Tory v Coffs Harbour Employment Support Services Ltd
[2023] NSWPICMP 512
•13 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tory v Coffs Harbour Employment Support Services Ltd [2023] NSWPICMP 512 |
| APPELLANT: | Jodie Tory |
| RESPONDENT: | Coffs Harbour Employment Support Services Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Graham Blom |
| DATE OF DECISION: | 13 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appellant submitted Medical Assessor (MA) erred with respect to his ratings of her impairment in self-care and personal hygiene, travel, and social functioning and by finding that a proportion of her permanent impairment was due to a pre-existing condition and making a deduction under section 323(1) on account of that; Appeal Panel found the it was open to the MA based on the evidence before him to rate the appellant’s impairment in the various categories as he did; Appeal Panel also found that MA was correct to find that a proportion of the appellant’s permanent impairment was due to a pre-existing condition and was therefore correct to make a deduction under section 323(1) for that; Held – Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 June 2023 Jodie Tory lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu-Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 May 2023.
The appellant relies on the following grounds for appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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 for 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 (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, 4th ed
1 March 2021 (the Guidelines).
RELEVANT FACTUAL BACKGROUND
The appellant suffered a psychological injury due to incidents that occurred during her employment with Coffs Harbour Employment Support Services Ltd, the respondent. At the request of her solicitors she was examined on 30 November 2021 by consultant psychiatrist Dr Abdal Khan, who in a report dated 31 November 2021 advised he had assessed the appellant had 15% whole person impairment (WPI) from her injury. It is apparent from his report that Dr Khan assessed the appellant’s WPI by reference to the criteria set out in Chapter 11 of the Guidelines.
On 20 December 2021 the appellant, relying on that report of Dr Khan, claimed compensation from the respondent under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment from her injury.
The respondent’s insurer thereupon arranged for the respondent to be examined on
17 March 2022 by psychiatrist Dr Nabil Malik. On 5 April 2022 Dr Malik advised in a report addressed to the insurer that he had assessed the appellant’s permanent impairment to be 7% WPI. Dr Malik indicated that when assessing the appellant’s impairment from her injury he deducted from that 7% WPI, 1% WPI for a “pre-existing impairment”. The Appeal Panel is of the view that Dr Malik did not explicitly say why he did that. Dr Malik did however record in his report that the appellant had a history of eating disorder which was diagnosed when the appellant was 23 years of age. It seems to the Appeal Panel that Dr Malik’s reasons for making the deduction of 1% WPI from the overall permanent impairment he assessed the appellant had relating to her psychiatric condition was because he considered a proportion of the appellant’s overall impairment was due to that eating disorder.Dr Malik also advised in his report to the insurer that he added 2% WPI for “treatment effects”. Dr Malik did not provide any cogent explanation within his report for why he did this. In any event, Dr Malik advised the insurer that he assessed the appellant had 8% WPI from her injury.
On 4 May 2022 the insurer wrote to the appellant notifying her under s 78 of the 1998 Act that it disputed she was entitled to “permanent impairment lump sum compensation”. It advised the appellant that this was because her permanent impairment resulting from her injury was less than 15% which, by virtue of s 65A(3) of the 1987 Act, her permanent impairment needed to exceed to be entitled to compensation for permanent impairment. It indicated to the appellant that its position was based on the report of Dr Malik, whom it advised her had assessed she had 8% WPI from her injury.
The appellant then filed with the Commission an Application to Resolve a Dispute (ARD) dated 8 December 2022, seeking determination of her claim for compensation for permanent impairment from her injury.
On 23 January 2023 a delegate of the President of the Commission referred the matter to the Medical Assessor.
MEDICAL ASSESSMENT CERTIFICATE
The appellant’s Appeal relates to, firstly, the Medical Assessor’s rating of her impairment in the Psychiatric Impairment Rating Scale (PIRS) for self-care and personal hygiene, travel and social functioning, and, secondly, the Medical Assessor finding that a proportion of her permanent impairment was due to a pre-existing condition and making a deduction under
s 323(1) of the 1998 Act on account of that.The history the Medical Assessor obtained relevant to those matters included the appellant’s present symptoms comprised that the appellant is unable to enjoy much but does enjoy spending time with her children to a restricted degree; that the appellant has poor appetite and finds food tasteless; that the appellant experiences extreme fears regarding her appearance and believes that people don’t like her because of how she looks even though she is aware that is not true; that the appellant has an intense fear of gaining weight and that she restricts her eating and binge eats and purges on a daily basis.
The history the Medical Assessor recorded also included that the appellant is single, and that she has a good relationship with her four children, including speaking daily with her eldest and youngest child. The Medical Assessor recorded that the appellant speaks by phone on a semi-regular basis with her two brothers. The Medical Assessor recorded that the appellant had a falling out with her father eight weeks before the assessment and has not spoken with him since then. The Medical Assessor noted that the appellant has regular contact with her mother. The Medical Assessor recorded that the appellant previously had a close friend when she resided at Yamba and also had friends whom she had met at the gym where she previously attended daily. The Medical Assessor recorded that the appellant has a friend in Inverell whom she met through work but whom she has never met and whom she now only contacts once every two weeks after having previously contacted her daily.
The Medical Assessor recorded that the appellant showers every day and changes her clothes daily after her shower. The Medical Assessor recorded that the appellant doesn’t prepare meals or cook and eats frozen readymade meals or breakfast cereals including for dinner. The Medial Assessor also noted that the appellant eats watermelon and cottage cheese and eats three meals a day with some component of binge eating. The Medical Assessor noted that the appellant is able to do her laundry and cleaning herself and is able to do her shopping, although she tries to have it delivered if she can. The Medical Assessor noted that the appellant is able to drive to familiar areas such as going to Tamworth which is 20km from her home.
The history the Medical Assessor obtained also included the appellant developing an eating disorder when she was 23 years of age in the context of two miscarriages, and which remained active for approximately four to five years with treatment at a day patient unit. The Medical Assessor noted that the appellant reported no further relapse of her eating disorder until she suffered her psychological injury as a consequence of her employment with the respondent.
The Medical Assessor provided the following summary of the appellant’s injury and his diagnoses of it:
“She has had a relapse of her Anorexia Nervosa Disorder, binge-eating and purging type (307.1) due to the subject injury, rather than an eating disorder not otherwise specified. I think that this diagnosis best fits her eating disorder, given the intensity and level of overvalued idea she has about her appearance and how this impacts her self-esteem, as well as her needing hospitalisation for this to Northside indicating the severity of this disorder.
She also a depressive syndrome, which has persisted since 2019. The chronicity and degree of depressive symptomatology warrants a diagnosis of Persistent Depressive Disorder, with persistent major depressive episode (300.4).”
The Medical Assessor stated within the MAC that in making his assessment of the appellant’s permanent impairment, he took into account the information he obtained from his assessment and his observations of the appellant as well as information from relevant documents, in regards to which he provided summaries within the MAC. The Appeal Panel observes that those documents included a discharge summary from the Northside Hospital dated 16 November 2020 which detailed the appellant had a history of personality vulnerabilities and disturbed eating patterns since 23 years of age.
The Medical Assessor completed the PIRS rating form contained within the prescribed form for the MAC, in which he detailed his ratings of the appellant’s impairment in the several PIRS categories and his reasons for his ratings. Within his reasons he also briefly detailed the ratings that Dr Kahn and Dr Malik made of the appellant’s impairment in the PIRS categories. With respect to the Medical Assessor’s ratings of the appellant’s impairment in the PIRS categories that the appellant has challenged, the Medical Assessor’s ratings of her impairment and his reasons for them, and his observations of how Dr Kahn and Dr Malik rated the appellant’s impairment, were as follows:
Self care and personal hygiene
2
She showers every day, and she changes her clothes
every day after a shower. She doesn’t do any meal
preparation or cooking, and she has frozen readymade
meals or breakfast cereals, including for dinner.
She also eats watermelon and cottage cheese. She
eats three meals a day, with some component of binge-eating, and on the days she restricts her eating
she will only eat at night. She has been able to do the
laundry and cleaning herself. She has been able to do
her shopping, though she tries to have it delivered if she can.
She presented as a casually dressed and reasonably
groomed blonde woman. She had an average build and appeared to be her stated age.
Dr Abdal Khan reported Self-care = 2, showers and
brushes teeth daily, wears make up to maintain
appearance, involved in preparing meals, though reduced in quality and restricted in nature, and able to
complete household tasks.
Dr Nabil Malik reported Self-care = 2, maintains selfcare
and hygiene daily and cooking.
She has been able to adequately maintain her selfcare,
Personal hygiene, meals, though to a reduced level of regularity, and has been more reliant on readymade meals and online delivery. So she has mild impairment.
Travel
2
She has been able to drive to familiar areas, such as
going to Tamworth 20km away, or to see her family,
and she doesn’t drive much elsewhere.
Dr Abdal Khan reported Travel = 2, able to travel to
familiar places alone, with significant anxiety.
Dr Nabil Malik reported Travel = 2, able to travel to
familiar places.
She is able to drive to familiar places, so she has mild
impairment.
Social functioning
2
She is single at the moment and has not been in a
relationship for five years, and she had separated prior
to the subject injury.
Her relationship with her son Will at Macksville has
been good, and there has not been any falling out. Her
relationships with her other three sons have also been
good, and she maintains regular contact with them,
and speaks to her older and youngest on a daily basis.
She has two brothers and she speaks to them via phone on a semi-regular basis. She has regular
contact with her parents, though her mother has
dementia and cannot recall their phone calls. She has
had a recent falling out with her father 8 weeks ago,
and she has not spoken to him since then.
She had previously had work colleagues and one was
a close friend when she was at Yamba, and she also
had friends she made at the gym when she attended
every day. She would also see them for girl weekends
or days out, when they would go cycling, ten pin bowling and to the beach. She has one friend in Inverell she met through work, but she has never met her friend. They were in contact every day, but recently she has reduced her contact to once every 2 weeks for the past 4 months. She has no other friends.
Dr Abdal Khan reported Social functioning = 2, well
supported by sons, withdrawn from friends.
Dr Nabil Malik reported Social functioning = 2, single,
socially withdrawn, not enjoying social gatherings.
She has been able to maintain good strong relationships with her children, though she has lost
contact with a lot of her friends, so she has mild
impairment.
The Medical Assessor’s ratings of the appellant’s impairment in the other PIRS categories of social and recreational activities, concentration, persistence and pace, and employability were, respectively, 3, 3 and 3. The Medical Assessor noted that the median of his class scores for the appellant was 3 and that the aggregate of his scores was 15, which converted to 15% WPI.
The Medical Assessor, in answer to the standard question in the prescribed form for the MAC, “is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?”, said as follows:
“She has a previous history of an eating disorder, though the severity was not as severe, as she did not require inpatient hospitalisation and her purported weight was not such that it would likely meet a diagnosis of Anorexia Nervosa. There has been references of personality vulnerabilities in that time as well.”
The Medical Assessor said at 11.a. of the MAC that the appellant had a pre-existing condition in the form of “a previous history of an eating disorder and personality vulnerability”. The Medical Assessor said that that pre-existing condition contributed to the appellant’s WPI that resulted from her injury. His explanation for this view was this:
“The eating disorder has recurred as a consequence of the subject injury. It consequently contributes to her current psychiatric impairment, in that if she had not suffered her eating disorder early on, her current impairment would not be as great.”
The Medical Assessor made a deduction under s 323(1) of the 1998 Act when assessing the degree of the appellant’s permanent impairment from her injury for the proportion of the appellant’s permanent impairment he considered was due to her pre-existing condition. The Medical Assessor said that “the extent of the deduction is difficult or costly to determine” so in accordance with s 323(2) he assumed the deductible proportion was one-tenth.
Hence, the Medical Assessor certified that the appellant’s permanent impairment resulting from her injury was 14% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it did not require the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel would be confirming the MAC and did not need to re-assess any part of the medical dispute that had been referred for assessment. Further, absent the Appeal Panel finding error in the MAC, the Appeal Panel has no power to examine the appellant.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134]; and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor ought to have rated her impairment in self-care and personal hygiene as Class 3, that is a moderate impairment. The appellant highlighted that she does not prepare her own meals. She said that she frequently misses meals and often restricts her eating and only eats at night. The appellant said that she alternates between living with her two sons, who live in two separate households, and she said she is assisted by her two sons on a daily basis and that her sons assist her with preparing meals. The appellant submitted that she cannot live independently.
The appellant submitted that the Medical Assessor ought to have rated her impairment in the PIRS category for travel as Class 3. The appellant submitted that the history the Medical Assessor obtained was incorrect. The appellant noted that she works remotely because she suffers from anxiety and panic and avoids driving and travelling. The appellant submitted that the Medical Assessor’s assessment of her impairment in this category contradicted the findings of Dr Kahn who found she has significant anxiety, panic and avoidance when she leaves her home.
The appellant submitted that the Medical Assessor ought to have rated her impairment in the PIRS category for social functioning as Class 3. The appellant submitted that the history the Medical Assessor obtained “is not entirely correct”. The appellant submitted that she has lost her circle of friends and the one friend she now has, she has never met in person. The appellant submitted that this means her previous established relationships are severely strained. The appellant submitted that the history the Medical Assessor obtained contradicts the findings of Dr Kahn.
The appellant submitted that no deduction ought to have been made by the Medical Assessor under s 323(1) of the Act. The appellant noted that her treating psychologist,
Ms Melissa Marks, recorded in a report dated 11 August 2020 that she had completed one inpatient admission at the Royal Prince Alfred Hospital approximately 30 years ago. The appellant submitted that her eating disorder had resolved completely prior to her workplace injury. The appellant noted that Dr Kahn stated that her eating disorder had been in remission for more than 12 years prior to injury. The appellant submitted that her pre-existing condition consequently did not result in an impairment. The appellant submitted that had the medical evidence and the histories contained therein been considered, then no deduction should have been made.
In reply, the respondent submitted that no error is demonstrated on the face of the MAC based on the matters the appellant raised. The respondent observed that the Medical Assessor’s rating of the appellant’s impairment in self-care and person hygiene, travel, and social functioning was the same as that which both Dr Kahn and Dr Malik rated her impairment in these categories.
The respondent highlighted various parts of the evidence before the Medical Assessor that the respondent submitted supported the assessments that the Medical Assessor made.
With respect to the deduction the Medical Assessor made under s 323(1) of the 1998 Act, the respondent highlighted that the Medical Assessor obtained a history of the appellant’s eating disorder relapsing around the time the appellant suffered an injury. The respondent also highlighted other aspects of the history the Medical Assessor obtained. The respondent observed that Dr Kahn had deducted 2% WPI for a pre-existing condition and that Dr Malik had deducted 1% WPI for a pre-existing condition. The respondent highlighted that the Medical Assessor found that the appellant’s eating disorder had recurred as a consequence of the appellant’s psychological injury and that the appellant’s current psychiatric impairment would not have been as great if she did not have her pre-existing eating disorder. The respondent submitted that the Medical Assessor provided adequate reasons for concluding that a proportion of the appellant’s permanent impairment is due to her pre-existing condition of an eating disorder and that the Medical Assessor was entitled to make a deduction of 10% under s 323(1) of the 1998 Act on account of that.
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.
The Appeal Panel notes that the examples provided for a Class 2 and Class 3 impairment in Table 11.1 of the Guidelines, which relates to self-care and personal hygiene, are:
Class 2
Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3
Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.
The reasons the Medical Assessor provided for rating the appellant’s impairment in this category as Class 2 best correlate, in the Appeal Panel’s view, with the examples provided in Table 11.1 for that Class. The matters on which the Medical Assessor from the history he obtained to assess the appellant’s impairment in this area of function do not correlate with the examples provided for a Class 3 impairment.
It is apparent to the Appeal Panel the history the Medical Assessor obtained was done having regard to relevant documentary evidence before him. The Medical Assessor said as much in the MAC. There is nothing within the documentary evidence that conflicts with the history he obtained. The Medical Assessor was entitled to base his assessment on the history he obtained and his clinical observations of the appellant when rating the appellant’s impairment.[2]
[2] Ferguson v State of NSW [2017] NSWSC 887 at [22].
The Medical Assessor explained that the appellant showers every day and changes her clothes after showering. The Medical Assessor explained that the appellant does not cook or prepare meals, but eats frozen readymade meals or breakfast cereals and watermelon and cottage cheese, and generally eats three meals a day but on days that she restricts her eating will only eat at night. The Medical Assessor noted that the appellant has some component of binge eating with respect to her meals. The Medical Assessor explained that the appellant is able to do her laundry and cleaning and shopping on her own and that she presented as casually dressed and reasonably groomed. The Medical Assessor concluded that the appellant is adequately able to maintain her self-care and person hygiene and meals although with a reduced level of regularity and relying on readymade meals and online delivery. The Appeal Panel considers that the Medical Assessor took into account all relevant factual matters to assess the appellant’s impairment in self-care and personal hygiene. The Appeal Panel considers that the Medical Assessor’s explanation for his rating, based on the matters he took into account, support his classification of the appellant’s impairment in this category as mild. In the Appeal Panel’s view it cannot be demonstrated from the MAC that his rating is wrong.
The examples for a Class 2 and Class 3 impairment provided in Table 11.3 of the Guidelines, which relates to the PIRS category for travel, are:
Class 2
Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3
Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.
Again, the Appeal Panel considers that the reasons the Medical Assessor provided for rating the appellant’s impairment in this category as Class 2 correlate best with the examples provided for that class and do not correlate with the examples provided for a Class 3 rating. The appellant does not need a support person to travel away from her home. She is able to drive to familiar places. The Medical Assessor was cognisant of the fact that the appellant works remotely from her place of employment, that is that she works at home, and that this is because the appellant suffers anxiety and panic when she leaves home. The Medical Assessor was aware that due to the appellant having anxiety and panic she avoids driving and travelling. Nevertheless, although the appellant avoids travelling, she is able to drive to familiar places. This is apparent because she has been doing her own shopping and she drives to see her family. In the Appeal Panel’s view these matters support the Medical Assessor’s rating of the appellant’s impairment in travel as mild. Again, the Appeal Panel considers that the Medical Assessor has considered the relevant factual matters and the explanation he provided for his rating, based on those factual matters, support the rating he made. It cannot be demonstrated from the MAC that he has made an error.
The examples for a Class 2 and Class 3 impairment provided in Table 11.4 of the Guidelines, which relates to the PIRS category for Social Functioning are:
Class 2
Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3
Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.
The Appeal Panel again considers that the Medical Assessor took into account all relevant factual matters and the rating he made of the appellant’s impairment in this category was open to him. The matters that the Medical Assessor took into account in the Appeal Panel’s view best correlate with the examples provided in Table 11.4 for a mild impairment. The Medical Assessor has provided an adequate explanation of his assessment. It is clear from the explanation he provided why he assessed the appellant’s rating as mild in this category. The Appeal Panel does not accept the appellant’s contention that the history the Medical Assessor obtained was not “entirely correct”. The history the Medical Assessor obtained accords with the history that Dr Kahn had obtained. The Medical Assessor took into account that the appellant previously had friendships with her work colleagues and with persons she had met at the gym and that she now has only one friend whom she had not yet met in person and with whom she now has much less contact. Nevertheless, and as the Medical Assessor noted, the appellant maintains good relations with her four children with whom she has regular contact. The appellant maintains relations with her siblings with whom she has “semi-regular” contact. The Medical Assessor also noted that the appellant has regular contact with her parents although has had a recent falling out with her father. Those matters do not support a rating of Class 3 in the category of social functioning. Again, in the Appeal Panel’s view, it cannot be demonstrated from the MAC that the Medical Assessor erred with respect to his rating of the appellant’s impairment in this category. It was open to the Medical Assessor to rate the appellant’s impairment as he did.
With respect to the deduction the Medical Assessor made under s 323(1) of the 1998 Act, it is necessary to establish what the appellant’s pre-existing condition was at the relevant date.[3] The evidence in this case indicates that the relevant date would have been a few years after the appellant commenced her employment in 2013 with the respondent. There was then a “change in management” and it was from that time the appellant was exposed to events in her workplace that caused her to suffer psychiatric illness.
[3] Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 at [46].
The Appeal Panel accepts the appellant’s submission that as at that date, that is before the date upon which the appellant was exposed to issues in her workplace following the change of management, her pre-existing condition of an eating disorder was in remission, that is, it was then asymptomatic. However, it does not matter that a pre-existing condition may be asymptomatic at the relevant date. What matters is whether a proportion of the appellant’s permanent impairment from her workplace injury is due to her pre-existing condition. Hence, irrespective of whether her pre-existing condition was asymptomatic at the relevant date, if it contributes now to her permanent impairment from her injury, which is determined at the time of assessment, then a deduction must be made under s 323(1) of the 1998 Act for it.
A proportion of the appellant’s permanent impairment will be due to her pre-existing condition if her pre-existing condition makes a difference to the outcome in terms of the degree of her permanent impairment resulting from her work injury.[4] The Medical Assessor found that her pre-existing condition did make such a difference. He said so in the MAC. He identified that the appellant’s pre-existing condition was an eating disorder and additionally there was a personality vulnerability. He identified the appellant’s injury as being a relapse of her eating disorder, specifically anorexia nervosa disorder, binge eating and purging type. He said that without the appellant having her pre-existing condition her current impairment would not be as great.
[4] Ryder v Sundance Bakehouse [2015] NSWSC 526 at [45].
The Appeal Panel considers that the Medical Assessor was correct to find that the appellant’s pre-existing condition contributes to her current permanent impairment from her injury. The Appeal Panel considers that the evidence before the Medical Assessor establishes that the appellant had a severe eating disorder when younger. The Appeal Panel considers, as the Medical Assessor found, that the psychological injury the appellant suffered due to her work decompensated into a relapse of her eating disorder, rather than there being a new onset of a depressive, anxiety, or post-traumatic stress disorder as is often the case following workplace injuries. Consequently, had she not had that pre-existing eating disorder, her symptoms from her injury, and her consequent impairment, would not have been as great. Simply put, her pre-existing eating disorder, notwithstanding that it was in her remission at the relevant date, has made her impairment from her injury much more severe.
The Appeal Panel also considers that the Medical Assessor was right to assume in accordance with s 323(2) of the 1998 Act that the deductible portion for the purpose of
s 323(1) was 10% and that is because, as the Medical Assessor found, it would be too difficult to determine precisely the extent to which her permanent impairment was due to that pre-existing condition. Making that assumption was not at odds with the available evidence.Consequently the Appeal Panel finds that the Medical Assessor did not make any error by making a deduction under s 323(1) of 10% for the proportion of the appellant’s permanent impairment that was due to her pre-existing condition.
For these reasons, the Appeal Panel has determined that the MAC issued on 9 May 2023 should be confirmed.
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