacity, attached to the Reply, were dated 6 and 20 January 2023. In those certificates, the respondent was certified as having capacity to work suitable duties three days per week.
In the MAC dated 19 July 2023, the MA gave the opinion that the respondent was permanently unfit to work in his primary substantive role with this appellant and had failed to return to work in any lesser workplace roles. The MA found a Class 4 impairment for the PIRS “Employability” category, commenting:
“Mr Cadman’s employability is severely impaired. He is unfit to return to his primary substantive role with this employer at any time in the future due to his primary psychological injury alone. He remained depressed, anxiously distressed and avoidant of all workplaces. He had failed to return-to-work in any capacity prior to this assessment. His capacity to attend work due to the symptoms of this primary psychological injury alone would be erratic. He had made unsuccessful attempts at finding work. His applications lodged had all failed.”

Ground of appeal

The first ground of appeal relied upon is that in s 327(3)(b) of the 1998 Act, namely,
“(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against)”
In Petrovic v BC Serv No 14 Pty Ltd and Ors Hoeben J said:
“In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS.”
In State of New South Wales v Ali [2018] NSWSC 1783 (Ali), Harrison J relevantly stated:
“The expression ‘additional relevant information’ contemplates or anticipates a qualitative addition to the information otherwise previously available. It is not concerned with the information being merely quantitatively different, in the sense that there is more of the same. That is made plain by the words in parentheses, which emphasise that the additional relevant information must also qualify as information that could not reasonably have been obtained before the medical assessment appealed against. As a matter of plain language, that does not mean or refer to something that could not have been obtained simply because it came later in time. Everything that occurs later than an earlier event is by definition additional in a temporal sense.”
In the same case, Harrison J confirmed that s 327(3)(b) was not concerned with information indicating a reduction in impairment after the assessment was made but rather “the existence of a provable state of affairs at the time the decision is made”.
Applying these authorities to the present case, the Appeal Panel finds that the Certificate of Capacity dated 8 July 2023 contains information in the form of a medical opinion given by the respondent’s nominated treating doctor that the respondent had sufficient employment capacity as to be able to perform his pre-injury duties as at 8 July 2023.
The Appeal Panel does not accept the respondent’s submission that the Certificate was an estimate of the respondent’s capacity over the coming month. On its face, the Certificate expressed as an opinion on the respondent’s current condition as at the date of the Certificate. This opinion was given 11 days after the assessment and 11 days before the MAC was issued.
Although the Certificate post-dates the MA’s assessment, the temporal proximity to the assessment on 27 June 2023 was such that, in the Appeal Panel’s opinion, the information contained in the Certificate was relevant to the assessment of the PIRS “employability” category as at the time of the MA’s assessment.
The Appeal Panel is further satisfied that the information is “additional” information, given the contrast between the nominated treating doctor’s opinion as to the respondent’s employment capacity and the other evidence going to that question before the MA.
As noted above, the documentary evidence before the MA uniformly indicated that the respondent was not fit to resume pre-injury duties. Differing opinions were given on the extent of the respondent’s capacity to engage in suitable employment. The most recent Certificate of Capacity before the MA had certified the respondent as fit to perform suitable duties three days per week. The information that on 8 July 2023, the nominated treating doctor considered that respondent was fit for pre-injury duties was therefore qualitatively “additional” to the information otherwise previously available.
The Appeal Panel is satisfied in these circumstances that the ground of appeal in s 327(3)(b) is made out. As a result, it is unnecessary to consider the ground in s 3273)(d).
As the certification of 8 July 2023 stood in such contrast to the other documentary evidence of employability, and in light of the parties’ submissions as to events which occurred after the Certificate was issued, the Appeal Panel agreed with the respondent that further explanation and medical examination was required.

Re-examination

As noted above, Medical Assessor Blom re-examined the respondent on 1 December 2023. Medical Assessor Blom provided the following report:
“The workers medical history, where it differs from previous records
Mr Cadman confirmed that he had read the previous report of the medical examination performed by Dr Baker, dated 19 July 2023. He said that he believed that it was an accurate portrayal of his history.
Given the nature of the Appeal, I specifically clarified his work history from the date of the injury to the date of the MAC. Mr Cadman left work following his injury on 24 March 2021. He stated that he had attempted to return to work at Serco in around September 2022. This return to work only lasted about 10 days. During this time, he worked in an administrative role and was generally isolated from the Serco management. He found the administrative tasks difficult as they had not been part of his previous work experience. Furthermore, he was obliged to appear before a ‘disciplinary hearing’ which he felt was a ‘kangaroo court’. This Disciplinary Hearing was a consequence of issues related to his original injury and circumstances around the time that he left work in March 2021.
Unfortunately, during the Hearing, he became irritable, frustrated and somewhat verbally aggressive and was subsequently stood down. He ceased work at this point and had not worked with Serco again up until the time of the MAC. However, during this time, he has applied for multiple jobs through Seek, but he has been unable to obtain an interview, let alone a job. Mr Cadman attributed his difficulties in obtaining further employment to his age. He is currently 63 years old and believes that employers are uninterested in employing older workers. It is of note, that Mr Cadman generally has applied for full-time positions and believes that in the right setting he would be able to cope with full time employment. I also attempted to clarify with him the process of job applications. He said that he was contacted by Seek with potential employment in positions suited to his training as an asset manager. He then has a CV which he sends with a Cover letter specific for the particular position. That is to say, the process of job application is relatively streamlined and does not require huge amounts of motivation or concentration.
There were no further issues related to history, Mental State Examination, or conclusions in the MAC.

Current Symptoms.
At this interview, Mr Cadman said that he felt that anxiety was his most distressing symptom. His anxiety consisted of tension, irritability and rumination. Occasionally his anxiety can lead to panic like symptoms.
However, as I talked to him, it became evident that he also clearly had a range of depressive symptoms. He described feeling low, withdrawn and avoidant. His motivation and energy are somewhat decreased, although he stated that he felt that he would be able to do more were it not for ongoing difficulties he has with arthritis in his knees. As he was describing his symptoms, he became quite tearful and distressed with difficulty in regaining his composure, which he clearly found embarrassing. He noted that he frequently broke down into tears and could not account for why this occurred. He said that he ‘feels scared, but I don’t know why’.
He continues to have difficulty with sleep with mainly initial insomnia. When he gets to sleep, however, he tends to maintain his sleep, but does usually nap for an hour or two each afternoon. His appetite is limited, although his weight is stable, currently. He gained about 10 to 15 kg when he initially left Serco and has not lost this weight but has not continued to gain weight.
He spends much of his day watching YouTube usually short videos related to his hobbies of fishing and gardening. He is able to maintain reasonable engagement but sometimes becomes distracted and then tends to flick from video to video.
He continues to episodically feel hopeless, mainly as a result of the difficulty he is experiencing in regaining employment. He is not suicidal.
He continues to be easily frustrated and somewhat irritable but stated that he has been better, recently, in managing this with his family and so there has been overall less tension within the family.
Current Treatment.
Mr Cadman’s treatment has not changed since the MAC, dated 19 July 2023. He continues to take desvenlafaxine, 100 mg/day. He has consulted various psychologist in the past but feels they have not been useful in assisting him with his symptoms or impairment and does not wish to undertake further psychological treatment.
He last consulted his psychiatrist, Dr Singh, about one year ago. His general practitioner has asked for a review in the next few months, although no change in treatment is envisaged as far as Mr Cadman is aware. Mr Cadman continues to consult his general practitioner for his various medical disorders, as well as for general support and ongoing review of his Workers Compensation claim. He consults his GP about every 2 to 4 weeks.
Additional history since the original Medical Assessment Certificate was performed.
Following the MAC, Mr Cadman said that he had been approached by his case manager from QBE insurance and was advised that he should again attempt to return to work at Serco. After some negotiation, it was decided that he would return to Serco working five hours/day, three days/week. He returned to work in his substantive position as an asset manager, theoretically, but he was limited in his access to the entirety of the Serco site, and he was also required to reinstate his competencies in various Occupational and Health procedures. This meant that essentially, he spent his working time sitting in front of a computer doing various courses. These courses tended to last up to one hour in time and required a reasonable amount of concentration and focus. He was working with other Asset Managers, although most of them were new to the organisation and he did not know them personally, nevertheless, he managed to cope with the requirement to work in a reasonably social environment. Mr Cadman had previously mentioned during my interview with him, that he rarely went to social events with his wife or other family members because he found these events too anxiety provoking and so I asked him why it was that he could not manage social events, but appeared to cope reasonably well, and with very limited anxiety, with the workplace environment, once he actually was engaged in work. He attributed this to the fact that he felt confident with his work and felt able to manage in the structured and familiar environment of his workplace. He did say however, for the first several days of work, he was near panic before entering the facility and vomited on several occasions, due to his anxiety.
Unfortunately, he felt unable to continue at Serco because he witnessed what he believed was ongoing bullying, by the supervisor, of one of his colleagues, Jamaal, whom he had known from his previous time of employment at Serco. He was so concerned about the bullying that he believed was occurring, that he approached the supervisor, saying that ‘nothing had changed at Serco’. This supervisor was not the supervisor with whom Mr Cadman had had previous difficulties, but nevertheless he felt that the situation was much the same and that this reflected the ongoing culture at Serco. He did not feel that his concerns were taken seriously by the supervisor and so subsequently he left and has not returned to Serco employment. He has now resigned from employment with Serco. As a result of his resignation, he was entitled to payments for ‘personal leave’- that is, leave entitlements that had accumulated during his employment with Serco.
Mr Cadman has not worked since resigning from Serco. He has however continued to attempt to gain further employment and has applied for several jobs through Seek although to date has not received any offers of employment.
Findings on clinical examination
Mr Cadman was seen via teleconference. He had no difficulty managing the application and the quality of the streaming was quite good. Mr Cadman was alone throughout the interview.
Mr Cadman is a 63-year-old man and he appeared to be about his stated age. He had grey hair and a somewhat bushy and unkempt grey beard. He was neatly dressed as far as I could see within the limits of the video screen. He initially related warmly and was quite engaging. He was quite appropriately reactive emotionally. However, once he began outlining his symptoms, he became tearful and distressed and apparently embarrassed by difficulty in controlling his feelings. He struggled to maintain composure for a significant period of time, once he had become tearful. His affect was not flattened, but quite clearly reactive and appropriate. I felt that his tearfulness reflected a considerable amount of grief related to the loss of workplace structure, prestige and financial security that had occurred as a consequence of his injury.
He was not suicidal at this interview.
He did not appear especially anxious, tense or stressed by the interview, aside from his tearfulness.
There was no evidence of hallucinations, delusions or formal thought disorder. He was clearly not psychotic.
His cognitive function was consistent with his level of overall psychological impairment related to his injury, and specifically, there was no evidence to suggest organic contribution to any concentration or focus difficulties that he had.
Diagnosis.
I note that Dr Baker diagnosed Mr Cadman at the time of his interview, with Persistent Depressive disorder with Persistent Major Depressive episode with anxious distress. However, during this interview, and from my examination of Mr Cadman, I believe that his depressive symptoms whilst still present are not significant enough now to meet the criteria of a Major Depressive Disorder. His motivation is reasonable, currently and his energy and drive seem to be limited more by his arthritis and physical difficulties rather than psychological disorder. He did not display anhedonia and his feelings of hopelessness were limited and clearly reactive to specific understandable events. His sleep and appetite were only slightly impaired, and this appeared to be more related to his fluctuating anxiety rather than depression. For these reasons, I believe that his current diagnosis is:
Persistent Depressive Disorder with anxious distress.
Assessment of Employability.
Dr Baker rated Mr Cadman as Class 4 for employability. However, given the fact that Mr Cadman was able to work five hours/day, three days/week for over three weeks without significant symptoms or deterioration in impairment, I believe that this rating is inaccurate. This is further reinforced by the fact that Mr Cadman spends considerable time and effort attempting to gain full-time employment. I am not convinced that Mr Cadman is in fact capable of full-time employment, given his current symptoms and level of impairment, but he is clearly highly motivated to return to work and is certainly capable of working 10 to 15 hours per week in a position that was less stressful and demanding then his previous position. I note that it was planned that he would transition to full-time work had he remained at Serco, according to his general practitioner’s capacity certificate. Certainly, he would have continued in his position at Serco were it not for his perception of bullying of a colleague, which he felt was like the experiences that he previously had undergone. He did not leave Serco because he was not able to cope with the hours of work, the requirements to work within a team, or his capacity to focus and concentrate as required to meet the workplace demands. For all of these reasons and given the symptomatology that I have described at this interview and the associated impairment, I believe that he should be rated Class 3 for employability.”

The Appeal Panel has considered and adopted the report and findings of Medical Assessor Blom. The Appeal Panel agrees with the assessment made by Medical Assessor Blom in relation to the PIRS “Employability” category. There is no basis on which to interfere with the MA’s assessment in relation to the other PIRS categories.
For these reasons, the Appeal Panel has determined that the MAC issued on 19 July 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:	W988/23
Applicant:	Kieran Cadman
Respondent:	Serco Australia Pty Ltd

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

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor John J Baker and issues this new Medical Assessment Certificate as to the matters set out in the table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Psychiatric and psychological disorders	24 March 2021 (deemed)	Chapter 11 pages 60 – 68	15%	1/10^th	14%
Total % WPI (the Combined Table values of all sub-totals)					14%

[2023] NSWPICMP 697

21 December 2023