Unisys Technical Services v Walke

DETERMINATION OF APPEAL PANEL
CITATION:	Unisys Technical Services v Walke [2024] NSWPICMP 83
APPELLANT:	Unisys Technical Services
RESPONDENT:	Shane Walke
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Ash Takyar
DATE OF DECISION:	20 February 2024
DATE OF AMENDMENT:	21 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; assessment of pre-existing impairment; paragraph 11.10 of the Guidelines, Marks v Secretary, Department of Communities and Justice (No 2) considered; inapplicability of one-tenth deduction in light of history; re-examination; need for medical members of Panel to use judgement, knowledge and experience; Cole v Wenaline Pty Ltd considered; assessment under Psychiatric Impairment Rating Scale; Bojko v ICM Property Service Pty Ltd and Ferguson v State of New South Wales applied; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 16 October 2023 Unisys Technical Services (Unisys) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Lam-Po-Tang, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 September 2023.
Unisys 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 was satisfied that, on the face of the application, at least one ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Walke suffered a psychological injury in the course of his employment with Unisys which is deemed to have been suffered on 1 January 2019. When he commenced that employment in 2016, Mr Walke was under treatment for a pre-existing psychological condition, including consulting a psychiatrist and taking medication. It was agreed that the injury was the aggravation, acceleration, exacerbation or deterioration of a disease and the referral to the Medical Assessor was made by consent.
The Medical Assessor assessed 22% whole person impairment (WPI) under the PIRS (Psychiatric Impairment Rating Scale), placing Mr Walke in class 2 for self care and personal hygiene and social functioning, class 3 for social and recreational activities, travel, and concentration, persistence and pace and class 5 for employability. The Medical Assessor deducted one-tenth under s 323, resulting in an assessment of 20% WPI.

PRELIMINARY REVIEW

We 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, we determined that Mr Walke should undergo a further medical examination. We determined that there was a demonstrable error in the MAC because a deduction of one-tenth under s 323 was improbable, given the medical evidence in the file. It was necessary to conduct an examination to determine the appropriate deduction.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
Dr Andrews conducted an examination of the worker on 25 January 2024 and reported to us. The report forms part of these reasons.
The parts of the MAC 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 summarised in this decision, but we have considered them in full.
Unisys submitted that the Medical Assessor erred in failing to apply paragraph 11.10 of the Guidelines to make an assessment of Mr Walke’s pre-injury functioning or to give reasons for not doing so. Unisys cited a number of entries in Mr Walke’s general practitioner’s notes which it said would have allowed the Medical Assessor to make that assessment.
Unisys also submitted that the Medical Assessor was in error in applying the deduction provided for in s 323(2) of the 1998 Act because he did not explain why it was not at odds with the evidence, why it would be difficult or costly to determine the extent of the deduction, nor what the cost would be.
Unisys also submitted that the Medical Assessor’s PIRS assessment was inconsistent with the history taken in the assessment of social and recreational activities, travel, concentration, persistence and pace and employability. Unisys said that the Medical Assessor failed to explain how incontinence was a result of the injury before assessing any impairment as a result.
Unisys sought an “accurate” PIRS assessment and a s 323 deduction consistent with the evidence. It did not quantify either.
In reply, and in submissions prepared by Mr Mrsic of counsel, Mr Walke noted that Unisys had conceded that the injury was the aggravation of a disease to which employment was the main contributing factor. He referred to the decision of Simpson AJ in Marks v Secretary, Department of Communities and Justice[1] (Marks) in which her Honour determined that paragraph 11.10 of the Guidelines is invalid and referred to some Medical Appeal Panel decisions which followed it. He said that the Medical Assessor had taken a plethora of medical evidence into account and had not erred in the application of s 323. Mr Walke submitted that we should note the decision of another Appeal Panel in Camden Council v Harle[2] (Harle) andobserve that the Appeal Panel determined that 20% was an appropriate deduction in a case where the pre-existing mental illness was of a greater magnitude than his so that a deduction of one-tenth was appropriate.
[1] [2021] NSWSC 306.
[2] [2022] NSWPICMP 339
With respect to the PIRS, Mr Walke said that the Medical Assessor’s assessment was appropriate based on the history he took and the medical evidence in the file. He noted that Dr Potter, qualified for Unisys, had accepted that he was unfit for work. He said that there was no merit in the submissions with respect to incontinence and said that the Medical Assessor had not referred to it in the PIRS rating form.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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 Queanbeyan Racing Club Ltd v Burton,[3] the Court of Appeal held that an Appeal Panel is not limited to the ground held to have been made out by the delegate but may consider all grounds of appeal raised in the application. However, the panel is not permitted to look for errors which are not part of the grounds of appeal on which the appeal is made. We have only considered those grounds specifically raised by the appeal.
[3] [[2021] NSWCA 304 at [26].
In Campbelltown City Council v Vegan[4] the Court of Appeal held that an 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.
[4] [2006] NSWCA 284.

Section 323

Section 323 provides:
“323 Deduction for previous injury or pre-existing condition or abnormality
(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.
…”
In Cole v Wenaline Pty Ltd[5] (Cole) Schmidt J said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction 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.
…
What s 323 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…”
[5] [2010] NSWSC 78 at [29] and [38].
In Ryder v Sundance Bakehouse[6] (Ryder) Campbell J said:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
[6] [2015] NSWSC 526 at [45].

The MAC

The Medical Assessor set out a detailed history of the injury and the treatment Mr Walke has undertaken. He said:
“When asked to describe his mental state at the time of commencement, Mr Walke replied, ‘I want to say pretty good. I was on medication, I was stable, I didn't have any of the travel concerns or fears that I do now’. He reported no concerns about incontinence and no panic attacks.”
The Medical Assessor set out Mr Walke’s past psychiatric history:
“Mr Walke has a documented history of psychiatric symptoms that pre-dated his employment. As noted in the correspondence from his former treating psychiatrist, Dr Sydney Oen, he experienced clinically significant symptoms since late teenage years, as evidenced by referral to specialist services. Additionally, Mr Walke has a documented history of alcohol misuse that pre-dated his employment. At some stage in the early 2000s, Mr Walke advised he was referred to the mental health service at St George Hospital, Kogarah. He referred to a female mental health provider, but could not recall if she was a psychologist or psychiatrist. He was unsure how long he consulted her for; he was not prescribed medication. (As I worked at St George Hospital in the mental health service in the early 2000s, I was able to recount the names of all female psychiatrists working there at the time, and these did not ring a bell in Mr Walke's case, suggesting he consulted a psychologist.)
Mr Walke began consulting Dr Oen in 2014, and saw him until 2015. The indication for consultation was depression, and Dr Oen prescribed a number of psychotropic medications, including antidepressants. Dr Oen recorded diagnoses of Panic Disorder and Dysthymia (presently called Persistent Depressive Disorder).
Mr Walke began consulting Dr Mark Cross in October 2015, and the reason for changing psychiatrists was due to moving residences. In his initial review of Mr Walke, Dr Cross noted recurrent panic attacks, associated with gastrointestinal symptoms, including urgency. Longstanding depression was also noted by Dr Cross as a comorbid diagnosis. At the time of initial consultation, Dr Cross considered Mr Walke's anxiety symptoms to be worse than his depression. He has continued to see Dr Cross to date.
From 2014 - 2015 onwards, Mr Walke was prescribed a variety of psychotropic medications. These include sodium valproate, nortriptyline from 2014, titrated up to 1 mg nightly, and paroxetine, which was started in 2015. Diazepam was started in 2015, by Dr Cross. A mentioned in the correspondence is also made of temazepam and lorazepam. Mr Walke’s lamotrigine was started more recently in 2018 or 2019, by his neurologist, Dr Levy. Lorazepam and agomelatine were prescribed in 2019, as were duloxetine and aripiprazole.”
The Medical Assessor summarised his diagnosis:
“…He has not worked since late 2019, due to worsening of symptoms of preexisting depression, as well as worsening anxiety, panic attacks and avoidance behaviour, the focus being fear of incontinence. The worsening of his depression and emergence of anxiety symptoms occurred in the context of multiple work changes, but predominantly a conflicted relationship with his direct manager at Unisys Technical Services, which in turn occurred in the context of multiple staff changes and reductions, resulting in an increased workload for remaining team members.
Following psychiatric hospitalisation in September and October 2019, Mr Walke’s condition has remained relatively stable, and his medications have not changed for around four years. He continues to experience ongoing symptoms of depression, as well as situational avoidance, predicated on a catastrophic fear of incontinence.
Mr Walke’s pre-existing psychiatric condition meets DSM 5 diagnostic criteria for Persistent Depressive Disorder (Dysthymic Disorder), and the anxiety symptoms meet DSM 5 diagnostic criteria for Panic Disorder with Agoraphobia.”
The Medical Assessor considered reports from Dr Cross and Dr Oen in 2015 and the reports of the doctors who examined Mr Walke at the request of his solicitors and Unisys. He diagnosed major depressive disorder and panic disorder. He said that the pre-existing condition contributed to the impairment assessed because:
“(i) Mr Walke described a long-standing history of depression from teenage years, with ongoing psychiatric outpatient treatment from 2014 onwards, in the form of regular reviews by a consultant psychiatrist, and multiple trials of antidepressant and other psychotropic medications. Multiple changes in antidepressants from 2014 onwards indicate that Mr Walke had ongoing symptoms of depression and anxiety from this time onwards.
(ii) Longstanding Panic Disorder was identified by Dr Oen (see letter dated 1 November 2015) and also in Dr Cross (see letter dated 29 October 2015).”
Despite that the Medical Assessor said:
“The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth. (can only be used when not at odds with available evidence).”

Assessment

The submission made on behalf of Unisys that the Medical Assessor was required to make an assessment under paragraph 11.10 of the Guidelines does not take into account recent Supreme Court authority concerning that paragraph.
Paragraph 11.10 provides:
“11.10 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 levels. 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 percent 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.”
In Marks v Secretary, Department of Communities and Justice[7] and Marks v Secretary, Department of Communities and Justice (No 2)[8] Simpson JA considered the application of s 323 and paragraph 11.10 in the context of a pre-existing but asymptomatic condition. In the second decision her Honour noted authorities which held that a pre-existing but asymptomatic physical condition may contribute to the degree of impairment.
[7] [2021] NSWSC 306.
[8] [2021] NSWSC 616.
Her Honour said:
“In the light of this consistent line of authority, s 323(1) must be construed as requiring deduction from the assessment of the degree of permanent impairment of any proportion of the impairment that is due to ‘previous injury … or … pre-existing condition or abnormality’, whether or not the pre-existing condition or abnormality is symptomatic at the time of injury. As noted in the preliminary reasons, the cases which have previously considered this question all related to physical injury. However, as was observed on behalf of the first defendant, s 323(1) does not distinguish between physical and psychiatric or psychological injuries. It applies to all injuries equally.
Guideline 11.10, with its focus on ‘pre-injury level of functioning’, does not allow for deduction from the assessment of impairment in cases where an asymptomatic pre-existing condition contributes to the degree of permanent impairment assessed. To the extent that Guideline 11.10 excludes consideration of any contribution to the permanent impairment that might be made by an asymptomatic pre-existing condition, it is inconsistent with s 323(1).
Moreover, if it were to be accepted, as was asserted on behalf of the plaintiff in submissions in reply, that Guideline 11.10 determines that an asymptomatic condition does not materially contribute to the subsequent condition, or, … , does not do so unless it was causing ‘an assessable impairment’ prior to the injury in respect of which the assessment is made, the conclusion that Guideline 11.10 is in conflict with s 323(1) is reinforced. As was submitted on behalf of the first defendant, s 323(1) makes no distinction between physical and psychiatric/psychological injury. There may be good reason to issue, in respect of the latter, a guideline that prescribes a different procedure from a guideline with respect to the former. But that can be done only in conformity with the legislation. There is nothing in s 323(1) that authorises exclusion of asymptomatic pre-existing conditions as causative or partially causative of a subsequent impairment.”

Her Honour determined:
“I have therefore concluded that Guideline 11.10 of the Workers Compensation Guidelines is, to the extent that it excludes, in the application of s 323(1) of the WIM Act to any psychiatric or psychological impairment, consideration of any contribution made to the impairment by a pre-existing but asymptomatic condition, inconsistent with s 323(1) and invalid.”[9]
[9] At [29].
If paragraph 11.10 is invalid in respect of an asymptomatic condition, it is difficult to see how it could be valid in respect of any other condition.
In Secretary, Department of Communities and Justice v Lewandowski[10] Griffiths AJ considered an application for judicial review in a case where the worker had suffered a symptomatic pre-existing psychiatric decision. An Appeal Panel had made a deduction of one-tenth under s 323 because the evidence did not readily permit an assessment of permanent impairment. Griffiths JA held that the Panel fell into error by asking whether the pre-existing impairment could be measured rather than considering the proportion due to a pre-existing condition.
[10] [2023] NSWSC 334.
Based on that authority, we do not consider that the Medical Assessor was required to assess the pre-existing impairment under paragraph 11.10 of the Guidelines. We doubt that assessment under the PIRS as required by that paragraph would lead to a fair assessment of the extent to which Mr Walke’s pre-existing condition contributed to the impairment he now suffers. Though he had a long standing psychiatric history, he was able to function within his family and in society. In particular, he was able to obtain and hold down employment both with Unisys and part time employment with another employer, until he suffered the injury in the employ of Unisys. It is likely that an assessment of his pre-injury level of function under the categories of the PIRS would be low.
Mr Walke’s ability to perform his work duties is supported by the statements taken in mid 2019 from Unisys staff and relied on in its Application to Admit Late Documents dated 13 April 2023. Mr Banger, the regional delivery manager, said he believed Mr Walke was a competent worker. When staff were notified that the Defence contract would end, Mr Banger contacted Mr Walke and told him that “Unisys wished to keep him with ongoing employment within Unisys.” Mr Walke’s supervisor, Mr Bognar, said that Mr Walke was competent in his job though his performance later declined due to his medical conditions. He highlighted days off in early 2019, which is after the agreed deemed date of injury. Mr Sookee, a former regional team leader had a discussion with Mr Walke in later 2018 when he had used all of his sick leave. He said that in informal conversations before that Mr Walke “raised nothing that would indicate that he was struggling with anything.”

Medical evidence

Mr Walke sought treatment for psychiatric symptoms from his late teens. He said in his statement dated 27 December 2022 that from 2010 until about 2018 or 2019 he was able to manage his depression and anxiety with medication and “sticking to routines” as well as regular medical appointments.
Mr Walke began consulting general practitioners at Eagle Vale Medical Centre in January 2015. He was already consulting Dr Oen and a psychologist. He asked to see a psychologist closer to home and was referred to Ms Parasher who saw him at the same medical centre. She provided counselling to assist with anger management and his alcohol intake and consulted with Mr Walke regularly. Ms Parasher noted in October 2015 that Mr Walke had begun to see Dr Cross, psychiatrist, and that his medication had been changed. In January 2016, Ms Parasher noted that Mr Walke was trying hard to adapt to change but was struggling.
The only report in the file from Dr Oen is dated 1 November 2015. He said that he had treated Mr Walke over the last year, and that his panic, disorder and dysthymia had been a little more difficult to control. He had a recurrence of his irritable bowel syndrome symptoms, but they were not as debilitating as they were originally, and there was a period when he was drinking heavily again to control his anxiety, Dr Oen noted that Mr Walke was to see a psychiatrist closer to home.
Dr Cross reported on 29 October 2015, noting that Mr Walke was “up and down” and that his panic attacks were getting worse. He noted that Mr Walke had a seven year history of treatment for mood disorders. He noted that Mr Walke had been with his wife for 10 years, married for four years and had a son. Mr Walke had been with his then current employer for three years.
In January 2016, a general practitioner noted that Mr Walke was applying for a job and needed a report about his depression and medication. In February Ms Parasher obtained approval from Medicare for a further three sessions of treatment. In March 2016 Mr Walke told her that he was overwhelmed by his son’s behaviour.
In January 2016, Dr Cross noted that Mr Walke had applied for a new job and needed a medical report. He had found Christmas with his family stressful but had been generally okay. Dr Cross provided a report setting out Mr Walke’s medication. He said that Mr Walke was treated for anxiety, was currently well and fit to travel.
Mr Walke began working for Unisys in March 2016. In April 2016, Dr Robalino noted that Mr Walke have been treated for some time for anxiety and depression and still had significant symptoms. He said that Mr Walke needed to continue with psychologist review and requests and requested a mental health care plan and referral to a psychiatrist.
On 9 April Mr Walke told Ms Parasher that his symptoms had declined, that he was doing well, that he was working with defence and was happier in mood and that his presenting pathology was well managed. He said on 28 May that he was enjoying work, and he was well happier, motivated, and had improved self-esteem. He saw Ms Parasher in July and August 2016. By September 2016, Mr Walke told Ms Parasher that he felt empowered, happier and was coping well though he had highs and lows in mood, was stressed and anxious with ongoing concerns with migraine.
In September 2016 Dr Cross said that Mr Walke had received another security clearance, that his anxiety had improved and that things were generally okay at home.
Through 2017 and 2018, Mr Walke saw his general practitioners for general medical issues, including with respect to gall bladder surgery. He did not see Ms Parasher. He saw Dr Tran on 4 August 2017 and said he had increased panic attacks. On 17 May 2018 Dr Phan noted that Mr Walke’s antidepressant medication was changed a month ago and on 22 May that he had stopped seeing a psychologist two to three years ago.
Mr Walke continued to see Dr Cross regularly. On 29 January 2018 Dr Cross noted that Mr Walke was actively looking for jobs and was doing a course online, intending to do a diploma in networking/system administration through the University of Queensland. He had booked a trip to Hawaii, which would be his fifth or sixth trip there. He had bought a rowing machine and was not eating junk food. By May 2018, Dr Cross recorded that Mr Walke was struggling.
In mid 2018 Dr Phan undertook a safety assessment, noting that Mr Walk had had active suicidal ideation since he was about 17. On 8 November 2018 Dr Phan noted that meditation and mindfulness assisted with gut issues and anxiety.
On 17 April 2019 Dr Phan noted that Mr Walke had seen Dr Cross, noting that workplace issues were exacerbating his anxiety symptoms and that his migraines were worse. From that time, the general practitioners notes contain consistent references to the injury.
Dr Cross summarised his treatment in a report dated 14 December 2022. He noted that Mr Walke had undergone inpatient hospital treatment for eight weeks commencing in September 2019. When asked if Mr Walke suffered a pre-existing disease, Dr Cross said:
“Mr Walke had a prior history of mood disorders, namely generalised anxiety, depression and migraines. His experiences at Unisys LTD in my view aggravated his migraines and mood issues and caused panic disorder and agoraphobia, with suicidality noted.”
Dr Cross summarised his notes, including some consultations not described in the reports in the file, saying that Mr Walke’s pre-existing condition was aggravated by events at work from late 2018 and early 2019. He did not agree with the opinion of Dr Potter, qualified for Unisys, that Mr Walke’s depressive symptoms could have caused his workplace struggles. Dr Cross said:
“I and Mr Walke’s GP, as well as his wife Laura, encouraged Mr Walke to go onto work-cover linked to the discussions with Mr Walke, his deteriorating mental state and stress he was dealing with at work. Specifically, with his manager at the time. Mr Walke was hesitant, he wanted to work and continue supporting his family. This caused increased anguish and impacted on his self-view as he felt he should ‘just deal with it’. No one in my view should have to deal with bullying, toxic workplace culture and stigmatising attitudes in the workplace, from managers who are supposed to be supportive.
This, in my opinion, is what Mr Walke faced at Unisys LTD prior to him claiming work-cover. I can only go by the information Mr Walke (and his wife) supplied to me, I did not speak to anyone else involved. My notes, over months in 2019, clearly show deterioration in Mr Walke’s mental state, his overall functioning and his increased risk to self-linked to what he was having to deal with at his workplace. I cannot verify anything Mr Walke told me about his manager and what was said to him. I did document each time this was disclosed to me, by a tearful Mr Walke, with whom I have built a relationship over many years and have no cause to believe he was not telling the truth at the time.”
Dr Cross considered that Mr Walke was incapacitated for the remainder of his working life.
Dr Potter, who saw Mr Walke in January 2022 at the request of Unisys, did not make a diagnosis because he said he had inadequate information. He did not assess permanent impairment because he considered that Mr Walke had not reached maximum medical improvement.
Some of the history summarised immediately above was relied on by Unisys to argue
that there was ample evidence to assess his pre-injury impairment in accordance with paragraph 11.10. As set out above, we do not agree that we should use that paragraph to assess previous impairment but even if it was appropriate, the evidence shows that Mr Walker was functioning well before the injury. The extracts from the medical history on which Unisys relies focus on treatment rather than function – they do not describe how Mr Walke was living his life before the injury.
A PIRS assessment based on that history would likely have resulted in a low assessment of pre-existing impairment. Dr Allan, qualified for Mr Walke, made a similar comment in his report dated 14 September 2021:
“There is no evidence of any significant impairment prior to the Unisys difficulties causing his deterioration. Specifically, there is no evidence of any deficits in regards to his personal function, his relationships, his social life, his ability to concentrate and his ability to work.”
We do not agree with the Medical Assessor and Dr Allan that a one-tenth deduction was appropriate because it is at odds with the evidence in the file.
Mr Walke’s accepted injury is an aggravation of a pre-existing condition. It was long standing; Mr Walke was under significant treatment and taking medication which required adjustment from time to time. The Medical Assessor was satisfied that the pre-existing diagnosis was persistent depressive disorder and panic disorder with agoraphobia. His current diagnosis is the same, with worsening anxiety and avoidance behaviour. It is substantially consistent with the diagnosis Dr Cross made when he first saw Mr Walke, though is now much worse.
The extent of the deduction is difficult to determine, though not because of a lack of evidence. As Dr Andrews said in his attached report, the extent of the contribution can only be made by psychiatrists using their expertise and experience, or as Schmidt J said in Cole, by using their “medical judgement, knowledge and experience”. We agree with Dr Andrews’ assessment that the appropriate deduction in respect of Mr Walke’s pre-existing condition is one-quarter.
We do not accept Mr Walke’s submission that his pre-existing condition was less severe than that of another worker so that the deduction should be less than the 20% deduction applied in Harle. A Medical Panel is not bound to follow the decisions of another Appeal Panel and it is unlikely that another decision would contain sufficient detail to make a comparison. We are required to consider the principles set out in appellate authority and to apply them to the facts of this case.

Assessment under the PIRS

Unisys made brief submissions about the assessment under a number of the PIRS tables.
The Medical Assessor was required to assess Mr Walke as he presented on the day of the examination.[11] When Mr Walke is being assessed, it is on the totality of his condition from both the impact of his significant pre-existing condition as well as the injury.
[11] Guidelines paragraph 1.6.
Class 1 applies under each of the tables where there is no deficit or a minor deficit attributable to the normal variation in the general population. The Medical Assessor was required to assess how Mr Walke’s situation differed from that normal variation.
The Medical Assessor is an administrative decision maker and his reasons are to be considered in that light. In Bojko v ICM Property Service Pty Ltd [12] (Bojko) Handley AJA (with whom the other members of the Court agreed) said that the worker had failed to establish his grounds of appeal because:
“Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’"
[12] At [36].
In Ferguson v State of New South Wales[13] Campbell J said:
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”
[13] [2017] NSWSC 887 at [25].
We do not consider that any of the Medical Assessor’s PIRS assessments were glaringly improbable.

Social and recreational activities

The Medical Assessor assessed Mr Walke with a moderate impairment for social and recreational activities. The table measures the extent of participation in activities and his interaction with others.[14]
[14] Ballas v Department of Education (State of New South Wales) [2020] NSWCA 86 at [100].
Unisys said that the Medical Assessor had set out what Mr Walke is able to do, not his impairment. The Medical Assessor said in the PIRS rating form:
“Mr Walke advised he had recently purchased a bicycle and had ridden it on 5 occasions in his neighbourhood.
Mr Walke stated that he played video games with his son once or twice a week, for an hour at a time.
Indoor recreational activities reported by Mr Walke include watching videos or TV programs on streaming services.
Mr Walke is able to spend time with his parents and in-laws when they visit the family home.”
The PIRS rating form is a summary of the reasons given for the moderate impairment rating applied by the Medical Assessor, based on the history set out in the MAC. A reasonable reading of the whole of the MAC and the PIRS rating form is that the Medical Assessor considered that Mr Walke’s impairment in respect of social and recreational activities was moderate because the matters listed are the extent of his social and recreational activities. While Mr Walke has some recreation which all takes place at home, his social interaction is very limited and there is nothing to suggest that he interacts socially with anyone outside his family.
We consider that assessment in class 3 was open to the Medical Assessor in the exercise of his clinical judgement, based on the history he obtained.

Travel

The Medical Assessor set out his reason for assessment in class 3:
“Mr Walke does not drive a car alone, and does not use public transport.
Mr Walke has been able to take commercial plane flights within the last 12 months
Mr Walke has been able to ride his bicycle away from his home, with his son, for around 30 minutes, staying within his neighbourhood.
In either late 2022 or early 2023, Mr Walke and his family travelled to regional NSW to stay overnight with his mother.”
Unisys said that the assessment was flawed because it was made on the basis of Mr Walke’s report that he cannot drive, though he has “travelled extensively” and the Medical Assessor did not consider how much and how far Mr Walke was able to travel. It said that he can ride a bicycle.
The examples in the PIRS show that travel is not limited to driving or other modes of transport and that the table measures a worker’s ability to leave home and go to new places. Class 1 is relevant to someone who “can travel to new environments without supervision” and assessment in class 2 is relevant for a worker who can “travel without a support person, but only in a familiar area”. A worker who “cannot travel away from own residence without support person…” is assessed in class 3.
The body of the MAC does not support Unisys’s submission. The Medical Assessor’s statement that Mr Walke had travelled to regional New South Wales to visit his mother is inconsistent with the history in the MAC where the Medical Assessor recorded that Mr Walke’s wife had done so, leaving Mr Walke at home. Mr Walke speculated that he may visit his mother though there is nothing in the file to suggest he has done so.
The only travel described in the MAC was to Queensland on a family trip paid for by Mr Walke’s father in law. Though he undertook some activities, Mr Walke was accompanied by his wife and children and his mother in law and sister in law. He went to the amusement park at the resort where they stayed but did not go to restaurants or the beach. Mr Walke said that he experienced significant anxiety away from home.
There is a significant difference between Mr Walke riding a bicycle in the local area with his young son for short periods and being able to use a bicycle as a form of transportation. Assessment in class 3 was open to the Medical Assessor on the basis of the history he took.

Concentration, persistence and pace

The Medical Assessor assessed Mr Walke in class 3 because:
“Mr Walke reported subjective impairment in his concentration and attention. He said he struggled to maintain concentration on videos for more than 30 minutes.
Mr Walke estimated he could play video games for up to an hour at a time.
Mr Walke was able to maintain attention and concentration for the entire assessment, which took 105 minutes.”
Unisys said it was inconsistent “in our view, with there being anything more than a mild to very mild impairment.”

Again, the Medical Assessor provided more detail in the body of the MAC. The video games Mr Walke plays are with his primary school aged son, suggesting that they are appropriate for that age group, and they play once or twice a week. He does read, though slowly.
The assessment under this table is one the Medical Assessor is best placed to make as a result of his consultation, assessing Mr Walke’s ability to concentrate, persist with cognitively demanding tasks, and the pace of his cognitive processes. The Medical Assessor noted that Mr Walke was able to concentrate for the length of the consultation, though did need to pause at times while framing his responses.
The assessment in class 3 is perhaps one about which reasonable minds may differ but it cannot be said that the assessment was not open to him in the exercise of his own clinical judgement.

Employability

The Medical Assessor said:
“Mr Walke has not worked or studied in any capacity for 4 years.
Mr Walke does not describe regularly undertaking any tasks within his home that could translate to remunerative activity.”
Unisys said that the Medical Assessor conflated the fact that Mr Walke is not working with an impairment that prevents him from doing so. No further submissions were offered in respect of that statement.
It is clear when the MAC is read as a whole that the Medical Assessor accepts that Mr Walke is unable to work. None of the medical evidence in the file supports a submission that Mr Walke had any work capacity, including Dr Cross, who has treated Mr Walke since before the injury and Dr Potter on whose report Unisys relied. As Dr Andrews observed, Mr Walke’s condition is entrenched.
The assessment in class 5 does not disclose error.

Incontinence

Unisys submitted that “the” impairment as a result of incontinence in terms of a restriction on travel or distress and agoraphobia was a demonstrable error because the Medical Assessor failed to explain how it was related to the injury. The submission was brief and not further developed.
It is clear from the file that Mr Walke had suffered incontinence and anxiety concerning incontinence for some years before the injury. He was formally diagnosed with irritable bowel syndrome after the injury. The Medical Assessor said
“In or around 2020, Mr Walke advised he was diagnosed with Irritable Bowel Syndrome. He stated the diagnosis was confirmed in 2020 following review by a gastroenterologist, but noted his general practitioners had referred to this as a syndrome for some years. He reported no specific treatment for this condition at present, but noted he sometimes takes loperamide for diarrhoea.”
The Medical Assessor’s diagnosis highlighted that the fear of incontinence was the focus of Mr Walke’s avoidance behaviour. He noted, when describing Mr Walke’s social situation that he did not cycle far from home “for fear of having to go to the bathroom” (our emphasis).
The fear is well described in two notes from Mr Walke’s general practitioners. On 24 April 2019 Dr Phan noted that Mr Walke had stopped working in the city and taken the job with Unisys because he was having panic attacks on the train when there were no bathrooms nearby and he required “a toilet nearby due to IBS.”
On 16 July 2019 Dr Long wrote:
“stomach problem
thought it was related to his anxiety and panic attacks
on anti depressants / migraines for ten yrs
starts with a fellingin his gut
like he has diarrhoea
and cannot hold off going to the toilet
if it hits he has to open his bowels
and this then affects hs anxiety
sometimes needs to then immediately goes to the toilet
no diarrhoea
not related to food
sometimes related to his anxiety
vicious cycle
problem for 10 yrs and getting worse
worse since gall bladder removed.” [sic]
The Medical Assessor did not refer to incontinence in the PIRS rating form. His references to the condition in the body of the MAC centred on Mr Walke’s fears of incontinence as did part of his diagnosis. The relevance of the condition is the fear engendered by it manifesting in avoidance behaviour, not the condition itself.

CONCLUSION

For these reasons, we have determined that the MAC issued on 18 September 2023 should be revoked, and a new MAC should be issued, reflecting a greater s 323 deduction. The new certificate is attached to this statement of reasons.

Issued by:

Ann Jackson

Disputes Support Officer

PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W1770/23
Appellant:	Unisys Technical Service
Respondent:	Shane Walke

Examination Conducted By:	Dr Douglas Andrews
Date of Examination:	25 January 2024

The worker’s medical history, where it differs from previous records
Mr Walke lives with his wife Laura and their nine-year-old son and three-year-old daughter. He is on a disability support pension and has not worked since leaving Unisys in September 2019.
His condition has not changed since his assessment with the MA, Dr John Lam Po Tang, on 18 September 2023. He continues to see his psychiatrist, Dr Mark Cross, and his psychologist, Ms Renata Wosik, every 6 to 8 weeks. He remains on a complex medication regimen: duloxetine 60 mg mane, aripiprazole 10 mg daily, agomelatine 25 mg nocte, alprazolam 2 mg nocte, lamotrigine 100 mg BD, diazepam 10 mg PRN (used infrequently) and CBD/THC oil 0.6 mls TDS. He also uses oxycodone for migraine headaches.
The MA noted a diagnosis of persistent depressive disorder and panic disorder with agoraphobia.
Additional history since the original Medical Assessment Certificate was performed
The appellant challenged four PIRS categories (social and recreational, travel, concentration persistence and pace, and employability) and the s323 deduction. On review, the appeal panel found no error in any of the PIRS categories determined by the MA. The MA had deducted one-tenth of the WPI to account for the pre-existing mood and anxiety conditions. The panel felt there was an error and insufficient information in the MAC to determine a level of deduction. The re-examination focused on reviewing the pre-existing condition and its impact on current impairment.
Mr Walke’s mental health problems first came to attention when he was 19. His father expressed concern about his well-being and arranged for him to see a psychologist. During his late teen years, he was drinking excessively in a binging pattern. This caused no legal, family or educational problems for him, and he believes that his alcohol use was similar to other adolescents in his peer group. He couldn’t recall what symptoms led to his father’s concern.
His parents separated amicably when he was 16, and he recalls his upbringing as caring and supportive. Several members of his extended family died when he was a teenager. He denied other developmental trauma.
He started on medication in his early 20s and has remained medicated since. He underwent a course of psychotherapy that he found useful, saying, “I uncovered feelings I had overlooked.”
He married Laura when he was 21 and has had a stable relationship. He was in full-time employment until 2019.
It had taken significant time and experimentation to find the medication that worked well for him. Unfortunately, the most effective medication (Mr Walke was unable to recall its name) for him was withdrawn from the market sometime in 2014 or 2015. It was difficult to re-establish stability. He was referred to a psychiatrist, Dr Sydney Oen, and in 2015, his care was transferred to Dr Mark Cross.
Mr Walke continued with outpatient care throughout, never requiring hospitalisation until September 2019.
He joined Unisys in March 2016, was assigned to an Australian Defence Forces (ADF) contract, and had no problems in the workplace until 2018. In early 2018, two teammates left, leading to an increased workload and responsibility. In mid-2018, rumours started that Unisys had lost the ADF contract, creating uncertainty. In late 2018, this rumour was confirmed, and Fujitsu took over the contract. He was feeling increasingly stressed by the workload and unsupported by his manager. Fujitsu was hiring Unisys staff to maintain continuity and offered a position to Mr Walke. Mr Walke feared problems would persist if he transferred to Fujitsu, given that his manager was also offered a position.
By September 2019, his condition had deteriorated significantly, so he started new medications, alprazolam and agomelatine. He was admitted to the Northside Clinic at Macarthur and has not worked since. His condition is now entrenched and stable. He was granted a disability support pension in 2019.
Review of documents:
MAC by Dr John Lam Po Tang 18 September 2023:
“At the time of commencement, Mr Walke was consulting a psychiatrist and was prescribed multiple psychotropic medications due to a pre-existing history of depression.
When asked to describe his mental state at the time of commencement, Mr Walke replied, “I want to say pretty good. I was on medication, I was stable, I didn't have any of the travel concerns or fears that I do now”. He reported no concerns about incontinence and no panic attacks.
…
Mr Walke has a documented history of psychiatric symptoms that pre-dated his employment. As noted in the correspondence from his former treating psychiatrist, Dr Sydney Oen, he experienced clinically significant symptoms since late teenage years, as evidenced by referral to specialist services. Additionally, Mr Walke has a documented history of alcohol misuse that pre-dated his employment.
At some stage in the early 2000s, Mr Walke advised he was referred to the mental health service at St George Hospital, Kogarah. He referred to a female mental health provider, but could not recall if she was a psychologist or psychiatrist. He was unsure how long he consulted her for; he was not prescribed medication. (As I worked at St George Hospital in the mental health service in the early 2000s, I was able to recount the names of all female psychiatrists working there at the time, and these did not ring a bell in Mr Walke's case, suggesting he consulted a psychologist.)
Mr Walke began consulting Dr Oen in 2014, and saw him until 2015. The indication for consultation was depression, and Dr Oen prescribed a number of psychotropic medications, including antidepressants. Dr Oen recorded diagnoses of Panic Disorder and Dysthymia (presently called Persistent Depressive Disorder).
Mr Walke began consulting Dr Mark Cross in October 2015, and the reason for changing psychiatrists was due to moving residences. In his initial review of Mr Walke, Dr Cross noted recurrent panic attacks, associated with gastrointestinal symptoms, including urgency. Longstanding depression was also noted by Dr Cross as a comorbid diagnosis.
At the time of initial consultation, Dr Cross considered Mr Walke's anxiety symptoms to be worse than his depression. He has continued to see Dr Cross to date.
From 2014 - 2015 onwards, Mr Walke was prescribed a variety of psychotropic medications. These include sodium valproate, nortriptyline from 2014, titrated up to 150 mg nightly, and paroxetine, which was started in 2015. Diazepam was started in 2015, by Dr Cross. A mentioned in the correspondence is also made of temazepam and lorazepam.
Mr Walke’s lamotrigine was started more recently in 2018 or 2019, by his neurologist, Dr Levy. Lorazepam and agomelatine were prescribed in 2019, as were duloxetine and aripiprazole.”
In his statement, Mr Walke noted that he had been diagnosed with “anxiety and depression from around 2010.” He told Dr Martin Allan that he “had issues with depression in his late teens and early 20s and recalls going to have some therapy at St George Hospital around that time.”
On 31 January 2022, Dr Brian Potter noted that he had been seeing a psychiatrist for about 15 years.
Treating psychiatrist Dr Mark Price, 14 December 2022, noted “a prior history of mood disorders, namely generalised anxiety, depression and migraines.”
General practice notes from the Eagle Vale Medical Centre detail significant mental problems in 2015 with prominent anxiety, depression and a reference to alcohol binging.
Psychologist Angela Parasher, 25 July 2015, mentioned “extreme anxiety last few weeks … did not cope.”
Summary:
Mr Walke has had mental health challenges since his teen years. He was binge drinking in late adolescence and sufficiently concerned his father by the age of 19 that he was taken to see a mental health professional. He started on medication in his early 20s and has remained on it continuously since. It has been challenging to find appropriate medication, and Mr Walke is now on a complex medication regimen that includes two antidepressants, an antiepileptic mood stabiliser, benzodiazepine sedatives and an antipsychotic drug. He also takes off-label medicinal marijuana. He uses opiate medication for intermittent migraine.
His condition deteriorated in 2014/2015 but stabilised in 2016. He continued to have symptoms of depression and anxiety spectrums and remained on his complex medication regimen under the care of a psychiatrist.
His condition deteriorated significantly under the pressure of workplace stressors in 2018, resulting in him being hospitalised and leaving work in 2019.
Despite his mental health challenges, he has maintained his marriage and family life throughout and steady employment until 2019. He has functioned reasonably well, without obvious impairment, until his work-related decompensation.
His pre-existing conditions were persistent depressive disorder (dysthymia) and panic disorder with agoraphobia. Workplace stressors have exacerbated these conditions. They had never been in remission, and Mr Walke has required a relatively high level of care before the work-related decompensation.
The question remains as to what extent these pre-existing conditions contribute to Mr Walke’s condition and associated impairment. Given the severity and long duration of his mental health problems, a one-tenth deduction of the total WPI is at odds with the available evidence. There is no scientific or agreed way to determine the exact level of the contribution. One must rely on our experience and expertise as psychiatrists to determine a figure. Considering that Mr Walke was functioning at a reasonably high level, albeit with moderately severe mental health symptoms, I consider that one-quarter of his current impairment is due to his pre-existing conditions.
Accepting the MA’s assessment of the 22% WPI and deducting one-quarter, Mr Warner has a 16.5%, rounded to 17%, WPI.
Findings on clinical examination
I assessed Mr Walke by video link; the connection quality was adequate to do a comprehensive assessment for 70 minutes.
He presented as an overweight man, casually attired in a T-shirt and appeared mildly unkempt.
He noted that he had been anxious about the interview and found the WorkCover process stressful. His affect was restricted, consistent with a depressed mood and congruent with the interview content. He was cooperative throughout and maintained his composure.
There was no evidence of any disorder of thought form or perception.
He maintained focus during the interview but struggled with some details and event sequences.
Results of any additional investigations since the original Medical Assessment Certificate
No additional investigations have been done.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W1770/23
Applicant:	Unisys Technical Services
Respondent:	Shane Walke

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor John Lam-Po-Tang 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 NSW Workers Compensation Guidelines	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Psychological	1.1.2019 deemed	Chapter 11	22	¼	17%
Total % WPI (the Combined Table values of all sub-totals)					17%

[2024] NSWPICMP 83

20 February 2024