State of New South Wales (Western Sydney Local Health District) v Wright

DETERMINATION OF APPEAL PANEL
CITATION:	State of New South Wales (Western Sydney Local Health District) v Wright [2025] NSWPICMP 34
APPELLANT:	State of New South Wales (Western Sydney Local Health District)
RESPONDENT:	Paul Wright
APPEAL PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Graham Blom
DATE OF DECISION:	16 January 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); matter remitted by Court of Appeal which concluded that consent orders precluded the worker relying on events at work after 5 December 2018; demonstrable error in Medical Assessment Certificate (MAC) as found by Court of Appeal; original Medical Assessor included work events after 5 December 2018 as causative of impairment; application to admit further evidence; evidence available to parties prior to original medical assessment; rejection of State’s submission that section 328(3) of the 1998 Act read as only applying to appeals under section 327(3)(b); reference to cases considering second limb of section 352(6) of the 1998 Act irrelevant as provision relates to different statutory test; worker’s submissions that excluded events after 5 December 2018 compensable under common law test of causation contrary to findings of Court of Appeal; worker’s submissions on further construction of consent orders where arguments not put to Court of Appeal; worker estopped from making these arguments as the result would be inconsistent with findings of Court of Appeal: Port of Melbourne Authority v Anshun Pty Ltd applied; worker’s argument that the four concepts in section 4(b)(ii) of the 1987 Act (aggravation, exacerbation, acceleration or deterioration) have different meanings rejected: Harkinson v Darking Island Stevedoring & Lighterage Co Ltd applied; analysis of nature of psychological injury; Medical Assessor/Panel required to make diagnosis of nature of psychological injury: clauses 11.4 – 11.6 of the Guidelines; natural history of worker’s psychological injury was consistent with a slow accumulative decline in functioning; finding of Major Depressive Disorder; appropriate method to exclude work events after 5 December 2018; finding that these were causation of impairment; need to assess impairment at time of assessment; impairment assessed by deducting a contribution to overall impairment for work events after 5 December 2018; assessment of psychiatric injury; worker re-examined by both Medical Assessors; psychiatric impairment rating scale (PIRS) assessed at 22% impairment with no section 323 of the 1998 Act deduction; deduction of one-third for work events after 5 December 2018; impairment assessed at 15%; Held – MAC revoked; claimant assessed at 15% permanent impairment caused by work injury.

BACKGROUND

Mr Wright commenced employment with the State in August 2012 and sustained psychological injury deemed to have occurred on 5 December 2018 (the work injury).
In September 2020 Mr Wright filed an Application to Resolve a dispute seeking compensation pursuant to the Workers Compensation Act 1987 (the 1987 Act). Those proceedings were resolved on the following terms Consent orders):
“1.     Amended ARD as follows: under the heading Injury Details by deleting the date of injury appearing there and replacing it with 5/12/18, by placing a tick in the box for ‘deemed’, and adding the following to the words appearing after injury description/cause of injury: In addition, in the course of employment subsequent to 5 December 2018, as a result of the applicant’s interactions with his supervisors, fellow employees and officers of the defendant, and as a result of his perceptions that his employment was at risk and that he was being bullied, he suffered further aggravation and exacerbation of a psychological condition (‘the additional injury’).
2. Award in favour of the applicant for the injury of 5 December 2018 (deemed date, section 4(b) (ii) of the Workers Compensation Act 1987 (the 1987 Act) for the period 6 December 2018 to 6 March 2019, agreed to be thirteen weeks at the rate of $968.91 per week, and for the period 7 March 2019 to 7 November 2019, agreed to be thirty five weeks at the rate of $786.93
3.     Award in favour of the respondent in respect of any allegation of incapacity beyond 7 November 2019.
4.     Award in favour of the respondent in respect of any entitlement to medical and hospital expenses, subject to notation 2 below.
5.     Award for the respondent in respect of the additional injury alleged and specified in Order 1 above.
6.     Award for the respondent in respect of any allegation of frank injury, that is injury as defined in section 4(a) of the 1987 Act.
7.     Notations:
1.      The applicant agrees and acknowledges that beyond 7 November 2019, he has and has had the capacity to earn, in suitable employment (section 32A of the 1987 act) not less than that which he would be earning but for injury.
2.      The respondent agrees to pay, upon production of accounts, receipts, or Medicare notice of charge, medical and hospital expenses for treatment of the applicant’s psychiatric condition up to the sum of $10,000.
3.      The respondent waives any entitlement to recoup payments of sick leave or annual leave paid during the period of the award.
4.      The applicant agrees that on receipt of the payments referred to above, he will have received all entitlements to weekly benefits and medical expenses to date in respect of work injury.”
On 7 April 2022 Mr Wright commenced further proceedings pursuant to s 66 of the 1987 Act. Following correspondence between the parties the allegation of injury was amended to refer to a deemed date of injury of 5 December 2018 for the period from 20 August 2012 to
5 December 2018.
The medical dispute was assessed by Medical Assessor Hong who issued a Medical Assessment Certificate dated 16 August 2022 (MAC).
The Medical Assessor noted the following history of the incident/onset of symptoms when he stated:
“The issue at work predominantly related to Mr Wright’s manager. He had known her personally because they belong to the same rugby club. He explained the used to play and coaching the club, and had been a member for about 20 years. He does not understand why she would pick on him, and describe that he was subject to mobbing behaviour, excluded by people because of her, and also repeated passive-aggressive behaviour.
He reported that he became sick of the constant harassment and had thought about making a complaint in 2015, then said that it was against his moral belief to do it, especially as they both belong to the same football club.
The most significant incident happened in December 2018 and that was when Mr Wright first stopped working. He received treatment and return to work, but then psychologically deteriorated. He explained there were further problems when he went back to work.
He recalled there were changes being made at work, and the drivers were being transferred to Liverpool and he was looking forward to it because it meant he would not be reporting to the same manager. Suddenly management called him and said that his job was gone, he needed to apply for the Liverpool position the application closer next Monday. He then discovered that all the other drivers do they need to apply in advance, and that again he was the only person being singled out.
Mr Wright had to psychiatric admissions, both in early 2020 in St John of God Hospital. He has also been attending a day program in SJOG Hospital in the last two years, usually once a week. The program finished about four weeks ago.
He said the return-to-work coordinator advised him that he should change department to get away from the manager, he just needed to have a psychiatrist report in support. However, even though he did all that was required, a return to work never happened. He said he was stood down was told there was no job available for him anymore.”
Under work history the Medical Assessor noted:[1]
“Mr Wright had been working at Westmead Hospital as a full-time courier and started in 2012. After his injury, he tried to go back to work around April 2019, three hours a day, three days a week. He said it lasted about six weeks. He recalled he had a meeting with a higher manager before returning to work and was told that he would not be reporting to the same manager who bullied him, that he would report to another manager and the higher manager. However, when he started work, the higher manager did not turn up and the other worker did not know anything about the arrangement. The managing bulletin return to work, and he said that she continued to bully him through the other workers, for example they claimed he has not done the mandatory training online module. He explained to them that he did it, but later discovered that he needed 95% pass, so even though he did the module he did not pass it. He said there was still ongoing problem. She was still harassing him through other people, and eventually he had to stop work.”
[1] Appeal bundle, p 21.
Under the heading “summary of injury and diagnoses”, the Medical Assessor stated:[2]
“Mr Wright described having developed persisting anxiety and depression, as a result of his employment and interaction with his manager. He described difficulties in returning to work. Since he ceased work with Westmead Hospital, he has not been able to attempt other employment and describe chronic functional impairment. Overall, my view is that he developed a Major depressive disorder his impairment has stabilized.
Regarding pre-existing injury, I have not applied a pre-existing impairment deduction on the basis that he suffered depression and anxiety many years ago. All treatment had been ceased, he returned a full psychological functioning and there is no evidence that the previous history contributed to his current impairment.”
[2] Appeal bundle, p 23.
The Medical Assessor noted that there was “no further injury” subsequent to the subject work injury.[3] Under the psychiatric impairment rating scale (PIRS) category for employment and adaptation, the Medical Assessor stated:[4]
“Mr Wright has not worked since the subject injury and his anxieties have a major impact on his capacity to working in the environment.”
[3] Appeal bundle, p 24.
[4] Appeal bundle, p 29.
The Medical Assessor assessed Mr Wright as having a 19% whole person impairment.

APPLICATION TO APPEAL MEDICAL ASSESSMENT

The appellant’s grounds of appeal alleged that the MAC contained a demonstrable error within the meaning of s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The key contention of the State’s ground of appeal was described by the Court of Appeal as follows:[5]
“The key contention of the state of that appeal was that the medical assessor assessed Mr Wright’s permanent impairment without regard to the fact that the certificate determination dated 6 November 2020 was a determination of the commission, by consent, that Mr Wright’s alleged psychological injury arising from events at work after 5 December 2018 was not compensable. More particularly, the State contended that there was demonstrable error as the medical assessor attributed impairment to Mr Wright’s injury on 5 December 2018 that had actually resulted from the “non-compensable” injury subsequent to that date.”
[5] Wright v State of New South Wales [2024] NSWCA 77 (Wright (CA)) at [34].
The Medical Appeal Panel held that the MAC did not contain a demonstrable error and confirmed the MAC.

JUDICIAL REVIEW PROCEEDINGS

The State sought judicial review of the Panel’s determination.
Basten AJ set aside the Panel’s determination.[6] His Honour held that the Medical Assessor, where assessing permanent impairment, considered events in the workplace after 5 December 2018.[7]
[6] State of New South Wales v Wright [2023] NSWSC 757 (Wright (SC)).
[7] Wright (SC) at [36].
His Honour held that the effect of the Consent orders meant that the Medical Assessor was required to exclude any aggravation or exacerbation of the psychological condition for events occurring after 5 December 2018.[8] Further the effect of the Consent orders meant that
[8] Wright (SC) at [40].
[9] Wright (SC) at [51].
Mr Wright did not suffer any further aggravation and exacerbation of his psychological condition as a result of work events after 5 December 2018 and Mr Wright could not rely on that conduct.[9]
Basten AJ held that it was not open for the Panel to conclude that the Medical Assessor gave effect to the legal consequences of the Consent orders.[10]
[10] Wright (SC) at [60].

COURT OF APPEAL

The Court of Appeal dismissed Mr Wright’s appeal.[11] Stern JA, with whom Gleeson and Mitchelmore JJA agreed, noted that there was no dispute that a finding of “psychological injury” gave rise to an estoppel.
[11] Wright (CA).
Stern JA held that the effect of the Consent orders was that Mr Wright could not claim under the 1987 Act for any claimed aggravation and exacerbation of his psychological injury resulting from post 5 December 2018 work related events.[12] Further, on the proper construction of the Consent orders it was not open for the Medical Assessor to find any aggravation and exacerbation resulting from post 5 December 2018 work events either caused or contributed to by the accepted work injury.[13]
[12] Wright (CA) at [79].
[13] Wright (CA) at [85].
In respect of whether the Medical Assessor erred in his findings, Stern JA stated:
“[I]t would have been open to the Medical Assessor to make an assessment of Mr Wright’s permanent impairment having regard to aggravation and exacerbation of Mr Wright’s injury after 5 December 2018 provided that he did not include in that assessment and aggravation and exacerbation which resulted from Post 5 December 2018 Work-related issues. Had the Medical Assessor done so, there would be no demonstrable error in his decision.” (Italicised in original)
Stern JA found that it was not open for the Appeal Panel to find that the Medical Assessor gave effect to the estoppel arising from the consent orders referencing:[14]
(a)   the Medical Assessor never expressly excluded such matter from the assessment;
(b)   it was submitted that the Medical Assessor would be alive to the issue, and
(c)   the MAC includes references in a number of places to past 5 December 2018 work-related events which psychiatrically deteriorated the worker’s condition.
[14] Wright (CA) at [92]-[95].
Considering these reasons Stern JA held that it was incumbent upon any freshly constituted Appeal Panel to revoke the MAC and conduct its own assessment.[15]
[15] Wright (CA) at [99].
The High Court refused leave to appeal the decision of the Court of Appeal.

FINDING OF DEMONSTRABLE ERROR

The matter has been remitted to a differently constituted Appeal Panel in accordance with order 3(a) of the orders of the Court of Appeal.
The Panel issued the following direction to the parties (the Direction):
“1.     The Panel has determined on a preliminary basis, subject to any submission, that the demonstrable error in the Medical Assessment Certificate, confirmed by the Court of Appeal,[16] requires a new assessment of all aspects of the degree of permanent impairment of psychological injury.
2.     We note that any assessment cannot include 'any aggravation and exacerbation which resulted from Post 5 December 2018 Work-related issues’.[17]
3.     We note that the assessment of any permanent impairment must be made on the day of assessment (cl 1.6 of the fourth edition Guidelines).
4.     The parties are directed to file and serve any written submissions on the following matters:
(a)Whether it is accepted/disputed that the new assessment is restricted in any way. If this is disputed, how and why is the new assessment of the degree of permanent impairment restricted?
(b)How is it suggested that the Panel undertake the assessment process by excluding the effects of ‘any aggravation and exacerbation which resulted from Post 5 December 2018 Work-related issues’ if there is a finding that these events contributed to current impairment.”
[16] Wright (CA) at [96].
[17] Wright (CA) at [88].
Following the receipt of the State’s submissions in response to the Direction, the Panel issued a further Direction which provided (further Direction):
“The Panel refers to paragraph 1.2 of the Appellant’s written submissions referencing a statement by Mr Wright dated 20 February 2020.
The further statement of Mr Wright dated 20 February 2020 is referenced by Dr Smith (Reply, p 22).
The State may file the statement as a late document and seek leave noting the restrictions for the admission of further evidence under s 328(3) of the 1998 Act.
We advise that we do not intend to assist a party in obtaining evidence that it should have filed before the original Medical Assessor.
Any further application must be filed forthwith and address how that document is admissible before the Panel.”
The Panel issued a subsequent Direction because Mr Wright’s submissions which appeared to raise arguments on construction of the Consent orders and matters either argued or implicitly connected to matter determined by the Court of Appeal. The subsequent Direction provided:
“The Panel has received the respondent’s submissions, which in part raise:
(a)     Construction of the consent orders are limited to ‘aggravation or exacerbation” of a disease and not to “acceleration or deterioration’;
(b)     The respondent relies on the ‘law of causation’ as distinct from the principles discussed in Johnson and Ozcan and this was not discussed by the Court of Appeal.
(c)     Basten JA held that the worker did not suffer from any further aggravation or exacerbation of his psychological conduct as a result of conduct of the employer after 5 December 2018 and the Court of Appeal confirmed that finding.
Arguments (a) and (b) were not raised with the Courts unless there is no distinction between the ‘law of causation’ and the principles discussed in Ozcan and Johnson.”
A further timetable was set for submissions in reply by the appellant and by the respondent “strictly in reply to the appellant’s further submissions”.
The State filed submissions in reply. Mr Wright did not respond to the State’s reply submissions.
Despite the extensive reasons of the Court of Appeal and Basten AJ, the issues before us have been unnecessarily complicated by the further submissions. As we discuss later, portions of Mr Wright’s arguments are contrary to the decision of the Court of Appeal. Other arguments now raised should have been made when the opportunity arose before the Court of Appeal and Basten AJ.

EVIDENCE

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment.

Mr Wright

Mr Wright has provided a series of statements.
In his initial statement Mr Wright stated that he went off work on 5 December 2018 as he was “just unable to drive” and was “shaking and couldn’t concentrate”.[18] In this statement
[18] Appeal bundle, p 46.
Mr Wright described a series of events in 2017 and 2018 concerning interactions with staff members and management, specifically difficulties interacting with Kaylene.
Mr Wright described putting on a brave face to Dr Smith in January 2019 and feeling better at that time.
Mr Wright provided a further statement dated 8 March 2019. The events surrounding
5 December 2018 were addressed further in this statement which related to an email which had been sent on 7 November 2018 but had not been accessed until that day. Mr Wright stated that an email from Kaylene “sent me over the edge”.
Mr Wright described his return to work on 11 February 2019 working three hours a day, three days a week.[19] He said that he was very stressful and exhausted after each day and was still not feeling entirely well. He described his sleep as “hopeless” and fragmented; his appetite was affected and there was loss of motivation and socialisation.
[19] Appeal bundle, p 49.

Mr Wright provided a further statement dated 9 July 2019.[20]
[20] Appeal bundle, p 51.
Mr Wright described having ongoing problems with Ms Kaylene Collins and referred to issues with respect to a failure to complete mandatory training in February 2019.[21] He said he felt victimised as other drivers, who had not completed the training, were allowed to drive.
[21] Appeal bundle, p 51.
Mr Wirght explained that he had completed the module but had not technically passed the test as one of the modules required a 100% pass mark. This was not explained to him.
Mr Wright stated that his suitable duties were withdrawn in March 2019.
Mr Wright provided a further statement dated 26 May 2020.[22]
[22] Appeal bundle, p 56.
Mr Wright was discharged from hospital on 19 February 2020. On 29 February 2020 he received an email from Indeed Employment stating that Westmead Couriers were advertising for a casual driver. He said this was a big shock to him as he felt like he was getting replaced.[23] Mr Wright was readmitted to hospital on 17 March 2020.
[23] Appeal bundle, p 56.
Mr Wright provided a further statement dated 23 November 2021.[24]
[24] Appeal bundle, p 58.
In relation to the pre and post 5 December 2018 events Mr Wright stated:[25]
“Whilst there were problems upon my brief return to work, these problems pale in comparison to the problems I had with Kaylene and my colleagues over the preceding 3 to 4 years.”
[25] Appeal bundle, p 58.

Ms Toms

Ms Toms is the partner of Mr Wright and provided a statement dated 7 February 2020.[26] She stated that Mr Wright had declined “since his interactions at work with his manager”, that he had “been trying to get back to work insistently for some time” but eventually was admitted to hospital after “deteriorating rapidly since October/November last year”.
[26] Appeal bundle, p 60.

Ms Collins

Ms Collins provided a statement dated 17 December 2018.[27] Ms Collins stated that Mr Wright was placed on a performance improvement plan in 2017 which was closed and a new performance improvement plan 2018 due to excessive sick leave and not having completed mandatory training.
[27] Appeal bundle, p 539.

Associate Professor Robertson

Associate Professor Robertson was qualified by Mr Wright and provided a series of reports. The doctor initially opined that Mr Wright sustained an adjustment disorder which progressed to a major depressive condition
Associate Professor Robertson provided an assessment of 19% and declined to provide an apportionment of the impairment due to work events pre-and post 5 December 2018.

Dr Clayton Smith

Dr Clayton Smith was qualified by the State and provided a series of reports. In the report dated 18 January 2019[28] Dr Smith did not diagnose a psychological condition based on that examination and described the condition as a “normal emotional reaction”.
[28] Appeal bundle, p 494.
In a subsequent report dated 18 March 2020 Dr Smith diagnosed Mr Wright as suffering from an adjustment disorder with depression and anxiety caused by his perception that he was being unfairly treated by Ms Collins and was subject to an orchestrated campaign to remove him from his position. The doctor noted that these events included performance issues, a request to undergo a fitness for work medical assessment in October 2018 and more recently, the decision to relocate Mr Wright’s position to Liverpool Hospital which required drivers to reapply for their positions on short notice.
In a further report dated 16 June 2020 Dr Smith opined that the predominant cause of the aggravation of Mr Wright psychological injury in December 2019 was the decision to relocate the position to Liverpool Hospital and requiring him to reapply for that position.[29]
[29] Appeal bundle, p 506.
In a further report dated 12 July 2021 Dr Smith expressed agreement with Associate Professor Robertson’s opinion that Mr Wright’s condition had evolved to a major depressive disorder.[30] Dr Smith opined that any pre-existing condition was “likely to be 0%” and that no information had been provided to justify a deduction.
[30] Appeal bundle, p 515.
Dr Smith was requested to express an opinion apportioning between the work events pre and post 5 December 2018. Dr Smith stated:[31]
“The Psychiatric Impairment Rating Scale is a tool used to measure psychiatric impairment at the point of assessment, once the patient has reached maximum medical improvement. While there is a means to assess the contribution of a pre-existing condition, in this case injury is not pre-existing, and there is no means for me to separate the effects (however prolonged) of a single injury at various time points. The WPI calculation is the result of the current effects of the work-related injury at this point in time.”
[31] Appeal bundle, p 521.

Cheryl Raj

Ms Raj, psychologist, treated Mr Wright since September 2018.[32] In a report dated
[32] Appeal bundle, p 122.
19 March 2019 Ms Raj noted that whilst Ms Collins worked in the same team, the concern was that Mr Wright’s mental health continued to decline.
In November 2019 Ms Raj noted that Mr Wright was fit to return to work provided he has no direct or indirect contact with Ms Collins.[33]
[33] Appeal bundle, p 123.
In a further report dated 29 July 2020 Ms Raj opined:[34]
“As such it appears that his interactions with Ms Collins, and by extension his employment with Western Sydney Local Health District, has resulted in his presenting psychological injuries. Furthermore, the challenges he has experienced in trying to return to work and to gain support from Western Sydney Local Health District has further contributed to the exacerbation of his mental health and has limited progress of therapy to date.”
[34] Appeal bundle, p 129.
Dr Shirazi, general practitioner (GP) provided a report dated 8 August 2020.[35] The GP noted that Mr Wright was first seen at the practice on 9 August 2018 with symptoms of anxiety and the symptoms deteriorated since the incident at work around November 2018.
[35] Appeal bundle, p 133.
On 10 August 2018 the GP created a mental health plan due to recent flare up of symptoms and diagnosed mixed anxiety and depression.[36]
[36] Appeal bundle, p 143.
The clinical note of the GP dated 5 December 2018 noted work-related stress, anxiety for “several months now mostly secondary to workplace bullying from his employer”.[37]
[37] Appeal bundle, p 420.
The discharge admission from St John of God Hospital Richmond on 14 April 2020 noted worsening of symptoms in the context of legal proceedings related to work and finally his old job advertised recently.[38]

SUBMISSIONS

[38] Appeal bundle, p 209.

Appellant’s submissions dated 14 November 2024

The State submitted that medical evidence demonstrated that the work injury resulted in minor symptoms with Mr Wright returning to employment. It submitted that the excluded injury caused a deterioration in the major depressive disorder and two psychiatric admissions resulting in no current work capacity. The State submitted:
“[T]hat it ought to be found that the excluded injury has a significant contribution to the level of [Mr Wright’s] impairment. To give effect to the [Consent orders], this impairment should be deducted from the overall impairment assessed by the Panel.”
The State referred to the following evidence in support of this submission:
(a)    Mr Wright ceased work on 5 December 2018 and returned on 11 February 2019 on suitable duties in accordance with the certification. The GP indicated the need to “re-acclimatize to the workplace and that he build his capacity every two weeks”.
(b)    Mr Wright worked for approximately six weeks on reduced hours but then went off work due to the withdrawal of suitable duties.
(c)    Mr Wright claimed that he psychologically deteriorated following further negative interactions with his supervisor and other work colleagues. These incidents included:
(i)being informed by Ms Collins that she was wanted to speak to Mr Wright about completion of mandatory training;
(ii)that he could not drive until training was completed despite other drivers being allowed to drive without having completed mandatory training;
(iii)Mr Wright was informed some days later that he only received 92% and had failed a module;
(iv)Mr Wright was informed on 22 March 2019 that his workdays had altered;
(v)Mr Wright was informed on 25 March 2019 that his suitable duties had been withdrawn and he perceived this as a set up, an opportunistic attack or a vindictive move by his employer;
(vi)Mr Wright was informed on 27 March 2019 that his attempts to return to work on suitable duties were unsuccessful because the condition that he have no direct contact with Ms Collins could not be facilitated;
(vii)at some point prior to the first psychiatric admission, Mr Wright was informed that all drivers would have to apply for the driver’s position in the Liverpool area as the jobs no longer existed at Westmead, and
(viii)on 29 February 2020 Mr Wright received an email from Indeed Employment stating that Westmead Couriers were advertising for a casual driver.
The State referred to the following evidence as relevant to the assessment of the degree of permanent impairment:
(a)    the clinical records of Dr Shirazi prior to 5 December 2018 refer to anxiety and depressive symptoms without a formal diagnosis;
(b)    a mental health plan dated 10 August 2018 referred to anxiety and depressive symptoms without any formal diagnosis;
(c)    Dr Smith considered that Mr Wright did not warrant a psychiatric diagnosis in January 2019;
(d)    Ms Raj noted that Mr Wright was fit for work in March 2019 in a different team or role;
(e)    Associate Professor Robertson assessed Mr Wright with a chronic adjustment disorder in May 2019 with a partial incapacity for pre-injury work and the condition was stable;
(f)    in November 2019 noted that Mr Wright continued to experience severe adjustment disorder with depressed mood and anxiety due to ongoing bullying and harassment by the manager;
(g)    Mr Wright was admitted to St John of God Richmond Hospital on
29 January 2020 until 19 February 2020. He was again admitted on
23 March 2020 until 14 April 2020 due to major depression in “the context of legal proceedings related to work and findings on job advertise recently”;
(h)    Dr Smith diagnosed Mr Wright with adjustment disorder with depression and anxiety caused by various events both pre-and post-December 2018;
(i)    in a further report dated 16 June 2020 Dr Smith diagnosed an adjustment disorder which had developed over the course of 2019 which had deteriorated rapidly during this period and by 14 January 2020 Mr Wright was actively suicidal and planning on killing himself;
(j)    in July 2020 Ms Raj commented on the challenges Mr Wright had perceived in trying to return to work and gain support from management which had further contributed to the exacerbation of the mental health. She considered that
Mr Wright had no capacity for work;
(k)    in July 2020 Associate Professor Robertson noted that Mr Wright’s condition had deteriorated to one of major depression noting that the employer’s withdrawal of suitable duties and advertising his position would have proven a psychological affront to his status and suggested that he had bleak employment prospects;
(l)    Mr Wright was certified unfit for work by Mrs Raj in August 2020, and
(m)     in May 2021 Associate Professor Robertson diagnosed a chronic major depressive disorder and assessed whole person impairment at 19%.
In response to the question asked of it, the State referred to the decision of Mercy Connect Ltd v Kiely[39]and submitted that the Panel must deduct the impairment from the excluded injury.
[39] [2018] NSWSC 1421 (Kiely) at [95]-[99].

Respondent’s submissions

Mr Wright submitted that both Basten JA and the Court of Appeal held the effect of the Consent order was that the work events after 5 December 2018 did not cause any aggravation or exacerbation of the accepted work injury.
Mr Wright also submitted that the Consent order only applied to a claim for work events after 5 December 2018 by way of aggravation or exacerbation and it was open for the Appeal Panel to conclude that the work events after 5 December 2018 accelerated or deteriorated the work injury.
Mr Wright relied on the terms of s 4(b) of the 1987 Act which contained “aggravation, acceleration, exacerbation or deterioration” and submitted that each had a “different meaning such that they are not the same thing”[40] citing Cook v Midpart Pty Ltd[41] and Federal Broom Co Pty Ltd v Semlitch.[42]
[40] Respondent’s submissions, [13].
[41] [2008] NSWCA 151 at [40].
[42] [1964] NSWR 511 at 519-520 and 534.
It was submitted that the history of increased symptoms after 5 December 2018 would justify a finding that the post 5 December 2018 work events were a deterioration consistent with the State’s submission that it was after that time that Mr Wright’s condition deteriorated to a major depressive disorder.
Mr Wright submitted that the symptoms experienced after 5 December 2018 “should properly be seen” as a manifestation of the existing injury and he would have suffered those symptoms whenever exposed to the types of stressors he was exposed to on his return to work. It was submitted that “not all manifestation of symptoms are a new injury” citing Commonwealth of Australia v Beattie.[43]
[43] [1981] FCA 88 (Beattie).
The respondent replied to the State’s submission on the manner of assessment and issues on causation. These submissions are addressed subsequently in our Reasons.

Appellant’s submission in reply

The State filed submissions in reply with leave pursuant to a further direction. This was due to the unexpected submissions made by Mr Wright summarised above.
We do not summarise the submissions in reply as they have been addressed, and partially accepted, in our reasons.
We note that our further direction granted leave to Mr Wright to respond. No submissions were received from Mr Wright pursuant to that leave.

DEMONSTRABLE ERROR BY ORIGINAL MEDICAL ASSESSOR

As noted by the Court of Appeal in Wright (CA), the State’s essential argument is that the Medical Assessor failed to have regard to the COD which determined that “Mr Wright’s alleged psychological injury arising from events at work after 5 December 2018 was not compensable.”[44]
[44] Wright (CA) at [34],
Mr Wright submitted that Basten AJ in Wright (SC) determined that the “effect of the consent order was a finding that the events at work subsequent to 5 December 2018 did not cause any aggravation or exacerbation of the accepted work injury”. Reliance was placed on his Honour’s findings at paragraphs 40 and 51. It was further asserted by Mr Wright that the Court of Appeal “confirmed that interpretation of the Consent order”.[45]
[45] Submissions at [10] relying on Wright (CA) at [80].
We do not accept Mr Wright’s submissions. They failed to refer to other relevant passages in Wright (SC) and failed to correctly summarise the findings in Wright (CA).
We agree with the State’s submissions that the findings of the Court of Appeal on the construction of the Consent orders was that Mr Wright could not claim compensation in respect of the excluded injury.[46]
[46] State’s reply submissions at 2.10 referring to Wright (CA) at [79].
Mr Wright’s submission is otherwise inconsistent with the conclusion by Stern JA that Basten AJ held “that the Medical Assessor accepted Mr Wright’s evidence that the psychological condition was aggravated by post 5 December 2018 Work-related Issues”.[47]
[47] Wright (CA) at [90] referring to Wright (SC) at [55].
Our conclusion is consistent with the analysis by Stern JA that the original Medical Assessor erred in failing to exclude from consideration the evidence that the psychological condition was aggravated by post 5 December 2018 work-related issues.[48]
[48] See Wright (CA) at [92] – [95].
The Panel is satisfied, noting the binding findings in Wright (CA)[49] and Wright (SC),[50] that the MAC contains a demonstrable error.
[49] Wright (CA) at [96] and applying the passages at {92]-[95].
[50] Wright (SC) at [55].

CONSEQUENCE OF FINDING OF DEMONSTRABLE ERROR

The Panel’s direction expressed the preliminary view that the demonstrable error “requires a new assessment of all aspects of the degree of permanent impairment of psychological injury”.
Neither the State nor Mr Wright addressed this aspect of the direction.
We accept that we must reassess all PIRS categories and not merely determine the apportionment issue based on the assessment of the PIRS categories made by the Medical Assessor.
In Coca Cola Europacific Partners API Pty Ltd v Pombinho[51] the Court of Appeal held that an error identified by the Appeal Panel under s 323 required a redetermination of all PIRS categories because:[52]
“[I]n order to determine the impact of pre-existing injury on current whole person impairment, a comparative exercise was necessary and that it would be logically incoherent simply to begin the exercise from a fixed starting point (i.e., the 24% whole person impairment assessment made but he Medical Assessor) and then separately to consider the extent to which pre-existing injury contributed to that whole person impairment … without considering the starting point itself.”
[51] [2024] NSWCA 191 (Pombinho).
[52] Pombinho at [86].
Logically, consistent with this observation, an assessment of impairment due to the work events up to 5 December 2018 requires an assessment of overall impairment. This conclusion is consistent with the reasons provided by Stern JA that the Panel is required to “conduct its own assessment of Mr Wright’s permanent impairment and reflect that assessment in a new certificate of assessment”.[53]
[53] Wright (CA) at [99].

EXAMINATION

Mr Wright was examined by both Medical Assessors on the Panel. The examination report is as follows:
“MR PAUL WRIGHT ATTENDED THIS RE-EXAMINATION VIA MS TEAMS REGARDING HIS WORKPLACE INJURY. HE WAS EXAMINED BY BOTH ASSESSOR BAKER AND ASSESSOR BLOM VIA MS TEAMS. MR WRIGHT WAS SUPPORTED BY HIS PARTNER OF 36 YEARS THROUGHOUT THE ASSESSMENT. HE SAID HE HAD ONE SON AGED 34 TO THIS UNION. MR WRIGHT WAS 62 YEARS OLD AT THE TIME OF THIS RE-EXAMINATION.
MR WRIGHT WAS BORN IN AND GREW UP IN BLACKTOWN. HIS FATHER WORKED AS A BAKER, AND HIS MOTHER WAS A PROCESS WORKER. HE REPORTED THAT HE WAS NOT EXPOSED TO ANY CHILDHOOD NEGLECT, TRAUMA, OR ABUSE AND DID NOT SUFFER FROM ANY PSYCHOLOGICAL OR PSYCHIATRIC CONDITIONS OF CHILDHOOD OR ADOLESCENCE. HE WAS EDUCATED TO YEAR 10. AFTER LEAVING SCHOOL, HE COMPLETED FOUR YEARS OF HIS MECHANICS APPRENTICESHIP. HE SAID HE DID NOT RECEIVE THIS QUALIFICATION AS HE DID NOT COMPLETE THE NECESSARY WRITTEN AND THEORY TESTS.
MR WRIGHT REPORTED THAT HE WORKED IN VARIOUS CAPACITIES BEFORE COMMENCING WORK FOR THIS EMPLOYER AS A COURIER. MR WRIGHT REPORTED THAT HE WAS TREATED FOR A BACK INJURY WHILST WORKING FOR AUSTRALIA POST IN THE 1990S. ABOUT THE TIME OF HIS BACK INJURY, MR. WRIGHT ALSO DEVELOPED ‘ANXIETY AND DEPRESSION’. HE WAS TREATED WITH PAROXETINE 20MG. AFTER ABOUT 10 YEARS HE WEANED HIMSELF OFF THE MEDICATION AFTER SEEKING MEDICAL ADVICE. HE SAID HIS LAST JOB BEFORE WORKING FOR THIS EMPLOYER WAS DRIVING A CONCRETE TRUCK.
MR WRIGHT COMMENCED WORK FOR THIS EMPLOYER IN ABOUT 2012 AND STOPPED WORK IN DECEMBER 2018. HE FAILED TO TOLERATE A WORK TRIAL IN MARCH 2019.
MR WRIGHT REPORTED THAT HIS ROLE WORKING FOR THIS EMPLOYER WAS AS A COURIER. HE REPORTED THAT HE WOULD DRIVE BETWEEN WESTMEAD AND BLACKTOWN HOSPITALS. HE SAID HE CARRIED INTERNAL POST AND PARCELS AS WELL AS HUMAN PATHOLOGY SPECIMENS. HE REPORTED THAT HE BECAME THE FOCUS OF MANY YEARS OF BULLYING AND HARASSMENT THAT COMMENCED IN ABOUT 2015 AND BY 2018 HE WAS UNABLE TO EMOTIONALLY TOLERATE HIS WORKPLACE DUE TO THE ONGOING BULLYING, HARASSMENT, AND ‘MOBBING’ BY CO-WORKERS.
MR WRIGHT SAID HE INITIALLY REALLY ENJOYED HIS JOB AS HE COULD SEE HOW HE WAS CONTRIBUTING TO HIS COMMUNITY. HE SAID THAT FOR ABOUT 1 YEAR BEFORE STOPPING WORK IN 2018, HE WAS BECOMING INCREASINGLY AGITATED, IRRITABLE, AND ANGRY. HE SAID HE WOULD HAVE ANGRY OUTBURSTS IN HIS CAR WHILST DRIVING TO WORK. HE CONCLUDED THAT HE HATED HIS WORKPLACE. HE WOULD GO OFF ON SICK LEAVE TO MANAGE HIS INCREASING EMOTIONAL FRAGILITY AS WELL AS TO AVOID BECOMING EMOTIONALLY OVERWHELMED AND DISTRESSED IN FRONT OF THOSE WHO BULLIED AND HARASSED HIM.
MR WRIGHT PROVIDED A COMPLEX WORK HISTORY WHERE HIS SOCIAL AND RECREATIONAL ACTIVITIES BECAME ENTWINED WITH HIS WORKPLACE BECAUSE THE EMPLOYER HAD PLACED A MEMBER OF HIS RUGBY UNION CLUB AS A MANAGER TO DIRECT HIM. HE SAID HE WAS A MEMBER OF THE BLACKTOWN RUGBY UNION CLUB. HE SAID THAT HE HAD PLAYED FOR THE CLUB AS A YOUTH AND YOUNG ADULT. HE CONTINUED HIS ROLE AS A COACH ON HIS RETIREMENT AS A PLAYER. HE SAID THAT HE HAD DEVELOPED A STRONG WORKING RELATIONSHIP WITH A FEMALE MEMBER OF THE CLUB WHO WAS ALSO ACTIVE IN COACHING JUNIORS, VOLUNTEER WORK, AND FUND-RAISING ACTIVITIES. MR WRIGHT REPORTED THAT HE TRUSTED THIS CLUB MEMBER, BEFORE HER EMPLOYMENT WITH THIS EMPLOYER.
MR WRIGHT SAID HE WOULD CONFIDE IN THIS MANAGER AS HE HAD KNOWN HER FOR A LONG TIME BEFORE HER EMPLOYMENT AS MANAGER DIRECTING HIM AT WORK. HE SAID THAT HE WAS SUBSEQUENTLY BETRAYED BY THE FEMALE MANAGER. HE SAID HE WAS UNABLE TO RECONCILE THAT SHE HAD BETRAYED HIM. HE STATED THAT SHE WAS THE PRIMARY REASON FOR THE SUBSEQUENT BULLYING, HARASSMENT, AND MOBBING HE EXPERIENCED. HE SAID BECAUSE OF THE BETRAYAL THE MOBBING, BULLYING, AND HARASSMENT CONTINUED UNABATED, AND HE SUFFERED THIS PRIMARY PSYCHOLOGICAL INJURY.
THE PSYCHOLOGICAL INJURY
MR. WRIGHT SAID THAT THE BULLYING AND HARASSMENT CONTINUED AND INCREASED IN SEVERITY WITH THE INTENSITY OF HIS PRIMARY PSYCHOLOGICAL INJURY SYMPTOMS INCREASING DURING THE LAST 12 MONTHS OF HIS WORK BEFORE HE BECAME DEPRESSED IN HIS MOOD TO WORK. HE REPORTED HIS MOOD BECAME INCREASINGLY DEPRESSED AND ANGRY. HE WOULD QUICKLY BECOME EMOTIONALLY OVERWHELMED. HE SAID THAT HE WOULD OFTEN SUFFER FROM ANGRY OUTBURSTS WHILST HE DROVE TO HIS EMPLOYMENT EACH SHIFT. SOMETIMES HIS EMOTIONS WERE TOO SEVERE, AND HE WOULD ABANDON HIS ATTEMPT TO WORK AND CALL IN SICK. HE SAID HE WOULD BE TAKEN OFF HIS RUN BY HIS MANAGER WITHOUT NOTICE. HE SAID HE WAS DIRECTED TO DRIVE THE PATIENT TRANSPORT BUS INSTEAD OF WORKING HIS PRIMARY ROLE AS A COURIER. HE SAID HE HAD FOUND DRIVING THE PATIENT TRANSPORT BUS DIFFICULT BECAUSE HIS MOTHER HAD MADE CONSTANT COMPLAINTS ABOUT THE DRIVERS WHILST SHE WAS ILL. HE REPORTED HE WOULD HAVE INTRUSIVE DEPRESSING RUMINATIONS ABOUT HIS MEMORIES REGARDING DRIVERS OF THIS SERVICE.
MR. WRIGHT REPORTED HE TRIED TO KEEP A POSITIVE FOCUS AND REALISED HE COULD MAKE A DIFFERENCE BY HELPING WITH DRIVING THE PATIENT TRANSPORT BUS. HE FELT HE HAD BEEN UNFAIRLY EXCLUDED FROM HIS PRIMARY ROLE AS A COURIER BY HIS MANAGER AND THAT HER ACTIONS WERE AN ATTEMPT TO CONTINUE HER BULLYING AND HARASSMENT OF HIM.
MR WRIGHT REPORTED THAT WHEN HE WAS ON THE ROSTER TO WORK AS A COURIER, HE WOULD OFTEN DISCOVER THAT THE PRIOR DRIVER HAD NOT COMPLETED ALL THE NECESSARY DUTIES AND THAT THE SERVICE WAS BEHIND IN MEETING ESSENTIAL DEADLINES. HE SAID HE WOULD BE OVERLOADED WITH WORK AS HE TRIED TO COMPLETE HIS WORK AS WELL AS THE OTHER DRIVER’S WORK THAT WAS NEGLECTED. HE INFORMED HIS MANAGER HOWEVER THE OUTCOME WAS THAT MORE WORK WAS LEFT FOR HIM TO PERFORM THE NEXT SHIFT. HE FELT HE WAS BEING PUNISHED BY THE OTHER DRIVERS AND CO-WORKERS. HE SAID HE WAS ALSO EXCLUDED FROM ESSENTIAL INFORMATION AND THAT HE WAS NOT INVITED TO BE PART OF THE GROUP OR ATTEND SOCIAL FUNCTIONS RELATED TO HIS WORK. HE SAID THAT THE OTHER COURIERS WOULD PHYSICALLY MOVE AWAY FROM HIM AND KEEP A DISTANCE FROM HIM WHENEVER THEY WERE IN THE SAME AREA AT WORK. HE SAID THAT THE OTHER COURIERS REFUSED TO SPEAK TO HIM AND PERFORM ESSENTIAL HANDING OVER OF INFORMATION OR TASKS.
MR WRIGHT REPORTED HIS CONCERNS TO HIS MANAGER. HE WAS HOPEFUL THAT AS A RUGBY CLUB MEMBER, SHE WOULD UNDERSTAND HIM AND WHAT WAS HAPPENING TO HIM. HE SAID THIS WAS NOT THE CASE AND IN DECEMBER 2018 HE WAS TOO EMOTIONALLY DISTRESSED, ANGRY, FRUSTRATED, AND DEPRESSED IN HIS MOOD TO WORK. HE REPORTED SEVERE ANTICIPATORY ANXIETY AS HE APPROACHED HIS WORKPLACE. HIS PRIMARY PSYCHOLOGICAL INJURY SYMPTOMS BECAME TOO SEVERE AND HE STOPPED WORK.
HISTORY OF SYMPTOMS CAUSED BY THE PRIMARY PSYCHOLOGICAL INJURY
MR. WRIGHT WAS ASKED WHAT PSYCHOLOGICAL SYMPTOMS HE SUFFERED BEFORE THE ONSET OF THIS PRIMARY PSYCHOLOGICAL INJURY. INITIALLY, HE REPORTED THAT HE WAS WELL. HE REPORTED THAT WHILST SUFFERING FROM PERSISTENT BACK PAIN WHILST WORKING AT AUSTRALIA POST IN THE 1990S HE EXPERIENCED SOME ANXIETY. HE SAID THAT THE ANXIETY WAS NEVER DIAGNOSED AS A SPECIFIC CONDITION AND AS HIS PHYSICAL CONDITION IMPROVED HIS PAIN-RELATED ANXIETY SYMPTOMS ALSO RESOLVED IN FULL.
MR. WRIGHT SAID HIS SYMPTOMS FROM THE WORKPLACE BULLYING AND HARASSMENT HAD FLUCTUATED IN SEVERITY OVER A LONG TIME. HIS GENERAL PRACTITIONER PRESCRIBED HIM (LOVAN) FLUOXETINE IN 2016. HE WAS THEN REFERRED TO A PSYCHOLOGIST. THE PSYCHOLOGIST DOCUMENTED THAT MR. WRIGHT WAS NOT IMPROVING HOWEVER, HE WAS STILL ATTENDING HIS WORKPLACE.
MR. WRIGHT WAS ASKED ABOUT THE MEDICAL RECORD OF HIM SUFFERING FROM ‘DEPRESSION/ANXIETY’ AS DOCUMENTED IN THE MEDICAL RECORD DATED 22 JUNE 2017. HE CONFIRMED THAT THIS WAS PART OF THE ONGOING BULLYING AND HARASSMENT AND THAT HE HAD CONTINUED TO REPORT THE PROBLEMS TO HIS GENERAL PRACTITIONER. BY 6 SEPTEMBER 2017 THE GENERAL PRACTITIONER HAD DOCUMENTED ‘WORKPLACE STRESS’ AND THEN ON 12 DECEMBER 2017 THE GENERAL PRACTITIONER DOCUMENTED ‘DEPRESSION – ON LOVAN – CONTINUE CURRENT DOSE’.
MR. WRIGHT REPORTED EXPERIENCING PANIC ATTACKS WHILST WORKING. HE STATED THAT HIS DEPRESSED MOOD, LOSS OF INTEREST IN ATTENDING THE GYM, AND SOCIALIZING WITH HIS WIFE AND SON, POOR SLEEP, AGITATION, IRRITABILITY, LOW ENERGY, FATIGUE, AND INCREASING DEPRESSIVE RUMINATIONS OF HOPELESSNESS CONTINUED. WHILST SYMPTOMATIC AND RECEIVING THE INITIAL PHASES OF TREATMENT WITH PSYCHOLOGICAL COUNSELLING AND LOVAN (FLUOXETINE 20MG CAPSULE) ONCE DAILY TO TREAT HIS PRIMARY PSYCHOLOGICAL INJURY, MR. WRIGHT CONTINUED TO ATTEND WORK. HIS MENTAL STATE BECAME MORE NEGATIVE. HE BECAME MORE IRRITABLE AND HIS DEPRESSIVE RUMINATIONS OF BETRAYAL, HOPELESSNESS, AND HATING THE WORKPLACE INCREASED. AFTER A FURTHER EVENT ON 5 DECEMBER 2018, MR. WRIGHT WAS UNABLE TO WORK.
MR. WRIGHT ATTENDED DR SMITH IN JANUARY 2019. AT THAT ATTENDANCE, THE CLAIMANT WAS DIAGNOSED AS HAVING INSUFFICIENT SYMPTOMS TO REACH DSM-5-TR CRITERIA FOR ANY CONDITION. THE PANEL NOTES THAT THERE IS AN ESSENTIAL NEED TO UNDERSTAND THE CLAIMANT’S PRIMARY PSYCHOLOGICAL INJURY AS A WHOLE, OVER THE ENTIRE PERIOD OF EMPLOYMENT AS THE SYMPTOMS EXPECTED BY MR. WRIGHT DATE BACK TO ABOUT 2016 WHILE MR WRIGHT, AT HIS INITIAL PRESENTATION TO DR SMITH MAY HAVE ONLY DISPLAYED LIMITED SYMPTOMATOLOGY , THE PANEL BELIEVES THAT DR SMITH FAILED TO APPROPRIATELY TAKE INTO ACCOUNT THIS LENGTHY PREVIOUS HISTORY.. DR SMITH SUBSEQUENTLY DIAGNOSED MR WRIGHT WITH AN ADJUSTMENT DISORDER WHEN REVIEWED.
MR. WRIGHT REPORTED THAT HE DID ATTEMPT TO RETURN TO WORK AFTER A FEW WEEKS HOWEVER HE WAS NEVER SUCCESSFUL IN RETURNING TO HIS PRIOR EMPLOYMENT. HE REPORTED THAT SUITABLE DUTIES WERE WITHDRAWN BY HIS EMPLOYER.
MR. WRIGHT ATTENDED A/PROFESSOR MICHAEL ROBERTSON ON 28 MAY 2019, WHO DOCUMENTED ‘MR. WRIGHT ATTEMPTED A RETURN TO WORK [SIC PROGRAM] IN MARCH 2019, CITING FINANCIAL DIFFICULTIES. HE ATTEMPTED A GRADED INCREASE IN HOURS. ALTHOUGH WHEN HE HAD NOT FOUND ALTERNATIVE DUTIES HE WAS FURTHER ANTAGONIZED BY KC AFTER RETURNING TO THE SAME WORKPLACE SITUATION HE CEASED DUTIES.’
MR. WRIGHT WAS ASKED AS TO HOW HE FELT ABOUT RETURNING TO WORK. HE SAID HE WAS LEFT TO FIND HIS OWN ROLE AND THE PEOPLE WHO HAD ‘PROMISED TO HELP’ NEVER FOLLOWED THROUGH ON THEIR PROMISE. HE LOOKED BACK ON THIS RETURN TO WORK AS ANOTHER INCIDENT OF BULLYING AND HARASSMENT BY HIS EMPLOYER. HE WAS UNSUCCESSFUL IN FINDING ALTERNATIVE EMPLOYMENT.
A/PROFESSOR MICHAEL ROBERTSON ON 28 MAY 2019 DIAGNOSED MR. WRIGHT AS SUFFERING FROM CHRONIC ADJUSTMENT DISORDER WITH ANXIETY AND DEPRESSED MOOD. THIS WAS THE DIAGNOSIS CONFIRMED BY THE TREATING PSYCHIATRIST AT THE TIME OF MR. WRIGHT’S ADMISSION TO THE ST JOHN OF GOD PSYCHIATRIC HOSPITAL IN JANUARY 2020. HE WAS ADMITTED BETWEEN 29 JANUARY 2020 TO 19 FEBRUARY 2020
IN FEBRUARY 2020 ANOTHER ATTEMPT TO FIND WORK AT LIVERPOOL HOSPITAL VIA RECEIPT OF AN EMAIL WAS UNSUCCESSFUL. MR. WRIGHT REPORTED THAT HE EXPECTED TO RETURN TO HIS ROLE AT WESTMEAD HOSPITAL AND NOT BE TRANSFERRED TO LIVERPOOL HOSPITAL. HE FELT HIS EMPLOYER HAD WITHHELD IMPORTANT INFORMATION FROM HIM CONCERNING HIS RETURN-TO-WORK GOALS.
MR. WRIGHT REPORTED THAT HIS MENTAL STATE DETERIORATED AGAIN QUICKLY. HE WAS READMITTED TO ST JOHN OF GOD PSYCHIATRIC HOSPITAL AGAIN ON 23 MARCH 2020 UNTIL 14 APRIL 2020. AT THIS TIME THE DIAGNOSIS WAS REVIEWED AND DUE TO THE CLAIMANT BEING MORE SYMPTOMATIC WITH DEPRESSIVE SYMPTOMS HE WAS DIAGNOSED WITH ‘MAJOR DEPRESSION’. IN JULY 2020 MR. WRIGHT AGAIN ATTENDED A/PROFESSOR MICHAEL ROBERTSON WHO REVISED HIS DIAGNOSIS TO “MAJOR DEPRESSION”. ON 3 MAY 2021, A/PROFESSOR MICHAEL ROBERTSON CONFIRMED A DIAGNOSIS OF “CHRONIC MAJOR DEPRESSION.” THE PANEL NOTED THAT THIS WAS THE CURRENT DIAGNOSIS BEFORE THIS RE-EXAMINATION.
MR. WRIGHT WAS ASKED ABOUT HIS CONSUMPTION OF ALCOHOL. HE SAID HE WOULD DRINK 2 – 3 SMALL BOTTLES OF BEER, NO MORE THAN TWO NIGHTS PER WEEK. HE SAID HE HAD COMPLIED WITH HIS GENERAL PRACTITIONER’S ADVICE TO NOT DRINK EXCESSIVELY. HE DID NOT MEET THE CRITERIA FOR AN ALCOHOL USE DISORDER IN COMPLIANCE WITH DSM-5-TR.
TREATMENT
MR. WRIGHT REPORTED HE ATTENDED A PSYCHIATRIC HOSPITAL FOR THE FIRST TIME IN JANUARY 2020. HIS SECOND ADMISSION WAS IN MARCH A FEW WEEKS LATER. HE HAD NOT BEEN READMITTED TO A PSYCHIATRIC HOSPITAL SINCE. HE HAD ATTENDED AN OUTPATIENT DAY PROGRAM AS A FOLLOW-UP FOR THE TREATMENT OF MAJOR DEPRESSION.
MR. WRIGHT REPORTED HE WAS PRESCRIBED EFFEXOR XR (VENLAFAXINE) 225MG DAILY. THIS IS AN EVIDENCE-BASED TREATMENT FOR MAJOR DEPRESSION. HE ALSO WAS PRESCRIBED ZOPICLONE 7.5MG AT NIGHT. THIS IS AN EVIDENCE-BASED TREATMENT FOR INSOMNIA A SYMPTOM OF MAJOR DEPRESSION.
MR. WRIGHT PREVIOUSLY HAD BEEN TRAILED ON THE FOLLOWING ANTIDEPRESSANT MEDICATIONS ESCITALOPRAM, QUETIAPINE, DIAZEPAM, AND FLUOXETINE 40 MG WITHOUT REMISSION OF THIS PRIMARY PSYCHOLOGICAL INJURY.
MR. WRIGHT HAD BEEN TREATED BY A PSYCHOLOGIST. HE WAS TREATED WITH COGNITIVE BEHAVIOURAL THERAPY AND MINDFULNESS AND RELAXATION THERAPY. HE WAS ALSO PSYCHOLOGICALLY TREATED AS A DAY PATIENT ON DISCHARGE FROM THE PSYCHIATRIC HOSPITAL IN APRIL 2020. IN TOTAL, HE HAD MORE THAN 4 YEARS OF PSYCHOLOGICAL TREATMENT FOR THIS PRIMARY PSYCHOLOGICAL INJURY.
MR. WRIGHT HAD BEEN TREATED BY A CONSULTANT PSYCHIATRIST FOR THIS PRIMARY PSYCHOLOGICAL INJURY BEFORE THIS RE-EXAMINATION AND WHILST IN HOSPITAL. HE WAS COMPLIANT WITH HIS GENERAL PRACTITIONERS AND MEDICAL TEAM'S ADVICE.
MR. WRIGHT STATED THAT HE WAS MEDICALLY RETIRED FROM ALL EMPLOYMENT IN MARCH 2021.
MENTAL STATE EXAMINATION
MR. WRIGHT ATTENDED THIS RE-EXAMINATION WEARING UNWASHED AND UNIRONED CLOTHES. HIS HAIR WAS UNWASHED AND UNCOMBED. HE HAD AN UNWASHED AND UNGROOMED BEARD. HE SPOKE IN ANGRY SHORT SENTENCES. HIS SPEECH WAS NORMAL IN RATE AND RHYTHM. HE DID RAISE HIS VOICE WHEN HE WAS IRRITABLE, AGITATED, OR ANGRY. HE REPORTED A SAD DEPRESSED MOOD MOST OF THE DAY NEARLY EVERY DAY. HE REPORTED BEING ANGRY AND THAT HE WOULD HAVE PANIC ATTACKS WHICH HE FOUND DISTRESSING. HIS AFFECT WAS CONGRUENT WITH HIS REPORTED MOOD.
MR. WRIGHT WAS ORIENTATED IN TIME, PLACE, AND PERSON. HE COMPLAINED OF POOR CONCENTRATION AND DIFFICULTY COMPLETING ANY TASK. HE REPORTED A LOSS OF INTEREST IN ACTIVITIES SUCH AS BOXING, GYM, AND SOCIALISING WITH HIS SON AND WIFE. HE SAID HE COULD NOT CONCENTRATE TO PERFORM THE COMPLEX TASKS WHICH HE HAD AT WORK. HE SAID HE WAS MEDICALLY RETIRED FROM HIS PRIMARY ROLE. HE FOUND NO OTHER WORK AND FELT HOPELESS AND WORTHLESS. HE SAID HE SPENT MOST OF HIS DAYS ISOLATED AND ALONE. HE SAID HE COULD NOT EXPERIENCE HAPPINESS OR PLEASURE. HE HAD LOST INTEREST IN INTIMACY WITH HIS PARTNER.
MR. WRIGHT DID SPEAK ABOUT ANGRY INTRUSIVE AND DEPRESSING THOUGHTS OF DEATH AND SUICIDE. HE HAD NOT PLANNED TO HARM HIMSELF. HE SAID HE ATTENDED THE HOSPITAL BEFORE COMPLETING SUICIDE. HE REMAINED AMBIVALENT AND LACKED THE MOTIVATION TO FORM PLANS REGARDING HIS FUTURE.
MR. WRIGHT DID NOT REPORT ANY DELUSIONAL IDEAS OR PSYCHOTIC SYMPTOMS. HE DID REPORT RECURRENT DEPRESSIVE RUMINATIONS ABOUT BEING BETRAYED BY HIS MANAGER AND SET UP TO FAIL BY HIS EMPLOYER.
MR. WRIGHT WAS INSIGHTFUL INTO HIS CONDITION. HIS JUDGMENT WAS NORMAL. HIS CONCENTRATION, PERSISTENCE, AND PACE WAS SLOW. HE REQUIRED PROMPTING TO REMAIN ON TRACK THROUGHOUT THE RE-EXAMINATION, ESPECIALLY AT TIMES WHEN HE WAS ATTEMPTING TO RECOVER FROM RUMINATING ABOUT BETRAYAL AND THE OVERWHELMING EMOTIONS OF DISTRESS AND FAILURE, THAT HE EXPERIENCED WITH THESE DEPRESSIVE THEMES.
DIAGNOSIS
MR. WRIGHT HAD BEEN DIAGNOSED WITH DIFFERENT PSYCHIATRIC CONDITIONS INCLUDING ADJUSTMENT DISORDER WITH MIXED ANXIETY AND DEPRESSED MOOD, MAJOR DEPRESSIVE DISORDER, AND “’PSYCHIATRIC CONDITION.’
DETAILED RE-ASSESSMENT AND CONSIDERATION OF ALL THE PROPOSED DIAGNOSES WERE MADE BY THE MEDICAL ASSESSORS.
THE MEDICAL ASSESSORS BAKER AND BLOM HAD DIAGNOSED MR. WRIGHT AS MEETING THE CRITERIA FOR DSM-5-TR F32.1 MAJOR DEPRESSIVE DISORDER.
THE MEDICAL ASSESSORS NOTE THAT THE CLINICAL PRESENTATION OF THE NUMBER AND SEVERITY OF SYMPTOMS REPORTED TO VARIOUS MEDICAL ASSESSORS AND CLINICIANS HAS FLUCTUATED. FLUCTUATION OF MAJOR DEPRESSIVE DISORDER SYMPTOMS IS CLINICALLY COMMON. IN ASSESSING MR. WRIGHT’S PRIMARY PSYCHOLOGICAL INJURY IT IS CLINICALLY NECESSARY TO CONSIDER THE FULL HISTORY OF THE CLAIMANT'S CONDITION AND NOT BE RELIANT SOLELY ON THE CLAIMANT’S PRESENTATION AT ANY ONE ASSESSMENT AT ANY SPECIFIC INTERVIEW. WHEN ALL THE PRESENTED CLINICAL ASSESSMENTS ARE ASSESSED AS A WHOLE FROM ANY TIME SINCE THE ONSET OF THIS PRIMARY PSYCHOLOGICAL INJURY THE CLAIMANT DID MEET THE MINIMUM NECESSARY CRITERIA FOR MAJOR DEPRESSIVE DISORDER. MR. WRIGHT WAS AWARE THAT THE SEVERITY OF HIS CONDITION HAD BEEN MORE SEVERE, ESPECIALLY AT THE TIME OF HIS SECOND PRESENTATION TO THE PSYCHIATRIC HOSPITAL BETWEEN MARCH AND APRIL 2020.
IN THE MEDICAL ASSESSOR'S OPINION, THE BEST DIAGNOSIS TO FULLY EXPLAIN ALL OF MR. WRIGHT’S PRESENTATIONS IS DSM-5-TR F32.1 MAJOR DEPRESSIVE DISORDER.
THE DIAGNOSIS OF ADJUSTMENT DISORDER OF ANY TYPE IS EXCLUDED ONCE THE DIAGNOSIS OF MAJOR DEPRESSIVE DISORDER IS MADE USING DSM-5-TR CRITERIA. FOR THIS REASON, THE ADDITIONAL DIAGNOSIS OF ADJUSTMENT DISORDER IS EXCLUDED.
Consistency of presentation
Mr. Wright’s presentation was consistent with the other assessment. The Panel notes that there is only a small number of symptoms that separate a diagnosis of adjustment disorder from major depressive disorder. It is not clinically uncommon for people who develop a major depressive disorder to present at times with lesser psychological symptoms.
Assessment of Whole Person Impairment
Self-care and personal hygiene
Mr. Wright was unable to live independently. He was reliant on his wife to prompt him to shower and take him to the barber. He was fully dependent on his wife to purchase and cook all the food. His son would perform the house maintenance and garden. He did not participate in the daily activities of his home. Should his wife not prompt him to maintain his self care and personal hygiene he would not shower for many days until his body odour would become upsetting to others in the home. He was assessed as Class 3, moderately impaired for his assessment of self care and personal hygiene.
Social and recreational activities
Mr. Wright was no longer a member of his rugby union football club. He no longer was interested in helping at the club. He was not interested in attending the gym. He was not interested in coaching or training young people to improve their sports skills. He was not interested in socialising with his wife or son. He would rarely attend social and recreational activities with a support person that was mainly his wife. He would organise to leave the event early as he felt distressed in crowds. He was assessed as Class 3, moderately impaired for his assessment of Social and recreational activities.
Travel
Mr. Wright was able to travel within his local and familiar area. He required à support person when travelling longer distances. He would not be fit to drive heavy vehicles such as trucks commercially as he had before this primary psychological injury. Mr. Wright's primary psychological injury alone would impair his capacity to drive any commercial vehicle due to his depressive symptoms, depressive rumination of betrayal, and recurrent suicidal thoughts. He was assessed as Class 2, mildly impaired in his assessment of travel.
Social functioning
Mr. Wright was impaired in his social functioning due to his loss of intimacy with his wife. He had lost interest in spending time with his wife and son. He would prefer to isolate himself and be alone, so his angry outbursts did not upset his wife and son.
Mr. Wright reported having lost his social network since the onset of this primary psychological injury. He was assessed as Class 2, mildly impaired in his assessment of social functioning.
Concentration persistence and pace
Mr. Wright no longer was able to plan, organise, or be persistent with complex tasks. He could not complete the minimum necessary tasks that he had easily completed before this primary psychological injury. He no longer read the news or participated in cooking. He had lost interest in almost all things. He required prompting to remain on task during the re-examination. His pace of progress through the re-examination was slow. His concentration was impaired by intrusive distressing angry thoughts of betrayal and worthlessness. He was assessed as Class 3, moderately impaired for his assessment of concentration persistence and pace.
Employability
Mr. Wright was medically retired from his employment with his employer before this re-examination. He remains totally impaired concerning his employability as evidenced by his recurrent depressive ruminations of betrayal, recurrent and frequent suicidal thoughts as well as his inability to work at a fast enough rate to have any reasonable chance of employment in any employable role within the Australian workforce. He was assessed as Class 5, totally impaired for all employment.
Median   3
Aggregate Score   18
Whole person impairment          22% WPI
Treatment Effect   0% WPI
There was no adjustment for treatment effects as the claimant’s condition would not change with or without treatment and his condition had not responded to multiple trials of various treatments for his primary psychological injury. In the Panel’s opinion, the withdrawal of treatment would not have resulted in the condition been worse because Mr Wright’s presentation was consistent with a major depressive disorder that was treatment-resistant. A treatment resistant major depressive disorder commonly does not either improve or deteriorate with treatment as the condition remains on a slow gradual deterioration in keeping with the natural history that is clinically known and seen in Mr Wright’s primary psychological injury. For these reasons, no adjustment for treatment effect was made
Pre-existing condition      Nil.
There was no pre-existing psychological condition before the onset of this primary psychological injury. Whilst Mr Wright had been diagnosed with anxiety symptoms this was related to his pain. Anxiety symptoms are clinically common when a patient is experiencing pain. As reported in the medical record Mr Wright experienced anxiety with pain. Paroxetine is a known medication that is used in patients who suffer from pain with anxiety. From careful review on the medical record forwarded with this re-examination, there was no pre-existing psychiatric symptoms suffered by Mr Wright before his commencement of employment with this employer. The Panel notes that the long-term use of Paraxietine for pain-related psychiatric symptoms is clinically well known.
The Panel notes that Dr Hong wrote under the heading, ‘Past Psychiatric History’ that Mr Wright experienced pain from his back injury with the psychiatric symptoms of ‘depression and anxiety’. Dr Hong concluded in his certificate under the heading,
‘Evaluation of Permanent Impairment, in response to question:
8.e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
No, there is no pre-existing relevant psychological condition. (bold emphasis from Dr Hong’s certificate)’.
From careful consideration of the above reports as well as the report of Mr Wright at the time of the re-examination, the Panel concluded that he did not have a pre-existing psychiatric condition that would have met DSM III or DSM IV criteria for a formal diagnosis. DSM III and DSM IV were the diagnostic manuals current at the time of treatment of his pain and psychiatric-related symptoms due to his back pain, experienced by Mr Wright during the 1990’s.
The Panel notes that the diagnosis of adjustment disorder was revised to major depressive disorder between 19 February 2020 and 23 March 2020.
Before 19 February 2020 the Panel found that Mr. Wright's expectations and behaviours were consistent with further attempts to return to work. After discharge from the psychiatric hospital in April 2020 the claimant’s condition had not improved, and he was medically retired from his work in 2021. Since 2021 Mr. Wright has not been able to work in any capacity. He received a total and permanent disability benefit, at the time of this re-examination.
Mr. Wright’s capacity to maintain his independence in self-care and personal hygiene as well as his capacity to concentrate had also deteriorated clinically after his discharge from his first admission to the psychiatric hospital as these symptoms were used in confirmation of the revised diagnosis of major depressive disorder, by the clinical team in March 2020 and subsequently by A/Professor Michael Robertson.
The Medical Assessors assessed the change in impairment experienced by Mr Wright. The permanent psychiatric impairment was mainly due to the many years of bullying and harassment the claimant experienced as at 5 December 2018.
Mr Wright did confirm events that occurred after 5 December 2018, however, the main loss of psychological functioning was not due to these additional events. The reasons, for this finding a as follows:
a.Psychiatric symptoms may vary in number and severity with or without loss of permanent psychiatric impairment.
b.The contribution to Mr Wright’s whole person impairment resulting from the many years of bullying and harassment as at 5 May 2018 was for a much longer period than after this date.
c.The permanent psychiatric impairment increased accumulatively from the initial date of onset and was present before Mr Wright had failed to tolerate his return-to-work plan.
d.The events after 5 December 2018 were understood by Mr Wright as being a continuation of the years of bullying and harassment he had experienced before 5 December 2018.
Nevertheless, it is clear that an apportionment for the impact of the subsequent injury, that is post December 2018, is appropriate as it has had some impact on the long-term impairment that the claimant has suffered. The amount of this apportionment however, was not considered by the panel, to reflect as significant an impact as the impact of the pre- December 2018 injury.
From careful assessment, the Panel finds that an apportionment of one-third is reasonable and consistent in keeping with the evidence and our clinical re-examination.
Apportioning and deducting 1/3 of the WPI from 22% WPI produce a final assessment of whole person impairment of 2/3 of 22% which is rounded up to 15% WPI for the contribution of the primary psychological injury for work events on and before 5 December 2018.”

The Panel adopts the examination report of the Medical Assessors which are supplemented by the following further reasons.

Application to admit further evidence

The appellant referred to the absence of a statement from Mr Wright dated 20 February 2020 and submitted that this document should be before the Panel.
We have considered the appellant’s submissions dated 19 December 2024 which rely on the decision of CHEP Australia Ltd v Strickland.[54]
[54] [2013] NSWCA 351 (Strickland).
The appellant submitted that the document was “highly relevant to the issue in dispute” without specifying why or how the document was “highly relevant”.
The State otherwise referred to the decision of Avni v Visy Industries Plastics Pty Ltd[55] and submitted that this decision “should be followed for substantially the same reasons”.
[55] [2016] NSWWCCPD 46 (Avni).
The State provided further submissions on this issue in its submission in reply. It submitted that s 328(3) must be read in the context of appeals which only relied on the ground under s 327(3)(b). The State’s ground of appeal did not rely on s 327(3)(b) and was limited to demonstrable error under s 327(3)(d).
There is no basis to read s 328(3) as limited to appeals under s 327(3)(b) for the following reasons.
First, s 328(3) does not provide that it is limited in the manner submitted by the State.
Secondly, an appeal under s 327(3)(b) provides how that the admission of further evidence is limited. Section 328(3) is expressed in similar terms. The State’s proposed construction provides no ambit for s 328(3) to have any operation if it simply applies to a ground of appeal under s 327(3)(b).
Thirdly, s 328 provides for the procedures on appeal. Section 328(3) is specific in terms of the procedures for the admission of fresh evidence on appeal. In the context of procedures on appeal, the terms of the provision are clear and not restricted to a specific ground of appeal as the State submits.
The State also submitted that a Medical Assessor examining a worker on an appeal has the same powers as the original Medical Assessor exercising the powers under s 324. So much is correct. Specifically, the Medical Assessor can call for records (see s 324(1)) and obviously undertake an examination. However, the powers are not unlimited and restrained by the provisions of the 1998 Act. In this regard the State did not identify a power in s 324 that the Medical Assessor could exercise which would overcome the express limitation provided by s 328(3).
In this regard we note that we have not exercised the power to call for records under s 324(1)(b). It is otherwise highly doubtful that the further statement falls within the restrictive category of documents contained in that provision.
The State otherwise referred to Rule 67 of the Personal Injury Commission Rules and submitted that compliance with Rule 67C “would apply to automatically introduce the document” is rejected.
The rule cannot be read as having priority or overriding s 328(3) of the 1998 Act. Obviously, the rule must be read consistent with a clear statutory provision prohibiting the circumstances when further evidence can be admitted. This submission is inconsistent with clear principles of statutory construction and is rejected.[56]
[56] See the discussion in Delegated Legislation in Australia, 4^th Ed, Pearce & Argument, Chap 19.
The further evidence is not admissible under s 328(3) of the 1998 Act as it was available to the parties before the medical assessment. In their email dated 19 December 2024 the State conceded that the evidence was available prior to the medical assessment. This conclusion resolves the issue that the evidence is not admissible.
However, we also reject the application on the following separate basis.
The State relied on two authorities that relate to differently worded statutory provisions concerning the admission of fresh evidence on appeal to a Presidential member.
The decision of Strickland is a decision of the Court of Appeal relating to the admissibility of further evidence on an appeal to a Presidential member pursuant to s 352(6) of the 1998 Act. That test in s 352(6) is whether the evidence was not available or where the failure to grant leave “would cause substantial injustice”. The reasons of the Court were directed to the issue of whether the failure to grant leave would cause substantial injustice and were not directed to the first limb of s 352(6).[57]
[57] Strickland at [31].
In the decision of Avni, the Presidential member noted the first limb of s 352(6) was not satisfied and determined the issue of whether the failure to admit the documents would cause “substantial injustice”. That decision does not assist the State.
We have otherwise reviewed the further statement noting that the State has not identified the portions which are “highly relevant” to the issues in dispute. We are left to speculate noting that most of the statement includes material which is before us and which we have considered and addressed in the summary of the evidence or otherwise considered as part of the conclusion on the deduction we have made.
The further statement generally addressed the reasons for hospital admission in early 2020 which Mr Wright related to being shut in at home, poor sleep patterns and being advised in late 2019 that he would need to apply for his position. At one point Mr Wright blames the way his employer treated him “since day one”.
These matters are generally within the histories recorded elsewhere. The evidence is inadmissible for the reasons we outlined earlier. However, we also do not accept the State’s general and unexplained submission that this statement is “highly relevant” to the issues we are required to consider concerning the present level of impairment and the causative aspects of work before and after 5 December 2018.

Further submissions on the law of causation

Mr Wright made further submissions on causation of impairment relating to the work events pre and post 5 December 2018. For the reasons outlined below, we do not accept these submissions as they do not have regard to what was decided by the Court of Appeal.
In Wright (CA), Stern JA noted the second ground of appeal was whether the primary Judge erred in applying the “settled law of causation in workers compensation to exclude an assessment that considered all of the impairment resulting from the accepted injury”.[58]
[58] Wright (CA), [48] and heading between [82] and [83].
Stern JA concluded:[59]
“Ultimately, however, on what I have found to be the proper construction of the Certificate of Determination, it would not have been open to the Medical Assessor to find that any aggravation and exacerbation of Mr Wright’s injury, resulting from Post 5 December 2018 Work-related Issues, was itself caused or contributed to by his 5 December 2018 Injury. That issue was resolved by orders 1 and 5 of the Certificate of Determination. Thus, principles of causation simply had no further work to do.”
[59] Wright (CA) at [85].
Later in her Honour’s judgment, Stern JA noted there would be no error by the Medical Assessor (and an Appeal Panel) “provided that he did not include in that assessment any aggravation and exacerbation which resulted from Post 5 December 2018 Work-related Issues”.[60]
[60] Wright (CA) at [88].
Mr Wright’s submissions was that the Court of Appeal did not determine “that the law of causation did not apply”,[61] that “principles of causation would still have work to do”,[62] and that it was “sufficient if the injury is a material contributing factor to the impairment as found”.[63]
[61] Respondent’s submissions, [20].
[62] Respondent’s submissions, [21].
[63] Respondent’s submissions, [19].
Mr Wright only accepted that a “reduction can only occur if there is some part of the overall impairment that can be identified as resulting from the excluded injury and not for the accepted injury”.
These submissions contradict what was held by the Court of Appeal and are rejected.
We accept, as we are instructed by the Court, that we must assess the level of impairment excluded from consideration the “aggravation and exacerbation of Mr Wright’s injury from Post 5 December 2018 Work Related Issues”.[64] How that assessment is undertaken is the essential issue for which assistance was requested from our Direction. This issue is discussed below.
[64] Wright (CA) at [91].

Respondent’s submission on construction of the Consent orders

Mr Wright submitted that the Consent orders only applied to a claim for work events after
[65] See [62]-[65] herein.
5 December 2018 by way of aggravation or exacerbation and it was open for the Appeal Panel to conclude that the work events after 5 December 2018 accelerated or deteriorated the work injury. The submissions have been summarised in more detail earlier in these Reasons.[65]
There was no similar submission recorded and/or addressed by either Basten AJ or the Court of Appeal. The State noted that this proposed construction was never articulated before the Courts.
The State submitted that this argument should have been raised before the Court and the principles of Port of Melbourne Authority v Anshun Pty Ltd[66] estopped the respondent from making this argument.
[66] [1981] HCA 45.
It is settled that Anshun principles have application to the workers compensation scheme subject to limitations.[67]
[67] See Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190.
We agree with the State’s submissions that the proper construction of the Consent orders was before the Court of Appeal. We agree with the State’s submission that:[68]
“The appropriate construction of the COD and it subsequent effects to the application of Oakley and Johnson were not only relevant to those proceedings but were central to them. It follows that the proposed construction was so relevant to the issues in dispute that it was plainly unreasonable for it not to have been raised on an earlier occasion. Further, should the Appeal Panel agree with the proposed construction, it would result in inconsistency with the judgments in Wright No 1 and Wright No 2, which is also relevant to an Anshun estoppel.”
[68] State’s reply submissions, [4.6].
Mr Wright was provided with the opportunity and did not respond to these submissions.
It is unreasonable for this submission to be made to this Panel when the issue of construction of the Consent orders was critical to the submissions articulated before Basten AJ and the Court of Appeal. We otherwise agree that if we accepted the submission, it would render the reasoning of the decisions in Wright (CA) and Wright (SC) otiose.
We otherwise reject Mr Wright’s submission on an alternative basis.
Mr Wright’s submission that the four concepts (aggravation, acceleration, exacerbation or deterioration) have different meanings[69] is inconsistent with authority. In Hankinson v Darling Island Stevedoring & Lighterage Co Ltd[70] Jacobs JA commented that the four words were not mutually exclusive although the meaning of acceleration probably differed from the other three concepts.[71] On appeal, Barwick CJ observed that the concepts “may overlap”. [72]
[69] Respondent’s submissions, [13].
[70] (1966) 67 SR (NSW) 130 (Hankinson).
[71] Hankinson at p 138.
[72] Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 at 26.
The decisions cited by the respondent do not support its submission. The decision of the Court of Appeal in Cook v Midpart Pty Ltd[73] cited the observations of Moffit J in Federal Broom Co Pty Ltd v Semlitch,[74] which, whilst defining some of the words, do not suggest that they are different.
[73] [2008] NSWCA 151 at [40].
[74] ]1964] NSWR 511 at 516.
We observe that the meaning of exacerbation is an increase or intensifying of symptoms experienced by the patient.[75] Clearly Mr Wirght suffered from an exacerbation of his symptoms after 5 December 2018 and due to subsequent work events. This is discussed later.
[75] See Federal Broom Co Pty Ltd v Semlitch [1964] 110 CLR 626 at 634.

Nature of psychological condition

We accept Mr Wright’s submission that the mere manifestation of an increase in symptoms after 5 December 2018 does not mean that they were caused by the events after
5 December 2018.
We accept that the work events after 5 December 2018 were causative of further exacerbation and aggravation of the psychological injury and this has contributed to the present impairment.
We agree with Mr Wright’s submission that the State, by the Consent orders, accepted and is estopped from denying that Mr Wright suffered a psychological injury deemed to have occurred on 5 December 2018.[76] This is clear from the words and effect of order 2 of the Consent orders and it is a necessary condition of the making of an order for weekly compensation.
[76] Respondent’s submissions, [30].
Mr Wright s also entitled to benefit from the principles of estoppel, in this regard an acceptance of psychological injury as at 5 December 2018 (deemed).
There is some confusion in the respective submissions concerning the issue of the assessment of the extent of the impairment with the issue of injury. The extent of the impairment caused by injury is a matter for the Medical Assessor (and a Panel) whilst the latter is within the exclusive jurisdiction of a Member.
The State’s submission did not address the specific question of whether there was an estoppel on the issue of injury deemed to have occurred on 5 December 2018.
The State’s submission in reply[77] disputed that there was any estoppel of the issue of impairment caused by the accepted injury. So much is correct. The consent order cannot bind a Medical Assessor and an Appeal Panel from determining, within its exclusive jurisdiction,[78] the “degree of permanent impairment of the worker as a result of the injury” which is not a matter for a Member.[79]
[77] State’s submissions in reply, [5].
[78] See s 326 of the 1998 Act.
[79] See Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 at [26]. [107], [118]; Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 at [76].
Further, pursuant to Chapter 11 and specifically cls 11.4 – 11.6 of the Guidelines, the Medical Assessor, and the Panel, is to make its own diagnosis on the nature of the psychological injury.
Accordingly, we reject Mr Wright’s submission that the Consent orders determined the precise psychiatric diagnosis whilst accepting his submission that there was an estoppel that there was psychiatric injury deemed to have occurred on 5 December 2018.
We are bound by the estoppel in favour of Mr Wright of the finding of injury deemed to have occurred on 5 December 2018. This conclusion is consistent with our view of the evidence discussed in the examination report. It is otherwise inconsistent with Dr Smith’s opinion in January 2019 that Mr Wright did not suffer from a psychological injury at that time.
We otherwise do not accept Mr Wright’s submission[80] that the estoppel meant that the effect of the Consent orders was that the original work-related injury was an adjustment disorder which progressed into a major depression. This was not stated in the Consent orders, and it does not accord with our diagnosis.
[80] Respondent’s submissions, [30].
This conclusion is because on the histories previously provided by Mr Wright, his statement that these events caused him emotional distress, the significance of these events such as being required to apply for a job subject to transfer and further adverse interactions with his supervisor. These incidents were contemporaneous with further exacerbations of symptomatology, the inability to return to employment, the loss of employment and the admission to hospital.
This conclusion is also consistent with the qualified medical opinion by both parties. It is otherwise the clinical assessment by the Medical Assessors who recently examined
Mr Wright set out in the examination report.
The permanent psychiatric impairment increased accumulatively from the initial date of onset and was present before Mr Wright had failed to tolerate his return-to-work plan.
The natural history of Mr Wright’s primary psychological injury was consistent with a slow accumulative decline in his psychological functioning whilst employed for about two years as at 5 December 2018. The gradual decline resulted in Mr Wright initially taking sick days to manage his primary psychological injury. He had a return-to-work trial in March 2019 which he failed. This is consistent with Mr Wright not being stable at the time because of the accepted work injury. Eventually, he was unable to attend employment due to his condition being too severe. Attempts to rehabilitate Mr Wright back into the workforce failed because of the ongoing deterioration in his primary psychological injury caused mainly by many years of working in an environment where he would be bullied and harassed in most shifts.
Having suffered an accepted psychiatric injury deemed to have occurred on
[81] We note that the State, by the consent orders accepts that Mr Wright suffered a psychological injury as at 5 December 2018 despite Dr Smith’s opinion in January 2019.
5 December 2018 [81] we agree with Mr Wright’s submission that it is likely that he would suffer further symptoms without necessarily experiencing triggering events.
Having suffered the effects of the psychiatric injury with Mr Wright stopping work because of his psychiatric injury as at 5 December 2018, he never was fully absent of psychological symptoms. The Panel notes that the variation in recorded symptoms never included a period of full symptom remission. For this reason, the diagnosis of major depressive disorder is made, and the diagnosis of an adjustment disorder is excluded in compliance with DSM-5-TR criteria for adjustment disorders. The single diagnosis of major depressive disorder best defines the histories provided by all the writers as well as the variations observed and the changes in opinion as to diagnosis made by the various medical examiners who have assessed Mr Wright on any given day.
In reviewing the diagnosis, the Appeal Panel concludes that the correct diagnosis throughout the illness, was that of major depressive disorder. We note that in various reports written prior to Mr Wright’s hospitalisation in 2020 that a diagnosis of adjustment disorder was made, most cogently in the report of Associate Professor Robertson in his report of May 2019. In this report he diagnosed “Chronic Adjustment Disorder with anxiety and depressed mood”. We note that no such diagnosis is possible using DSM 5 and that on the descriptors provided by Associate Professor Robertson, and confirmed in the Medical Assessor’s examination, the more appropriate diagnosis is major depressive disorder. We note that adjustment disorders definitionally are time limited, usually to a period of six months from the time of the stress (Associate Professor Robertson’s report was written a few days short of six months after
Mr Wright left work - at the very limit of this time) and that this diagnosis should only be made when the disorder does not meet the criteria for another mental disorder.
In this case Mr Wright’s symptoms throughout the course of his illness, clearly meet the criteria for a major mood disorder, in that he displayed the following symptomatology – he was depressed and angry most days of the week. He episodically missed work because of his symptomatology and specifically his level of anxiety. He had poor sleep and reduced energy associated with daytime fatigue. He complained of loss of interest and general loss of motivation. He described feelings of hopelessness and at times had suicidal ideation. His appetite was impaired, and his weight fluctuated. He experienced difficulties with focus and concentration, although these also fluctuated.
From the history that the Medical Assessors obtained and confirmed by the documentation, Mr Wright had experienced symptoms from about 2016. While these symptoms initially fluctuated in severity it is not in doubt that there was a gradual and progressive deterioration over time with a sharp deterioration toward the end of 2018. Following this, he ceased work for a period and whilst his symptoms continued to fluctuate, they nevertheless continued to deteriorate. The Panel concludes this reflected a not unusual course of a disorder that had become chronic, severe and deteriorating.

Appropriate methodology in assessing impairment and findings on contribution

Elsewhere we have addressed and rejected Mr Wright’s submission that he is entitled to rely on the general law of causation. The Panel must exclude from consideration the effects from consideration of the aggravation and exacerbation of Mr Wright’s injury resulting from post
5 December 2018 work-related issues. How that is to be undertaken was a central part of our Direction to the parties and the request for further submissions.
The assessment of WPI is undertaken in accordance with the fourthedition of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (fourth edition guidelines).[82] The fourth edition guidelines adopt the 5^th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 5). Where there is any difference between AMA 5 and the fourth edition guidelines, the fourth guidelines prevail.[83]
[82] The fourth edition guidelines are issued pursuant to s 376 of the 1998 Act.
[83] Clause 1.1 of the fourth edition guidelines.
The Court of Appeal noted that we were required to exclude from consideration the aggravation and exacerbation of Mr Wright’s injury resulting from post 5 December 2018 work related issues.[84] However, the Court did not specifically address how that task was to be undertaken because it was not an issue for consideration.
[84] Wright (CA) at [90].
The State referred to Kiely as to the appropriate methodology in deducting the impairment from the excluded injury. Whilst the State acknowledged that Kiely applied to the requirement under s 65A(2) of the 1987 Act to disregard the impairment from a secondary psychological injury, that case did not specifically answer how the deduction is to be made. Harrison AsJ stated:[85]
“The statutory scheme comprising of the WIM Act and the Workers Compensation Act creates a two-step approach in assessing the degree of WPI for a psychological injury. The assessor must first calculate the entire degree of psychological injury in line with the PIRS categories. The secondary psychological injury must then be assessed and deducted in accordance with s 65A of the Workers Compensation Act, leaving the primary psychological injury remaining.”
[85] Kiely at [96].
Section 65A(2) specifies that “no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury”.
It is unclear from Kiely and the State’s submission whether any deduction is to be undertaken by reference to an overall apportionment or based on an assessment of an increase in any PIRS category due to the impact from the excluded injury.
The State otherwise submitted that the excluded injury caused a “significant contribution” in the degree of impairment. That submission suggests that an overall assessment with an appropriate deduction by way of apportionment for the effects of post 5 December 2018 work related issues.
Mr Wright submitted that this principle in Kiely did not apply because of the terms of the legislation. His submissions provided no alternative basis on the method to calculate any apportionment save as to submit that there should be no deduction and that “the task for the Panel remains to assess the impairment that results from the accepted work injury”.[86]
[86] Respondent’s submissions, [19].
We cannot do a “before and after” assessment of the PIRS categories as the assessment of permanent impairment must occur at the time of assessment. We also note in Marks v Secretary, Department of Communities and Justice[87] it was held that the Guidelines are inconsistent and contrary to s 323 where the pre-existing impairment is asymptomatic. Accordingly, this is a further reason why the Guidelines cannot be used in this matter.
[87] [2021] NSWSC 616.
Further, any assessment of impairment as of 5 December 2018 would not reflect the impairment caused by the work events up to 5 December 2018 because Mr Wright’s psychological condition and assessable impairment has deteriorated over time including after he ceased work duties with the State. For the reason discussed previously, a proportion of the deteriorating symptomatology after 5 December 2018 is attributable to work events on and before 5 December 2018.
As we noted, we are required to assess impairment at the date of assessment.[88] We are not prepared to assess a current PIRS assessment but for the subsequent injury as the legislation or Guidelines does not provide for this mechanism.
[88] Clause 1.6 of the Guidelines.
Considering the reasons of the Court of Appeal and accepting that there were events after
5 December 2018 that are causative of impairment, in our view the proper basis is to assess an overall impairment and apportion and deduct for the effects for the work events after
5 December 2018. This accords with the State’s submission although it did not fully articulate the mechanism for assessment.
The psychiatric condition was clearly set in train by 5 December 2018 when Mr Wright was unfit for work. He never returned to full time employment and his efforts in working suitable duties in March 2019 were unsuccessful and caused difficulties which he outlined in his statement. This is highly suggestive that the inability to return to work at that time was caused by the accepted work injury.
While the Panel accepts that there was a significant deterioration in his overall symptomatology and level of functioning in 2019, following his incapacity to continue at work in the first half of the year and then associated with his sense of betrayal related to the failure to notify him of the need to apply for his position late in 2019, nevertheless these represented disturbances in the course of a disorder that had already been clearly set in train over a period of about two years.
We have considered the State’s submission that the work events after 5 December 2018 had a significant contribution to the level of impairment.[89]
[89] See at [58] – [60] herein.
The original work events up to and including 5 December 2018 were the cause of the major depressive disorder which existed in varying intensity but deteriorating over time, from around 2016 and which continued to the time of most recent assessment by this Panel in December 2024.
In Vannini v Worldwide Demolitions Pty Ltd[90] Gleeson JA stated:
“A finding as to the proportion of permanent impairment due to previous injury, pre-existing condition or abnormality involves matters of degree and impression. The applicable standard of the ‘proportion’ of contributory contribution under s 323 permits some latitude of opinion such as to admit of a range of legally permissible outcomes. That is not to say that such a conclusion is necessarily beyond review by an Appeal Panel on the ground of demonstrable error. However, the resolution of that question should be left to a case where it is dispositive.”
[90] [2018] NSWCA 324 at [92], Macfarlan JA and Barrett AJA agreeing.
Whilst these observations are directed to the issue of the extent of the deduction pursuant to s 323, we observe that the task before us also involves an opinion which “admit to a range of legally permissible outcomes”.
We accept that there were events in 2019 that aggravated Mr Wright’s psychological condition such as being required to apply for his “old” job which was transferred and ongoing difficulties with his manager. However, Mr Wright had an established psychiatric disorder which had been present since 2016. The course of psychiatric disorder fluctuated in intensity but overall appeared deteriorating and becoming increasingly chronic. This is not an unusual course for this disorder.
The events of 2019, whilst causing a deterioration at that time, were part of the course of a deteriorating disorder which had been caused by the work events prior to and on
[91] See at [136]-[144] herein.
5 December 2018. In this regard we repeat our findings set out above relating to the diagnosis and evolution of Mr Wright’s psychological condition.[91]
Whilst there is a plausible range of the level of contribution from post 5 December 2018 events resulting to the current impairment, the Medical Assessors, both in their clinical experience, and the Panel having reviewed the entire material, have reached the conclusion that the apportionment for post 5 December 2018 events, which whilst significant, was not the major contribution to the assessed permanent impairment. The assessment of a one-third deduction obviously represents, in part, a formed view of the Medical Assessors based on their clinical experience.
We otherwise note that both Associate Professor Robertson and Dr Smith declined to provide an apportionment of impairment due to the pre and post 5 December 2018 work events. Whilst we are required to form our own opinion, this is indicative of the difficult task in assessing impairment and the appropriate apportionment in this case.
The Panel is of the view that the way we have assessed impairment, that is by way of deduction by assessing the relative contributions of pre and post 5 December 2018 work events, is the only fairly and reasonable way to assess Mr Wright’s impairment consistent with the reasons of the Court of Appeal and noting that impairment must be assessed as at the date of assessment.

Other matters on assessment

The claimant is entitled to an increase of between 1% and 3% if he otherwise satisfies cl 1.32 of the Guidelines.
For an assessment for the effects of treatment, cl 1.32 of the Guidelines involves a requirement that there be:
(a)   effective long-term treatment;
(b)   resulting in apparent substantial or total elimination of the worker’s permanent impairment, and
(c)   the impairment is likely to revert to original degree of impairment if treatment is withdrawn.
In Zoric v Secretary, Department of Education[92] Chen J, when discussing the second step noted:[93]
“In my view, the focus by the Appeal Panel upon WPI was erroneous. At a minimum, to focus, as the Appeal Panel did, upon the post-treatment WPI – without reference to the WPI which would have preceded that treatment – is, of itself, erroneous: logically, the post-treatment WPI could only ever be one part of the enquiry into whether there had been ‘apparent substantial…elimination’; the other part of that enquiry would require, as the plaintiff submitted, regard to be had to the ‘pre-treatment WPI’. Separately, as was pointed out in Peachey at [56], cl 1.32 was not ‘intended to be satisfied by a mere mathematical comparison of assessments of % WPI at different times’. Rather, what is required by cl 1.32, as the decision in Peachey emphasised, is a comparative exercise between the plaintiff’s original degree of impairment before the ‘effective treatment’ and the plaintiff’s degree of impairment following that treatment: it is only by undertaking that comparison at those times can a medical assessor (or, in the present case, the Appeal Panel) determine whether the treatment ‘results in apparent substantial… elimination’ of the plaintiff’s permanent impairment. The Appeal Panel failed to undertake that task.”
[92] [2024] NSWSC 131 (Zoric).
[93] Zoric at [80].
Clause 1.32 has no application to the present facts as the claimant’s condition, in terms of assessable impairment has deteriorated over time despite long term treatment. Mr Wright has been prescribed ongoing psychiatric treatment without any significant improvement in the long term. Whilst such prescribing of medication is clinically provided with a view towards clinical prophylaxis, in preventing further deterioration, from careful consideration of the forwarded documents as well as finding from Mr Wright’s re-examination, there is no substantive evidence that the prophylaxis provided has altered the natural history of
Mr Wright’s psychological injury.
We are satisfied that the claimant has reached maximum medical improvement as defined in cl 1.15 of the Guidelines. This is because the impairment has been consistent for some time, is well stabilised and is unlikely to change over the next year.
We do not make any deduction for any proportion for the impairment due to previous injury or due to pre-existing condition or abnormality. We rely on reasons provided by Medical Assessor Hong[94] which are adopted by the Panel and the observations contained in the Medical Assessor’s examination report.
[94] See at [7] herein.
That conclusion is also consistent with the respective views of the qualified psychiatrists.
This finding is made noting the parties’ agreement that the injury was deemed to have occurred pursuant to s 4(b)(ii) of the 1987 Act. That conclusion is not inconsistent with the agreement because we are not satisfied that the pre-existing psychological condition contributed to any present impairment.

CONCLUSION AND ORDERS

For these reasons, we have determined that the MAC is revoked, and a new medical assessment certificate is issued. Mr Wright’s permanent impairment caused by the accepted work injury is 15%. The new certificate is attached to these reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W2218/22
Applicant:	Paul Wright
Respondent:	State of New South Wales

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 Hong 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 Guidelines

AMA 5

% WPI

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

Psychological

5 December 2018 (deemed)

Chapter 11

15%

Total % WPI (the Combined Table values of all sub-totals)

15%

[2025] NSWPICMP 34

16 January 2025