Wetere v Coles Supermarkets Australia Pty Ltd

DETERMINATION OF APPEAL PANEL
CITATION:	Wetere v Coles Supermarkets Australia Pty Ltd [2024] NSWPICMP 600
APPELLANT:	Jason Wetere
RESPONDENT:	Coles Supermarkets Australia Pty Ltd
APPEAL PANEL
MEMBER:	John Isaksen
MEDICAL ASSESSOR:	Professor Nicholas Glozier
MEDICAL ASSESSOR:	John Baker
DATE OF DECISION:	26 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment of whole person impairment for psychological injury; finding of a secondary psychological injury when referral was only for assessment of a primary psychological injury from a separate injury; finding that the effects of the primary psychological injury had resolved without adequate explanation; Held – error found; re-examination considered necessary; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

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

RELEVANT FACTUAL BACKGROUND

Jason Wetere, the appellant worker, sustained an injury to his right wrist on 21 June 2021 and an injury to his left wrist on 7 July 2021. Both injuries were sustained by Mr Wetere in the course of his employment with the respondent employer, Coles Supermarkets Australia Pty Ltd.
Mr Wetere states that he was placed on light duties following the injury on 7 July 2021 and that two days later he sustained a primary psychological injury. The description of the primary psychological injury claimed to have been sustained by Mr Wetere is set out in the Application to Resolve a Dispute (ARD) as follows:
“In or around 7 July 2021, the applicant was placed on light duties as a result of his accepted physical injuries which he sustained during the course of his employment. On 9 July 2021, the applicant was required to perform duties undertaking Covid 19 customer check-ins. However, the applicant was not sufficiently trained for his role and experienced problems coping within the role. The applicant notified his superior regarding his concerns and was subsequently asked to attend an unplanned meeting with the regional manager and supervisor without a support person on 9 July 2021. During this meeting, the applicant was unreasonably questioned, harassed, intimidated and verbally abused for not being able to return to his pre-injury duties due to his accepted physical injuries. Due to the above workplace stressors, the applicant sustained a psychological injury.”
The respondent issued dispute notices on 30 March 2023 and 11 July 2023 wherein it disputed that Mr Wetere had sustained any psychological injury in the course of his employment. Those notices did not raise any dispute as to a secondary psychological injury sustained by Mr Wetere. Nonetheless, the parties agreed on 7 February 2024 to Consent Orders which included the following:
“1. The applicant’s claim for permanent impairment compensation is remitted to the President for expeditious referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
a.     Date of injury         9 July 2021
b.     Body systems/parts primary psychological/psychiatric disorder only
c.     Method of assessment whole person impairment
2. The documents to be reviewed by the Medical Assessor are:
a.     Application to Resolve a Dispute and attached documents,
b.     Reply and attached documents, and
c.     Application to Admit Late Documents to be lodged by the respondent in accordance with my Direction dated today, with the subject document being supplementary report of Dr Barrett dated 3 January 2024, prepared in her capacity as independent medical examiner.”
Mr Wetere has sought lump sum compensation of 22% whole person impairment (WPI) for his psychological injury as assessed by Dr Kumagaya, consultant psychiatrist, in a report dated 19 May 2023.
Dr Kumagaya records details of the two injuries which Mr Wetere sustained to each of his wrists. He records details of the events which occurred to Mr Wetere on 9 July 2021 which are consistent with Mr Wetere’s own evidence.
Dr Kumagaya diagnoses Mr Wetere as having a primary psychological injury of major depressive disorder with anxious distress. Dr Kumagaya opines:
“…Mr Wetere’s psychiatric injury, major depressive disorder with anxious distress, arose out of his employment with Coles Supermarkets Australia Pty Ltd. Mr Wetere described workplace stressors of being asked to perform duties that he had received insufficient training for, as well as being called into a meeting with his regional manager during which he was criticised and belittled in the presence of his colleagues. It was
Mr Wetere’s experience of such workplace stressors, which resulted in the emergence of symptoms of his primary psychological injury, major depressive disorder with anxious distress.”
Dr Kumagaya acknowledges that Mr Wetere sustained physical injuries which pre-dated the events at work on 9 July 2021, but notes that Mr Wetere continued to work after those injuries and it was the workplace stressors on 9 July 2021 which resulted in the onset of his psychological injury.
Dr Barrett, consultant psychiatrist, has provided reports at the request of the respondent dated 30 March 2023, 10 July 2023 and 3 January 2024.
In her report dated 30 March 2023, Dr Barrett records details of the two injuries which
Mr Wetere sustained to each of his wrists. She records that Mr Wetere was not comfortable in the security role that he was directed to undertake following the injury to his left wrist.
Dr Barrett records little information regarding the meeting which Mr Wetere had with management on 9 July 2021, other than the regional manager telling Mr Wetere that he was in the “wrong industry”.
Dr Barrett records that Mr Wetere feels angry about the comments made by the regional manager, which Mr Wetere regards as demeaning. She records that Mr Wetere worries about his wrist injuries and sleeps poorly you due to pain in his wrists, hands and pins and needles.
Dr Barrett writes in her ‘Summary and Assessment’:
“The main issue, however, relates to his reported inability to work as a consequence of the wrist injuries, and the impact this has had on the family finances, particularly as he did not receive any Workers’ Compensation from the date of injury, through until just a few months ago.”
Dr Barrett concludes that Mr Wetere’s symptoms do not satisfy that of a psychiatric diagnosis. Dr Barrett opines:
“Mr Wetere is experiencing significant stressors due to bilateral wrist injury which prevents him from working and engaging in usual household tasks. As a consequence, there has been a significant impact upon the family’s finances, his wife has had to engage in full time work and he has had to adopt carer responsibilities for their children. He expressed he is frustrated about the delay from the injury, in mid 2021, to treatment, with first surgery set for May 2023. In my view, Mr Wetere’s symptoms reflect a proportionate and reasonable emotional reaction to the very challenging circumstances in which he finds himself. However, he does not meet the criteria for a psychiatric diagnosis.”
In a further report dated 10 July 2023, Dr Barrett confirms her opinion that Mr Wetere’s symptoms do not fulfil the criteria for a psychiatric diagnosis. Dr Barrett does opine that an appropriate differential diagnosis would be an adjustment disorder with depressed and anxious mood, but not a major depressive disorder as diagnosed by Dr Kumagaya. She writes that if Mr Wetere does have an adjustment disorder, then it would be expected that such a condition will resolve with the resolution of his stressors. Dr Barrett notes that
Mr Wetere planned to undergo two operations, and an adjustment disorder would not be regarded as stable until Mr Wetere has had further treatment on both upper limbs.
There is no reference in the available material of Mr Wetere being referred to a psychiatrist for treatment. However, Mr Wetere has attended Carl Neilsen, psychologist, for treatment. In a report following an initial consultation on 14 July 2021, Mr Neilsen records the two injuries which Mr Wetere sustained to his upper limbs, extreme anxiety which was experienced by
Mr Wetere when he was required to do security work on 9 July 2024, and then being targeted and bullied by a regional manager.
Mr Neilsen writes in another report a year later: “As a result of his work bilateral hand related injury he is suffering from chronic pain and functional restrictions which are impacting his mental health.”
In a statement dated 24 November 2022, which is made by Mr Wetere to support a claim for the respondent to pay for the cost of surgery to his left upper limb, Mr Wetere states that he can no longer tolerate the pain in his arms. He states:
“I believe this surgery is not only necessary to manage my symptoms and physical restrictions but also my psychological well-being. This surgery is my best hope to recover from this injury. I want to proceed with this surgery so that I will be able to regain control over my life. I want to work and feel good again.”
In a further statement dated 16 May 2023, Mr Wetere states that he continues to feel depressed, anxious and distressed, and that he struggles to look after his two young children.

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.

Medical Assessment Certificate

The Medical Assessor records the two injuries which Mr Wetere sustained to both wrists in June and July 2021. He also records details of the events at work on 9 July 2021 which are consistent with Mr Wetere’s own evidence and the ‘Injury Description’ in the ARD.
The Medical Assessor records that Mr Wetere moved his family to live with his mother in the Lismore area out of financial necessity. He records that Mr Wetere had surgery approved for his right wrist and his outlook was improving, but then the insurer withdrew funding pending the assessment of WPI for his primary psychological injury.
The Medical Assessor records that Mr Wetere has a sore elbow, throbbing and tingling in his hands, and changing temperature sensations. He records that Mr Wetere became anxious and depressed soon after he left work, and that Mr Wetere was worried about money and the prognosis for his wrist injuries. The Medical Assessor records that Mr Wetere felt like he was not going anywhere with his life, having hung on for ages and telling himself that it would work out.
The Medical Assessor records that Mr Wetere’s partner “walked out the door” several months ago, and that she told Mr Wetere that their life was not working as she had hoped because he could not do anything. The Medical Assessor records that Mr Wetere cannot drive due to the pain in his hands and avoids driving unless it is an emergency.
The Medical Assessor found Mr Wetere’s mood to be depressed, and that his thought content included depressive themes including guilt, feeling burdensome on others and suicidal thoughts. The Medical Assessor records that Mr Wetere was frustrated and unhappy about the impact of his hand injuries.
The Medical Assessor concludes:
“Mr Wetere’s condition meets the DSM-V criteria for secondary chronic adjustment disorder with depressed and anxious mood. He described a depressed and anxious mood, insomnia, apathy, low self-esteem, impaired concentration and depressive thoughts focused on the impact and consequences of his physical injuries. The principal stressor is the secondary effects of his physical injuries and their consequences (including the recent breakdown of his relationship) and not a primary psychological injury. His psychiatric condition was resolving as would be expected for an adjustment disorder in line with improvements in his physical condition until the treatment of his physical injuries was suspended and his physical recovery regressed. The effects of physical injuries and their consequences are the principal occupation and source of distress because they are a barrier to his returning to work, relieving his financial problems and feeling in control of his life again.
This was consistent with Dr Barrett's most recent independent medical examination.
Dr Kumagaya has not commented on the contribution of primary vs. secondary causes for the reported symptoms other than to note that he was physically fit to work in suitable duties until he left work due to a primary psychological injury. Similarly,
Mr Wetere’s treating psychologist has not commented on the impact of the secondary psychological effects of his physical injuries, despite noting the functional deficits associated with his physical injuries and the impact on his lifestyle.
In my view, the distress Mr Wetere experienced at the point of departure from his employer has been resolved and replaced by the problems associated with his physical injuries. Any whole person impairment due to a psychological injury is caused by a secondary psychological injury.”
The Medical Assessor assesses 0% WPI for the primary psychological injury sustained by
Mr Wetere because: “There is no ongoing primary psychological injury causing impairment.” He writes that no regard has been given to any symptoms or impairment resulting from a secondary psychological injury in determining WPI for a primary psychological injury.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

The appellant’s submissions

Mr Wetere submits that the MAC contains the following demonstrable errors:
(a)    the Medical Assessor made an impermissible finding of injury, namely a secondary psychological injury;
(b)    the Medical Assessor failed to provide any or any adequate reasons for the finding that the effects of the primary psychological injury had resolved, and
(c)    the Medical Assessor failed to provide an assessment of WPI on the basis of
Mr Wetere’s current psychological symptoms.
Mr Wetere submits that it is well settled that the task of determining injury is for a Member of the Commission and not the Medical Assessor. The Medical Assessor engaged in a process of finding a secondary psychological injury, rather than assessing impairment and assessing what impairment results from the primary psychological injury.
Mr Wetere submits that the Medical Assessor exceeded his jurisdiction by making a finding of a secondary psychological injury, and that this amounts to a demonstrable error.
Mr Wetere submits that the conclusion reached by the Medical Assessor that Mr Wetere’s psychiatric condition was resolving until the treatment for his physical injuries were suspended and his physical recovery regressed is meaningless and is not supported by reference to any of the evidence. Mr Wetere submits that the failure by the Medical Assessor to provide reasons as to why he considered that the primary psychological injury had resolved amounts to a demonstrable error, particularly having regard to ongoing psychological symptoms being experienced by Mr Wetere.
Mr Wetere submits that the Medical Assessor made an assumption that he expected
Mr Wetere’s primary psychological would have resolved, rather than forming an opinion from the available evidence. This in turn has led the Medical Assessor to further error by not disentangling the effects of the primary psychological injury and any effects of a secondary psychological injury.
Mr Wetere seeks a revocation of the MAC and for him to be re-examined.

The respondent’s submissions

The respondent submits that the Medical Assessor has appropriately assessed WPI pursuant to the Guidelines. The Medical Assessor has followed Part 1.22 of the Guidelines by distinguishing the primary psychiatric condition from a secondary psychiatric condition, and there being no assessment made for impairment of a secondary psychiatric or psychological impairment.
The respondent disputes that the finding made by the Medical Assessor that Mr Wetere’s primary psychological injury has resolved is not supported by reference to the evidence. The respondent refers to information supplied by Mr Wetere of his functioning and limitations which are set out in the MAC, details recorded by Dr Barrett that Mr Wetere’s “main issue” was his reported inability to work as a consequence of his wrist injuries, and Mr Wetere’s own description of the significance his physical injuries have had upon his psychological symptoms which is set out in his statement dated 24 November 2022.
The respondent submits that the Medical Assessor not only provided reasons for his conclusion that the primary psychological injury had resolved, but referred to evidence which supported his opinion and assessment. Furthermore, the Medical Assessor noted that
Dr Kumagaya and Mr Wetere’s treating practitioners did not traverse the issue of the secondary psychological injury being due to the physical injury sustained by Mr Wetere.
The respondent submits that the Medical Assessor has properly assessed 0% WPI on the basis that the primary psychological condition has resolved and any WPI for the secondary psychological injury is not assessable pursuant to s 65A of the Workers Compensation Act 1987 (the 1987 Act).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that Mr Wetere should be re-examined. The Appeal Panel agrees with the submission made by Mr Wetere that the Medical Assessor exceeded his jurisdiction in this medical dispute by making a finding of a secondary psychological injury.
In State of NSW (Department of Education) v Kaur [2016] NSWSC 346 (Kaur), Campbell J said at [22]:
“…I should point out that in my judgment, the question of whether an injury is a primary or secondary psychological injury is one for the Commission to determine and not one that arises is a medical dispute as defined by s 319 of the 1998 Act.”
In this dispute the referral is only for an assessment of permanent impairment for a primary psychological injury sustained by Mr Wetere on 9 July 2024. This was agreed to by the parties to the dispute. The Appeal Panel agrees with the submission made by Mr Wetere that the Medical Assessor was required to assess what impairment results from the primary psychological injury he sustained on 9 July 2021. The process which was engaged in by the Medical Assessor of making a finding of a secondary psychological injury amounts to a demonstrable error.

The Appeal Panel also considers there is a demonstrable error in the MAC in a failure by the Medical Assessor to provide adequate reasons for the conclusion that the effects of the primary psychological injury sustained on 9 July 2021 had resolved.
There is an inherent inconsistency between Medical Assessor stating that Mr Wetere’s psychiatric condition was “resolving as would be expected for an adjustment disorder in line with improvements in his physical condition”, and then proceeding to conclude that
Mr Wetere’s distress experienced at the time he ceased work with the respondent has resolved, without there being any adequate explanation for this inconsistency.
The Appeal Panel agrees with the submission made by Mr Wetere that the Medical Assessor makes an assumption that he expected Mr Wetere’s primary psychological injury would have resolved, when such an assumption is not reconciled with the ongoing psychological symptoms being experienced by Mr Wetere and which are recorded by the Medical Assessor.

THE RE-EXAMINATION

Medical Assessor Nicholas Glozier conducted an examination on 14 August 2024 and provided the following report to the Appeal Panel:

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W8297/23
Appellant:	Jason Wetere
Respondent:	Coles Supermarkets Australia Pty Ltd
Date of Determination:	14 August 2024

Examination Conducted By:	Professor Nicholas Glozier via the Teams platform – there were no technical or other difficulties
Date of Examination:	13 August 2024

The worker’s medical history, where it differs from previous records

Mr Wetere said he takes no psychotropic medications. He was prescribed vaped medicinal cannabis some time ago (19% THC) which he said was prescribed for his pain, but he was also told it might help with some sleep issues. He said he stopped this because of its cost, although then said he used someone else’s prescription recentlyc, although does not use it very frequently and notes sedation from it. He does not microdose or use any other repurposed psychotropics. He has not seen a psychologist for a long time, almost certainly since they moved to the Northern Rivers. He did not indicate he thought he needed any treatment for any mental health problems, unlike for his physical injuries.

He continues under treatment for his debilitating bilateral upper limb conditions. He said he has had wrist and elbow surgeries on both limbs from Dr Bradshaw. He has seen Dr Bradshaw in Sydney, and I believe in Brisbane, and will travel to see him where he is located. He has only just stopped seeing a hand therapist because the recent ultrasound has apparently suggested that he needs further surgery on his right arm. The therapist has suggested that he would not benefit from any further conservative or rehabilitation interventions. He uses two Panadol and one Nurofen approximately twice a day, particularly if he has aggravated his symptoms with any activity. He says he has stopped the Lipitor he was taking for his hypercholesterolaemia (although this might be the Levetiracetam that was mentioned elsewhere as he did acknowledge the presence or history of any seizures).

He drinks alcohol only occasionally, the last time being five days ago, and does not drink to get drunk. He does not smoke cigarettes.

Additional history since the original Medical Assessment Certificate was performed

I clarified some aspects of his pre-injury function. He reported that the family had only moved to Sydney approximately a year or so prior to the injuries. Before then he had been working long hours in sugar cane plantations, and he had spent his life working in heavy manual non-cognitively-demanding labour in male-dominated industries. They moved in with the family as he was looking to a ‘more stable family life’ because of the children, who were young at the time (his youngest may not even have been born then). He left all of his friends back in Cairns and only had some phone contact with them, and he had not made any new friends. He worked a 9 to 5 job at Coles, enjoyed working with women, and having worked in heavy logistics for many years, enjoyed the less-demanding delivery role. Outside of work he lived with his mother and wife, who would undertake much of the home duties as she was at home with the children. Outside of work he said all he really did was focus on the family, for example he would go to parks or to the shopping centre, and occasionally go fishing on his own, but otherwise he had had no significant hobbies or interests for many years. Previously he had been interested in music, and possibly more physical activities, but had not done those whilst living in Sydney.

He related the onset of his conditions in a similar fashion. He noted the initial right wrist injury whilst making deliveries and handling heavy trays. He took a couple of days off and consulted a doctor but went back to work quickly. He said his bosses were persuading him to go back to work, stating that if he did not return in two weeks there would be reduced chances of him doing so, and he returned on light duties. However, the light duties appeared to involve ongoing manual work such as stocktaking and some handling which he tried to do one-handed before ‘mashing my left wrist’ in the horizontal bars of a compactor.

As before, he noted that he was removed that day from the physical work and asked to check QR codes of customers coming into the store. He was not keen on working with crowds of people, had no IT background or skills, and in fact did not even know how to do his own QR code at the time. He said that customers were aggressive, yelling at him, and only after a few minutes he began to ‘stress out, get anxious’ and thus asked for help from the management. He reported that one of the middle managers was watching him struggle. He said he was asked ‘out the back, to see the boss’ who ‘gave it to me, told me I was in the wrong industry and sent me home.’ Today he said he had never been treated in such a way through all of his years in heavy manual industries and could not believe that this could happen. He remains aggrieved that he would be spoken to in that way as someone who had always tried to work. However, beyond this I was unable to identify any significant psychiatric sequelae in the immediate aftermath of this incident.

Mr Wetere developed some chronic depressive symptomatology over time, in large part proportional to his pain, dysfunction and frustration with insurers over treatment for his arm injuries.

He reports his problems as being almost entirely due to his upper limb injuries which continue to affect him significantly through symptoms and debility. Because he was unable to do any of his jobs that he was qualified for, like manual work, they were unable to pay any rent. When his mother moved up to the Byron Bay area for her senior role, the whole family moved and they live on a 300-acre property with his brother and mother, sister with significant disabilities, and his two children. His wife left earlier this year, and this will be discussed below.

He said his right arm has been ‘playing up a bit recently’ with increasing symptoms and worsening functioning requiring review for further surgery. He said that whenever he uses it to any significant extent, he experiences a numbness, loss of control and also a paraesthesia. He feels he can have a cracking sound with some reduced range of motion and power and that this increases if he does more and more activities. Again, with even mild physical activity or lifting, he finds that his left hand has ‘a weird sensation’ arising from the middle of his left palm with occasional numbness and he loses fine motor control. For instance, he says he is unable to control the buttons on the Nintendo Switch he plays with his son after 10-15 minutes. He struggles even to pick his children up, cannot hold any heavy items, and if he helps around the home with some chores and food preparation, he can only do this for a brief period of time before the painful sensations mean he relinquishes these tasks.

Although the symptoms do not appear to stop him from going to sleep, he says he wakes up frequently during the week with tingling and painful hand sensations. By ‘pumping’ his hands he finds that this relieves these sensations after about 5-10 minutes. but it can take him up to 30 minutes to fall back to sleep. As a result, he has significant disturbed sleep, he says between 4 and 6 hours a night. He said he puts the kids down between 5pm and 7:30pm (they sleep in the same room as him) and then he goes to bed between 8pm and 9pm. He says that everything is shut down then and he then takes a little while to fall asleep before his disturbed sleep. He gets out of bed around 5am. Thus, when I calculated it, he had a low-normal sleep duration, but he was adamant that this was shorter, generally only 4-6 hours, of self-reported sleep.

He says his moods are ‘fine’ most of the time but on the intermittent weekends where his ex- takes them, he says his moods are diminished as they are ‘the centre of his life’ and he enjoys being with them so much. He can also enjoy a few other activities although virtually everything he used to enjoy was physical and these are prevented by his physical injuries. He still has hope for the future that he will improve, get back to work and function. He may occasionally ruminate about how he felt ‘treated like shit’ at work and being told to keep working and believes that this return to work destroyed his left arm function which is why he is now so debilitated.

Function

He says he can manage his own self-care although it is somewhat reduced. His mother has had the shower head altered, such that he has one that he can use better, and he can brush his teeth, eat, look after himself, and get dressed, although does this less well than before. Conversely, he said one of his jobs at home is to help look after his disabled sister because she has an intellectual age of four he reports, and thus he needs to prompt her to look after herself, do her teeth and wash herself. These activities he prompts his sister to perform are all the things he suggests he himself needs prompting for. When he gets up around 5am, he says he might watch the land and wait until the kids get up around 7am. He can help with basic food preparation but says his mother generally organises most of the food around the home. He struggles to look after the kids, for instance bathing/dressing them because of his physical injuries. The kids are in some form of care twice a week and he says that either he or his mother will drive them there and collect them, but it is generally his mother. I could not elicit any other self-care activities as he does no mindfulness/relaxation apps, and he has stopped doing some of the activities such as regular walks which he could do, but does not because of lack of motivation.

His friends will contact him occasionally, but he has not seen them for a long time as they live in Cairns. He says he has become ‘a homebody’ and really has not had any friends since leaving Cairns. He might very occasionally fossick. He spends much of the day watching four-wheel-drive shows or other TV shows and finds that at times he will become somewhat distractible watching these. He misses the camping that he and his ex-partner used to do. He will play with the kids when they are at home and supervise them on the trampolines, but says he cannot physically play the ‘rough and tumble of a dad with kids.’ He will also play Switch for up to a quarter of an hour or so, after which he is unable to play, not because of any loss of concentration, but rather he is unable to control the actual handset.

He struggles to drive because after a very short period of time his hands lose power, sensation and slip off the steering wheel. As such he will only drive locally on occasions to pick up the kids if he has to. He last went into town shopping with his mum a few days ago. He says he has no problems when he is in the shops or in public or crowded areas, describing no anxiety, panic or specific avoidance, although he does not like it when people ask him how he is doing because of his limited function. He described no psychological problems driving.

His now ex-partner left him earlier this year. He said he was ‘blindsided’ because he did not think there was any major interpersonal difficulties, although he was aware that he was not able to financially support her as he had done previously, and this was causing problems. He suggested that this may have had something to do with his various conditions but also then suggested that probably she wanted to move on or had found a new partner to live with. Interestingly, she did not take her very young children with her, and she has only occasional contact with the children. He said they have a handover at the weekends when she will have the children, where he will drive the kids and then they will get out of his car into hers. He said as a result he has no idea what she is doing and cannot explain how she would have just left the children and what that means for her life.

He reports an excellent relationship with his mother, looks after his sister, and has a good relationship with his brother who is a stay-at-home game and technical coder. As noted, he still keeps in contact with his other brother and sister regularly, going to his sister’s wedding last year, although was reluctant to become involved there and struggled physically.

He reports that if his arms were sorted, then he would have no problem returning to any of the various forms of physical work he has done over the years. However, he has not sought any further work because he wants to make sure that anything he does would not damage his hands further, leaving him further debilitated, and that this needs to be sorted out beforehand. He noted frustration with the insurers over the years where he believes they have been fighting the operations and treatment that would have helped and that if they had done so, he would be recovered and back working.

Findings on clinical examination

Mr Wetere was casually-dressed, prompt, polite and pleasant. He showed excellent focus and concentration throughout the over one-hour assessment, responding without hesitation or delay, and was able to persist with the assessment at a usual cognitive pace. He displayed a standard affect with a range of responses from both positive and negative, emotional ranges when talking about his children showed a positive affect, and then when talking about his conditions and also the way he was treated at work, responding with a dysphoric affect. He does have a persistent low mood without anhedonia, but there are times when his mood is reduced, associated with his debility, pain and not having his children around his main focus now. He has a low-normal sleep duration, a poor sleep efficiency, spending long hours in bed and sleep broken through pain, paraesthesia and tingling rather than any psychological insomnia. He may have some anergia and reduced motivation during the day. He continues to push himself to look after the children and do some activities although his motivation is slightly reduced in these circumstances. When pressed he can become aggrieved about the way he was treated but this does not have a dominating re-intrusive characteristic. I was unable to identify any psychological avoidance, panic, hyperarousal, hypervigilance. He believes that his primary issues are his pain and that if these were sorted he would have few, if any, problems, and certainly be able to return to full function and return to work.

Results of any additional investigations since the original Medical Assessment Certificate

Not applicable.

Diagnoses

Mr Wetere’s psychological condition would best be described under DSM5 as a Persistent Depressive Disorder with some low esteem, some reduced energy and at times poor appetite but without either of the cardinal features for a Major Depressive Disorder. This is of borderline clinical significance as I am not convinced that this set of symptoms actually causes clinically significant distress or more marked clinical impairment as required for a diagnosis.

Although the primary cause of Mr Wetere’s current condition has been the chronic debilitating physical limitations associated with pain, paraesthesia, numbness and poor motor control arising from his upper limb conditions, and the frustration with the insurers over the handling of these issues, there is a causal component arising from the way he was treated at work, and the resentment he has of this, and so this Persistent Depressive Disorder constitutes the primary psychiatric injury.

Evaluation of permanent impairment

Discounting the marked impairments arising from his physical limitations, I make the following assessments of class function for each of the following categories:

Self-care

Although he reports reduced frequency of his own self-care and at times requiring some prompting, he conversely also manages some care of his children within his physical limitations and prompts his sister to do the same basic activities: he remains independent in his capacity to self-care and maintain his personal hygiene. This is a mild impairment.

Social and Recreational Activities

He had little social functioning even prior to the injuries. He no longer fishes because he physically cannot, nor does he do any other physical activity, apart from a very occasional fossick. He will only play some computer games, Nintendo Switch, for a short period limited by physical activities. However, he seems to have reluctance to go out, make new friends, has limited contact with his old friends in Cairns and, when at a wedding last year, was somewhat withdrawn. This is a moderate impairment.

Travel

He reports the only travel limitation is his inability to hold a steering wheel for more than 15 minutes or so, and thus he will not drive any further than that on his own, particularly if he has the children. I could not identify any psychiatric impairment to his driving, travel or inability to use any transport and he in fact goes to Brisbane and Sydney to see his orthopaedic surgeon when required. No impairment.

Social Functioning

It is difficult to disentangle whether his partner left because of his psychiatric condition as he now attributes it far more to her impatience with his inability to work/support her which is almost entirely attributable to his physical condition. He is very well supported by his close family and still receives some contact from friends who are many miles away. I find using my clinical expertise and on the balance of probabilities he meets the criteria for a moderate impairment.

Concentration, Persistence and Pace

He reports never really having done any cognitively-demanding activities. He showed no cognitive difficulties whatsoever during the assessment for some 60 minutes and none was noted by the Medical Assessor. He reports at times he gets distracted and his mind wanders when watching 4x4 shows but his gaming is limited by his physical condition only. This is a mild impairment.

Employability

He reports, and I see no reason otherwise based on his fairly limited psychiatric symptoms, that he would be able to return to fulltime employment in a manual occupation where his physical condition is supported. However, given his experiences at Coles and his ongoing resentment associated with his primary injury, this would prevent him returning to work with the respondent. This is a mild impairment.

FINDINGS AND REASONS

The Appeal Panel considers that the examination undertaken by Medical Assessor Nicholas Glozier was conducted in a thorough manner.
Although Medical Assessor Nicholas Glozier concludes that the main cause of Mr Wetere’s current psychological condition, being a persistent depressive disorder, has been the chronic debilitating physical limitations and symptoms associated with the injuries to both his wrists and frustration with the handling of his claims, Medical Assessor Nicholas Glozier has identified that this condition is intermingled with the causal component arising from the events on 9 July 2021. The persistent depressive disorder in toto is thus the primary psychiatric injury.

The limitations caused by the pain and dysfunction arising from Mr Wetere’s upper limb injuries are not assessable within the psychiatric impairment rating scale (PIRS) categories, and thus in each category Medical Assessor Nicholas Glozier has assessed the impairment caused by Mr Wetere’s primary psychological injury.
The Appeal Panel also considers that the findings made by Medical Assessor Nicholas Glozier of functional impairment in some of the PIRS categories addresses the demonstrable error contained in the MAC that the effects of the primary psychological injury on 9 July 2021 had resolved.
Medical Assessor Nicholas Glozier finds levels of mild or moderate impairment in almost all of the PIRS categories as a result of the primary psychological injury. Mr Wetere is diagnosed as having a persistent depressive disorder, although without the cardinal features of a major depressive disorder. The findings and diagnosis made by Medical Assessor Nicholas Glozier are consistent with Mr Wetere continuing to suffer the effects of the primary psychological injury sustained on 9 July 2021.
The Appeal Panel accepts the levels of impairment assessed by Medical Assessor Nicholas Glozier. Those assessments are derived from a thorough and detailed examination of
Mr Wetere.
The following PIRS categories apply in accordance with the assessment made by Medical Assessor Nicholas Glozier:
Self-care and personal hygiene  Mild impairment  Class 2
Social and recreational activities  Moderate impairment            Class 3
Travel  No impairment  Class 1
Social functioning  Moderate impairment            Class 3
Concentration, persistence and pace              Mild impairment  Class 2
Employability  Mild impairment  Class 2
Score  Median Class
2            3         1         3         2         2  2
Aggregate Score Impairment  Total               %
+2         +5       +6       +9       +11     +13                 13                   7%
Pre-existing deduction clause:   Nil
Treatment effect clause   Nil                   7%
Final WPI = 7%.
The MAC issued on 5 April 2024 will be revoked and a new MAC will be issued in accordance with the assessment made by Medical Assessor Nicholas Glozier. The new MAC is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W8297/23
Applicant:	Jason Wetere
Respondent:	Coles Supermarkets Australia Pty Ltd

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 Clayton Smith 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 WorkCover Guides

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

9 July 2021

Chapter 11

Pp 54-60

Chapter 14

Nil

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

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.

[2024] NSWPICMP 600

26 August 2024