State of New South Wales (Fire and Rescue) v Findeis

DETERMINATION OF APPEAL PANEL
CITATION:	State of New South Wales (Fire and Rescue) v Findeis [2025] NSWPICMP 580
APPELLANT:	State of New South Wales (Fire & Rescue NSW)
RESPONDENT:	Marina Findeis
APPEAL PANEL
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Graham Blom
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	7 August 2025
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); complex matter; appellant submits that the Medical Assessor (MA) erred in the assessment of the addition for treatment effects, failed to provide adequate reasons, failed to consider relevant evidence when assessing the section 323 deduction, did not appropriately determine the section 323 deduction and has not appropriately determined the deduction for the secondary psychological injury; re-examination required; joint examination arranged; Held – Appeal Panel found that there should be no deduction for pre-existing disorder; Appeal Panel does not believe a deduction for secondary psychiatric injury is appropriate; disregarded the impacts of pain and disability on her psychiatric impairment rating scale (PIRS) ratings; MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 January 2025, State of NSW (Fire & Rescue NSW) (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, who issued a Medical Assessment Certificate (MAC) on 18 December 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 the worker should undergo a further medical examination because we determined that the Medical Assessor may have erred with respect to his treatment of the two injury dates, and in his determination regarding a secondary psychological condition resulting from separate physical injuries.

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.

Further medical examination

Because of the complexity of the matters raised on appeal, Medical Assessors Blom and Hong conducted a joint examination of the worker on 17 July 2025 and reported to the Appeal Panel.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The Medical Assessor was asked to make the following assessments:
(a)    post-traumatic stress disorder injury for the period of 1992 to 18 May 2023 (date of lump sum claim);
(b)    depression and anxiety from victimisation and harassment with date of injury
6 October 2000, and
(c)    assessment to consider and deduct the secondary psychological injury resulting from her physical injuries.
In summary, the appellant submits that the Medical Assessor erred in the following respects:
(a)    the assessment of the addition for treatment effects;
(b)    the Medical Assessor has failed to provide adequate reasons and has failed to consider relevant evidence when assessing the s 323 deduction;
(c)    the Medical Assessor did not appropriately determine the s 323 deduction;
(d)    the Medical Assessor has not appropriately determined the deduction for the secondary psychological injury;
(e)    the Medical Assessor has misunderstood, misapplied or not considered the evidence. His whole person impairment (WPI) assessment of one of the categories of the psychiatric impairment rating scale (PIRS), namely Concentration, Persistence and Pace, and failed to apply any deduction for pre-existing condition or abnormality under s 323 of the 1998 Act.
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 WPI in respect of two injuries, namely “PTSD” for the period of 1992 to 18 May 2023 (deemed) and depression and anxiety from victimisation and harassment with a date of injury of 6 October 2000.
The referral also requested an assessment to consider and deduct the secondary psychological injury resulting from her physical injuries.
The Medical Assessor obtained the following history:
“Ms Findeis (the claimant) was a single woman aged 64 years at the time of this assessment. She provided a complex psychiatric and physical injury history. She stated the following at the time of this assessment:
The claimant was employed as a Retained Firefighter from 1 December 1992 where she was initially assigned to Turvey Park Fire Station.
The claimant reported that she then completed a period at Dunheved Fire Station (in the suburb of St Marys) from April 1994.
The claimant then returned to Dunheved Fire Station until ceasing work in October 2014.
The claimant was retired from her employment as a Retained Firefighter on 19 February 2015.
The claimant’s primary psychological injury included two time points of identified injury amongst many incidents, events and periods of treatment. The psychological symptoms were scattered throughout the claimant’s history and were assessed over the entire career of the claimant, and subsequently life, including all periods as documented by others and clarified at the time of this assessment.
It was not possible to divide the first and second injuries as referred, as the second injury first presented and subsequently represented many years apart in keeping with the known natural history of recurrent episodes of major depressive disorder whilst the accumulation of other symptoms and conditions presented.
The claimant stated that she first began to have psychological symptoms after she had been held down, by her co-worker, against her will on the ground at a fire station whilst she was working. He verbally threatened to sexually assault her. She said she was about 34 years at the time and that she was the only female firefighter at the station. The claimant would often find that the crutch of her over-trousers cut into the shape of an ‘X’ and the inner lining of her protective fire coat destroyed, tampered with or cut through.
The claimant reported that the next incident was when the same man again held her down on the ground whilst she was at work in the fire station. She was 35 years of age at this time in 1995. She was fearful of being sexually assaulted as the male firefighter again attempted to get his co-workers to participate in the bullying and harassment. She was held up against the wall by her throat. She said she became a union representative and began working to protect other female firefighters. She said she was the only retained firefighter whilst working at the station where she was deployed. She decided to apply for an apprehended violence order against the co-worker who had physically assaulted her on the ground. She organised for a disciplinary hearing and the offending co-worker resigned.
In 2007 she attended a motor accident where the driver and passenger perished in a horrific fire scene. She reported that the image of the severely burnt man horrifies and haunts her. She said that she had also attended a ‘meth lab’ that exploded and this also affects her mental state. The man who was attempting to distil the illicit product was severely burnt from the explosion. She became despairing as she recalled that he was smoking a cigarette inside the lab as he did not understand how dangerous his actions were.
The claimant was bullied and harassed with her employer never providing her with women’s fitted fire boots, and this caused her feet, ankles and knees to be injured by the service never sourcing correct footwear for her. The claimant reported that she was the only woman working at her workplace for this employer.
The claimant reported that she continued to be bullied and harassed by station commanders and superintendents after she acted against her co-worker. She was a retained firefighter and relied on being called to service for her to have hours of service paid. She said she was never permitted to be a permanent fire-fighter and so was never ‘on duty.’ She said the station she was deployed to was mainly very busy and she was able to work her Coles casual job filling shelves as well as her retained fire-fighter’s job. She said she continued to work in her role as a firefighter. She made a close friend, Andy. They worked at the same fire station for many years. They cohabitated in the same house. She reported that they were never in an intimate relationship however they ‘had each other’s back’ and she was able to work as a fire fighter despite the bullying and harassment.
The claimant said she was diagnosed as suffering from depression. She said she was referred to a clinical psychologist (Stephen Hinkleman) by her general practitioner (Dr Cameron) in about mid-1998. She was prescribed Dothep (a tricyclic antidepressant) 75mg at night for about 2½ years. She received cognitive behavioural therapy from the psychologist. She was not admitted to a psychiatric hospital. She was not treated by a psychiatrist. Her condition went into full remission.
The claimant returned to work as a firefighter. She remained working from 2002 until about 2014. The claimant continued to be exposed to many different stressors and traumatic events during this period of employment as a retained firefighter. She said she continued to have symptoms related to her trauma with her having nightmares, startling from sleep and difficulty initiating sleep. She reported she would drink alcohol in the hope of falling asleep. The claimant stated that the most traumatic incident she had experienced during her career as a firefighter including all the bullying, harassment, physical assault and threats of sexual assault.
The claimant said that two speeding cars were travelling on the Great Western Highway (GWH). The speed limit in the zone where the accident occurred was 80kph. The cars were travelling at about 200kph when at the intersection of Charles Hackett Drive and GWH, St Marys, the two cars crashed into a third car driven by an elderly woman. The woman’s car was severely damaged, she was trapped in the car by her feet. She died at the scene of the accident. y damaged, she was trapped in the car by her feet. She died at the accident scene. The coroner’s team arrived to collect the human remains from the accident scene. The coroner found that there was a passenger in the car, a deceased elderly man. His body had been more severely injured than driver’s body. A lot of the man’s body was without skin. Parts of his body had been smeared all over the road. The claimant reported an immediate sense of shock and horror when she realised that she and the other first responder team members were treading all of the male driver’s remains that were spread over the highway. The claimant was severely disturbed and felt immediately nauseous and sickened by the motor accident scene.
The claimant said she attended the antidiscrimination board for a complaint she had lodged regarding her employer’s behaviour towards her. Whilst going through this distressing hearing she began to experience initial insomnia, distressing intrusive memories and depressive ruminations about the nature of the accident. She could not commence sleep and would ruminate about the motor accident. She developed flashbacks of the severely burnt .and flayed man’s remains. She continues to experience visually intrusive memories (flashbacks) of her first sighting the horrific burns to the man’s body and flesh. She used her cognitive behavioural skill of avoiding thinking about the motor accident. She said nothing was resolved from the antidiscrimination board hearing. She continued to perform her duties.
The claimant’s mental state deteriorated. She tried to use cognitive behaviour skills and avoid thinking about the accident. She increased her consumption of alcohol to 8 standard drinks to induce sleep. The claimant continued to experience flashbacks involving visual imagery of the severely burnt man. She explained that she attempted to avoid thinking about this incident as this had assisted her in the past regarding her bullying and harassment. This cognitive strategy worked for symptom control, and she continued working.
The claimant reported that her posttraumatic stress disorder with co-existent major depressive disorder recurrent episode re-presented after she had attended the Emu Plains Caravan Park fire. She reported that at the same time her knees became more painful as she was working on uneven ground. She stated her priority was to have her bilateral knees and ankle injuries treated as her pain was predominantly related to these areas.
By 25 October 2014 the claimant was stood down from her work as the pain in her legs was too great for her to tolerate the physical demands of her role. She had suffered from a relapse of her major depressive disorder and the presentation of her post traumatic stress disorder symptoms was becoming more prominent.
The claimant was officially terminated from her employment in February 2015. She said that in November 2014 her housemate and best friend died. By the date of this assessment the claimant was not grieving for the death of this friend or the other deaths within her extended family or friendship circle.
The claimant reported that she had stopped work with Coles as her physical condition had not enabled her to work in this physical role either. She applied for a Centrelink Job Start allowance. She had not been successful in relation to this Australian Government Support.
The claimant’s post traumatic stress disorder and a recurrent episode of major depressive disorder increased in severity during 2015 with her being referred by her general practitioner to Ms Wade, a psychologist, Dr Lim and various other psychiatrists and physicians attempted to improve her mental health and associated poor sleep. Various antidepressant medications were prescribed that included mirtazapine, escitalopram, and sertraline. She reported that she remained in treatment with her psychologist and psychiatrist Dr Khan. Dr Khan provided motivational counselling regarding the claimant’s consumption of alcohol. The claimant reduced her consumption of alcohol and at the time of this assessment was in remission. The claimant was not referred for repetitive transcranial magnetic stimulation, Esketamine therapy or inpatient treatment for her psychiatric conditions.
The claimant’s physical conditions continued to be treated. She was treated with physiotherapy to assist with her neck, back, knees and ankles. She said that in 2018 she had a left knee replacement. She reported other treatments including non-steroidal anti-inflammatory medications such as Celebrex to treat the osteoarthritic changes in her knees, ankles, back and neck. She was also provided with a limited supply of Panadeine Forte. She was never referred to a pain clinic.”
The Medical Assessor then set out in considerable detail the respondent’s symptoms of post-traumatic stress disorder, major depressive disorder and alcohol use disorder: which we do not intend to repeat here.
He then set out details of her treatment regime and repeated, to some extent, her various symptoms.
He added:
“The claimant said she was experiencing less pain since the left knee replacement. She said she was expecting to receive a right knee replacement however she was not expecting to have this surgery within the next three years, as she was coping and her surgeon was seeking to delay the need for another major operation.”
When asked to provide “Details of any previous or subsequent accidents, injuries or condition” he said:
“The claimant reported she did not have a history of psychological or psychiatric conditions prior to this primary psychological injury. The claimant said that she had three motor accidents: The claimant reported that her first motor accident was in 1994. She injured her left ankle and received physiotherapy for this injury. She reported the injury at the time of her physical examination to work as a firefighter and was not excluded from service due to this injury. The second motor accident was in 1995 with a third accident in 1996. She said neither of these motor accidents caused the claimant any permanent injury or impairment.”
The Medical Assessor then set out details of the impact of the injuries on her social activities and activities of daily living (ADL’s) as follows:
“The claimant reported she was the second child of a three-sibling family. Her father worked as a rigger. He died demolishing wheat storage silos at Newcastle when the claimant was about 10 years of age. The claimant reported that she had one elder and one younger sister to this union. Her mother re-partnered and had two sons to her second mother is now 97 years of age. Her mother lives in Melbourne Victoria and is independently living in her own home with the support of her sisters. The claimant reported she was not exposed to childhood sexual or physical trauma, or neglect. She said her family was restricted in resources and that her mother made the best of a difficult situation after the death of her father. The claimant reported that she had a good relationship with her mother’s second partner.
The claimant reported that she [lived] alone in her own rented home. The claimant was independent in her self-care and personal hygiene. She did not have any carers attending her home. The claimant was able to shop at her local supermarket. She was able to maintain her own washing of clothes. She was reliant on prepared food from the supermarket, as she had lost interest in her nutrition and cooking. Her nutrition was poor. She had increased in weight. She was unkempt and had not washed, cut,
coloured or brushed her hair. She would shower about 3 times each week. She was assessed as having a mild impairment for self-care and personal hygiene.
The claimant did not garden and did not do heavy cleaning as she would experience pain and physical restriction from her physical injuries. In compliance with guidelines:
1.12 AMA5 Chapter 18, on pain is excluded entirely at the present time. Conditions associated with chronic pain should be assessed on the basis of the underlying diagnosed condition, and not on the basis of the chronic pain. Where pain is commonly associated with a condition, an allowance is made in the degree of impairment assigned in the Guidelines. Complex regional pain syndrome should be assessed in accordance with Chapter 17 of the Guidelines. 1.19 The exception to this rule is in the case of psychiatric or psychological injuries. Where applicable, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from any physical injuries arising out of the same incident. The results of the two assessments cannot be combined.
1.22 A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work-related condition (eg depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in paragraph 1.19, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined.
11.4 The impairment rating must be based upon a psychiatric diagnosis (according to a recognised diagnostic system) and the report must specify the diagnostic criteria upon which the diagnosis is based. Impairment arising from any of the somatoform disorders (DSM IV TR, pp 485 511) are excluded from this chapter.
11.5 ‘If pain is present as a result of an organic impairment, it should be assessed as part of the organic condition under the relevant Table.’ These Guidelines have been complied with and these activities were not included in the assessment of whole person impairment for this primary psychological injury.
The claimant had stopped socialising with all her friends prior to having her employment terminated by the employer. She reported she had lost interest in socialising in her community. She was not a member of any specific club outside of her home. She had no hobby. She had lost interest and no longer collected stamps as she could prior to this assessment. She said she had no dogs and did not have a cockatiel.
The claimant said she continued the care of the 3 cats and a cockatoo that had survived the passing of her best friend in November 2014. She said that the 3 cats had been befriended by a stray and she did not have the heart to send this cat away, so it has become part of the clowder. She said she feeds the pets but does not play with them.
The claimant said she had contributed to the emergency services Facebook group however, she did not have any video-call or in-person relationships beyond her text messaging.
The claimant did not watch television or follow television series as she would have prior to the onset of this primary psychological injury. She reported she no longer enjoyed watching special television events.
The claimant said that she no longer attends her friendship circle in the inner city as this was too physical in relation to her pain and physical injuries. This was not assessed in compliance with Guidelines: 1.12 1.19,1.22, 11.4, and 11.5
The claimant could travel in local and familiar areas without support. She could travel without a support person to familiar areas such as her shopping centre. She usually walked only short distances up to 15 minutes such that she could access essential medical and psychological appointments. She could use public transport.
The claimant did not travel further than inside her local and familiar areas close to her home. Travel to places such as the city and Melbourne were not undertaken as she would be too affected by her physical injuries and pain and physical injuries. This was not assessed in compliance with Guidelines: 1.12 1.19,1.22, 11.4, and 11.5
The claimant reported she had lost contact with Adele and Shaun, who were married and would invite her and her housemate to special events such as Christmas and New Year’s Eve. She had no plan for this Christmas and had not attended any family, group or special event last Christmas or new Year.
The claimant had rare telephone calls from an old friend Brad. She did not initiate the calls. The claimant would telephone her mother about once each month to check on her progress and health.
The claimant reported that she was not in any intimate relationship prior to this injury. She said she was not interested in forming a new intimate relationship as she was unable to experience happiness or pleasure in her life. The claimant had no close friends who visited her home. The claimant was not interested in forming new relationships as she found the world ‘inherently untrustworthy’ and she feared increased severity of her primary psychological injury symptoms. For these reasons the claimant level of functioning is best defined as a moderate impairment as she had lost her capacity to form any new relationship since being terminated by her employer.
The claimant reported that she could not complete complex tasks such as searching, purchasing, indexing and reselling stamps from her collection as she had done in the past. She said she had become indecisive and increasingly tearful and mistrustful of the world.
The claimant was able to manage her finances without falling into financial distress. She reported she struggled to organise her priorities and would be late in paying essential bills. She was not behind in her rent or essential utility bills.
The claimant was physically terminated from her employment as a retained fire fighter in February 2015. The Coles casual work was also ceased due to her physical injuries and pain. This was not assessed in compliance with Guidelines: 1.12 1.19,1.22, 11.4, and 11.5.
The claimant reported she was registered as a Centrelink Job Seeker. She received the Job Seeker payment from the Australian government. She had not returned to work in any capacity since 2015 when she stopped work. She reported that her Alcohol use disorder increased with her drinking up to 8 standard drinks per night to induce sleep. She reported she was erratic in her capacity to attend to her mutual responsibilities in filling in forms and applications. She had been granted special consideration and was not required to attend the Jobseeker office or apply for work as the assigned job search agency case manager believed she had a very poor prospect of employment due to her primary psychological injury alone. The claimant was assessed as a class 4 severe impairment in employability for these reasons.
I note that Dr Bisht reported the claimant could work 4 hours per day and 3 days per week. He provided the following restrictions for the claimant describing a need for ‘a job that does not require the client (sic claimant) to have a role which involves frequent direct interactions with customers or perform detail-oriented tasks or manage other staff. The client would require a vocational assessment however, for a more accurate evaluation of the job options. The client (sic claimant) is not able to work with the pre-injury employer. I note that Dr Bisht does not offer any suggestion as to what industry the claimant would be able to request such severe restriction from an employer and the claimant would be provided with these accommodations. In my opinion it is unlikely that the claimant would be ever able to be returned to reliable attendance at work…”

Findings on examination were reported as follows:
“The claimant presented as an unkempt, tearful woman who looked older than her stated age. She was agitated throughout the assessment. Whilst talking about the consequences and losses caused by the primary psychological injury she would have angry outbursts, tearfulness and was distressed. Her rate of speech was slow even when she was angry or agitated during the assessment. Her volume of speech was low and soft when talking and increased in volume when distressed and angry. She was tearful when talking about the loss of her career. She spoke about the recurrence of her depressive disorder, onset of hazardous alcohol consumption and her loss of interest in her self development. She continued to drink to try and stop her thinking about her injuries. She felt hopeless and worthless stating: ‘I no longer believe that the world is a safe place for me.’
The claimant wore unwashed clothes and had unwashed, uncut, uncoloured and uncombed hair. She stated that she felt shame and guilt for not being able to continue her career and contribute to her community. She said she had never truly felt fear until she had witnessed the severely burnt man in the car fire in 2007. She said the image haunts her. She becomes angry when thinking about the death of him and his wife. She avoided thinking about the event and she relied on alcohol, medication and isolation from her community, extended family and friends. The claimant’s concentration was poor. She said she was unable to do complex tasks. She was slow and unreliable in completing forms and bills. She was not behind in her essential bills. She said she was indecisive when making decisions which slowed her pace of completion of any tasks and caused her to check repeatedly for errors that frustrated and stopped her progressing. When too depressed in her mood she would drink more alcohol, increasing her delay in task completion. The claimant would take frequent breaks to refresh her concentration during the assessment.
The claimant was upset, irritable and had angry outbursts whilst recalling events. She would speak about depressive themes and intrusive depressive thoughts of worthlessness and hopelessness, death and suicide. Rapport was required to be built and repaired throughout the assessment. The claimant did not report delusional ideas or psychotic symptoms. She was insightful into her condition. Her judgement was fair. She said she had lost her ability to experience pleasure and had lost interest in her life in general at the time of this assessment.”
The Medical Assessor then summarised in detail the injuries and diagnoses which again we do not intend to repeat here, since they have been referred to by the Medical Assessor in the MAC as noted above.
The Medical Assessor assessed 18% WPI. He added:
“The claimant did have a mild treatment effect as treatment enabled the claimant to continue work whilst being able to manage her primary psychological injury symptoms. If she was to stop her current treatment with evidenced based pharmacotherapy and trauma focused cognitive behavioural therapy through the Trauma Clinic at Westmead Hospital the claimant’s whole person impairment would deteriorate. For this reason a 1% WPI adjustment was made to the 17% WPI producing final primary psychological injury assessment of 18%WPI.
Secondary psychological injury assessment. After apportioning for secondary psychological injury a deduction of 3% from 18% is 3% results in a Final Whole Person Impairment of 15%. No deduction for pre-existing condition.”
He then set out a summary of the material he had before him. This is extensive such that we do not intend to repeat his summary but will refer to relevant material where necessary in our determination.

The appellant’s submissions

These run to some 24 pages, or 137 paragraphs.
The submissions have been summarised above, but again, given the complexity of this matter we have determined that they should be reproduced in some detail.
1.Treatment effects
(a)    The worker has not worked since 2014, some 10 years prior to the worker being assessed by the Medical Assessor, and so the Medical Assessor’s reference to the worker’s ability to continue to work does accurately not reflect the worker’s current functioning, nor her functioning in relation to her injury for over 10 years.
(b)    Further, the Medical Assessor opined on page 16 of the MAC that currently he considers “it is unlikely that the claimant would be ever able to be returned to reliable attendance at work”.
(c)    Based on the Medical Assessor’s comments on the worker’s capacity, it is clear that he does not consider that the effect of the worker’s treatment enables her to work, which is obviously contrasting to his comments on the supposed “mild treatment effect” on her ability to work.
(d)    The worker herself has acknowledged that her treatment has had limited effect on her psychological condition, telling Procare assessors in November 2022 that in terms of her medications they were “not really” helpful. Further, when asked if she found treatment with her psychologists helpful she reported that “aside from referring to not being suicidal she said it was hard to explain in what way it had helped, stating that she has “good days, some bad days”.” From the MAC, the Medical Assessor did not enquire with the worker as to the effect of treatment on her psychological condition, and there is otherwise no commentary in the MAC to support the worker’s treatment has been effective. (Zoric v Secretary, Department of Education & Ors [2024] NSWSC 131 referred to).
(e)    The Medical Assessor assessed the applicant with 15% WPI as a result of the primary psychological injury and so there was still a significant permanent impairment assessment remaining despite treatment.
(f)    Neither Dr Bisht nor Dr Kumagaya added any addition for the effect of treatment on the worker’s impairment.
(g)    Further, there is insufficient evidence that the worker’s impairment is likely to revert to the original degree of impairment if treatment is withdrawn given that at most the Medical Assessor states her condition would “deteriorate” without being of the opinion that her condition would do so to the point of reverting to the original degree of impairment.
Deduction under section 323(1) of the 1998 Act
(a)    s 323 provides that in assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury, or that is due to any pre-existing condition or abnormality.
(b)    The Medical Assessor reports on page 40 of the MAC that he did not make any deduction for a previous injury or pre-existing condition or abnormality as: “There is no deductible proportion”.
(c)    The only explanation by the Medical Assessor on for reaching this conclusion appears to be in paragraph G on page 23 of the MAC which states: “The claimant did not have a pre-existing psychological or psychiatric condition prior to commencing employment with this employer.”
(d)    Further, on page 11 of the MAC the worker reported to the Medical Assessor that she did not have a history of psychiatric conditions prior to this primary psychological injury, and that she had three motor vehicle accidents in 1994, 1995 and 1996 but that neither of the incidents caused her any permanent injury or impairment.
(e)    However, on Page 317 of the Reply, the decision of Judge Delaney of District Court of NSW in Marina Findeis v Lee Hill and Sean Hammond on 18 June 1999 from the worker’s claim for CTP damages claim for injuries to the spine (neck, lower back, left hip) and leg sustained in motor vehicle accidents on 18 June 1994 and 9 May 1996 found the Applicant had post-traumatic stress disorder from the first motor vehicle accident:
“…it is clear and I accept from Mr Hinkelman the psychologist, that the plaintiff does in relation to the incidents which are the subject of these proceedings have a post- traumatic distress disorder which was caused as a result of the first accident. I find that although the plaintiff has not had any real treatment or assistance in relation to it, that the subsequent incidents have all played a part in worsening her condition. In my view the problems which are set out in Mr Hinkleman’s report of April 1999 do require that she needs some supportive counselling.” “I accept when Mr Hinkleman said about the plaintiff having a great deal of difficulty coping psychologically with her circumstances.”
(f)    In that 1999 decision, the Judge made an order for damages for future treatment including further psychological treatment.
(g)    Dr Bisht applied a 1/10th deduction noting that the Applicant had a pre-existing condition related to the motor vehicle accidents on 18 June 1994 and
8 May 1996, referring to the District Court judgement in June 1999.
(h)    Despite the above clear evidence that the worker had a psychological injury prior to the current injury, the Medical Assessor does not refer to the District Court decision in the MAC.
(i)    Further, the history of injury taken by the Medical Assessor on page 5 of the MAC states that: “The claimant said she was diagnosed as suffering from depression. She said she was referred to a clinical psychologist (Stephen Hinkleman) by her general practitioner (Dr Cameron) in about mid-1998. She was prescribed Dothep (a tricyclic antidepressant) 75mg at night for about 2½ years. She received cognitive behavioural therapy from the psychologist. She was not admitted to psychiatric hospital. She was not treated by a psychiatrist. Her condition went into full remission.”
(j)    The 1999 District Court Judgement indicates that the worker was treated by psychologist Stephen Hinkleman in relation to her psychological condition from the motor vehicle accidents in the 1990’s, prior to the current injury. If that Judgement is considered with the history of the injury the applicant provided to the Medical Assessor on page 5, there is a reasonable inference that her treatment with Stephen Hinkleman in mid-1998 was for her motor vehicle accident related psychological symptoms diagnosed as post-traumatic stress disorder.
(k)    The appellant accepts that it is not necessary for an motor vehicle accident to refer to every document that is before him and further, that there is a presumption that the Medical Assessor would have read all the material that was referred to him.
(l)    Where however, as the appellant submits in this case, there are findings made by the Medical Assessor on the basis of what he is told by the worker at the time of mental state examination, that are inconsistent with evidence it is to be presumed he read, it is submitted that it is incumbent on the Medical Assessor to offer some explanation as to the reasoning process by which he arrived at his findings.
(m)     The appellant submits that the MAC is so devoid of any evidence that the Medical Assessor has considered or engaged with the documentary evidence that was referred to him that error is demonstrated on the face of the MAC and that there has been an application of incorrect criteria.
(n)    In this instance the omissions of reference to the evidence are such as to rebut the presumption of regularity in relation the Medical Assessor having read all of the material included.
Deduction for secondary psychological injury
(a)    According to s 65A of the 1987 Act, no compensation is payable in respect of permanent impairment that results from a secondary psychological injury (s 65A(1)); and when the Medical Assessor assessed the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury (s 65A(2)).
(b)    The referral to the Medical Assessor required the Medical Assessor to deduct the impairment from the worker’s “Secondary psychological injury resulting from her physical injuries” from the impairment assessment.
(c)    On page 41 of the MAC the Medical Assessor states: “In my opinion the claimant’s secondary psychological injury could not be more than 2% WPI contribution to the assessed whole person impairment of 18% WPI.” However, on page on page 44 and 45 of the MAC, the Medical Assessor then contradicts the above and states the deduction is 3% WPI.
(d)    In Kiely v Mercy Centre Lavington Ltd [2018] NSWWCCMA 111, (Keily No 2), Harrison J at [96] outlined the two-step process required which is as follows: a. to apply the PIRS tables to assess total WPI; and b. then, to assess the secondary psychological injury and deduct the impairment in accordance with s 65A leaving the primary psychological injury remaining.
(e)    However, on page 42 of the MAC the Medical Assessor states that there is no single method for the assessment of secondary psychological injuries.
(f)    The appellant accepts that as discussed in Ausgrid Management Pty Ltd v Fisk [2023] NSWPICMP 237 that:
“…such a process is apt for the circumstance where there can be a disentanglement of the impairment and symptoms a worker suffers due to a secondary psychological injury from the impairment and symptoms a worker suffers due to the primary psychological injury. In this case however, that cannot be done. In this case, ..., the impairments of function and symptoms the respondent has from both his primary psychological injury and secondary psychological injury are completely intermingled. His impairment and symptoms from one injury are indivisible from the impairment and symptoms from the other injury and cannot be disentangled. ... The Appeal Panel considers that the requirement of s 65A(2) to have no regard to any impairment or symptoms from a secondary psychological injury is to be interpreted as impairment or symptoms that can be isolated to the secondary psychological injury. If it were otherwise, then in a case such as this, where the impairment and symptoms from the primary psychological injury and the secondary psychological injury are indivisible and cannot be disentangled, to disregard the impairment and symptoms from the secondary psychological injury would mean to disregard the impairment and symptoms from the primary psychological injury. It would mean that a worker could be assessed to have no degree of permanent impairment resulting from a primary psychological injury when in fact a worker did have a permanent impairment from that injury. It would be a perverse result and contrary to the beneficial purpose of the legislation and also contrary to one of the express objectives of the legislation that injured works receive payment for permanent impairment.”
(g)    In this case, the Medical Assessor agreed with Dr Bisht’s clinical observation on page 11 of his report dated 7 September 2023 that: “the PIRS from primary and secondary injuries cannot be separately calculated due to the considerable overlap of symptoms.”
(h)    On page 9 and 10 of the MAC the Medical Assessor states that the worker has symptoms of posttraumatic stress disorder, major depressive disorder - recurrent episode of moderate severity and alcohol use disorder.
(i)    The Medical Assessor does not include a diagnosis of the secondary psychological injury in this summary of the injuries on page 17.
(j)    As no other expert assessed the worker with a secondary psychological injury, the Medical Assessor comments primarily on Dr Bisht’s opinion regarding the secondary psychological injury.
(k)    On page 37 of the MAC, the Medical Assessor states in reference to Dr Bisht’s amended report dated 27 May 2024 that: “On careful review and searching the forwarded documents there does not appear to be either a listed or forwarded document in relation to Question 3. “Considering the new evidence, including the referral of Dr Herron dated 13 October 2015.” Searching the document finds Dr Herron’s name written twice, once in formulating Question 3. and once in the answer to this question. In the absence of the report by Dr Herron in the forwarded documents it is not possible to interpret on the balance of probabilities as to the meaning of the snippet: “significant depression in the context of knee pain, chronic fatigue making her unable to work”, with certainty what Dr Herron meant.”
(l)    On page 39 of the MAC, the Medical Assessor again refers to the Dr Bisht’s opinion referring to Dr Herron’s report in his 26 August 2024 report and that the report of Dr Herron was not in the material the Medical Assessor was provided.
(m)     However, the referral of Dr Herron to Deborah Wade dated 13 October 2015 is on page 922 of the Reply which was provided to the Medical Assessor in the referral.
(n)    The appellant accepts that it is not necessary for a Medical Assessor to refer to every document that is before him and further, that there is a presumption that the Medical Assessor would have read all the material that was referred to him.
(o)    Where however, as the appellant submits in this case, there are findings made by the Medical Assessor on the basis of that material was not before him, it is clear that he has not read the entirety of the material.
(p)    Further, where the Medical Assessor’s findings are inconsistent with the evidence, it is submitted that it is incumbent on the Medical Assessor to offer some explanation as to the reasoning process by which he arrived at his findings. However, the Medical Assessor ’s reasoning process in this regard is clearly not justified.
(q)    On page 41 the Medical Assessor states that without the report of Dr Herron, it is not possible to place Dr Bisht’s assessment into context in relation to the whole document written by Dr Herron. As such, it appears that the MA has not have given weight to Dr Bisht’s opinion in regard to the extent of the secondary psychological injury due to the Medical Assessor not sighting Dr Herron’s report in the material.
(r)    In the referral dated 13 October 2015, Dr Herron states the worker recently had “significant depression in the context of knee pain, chronic fatigue making her unable to work”.
(s)    Further, it is reasonable to conclude that the Medical Assessor would have provided an assessment more in line with Dr Bisht’s opinion, including the deduction of 50% of the impairment as a result of the secondary psychological injury, if the Medical Assessor had confirmed the contents of Dr Herron’s referral.
(t)    There are multiple occasions in the MAC where the Medical Assessor appears to misread and misunderstand Dr Bisht’s opinion which has resulted in the Medical Assessor not accepting Dr Bisht’s opinion.
(u)    Dr Bisht reviewed the entirety of the worker’s clinical records from her treating doctors and is stating that he could not find any document in those records between 2002 to 2014 showing the worker reported to her treating doctors that she had psychiatric or psychological symptoms as a result of attending traumatic incidents while working with FRNSW between 2002 to 2014.
(v)    On page 41 of the MAC the Medical Assessor also states that Dr Bisht documented references in relation to severe depression and chronic pain from 2003 but that the material was not in the Medical Assessor referral. However, there is no reference in Dr Bisht’s reports to severe depression and chronic pain from 2003, so it is unclear what the Medical Assessor is referring to.
(w)   Dr Bisht’s opinion is the only one diagnosing that the worker’s current major depressive disorder is secondary to her physical conditions, there is no other medical opinion providing a diagnosis for the secondary psychological injury.
(x)    Given that the Medical Assessor has misread and misunderstood Dr Bisht’s opinion, his conclusions as to the extent of the secondary psychological injury and consequently impairment has also necessarily been affected.
(y)    On page 6 of the MAC the Medical Assessor does opine that the worker’s posttraumatic stress disorder and a recurrent episode of major depressive disorder increased in severity during 2015. Given that the worker’s bilateral knee and ankle injuries occurred in 2014, the timing of her increased psychological symptoms clearly coincides with her physical injuries which support that the increase in her psychological symptoms is secondary to the worker’s physical injuries.
(z)    Therefore, this history recorded by the Medical Assessor supports that the worker’s major depressive disorder from 2014 is secondary to the worker’s physical injuries.
(aa)    The description of the worker’s psychological condition from 2014 in the MAC supports that her depressive condition since that time is as a result of being stood down due to her physical injuries, which supports that her psychological condition is secondary to her physical conditions when also considered with the totality of the evidence regarding her ongoing chronic pain and depression relation to same.
(bb)    Further there are a number of symptoms of the worker’s major depressive disorder outlined by the Medical Assessor on page 8 of the MAC the Medical Assessor which are specifically linked to the worker’s secondary psychological injury. In relation to “depressed mood due to loss of her career”, the worker ceased work as a firefighter as a result of her physical condition in October 2014. She was also medically retired from FRNSW due to her physical inability to perform the role.
(cc)     Even the Medical Assessor acknowledges this loss of career with FRNSW due to her physical condition on page 6 of the MAC.
(dd)    In relation to “Insomnia”, the worker’s treaters have linked her sleep issues with her ongoing physical pain. For example, the report of Dr Khan dated
14 October 2022 states that the worker continued to struggle with sleep disturbance that was perpetuated by her symptoms of trauma and her chronic pain.
(ee)    In relation to “Fatigue with loss of energy”, fatigue is common to sufferers of chronic pain, particularly where the pain results in insomnia which is addressed above. For example, the referral of Dr Herron to Deborah Wade dated
13 October 2015 on page 922 of the Reply makes it clear that the worker had “significant depression in the context of knee pain, chronic fatigue making her unable to work”. Further, consultation notes of Workers Doctors on 9 April 2024 records the worker had pain, fatigue, ongoing pain in right knee.
(ff)    In relation to “Diminished ability to concentrate”, similar to the above, this is commonly linked with insomnia and fatigue which as discussed above has been linked to the worker’s physical condition and/or is common to chronic pain sufferers.
(gg)    The Medical Assessor’s misunderstanding of Dr Bisht’s opinion appears to have resulted in the Medical Assessor dismissing not only Dr Bisht’s opinion on the nature of the worker’s psychological injury secondary to the workers physical injuries, being her current major depressive disorder, but also the evidence
Dr Bisht refers to in support of his opinion.
(hh)    The Medical Assessor does not otherwise provide his own opinion on what psychological symptoms or psychological condition is secondary to the worker’s physical condition.
(ii)    Despite being tasked with deducting the impairment resulting from the secondary psychological injury, the Medical Assessor does not appear to have questioned the worker about the psychological symptoms her physical injuries have caused, which would naturally be required to determine the extent of the secondary psychological injury and consequent impairment.
(jj)    The Medical Assessor does not otherwise identify the evidence supporting the worker’s alleged “significant improvement in her mobility” after surgery or provide any details on the relevance of the worker’s ability to walk down to the shops has on the extent of her impairment from the secondary psychological condition.
(kk)     Further, the Medical Assessor ’s reasons in support of the deduction of 3% WPI for impairment resulting from the secondary psychological injury, only refers to the applicant’s experience of physical pain caused by her physical conditions on travel and employability only, without canvassing her impairment from the secondary psychological injury.
(ll)    That the Medical Assessor only turned his mind to the worker’s experience of pain is evident from the “Summary of assessment of secondary psychological injury’s contribution to primary psychological assessment and deduction” where the MA comments on page 43 of the MAC that “The current guidelines remove many of the possible causes where pain could contribute to the assessment of primary psychological injury whole person impairment.”
(mm) While pain from the physical conditions would understandably be a significant factor contributing to the worker’s secondary psychological symptoms, which
Dr Bisht diagnosis as major depressive disorder, her physical pain and restrictions such as limited ability to walk, sit, and stand due to her pain are not in themselves symptoms of a secondary psychological condition. They are quite clearly physical symptoms, which while they could cause psychological symptoms such as depressed mood, insomnia, difficulty concentration, anhedonia etc, they are psychological symptoms themselves. Further on page 40 of the MAC, the Medical Assessor states that: “The lower level of pain experience by the claimant is also supported by Dr Bisht’s documented medications for the claimant, as reported by Dr Bisht with the claimant using Celebrex and Panadeine forte on an irregular schedule as required (PRN) and not routine opioid medications as are often required for severe chronic pain.”
(nn)    Despite the Medical Assessor ’s commentary on the evidence of Dr Bisht regarding the worker’s pain, he otherwise fails to refer to or consider the extensive clinical evidence from the worker’s treating doctors in the material regarding her chronic pain.
(oo)    The medical evidence from the worker’s treating doctors clearly shows that the worker has had consistent chronic pain for a significant period of time and that same is ongoing. Further, while the majority of the worker’s treaters refer to both the worker’s psychological condition and her physical conditions at the same time without separating out which is a primary injury and which is secondary to her physical injuries, they clearly reference the worker’s ongoing chronic pain throughout the worker’s records since 2014 when dealing with her psychological condition.
(pp)    The referral of Dr Herron to Deborah Wade dated 13 October 2015 makes it clear that the worker had “significant depression in the context of knee pain, chronic fatigue making her unable to work”. The worker’s chronic condition has remained the same since that time based on what the worker has reported to her treating doctors as outlined above.
(qq)    While the chronic nature of her physical condition is relevant when considering the extent of impairment from the secondary psychological condition, pain on its own does not determine the extent of permanent impairment from a psychological condition secondary to physical conditions.
(rr)   Despite this, it appears that pain is the only factor the Medical Assessor has considered when forming his opinion on the extent of the worker’s secondary psychological injury.
(ss)     Accordingly, the assessment of the Medical Assessor of the extent of impairment from the secondary psychological injury was made on the basis of incorrect criteria and/or amounts to a demonstrable error.

The respondent’s submissions

As indicated earlier, the respondent submits that no errors were made, specifically noting the following:
(a)    The Medical Assessor explained that there was a treatment effect because the treatment had allowed the Respondent to continue working whilst being able to manage her primary psychological injury symptoms. He considered that if she stopped current treatment she would deteriorate. That conclusion is a medical opinion that does not rely upon the respondent’s view as to whether treatment has been effective.
(b)    It is clear from a reading of the reasons of the assessor that he turned his mind to the application of s 323. He expressly resolved the matter by finding that there was no relevant pre-existing condition.
(c)    The Medical Assessor was asked to consider the degree of impairment resulting from two injuries. He found that it was not possible to divide the effects of the two injuries. The appellant does not make any complaint about that part of the reasoning of the Medical Assessor.
(d)    One of the injuries as found was an injury as a result of employment from 1992 to 18 May 2023. The injury was one to which section 15 applied.
(e)    As explained by Justice Basten in Oswell v Sublime Install Pty Ltd [2024] NSWSC 1586 for there to be a s 323 deduction it is necessary to identify a condition or injury that pre-dates 1992.
(f)    The appellant submits that the Medical Assessor did not make a s 323 deduction because he failed to consider whether part of the impairment results from the motor vehicle accidents on 18 June 1994 and 9 May 1996.
(g)    Both accidents post- date 1992 and as a matter of law cannot be the basis for a s 323 deduction. Similarly it is of no moment that Dr Bisht mistakenly made a deduction based upon the effects of those accidents.
(h)    As the effects of the motor vehicle accidents are not relevant to the operation of s 323 the Medical Assessor was under no obligation to give reasons why he did not make a deduction.
(i)    In any event there is no meaningful disparity between the history taken by the Medical Assessor and the Judgement of Judge Delaney in June 1999.
(j)    The history taken by the Medical Assessor is that there was treatment for two and half years after being referred to Stephen Hinkleman in mid -1998. This means there was treatment until 2000 or 2001 following which there was a full remission. There is no inconsistency with a finding in June 1999 that psychological problems continued at that time. The evidence is that they resolved sometime later.
(k)    In the absence of any contradiction it was not necessary to explain any difference in the evidence or even to refer to it. The evidence was that there had been a full remission so that by the time of the assessment there was no active pre-existing condition to give rise to a s 323 deduction.
(l)    It is only the Judgement of Judge Delaney and the opinion of Dr Bisht that is claimed to be evidence that was not referred to and therefore requiring reasons. As explained the evidence was not relevant and therefore there was no need to refer to that evidence.
(m)     It should be noted that the conclusion that any prior condition had resolved is consistent with Dr Bisht that there was no evidence of documented psychiatric or psychological symptoms between 2002 to 2014 as stated in the report of
26 August 2024.
(n)    It is almost trite to observe that the assessment of any deduction for a secondary psychological injury is a matter of clinical expertise and discretion.
(o)    The Medical Assessor followed the correct process which is to assess the overall impairment and then to make a deduction for any impairment due to the secondary condition. There is no access to a default position as with s 323.
(p)    The Medical Assessor carefully considered the question at great length in including careful consideration of the opinion of Dr Bisht as no other doctor had considered that there was a secondary condition.
(q)    The appellant seeks to point out evidence that the respondent suffered from ongoing pain from her physical restrictions. But as pointed out by the appellant itself the existence of pain is not in itself a psychiatric diagnosis.
(r)    The Medical Assessor correctly pointed out that Dr Bisht had not properly diagnosed any secondary psychological condition. Dr Bisht had also incorrectly referred to the referral by Dr Herron of 13 October 2015 as a report. The referral quite properly does not make a diagnosis which would have been beyond the role of the GP at that time. The referral is of little significance in the task being carried out by the Medical Assessor.
(s)    An examination of the referral confirms what the assessor said which is that it is not possible to interpret the meaning of the snippet “significant depression in the context of chronic knee pain, chronic fatigue making her unable to work” with certainty. The referral contains no further information.
(t)    Otherwise the Medical Assessor correctly found that Dr Bisht did not give reasons for finding a 50% deduction for the alleges secondary condition. That finding which is not challenged is sufficient to dispose of any consideration of the opinion of Dr Bisht. He then proceeded to make his own assessment considering the material before him so far as it relates to the question of a secondary condition. The Medical Assessor gave clear and detailed reasons for the deduction that he made. The fact that he disagreed with Dr Bisht is not a demonstrable error.
(u)    The Appellant says that the Medical Assessor did not diagnose a secondary psychological condition. It would follow that there was no secondary condition. If an Appeal Panel redetermines the matter there should therefore be no deduction for a secondary condition as there isn’t one. This is consistent with the opinion of the treating psychiatrist Dr Khan that there is no secondary condition.
(v)    In any event Dr Bisht also did not make a proper diagnosis of a secondary psychological condition. He merely said (at R 226) “the work-related injury is a combination of a primary injury as a result of primary psychological injury and psychological secondary to the worker’s physical injuries”. At no time does he attempt to diagnose what it is that constitutes the psychological secondary.

Discussion

As we said at the outset, this is an extremely complex case, and the appellant has gone to great lengths to point out the evidence it claims to demonstrate error by the Medical Assessor.
On the face of it, there seemed to be considerable merit in many of the appellant’s submissions.
In these circumstances, the Panel agreed that a re-examination was required, and because of the complexity of the matter, Medical Assessor Blom and Medical Assessor Hong conducted a joint re-examination, and reported to the Panel as follows:
“1. The workers medical history, where it differs from previous records
Ms Findeis was seen via the Teams app – both Dr Hong and Dr Blom were present during the interview. Dr Blom undertook the interview while Dr Hong clarified and amplified where necessary. While the history taken by Dr Baker, in the original Medical Assessment was quite extensive we felt that it was important to clarify some elements of the history. We focused specifically on the presence or otherwise of a pre-existing condition requiring a S323 deduction as well as the existence of a secondary injury and its impact on the level of Ms Findeis’s total impairment. We then conducted a PIRS review consistent with the findings in Southwell V Qantas Airways and Quintiliani-Jones V Department of Education.
Ms Findeis said that. she joined the Fire and Rescue Service as a retained firefighter in December 1992. As noted in the original Medical Assessment Certificate (MAC) she experienced considerable trauma during her early years with the Firefighting service, describing as an instance, one of her colleagues holding her down and ‘trying to incite pack rape.’– This occurred on at least two occasions. She also was involved in three motor vehicle accidents between the years 1994 and 1996 which resulted in a court hearing for damages mainly related to orthopaedic and soft tissue injuries in 1999. It was in one of these accidents that she sustained a significant injury to her left ankle. She also consulted a psychologist for approximately 2 ½ years between 1998 and 2000. Despite this significant trauma and the evidence presented in the original MAC, at this interview Ms Findeis adamantly denied any significant symptoms of PTSD at this time. She said that she had felt disturbed and distressed by what had happened to her, particularly as she had been stood down by the fire service because of the injury that she sustained to her ankle in the original motor vehicle accident, but said that this did not lead to her developing symptoms similar to what she currently has. We raised the fact that the judge in her court case had referred to her experiencing PTSD and to the documentation which also suggested she had experienced significant psychological symptoms at this time but she remained unmoved saying that ‘I just got on with it’. Given the contemporaneous evidence, we feel that it is most likely that Ms Findeis did indeed experience PTSD symptoms complicated by depression, as noted in the MAC, as well as the Court judgement, during the late 90s and that her treatment with her psychologist was aimed at resolving this. We accept also, as found in the MAC, that Ms Findeis symptomatology reached remission because of her treatment by her psychologist, Mr Hinkleman.
Following her return to work in about 2001, she remained working with the Fire Service until being medically retired in 2014. During this time she said that she was exposed to the ‘normal traumas’ that members of the fire service experience, including exposure to death and serious injury as well as experiencing episodes of bullying and harassment by colleagues particularly related to her gender. She stated that she had many close friends amongst her colleagues and that they supported her through experiences of trauma. She also said that at least some of her supervisors had been very supportive. Contrary to the statements in the MAC, Ms Findeis denied significant symptoms either of PTSD or of depressive disorder during the 10 years till 2010 (she however mistakenly believed that the Howle accident occurred in 2010 rather than 2007 so she actually was referring to a seven-year period). She said that at times she would become distressed but that she talked to colleagues and was supported by them. Moreover she said that her approach was always that she should ‘put it into the filing cabinet and lock it up’ as well as ‘just get on with it’. She also denied abuse of alcohol during this period. She did acknowledge that at times she drank heavily, sometimes associated with traumatic incidents, but also often associated with work events with other firefighters, but said that this was infrequent and that she couldn’t drink because she was on call for much of the time. She said that they were regularly breathalysed and she did not wish to lose her position. We noted that she did acknowledge heavy alcohol use despite still being on duty after 2007 but nevertheless she was unmoved regarding her previous behaviour.
She said that she began to develop psychiatric symptoms following her attendance at the Howle motor vehicle accident. In this accident a couple (Mr and Mrs Howle) were killed when their vehicle was struck by a car travelling at very high speed, whilst involved in a street race with two other cars according to Ms Findeis. The wife, Ms Howle, was trapped in the vehicle but later died at the scene. Initially Ms Findeis and the other emergency workers were unaware that there was a second passenger, but later they were informed that he had been catapulted out of the car at very high speed and his body essentially disintegrated. She was profoundly distressed by the fact that they were inadvertently walking on the body parts of Mr Howle. Ms Findeis began developing substantial symptomatology following her attendance at this accident. She experienced regular nightmares, initially about this accident but as time has progressed the nightmares also involved other traumatic experiences while working in the Fire Service. She also experienced what she called ‘terror sleep’ which she described as profoundly disturbed sleep in which she struck out, thrashed around and woke herself usually in a panic state. She also began to experience daytime anxiety, repetitive rumination about the accident sometimes triggering into panic. She had intrusive re-living experiences and was unable to pass by the site of the accident without reliving it and experiencing substantial anxiety. She began using alcohol to assist her sleep – drinking up to 7 or eight standard drinks/night although initially this was intermittent. As time progressed however her drinking became more frequent. She also began to experience episodic periods of depressed mood associated with loss of motivation and energy and a feeling of purposelessness about her life. She however stated that all of these symptoms initially were reasonably manageable, in that she continued work and did not seek psychiatric assistance at least initially.
This period was made worse by the fact that she also was experiencing increasing problems with her joints, suffering pain and some degree of stiffness. This deteriorated as time progressed. We spent some considerable time trying to clarify how this affected her – again her response was that ‘I just got on with it – I wanted to work in the fire service and so I had to cope’. it was very clear from her description that while she experienced pain and some disability certainly on her description at this interview she did not experience significant psychiatric symptoms beyond short-term distress. She adamantly denied any significant depressive symptomatology as a result of her physical injuries. She did however acknowledge that at times she became tearful and distressed about her PTSD symptoms which she had much more difficulty in managing and controlling. To some degree this was consistent with the personality traits that Ms Findeis presented. She is clearly a woman who can tolerate a great deal of discomfort and pain in order to achieve her objective. Working in the fire service was something that was, and still is very precious to her and she was willing to, and able to, continue work despite significant symptomatology. However, she has very little insight into her emotional world and very little capacity to reflect about her feelings so it is not surprising that she was somewhat defenceless in trying to manage symptoms of PTSD which by their nature are intrusive, overwhelming and not easily ignored.
In any case it is clear that she was experiencing symptoms of PTSD as well as deteriorating joint pain but she continued working through till 2014, albeit it would appear with deteriorating capacity. In 2014 however the injuries to her knees and ankles deteriorated sharply and severely following two incidents in August and October 2014 – one the grass fire incident and later following her attendance at a fire at Emu Plains caravan park. Both of these were difficult because they involved walking on very uneven ground and dragging heavy hoses for lengthy periods of time under difficult circumstances. While it is clear that these fires were difficult it is reasonably apparent that uneven ground and heavy hoses are part of the firefighting experience, and we believe that it was likely that these incidents acted as final “triggers” for long-standing disorder.
In any case Ms Findeis went off work on medical leave because of pain and limitation of movement. She had various scans and was found to have significant osteoarthritis of both ankles and both knees. She remained off work in till 2015 and eventually was involuntarily medically retired. It is clear that around this time, as a result of the physical trauma related above as well as her loss of employment, that she was more overwhelmed by her physical pain, in context also of deteriorating PTSD symptoms. It appears that it was in this context that the referral by Dr Herron was made. Ms Findeis was very clear however that she felt that she would be able to return to the Fire Service and despite her wishes this option was taken away, in part because of the conflict that she had with various supervisors. Subsequently she said that she had ongoing pain but was again very determined to overcome this. She said that except for early in the disorder this did not have a significant impact on her overall psychiatric state.
[We note at this point that this is contrary to the appellant’s assertion that the chronic pain remained unchanged or deteriorated over the years.]
She also said that her PTSD symptoms got much worse after she left work. We closely questioned her about this and she could not offer an explanation as to why this was, although it is not uncommon for PTSD to deteriorate over time and in Ms Findeis’ case the removal of a career, that was extremely valued, in circumstances which she felt somewhat powerless may have exacerbated this process. When we questioned her about the impact of her physical symptoms however, she was very clear that these did not cause her significant depression or ongoing distress, despite the findings in the original MAC. In fact, she said that she has managed to live with her orthopaedic limitations and work with the pain as she described it. For example, she said that despite her experience of pain and stiffness she manages to look after her garden. She has planted about 15 fruit trees over the years and tends a reasonably large vegetable garden with 10 small vegetable patches within it, each year. Moreover, she does her own mowing and generally manages to keep the yard in good order. She has had a variety of treatments for her orthopaedic injuries including a sub-talar fusion of her left ankle in 2019 and a left total knee replacement in 2018. She said that she needs further surgery but has been unwilling to undertake this to date as she feels she is managing. She uses cannabis – both THC and CBD to assist with both pain and with sleep. Using these substances, she said that she is able to get a few hours’ sleep at night. She has been using cannabis based products for the last five years or so.
She continues to be troubled by psychiatric symptomatology related to her PTSD. She has received treatment over this period intermittently mainly except with her psychologist. She consults a psychologist every two or three weeks and has been doing this for many years. She also consulted a psychiatrist, Dr Khan, every 3 to 6 months although has not seen him now for about nine months and as far as we could clarify she does not have any further appointments at this time. She consults two general practitioners – one at Workers’ Doctors, where she also consulted her psychiatrist and psychologist at times, and a local GP who manages the administration of her Workers compensation as well as providing support. Over the years she has consulted a variety of different professionals but this has been irregular and she has changed doctors, psychiatrists and psychologists on several occasions. She has very clear ideas of the treatment that she wishes to receive and that which she will not accept and this can lead to some difficulties in her treatment regime it was apparent. She has also undertaken a program at Westmead Hospital for the treatment of emergency service workers with PTSD She undertook the first stage of this treatment earlier this year – comprising three months of weekly visits. She is supposed to undertake the next stage soon but has been delaying this because she finds the exposure element of this extremely disturbing. She has been prescribed a variety of psychotropic medications over the years including antidepressants, various sedative, various versions of cannabis based treatments for pain and sleep as well as pain relief treatment although she only uses sparingly, because of side-effects and her fear of addiction.
2. Current Treatment.
Currently she is not consulting a psychiatrist. She obtains her medications from her general practitioner. Her medications include:
A. Cannabis based products which she consumes approximately three nights/week for management primarily of difficulties with sleep but also pain relief.
B. Clonidine – 100 µg/3 to 4 times/day. Ms Findeis was strongly under the belief that she was taking this for treatment of hypertension although this is unlikely as clonidine is a very old medication originally introduced for the treatment of hypertensive crisis but rarely used for the treatment of hypertension now, given more modern medications with far fewer side effects. Clonidine is regularly used however for the treatment of flashbacks and nightmares associated with PTSD. This is of import because Ms Findeis was completely closed to the ideas that this medication was provided for anything but treatment of hypertension. It tended to reflect her generally very strong beliefs about both her treatment and the nature of symptoms and how to manage them.
C. Lemborexant and suvorexant – 1 – 1 ½ tablets per night. Again, Ms Findeis was convinced that these had antidepressant qualities although they are very specifically designed for the treatment of insomnia.
D. Dothiepin – 50 mg/night. This is an antidepressant which Ms Findeis has been taking for many years, although she has also at times taken other anti-depressants.
Ms Findeis also continues to see her psychologist, currently Stephanie, via tele-health every two to three weeks.
She consults her GP ‘Dr Ben’ for administration and support but also has another GP Dr Musson, at workers doctors who manages her illness more actively.
She has not consulted Dr Khan or Dr Mark Ryan (another psychiatrist she has consulted) at all this year and there is no appointments made at this time.
3. Current Symptoms.
Ms Findeis continues to experience significant symptoms related to PTSD. She believes these symptoms are if anything deteriorating over the years. It is not clear that she gained any significant improvement from the PTSD focused treatment at Westmead Hospital.
She describes regular nightmares and “terror sleeps”. These occur most nights of the week and as a result she experiences very disturbed sleep and significant insomnia. When she wakes from a nightmare or terror sleep, she finds it very difficult to return to sleep. She regularly ruminates about traumatic experiences and finds it difficult to prevent these intrusive thoughts. These occur also during the day although she can often distract himself at that time but at night when they are also frequent they lead to significant insomnia. Because of triggering phenomena, she has become quite withdrawn which appears to be deteriorating as she ages. She said that she is triggered by crowds of people, sirens, any form of motor vehicle accident and the location of the Howle’s motor vehicle accident. As a result, she prefers generally to remain at home, although as noted she continues to have contact with some friends. She describes daytime anxiety particularly if triggered but generally said that she was regularly very hypervigilant and easily startled. She also described checking behaviour particularly checking her doors and windows at night. Her avoidance of people is not just because of fear of being triggered but also because of a deepening sense of disgust, fear and distrust related to people. She said on a number of our occasions that people are not trustworthy and expressed an extremely cynical view of human nature and how people treat each other – at one stage she said “there is no hope for humanity”. She said that she often gets depressed but was very clear that this was primarily related to both her trauma related symptoms but also her sense of cynicism about humanity and her feelings of purposelessness and hopelessness. She said she had nothing to live for now and when her cats die she intimated that she might suicide because she would then have no reason to live.
She did describe depressive symptoms, which included low mood usually lasting for no longer than I week, she said associated with marked loss of motivation, low mood, fatigue and a deterioration in her hopelessness and purposelessness. At times she acknowledged thinking that life was not worth living and on occasions being actively suicidal, although she was quite reluctant to talk about this. At one point she acknowledged that she has a friend whom she met at the local chemist, where this woman works, who has for some months been visiting her weekly essentially for safety checks to ensure that Ms Findeis mental state has not deteriorated or that she has not harmed herself. She denies ever actually having undertaken self-harming behaviour although it is clear that she does not take care of herself.
She continues to drink heavily, consuming she says about eight standard drinks – essentially a bottle of wine – every night. She said she drinks wine in order to assist her sleep. She is aware that this is unhelpful for her overall condition but persists because she said that if she does not drink she struggles to sleep even given the other medications that she takes. She denies any withdrawal symptoms. We questioned her very closely about her pain and disability associated with her joint injuries. She was adamant that she is able to manage these in – ‘when the pain is all right I work in my garden when it isn’t I rest”. She said that she is able to “just push through’ and to “put the pain in her filing cabinet”. If the pain becomes too difficult, she takes pain relief, usually Valium or Panadeine Forte, although said that she only uses these infrequently – less than one tablet of Valium every few weeks and 1 or 2 tablets of Panadeine Forte every three months. She said that she tries to push herself to manage her joint pain and to build herself up. She said besides doing the gardening she sometimes walks to St Mary’s to do shopping a round trip of approximately 5 km. She said recently she in fact did this two days in a row and afterwards experienced considerable pain and stiffness which required pain relief but she denied that that caused her any significant depression.
Psychiatric Impairment Rating Scale.
Self-care and Personal Hygiene.
Ms Findeis stated that she showers only very irregularly. She said that the last time she took a shower was about a week ago. Sometimes she said that she will go for up to a month without showering. We tried to clarify exactly why she would go for so long especially as she had previously stated that she worked in the garden. She said that after gardening she will wash her hands but she doesn’t feel the need to shower – if she feels that she is “smelly” she will wipe her underarms with wet ones. She said that she can’t be bothered showering and doesn’t feel the need as she rarely goes out.
She also said that for the same reason she only eats once a day. She said sometimes that she cooks but she will often buy a kebab or piece of fish at the local fish shop. She does not eat carbohydrates as far as possible because she believes a ‘carnivore diet’ assists in managing PTSD and anxiety. She said that she had researched this on the Internet.
She said that she changes her clothes every two or three days but only washes her clothes every two or three months. She said that she has enough clothes for “to cycle through” for that time thus avoiding the “hassle” of washing. Again, the issue seemed to be lack of motivation and drive. She said that she only occasionally cleans the house but essentially lives in a mess – she then demonstrated this by using the camera on her computer to show her living room and kitchen which was indeed chaotic with lots of unwashed dishes and other material. It was apparent that there was no clear surface on any of her cupboards, tables or sideboards. This is moderate impairment – class 3
Social and Recreational function.
Ms Findeis has become increasingly withdrawn and avoidant, especially of crowds. She remains in some contact with her friends primarily through text messages. She goes out socially with them approximately once every three months usually joining them at a hotel where they have met for many years, in Enmore in Sydney. This requires her to travel to the venue which she does alone. She has limited hobbies and interests beyond gardening and caring for her several cats and a cockatoo. She also has some interest in researching various theories and beliefs that she has often related to issues around corruption within government services such as Fire and Rescue as well as concerns about Covid and the use of vaccinations, to which she objects. This is mild impairment – class 2
Travel.
She is able to drive her car in the local area however she becomes anxious driving longer distances because of her difficulties with concentration and focus as well as fear of becoming distressed and anxious. When she travels longer distances she takes public transport, usually a train, for example to attend appointments in Sydney. This is mild impairment – class 2.
Social Functioning.
She continues to have some long-term friendships, for example the friends who text her and with whom she socialises on occasions. However, she has lost many of her friends from the fire service since she left. She has formed a friendship with a woman at the local chemist, who ‘checks in’ on her regularly. She has an older and younger sister but said that they were never close and this has not changed as a result of her injury. This is mild impairment – class 2.
Concentration, Persistence and Pace.
She has some difficulty with her concentration in specific situations. For example, she is unable to attend to a movie throughout the length of the movie because of difficulty focusing. However she can “undertake research” on her phone or computer for up to an hour. This involves both searching the web and reading various websites. She is also able to read other material for at least 30 minutes at a time. She demonstrated a capacity at interview to persist in an interview that lasted two hours and retain reasonable focus. There was no perceptible disruption to her pace during this time, however her memory of chronology and the course of events was significantly impaired. This is mild impairment – class 2.
Employability.
Currently she suffers from considerable disability and pain associated with her orthopaedic injuries, which would limit her capacity to engage in any form of work. However, as a result of her PTSD she also experiences difficulties with concentration, problems in socialising and substantial difficulties in her personal self-care. She has not worked for many years and would not be able to cope with the demands of even part-time work due to her symptoms which can be quite intrusive. Disregarding her physical injuries, pain and any secondary psychological disorder related to that (which we believed to be reasonably modest) she would still struggle to work for even 10 hours/week and would likely have reduced pace and would be erratic in her attendance. This is severe impairment – class 4.
4. Additional history since the original Medical Assessment Certificate was performed
There has been no substantial change in Ms Findeis’s situation since the time of the previous MAC approximately seven months ago. She has completed three months of a PTSD program at Westmead Hospital however this has not led to any substantial change in either her symptoms all level of impairment. We note that we have not found the degree of secondary psychiatric disorder noted in the original MAC. However, we note that the MA in fact did not deduct for psychological consequences of physical injury, focusing only on pain. While this was not clearly enunciated in the original MAC we believe this reflects the fact that Ms Findeis’s psychiatric injuries are primarily related to her PTSD and that the contribution of depression related to her physical injuries is minimal. We do not believe that a deduction for secondary psychiatric disorder related to her physical injuries is appropriate. Like Dr Baker we have however, disregarded the impact of physical impairment and pain when calculating her psychiatric impairment.
5. Findings on clinical examination
Ms Findeis was seen via the teleconference application Teams. Both Dr Blom and Dr Hong were present throughout the interview. The quality of the transmission was good and we were able to undertake a completely satisfactory interview.
Ms Findeis appeared older than her stated age. She was somewhat unkempt with markedly untidy hair. She looked somewhat careworn. Her surroundings on occasions were visible in camera and were markedly disordered, messy and chaotic.
Ms Findeis engaged well with the interview, although she was a very difficult historian. She was discursive and overinclusive. She tended to often avoid questions particularly related to her injuries by dismissing her psychological response, saying ‘I just got on with it, – I just put it into my filing cabinet’, or other responses essentially aimed at diminishing her psychological response to difficult situations. We did not feel that this reflected any attempt to dissimulate or mislead us but rather reflected a personality and characterological style built up over many years, which has depended upon psychological processes aimed to dismiss, minimise or deny psychological pain. Denial, whilst often destructive, can sometimes allow individuals to persist in the face of great adversity, this appears to have been the case Ms Findeis. Generally, minimising modes of coping appear to have been effective except as mentioned with her PTSD symptoms which overwhelmed her capacity to cope. Overall she appeared as an honest witness in her attempt to engage with the interview.
Her affect was generally reactive and she displayed a range of affective states – for example she was able to smile, but also became markedly tearful and anxious when she began to talk about her trauma related injuries. She was quite dismissive when talking of her experience of pain. There was no flattening of her affect, however she did express feelings of hopelessness and purposelessness on several occasions and acknowledged thoughts of suicide although even this was presented to some degree in a dismissive style.
She tended to have a cynical and somewhat persecuted view of her place in the world and appeared open to various ‘conspiracy theories’. She did not display however any evidence of delusions, hallucinations or formal thought disorder.
She did not display any evidence of organic cognitive disorder. She was able to persist with a difficult 2 hour interview and maintain her pace throughout. She however did have considerable difficulties with the chronological order of injuries, trauma and treatment and was notably incorrect in dating certain events. She however was usually quite insistent that she was correct in these instances despite evidence to the contrary. This again did not appear to reflect any attempt to dissimulate.
6. Diagnosis.
Using the DSM 5 – TR classificatory system, Ms Findeis meets the criteria for:
I.    Post Traumatic Stress Disorder – chronic. This is her primary disorder and the cause of most of her impairment and symptomatology. The MA has outlined in his MAC the reasons for this diagnosis, and we concur with that reasoning.
II.   Persistent depressive disorder, with episodes of Major Depressive disorder, no episode of MDD present currently. While Ms Findeis clearly suffers from depressive symptomatology and from her history and from the descriptions in the documentation, she has undoubtedly suffered from MDD in the past. At this interview whilst she had some impairment of her mood and some reduction in her energy, motivation and drive with some impairment of concentration we felt that the level of this disturbance was not sufficient to meet the criteria for MDD at this time.
III.       Alcohol abuse disorder. Ms Findeis continues to use excessive quantities of alcohol in a way that is likely to impact her physical and psychological health. Despite her denial she has some awareness of the health risks of her alcohol intake and certainly has been advised of this by medical professionals. She has evidence of tolerance (consuming 8 standard drinks without being drunk) although she denied experiencing withdrawal symptoms. However her history, we believe, may be somewhat unreliable regarding this.”

The submissions and further discussion
Ground 1 - Treatment effects

The Panel agreed that this was an error.
As the appellant correctly pointed out:
“The worker herself has acknowledged that her treatment has had limited effect on her psychological condition, telling Procare assessors in November 2022 that in terms of her medications they were “not really” helpful. Further, when asked if she found treatment with her psychologists helpful she reported that ‘aside from referring to not being suicidal she said it was hard to explain in what way it had helped, stating that she has “good days, some bad days’.”
In Zoric v Secretary, Department of Education & Ors [2024] NSWSC 131 (Zoric), Justice Chen said cl 1.32 could be: “understood to involve, and require findings about, the following “steps”: 1. “First, whether there has been effective long-term treatment of an illness or injury. 2. Secondly, whether that treatment results in apparent substantial or total elimination of the claimant’s impairment. 3. Thirdly, whether the claimant is likely to revert to the original degree of impairment if treatment is withdrawn.” Then, “upon satisfaction of each step, the medical assessor may increase the percentage of WPI”.
Given the Medical Assessor’s findings as to Ms Findeis’ level of impairment it simply cannot be said that her treatment has resulted in “apparent substantial or total elimination of the claimant’s impairment”.
On this issue, the Panel said:
“There should be no treatment effect this is confirmed by our examination as there was no evidence of any substantial, let alone total, elimination of her impairment as a result of treatment.”
We agree that in this instance, the Medical Assessor has “misunderstood, misapplied or not considered the evidence.”
For these reasons, we agree with the appellant that this was an error by the Medical Assessor.

Ground 2 – deduction for pre-existing disorder

This was a particularly difficult area for us to determine in light of the extensive evidence referred to by the appellant.
Having said that, on re-examination Medical Assessors Blom and Hong said:
“We determined that there should be no deduction for pre-existing disorder. While we accept that she did experience PTSD and Depressive symptomatology in the late 90s and early 2000’s some of which was related to her motor vehicle accidents, what evidence there is would suggest that she gained complete remission around 2000 and remained reasonably well for some time afterwards. Certainly, this is what the worker insisted upon during this interview.”
We agree with this assessment for reasons that follow.
The Medical Assessor obtained the following history:
“The claimant said she was diagnosed as suffering from depression. She said she was referred to a clinical psychologist (Stephen Hinkleman) by her general practitioner (Dr Cameron) in about mid-1998. She was prescribed Dothep (a tricyclic antidepressant) 75mg at night for about 2½ years. She received cognitive behavioural therapy from the psychologist. She was not admitted to a psychiatric hospital. She was not treated by a psychiatrist. Her condition went into full remission (our emphasis)”
In addition, as the Medical Assessor noted: “The claimant returned to work as a firefighter. She remained working from 2002 until about 2014.”
On the history obtained by the Medical Assessor, notwithstanding some ongoing symptoms, the respondent was able to work for over 12 years.
There are numerous authorities dealing with the correct interpretation of s 323 of the 1998 Act.
Cole v Wenaline Pty Ltd (2010) NSWSC 78 is notable. It is noted that in order for a deduction to be made under s 323 there must be evidence that a pre-existing abnormality; condition; or previous injury actually contributes to the impairment before s 323 is engaged.
In addition, cl 1.6 of the Guidelines provides: “Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment…”
In short, it is a matter of clinical assessment which Medical Assessors Blom and Hong acknowledged when they said: “The evidence was that there had been a full remission so that by the time of the assessment there was no active pre-existing condition to give rise to a section 323 deduction.”
There was certainly evidence to support their conclusion, and the Panel agrees with this assessment.
As the respondent pointed out:
“It should be noted that the conclusion that any prior condition had resolved is consistent with Dr Bisht that there was no evidence of documented psychiatric or psychological symptoms between 2002 to 2014 as stated in the report of 26 August 2024.”
For these reasons, the appellant’s submissions on this issue fail.

Ground 3 – deduction for secondary psychological injury

Medical Assessors Blom and Hong made the following assessment:
“While we acknowledge the existence of considerable orthopaedic related damage impacting the claimant’s knees and ankles with resultant pain and disability we found no evidence at this interview of any current secondary psychiatric disorder such as depression as a result of these injuries. We note that there has been references in the past to depression some of which has been related to her physical injuries although the degree of impact caused by her PTSD on her mood disorder has also been noted. However, we were required to assess the claimant at this time and to draw conclusions about her current symptoms and impairment rather than what may have been in the past. At this session having taken into account the considerable amount of documentation we do not believe a deduction for secondary psychiatric injury is appropriate. We have however disregarded the impacts of pain and disability on her PIRS ratings, particularly as it impacts on her employability.”
The Panel agrees with this assessment.
To begin with, both doctors clearly “acknowledged” past evidence of psychological symptoms related to the respondent’s physical injuries.
Their task was to make an assessment on the day of the examination.
Moreover, the Medical Assessor noted that:
“The claimant’s physical conditions continued to be treated. She was treated with physiotherapy to assist with her neck, back, knees and ankles. She said that in 2018 she had a left knee replacement. She reported other treatments including non-steroidal anti-inflammatory medications such as Celebrex to treat the osteoarthritic changes in her knees, ankles, back and neck. She was also provided with a limited supply of Panadeine Forte.”
In short, she was taking active steps to treat her physical injuries, a task we consider would be very difficult if she was experiencing significant psychological symptoms associated with those physical injuries.
The assessment of any deduction for a secondary psychological injury is a matter of clinical expertise and discretion.
Medical Assessors Blom and Hong made a clinical assessment at the time of their re-examination and concluded that no deduction was warranted.
The Panel has determined that their assessment was consistent with the evidence and their findings on examination.
For these reasons, the Panel has determined that this ground of appeal must fail.

The PIRS assessments

As indicated in our preliminary review of this matter:
“The Appeal Panel has concluded that in light of the Supreme Court decisions in Quintiliani-Johns v Secretary, Department of Education [2024] NSWSC 1200 (25 September 2024) and Southwell v Qantas Airways Ltd [2024] NSWSC 497 where there is a dispute regarding s 323 of the 1998 Act, it is necessary for the worker to be re-examined in respect of all PIRS categories before determining whether there was any part or portion of the impairment which was solely due to the pre-existing condition and not the workplace injury (alone or together with the pre-existing condition.”
The Medical Assessor made the following assessments:
a.   Self-care and personal hygiene:
The claimant reported that she lived alone in her own rented home. The claimant was independent in her self-care and personal hygiene. She did not have any carers attending her home. The claimant was able to shop at her local supermarket. She was able to maintain her own washing of clothes. She was reliant on prepared food from the supermarket, as she had lost interest in her nutrition and cooking. Her nutrition was poor. She had increased in weight. She was unkempt and had not washed, cut, coloured or brushed her hair. She would shower about 3 times each week.
Class 2
b.   Social and recreational activities
The claimant had stopped socialising with all her friends prior to having her employment terminated by the employer. She reported she had lost interest in socialising in her community. She was not a member of any specific club outside of her home. She had no hobby. She had lost interest in, and no longer collected, stamps as she could prior to this assessment. She said she had no dogs and did not have a cockatiel. The claimant said she continued the care of the 3 cats and a cockatoo that had survived the passing of her best friend in November 2014. She said that the 3 cats had been befriended by a stray and she did not have the heart to send this cat away, so it has become part of the clowder. She said she feeds the pets but does not play with them. The claimant said she had contributed to the emergency services Facebook group however; she did not have any video-call or in-person relationships beyond her text messaging. The claimant did not watch television or follow television series as she would have prior to the onset of this primary psychological injury. She reported she no longer enjoyed watching special television events. The claimant said that she no longer attends her friendship circle in the inner city.
Class 3
c.   Travel
The claimant could travel in local and familiar areas without support. She usually walked only short distances up to 15 minutes so that she could access essential medical and psychological appointments. She could use public transport.
Class 2
d.   Social functioning
The claimant reported she had lost contact with Adele and Shaun, who were married and would invite her and her housemate to special events at Christmas and New Years Eve. She had no plan for this Christmas and had not attended any family, group or special event last Christmas or new Year.
The claimant would telephone her mother about once each month to check on her progress and health.
The claimant reported that she was not in any intimate relationship prior to this injury. She said she was not interested in forming a new intimate relationship as she was unable to experience happiness or pleasure in her life. The claimant had no close friends who visited her home. The claimant was not interested in forming new relationships as she found the world ‘inherently untrustworthy” and she feared increased severity of her primary psychological injury symptoms.”
Concentration, persistence and pace
The claimant reported that she could not complete complex tasks such as searching, purchasing, indexing and reselling stamps from her collection as she had done in the past. She said she had become indecisive and increasingly tearful and mistrustful of the world. The claimant was able to manage her finances without falling into financial distress. She reported she struggled to organise her priorities and would be late in paying essential bills. She was not behind in her rent or essential utility bills.
Class 2
Employability
The claimant reported she was registered as a Centrelink Job Seeker. She received the Job Seeker payment from the Australian government. She had not returned to work in any capacity since 2015 when she stopped work. She reported that her Alcohol use disorder increased with her drinking up to 8 standard drinks per night to induce sleep. She reported she was erratic in her capacity to attend to her mutual responsibilities in filling in forms and applications. She had been granted special consideration and was not required to attend the Jobseeker office or apply for work as the assigned job search agency case manager believed she had a very poor prospect of employment due to her primary psychological injury alone.
The Medical Assessor’s final assessment was 17% WPI to which he added 1% for treatment effects making a total WPI of 18%.
He then deducted 3% WPI for the secondary psychological injury from the 18% WPI assessment of the primary psychological injury leaving a total of 15% WPI.
Consistent with the authorities to which we have referred, Medical Assessors Blom and Hong made the following assessments:
(a)    Self-care and personal hygiene: Class 3
Ms Findeis stated that she showers only very irregularly. She said that the last time she took a shower was about a week ago. Sometimes she said that she will go for up to a month without showering. We tried to clarify exactly why she would go for so long especially as she had previously stated that she worked in the garden. She said that after gardening she will wash her hands but she doesn’t feel the need to shower – if she feels that she is “smelly” she will wipe her underarms with wet ones. She said that she can’t be bothered showering and doesn’t feel the need as she rarely goes out.
She also said that for the same reason she only eats once a day. She said sometimes that she cooks but she will often buy a kebab or piece of fish at the local fish shop. She does not eat carbohydrates as far as possible because she believes a “carnivore diet” assists in managing PTSD and anxiety. She said that she had researched this on the Internet.
She said that she changes her clothes every two or three days but only washes her clothes every two or three months. She said that she has enough clothes for “to cycle through” for that time thus avoiding the “hassle” of washing. Again, the issue seemed to be lack of motivation and drive. She said that she only occasionally cleans the house but essentially lives in a mess – she then demonstrated this by using the camera on her computer to show her living room and kitchen which was indeed chaotic with lots of unwashed dishes and other material. It was apparent that there was no clear surface on any of her cupboards, tables or sideboards.
This is moderate impairment – class 3.
(b)    Social and Recreational function.
Ms Findeis has become increasingly withdrawn and avoidant, especially of crowds. She remains in some contact with her friends primarily through text messages. She goes out socially with them approximately once every three months usually joining them at a hotel where they have met for many years, in Enmore in Sydney. This requires her to travel to the venue which she does alone. She has limited hobbies and interests beyond gardening and caring for her several cats and a cockatoo. She also has some interest in researching various theories and beliefs that she has often related to issues around corruption within government services such as Fire and Rescue as well as concerns about Covid and the use of vaccinations, to which she objects. This is mild impairment – class 2
(c)    Travel.
She is able to drive her car in the local area however she becomes anxious driving longer distances because of her difficulties with concentration and focus as well as fear of becoming distressed and anxious. When she travels longer distances she takes public transport, usually a train, for example to attend appointments in Sydney. This is mild impairment – class 2.
(d)   Social Functioning
She continues to have some long-term friendships, for example the friends who text her and with whom she socialises on occasions. However, she has lost many of her friends from the fire service since she left. She has formed a friendship with a woman at the local chemist, who “checks in” on her regularly. She has an older and younger sister but said that they were never close and this has not changed as a result of her injury. This is mild impairment – class 2.
(e)    Concentration, Persistence and Pace
She has some difficulty with her concentration in specific situations. For example, she is unable to attend to a movie throughout the length of the movie because of difficulty focusing. However she can “undertake research” on her phone or computer for up to an hour. This involves both searching the web and reading various websites. She is also able to read other material for at least 30 minutes at a time. She demonstrated a capacity at interview to persist in an interview that lasted two hours and retain reasonable focus. There was no perceptible disruption to her pace during this time, however her memory of chronology and the course of events was significantly impaired. This is mild impairment – class 2.
(f)    Employability.
Currently she suffers from considerable disability and pain associated with her orthopaedic injuries, which would limit her capacity to engage in any form of work. However, as a result of her PTSD she also experiences difficulties with concentration, problems in socialising and substantial difficulties in her personal self-care. She has not worked for many years and would not be able to cope with the demands of even part-time work due to her symptoms which can be quite intrusive. Disregarding her physical injuries, pain and any secondary psychological disorder related to that (which we believed to be reasonably modest) she would still struggle to work for even 10 hours/week and would likely have reduced pace and would be erratic in her attendance. This is severe impairment – class 4.

Additional comments

The Panel deliberated at length as regards the assessments with respect to two of the PIRS categories.
As regards the category of social and recreational activities, in Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781 Stern JA noted that there should be no distinction between activities that occur within or outside of the home and that “the focus is on the social and recreational character of an activity.”
In other words, the character of an activity, whether solo or in a group context, must be the focus of the assessment in this category.
Neither is there a requirement that an activity be both “social” AND “recreational”.
Given the activities described by Ms Findeis, we agree that the evidence supports a Class 2 rating in this category.
As regards the category of self-care and personal hygiene, the Panel notes that the descriptor for a Class 3 reads:
“Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit)
2–3 times per week to ensure minimum level of hygiene and nutrition.”
Although there is no evidence to suggest that Ms Findeis has “regular support” or that a “Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition, ” both Medical Assessors Blom and Hong were able to view the state of Ms Findeis’ kitchen and living areas and in their detailed assessment of her concluded that a Class 3 rating was appropriate.
We all agree.
The examples in Table 11.1 are examples only and are not exclusive.

Conclusion

The assessments are thus:
(a)    Self Care and Personal Hygiene:                Class 3
(b)    Social and Recreational function:               Class 2
(c)    Travel:  Class 2
(d)    Social Functioning:  Class 2
(e)    Concentration, Persistence and Pace:       Class 2
(f)    Employability:  Class 4
This then means that the final PIRS ratings are, in ascending order: 3, 2, 2, 2, 2 and 4. This leads to an aggregate score of 15 and the median score of 2 resulting in WPI of 8%.
The Panel agrees with the assessments of Medical Assessors Blom and Hong, following their joint assessment and the detailed history they obtained from Ms Findeis in making their determination.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 December 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:	W23459/24
Applicant:	Marina Findeis
Respondent:	State of New South Wales (Fire & Rescue NSW)

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 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.	Date of Injury PTSD injury for the period 1992 to 18 May 2023 And Date of Injury Depression and Anxiety from victimisation 6 October 2000	Chapter 11	Chapter 14	8%	Nil	8%
Total % WPI (the Combined Table values of all sub-totals)					8%

[2025] NSWPICMP 580

7 August 2025