Westpac Banking Corporation v Ralli

DETERMINATION OF APPEAL PANEL
CITATION:	Westpac Banking Corporation v Ralli [2024] NSWPICMP 667
APPELLANT:	Westpac Banking Corporation
RESPONDENT:	Shumita Gujral Ralli
APPEAL PANEL
MEMBER:	Gaius Whiffin
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Professor Nicholas Glozier
DATE OF DECISION:	19 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against assessment of permanent impairment in relation to psychiatric and psychological disorders; assessment failed to consider an alleged deterioration in the respondent’s symptoms due to events subsequent to her employment; Medical Assessor (MA) erred in failing to have regard to the respondent’s pre-existing psychological condition and therefore not making a deduction in accordance with section 323; McCarthy v Patrick Stevedores No 1 Pty Limited, Marks v Secretary, Department of Communities and Justice (No 2), Ryder v Sundance Bakehouse, New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, Queanbeyan Racing Club Ltd v Burton, Campbelltown City Council v Vegan, Paric v John Holland (Constructions) Pty Limited, Hancock v East Coast Timber Products Pty Limited, and Cole v Wenaline Pty Limited considered; Held – the Medical Appeal Panel (the Panel) found no error in relation to the first ground of appeal and is satisfied that the MA solely assessed impairment in relation to the respondent’s accepted psychological injury without having regard to any psychological condition not related to the accepted injury; error found in relation to the second ground of appeal having regard to the contemporaneous medical evidence regarding the respondent’s pre-existing psychological condition; indicating a pre-existing recurrent major depressive disorder; the appellant’s current employment related persistent depressive disorder represents a further but more chronic and impairing episode of her pre-existing condition; the Panel finds sufficient evidence to conclude that her current degree of psychological impairment would not have been as great if it were not for the pre-existing condition; the Panel considers the appropriate deduction from the impairment assessed by the MA to be 1/10 in accordance with section 323(2); Medical Assessment Certificate revoked and a new certificate issued.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 May 2024, Westpac Banking Corporation (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Appeal). The relevant medical dispute was assessed by Medical Assessor Gerard Walsh (the Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 23 April 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 President’s delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has therefore been convened and it has conducted a review of the original medical assessment, but 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 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

Shumita Ralli (the respondent) began her employment as a program manager with the appellant on 5 May 2021. The employment was terminated by the appellant on 1 April 2022, although the respondent had not actually worked for it since 18 November 2021. The respondent says in her signed 11 October 2022 statement (found at page 11 of her Application to Resolve a Dispute (ARD)) that at the commencement of her employment, she “was in good health and had no pre-existing injuries or medical conditions”.
In relation to her employment with the appellant, the respondent says:
“There were many incidents within the work environment that were insidious or coercive and that were normalised and encouraged by management and that I believe led to my injury…The environment within Westpac and the constant ‘Big Brother’ style of management was unpredictable and stressful from the beginning and my ability to cope with the work environment became compromised over time…There was a constant air of nastiness, backbiting and gaslighting behaviours that impacted my ability to perform my work and in my view, the ability of my colleagues to perform theirs.”
The respondent found her supervisor (Sharon Yazza) to be overly demanding, erratic, confusing and controlling. Significant inter-personal issues and conflicts developed between them, which in turn led to confrontations.
The respondent says in her signed 8 March 2024 statement (found at page 1 of her Application to Admit Late Documents (AALD)) that she began to experience severe anxiety, for which she first sought medical treatment from her general practitioner (Dr Fitzmaurice) on 18 October 2021. She was prescribed medication and certified as having no current work capacity from 22 November 2021.
She was referred to various psychologists, including Clair Baker, Sarah Mathers, Claire Stanbury, and Sharon Reid.
The respondent claimed compensation from the appellant in relation to her psychological condition by way of a claim form dated 26 November 2021 (found at page 366 of the ARD). She describes her injury in the claim form as:
“I have been victimized, bullied, ostracized and sidelined by my line manager (Sharon Yassa) and subsequent manager (Claudia Galaz) following a complaint to HR about Sharon's intimidating misbehaviour and harrassment [sic] towards me.”
The respondent continues to receive treatment from Dr Fitzmaurice, Claire Stanbury, and Sharon Reid. She continues to be prescribed medication for her psychological condition. She has not worked since 18 November 2021.
The respondent’s statement evidence details the current debilitating effects upon her of her psychological condition.
By way of a letter from the respondent’s solicitors to the appellant dated 12 July 2023, she claimed compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) regarding her psychological condition. The condition had been assessed as causing her 19% whole person impairment by Dr Anand. Dr Anand’s report in this regard dated 19 May 2023 was enclosed with the 12 July 2023 letter.
The appellant arranged for the respondent to be assessed by Dr Young, who provided a report dated 29 December 2023. The doctor determined that the degree of the respondent’s whole person impairment was not then capable of assessment, and the appellant’s solicitors informed the respondent’s solicitors in this regard by way of a letter dated 27 February 2024.
Following the receipt of this letter, the ARD was lodged with the Personal Injury Commission (Commission). The appellant subsequently lodged its Reply (Reply) to the ARD, advising:
(a)    there was a dispute as to the correct deemed date of the respondent’s injury – whether it was 18 November 2021 or 1 April 2022 – the respondent later agreed to a date of 18 November 2021;
(b)    there was a dispute as to whether the respondent’s psychological condition had reached maximum medical improvement, so that it was capable of assessment;
(c)    there was a dispute as to the extent of the respondent’s whole person impairment as a result of her psychological injury – if it was currently capable of assessment, and
(d)    there was a dispute as to the application of s 323 of the 1998 Act in relation to any assessment made as to the degree of the respondent’s whole person impairment “on the basis that any permanent impairment suffered by the Applicant is partly due to pre-existing/non-work-related factors”.
The appellant had not disputed liability for the respondent’s psychological injury. As a result, the disputes raised by the appellant in the Reply were able to be referred directly to the Medical Assessor, and they were so referred by a referral from the Commission dated 3 April 2024.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it possessed enough information in the documentation before it to determine the Appeal, and that it was therefore not necessary for the respondent to undergo a further medical examination.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment, and has taken them into account in making this determination:
(a)    the ARD and its attachments;
(b)    the Reply and its attachments, and
(c)    the AALD and its attachments.
No further evidence was sought to be relied upon by either of the parties.
The Appeal Panel however will not refer to the documentary evidence in detail, considering the limited grounds relied upon by the appellant in the Appeal, and it will therefore concentrate upon that evidence that it finds to be relevant to those grounds, and that evidence that the parties direct it to in their submissions.
Dr Anand examined the respondent on behalf of her solicitors, and produced a report dated 19 May 2023 (found at page 37 of the ARD). He diagnosed her with a major depressive disorder and prominent anxiety in relation to which her work with the appellant was a substantial contracting factor. He only took the following history from her under the heading of “previous psychiatric history”:
“She stated that from a past psychiatric history perspective, she was diagnosed with anxiety and depression when her partner passed away in 1997 and she was on an antidepressant for about two to three months.”
He opined that her current psychological condition was an “independent psychological injury with no bearing to her past psychiatric condition”, and:
“From a premorbid perspective, she described herself as being very career-oriented, social, positive individual who was quite into fitness and would love running…Ms Ralli’s state of health was normal before the onset of symptoms. In terms of her emotional and psychological well-being, she had the ability to cope with stress, maintain healthy relationships, and manage emotions effectively. She had the ability to interact and engage with others in a positive manner.”
The doctor assessed the respondent’s whole person impairment at 19%, and did not make any deduction from that assessment in accordance with s 323 of the 1998 Act.
The respondent’s solicitors also arranged for her to be examined by Dr Khan, and he produced a report dated 7 July 2022 (found at page 48 of the ARD). The respondent relies upon the history obtained by (and not the opinions of) the doctor in accordance with McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96, in order for her reliance upon that report to be admissible in accordance with cl 44 of the Workers Compensation Regulation 2016. In this regard, it is to be noted that the doctor only took the following history from her under the heading of “past psychiatric history”:
“Ms Gujral Ralli denied any pre-existing past psychiatric history. She denied any previous melancholia, mania, hypomania, psychosis, obsessions, compulsions or trauma. She denied any previous psychiatric hospital admissions, deliberate self-harm or suicide attempts.”
The appellant’s solicitors arranged for the respondent to be examined by Dr Young, and he produced a report dated 29 December 2023 (found at page 1 of the Reply). He diagnosed her with a major depressive disorder and a persistent depressive disorder caused mainly and substantially by her employment with the appellant. He only took the following history from her under the heading of “past mental health history”:
“Ms Ralli reported initially that she had no previous psychiatric history; however, on further questioning and in comparison with information in previous reports, she conceded that she had a period of grief following a death of her former partner in 1997 and that she had had symptoms of depression and anxiety in 2009. Ms Ralli was unable to give any further detail in regard to these episodes.”
The doctor opined that “according to the information available”, there was no substantial proportion of the respondent’s current condition that was not related to her employment with the appellant.
The doctor did not assess the respondent’s whole person impairment, as he considered that her condition had not reached maximum medical improvement.
In relation to the respondent’s psychological condition prior to her employment with the appellant, there are four specific reports listed in the Reply:
(a)    report of Dr Moore dated 19 October 2010 (at page 34) – which states:
“Mrs Shumita Gujral was suffering from severe depression from 5 January 2009 to 31 August 2009. She made a slow recovery, not helped by being forced by her unsympathetic employer to resign (due to her illness) from her position on 26 April 2009. However, by 19 June 2009 she was partially recovered, sufficient to start looking for work again. Unfortunately she had no position to return to as her employer had forced her to resign…She was able to secure a new position (and hence restore her income) as of 26 August 2009. She was then able to come off medication on 31 August 2009.”;
(b)    Dr Moore’s referral of the respondent to Carolyn Hodges dated 25 November 2010 (at page 35) – the referral requests “assessment and treatment of mixed anxiety [and] depression”, refers to a “previous episode in her early twenties”, and advises that her “current episode” was precipitated by an “abrupt constructive dismissal process”;
(c)    report of Sharon Reid (psychologist) dated 22 August 2023 (at page 36) – the report refers to the respondent reporting “severe workplace stress” which had resulted in her inability to work since October 2021, but “compounding this sense of loss is the fact that she lost both her parents at the end of 2022”, and
(d)    Dr Fitzmaurice’s referral of the respondent to Claire Stanbury dated 1 February 2023 (at page 37) – the referral advises that the respondent “recently lost her mother then her father” and that she requires weekly psychological sessions for three months.
Further, clinical notes from the respondent’s general practitioners (currently Dr Fitzmaurice) are found in the ARD, the Reply and the AALD, but the most complete copy of the notes commences at page 92 of the AALD. The Appeal Panel finds relevant:
(a)    the notes cover the period from 24 January 2002 until 29 February 2024;
(b)    the notes are not particularly detailed – especially in relation to the histories obtained from the respondent;
(c)    the respondent was prescribed with Zoloft by Dr Moore between 15 January 2009 and 5 March 2009, as well as with Escitalopram on 5 March 2009 and on 1 June 2010;
(d)    Dr Moore created a mental health plan for the respondent on 25 November 2010;
(e)    the respondent was prescribed with Serepax by Dr Fitzmaurice on 28 March 2018 – on a history of fatigue and sleep disturbance;
(f)    the respondent was prescribed with Valdoxan by Dr Fitzmaurice on 18 April 2018 – the prescription was renewed on 19 November 2018 as the respondent advised that the medication was helping her;
(g)    there is a mental health assessment of the respondent completed by Dr Moore on 25 November 2010 – referring to diagnoses of anxiety and depression – referring to the prescription of Lexapro (Escitalopram) – referring to the respondent suffering depressive symptoms in 1991 after moving to Dubai – and suggesting management with medication and cognitive behavioral therapy;
(h)    there is a “K10” assessment performed upon the respondent by Dr Moore on 25 November 2010 – the score is 31, with a score of 5 for feeling tired, 4 for “everything is an effort”, and 3 for nervousness, hopelessness, restlessness, depression, sadness, and worthlessness, and
(i)    there is a record on 21 September 2020 that the respondent’s prescription of Valdoxan had ceased.
In her 8 March 2024 signed statement, the respondent says:
“Prior to the subject injury, I considered myself to have a happy and calm disposition with a strong mental fortitude. I did not let every day and personal stressors get in the way of my active participation in work duties. My personal and family life was fulfilled, and I enjoyed great social relationships, good health, and overall wellbeing. I was able to wholly engage with activities of daily living without compromise and I rarely took time off work.”
Unfortunately, in her statement evidence, the respondent does not explain the nature of (or even mention) the earlier psychological symptoms of hers referred to at paragraphs 25 and 26 above, which attracted diagnoses of “severe depression” and “anxiety and depression” from her treating general practitioners, and which clearly impaired her vocational function in 2009. The symptoms and their impact were also not recorded or commented upon by either Drs Anand or Khan. Further, the respondent has not presented any report from her treating general practitioner (who would be in an advantageous position to advise) regarding the significance of the earlier psychological symptoms.

Medical Assessment Certificate

The parts of the MAC that are relevant to the Appeal are set out, where relevant, in the body of this decision. It is unnecessary to refer to the MAC in detail given the limited nature of the Appeal.
The Medical Assessor takes uncontroversial accounts of the respondent’s employment with the appellant which led to her psychological injury, as well as her current symptoms and current treatment.
He then considers the history of psychological symptoms prior to her employment with the appellant and notes:
(a)    the respondent advised him that from 2021, as a result of her employment with the appellant, she experienced “the worst she had ever been in terms of her mental health”;
(b)    the respondent was diagnosed with anxiety and depression in 1997 when her partner died by suicide – she advised that she took antidepressant medication for two to three months, but sought no treatment from a psychologist, psychiatrist, or counsellor – she claimed to experience grief, but not depressive symptoms;
(c)    Dr Moore (see paragraph 25(a) above) noted the respondent to have severe depression from 5 January 2009 to 31 August 2009 – she advised that this was a “stressful time” for her due to being made redundant from her employment, but she did not recall being depressed – she remembered being prescribed medication on 15 January 2009, but not the prescriptions that were made on 5 March 2009 and on 1 June 2010;
(d)    the respondent was prescribed with Serepax on 28 March 2017 (the correct date was 28 March 2018 according to the clinical records of her general practitioners), but she advised she could not recall why, and
(e)    the respondent advised him that prior to her psychological injury with the appellant, she took pride in her appearance; she enjoyed cooking and entertaining; she was independent with household chores; she was independent with shopping; she conducted a film production company as a hobby; she used to run and “do weights”; she enjoyed going to events, theatres, and movies; she was “very social”, and she had good concentration and memory.

The Medical Assessor diagnoses the respondent with a persistent depressive disorder and an alcohol use disorder. He assesses her whole person impairment as a result of her psychological injury at 24%, and confirms that the impairment level has reached maximum medical improvement. In considering whether any proportion of the impairment level was due to a previous injury, pre-existing condition, or abnormality (in accordance with s 323 of the 1998 Act), he advises not and says:
“I have ascertained that, although there was a history of mood disturbance in 1997 and 2009, these would be conceptualised as grief and adjustment disorder respectively. The claimant was not suffering from a mental illness as a result. This conclusion was reached by her account and weighing this with the clinical documents provided. The impact of these events was not thought to be similar to the current prolonged low mood and anxiety and were self-limiting in duration.”
It does not appear that the Medical Assessor specifically obtained details from the respondent regarding the effect of her parents’ deaths at the end of 2022 upon her, although he did review the clinical notes from the respondent’s general practitioners and documented the following in the MAC:
“01/02/2023 – The consultation was in India. Her parents died unexpectedly whilst she was there for her parents’ funerals and had a ‘roller coaster of emotions’ [emphasis in original]. The plan was to reschedule psychology again.”

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that:
(a) the Medical Assessor failed to take a complete history of the effect of her parents’ deaths at the end of 2022 upon the respondent, or to properly consider the clinical records which detailed a deterioration in the respondent’s symptoms following those deaths, and
(b) the Medical Assessor erred in failing to have regard to the respondent’s significant psychological history, and therefore erred in not making a deduction from the impairment assessed by him in accordance with s 323 of the 1998 Act.
In relation to the first ground, the appellant refers to the reports discussed at paragraphs 25(c) and 25(d) above, and argues that there was a deterioration in the respondent’s mental health following the death of her parents. As a result:
“The Appellant submits that the MA should have apportioned the part of the Worker's permanent impairment to the deterioration caused by the death of her parents, being a non-work related incident/event that has occurred subsequent to the work injury and which was unrelated to the worker's employment, so as to have assessed the impairment that arose as a result of the injury only.”
In relation to the second ground, the appellant refers specifically to the documented psychological symptoms of the respondent in 2009 and 2010. The appellant refers the Appeal Panel to Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616 (Marks) and summarises:
“The Appellant submits that the medical reports of the Worker's treating general practitioner indicate that there was a previous psychological condition present, although it appears to have been asymptomatic at the time of the onset of the Worker's psychological injury…However, the Appellant submits that these treating medical reports demonstrate a pre-existing vulnerability to depressive symptoms, warranting a deduction under section 323 of the 1998 Act. As such, the Appellant submits that the history is not inconsistent with the application of a standard 10% deduction of the WPI calculated from the PIRS table.”
In reply, the respondent submits that:
(a)    the Medical Assessor was “clearly aware of the evidence relating to the death of the Respondent Worker’s parents subsequent to the work injury” – he had access to the clinical notes of her general practitioners and specifically quoted from a consultation on 1 February 2023 (see paragraph 33 above);
(b)    there is no evidence that the deaths of the respondent’s parents in late 2022 “resulted in an increase in the degree of permanent impairment or contributed in any way to the assessed permanent impairment” – Sharon Reid (see paragraph 25(c) above) refers to the parents’ deaths as compounding a sense of loss, Dr Young did not mention the parents’ deaths as being relevant, and the clinical notes of the respondent’s general practitioners refer to the deaths as leading to a “roller coaster of emotions” – none of these descriptions “mean that there was any permanent impairment resulting from that event”;
(c)    “The MA’s task was to assess the degree of permanent impairment resulting from the work injury. That is what he has done. He took a comprehensive history, recording all relevant events. He reviewed all of the documentation with meticulous care and consideration.”;
(d)    in relation to the respondent’s psychological history prior to her employment with the appellant, a vulnerability to depressive symptoms is not a previous injury, pre-existing condition, or abnormality;
(e)    whether there should be a deduction from the permanent impairment assessed by the Medical Assessor pursuant to s 323 of the 1998 Act, needs to be determined in accordance with Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder);
(f)    the Medical Assessor recorded a comprehensive history (see paragraphs 31(a)-31(d) above) of the respondent’s psychological history prior to her employment with the appellant – he also had access to the clinical notes of her general practitioners from 24 January 2002 until 29 February 2024 (see paragraph 20(a) above) – he “clearly reviewed comprehensively the documentation that was before him, and he questioned the Respondent Worker about the content of the medical evidence before him, in order to ascertain the true picture of any pre-existing condition requiring medication” – he critically analysed the respondent’s evidence to him, he gave adequate reasons, and his “determination of the s323 issue was based on the evidence before him, his evaluation of that evidence as well as his clinical, skill and judgement”, and
(g)    Dr Anand did not make a deduction from the respondent’s impairment as assessed by him, to take into account any previous injury, pre-existing condition, or abnormality – further, Dr Young expressed the view that no pre-existing condition contributed to the respondent’s current psychological condition.

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, that is, those errors identified by a party in its submissions – see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792.
The Appeal Panel in this regard has to ensure that it does not disturb any unchallenged findings in the MAC. In Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304, Basten JA stated (at [35]):
“The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessor’s reasoning with respect to that finding; neither course was part of its statutory function.”
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 Appeal Panel in reaching a professional judgement.
The sole alleged errors of the Medical Assessor identified by the appellant in its submissions are referred to at paragraph 35 above.
Section 323 of the 1998 Act reads as follows:
“(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 relation to the first alleged error of the Medical Assessor, the Appeal Panel notes that s 323 of the 1998 Act is not relevant, as any psychological symptoms experienced by the respondent as a result of the deaths of her parents could not be a previous injury, pre-existing condition, or abnormality, as the deaths of the parents occurred after the development of her psychological injury during her employment with the appellant, and indeed after the cessation of that employment.
The Appeal Panel also rejects the notion that a form of apportionment was needed by the Medical Assessor of the impairment found by him, between that impairment due to the respondent’s psychological injury during her employment with the appellant and that impairment due to the deaths of her parents.
In the opinion of the Appeal Panel, the Medical Assessor was not required to engage in any apportionment. He was required to solely assess impairment in relation to the respondent’s accepted psychological injury during her employment with the appellant, without having regard to (or including in that assessment) any psychological condition not related to the accepted injury. There is no evidence that he erred in this regard. He was aware of the respondent’s psychological reaction to the deaths of her parents (described in the MAC as causing a “roller coaster of emotions”) but the Appeal Panel can find no comment in the MAC to suggest that he took any psychological reaction to the deaths of her parents into account when assessing her impairment as a result of her accepted psychological injury during her employment with the appellant.
The Appeal Panel accepts the respondent’s submission referred to at paragraph 38(c) above in this regard. It also accepts her submission referred to at paragraph 38(b) above in relation to there being no evidence that the respondent’s psychological reaction to the deaths of her parents caused her any psychological impairment, especially taking into account Sharon Reid’s description of the deaths causing a sense of loss rather than any diagnosable psychological disorder.
In relation to the second alleged error of the Medical Assessor, the Appeal Panel notes the following deficiencies in the medical and other evidence relied upon by the parties, which affects the weight the Appeal Panel gives to that evidence:
(a)    Dr Anand (see paragraph 22 above) was not provided with a “fair climate“ (in accordance with Paric v John Holland (Constructions) Pty Limited [1984] 2 NSWLR 505, Paric v John Holland (Constructions) Pty Limited [1985] HCA 58, and Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11) in which to provide his opinions as he only received details of the respondent’s symptoms in 1997 when considering her previous psychiatric history;
(b)    Dr Khan (see paragraph 23 above) was advised by the respondent that she had no “pre-existing past psychiatric history”;
(c)    Dr Young (see paragraph 24 above) received details of the respondent’s grief in 1997, and depression and anxiety in 2009, but advises that the respondent was unable to “give any further detail in regard to these episodes” – he was also not therefore provided with the necessary “fair climate”, and
(d)    the respondent’s statement evidence does not deal with her previous psychiatric symptoms in 1997, 2009, 2010, and 2018.
The respondent also does not rely upon any medico-legal reports from any of her treating practitioners explaining the relevance of her previous psychiatric history.
The Medical Assessor was therefore not assisted to a great deal by forensic evidence in order to determine as to whether to make a deduction from the impairment assessed by him in accordance with s 323 of the 1998 Act. He had to rely upon contemporaneous medical records as well as the account provided to him by the respondent. In the opinion of the Appeal Panel, he erred in his assessment of this evidence.
The respondent’s assessment of her 1997 psychological symptoms (see paragraph 31(b) above) is unchallenged, but her assessment of her 2009 and 2010 symptoms is inconsistent with the contemporaneous clinical records of her general practitioners, in that:
(a)    she advised the Medical Assessor that she was stressed but not depressed at the time;
(b)    Dr Moore (in a report dated 19 October 2010 – see paragraph 25(a) above) however refers to her as suffering from severe [Appeal Panel emphasis] depression for almost 8 months from 5 January 2009;
(c)    Dr Moore (in the 19 October 2010 report) refers to her as being able to cease antidepressant medication on 31 August 2009 – however, he prescribes her with antidepressant medication again on 1 June 2010 (see paragraph 26(c) above) – the respondent advises the Medical Assessor that she does not remember this prescription, and
(d)    Dr Moore then feels the need to create a mental health plan for her on 25 November 2010 – on the same date (see paragraphs 25(b), 26(g) and 26(h) above), he diagnoses her with anxiety and depression, refers her to Carolyn Hodges for assessment and treatment of anxiety and depression, prescribes Lexapro for her, takes a history (not otherwise mentioned anywhere in the evidence) that she suffered depressive symptoms in 1991, and records a score of 31 on a “K10” assessment.
The respondent was further prescribed with antidepressant medication by her treating general practitioners (see paragraphs 26(e), 26(f) and 26(i) above) on 28 March 2018 (a prescription which she advised the Medical Assessor that she could not remember), as well as on 18 April 2018 and 19 November 2018 (dates not referred to by the Medical Assessor). In this regard, Serepax was prescribed in March 2018, and the prescription of Valdoxan was noted to be ceased in September 2020, although it is not clear from the clinical records of her treating general practitioners if the respondent was taking it from April 2018 to September 2020, as those general practitioners may have simply updated their records in September 2020 to show that she was not taking it at that time.
In Cole v Wenaline Pty Limited [2010] NSWSC 78 (Cole), Schmidt SCJ considered s 323 of the 1998 Act [at 33]:
“This statutory scheme adopts a similar approach. It does not provide that the mere existence of a previous injury, even to the same body part, as was the case here, automatically results in a deduction under s 323. Before a deduction may be made, consideration must be given to the evidence as to whether or not the earlier injury in fact contributed to the permanent impairment identified after the later injury.”
And [at 38]:
“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. 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 Ryder, Campbell SCJ stated [at 45]:
“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 [emphasis in original] of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree [emphasis in original] 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 [emphasis in original] of impairment resulting from the work injury would not have been as great.”
Having regard to the contemporaneous medical evidence regarding the extent of the respondent’s psychological symptoms in 2009, 2010, and 2018, as well as her concession that she took antidepressant medication for 2 to 3 months in 1997, and the recording by Dr Moore that she suffered depressive symptoms in 1991, the Appeal Panel finds that prior to her psychological injury during her employment with the appellant, she had a pre-existing condition affecting her psyche, in accordance with s 323 of the 1998 Act. With a history of at least three (and possibly four) prior episodes of clinically significant depressive and anxious symptoms requiring treatment, the indication is of a pre-existing recurrent major depressive disorder. The respondent’s current persistent depressive disorder as found by the Medical Assessor is considered by the Appeal Panel to represent a further, but more chronic and impairing, episode of a pre-existing condition.
The Appeal Panel therefore finds error in the Medical Assessor’s explanation (see paragraph 32 above) as to why he did not make any deduction to his impairment assessment in accordance with s 323 of the 1998 Act. The Medical Assessor there concluded that the respondent “was not suffering from a mental illness”, but only a grief reaction and adjustment disorder as a result of her psychological symptoms in 1997 and 2009. He also concluded that those symptoms were “self-limiting in duration”. These conclusions are inconsistent with the contemporaneous medical evidence of severe depression for eight months from 5 January 2009, the prescription of antidepressant medication on 1 June 2010, the findings and actions of Dr Moore on 25 November 2010, and the further prescription of antidepressant medication on 28 March 2018, 18 April 2018, and 19 November 2018.
In this regard, the Appeal Panel rejects the respondent’s submission at paragraph 38(f) above. The Appeal Panel does not accept that the Medical Assessor comprehensively reviewed the relevant contemporaneous medical evidence.
The Appeal Panel accepts the appellant’s submission (see paragraph 37 above) that in accordance with Marks, even if the respondent’s pre-existing psychological condition was asymptomatic at the time when she sustained her injury during her employment with it, the condition may still contribute to the degree of her impairment. Whether it does so of course needs to be determined based on the evidence before the Appeal Panel.
It is clear that in accordance with Cole and Ryder, for the respondent’s pre-existing condition to lead to an impairment deduction in accordance with s 323 of the 1998 Act, the Appeal Panel has to be satisfied after a consideration of all the evidence before it that the respondent’s degree of impairment would not have been as great as 24% but for the pre-existing condition, in relation to which her current condition is a further episode of. A proportion of the impairment has to be due to the pre-existing condition, in this regard.

The Appeal Panel has given significant weight to the contemporaneous clinical records of the respondent’s treating general practitioners in coming to its determination. For the reasons given at paragraph 48 above, it has not given significant weight to the opinions of Drs Anand and Young.
The Appeal Panel is satisfied that the contemporaneous clinical records of the respondent’s treating general practitioners provide evidence of a recurring psychological disorder from as early as 1991. The condition was especially severe in 2009 and 2010, and further required treatment on at least three occasions in 2018. The condition required treatment with antidepressant medication for two to three months in 1997, for eight months from 5 January 2009, on 1 June 2010, on 25 November 2010, and from 28 March 2018 until at least 19 November 2018. The condition required the development of a mental health plan on 25 November 2010. The condition required the referral of the respondent to Carolyn Hodges on 25 November 2010 (even though it is not clear whether the respondent actually undertook the referral).
The Appeal Panel rejects the respondent’s submission at paragraph 38(d) above as it considers the respondent to have a recurring psychological disorder, rather than just a vulnerability to depressive symptoms.
In the circumstances, the Appeal Panel is satisfied that it has sufficient evidence regarding the respondent’s psychological condition prior to her employment with the appellant to conclude that her current degree of psychological impairment (24%) would not have been as great if it were not for that pre-existing psychological condition. On the evidence, the Appeal Panel finds that a proportion of the respondent’s 24% impairment is due to the pre-existing psychological condition.
The appellant submits (see paragraph 37 above) that a 10% deduction should be made to the 24% impairment found by the Medical Assessor. The Appeal Panel accepts this submission in accordance with s 323(2) of the 1998 Act. In accordance with the sub-section, such a deduction would not be inconsistent with the available medical evidence regarding the respondent’s recurring psychological disorder, which was controlled and asymptomatic as at the commencement of her employment with the appellant. Further, in accordance with the sub-section, on the current unsatisfactory (see paragraphs 28 and 48 above) medical and other evidence presented by the parties, the Appeal Panel finds it difficult to be more precise regarding the relevant deduction to be made.
For these reasons, the Appeal Panel has determined that the MAC issued on 23 April 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W1668/24
Applicant:	Shumita Gujral Ralli
Respondent:	Westpac Banking Corporation

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 Gerard Walsh 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)
1. Psychiatric and psychological disorders	18/11/21 deemed	Chapter 11, pages 54-60	Not relevant	24%	1/10	22%
Total % WPI (the Combined Table values of all sub-totals)					22%

[2024] NSWPICMP 667

19 September 2024