Stellar Asia Pacific Pty Ltd v Micallef

DETERMINATION OF APPEAL PANEL
CITATION:	Stellar Asia Pacific Pty Ltd v Micallef [2024] NSWPICMP 303
APPELLANT:	Stellar Asia Pacific Pty Ltd
RESPONDENT:	Sarah Micallef
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	17 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for primary psychiatric injury; the Medical Assessor (MA) assessed 15% whole person impairment (WPI) and found no pre-existing psychological condition; failure by MA to refer to clinical note of GP made in 2013 about three years before employment with the respondent in which the GP referred to a low mood and prescribed anti-depressants; appeal panel found that the MA erred in failing to address these clinical notes and did not provide adequate reasons for concluding that there no pre-existing condition; the appeal panel satisfied that there was a pre-exiting condition but found that it did not contribute to the impairment assessed; the assessment of total WPI by the appeal panel is the same as that made by the MA and in those circumstances the appeal panel will confirm the Medical Assessment Certificate (MAC) as the review has not led to a different result and should not be interfered with; Robinson v Riley applied; Held – MAC confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 5 March 2024 Stellar Asia Pacific Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
6 February 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Sarah Micallef (Ms Micallef) sustained a primary psychological injury in the course of her employment with the appellant as a customer solutions specialist.
Ms Micallef commenced proceedings in the Personal Injury Commission (Commission) on
8 November 2023 claiming 16% whole person impairment (WPI) pursuant to s 66 of the Worker Compensation Act 1987 (the 1987 Act) in respect of a primary psychiatric injury deemed to have occurred on 28 February 2017.
The Medical Assessor examined Ms Micallef on 23 January 2024 through video link. The Medical Assessor assessed 15% WPI as a result of the injury deemed to have occurred on 28 February 2017.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant requested that Ms Micallef be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for Ms Micallef to undergo a further medical examination because there was sufficient evidence on which to make a determination.

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    ground 1- the Medical Assessor incorrectly recorded that Ms Micallef had no prior psychiatric/psychological history or treatment;
(b)    the Medical Assessor briefly noted the clinical notes of Dapto Healthcare Centre but appears to have failed to properly consider the clinical entries prior to
11 July 2016. The clinical notes from Dapto Healthcare indicate a “pre-existing prescription of anti-depressant medication”. The consultation notes from
31 July 2013 to 21 February 2014 were not discussed by the Medical Assessor and his failure to do so amounts an appealable error – Wentworth Community Housing Ltd v Brennan [2019] NSWSC 152;
(c)    ground 2 – demonstrable error by not providing a deduction for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act. The medical evidence before the Medical Assessor reveals a consistent report of past psychological stressors (Dr Sunera Fernando, Psychologist, report dated
16 March 2017);
(d)    the clinical notes from Dapto Healthcare record the following entry dated
11 July 2016, stating:
“stress ++ related to work recently
Background anxiety
Also worried about pregnancy…
Low mood & depressed in the past – triggered by termination of pregnancy”;
(e)    Dr Rastogi, in a report dated 20 May 2022, records “She stated that her past suppressed childhood memories got triggered and her emotional dysregulation magnified.” She went on to record in regard to previous psychiatric history: “There is known previous history of anxiety and she has separation anxiety since childhood. She stated her mother was dismissive and emotionally less reactive. She had thoughts of stabbing herself in 2012 when she had a termination of pregnancy but she suppressed these memories”;
(f)    in providing a diagnosis, Dr Rastogi noted that “There is pre-existing psychological vulnerabilities and trauma that have resurfaced since the work related injury”. Dr Rastogi ultimately was of the view that Ms Micallef had no pre-existing disability or impairments. However, it is not entirely clear whether
Dr Rastogi had the benefit of reviewing the clinical notes from Dapto Healthcare Centre;
(g)    Dr Whetton on review of Ms Micallef and all the relevant material, including the clinical records from Dapto Healthcare Centre, concluded that a 1/10th deduction was appropriate;
(h)    there was a clear history contained within the medical evidence of past psychological stressors relating to Ms Micallef’s long-standing history of anxiety since childhood and psychological symptoms resulting from her pregnancy in and around 2013. This consistently presented history combined with the clinical entries from 2013 provide clear evidence of a pre-existing psychological injury, condition or abnormality;
(i)    the Medical Assessor’s decision to not apply any deduction under s 323 of the 1998 Act is at odds with the medical evidence and is a demonstrable error. In providing the justification for this assessment, the Medical Assessor states that: “I note that the claimant had experienced symptoms of anxiety and depressed mood in relation to common life events. The presence of a psychiatric symptom is insufficient to diagnose a psychiatric condition, impairment or disorder”;
(j)    the Medical Assessor failed to properly consider whether Ms Micallef had a pre-existing abnormality which would warrant a deduction. The term ‘abnormality’ is not defined in the 1998 Act, however, this would include a psychological state, condition or behaviour that would not be considered normal in the general population. There was ample evidence before the Medical Assessor to establish that Ms Micallef had, at least, a pre-existing psychological abnormality.
Dr Fernando opined that Ms Micallef had a genetic loading for anxiety, Dr Rastogi noted that Ms Micallef had pre-existing vulnerabilities and trauma, Dr Whetton was of the view there was a long-standing history of anxiety likely of a constitutional basis and the clinical notes from Dapto Healthcare Centre identified background anxiety, low mood and depression in the past as well as previously prescribed anti-depressant medication;
(k)    the Appeal Panel should be satisfied based upon the medical evidence that
Ms Micallef had, at least, a pre-existing psychological abnormality. The Medical Assessor did not, adequately or at all, turn his mind to whether Ms Micallef had a pre-existing psychological abnormality that made her more vulnerable to developing her current psychiatric disorder and to what extent this impact of her impairment. By failing to properly consider this, the Medical Assessor has fallen into error;
(l)    the Medical Assessor’s failure to record an accurate history of past psychological symptoms and treatment have created an erroneous and unbreakable causal chain to his eventual decision that no deduction should be made under s 323 of the 1998 Act. The Medical Assessor’s failure to place appropriate weight on
Ms Micallef’s uncontested history of past psychological stressors and omission of key evidence from the clinical notes infected his entire reasoning process and demonstrates a fundamental error;
(m)     the Medical Assessor’s decision to not apply a deduction under s 323 of the 1998 Act is at odds with the medical evidence. It would not be too difficult or costly to determine the deduction. There was more than sufficient evidence before the Medical Assessor on which to make a deduction under s 323 of the 1998 Act;
(n)    ground 3 – error by not providing any or any adequate reasons as to why a deduction for pre-existing injury, condition or abnormality is appropriate;
(o)    the Medical Assessor had erroneously recorded that Ms Micallef had no prior treatment for any psychological symptom. The clinical notes of Dapto Healthcare Centre establish this is not an accurate history. The Medical Assessor failed to acknowledge or address these clinical entries and failed to properly consider whether Ms Micallef had a pre-existing abnormality which made her more vulnerable to developing her current condition;
(p)    the Medical Assessor did not discuss the relevant clinical notes and therefore did not explain, adequately or at all, the reasons why a deduction for pre-existing injury, condition or abnormality did not apply in this matter. The failure of the medical assessor to provide reasons amounts to demonstrable error as per Campbelltown City Council v Vegan [2006] NSWCA 284;
(q)    the matter of Mayo Private Hospital v Radnidge [2022] NSWPICMP 28 was analogous to the facts in the current matter. The Appeal Panel should make a similar finding in this matter, and
(r)    for the reasons discussed above, the Appeal Panel should revoke the MAC and issue a new MAC applying an appropriate deduction for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.
Ms Micallef ‘s submissions include the following:
(a)    the Medical Assessor made no error in carefully deciding that a deduction pursuant to s 323 was unwarranted after considering all the evidence;
(b)    the Medical Assessor was cognisant of Ms Micallef’s pre-morbid functioning and noted that she reported being an anxious person but was not diagnosed as suffering from an anxiety disorder prior to this primary psychological injury;
(c)    the Medical Assessor referred to guilt after a pregnancy was terminated in 2012, and a report to Dr Fernando in 2017 about the onset of anxiety following commencing a new job in June 2016. It is not necessary for the Medical Assessor to refer to every piece of evidence provided that appropriate reasons for the assessment are given. The Medical Assessor referred to various authors and dates in the clinical records from Dapto Healthcare Centre and it was clear that he had read the material;
(d)    the Medical Assessor was correct in stating that no diagnosis had been made of any prior psychological conditions by her treating practitioners nor had she consulted a psychologist or psychiatrist for any prior symptoms of a psychological nature. It is trite to conclude that a history of some symptoms is inevitably causative of a diagnosable injury;
(e)    the report of Dr Whetton was considered by the Medical Assessor who disagreed with Dr Whetton’s s 323 deduction. It was open to the Medical Assessor to conclude that no deduction was appropriate given the level of activity Ms Micallef displayed in the years preceding the subject injury. Dr Rastogi stated that there was no deductible proportion;
(f)    Dr Rastogi formed the view that Ms Micallef had no pre-existing disability or impairment. She noted that there was a previous history of anxiety that made her vulnerable but it did not interfere with her functioning;
(g)    both the Medical Assessor and Dr Rastogi considered whether there was any interference with Ms Micallef’s functioning such that a deduction was warranted and both concluded that it was not;
(h)    the appellant’s submissions, particularly concerning Dr Whetton’s opinion, amount in essence to a differing in opinion. No demonstrable error is readily apparent. It was not the role of the Medical Assessor to accept or reject either party’s evidence but rather to reach his own conclusion. The Medical Assessor gave more than adequate consideration to the findings that were made by the other medical experts and where he disagreed, he carefully explained so in his reasons by applying his own medical experience and expertise, and
(i)    no ground of appeal has been made out.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] the form of the words used in
s 328(2) of the 1998 Act being, SC 1792 Davies J considered that ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.

Ground 1- Incorrectly recording that Ms Micallef had no prior psychiatric/psychological history or treatment

The appellant submits that the Medical Assessor failed to properly consider the clinical entries of Dapto Healthcare Centre prior to 11 July 2016. The appellant submits that the failure by the Medical Assessor to discuss the consultation notes from 31 July 2013 to
21 February 2014 amounts to an appealable error.
The Appeal Panel reviewed the evidence in this matter and the MAC dated 6 February 2024.
Under “Details of any previous or subsequent accidents, injuries or condition” the Medical Assessor wrote:
“The claimant had no previous or subsequent accidents, injuries or condition. The claimant reported she was not exposed to any childhood abuse, trauma or neglect. She reported that she was an anxious person. The claimant reports that she educated herself about her anxiety. She attributed the anxiety to her mother being ‘dismissive and less available emotionally to her’. The claimant had never received treatment as a child from a child psychologist or child and adolescent psychiatrist. She was not diagnosed as suffering from an anxiety disorder prior to this primary psychological injury.
The claimant reported that she had experienced strong emotions whilst pregnant in 2012. She reported that she felt ‘inappropriate guilt’ after the pregnancy was terminated. She had thoughts of self-harm. She never acted on these thoughts.
The claimant reported to Dr Fernando, her treating psychiatrist, on 16 March 2017 the following: ‘Sarah states that the onset of her anxiety was following commencing a Job in June 2016 which involved regarding phone calls from consumers regarding provision of support services.’
The claimant had not been anxious whilst working in her prior roles before this employment. The term ‘background anxiety’ first appeared in the medical file on 11 July 2016. The term is used in relation to the note ‘stress ++ related to work recently’. The prior note is made with the following note: ‘reduced motivation & energy, no enjoyable hobbies or activities’. Documented at the same assessment was: ‘low mood & depressed in the past - triggered by termination of pregnancy, denies TOHS (thoughts of self-harm), suicidal ideation’.”
Under “General Health” the Medical Assessor noted that Ms Micallef reported that she recovered from her loss of pregnancy in 2012 without impairment. He wrote: “She was a young woman aged 17 years around the time of this life event. She reported using Implanon.”
The Medical Assessor made a diagnosis of a persistent depressive disorder. He noted that Ms Micallef had experienced “symptoms of anxiety and depressed mood in relation to common life events”. He wrote: “The presence of a psychiatric symptom is insufficient to diagnose a psychiatric condition, impairment or disorder. She does not have a pre-existing psychiatric condition or impairment.”
At Part 9 of the MAC, the Medical Assessor sets out the facts on which the assessment was based which include: “The claimant’s lack of a formal psychiatric diagnosis and treatment prior to the onset of this primary psychiatric psychological injury excludes the presence of a pre-existing condition.”
At page 8 of the MAC, the Medical Assessor wrote: “On close scrutiny of the claimant’s pre-existing history, she had no diagnosed psychiatric or psychological condition and no prior treatment for any symptom such as anxiety or depressed mood, in relation to any life event or parental relationship.”
In explaining his calculations on page 8, the Medical Assessor wrote: “The claimant’s whole person impairment of 15% WPI was similar to Dr Rastogi’s assessment. I agree with this author that the claimant does not have a pre-existing or subsequent impairment for deduction.”
The Medical Assessor proceeded to comment on Dr Whetton’s report and wrote:
“I do not concur with the deduction for a pre-existing condition as:
• A symptom of anxiety and or depression is insufficient to diagnose a psychiatric or
psychological condition using DSM5TR criteria. There must be a loss of function. The
claimant’s subjective recall alone is insufficient to meet all the minimum necessary
DSM5TR criteria.
• There is not a history of loss of function by the claimant in her employment, social role as a Scout leader or participation at the local theatre society production.
• The claimant never received a pre-existing diagnosis. Dr Whetton does not
diagnostically defined [sic] the pre-existing condition he relied on to make the 10%
deduction in his whole person impairment.”

The Medical Assessor further commented at page 12 on Dr Whetton’s report dated
26 October 2022 and his deduction of 10% for a pre-existing anxiety condition and wrote:
“I do not concur with this assessment of whole person impairment as documented. On review of the medical record and direct enquiry at the assessment, the claimant did not confirm a history of being diagnosed with an anxiety disorder as a child. She did note learning about anxiety as she was a theatre performer and understood, performance anxiety, anticipatory anxiety and how parental relationships affect the development of children.”
The Application to Resolve a Dispute contains clinical notes from Dapto Healthcare Centre. In an entry dated 23 July 2013, Dr Robert Bird, general practitioner, noted: “low mood last 2 months, poor sleep, not enjoying life”. Dr Bird commenced preparation of a Mental Health Care Plan, made a referral to Headspace and prescribed Lovan capsules 20mg 1 daily. In the following entry, only one week later, dated 31 July 2013, Dr Bird noted: “better on lovan”. The Appeal Panel agree with the appellant that Lovan is a type of anti-depressant medication, Fluoxetine.
The Appeal Panel accept that the Medical Assessor referred to the clinical notes of Dapto Healthcare Centre in the MAC but made no reference at all to the clinical entries prior to
11 July 2016 and, in particular, to the entry dated 23 July 2013. The entries dated
23 July 2013 and 31 July 2013 were relevant to consideration of whether Ms Micallef had a pre-existing condition and should have been taken into account by the Medical Assessor in determining whether Ms Micallef had a pre-existing condition.
The Appeal Panel was satisfied that the clinical notes of Dapto Healthcare Centre revealed a history of some psychological symptoms and treatment for those symptoms, although no diagnosis was made by Dr Bird.
The Appeal Panel is satisfied that the Medical Assessor failed to refer to the clinical entries in the notes from Dapto Heathcare Centre dated 23 July 2013 and 31 July 2013 and also to the prescription for Lovan made on 23 July 2013. The failure to refer to these entries was a demonstrable error.

Ground 2 - the Medical Assessor has erred by not providing a deduction for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act

The appellant submits that the Medical Assessor’s decision to not apply any deduction under s 323 of the 1998 Act is at odds with the medical evidence and is a demonstrable error.
The appellant submitted that the Medical Assessor failed to properly consider whether
Ms Micallef had a pre-existing abnormality which would warrant a deduction and there was ample evidence before the Medical Assessor to establish that Ms Micallef had, at least, a pre-existing psychological abnormality.
Section 323 of the 1998 Act provides:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4)The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
Clause 11.10 of the Guidelines provides:
“To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
The approach to be taken in assessing the s 323 deduction was considered by the Supreme Court in Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole). Schmidt J said:
“29 …The section is directed to a situation where there is a pre-existing injury, pre-existing condition or abnormality. For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre- existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
30. Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.
31 …That is a matter of fact to be assessed on the evidence led in each case.”
At [38] of Cole, Schmidt said:
“38. What s323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”
In Fire & Rescue NSW v Clinen [2013] NSWSC 629 (Clinen), Campbell J refers to D'Aelo v Ambulance Service of New South Wales (1996) NSWCCR 139; Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365, and to Cole. In Clinen Campbell J said:
“32. As Schmidt J pointed out in Cole and Elcheikh, it is necessary to find a pre-existing abnormality or condition, here the latter, actually contributing to the impairment before s323 WIM is engaged. This conclusion has to be supported by evidence to that effect. Assumption will not suffice.’ Campbell J also noted that it is ‘... necessary for the evidence acceptable to the appeal panel to actually support the connection between a previous injury (here, pre-existing abnormality or condition) and the overall degree of impairment in the instant case.
…
35. The context here is provided by s 323 and arises from the juxtaposition of words ‘previous injury’, with ‘pre-existing condition or abnormality’. The natural meaning in that restricted context of ‘condition’ is ‘medical or like condition’ in the sense of a diagnosable, or established, clinical entity c.f. Simeon Wines Ltd v. Bobos [2004] NSWCA 342 at [17] per Sheller JA, Santow JA and Young CJ in Eq. (as he then was) agreeing.”
The next issue to consider is whether Ms Micallef had a pre-existing condition or abnormality.
To establish a pre-existing condition for the purposes of s 323(1) there must, at the relevant date, be an actual condition although it may be asymptomatic. A mere predisposition or even a susceptibility is not sufficient to constitute a condition. The Appeal Panel does not accept the appellant’s submission that a genetic loading for anxiety or pre-existing vulnerabilities amounted to an actual condition.
Under “General health” the Medical Assessor noted: “The claimant reported that she recovered from her loss of pregnancy in 2012 without impairment. The claimant was a young woman aged 17 years around the time of this life event. She reported using Implanon”.
In the MAC, in answer to the question “Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?” the Medical Assessor wrote “No”.
The Medical Assessor made a diagnosis of a persistent depressive disorder. He noted that Ms Micallef had experienced “symptoms of anxiety and depressed mood in relation to common life events”. He wrote: “The presence of a psychiatric symptom is insufficient to diagnose a psychiatric condition, impairment or disorder. She does not have a pre-existing psychiatric condition or impairment.”
At Part 9 of the MAC, the Medical Assessor set out the facts on which the assessment was based which included “The claimant’s lack of a formal psychiatric diagnosis and treatment prior to the onset of this primary psychiatric psychological injury excludes the presence of a pre-existing condition”.
At page 8 of the MAC, the Medical Assessor wrote: “On close scrutiny of the claimant’s pre-existing history, she had no diagnosed psychiatric or psychological condition and no prior treatment for any symptom such as anxiety or depressed mood, in relation to any life event or parental relationship.”
In explaining his calculations on page 8, the Medical Assessor wrote: “The claimant’s whole person impairment of 15% WPI was similar to Dr Rastogi’s assessment. I agree with this author that the claimant does not have a pre-existing or subsequent impairment for deduction.”
As noted above, the Medical Assessor proceeded to comment on Dr Whetton’s report and wrote:
“I do not concur with the deduction for a pre-existing condition as:
• A symptom of anxiety and or depression is insufficient to diagnose a psychiatric or
psychological condition using DSM5TR criteria. There must be a loss of function. The
claimant’s subjective recall alone is insufficient to meet all the minimum necessary
DSM5TR criteria.
• There is not a history of loss of function by the claimant in her employment, social role as a Scout leader or participation at the local theatre society production.
• The claimant never received a pre-existing diagnosis. Dr Whetton does not
diagnostically defined the pre-existing condition he relied on to make the 10%
deduction in his whole person impairment.”
The Medical Assessor further commented at page 12 on Dr Whetton’s report dated
26 October 2022 and his deduction of 10% for a pre-existing anxiety condition and wrote:
“I do not concur with this assessment of whole person impairment as documented. On review of the medical record and direct enquiry at the assessment, the claimant did not confirm a history of being diagnosed with an anxiety disorder as a child. She did note learning about anxiety as she was a theatre performer and understood, performance anxiety, anticipatory anxiety and how parental relationships affect the development of children.”
Dr Sunera Fernando, psychologist, in a report dated 16 March 2017 recorded:
“In her past psychiatric history, Sarah reports long standing anxiety since she was a child. She has had separation anxiety. Sarah describes her mum as dismissive and she minimised her worries and had insisted that Sarah dismiss them. More recently, her mother had told her to pull herself together. Sarah gives no history of manic or psychotic symptoms in the past. In terms of self harm, she had thoughts to stab herself approximately 4 years ago after a termination of pregnancy but is unable to give further details on this. Under ‘Impression’ Dr Fernando thought that Ms Micallef had a “genetic loading for an anxiety disorder.”
The Appeal Panel noted the following entries from Dapto Healthcare Centre:
(a)    on 23 July 2013, Dr Bird reported “low mood last 2 months, poor sleep. Not enjoying life” and prepared a mental health Care Plan and prescribed Lovan;
(b)    on 31 July 2013, Dr Bird noted “better on Lovan”. There was no further reference to a “low mood” after that entry in 2013;
(c)    there is no further prescription of the Lovan and at her next attendance on
21 February 2014;
(d)    on 10 June 2014, Dr Stephen Whitfield noted “positive urine preg test x2 … discussed options – would like termination”. He referred Ms Micallef to the “gca clinic”;
(e)    in the next consultation on 5 February 2015, Dr Natalie Burns noted that
Ms Micalleff had a hoarse voice and cough and diagnosed pneumonia. Dr Burns noted: “did not ask about outcome of pregnancy, will ask at next visit”;
(f)    the next consultation was on 26 January 2016 with who noted Ms Micallef had lower back pain, and
(g)    in the next consultation on 11 July 2016, Dr Mitchell noted:
“stress ++ related to work recently
Background anxiety
Also worried about pregnancy…
Low mood & depressed in the past – triggered by termination of pregnancy.”
In a report dated 20 May 2022, Dr Rastogi noted:
“She reports emotional meltdown and having recurrent panic attacks and dissociative episodes. She would get triggered easily and was emotionally labile. She was extremely vulnerable and had poor emotional regulation and having crying episodes. She became emotionally dependent on her partner. She had magnification of suicidal thoughts and was being monitored closely. She stated that during that year there was suicide of her close friend and family deaths. She stated her past supressed childhood memories got triggered and her emotional dysregulation magnified. She was not responding to strategies offered by counselling. She reported suicidal thoughts and plan four years ago where she was contemplating overdose and she has had intrusive suicidal thoughts and plan.”
Dr Rastogi noted in regard to previous psychiatric history:
“There is known previous history of anxiety and she has separation anxiety since childhood. She stated her mother was dismissive and emotionally less reactive. She had thoughts of stabbing herself in 2012 when she had a termination of pregnancy but she suppressed these memories.”
Dr Rastogi wrote: “There is pre-existing psychological vulnerabilities and trauma that have resurfaced since the work related injury”. However, Dr Rastogi formed the view that
Ms Micallef had no pre-existing disability or impairments.
Dr Whetton, in his report dated 26 October 2022, noted that “There is a background history of anxiety first mentioned in her general practitioners notes in 2013 and with regular prescription of mediation [sic] from 2016”. Dr Whetton further stated in his report that “There is a history of pre-existing anxiety disorder which has been exacerbated by the workplace incidents of 2017.” He later stated: “There is a long-term history of anxiety likely to be of a constitutional basis however, the severe symptoms leading to psychological and psychiatric treatment related to her work with Stellar” and “Prior to the workplace injury, there was a long-standing history of general anxiety disorder in Ms Micallef…”
The appellant submits that Dr Fernando’s recount of Ms Micallef’s thoughts of self-harm about four years before the date of the report align with the time Ms Micallef was prescribed the anti-depressant medication (around 2013). The appellant submits that it can therefore be assumed that Ms Micallef was prescribed the anti-depressant medication, at least in part, due to her prior difficulties with her pregnancy.
The Appeal Panel notes that the histories obtained by Dr Fernando, Dr Rastogi, and even
Dr Mitchell on 11 July 2016 were not consistent with the contemporaneous entries made in the Dapto Healthcare Centre records in relation to the thoughts of self harm after the pregnancy. Those contemporaneous records reveal that in 2013 Ms Micallef saw Dr Bird on 23 July 2013, at which time she reported “low mood last two months, poor sleep. Not enjoying life”. Dr Bird prepared a Mental Health Care Plan and prescribed Lovan. Only eight days later on 31 July 2013, Dr Bird noted “better on Lovan”. It was clear that the prescription of an antidepressant occurred in 2013 and that it was not prescribed after 21 February 2014. The Lovan prescription was “ceased” in the medical software on that date. This term refers to the deletion of a medication as it is no longer prescribed for that person. The Appeal Panel can discern only one prescription of this medication, and a far more rapid response than that seen when antidepressants are used for a major depressive episode.
The pregnancy occurred in 2014. On 10 June 2014, Dr Stephen Whitfield noted that
Ms Micallef had a positive pregnancy test and wanted a termination. There was no reference to any psychological problems, such as thoughts of self harm, associated with the pregnancy and planned termination. In the next consultation on 5 February 2015, Dr Burns diagnosed pneumonia and noted “did not ask about outcome of pregnancy, will ask at next visit”.
Dr Whetton’s history of a background history of anxiety first mentioned in her general practitioners’ notes in 2013 and “with regular prescription of mediation [sic] from 2016” was inaccurate as Dr Bird made no mention of anxiety but referred to low mood and he prescribed Lovan only once. The long term prescription of further antidepressants only occurred after Ms Micallef commenced employment with the appellant in 2016.
There is no reference to a low mood or any other psychological issues following the consultations in July 2013 until Ms Micallef complained of stress related to work on
11 July 2016, that is, after she started work with the appellant. The Appeal Panel accepts that in this consultation, Dr Mitchell referred to “Background anxiety” and “Also worried about pregnancy” and “Low mood & depressed in the past – triggered by termination of pregnancy”.
The Medical Assessor noted that Ms Micallef reported that she recovered from her loss of pregnancy in 2012 without impairment. The Medical Assessor did note that Ms Micallef reported that she had experienced strong emotions whilst pregnant in 2012 and that she felt “inappropriate guilt” after the pregnancy was terminated and thoughts of self-harm.
Dr Whetton made no reference to any pregnancy or termination in his reports.
While the Appeal Panel accepts that the histories given by Dr Fernando and Dr Rastogi refer to thoughts of self harm after termination of the pregnancy, there is no reference in the contemporaneous clinical notes of Dapto Healthcare Centre to such thoughts of self harm until July 2016, some two years after the termination. The Appeal Panel considers that the history as set out in the clinical notes of Dapto Healthcare Centre in 2013 and 2014 is more reliable and concludes that Ms Micallef did not have any significant psychological problems after the termination in 2014 such as to warrant consulting her general practitioner and seeking treatment.
Dr Rastogi formed the opinion that Ms Micallef had no pre-existing disability or impairments. Dr Rastogi wrote: “There was a previous history of anxiety that made her vulnerable but it did not interfere with her functioning.”

Before he was provided with the clinical notes of Dapto Healthcare Centre, Dr Whetton considered that although Ms Micallef did have anxiety symptoms prior to the workplace incidents, these were not sufficient to warrant psychiatric diagnosis. After he was provided with the clinical notes of Dapto Healthcare Centre, Dr Whetton noted that there is a background history of anxiety first mentioned in her general practitioners’ notes in 2013 and with regular prescription of mediation from 2016. Dr Whetton considered that the work incidents of 2017 exacerbated the already present anxiety which has continued over the following years. Dr Whetton concluded Ms Micallef had a pre-existing condition, namely, a pre-existing anxiety disorder and that a 1/10th deduction was appropriate. Dr Whetton did not identify how the pre-existing condition had impacted on Ms Micallef’s functioning.
The Medical Assessor notes that on review of the medical record and direct enquiry at the assessment, Ms Micallef did not confirm a history of being diagnosed with an anxiety disorder as a child. However there is no mention of any clinically significant anxiety in any of her attendances with the GP from 2002 until 2016. The Appeal Panel agrees with the Medical Assessor that there is insufficient evidence to be satisfied that Ms Micallef had a long-standing history of impairing anxiety since childhood. The Appeal Panel rejects the appellant’s submission that Ms Micallef had psychological symptoms resulting from her pregnancy in and around 2013 because, firstly, she was not pregnant in 2013 and, secondly, there were no contemporaneous notes made by her general practitioners at the time that supported that submission.
The Appeal Panel accepts, however, that Ms Micallef was treated by Dr Bird for a “low mood” in 2013 and prescribed an antidepressant, Lovan, once. No further antidepressants were prescribed until after Ms Micallef commenced employment with the appellant. In the consultation on 23 July 2013, Dr Bird reported “low mood last 2 months, poor sleep. Not enjoying life”, and prescribed Lovan. It is significant that on 31 July 2013, Dr Bird noted “better on Lovan”. Based on fact that Ms Micallef described herself as feeling better in a one week period after commencing on antidepressants and then attending no further consultations with her general practitioners in relation to psychological issues for three years, until after she started work for the appellant, the Appeal Panel concludes that at most,
Ms Micallef had an adjustment disorder in 2013, as this rapid response is highly atypical for a depressive episode.
The appellant submits that Ms Micallef had a pre-existing abnormality, as Dr Fernando expressed the view that she had a genetic loading for anxiety and Dr Rastogi noted that
Ms Micallef had pre-existing vulnerabilities and trauma.
As noted above a vulnerability, pre-disposition or susceptibility is not sufficient to constitute a pre-existing condition. The Appeal Panel notes that the references by Ms Micallef to anxiety when performing, would be considered as normal within the general population.
The Appeal Panel notes that Dr Whetton was of the view there was a long-standing history of anxiety likely of a constitutional basis and the clinical notes from Dapto Healthcare Centre identified a low mood in 2013 and depression in the past in 2016. However, as noted above, Dr Whetton did not identify how the pre-existing condition had impacted on Ms Micallef’s functioning or help seeking.
On balance, having reviewed the evidence, the Appeal Panel accepts that Ms Micallef had a pre-existing condition, namely, an adjustment disorder.
The next matter to consider was whether the pre-existing condition warranted a deduction under s 323. The pre-existing condition affected Ms Micallef for a short period in 2013 and early 2014. Dr Bird in July 2023 noted that she had a low mood, poor sleep and was not enjoying life. However, there is no evidence of any impairment apart from those symptoms. The condition responded very quickly to treatment with Ms Micallef reporting that she was “better” within a week after taking Lovan. Ms Micallef reported no further psychological problems until she commenced employment with the appellant in 2016.
The Appeal Panel are satisfied that Ms Micallef was asymptomatic at the time of her employment by the appellant.
The Medical Assessor reported that Ms Micallef had no history of loss of function in her employment, social role as a Scout leader or participation at the local theatre society production prior to commencing employment with the appellant.
Having regard to the lack of evidence as to the actual consequences of the pre-existing condition, the Appeal Panel is not persuaded that the adjustment disorder contributed to the current impairment assessed.

Ground 3 – error in not providing any or any adequate reasons as to why a deduction for pre-existing injury, condition or abnormality is not appropriate

The appellant submits that the Medical Assessor erred in not providing any or any adequate reasons as to why a deduction for pre-existing injury, condition or abnormality is appropriate. The appellant submits that the Medical Assessor failed to discuss the relevant clinical notes and therefore did not explain, adequately or at all, the reasons why a deduction for pre-existing injury, condition or abnormality did not apply in this matter.
The appellant refers to the matter of Mayo Private Hospital v Radnidge [2022] NSWPICMP 28 (Radnidge) and submitted this decision was analogous to the facts in the current matter. Radnidge can be distinguished on the facts. In Radnidge the Appeal panel found clear evidence of Ms Radnidge having a pre-existing injury, condition or abnormality and clear evidence that she was in fact psychiatrically or psychologically symptomatic in the weeks immediately prior to the work injury, resulting in the requirement of Ms Radnidge being prescribed anti-depressant medication.
The Appeal Panel is satisfied for the reasons set out above that the Medical Assessor erred in failing to properly consider the clinical entries of Dapto Healthacre Pty Ltd prior to
11 July 2016. The Appeal Panel accepts that the Medical Assessor erred in failing to discuss the relevant clinical notes and therefore did not explain, adequately or at all, the reasons why a deduction for pre-existing injury, condition or abnormality did not apply in this matter. The Appeal Panel finds that Ms Micallef had a pre-existing condition but after reviewing the evidence makes no deduction pursuant to s 323.
In summary, the assessment of total WPI by the Appeal Panel is the same as that made by the Medical Assessor. In those circumstances the Appeal Panel will confirm the MAC as the review has not led to a different result and should not be interfered with (Robinson v Riley [1971] 1 NSWLR 403).
For these reasons, the Appeal Panel determines that the MAC issued on 6 February 2024 should be confirmed.

[2024] NSWPICMP 303

17 May 2024