Zoric v Secretary, Department of Education

DETERMINATION OF APPEAL PANEL
CITATION:	Zoric v Secretary, Department of Education [2024] NSWPICMP 756
APPELLANT:	Venessa Zoric
RESPONDENT:	Secretary, Department of Education
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	John Baker
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	4 November 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; remitter after judicial review; leave granted to add grounds of review of deterioration and availability of additional relevant information; re-examination; has been deterioration but current treatment inadequate and not therapeutic; worker’s condition has not reached maximum medical improvement; Held – Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

Venessa Zoric suffered a psychological injury in the course of her employment as a teacher by the Secretary, Department of Education (the Secretary) for which she claims permanent impairment compensation. The deemed date of injury is 14 September 2020.
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).
Ms Zoric was assessed by a Medical Assessor who issued a Medical Assessment Certificate (MAC) on 10 January 2023 in which he assessed 11% whole person impairment (WPI). The MAC was the subject of appeal on the grounds in s 327(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act). The specific grounds were that the Medical Assessor erred in failing to make an allowance for the effects of treatment and in applying inconsistent reasoning with respect to a deduction under s 323 of the 1998 Act. The first Appeal Panel[1] declined to make an allowance for the effects of treatment and reduced the s 323 deduction to one-tenth. It issued a new MAC certifying that Ms Zoric suffered 14% WPI.
[1] [2023] NSWPICMP 220 (the first Appeal Panel decision).
The first Appeal Panel decision was the subject of an application for judicial review. In Zoric v Secretary, Department of Education and Ors[2] Chen J quashed the decision of the first Appeal Panel and remitted the matter to the President of the Personal Injury Commission (Commission) for determination according to law. The judgement turned only on the allowance for the effects of treatment.
[2] [2024] NSWSC 131 (the judicial review decision).
The appeal was referred to us. 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.
On 16 April 2024, noting the brevity of the submissions made in respect of the appeal and the substance of the judicial review decision, we issued a direction seeking further submissions on the following issues:
(a)    whether either party seeks to rely on additional medical material, the precise nature of that material and the reasons why leave should or should not be granted;
(b)    whether a re-examination was sought and why;
(c)    the orders which should be made, in light of the Supreme Court decision;
(d)    with respect to paragraph 1.32 of the Guidelines, the nature of the relevant “illness or injury” which has been the subject of treatment and the treatment provided, the extent of the allowance which should be made and why, and
(e)    the extent of the appropriate deduction under the 1998 Act.
We received submissions in accordance with the timetable ordered. On the same day, Ms Zoric’s solicitors wrote to the Commission saying that Ms Zoric would be re-examined by her psychiatrist, Dr Lim, on 18 June 2024.
On 31 May 2024 Ms Zoric filed another, separate Application to Appeal Against a Decision of a Medical Assessor, seeking to rely on the grounds of appeal in s 327(3)(a) and (b). The Commission asked Ms Zoric to file and serve submissions seeking leave to amend this appeal to raise additional appeal grounds and directed the Secretary to respond.
Those submissions were referred to us and by a direction dated 22 July 2024, we granted leave to Ms Zoric to amend the appeal to raise the additional grounds of appeal, relying on the power in rule 9 of the PIC Rules. We made directions about service of further submissions. We directed that any further report from Dr Lim be served by 19 August and provided an appointment for an examination by both medical members of this Appeal Panel.
The error which necessitated a re-examination was that identified in the judicial review decision. The re-examination was also necessary because of the amendment to rely on the ground in s 327(3)(a) – that there has been a deterioration in Ms Zoric’s condition that results in an increase in the degree of permanent impairment. It was appropriate for both medical members of the Appeal Panel to examine Ms Zoric because of the extensive history and because of the diagnosis of dissociative identity disorder made by her psychologist, Mr Albassit in his report dated 1 June 2021.
The examination took place on 20 September 2024 and the report dated 20 October 2024 is attached to and forms part of these reasons. We adopt the report.[3]
[3] Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [88].

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but we have considered them.

Ms Zoric

The submissions in respect of the appeal were signed on 3 February 2023 by Ms Zoric’s solicitor, Mr Ferraro. Ms Zoric submitted that the history that the Medical Assessor recorded of monthly consultations with Dr Lim, medication and fortnightly consultations with her psychologist, Mr Albassit was an extensive treatment regime. She said that the history reflected an improvement as a consequence of the treatment in relationships with her family and noted that the Medical Assessor had observed that complex post-traumatic stress disorder and substance abuse disorder (alcohol) were in remission. Ms Zoric said that the Medical Assessor should have allowed up to 3% for the effects of treatment. With respect to s 323 of the 1998 Act, Ms Zoric said that the Medical Assessor’s reasoning was inconsistent because he made a deduction of one-quarter but said elsewhere that the “statutory deduction” of one-tenth was warranted.
In response to our direction dated 16 April 2024 Ms Zoric relied on submissions prepared by Mr Tanner of counsel dated 24 May 2024. Ms Zoric said that, before the MAC, the only evidence with respect to permanent impairment was Dr Rastogi’s report dated 10 September 2021. She sought to rely on a report from Dr Rastogi dated 22 May 2024, which contained recent history said to be relevant to our task. The submissions foreshadowed a separate appeal under s 327(3)(a) and (b) and asked that we defer our decision until that appeal had been considered by the gatekeeper.
Ms Zoric sought that we defer our decision until a report was obtained from Dr Lim, who would provide “comparative evaluation having regard to the treatment he has provided, the medication prescribed and [her] responses to such treatment”.
In respect of the orders sought, Ms Zoric said that we should revoke the MAC and make a deduction under s 323 of the 1998 Act of one-tenth, as the first Appeal Panel had done. She said that there should be an allowance for the effect of treatment of between 1% and 3%. Ms Zoric said that the relevant “illness or injury” was that diagnosed by Dr Lim, being chronic post-traumatic stress disorder, borderline personality disorder and attention deficit hyperactivity disorder, or Dr Rastogi’s diagnosis of chronic persistent adjustment disorder with the co-morbidities of alcohol abuse disorder and complex post-traumatic stress disorder. While she sought to obtain up to date evidence from Dr Lim, Ms Zoric said that his report dated 19 November 2021 showed that there had been marked improvement at reviews in May, August and September 2021 which “confirms the effect of treatment and warrants an allowance of at least 1%”.
Mr Tanner prepared further submissions on behalf of Ms Zoric dated 7 June 2024 in response to the Commission’s request that submissions be filed in support of the amended appeal. Ms Zoric said that there was no basis to rely on s 327(3)(a) and (b) until her condition had deteriorated and further information had become available. The evidence on which she sought to rely was her statement dated 29 May 2024 and Dr Rastogi’s report dated 22 May 2024. Both of those documents described Ms Zoric’s attempt to return to work in 2024.

The Secretary

In reply to Ms Zoric’s primary submissions, the Secretary said that there had been a fluctuation in Ms Zoric’s functioning and that she was taking some of the listed medications before the injury. It said there was no indication in the MAC that the Medical Assessor considered that treatment had been effective in achieving the apparent substantial or total elimination of impairment. With respect to s 323, the Secretary noted the Medical Assessor’s observation that Ms Zoric had an extremely complex and difficult prior history so there could be little doubt that a deduction was appropriate.
In response to our direction dated 16 April 2024, the Secretary said that the appeal should be determined on the papers. It opposed the admission of Dr Rastogi’s report as fresh evidence, noting that it had no opportunity to obtain evidence in reply and that there was no evidence from any treating practitioner, Dr Lim’s report not then being available. The Secretary said that if there was a re-examination, that examination took precedence, not the opinion of the parties’ respective doctors. It said that a re-examination was appropriate, given the lapse of time since the MAC.
In respect of the orders sought, the Secretary said that if we accepted there should be no allowance for the effects of treatment, the assessment before any s 323 deduction was 15%. The Secretary said that the reports of Dr Lim dated 14 March 2013, 18 November 2021 and 19 November 2012 together with that of Mr Albassit dated 1 June 2021. The Secretary said that the Medical Assessor’s 25% deduction was appropriate having regard to the pre-existing condition.
The Secretary opposed the granting of leave to amend the appeal.
In submissions dated 19 August 2024, the Secretary said that Dr Rastogi’s report should not be admitted as fresh evidence and again supported a re-examination. It noted that no report from Dr Lim had been served, nor had there been an explanation for that omission.

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. We refer to that evidence below, where relevant.
In considering the additional evidence on which Ms Zoric seeks to rely, we take into account s 327(2) of the 1998 Act which provides that a matter is appealable “if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct.” Under s 326 of the 1998 Act, those matters are, relevantly, the degree of permanent impairment as a result of an injury, whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, whether impairment is permanent and whether the degree of permanent impairment is fully ascertainable. Any additional evidence must be relevant to those grounds.
In her statement dated 29 May 2024, Ms Zoric described her efforts to return to work in late 2022 and the termination of her employment by the Secretary in March 2023. She said that she found work as a behavioural support practitioner for 72 hours a fortnight but after four weeks, her symptoms “reached a point where I couldn’t bring myself to attend work” and resigned. She said that her “current” treating doctors are Dr Lim, and Drs Ashraf and Dr Luu, who are both general practitioners. With respect to Dr Lim, she said:
“I last spoke to him in mid 2023. I am next consulting with him on 18 June 2024. I have not spoken to him for a while because, as I understand it, I did not need to unless there was a change in my situation.”
She said that her current medication is Lovan 20mg daily and Clioden 300mg daily and that she also takes Vyvnase for ADHD “on an increased intake from 50 mg to 70 mg daily”.
Ms Zoric did not say who prescribed that medication and the most recent material from her general practitioners is dated 2021.
We accept that the statement could not reasonably have been obtained before the assessment by the Medical Assessor. It provides the basis for Ms Zoric’s appeal on the basis that her condition has deteriorated and describes her unsuccessful attempts to return to work. We admit the statement, though its value is limited in light of the additional history taken at the re-examination and set out in the attached report.
Dr Rastogi provided a report dated 22 May 2024. She diagnosed chronic major depression with anxiety and acknowledged a history of pre-existing trauma and attention deficit hyperactivity disorder (ADHD). Dr Rastogi noted that Ms Zoric engaged in risk taking in her early twenties associated with substantial polysubstance abuse but that there was no history of recreational drug use. Ms Zoric “reported alcohol abuse in 2019…she has since then decreased her drinking but not reached abstinence.”
Dr Rastogi recorded that Ms Zoric was “currently on Vyvanse 70 mg, Lovan 40 mg and Seroquel 25-50 mg. She is also on Nexium”. She noted that Ms Zoric “is not seeing a psychologist over six months and is seeking a new psychiatrist”. Despite that, when asked for “[y]our recommendation on whether out client has undergone reasonable treatment to date” her response was “[y]our client had received adequate and reasonable treatment”. Dr Rastogi made an assessment of WPI in excess of her previous assessment. The difference in the PIRS assessment was with respect to employability only. She made a deduction of one-tenth under s 323 and wrote “[e]ffects of treatment – 0%”.
Ms Zoric argued that Dr Rastogi’s report was additional relevant information within s 327(3)(b) as well as evidence supporting a deterioration.
In Petrovic v BC Serv No 14 Pty Limited,[4] Hoeben J said:
[4] [2007] NSWSC 1156.
“In my opinion the words ‘availability of additional relevant information’ qualify the words in parentheses in s327(3)(b) in a significant way. The information must be relevant to the task which was being performed by the AMS. That approach is supported by subs 327(2) which identifies the matters which are appealable. They are restricted to the matters referred to in s326 as to which a MAC is conclusively taken to be correct. In other words, ‘additional relevant information’ for the purposes of s327(3)(b) is information of a medical kind or which is directly related to the decision required to be made by the AMS. It does not include matters going to the process whereby the AMS makes his or her assessment.”[5]
[5] At [31].
Dr Rastogi’s report supports the ground in s 327(a) – that there has been a deterioration in Ms Zoric’s condition that results in an increase of permanent impairment. Ms Zoric’s statement alone cannot support that ground. Dr Rastogi’s report is therefore admitted.
Dr Lim prepared a report dated 19 August 2024. Although the report was served well outside the directions made, we have determined to admit it because of the lack of other up to date material from Ms Zoric’s treating practitioners.
Dr Lim listed the dates on which he had seen Ms Zoric since 22 October 2020. He saw her in December 2020, on eight dates in 2021, three times in 2022, once in February 2023 and on the date of the report in August 2024. Despite those rare attendances, he described himself as Ms Zoric’s treating psychiatrist and said that he supervised her treatment and prescribed her psychotropic medication, which includes Vyvanse 70mg daily, Prazosin 5mg nocte and Fluoxetine 40mg daily. He said:
“The treatment has improved Ms Zoric's functioning in relation to her work related injury but she remains incapacitated in terms of being able to return to his pre-injury duties.
…
In my opinion Ms Zoric's functioning would significantly deteriorate if her treatment is withdrawn including a deterioration in her mental health and potential future vocational functioning.”
Dr Lim did not offer any reasoning in support of those statements. There is no explanation as to why the planned consultation on 18 June 2024 did not take place and the report does not show that he was aware that Ms Zoric had adjusted the dosage of her own volition. The report does not fulfil the purpose for which it was intended and provides little information as to the treatment provided. Though it carries little weight, we determined that it should be admitted.
All of that material is relevant to the question of whether the impairment is permanent.

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 Campbelltown City Council v Vegan[6] 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.
[6] [2006] NSWCA 284.
In Queanbeyan Racing Club Ltd v Burton[7] 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.
[7] [2021] NSWCA 304 at [26].

Deterioration

In Riverina Wines Pty Ltd v Workers Compensation Commission[8] (Riverina Wines) Campbell JA (with whom the other members of the Court agreed) said that:
[8] [2007] NSWCA 149.
“Considering that submission involves, first, construing section 327(3)(a). ‘Deterioration’ of a person’s condition is an inherently relational concept. It involves the condition in question having become worse than it previously was, at some particular point in time. In my view, the ‘deterioration’ that section 327(3)(a) talks of is a deterioration from the degree of impairment that has been certified by the MAC, over the time since the examination or examinations on the basis of which the MAC was issued took place. That conclusion follows from the fact that the appeal in question is, as section 327(2) requires, against a matter as to which the assessment of an AMS certified in a MAC is conclusively presumed to be correct.”
Handley JA said:[9]
[9] At [122].
“The relevant ground of appeal (s327(3)(a)) makes the certificate the starting point of the inquiry. The ground does not authorise a challenge to the correctness of the certificate as at the date it was given. It is entirely focused on what has happened to the worker since.”
The recent evidence on which Ms Zoric relies – and the history provided at the re-examination shows that she has suffered a deterioration in her condition since the date of the original MAC. Early in 2024, after the resolution of Family Court proceedings and when Ms Zoric was taking 60mg of Fluoxetine, her functioning had improved enough for her to consider a return to work. However, as set out in the report of the re-examination shows, she has reduced Fluoxetine, the medication prescribed to treat her depression, to a level which is not therapeutic and her treatment has been suboptimal. Ms Zoric has relapsed into hazardous alcohol use and both of those factors have impacted on her depressed mood. As the re-examination report says, stabilisation of Ms Zoric’s primary psychological injury is unlikely while her alcohol use remains hazardous and the dose of medication is sub-clinical.

The ground of appeal in s 327(3)(a) can only succeed if the deterioration is permanent. At this time and while Ms Zoric’s treatment is not therapeutic, her condition has not reached maximum medical improvement and it is not possible to assess the extent of her permanent impairment. That determination is open to an Appeal Panel in the same way that it is to a Medical Assessor.[10]
[10] Western Sydney Local Health District v Roberts [2023] NSWSC 452.
We decline to assess permanent impairment because Ms Zoric’s condition has not reached maximum medical improvement and the degree of permanent impairment is not fully ascertainable.

Allowance for the effects of treatment

The judicial review application turned solely on the first Appeal Panel’s determination and the Medical Assessor’s demonstrable error in failing to consider the effects of treatment. We are unable to resolve that error because Ms Zoric requires further treatment before it can be said that her impairment is permanent.
Discussing clause 1.32 of the Guidelines, Chen J said:[11]
[11] At [59]-[60].
“The clause may thus be understood to involve, and require findings about, the following ‘steps’:
(1) First, whether there has been effective long-term treatment of an illness or injury.
(2) Secondly, whether that treatment results in apparent substantial or total elimination of the claimant’s permanent impairment.
(3) Thirdly, whether the claimant is likely to revert to the original degree of impairment if treatment is withdrawn.
These steps largely align with the analysis of Adamson J (as her Honour then was) in Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited andQuality Hotel) [2020] NSWSC 781 at [57] (‘Peachey’), and both parties accepted that a proper application of cl 1.32 of the Guidelines requires these steps to be addressed.”
His Honour said that clause 1.32 is premised on an injury or illness that results in permanent impairment and that the three steps re directed to that condition.[12] His Honour went on:
[12] At [61].
“In relation to the first step, therefore, there needs to be a finding about the ‘illness or injury’ that results in permanent impairment and whether there has been effective long-term treatment of that ‘illness or injury’.
In relation to the second step, that enquiry involves a comparative exercise being performed, the nature of which was explained in Peachey at [52] as follows:
‘Clause 1.32 requires a comparison to be made between the claimant’s original degree of impairment as a result of the injury before the effective treatment and the claimant’s degree of impairment as a consequence of treatment to determine whether the treatment has resulted in apparent substantial or total elimination of the original impairment. The comparison is to be made between the respective impairments at those two relevant times. I consider this construction to be clear from the wording of the clause…’
Further, in relation to the comparative exercise required by cl 1.32, the clause neither requires, nor authorises, a comparison between respective WPI scores at those times, nor does there need ‘to be a post-injury pre-treatment WPI score for the purposes of undertaking the necessary comparison’: Peachey at [53] and [56]. The explanation for this lies, at least in part, in the language of the clause: the focus of cl 1.32 is upon ‘permanent impairment’, not on its degree expressed as a percentage: Peachey at [54] citing Hunter Quarries Pty Ltd v Mexon (2018) 98 NSWLR 526; [2018] NSWCA 178 at [67].
In relation to the third step, the question is whether the claimant’s impairment is likely to revert to the original degree of impairment if treatment is withdrawn. Plainly, the resolution of this question is likely to be informed, perhaps significantly, by the findings in relation to the first and second steps.”
There is limited evidence available as to Ms Zoric’s treatment regime, though the Medical Assessor members of the Appeal Panel were able to record a history at their examination.
Ms Zoric remains on the maximum dose of medication for attention deficit hyperactivity disorder. Vyvanse and Cliodin are prescribed for that condition and Ms Zoric has taken them for many years. Those medications are not treatment for the injury which is the subject of these proceedings and they should be excluded from any consideration of the allowance for the effects of treatment.
Dr Lim’s report dated 14 March 2013 shows that he diagnosed attention deficit hyperactivity disorder at that time. He prescribed Ritalin, changed later in 2013 to a longer acting version of the drug. On 30 May 2018 he told Ms Zoric’s general practitioner that he had also prescribed Lexapro due to her extreme levels of anxiety and emotional lability. He also increased her dose of Vyvanse, prescribed to treat attention deficit hyperactivity disorder.
Dr Lim’s 2024 report does not contain a diagnosis. He said that “the treatment has improved Ms Zoric’s functioning” but he does not separate the treatment for the pre-existing condition and the treatment for the injury.
Dr Rastogi in her 2021 report said that Ms Zoric had suffered from attention deficit hyperactivity disorder which was in remission but also that she was under treatment for the condition. In her 2024 report Dr Rastogi said that there is “known previous history of ADHD”. She identified the drugs Ms Zoric is taking but did not attribute them to the separate conditions. She diagnosed chronic major depressive disorder with anxiety. While Dr Rastogi said that Ms Zoric has received adequate and reasonable treatment, she said when making her assessment of WPI that there is no allowance for the effects of treatment.
The Medical Assessor members of this Appeal Panel diagnosed major depressive disorder with alcohol use disorder as a result of the injury.
Ms Zoric is no longer seeing a psychologist and told the Medical Assessors that she was using psychological support from a domestic violence counselling service. The only medication taken for the effects of the injury is Fluoxetine. Ms Zoric has adjusted the dosage herself from 60mg to 20mg and back to 40mg. Inevitably that reduction has a caused a deterioration in her functional capacity, as Dr Lim predicted. The current dosage is sub-therapeutic and it cannot be said that her condition is being effectively treated. Her relapse into alcohol use disorder contributes to the deterioration. With appropriate pharmacological treatment for the major depressive disorder, it is likely that Ms Zoric will experience some improvement as she did earlier in 2024.
No allowance for the effects of treatment is appropriate.
For these reasons, we have determined that the MAC issued on 12 December 2022 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:	W1068/22
Applicant:	Venessa Zoric
Respondent:	Secretary, Department of Education

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 Graham Blom 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 % WPI (after any deductions in column 6)
Psychological injury	14/9/2020	Chapter 11	N/A	-	-	-
Total % WPI (the Combined Table values of all sub-totals)					The Applicant’s condition has not reached maximum medical improvement

PERSONAL INJURY COMMISSION

APPEAL AGAINST MEDICAL ASSESSMENT

REPORT OF THE EXAMINATION BY MEDICAL ASSESSOR

MEMBER OF THE APPEAL PANEL

Matter Number:	M1-W1068/22
Appellant:	Venessa Zoric
Respondent:	Secretary, Department of Education
Date of Report:	20 October 2024

Examination Conducted By:	Medical Assessor Hong and Medical Assessor Baker
Date of Examination:	20 September 2024

The workers medical history, where it differs from previous records
Ms Venessa Zoric attended an examination with Dr John Baker and Dr Michael Hong (Medical Assessor Panel Members) by videoconference on 20 September 2024 at 3.00 pm. The worker was at home and assessed alone.

The worker’s medical history:

Ms Zoric provided a complex history of her pre-existing psychiatric condition.

Ms Zoric reported that she was assessed in Sydney CBD by a developmental paediatrician when she was about 10 years of age. She said she was diagnosed with attention deficient hyperactivity disorder. She was required to take Methylphenidate (Ritalin) 10mg one tablet three times per day. She said she would have her name called over the school public address system to attend the “office”, to be supervised whilst having her middle of the day medication. She described many years of feeling stigmatised by this process during her school years. She was the only girl in the school who was required to proceed through this process. On leaving school she did not continue Methylphenidate.

After school Ms Zoric trained and had a successful hairdressing career. She was able to work in this industry successfully without the need for medication to treat her attention deficit hyperactivity disorder. She worked in the industry for about 20 years.

Ms Zoric said that during her teenage and early adulthood, she had used Ecstasy and Cocaine at festivals. She said that she did not continue the use of these substances after she meet the father of her children at 21 years of age. She planned to have children and wanted the experience of motherhood to be successful. At the time of the examination the worker had two children aged 11 and 12. They would spend about half of their time with their father.

Ms Zoric said her relationship with the father of her children was frequently domestically violent. The worker said as part of her court assessment to have access to her children she was required to have repeated hair follicle testing to exclude any use of illicit substances. The worker reported all three tests returned a negative result.

Ms Zoric said she drank between one to two bottles of wine to induce sleep most nights. She vaped about 3 x 2000 inhalation devices each week. She believed the vapes did have nicotine in the mixture she inhaled. She said that she had not planned to cease vaping.

Ms Zoric had been charged for a breach of an apprehended violence order. The worker reported having no memory of the event. She was diagnosed with a dissociative identity disorder by Mr Albassit a psychologist who wrote a report to the court in relation to Ms Zoric’s court proceedings following her breech of an apprehended violence order taken out by her ex-husband to protect him and the children. Ms Zoric was in remand at the Silverwater complex for about 2 months in mid-2021. Ms Zoric reported that the father of her children then permanently separated from her. The children were in his care until child access was resolved by the Family Court. Ms Zoric never reoffended. Ms Zoric did not demonstrate any dissociative symptoms during the examination. The diagnosis of dissociative identity disorder was only made by Mr Albassit. In relation to the worker’s offending, she said she was in a dissociated state during this incident, and she had no memory of the event.

Prior to commencing work as a teacher for this employer, the worker was provided with a scholarship. She completed a double degree whilst on the scholarship. She graduated with a Bachelor of Special Education and a Bachelor of Behavioural Therapy.

Employment as a teacher

Ms Zoric reported that she was frequently assaulted, hit and attacked by the behaviourally disorganised students in her class. The claimant reported that she was isolated and alone when these attacks occurred. She had made many reports to the senior principal and leadership group at the school. She felt that she was not assisted by senior principal and leadership group at the school. She said she developed a severely depressed mood and that she attended her local general practitioner. She was assessed and diagnosed with various psychiatric conditions by both her treating psychiatrist and independent psychiatric examiners. The worker’s condition was noted to fluctuate with the condition not stabilising prior to the examination. The conditions in the medication record that have been cited as possible diagnostic conditions related to the primary psychological injury included:

·Chronic Persistent Adjustment Disorder with anxiety
·Attention Deficit Hyperactivity Disorder
·Chronic Major Depressive Disorder with anxiety
·Substance Abuse Disorder (alcohol)
·Dissociative Identity Disorder
·Complex Posttraumatic Stress Disorder
·Borderline Personality Disorder and
·Major Depressive Disorder

Ms Zoric reported that she was reported to the NSW Government child welfare officer. She then became too depressed in her mood to work as a teacher. She was unable to work as a teacher. She left her role as a teacher. Her NSW Department of Education Teacher’s number was cancelled.

Additional history since the original Medical Assessment Certificate
Ms Zoric reported that the Family Court granted her access to her children. The restoration of access to her children was reported by the claimant as having markedly improved her mood as well as her mental health significantly. She was suffering from major derpssive disorder and was prescribed Fluoxetine 20mg, three capsules (60mg) daily. She decided to reduce her antidepressant medication Fluoxetine to 20mg daily because of her perceived improvement in her psychological symptoms including improvement in her depressed mood. She provided part-time care to her children.
Ms Zoric in 2023 was rehabilitated back to work using rehabilitation service that assisted her with finding employment. She was able to return to fulltime hours of work. She relied on her second degree in behavioural therapy to apply for and start working as a behavioural therapy provider. She would provide behavioural therapy to disabled children and their families.
Ms Zoric was employed for about one month. She was unable to work without the deterioration in her depressed mood. She had hoped that return to work would sustain her menta state. She experienced that the return to work failed and her depressed mood became more severe. The increased severity of her depressed mood was in keeping with the documents provided by other assessors who had noted the worker’s mental state having “wax and waned” since the loss of the worker’s initial employment from the employer.
Ms Zoric’s fitness to work rapidly deteriorated in her new employment. The worker had never previously worked as a behavioural therapy provider. The severity of her major depressive disorder rapidly deteriorated and she ceased work as a behavioural therapist because of the deterioration of her mental state and the increase him the severity of her depressed mood. She said she had failed this return-to-work trial and had not worked since.
Ms Zoric said that in February of 2024 she was at the lowest she had ever been in her depressed mood. She said she had increased suicidal thoughts without plans to act. She increased her use of wine to induce sleep. She reported that sleep was a primary concern for her. She used alcohol to sleep. She increased her Fluoxetine to 40 mg, but not 60 mg as she was taking in 2023.
Ms Zoric’s treating psychiatrist Dr Lim in his report forwarded in the late documents provided advice that should the worker reduce her medication, she was likely to deteriorate in her functional capacity. The prognostic advice of Dr Lim had become clinically apparent at the time of this examination.
Ms Zoric had her Vyvanse increased from 50 to 70 mg daily. Vyvanse is a first line treatment for attention deficit hyperactivity disorder and not major depressive disorder. The increase of a stimulant medication to augment a sub-therapeutic does of evidence-based antidepressant medication is unlikely to be able to successfully treat increased symptoms of major depressive disorder in lieu of effective first line antidepressant treatment.
Ms Zoric also had her Clonidine increased to 300mcg daily. Clonidine is a second-line augmentation strategy for attention deficit disorder and is not an eveiodenced based treatment for major derpssive disorder. It may also be prescribed for reducing symptoms associated with autonomic arousal, that may include hypervigilance and nightmares.
The severity of the worker’s major depressive disorder had not improved since the changes in her pharmacotherapy.
Findings on clinical examination
Current Symptoms
Ms Zoric at examination demonstrated and reported the following symptoms. She reported increased irritability and agitation. She spoke about her inability to establish and sustain trust in others. She described low energy and loss of interest in playing and sharing time with her daughters. She reported that she was isolated and alone for long periods. Whilst alone she would not cook regular meals nor maintain her personal hygiene. She was able to live independently and care for her children without assistance.
Ms Zoric’s said she was too low in her energy to attempt to return to her job searching. She reported she was not interested in her future career. She would become quickly irritated and have angry outbursts when responding to questions that involved unhappy and upsetting memories of the bullying and harassment she experienced whilst employed with this employer.
Ms Zoric’s mental state examination was as follows:
Ms Zoric presented as a dishevelled and irritable woman with unwashed and unbrushed hair. She would have angry outbursts during the assessment when remembering unhappy and distressing memories. She spoke in a loud voice when angry. She was provided time and reassurance which enabled her to settle. Rapport was difficult to establish and maintain. When rapport was lost, the assessors provided the worker with time to settle and use her relaxation and cognitive skills prior to proceeding with the examination.
Ms Zoric spoke about her inability to trust others. Ms Zoric reported that she had a depressed mood most days, she had frequent intrusive and distressing thoughts of death, dying and suicide. She did not have suicidal intent or thoughts of harming others. She had depressive rumination of hopelessness and worthlessness. She was insightful into her condition. Her judgment was fair. She did not have psychotic symptoms or delusional ideas. She did not report melancholia.
Ms Zoric’s mental state had deteriorated after the reduction in Fluoxetine from 60 mg daily. Whilst the worker had increased her dose of antidepressant to 40mg daily it was still below the previously clinically demonstrated higher therapeutic dose of Fluoxetine 60mg daily. Her presentation was consistent with the documents that reported clinically significant fluctuations in her mental state over time when assessed by various clinicians.
The severity of Ms Zoric’s alcohol use disorder was more severe on her self-report at the time of this assessment. She had relapsed between the initial MAC and the re-examination. A relapse in hazardous alcohol use, is clinically known to cause further deterioration in the worker’s major depressive disorder. The capacity for the worker to reach maximum medical improvement whilst consuming 1 – 2 bottles of wine per night is unlikely.
The finding of reduced use of the antidepressant Fluoxetine from 60mg daily to 20mg before increasing again to 40mg by the worker at examination could explain the deterioration of her depressed mood which has been further aggravated by her relapse of alcohol use disorder.
Treatment
Ms Zoric reported that she would attend her psychiatrist about once every six months. The report by Dr Lim forwarded with late documents confirms no greater frequency of attendance for psychiatric treatment.
Ms Zoric reported that she was using regular psychological support from a domestic violence counselling service. She said she could not afford treatment with a clinical psychologist. She described her circumstances remain poor.

Diagnosis
Ms Zoric provided a complex history prior to the onset of the primary psychological injury. The claimant reported that she was in a domestically violent relationship. The claimant reported she was arrested and held on remand for two months.
Ms Zoric stated she had no memory of the event that resulted in her arrest and subsquent court proceedings. The documents state she did engage in a violent act towards her now ex-partner and father of her children.
Ms Zoric did provide the outcome of her family law court case. She had access to her two children about 50% of the time.
Ms Zoric continues to live independently. She cares for her two children part time. The relationship between her and her children is strained as they do not play games or interact with the worker. The claimant drinks about one to two bottles of wine per night. She was aware that this consumption of alcohol could cause her depression to become worse. She explained she drank alcohol to induce sleep.
Ms Zoric does not meet DSM-5-TR diagnostic criteria for dissociative identity disorder at the time of the examination. She did not demonstrate any dissociative symptoms at the time of the examination. The duration of the examination was for about 100 minutes. The progress was slow due to the worker’s depressive symptoms. She did become distressed whilst reporting her symptoms associated with this primary psychological injury. The Medical Assessors discussed the clinical finding after the examination. The Medical Assessors agreed that the expected dissociative symptoms that should have clinically presented for the confirmation of a diagnosis of dissociative identify disorder were clinically absent at the examination. The duration of the examination was sufficient to enable a full psychiatric assessment. For these reasons, the Medical Assessors did not diagnose the worker as suffering from Dissociative Identify Disorder.
The Medical Assessors confirmed the worker did have a history of being in a domestic violence relationship. She did not provide a pre-existing history of complex posttraumatic stress disorder. The Medical Assessors were aware that not all people who have experienced a domestic violent relationship will develop complex posttraumatic stress disorder or posttraumatic stress disorder.
Ms Zoric’s current diagnoses as a result of the psychological injury are major depressive disorder with alcohol use disorder. The severity of the worker’s major depressive disorder had fluctuated from mild severity whilst she attempted to return to work and after to she had access to her children returned to severe when her depressed mood had deteriorated to the worse her depressed mood have ever been during February of 2024. At the time of this re-examination the claimant’s major depressive disorder had remained significantly worse than previously documented by other assessors. The worker’s mental state had not stabilised or reached maximum medical improvement. At the time of the re-assessment it was not clear that the fluctuation in the claimant’s condition would be less than 3% whole person impairment within the next 12 months. For these reasons the worker’s primary psychological injury was assessed as not having reached maximum medical improvement.
Ms Zoric did have a pre-existing long history of attention deficit hyperactivity disorder that was initially treated as a child during her school education. The treatment of this disorder resulted in the introduction of a maximum dose of Vyvanse 70mg with the use of adjunctive Clonidine 300mcg. Whilst these treatment for the pre-existing condition have occurred recently without significant change in the worker’s primary psychological injury. This clinical finding is consistent with the evidenced base for these conditions.
The diagnosis of posttraumatic stress disorder was not made. The evidence base in relation to trauma demonstrates that the second most common presentation for people who have experienced trauma is major depressive disorder with or without a substance use disorder (alcohol). Alcohol use disorder with major depressive disorder is a common clinically presentation in people who have not stabilised in their mental state. Stabilisation of this primary psychological injury (major depressive disorder with alcohol use disorder) in these circumstances is unlikely. Treatment of major depressive disorder and alcohol use disorder is essential prior to the stabilisation of the worker’s condition.
Conclusion
Ms Zoric has a complex psychological presentation. She suffers from a pre-existing long standing diagnosis of attention deficit hyperactivity disorder. This condition was treated by Dr Lim prior to the onset of this primary psychological injury. Dr Lim also treated Ms Zoric’s primary psychological injury.
Ms Zoric mental state examination demonstrated significant clinical deterioration since the therapeutic antidepressant medication dose of Fluoxetine 60mg daily to 20mg daily and then increased again to 40mg daily.
Ms Zoric had a relapse in her alcohol use disorder with her increasing her consumption of alcohol to a hazardous level of between 1 to 2 bottles of wine per night with the intent of inducing sleep. The use of alcohol at hazardous levels is likely to further aggravate the worker’s primary psychological injury and further deteriorate her functional capacity as presented at the time of this re-examination
Ms Zoric reported a significant deterioration in her level of general functioning since her work trial in February 2024. She was able to complete eLearning on Vyvanse (which she has taken consistently since 2013 at various dosages), but reported her concentration was extremely poor now to attempt any rehabilitation like she had in 2023. She confirmed engagement in various social and recreational activities, playing video games and eating out with her friends as noted in the previous MAC, but relinquished these since her psychological decline in early 2024.
Ms Zoric’s fluctuations in level of functioning is clinically significant and would be more than 3% whole person impariment. As identified by Dr Lim, any reduction in pharmacotherapy would likely cause deterioration in her functional capacity. The reduction of Fluoxetine from a high dose to a lower dose is clinically known to increase the risk of relapse of major depressive disorder symptoms. Dr Lim in his report forwarded in the late documents, documented the risk to Ms Zoric should reduction in medication, including the evidence-based Fluoxetine for major depressive disorder occur.
The Medical Assessors are in agreement that Ms Zoric’s primary psychological injury has not reached maximum medical improvement, as the worker reported that her major depressive disorder was at its lowest since reducing her antidepressant medication without any return to the prior less severe symptoms of major depressive disorder when the therapeutic prescribed dosage of Fluoxetine 60mg daily was been used.
The Medical Assessors are in agreement that Ms Zoric’s primary psychological injury is likely to reach maximum medical improvement within the next 12 months from the date of this examination.

Signed: Medical Assessor Michael Hong and Medical Assessor John Baker

[2024] NSWPICMP 756

4 November 2024