State of New South Wales (Ambulance Service of NSW) v Martin

DETERMINATION OF APPEAL PANEL
CITATION:	State of New South Wales (Ambulance Service of NSW) v Martin [2023] NSWPICMP 642
APPELLANT:	State of New South Wales (Ambulance Service of NSW)
RESPONDENT:	James Robert Martin
APPEAL PANEL
MEMBER:	Jane Peacock
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	5 December 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant alleged error in the assessment under one of the categories under the psychiatric impairment rating scale (PIRS) namely, concentration, persistence and pace; the rating of class 3 was open to the Medical Assessor (MA) and the Panel could discern no error; appellant also alleged error in the failure to make deduction under section 323 in respect of a secondary psychological injury; a deduction can only be made under section 323 if the pre-existing condition had contributed to the overall level of permanent impairment assessed; here the primary psychological injury of a persistent depressive disorder and post-traumatic stress disorder explains the current impairments rated under the PIRS scale.; the post-traumatic stress disorder can properly on the evidence be understood as a condition of delayed onset, where the precipitating events were much earlier and occurred at the same time of the earlier secondary psychological injury, and resulted in delayed symptoms, the severity of which are consistent with the current impairments assessed under the PIRS scale; accordingly there is no basis upon which to make a section 323 deduction and the Appeal Panel can discern no error in the failure by the MA to do so; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 19 July 2023 the employer The State of New South Wales (Ambulance Service of NSW) (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 22 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):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
The appellant did not request that the worker undergo a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could not find error. Absent error, the Appeal Panel has no power to require a re-examination. The Appeal Panel cannot examine the worker to determine whether a ground of appeal has been made out: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792.

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

It is noted that the delegate’s decision refers to the respondent employer not having filed a notice of opposition. The Appeal Panel notes there is a notice of opposition included with the papers referred to the Appeal Panel.
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The matter was referred to the Medical Assessor for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act):
· Date of injury: 20 September 2021 - deemed
· Body parts/systems referred: Psychiatric/psychological disorder
Method of assessment: Whole person impairment”
The Medical Assessor issued a MAC certifying as follows:

Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides	% WPI	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)
1. Psychiatric injury	20 September 2021 - deemed	Chapter 11, page 54	Chapter 14, pg 361-365	17	0	17
2.
3.
4.
5.
6.
Total % WPI (the Combined Table values of all sub-totals)					17

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

“Table 11.8: PIRS Rating Form

Name	James Robert Martin	Claim reference number (if known)	W7845/22
DOB	xxxx	Age at time of injury	50 years old
Date of Injury	20 September 2021 - deemed	Occupation at time of injury	Paramedic
Date of Assessment	19 June 2023	Marital Status before injury	De Facto

Psychiatric diagnoses

1. Persistent depressive disorder

2. Post-traumatic stress disorder

3. Alcohol use disorder

Psychiatric treatment

Is impairment permanent?

Yes

PIRS Category

Class

Reason for Decision

Self Care and personal hygiene

Dr Abdal Khan reported his self-care was = 2, showers and brushes teeth inconsistently, often with reduced motivation, prepares basic meals and sometimes skips meals and able to live independently.

At home, he doesn’t clean or cook. His partner does the cooking and cleaning. He showers every day usually, and he said he wears the same clothes most of the time depending on how sweaty they are. He doesn’t do any housework. He sometimes goes to the local convenience shop, and he can eat ready-made meals or snacks in Sydney and order take-out.

Even with any deficiencies in this domain, he has retained sufficient skills to self-care independently without support, so he has mild impairment.

Social and recreational activities

Dr Abdal Khan reported social and recreational activities = 3, no longer engages in social and recreational activities.

He goes to the movie periodically with his partner, and once a week he has a buffet outside with his partner. He doesn’t attend any social gatherings now.

He has one friend in Australia, one friend in Thailand whom he sees weekly and they have a few drinks together, and one friend from England who visits Thailand periodically, and sometimes they go to the local pool to relax and have a few drinks.

As he has not engaged in social gatherings independently, and his social engagements are usually limited to 1 friend or with his partner, he has moderate impairment.

Travel

Dr Abdal Khan reported Travel = 2, able to travel to familiar places, with anxiety and avoidance.

He doesn’t drive in Thailand and he uses a ride-share called Grab, and usually to the local area for the local eating and movies, but usually confined to the local area. He doesn’t have any need to travel further than that. He has not driven for a long time. He has travelled by plane alone to Sydney and on his return to Thailand, and he said he coped “ok”, and he said he had “no” problems.

He can travel overseas on a plane without problem, and he travels in the local area in Thailand as there is no need to travel further than that, so he has no impairment.

Social functioning

Dr Abdal Khan reported Social functioning = 3, with de facto relationship ending in 2008, re-married in 2012 and ended in 2015, and in a new relationship in 2019 with current partner living overseas, and lost all close friendships.

He has been with his partner for 4 years. Their relationship “could be better”, as he said she doesn’t understand his behaviour, and he struggles to explain it to her about how he feels and he sometimes has outbursts over small things. They have a lot of fights and arguments, but without physical violence. He sometimes doesn’t spend time with her when he is in Australia, and he had returned to Australia during COVID for 2 years, but they hadn’t separated in their relationship and maintained it long-distance in that period of time. He has a son and a daughter in Sydney, and he is in contact with them once a month or every few months.

There has been some strain in the relationship with his partner, but no periods of separation of their relationship or violence, and they were able to maintain it long-distance during COVID, which speaks of the strength of this relationship, and he has maintained contact with his children and some friends. Hence, he has mild impairment.

Concentration, persistence and pace

Dr Abdal Khan reported Concentration, persistence and pace = 3, struggles to maintain attention and concentration for extended periods, with difficulties reading and impaired memory.

His concentration has been variable, and he said it doesn’t interfere with his day to daytime. He has not been able to read much, but he generally doesn’t read in the past. He watches movies mainly, and Netflix, and sometimes he zones out sometimes. His energy has been not too high, and he doesn’t do much, and he is not motivated to do anything.

He was alert and appeared grossly cognitively intact, with mild difficulties of recall regarding specific details of symptoms and treatment.

Given his lack of focus during movies, and occasional mild recall, he may have moderate impairment.

Employability

Dr Abdal Khan reported Employability = 5, no capacity for employment.

He has not worked since early 2011. Since then, he has not tried to return to work, though he had applied for multiple jobs. He had not considered doing alternative work, due to his back injury, and mental state, as he finds it difficult to focus on things, has daytime fatigue and trouble sleeping. He has not tried to re-train or study. He has not undertaken any volunteer work.

He has not worked since the injury, and there is no evidence of his improved capacity to work, so he has total impairment.

Score

Median Class

=2.5=3

Aggregate Score Impairment

Total

The employer appealed. The appeal concerned only the assessments made under one of the PIRS categories, namely concentration, persistence and pace and the failure to make a deduction under s 323.
In summary the appellant submitted that the Medical Assessor erred in his assessment under one of the PIRS categories, namely concentration, persistence and pace for failures that included the following:
(a) when he assessed a Class 3 for concentration, persistence and pace and a Class 2 should have been assessed, and
(b) A deduction should have been made under s 323 to take account of the pre-existing secondary psychological injury.
In summary, the worker employer, Mr James Robert Martin (the respondent), submitted that the Medical Assessor did not err and nor did he make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. He is however not bound to follow the opinions of the IMEs whose reports are in evidence including the IME opinion upon which the worker relies to bring the claim for permanent impairment. Rather, the Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
The Medical Assessor took a detailed history which was broadly consistent with the other evidence before him:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:
He said that working as a paramedic, he would do a lot of overtime. He had sustained two back injuries, which he attributed to repetitive strain, as they can’t practice safe lifting all the time, due to the nature of the role.
I asked what the nature of his psychiatric injury was. He said that there was bullying at work, and he kept himself too busy before the back injury to think about a lot of things. He said he started to experience nightmares after he started not working on the road, and was sat in the office doing data entry. He said the bullying included being told to fix the painting in the ambulance, whereas the other officers were not asked to do so. He said that the nightmares he was experiencing were related to jobs he had attended throughout his time as a paramedic, though he would not recall the full details, and he would have “visions” of people that he had seen dead in front of him.
He said those symptoms started around just before he was medically retired in 2011. The symptoms included nightmares, visions, trouble sleeping, anxiety, thoughts of talking to someone he knows that he has no issues with and he has a thought of punching them in the face. He was feeling depressed. He was also feeling suicidal at times, and he denied any previous suicide attempts, and he denied any self-harming.
He had started to escalate with his alcohol use, to daily use and it started 1-2 drinks of Bundaberg rum in a can, and this escalated up to half a carton of Bundaberg rum in one evening. This has been on and off since the subject injury, until now. He last drank like that a year ago. He denied any substance use.
He was on oxycontin and mersyndol forte, and he denied being on them more than prescribed.
He had psychological therapy, which he found “good” to talk to someone, but he didn’t think it reduced his symptoms.
He had not seen a psychiatrist. His GP had prescribed him various antidepressants, but he couldn’t recall all their names, and the last one he was prescribed was Lexapro. He had found that helpful with reducing him being so emotional.
Present treatment:
He is currently on simple analgesia for his pain, including voltaren rapid. He is not on Lexapro anymore.
He is not seeing a psychologist, and has not seen one for 2 years.
Present symptoms:
His mood has been generally depressed occasionally. He has issues with initial insomnia and middle insomnia, and he sleeps up to 4 hours at best, and he sleeps in the daytime to catch up. His appetite has been variable, sometimes he doesn’t eat much, and other times he binge-eats. He has difficulties putting on shoes and shorts and socks, due to his back pain. He said he doesn’t do anything enjoyable, and I put to him that he goes out regularly for movies and buffet, which he agreed he enjoys doing. He feels hopeless sometimes. He denied any suicidal ideations recently, and he is enjoying life as much as he can. He doesn’t feel tense or anxious a lot.
His concentration has been variable, and he said it doesn’t interfere with his day to daytime. He has not been able to read much, but he generally doesn’t read in the past. He watches movies mainly, and Netflix, and sometimes he zones out sometimes. His energy has been not too high, and he doesn’t do much, and he is not motivated to do anything.
He said he doesn’t have memories come up often in Thailand, and once every few days, and he tries not to think about. He has nightmares of the incidents from work once or twice a week, and they wake him up. He doesn’t remember much of the nightmares, though they usually start as a pleasant dream, and they tend to end with the horrid themes like opening a cupboard and finding a dead hanging girl. The memories are of similar things. He has triggers including being in Australia and hearing ambulance sirens, seeing ambulances, which provoke emotional and physiological responses. He feels that he cannot trust anyone. He blames his employer for not offering debriefing after a traumatic event. He has occasional feelings of anger and guilt. He has diminished interest in his previous activities. He finds it hard to connect with others and finds it harder to connect with people. He has been more easily irritable, and has frequent verbal outbursts every day. He denied any reckless behaviour. He has been more hypervigilant when he goes anywhere, such as at the movies sitting at the back or eating at a location at the edge from people. He denied any dissociative experiences.
He now drinks alcohol once a week, up to 4 drinks. He is not currently on oxycontin and mersyndol forte for 12 months, as he cannot access them.
Details of any previous or subsequent accidents, injuries or condition:
He denied having any pre-existing psychiatric conditions prior to the subject injury, which included any instances of depression or anxiety symptoms. He said that his back injury at 2008 included being on light duties, at reduced hours, and he had been on an antidepressant in 2009 at some point for anxiety and depression by his GP, though he said he told his GP he had PTSD symptoms at the time.
Prior to the subject injury, he denied smoking and he would drink alcohol on some weekends, up to a few drinks, and no substance use.
He denied any relevant family history.
He was born in Moree, and he said his childhood was good, and his father worked on the farm and his mother was a nanny. He was able to make friends well at school, and he denied any significant bullying, and he studied until the school leaving certificate.
Prior to 2011, he usually enjoyed fishing, camping, 4-wheel driving, archery, and he would undertake those activities usually on weekends, or depending on his availability. He had a lot of friends, though most of them lived far away back in his hometown. After his back injury, he was not able to return to undertaking his usual activities, and he was able to maintain contact with his friends when he was traveling back to his hometown.
He was with his ex-wife for 14 years, and they separated around 2000. He said he had a close relationship with his children, until they just drifted apart from the back injury.
General health:
He had a back injury in 2006, and he was put on light duties for six months, and at the end of this he had chiropractic treatment and was able to return to work. 18 months later, he had re-injured his back, which was deemed a new injury, and he also had a hernia, for which he had surgery.
Work history including previous work history if relevant:
Since leaving school, he entered the workforce.
He has worked at KFC, the service station, as a drover, farm work, tractor driving, ride attendant at Dream World.
He had trained as an enrolled nurse and worked for 12 months in a training program, and he did a few shifts casually.
He has worked at Australia post as a parcel delivery officer.
He started working as a paramedic in 1996, until 2011.
He denied any previous Workcover claims, and he denied any previous work performance issues. I clarified if he was on WorkCover for his back injury, and he confirmed he was on WorkCover for his back injury for six months, before returning to work, and again in 2008 for his second back injury.
He has not worked since early 2011. Since then, he has not tried to return to work, though he had applied for multiple jobs. He had not considered doing alternative work, due to his back injury, and mental state, as he finds it difficult to focus on things, has daytime fatigue and trouble sleeping. He has not tried to re-train or study. He has not undertaken any volunteer work.
Social activities/ADL:
He initially said he currently lives with his sister in Brisbane sometimes, and he also sleep in a caravan in Sydney. He later said he is currently overseas in Thailand with his Laotian partner for the past six months.
He has been with his partner for 4 years. Their relationship “could be better”, as he said she doesn’t understand his behaviour, and he struggles to explain it to her about how he feels and he sometimes has outbursts over small things. They have a lot of fights and arguments, but without physical violence. He sometimes doesn’t spend time with her when he is in Australia, and he had returned to Australia during COVID for 2 years, but they hadn’t separated in their relationship and maintained it long-distance in that period of time.
He is the youngest of 8 siblings, and he is close to some of them, and some of them have passed away. He has a son and a daughter in Sydney, and he is in contact with them once a month or every few months.
He has one friend in Australia though he has not seen him for a few years, and he has one in Thailand whom he sees weekly and they have a few drinks together, and one from England who visits Thailand periodically, and sometimes they go to the local pool to relax and have a few drinks.
He said he has previously enjoyed fishing, but not for a while. I asked what he enjoyed doing in Thailand, and he said he doesn’t enjoy much. He stays at home, goes to the movie periodically with his partner, and once a week he has a buffet outside with his partner, which he said is nice. He doesn’t do much exercise or sports, but he does ‘self-managed hydrotherapy’ in the pool, which he does irregularly, depending on how many people there are. He doesn’t attend any social gatherings now.
At home, he doesn’t clean or cook. His partner does the cooking and cleaning. He showers every day usually, and he said he wears the same clothes most of the time depending on how sweaty they are. He doesn’t do any housework. He pays for the shopping, but he said he doesn’t do any shopping. He then said he sometimes goes to the local convenience shop, and when he’s in Sydney he visits the local IGA for shopping, which he does alone, and he buys things that “you can eat out of the packet”, and he eats ready-made meals or snacks in Sydney. He orders Thai food once a week.
He doesn’t drive in Thailand and he uses a ride-share called Grab, and usually to the local area for the local eating and movies, but usually confined to the local area. He doesn’t have any need to travel further than that. He has not driven for a long time. He has travelled by plane alone to Sydney and on his return to Thailand, and he said he coped “ok”, and he said he had “no” problems.

The Medical Assessor conducted a mental state examination and recorded his findings as follows:
“He presented as a casually dressed man, with a beanie and glasses, and mildly dishevelled man. He had an overweight build and appeared to be his stated age. He engaged cordially in the assessment and provided relevant answers to questions asked, spontaneously supplying detail.
He told me he was feeling depressed and anxious occasionally, and easily irritable. He displayed limited emotional reactivity during the interview and appeared predominantly dysphoric.
He spoke articulately and in a logical sequence most of the time, without much prompting, and was occasionally overinclusive and spoke in a monotonous tone.
He had ongoing complaints of pain from his back.
He had occasional recollections of his past experiences from his work as a paramedic. He had some pessimistic about his future. He denied any suicidal ideations.
He was alert and appeared grossly cognitively intact, with mild difficulties of recall regarding specific details of symptoms and treatment.”
The Medical Assessor had regard to the special investigations as follows:
“MADRS = 20 (moderate depression)”
The Medical Assessor made a diagnosis as follows:
“summary of injuries and diagnoses:
He has:
Ø Persistent depressive disorder
Ø Post-traumatic stress disorder
Ø Alcohol use disorder, in remission
· consistency of presentation
There were mild inconsistencies, which were addressed in the course of the interview and detailed in the body of the report above, but on the whole there were no major discrepancies in his narrative.”
The Medical Assessor explained his reasons for assessment under each of the PIRS categories as set out in the table above. The assessment in the category of concentration, persistence and pace is the subject of complaint on appeal.
The Medical Assessor had regard to the other evidence that was before him and made brief comments as follows:
“Report by Dr Graham George, dated 24 July 2009. The diagnosis was alcohol dependence/Alcohol abuse, pain disorder.
Report by Dr Abdal Khan, dated 4 August 2021. He lived alone in Kingsford, and has not worked since his employment as a paramedic. He has been seeing his GP, psychological therapy, and is on escitalopram 10mg and diazepam 5mg tds, zolpidem 5mg prn, oxycontin 4mg bd, mersyndol forte. He was diagnosed with Post-traumatic stress disorder, major depressive disorder. He consumed alcohol infrequently. His self-care was = 2, showers and brushes teeth inconsistently, often with reduced motivation, prepares basic meals and sometimes skips meals and able to live independently. Social and recreational activities = 3, no longer engages in social and recreational activities. Travel = 2, able to travel to familiar places, with anxiety and avoidance. Social functioning = 3, with de facto relationship ending in 2008, re-married in 2012 and ended in 2015, and in a new relationship in 2019 with current partner living overseas, and lost all close friendships. Concentration, persistence and pace = 3, struggles to maintain attention and concentration for extended periods, with difficulties reading and impaired memory. Employability = 5, no capacity for employment. WPI 22%, with no pre-existing or treatment adjustments.
Report by Dr Graham George dated 17 January 2022. He was in a de facto relationship of 2 years, lived in Rockdale alone, with a few friends living with him for a few months, and he has a son and daughter whom he maintained contact with. He may have been on antidepressants in 2010. He was diagnosed with opioid dependence and benzodiazepine dependence.
Report by Peter Tingle, dated 13 May 2022. He was referred following 2 lower back injuries from 2006 and 2008 from his work as an ambulance officer and retired in 2011, and he has had psychological treatment for adjustment to changed life circumstances of his injury, with a diagnosis of adjustment disorder with anxiety and depressed mood. He was re-referred in December 2020 due to an exacerbation of anxiety and depression and activation of trauma symptoms, and he had a diagnosis of Adjustment disorder with anxiety and depressed mood at the time, and had 6 sessions of treatment, to which he responded. He did not meet the diagnostic criteria for PTSD, and there has been previous diagnoses of Alcohol use disorder, substance use disorder, major depressive disorder and adjustment disorder.
Statement by Mr James Martin, dated 18 August 2022. He alleged developing PTSD from his occupational exposure to multiple traumatic experiences, and was on seeing his GP and psychologist, and treated with Lexapro 10mg, Oxycotton, mersyndol Forte, Vallium 5mg tds, Stilnox.
The Medical Assessor noted:
“My opinion provides a moderately reduced level of impairment compared to Dr Khan, with direct comparisons for each domain of the PIRS and my reasoning to be found in the PIRS table. I note my differing opinion of the diagnosis to Dr Graham George.
The Medical Assessor has had clear regard to the other opinions that were in evidence before him.
The Medical Assessor considered that there was no deductible proportion, noting:
“Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? He denied any pre-existing impairment. There is no conflicting evidence of this.”
The appellant complains that the Medical Assessor has erred in respect of his assessment of concentration, persistence and pace as Class 3. The appellant says that Class 2 should have been assessed.
The Panel cannot interfere with the ratings ascribed by the Medical Assessor absent error by the Medical Assessor. The Panel cannot interfere with the rating because opinions might differ as to the best fit in this category. There must be a demonstrable error or assessment on the basis of incorrect criteria.
In respect of concentration, persistence and pace, Table 11.5 of the Guides provides as follows:

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

The Medical Assessor assessed Class 3 or moderate impairment with the following reasoning:
“His concentration has been variable, and he said it doesn’t interfere with his day to daytime. He has not been able to read much, but he generally doesn’t read in the past. He watches movies mainly, and Netflix, and sometimes he zones out sometimes. His energy has been not too high, and he doesn’t do much, and he is not motivated to do anything.
He was alert and appeared grossly cognitively intact, with mild difficulties of recall regarding specific details of symptoms and treatment.”
The Medical Assessor noted the ranking of Class 3 by Dr Khan, the IME qualified on behalf of the worker as follows:
“Dr Abdal Khan reported Concentration, persistence and pace = 3, struggles to maintain attention and concentration for extended periods, with difficulties reading and impaired memory.”
The appellant submitted that a mild impairment or Class 2 should have been assessed. The appellant submitted that the assessment of Class 3 has been made on the basis of incorrect criteria.
The Medical Assessor has to make an independent assessment on the day of examination using his clinical expertise, and noted observable cognitive difficulties, as well as impairment being both self-reported and in the evidence.
The Appeal Panel can discern no error in the rating of a moderate impairment. The Medical Assessor is entitled to form his own clinical judgment on the day of assessment and having had due regard to the other medical opinions before him. The assessment of Class 3 accords with the criteria in the Guidelines and the Appeal Panel cannot interfere because reasonable minds might differ. The Appeal Panel can discern no error.
In respect of the error alleged in the failure by the Medical Assessor to make a deduction under s 323, the appellant submitted as follows:
“(a) the medical evidence made available to the medical assessor provided a detailed history of the impact the respondent worker’s back injury had on his mental health.
(b) it5 was accepted by both parties to the proceedings that the respondent worker had a concurrent, pre-existing psychological condition secondary to his accepted back injury.
(c) the medical assessor reported the respondent worker “denied having any pre-existing psychiatric conditions prior to the subject injury’ however he reported ‘he had been on an antidepressant in 2009 at some point for anxiety and depression by his GP and informed ‘his GP he had PTSD symptoms at the time’.
(d) the medical assessor reported the respondent worker denied any pre-existing impairment and concluded there was ‘no conflicting evidence on this’ notwithstanding the history of a secondary psychological injury as a result of a back injury.
(e)The medical assessor concluded under there was no previous injury, pre-existing condition or abnormality that required a proportion of the current impairment to be deducted, notwithstanding the concession the respondent worker suffered a concurrent pre-existing psychological condition, secondary to his accepted back injury (as noted in the referral to the medical assessor).
(f) notwithstanding the accepted pre-existing psychological condition, the medical assessor did not provide a deduction for the pre-existing condition nor did he even consider the operation of s323 of the 1998 Act.”
Whilst the parties concede the presence of a secondary psychological injury as a result of back pain, all of the available evidence supports the approach of the Medical Assessor in making no deduction. A deduction can only be made under s 323 if the pre-existing condition had contributed to the overall level of permanent impairment assessed. Here the primary psychological injury of a persistent depressive disorder and post-traumatic stress disorder explains the current impairments rated under the PIRS scale. The post-traumatic stress disorder can properly on the evidence be understood as a condition of delayed onset, where the precipitating events were much earlier and occurred at the same time of the earlier secondary psychological injury, and resulted in delayed symptoms, the severity of which are consistent with the current impairments assessed under the PIRS scale. Accordingly there is no basis upon which to make a s 323 deduction and the Appeal Panel can discern no error in the failure by the Medical Assessor to do so.
For these reasons, the Appeal Panel has determined that the MAC issued on
22 June 2023 should be confirmed.

[2023] NSWPICMP 642

5 December 2023