Zoric v Secretary, Department of Education

DETERMINATION OF APPEAL PANEL
CITATION:	Zoric v Secretary, Department of Education [2023] NSWPICMP 220
APPELLANT:	Venessa Zoric
RESPONDENT:	Secretary, Department of Education
Appeal Panel
MEMBER:	Deborah Moore
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Douglas Andrews
DATE OF DECISION:	24 May 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; the appellant submitted that the Medical Assessor erred in failing to make any allowance for the effects of treatment, and applied inconsistent reasoning with respect to the deduction he made pursuant to section 323; Panel considered all of the evidence; Panel concluded that there was no evidence to support any substantial improvement in the appellant’s condition such that there should be no allowance for the effects of treatment; Panel agreed however that the deduction made by the Medical Assessor was excessive and that a 1/10^th deduction was consistent with the evidence; Held – MAC revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 3 February 2023 Venessa Zoric (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Graham Blom, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on
10 January 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The 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).

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, the Panel is satisfied that we have sufficient evidence before us to enable us to determine this appeal.

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.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor erred in failing to make any allowance for the effects of treatment, and applied inconsistent reasoning with respect to the deduction he made pursuant to s 323 of the 1998 Act.
In reply, the respondent submits that no errors were made.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. 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.
The appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychiatric/psychological injury resulting from a date of injury of 19 September 2020.
The Medical Assessor obtained the following history:
“Ms Zorić completed her Batchelor of Teaching Degree in 2017 and worked for about four months as a provisional Teacher at Glenfield Public School (GPS) till the end of 2017. In 2018 she began working at Lansvale East Public School. From very early on in her time at Lansvale Public School, she said she was bullied and harassed by another teacher. She complained to the Principal on multiple occasions but felt that there was no adequate or reasonable response to her complaints. Because she was finding the situation so difficult, she was transferred back to Glenfield Park School at the end of the third term, where she worked the final term.
In 2019 she was moved to a substantive position at Ajuga School for Special Purposes. She found this experience extremely difficult. Ajuga is a school for children with behavioural and intellectual disturbances and they proved extremely difficult for
Ms Zorić to manage. She said she was assaulted on multiple occasions by students. The assaults were both verbal and on occasions physical. Moreover, she found the disciplinary policies at the school problematical as she felt that there was no way to discipline children who were behaving very badly, including violently. She felt powerless and helpless, and this was associated with feelings of anxiety, difficulty sleeping and a fear that she was going to fail as a teacher. She was also increasingly fearful that she might be seriously injured. As her time at Ajuga continued her levels of distress increased and were accompanied with increasing feelings of guilt and a reduction in her mood.
Ms Zorić had been consulting a psychiatrist for treatment of Attention Deficit/Hyperactivity Disorder (ADHD) for many years. Early in February 2019 she consulted her psychiatrist, Dr Lim for her increasing anxiety and distress. He diagnosed an Adjustment Disorder with depressed mood and anxiety and initiated the antidepressant medication, Fluoxetine at a dose of 20mg/day. He also prescribed Diazepam (a benzodiazepine sedative) at a dose of 5-10mg for use as required for anxiety. Ms Zorić already had been taking Lisdexamphetamine (for ADHD) at a dose of 50mg/day for some years and this was increased to a dose of 70mg/day. Despite these medication adjustments however Ms Zorić’s symptoms deteriorated throughout 2019. She described increasing anxiety difficulties with sleep. This gradually led to the development of depressive symptoms, and she also became increasingly withdrawn and avoidant. She was increasingly fearful of being attacked by the children not just in school but possibly outside of the school. As a result of her increasing symptoms her relationships at home deteriorated. Ms Zorić has two children and she found that she increasingly struggled with their management. She also began to experience significant conflict with her husband whom she felt did not support her and did not understand the difficulties of her situation at school. This further exacerbated her overall sense of feeling overwhelmed, helpless and unsupported. The conflict with her husband deteriorated and around September 2019, he assaulted her. He was charged with assault but subsequently Ms Zorić said that she withdrew the charges because she said her husband intimidated and threatened her. Her symptoms continued to deteriorate, and she was increasingly struggling both at school and at home. In the last term of 2019, as a result of a deterioration in her symptoms and her incapacity to gain support from the management at Ajuga School she was again transferred to Glenfield Park School. She completed her school year working at Glenfield Park School in 2019 and continued working there in 2020.
The situation at Ajuga School was made worse by the fact that in her second term there a series of complaints were made to the Employee Performance and Conduct directorate (EPAC). An investigation was initiated, and this continued throughout 2019 till early 2020. The impact of this drawn-out investigation further added to Ms Zorić’s overall stress and feelings that she was failing to meet her own and others’ expectations. It contributed further to her feelings of anxiety, guilt and distress and exacerbated her sleep disturbance and irritability. After her transfer to GPS Ms Zorić said that her symptoms somewhat improved although she remained traumatised, anxious and distressed about what had happened at the Ajuga School. She continued to have disturbed sleep and experienced nightmares on occasions.
The situation deteriorated further in May 2020 when the outcome of the EPAC investigation was finally released. There were several charges - most of these were found not to be sustained however a few were sustained and as a result it was judged that Ms Zorić should be supervised further through a monitoring program, over the next twelve months. The monitoring program was to include assessments of her performance each term. These findings and particularly the institution of the monitoring program led to a substantial increase in Ms Zorić’s symptoms. She became increasingly anxious, her feelings of failure and guilt increased, and her sleep disturbance worsened. She began drinking alcohol to deal with her anxiety. Initially her consumption was not at an abuse level, but she gradually increased her intake so that she was drinking approximately 8-9 standard drinks/day (1 bottle of red wine), every day. She became increasingly distressed particularly at the fact that she felt unsupported and said that she became “paranoid”. When I asked her what she meant by this, she said that she felt persecuted ‘as though the department was out to get me’. Because of her deteriorating symptoms her relationships at home further deteriorated and she struggled to manage her children which resulted in increased guilt. She became more withdrawn and avoidant. Her mood dropped. As well during her time at GPS a school, which also dealt with behavioural students, there was an occasion when she had to be locked in a room with behaviourally disturbed children and she was increasingly frightened of being assaulted.
Around August 2020 her grandmother died. This caused further significant distress for Ms Zorić. Ms Zorić described her grandmother as “a surrogate mother”. As a child, she said she had witnessed considerable conflict between her parents as well as her father being violent towards her mother and also regularly threatening and being violent towards her. She often escaped to her grandmother’s and spent a considerable amount of time with her grandmother during her upbringing. As a result, her death, even though it had followed a chronic illness, led to a significant deterioration in Ms Zorić’s feelings of distress and an increase in her overall depressive symptomatology. Her alcohol intake also increased and the conflict with her husband worsened. She continued to feel guilty that she was struggling to manage her children.
The situation became so difficult for her that she approached her General Practitioner to have time off. She took time off work under Workcover in August 2020. She returned to work again in term 4, but only briefly. The situation was further exacerbation by the fact that she received a negative monitoring report which she felt was unfair and which led to another deterioration in his symptoms. She attended her psychiatrist and because of the severity of symptoms was admitted to The Hills Clinic in early 2021. She spent three weeks undertaking an inpatient program there, based around dialectical behaviour therapy. Her Fluoxetine was increased to 40mg/day (in fact she had ceased her Fluoxetine for at least a period during 2020) and she was initiated on the antipsychotic sedative medication Quetiapine at a dose of 25-50mg/night. She also continued the ‘as required’ Diazepam 5-10mg.
Following her discharge from The Hills Clinic she undertook a three-month dialectic behavioural therapy/cognitive behavioural therapy (DBT/CBT) outpatient program one day/week. After leaving hospital she said that she felt ‘strong enough’ to seek a separation from her husband. He however resisted this and again threatened her with loss of access to their children. Despite his threats she went to live in a small flat and her children stayed with her husband. She felt guilty and distressed by this. She did not return to teaching in 2021. Even though she was now separated from the stress of the risk of assault at school and the sense of being persecuted by what she felt was excessive monitoring, nevertheless her symptoms failed to improve as she felt extremely distressed and anxious about being separated from her children as well as enraged at her husband’s unwillingness to in any way support her or assist her. She experienced him as “toxic” because of his using the access to their children as a lever against her. The situation was further complicated in that she had been informed that another EPAC investigation, related to complaints about treatment of a child in 2020, was being initiated. She felt stunned and blindsided by this and again felt that it was unreasonable. She has not found out the result of that investigation, she said.
As 2021 begun she described how she continued to feel angry and frustrated at not having complete access to her children. She grieved the loss of her family and her capacity to work. She said she felt completely overwhelmed. She described being repetitive tearful, anxious and increasingly hypervigilant. She said she felt persecuted by the Department and by her husband. She said her appetite during 2020 through to 2021 significantly reduced and she lost a considerable amount of weight. She said her sleep remained markedly disturbed, and she felt fatigued and amotivated.
In late April, 2021 her husband left the house so that she could stay there and care for the children over a weekend, she was so angry about her circumstances that she decided to change the locks on the house while her husband was away. When he returned, he became angry and violent and she said he broke into the premises, and subsequently obtained an AVO and she was arrested briefly. She returned to her own home however on Mother’s Day she again had access to the children. When she arrived, her husband was still in the house at this time, despite the AVO, although her memory of events of this day she said were ‘non-existent’. She described having an experience of complete amnesia of the events, but, from police records it is clear that she assaulted her husband, biting him on the ear while he was asleep. Subsequently to this she was arrested and placed on remand in Silverwater Prison and later Emu Plains Prison. She spent a total of about two months in prison. While on remand, she was assessed by a forensic psychologist, Mr Sam Albassit. Mr Albassit made a diagnosis of Complex Post Traumatic Stress Disorder and Dissociative Identity Disorder. A Court report was also submitted by her psychiatrist, Dr Lim in which he stated he had diagnosed her, at her initial assessment in 2013 with Complex Post Traumatic Stress Disorder, Borderline Personality Disorder and polysubstance abuse in remission.
As a result of these reports, she said that the charges against her were eventually dismissed due to psychiatric impairment. After she left prison Ms Zorić continued to consult Mr Albassit, psychologist on a “frequent basis”, approximately every two weeks. She has also continued to consult her psychiatrist, Dr Lim on a regular basis. Her medication has been increased and generally she said that her symptoms overall improved towards the end of 2021 so that her Fluoxetine was reduced to 20mg/day and she was not using any Diazepam or Quetiapine. Generally, she said she felt more able to cope, her appetite improved gradually, and she regained some weight. Her sleep also improved, and she felt less depressed and anxious. The situation also was helped by the fact that her family of origin, that is her mother, father and two sisters who had been quite distant and not understanding until the point where she was imprisoned, now became more supportive and concerned. There also was less conflict with her ex-husband.
In March of this year her Workers Compensation payments were ceased, and she returned to work at Glenfield Park School working in the office. In fact, she said that the work that she was doing was actually undertaking various internet based, Department of Education training programs. She said that she was not doing any actual administrative duties. She was attending work, again at GPS, in the administrative area, five days/week, six hours/day. However, with the return to work, even though she was not actually dealing face to face with students her overall anxiety began to increase. The Glenfield Public School is only a few hundred metres away from Ajuga Public School and she had to repetitively pass the Ajuga school going to work. She was fearful of being verbally assaulted or attacked by students from the school.
In late June 2022 she was outside the office of the Glenfield Public School when several of the students from Ajuga School ran towards her. She did not know what their intent was, but she became overwhelmed with panic and had to run to her car to get away. She felt anxious and “futile”. By this she meant that she felt no matter what she did she continued to be confronted with anxiety provoking and distressing situations.
She consulted her psychiatrist who increased her Fluoxetine from 20mg/day back to 60mg/day, over a relatively brief period. He also re-introduced Quetiapine. Despite this treatment she continues to feel somewhat anxious, distressed and has disturbed sleep. She has difficulties with concentration and focus and feels generally that she is not coping as well. She took approximately six weeks away from work and during this time she said that no one from the department contacted her. She had been working in an isolated office and she believed that no one knew she wasn’t there as she was not subject to any significant supervision. Eventually the department did contact her and offered her the opportunity to work from home. She has taken this opportunity and worked from home doing education modules for about fifteen hours/week using her own computer. She said she feels unable to return to work at the Department of Education due to her anxiety. She also feels sedated by the Quetiapine that she needs to take. She complains of ongoing feelings of avoidance/withdrawal and struggles with concentration. She is unclear as to what her future with the department is but believes that she cannot return there. She is also under some stress because she is planning to move out of her current residence to live with her sister for emotional support and assistance.”
Present treatment was noted as follows:
“Ms Zorić continues to consult Dr Lim approximately every month. She consults him via video conference. She is currently prescribed the following medications:
- Fluoxetine – 60mg/day
- Lisdexamphetamine – 70mg/day
- Quetiapine – 25mg/night
- Diazepam – 5-20mg as required.
She says she uses at least some Diazepam on most days.
She consults Mr Sam Albassit on a fortnightly basis again via video conferencing.
She also consults her current General Practitioner, Dr Kako approximately every two weeks for support and review.”

The Medical Assessor then set out details of her present symptoms as follows:
“Ms Zorić said that she continues to feel significant feelings of grief and distress about the loss of her ability to teach, her marital separation, the separation from her children and her overall sense of injustice and unfairness at what has happened to her. She said she generally feels anxious throughout the day, but this becomes much worse when she leaves the house. Sometimes she says that she experiences panic when she leaves the house. She has also experienced a reduction in her motivation and generally has reduced drive. She said she has been struggling with her self-care particularly looking after her small flat and managing her personal hygiene. She struggles with her concentration and has difficulties in persisting.
However, she continues to do her E-Learning approximately fifteen hours/week. She said her sleep has improved with the Quetiapine but that she does feel somewhat sedated during the day.
She continues to feel irritable associated with her anxiety. She said that she experiences ongoing guilt and shame about all that has happened and describes a sense of loss of purpose. Despite the feelings of hopelessness, guilt and some worthlessness she has never been suicidal. She has substantially reduced her alcohol intake. This occurred following her imprisonment. She does not now use illicit drugs. During her illness her intake of tobacco has increased, and she now smokes approximately twenty cigarettes/day. Prior to her injury she only smoked sparingly.”
The Medical Assessor then turned to consider “Details of any previous or subsequent accidents, injuries or condition” and said:
“Ms Zorić has an extremely complex and difficult prior history. Her childhood was a very difficult one. Her parents were violent to each other and sometimes significantly so. She describes her father as strict and overbearing and at times violent towards her. She feels that she was treated differently to her sisters in that she was picked on more than them. Due to the difficult nature of the situation at home she spent considerable time with her grandmother. When I asked her to try to clarify the amount of time, she said at least half of her childhood was spent with her grandmother. She said she spent most school holidays with her grandmother and whenever there was significant violence at home she would go there. She denied any psychological treatment during her childhood. Her family was not at all psychologically minded and it would appear that so there was very little awareness of, or interest in, her emotional state. She said that she dealt with the violence and her distress about it by ‘shutting down’ and ‘normalising’ the situation.
Ms Zorić left home at the age of 21 and at this time she developed significant symptomatology. She said she engaged in lots of high-risk behaviour particularly the use of a variety of drugs and alcohol. She also engaged in various forms of selfharm such as pinching and punching herself. This was associated with at times obsessive perfectionistic behaviour and a repetitive guilty feeling that she had to perform to meet the perfectionistic demands she set herself. Her drug and alcohol abuse continued for at least four or five years possibly longer. It is not clear why the drug and alcohol abuse stopped, or indeed to what extent it ceased. Ms Zorić’s recall of this period was very vague. She said that she met her current husband when she was about 21 years old. They had, what she described, as a ‘casual relationship’ for about seven years. She denied other sexual relationships during this time but said she just wanted to “have fun”. Her husband and she married when she was about 28 years old. She said her husband is Croatian whereas she came from an Italian background. She described her husband as demanding and that he insisted she be the type of wife he expected -she attributed this to their cultural differences. She described him as demanding and controlling and this played into her own perfectionism and high selfexpectations so that she felt she had to meet or exceed his demands. In retrospect she feels that her husband’s behaviour was unreasonable and even abusive, but she said that like the period of her childhood she tended to normalise the situation and shut down her emotional response. Following the assault of her husband and her imprisonment a report was issued by her treating psychiatrist, as I have previously mentioned. He diagnosed her with complex Post Traumatic Stress Disorder, Borderline Personality Disorder and polysubstance abuse in remission. He specifically stated that these diagnoses were made in 2013 when he also diagnosed her with ADHD. I note that in his report to the insurer these other diagnoses were not mentioned. She was also assessed by a Forensic Psychologist at that time, Mr Sam Albassit whom she continues to see who also diagnosed her with complex Post Traumatic Stress Disorder and Dissociative Identity Disorder. Whatever the specifics of the diagnosis it is clear that Ms Zorić has suffered throughout most of her adult life, to varying degrees, disorder associated with effects of significant childhood trauma and separation.
Ms Zorić was diagnosed with ADHD when she was approximately twelve or thirteen. This was related to behavioural dysregulation and difficulties with concentration and focus, at school. She was initiated on Methylphenidate for treatment of this and remained on this until she finished school in Year 12. She said she did not like the impact of the medication because it caused her side effects and so sometimes, she did not use it but she felt it certainly improved her concentration and capacity to focus. There appears to have been no awareness that her so called ADHD symptoms as a child possibly may have reflected behavioural disturbance associated with the trauma she was experiencing. When she consulted Dr Lim in 2013 ostensibly it was for treatment of her ADHD again. At that time, she had been attempting her Batchelor of Teaching and said that she was struggling with concentration and so began after trials of various medications until she was initiated on Lisdexamphetamine. She has continued on this since. She believes that it assists her focus and concentration.
In determining whether all of the above amounts to simply a vulnerability or more properly a pre-existing disorder I have taken into account both the history that I have taken as well as the reports of Dr Lim and Mr Albassit. The diagnosis of complex PTSD (which is not actually a DSM-V diagnosis but is in ICD 11) relates to the impacts of childhood trauma. It is often associated with dissociative symptomatology which is what I believe (as did the Court) Ms Zorić experienced at the time she assaulted her husband. It is closely related to some forms of Borderline Personality Disorder (the DSM 5 diagnosis that most closely resembles Complex PTSD) which also has often a developmental traumatic basis to it. These diagnoses are usually made over many sessions of review so hence my need to rely on the report particularly of her treating psychiatrist. Nevertheless, there is a clear and well document history of significant family violence and childhood separation from parents. There is a history of impulsive, self-harming and risk-taking behaviour in the worker’s early twenties lasting for at least four or five years, possibly more which was associated with substantial polysubstance abuse. There is also a history of the patient being vulnerable to feeling persecuted and unsupported even prior to her injury, as well as responding to this with somewhat frantic efforts to meet her internal high standards. Throughout her description of her current symptoms there is a strong emphasis on her need for support reflecting another element of this symptomatology, that is feelings of abandonment and a desperate need to undo this. For all of these reasons, I believe that Ms Zorić suffered from long standing pre-existing disorder(s) before her injury at the Education Department. I believe this constitutes more than a vulnerability and meets the legal requirements of a pre-existing disorder.
Therefore, a deduction is warranted. The death of Ms Zorić’s grandmother clearly constitutes a subsequent injury and was associated with a clear deterioration in her symptoms and impairment for some time afterwards. However, I believe the impact of this injury and its associated impairment has now resolved and so no longer contributes to current impairment.”
The Medical Assessor then set out details of Ms Zoric’s general health and work history and the impact of her injuries on her activities of daily living (ADL’s) before setting out details of his findings on examination as follows:
“Ms Zorić initially was anxious and somewhat withdrawn but as the interview progressed, she related increasingly warmly and engaged positively. There were significant difficulties with the use of the Teams application during the interview but she was able to navigate this with reasonable competence and coped with the change from the Teams app to the Facetime app.
She was tearful and anxious on occasions through the interview particularly when talking about issues related to the Department of Education as well as the period of extreme conflict with her husband. Throughout the interview she was very focused on her feeling of lack of support and feelings of abandonment by the Department of Education, various supervisors and her husband. This reflected to me long standing vulnerability to feelings of abandonment. She also clearly experienced difficulty in regulating her affective responses. She appeared distressed and anxious rather than formally depressed. She was not psychotic and specifically there was no evidence of delusions, hallucinations or formal thought disorder. There was no evidence of any dissociative phenomena during this interview.
Her concentration and persistence were moderately impaired particularly when it came to the chronology of events. She was quite chaotic in preventing her history and often it did not tally with her previous statements to the lawyers or other reports by her treating doctors. I do not believe at any time that this reflected dishonesty or an attempt to dissemble but rather reflected the degree of dysregulation, distress and anxiety that she experienced and the degree to which this disrupted her capacity to think clearly. Nevertheless, she was able to attend through what turned out to be a very prolonged interview (lasting approximately three hours in total) although several breaks were needed.”
The Medical Assessor then summarised the injuries and diagnoses as follows:
“Ms Zorić experienced bullying and harassment by a Teacher in her initial school placement. In a later school placement, she was assaulted both verbally and physically by several students. Throughout this time, she felt unsupported by her Supervisors. She also was subjected to an EPAC investigation which was drawn out and resulted in her feeling unsupported, unfairly treated and resulted in her experiencing greater anxiety and distress. After the findings of the EPAC investigation she was subjected to a monitoring program which she felt was intrusive, overwhelming and unfair. It resulted in a massive increase in her overall anxiety. Associated with the above there was very significant conflict and violence in her relationship with her husband resulting in the breakdown in the relationship. Also, her grandmother, who had been ‘a surrogate mother’ in her childhood died which further contributed to a deterioration in her symptoms.
Ms Zorić has had a wide range of appropriate treatments by her treating psychiatrist and psychologist and whilst her symptoms continue to fluctuate, I believe they are as stable as they are likely to be and there will not be a significant Whole Person Impairment change over the next twelve months.
Diagnostically Ms Zorić currently suffers from a chronic and persistent Adjustment Disorder. Normally Adjustment Disorders should cease within six months of the cessation of the stressor but there have been multiple exposures, the most recent being the difficulties that she experienced while working in the Administrative Department at GPS. Moreover, the triggers to her disorder are no longer merely the related to the impact of current external triggers but also relate, I believe, to her pre-existing disorder which has been significantly re-activated by her injury and subsequent events. Therefore, I think the diagnosis of Adjustment Disorder is still appropriate.
She also suffers from complex Post Traumatic Stress Disorder. This is not a DSM-V diagnosis - it is based on the work of Judith Herman and others at Harvard School. It is an ICD 11 diagnosis and I think adequately captures Ms Zorić’s very long fluctuating history of trauma-based symptomatology. While it is probable that this had become somewhat quiescent for some years prior to her injury it remained a feature of her overall personality response to stressors, particularly interpersonal stressors. Using DSM 5 diagnostic criteria, I agree with her treating psychiatrist that Borderline Personality would be the most appropriate equivalent diagnosis.
She has also suffered from a previous history of polysubstance abuse which had been in remission, but which recurred during her current symptomatology and unquestionably contributed to the severity of her overall symptoms and impairment. Currently she does not meet the criteria for a current Substance Abuse Disorder, (it is at the time of interview, again in remission) but it has I believe contributed significantly to her ongoing impairment particularly though its impact on her relationships. She remains vulnerable to a relapse of this disorder.”
The Medical Assessor assessed 15% WPI from which he deducted 25% in respect of
Ms Zoric’s pre-existing condition, a total of 11% WPI.
When commenting on her pre-existing condition, the Medical Assessor said:
“Ms Zorić has suffered from the impacts of complex Post Traumatic Stress Disorder/Borderline Personality and associated polysubstance abuse, related to both childhood abuse and significant periods of separation from her parents and also paradoxically from her grandmother when she was returned to her parents. She had significant symptoms during her twenties although these appear to have mostly resolved. Whilst her symptoms appear to have settled through much of her late twenties and early thirties, there was still evidence of the long term and ongoing impacts of these disorders – for instance the nature of her relationship with her husband and her tendency to a significant perfectionism and a driven need to succeed and to meet other’s needs, even if unreasonable. Nevertheless, she did not have active symptoms prior to the time of her injury but I believe a deduction is warranted.”
The Medical Assessor then turned to consider the other medical opinions and said:
“The Report of Dr Martin Allen dated 30th November 2020. Dr Allen makes a diagnosis of Adjustment Disorder with anxiety and depressed mood. He mentions that she has a childhood experience of trauma, but she was unwilling to discuss it with him. He also was aware of the existence of her ADHD but does not feel this has impacted her disorder. He does not undertake Whole Person Impairment rating.
The Report of Dr Risha Ristogi, dated 10 September 2021. Dr Ristogi makes a diagnosis of chronic persistent Adjustment Disorder. In his report, there is no mention of her imprisonment or the violence between herself and her husband. However, he does note their separation. He also does not appear to be aware of Ms Zorić’s episodes of substantial alcohol abuse during the time of her illness. He states that Ms Zorić’s developmental history was marked by ‘an emotionally abusive upbringing by her father and she has an estranged relationship with her father. She has a distant relationship with her mother. There was some domestic violence between her parents’. He does not provide any history of her considerable dysfunction in her twenties, nor does he mention the history of polysubstance abuse. He does not reflect on any impact of her childhood trauma effecting her later functioning. He also clearly did not have access to the report related to her imprisonment and I believe these deficits in his report have significantly impacted his Whole Person Impairment rating. Having said that I agree with most of his ratings except for her diagnosis of Class 3 for concentration and focus. She has in fact has been undertaking E-Learning courses and managing to focus. In his description he describes “moderate impairment as she feels tired and exhausted, struggles with even watching television and gets distracted with racing thoughts and cannot do complex tasks, struggles with comprehension and decision making. It is quite possible that she was not taking her Lisdexamphetamine at that point or was taking a lower dose because his descriptors suggest to me the impact of possible ADHD. In any case given her current capacity for concentration and persistence I think Class 2 is more appropriate. Dr Ristogi does not have a full history of her past symptomatology or of her treating psychiatrist’s diagnosis. Therefore, he does not make a deduction for a pre-existing disorder. I think this is incorrect and I believe that a deduction of 25% should be made reflecting the impact both of the Complex Post Traumatic Stress Disorder as well as the history of a prolonged period of polysubstance abuse.
The Reports of Dr Graham Vickery dated 28th January 2022 and subsequent report dated 27th June 2022. In both reports Dr Vickery believes there is no psychiatric diagnosis. I don’t think this is consistent with any of the documentation and certainly not consistent with my examination and I do not believe the situation has changed since he saw her. Consequently, he makes no assessment of Whole Person Impairment. I do not accept the conclusions of his reports.”
Turning firstly to the issue of an allowance for effects of treatment, the appellant submits as follows:
(a)    the Medical Assessor has not made the necessary allowance for the effects of treatment, or alternatively has not provided adequate reasons for not doing so;
(b)    clause 1.32 of the Guidelines provides as follows:
"Where the effective long-term treatment of an illness or injury results in apparent
substantial or total elimination of the Claimant's permanent impairment, but the
Claimant is likely to revert to the original degree of impairment if treatment is
withdrawn, the Assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart";
(c)    the Medical Assessor did not engage [in the] exercise required by the Guidelines, namely he does not consider whether the claimant's impairment would increase were her treatment withdrawn;
(d)    the Medical Assessor details on page 6 the appellant's current treatment: this is an extensive treatment regime;
(e)    it is conceded that despite the initiation of this treatment regime Ms Zoric's functioning has fluctuated at times since her initial injury: the history taken by the Medical Assessor does reflect an improvement in the appellant's condition, as a consequence of treatment;
(f)    the Medical Assessor accepts an improvement in her relationship with her husband as well as increased support from her sisters and parents;
(g)    the Medical Assessor also records that the conditions of complex post-traumatic stress disorder associated with polysubstance abuse disorder as well as substance abuse disorder (alcohol) are in remission;
(h)    an improvement in functioning is also reflected in the appellant's treating evidence. The appellant refers to the report of Dr Lim [who said]:
“Regular mental state examinations are conducted at each appointment. Ms Zoric displayed marked impairment in her psychosocial functioning at my reviews on
10/5/2021, 17/8/2021, 3/9/2021 in terms of interpersonal functioning, ability to
engage in any vocational pursuits and self -care. At my reviews on 12/10/2021 and 18/11/2021 her functioning was improved but still not able to engage in any vocational pursuit given her previous work- place psychological injury”;
(i)    the Medical Assessor ought to have allowed up to 3% for the effects of treatment, or alternatively provided reasons for not allowing an adjustment for the effects of treatment having regard to the following:
(i)the extensive treatment undertaken by the Appellant. As submitted above, the Medical Assessor does not appear to consider what would occur were this treatment withdrawn, and
(ii)the history taken by the Medical Assessor reflects the appellant's impairment has in some respects improved.

We accept the appellant’s submission that the Medical Assessor did not consider whether the appellant’s impairment would increase were her treatment withdrawn, as required by the Guidelines.
Having said that, our task is to determine if the Medical Assessor erred in failing to make any allowance for the effects of treatment based on the whole of the evidence.
To begin with, it is clear that Ms Zoric is undergoing an extensive treatment regime, both in terms of medication and consultations with Dr Lim in particular.
As her treating general practitioner, he is in a good position to note the effects of treatment which, as the appellant points out, he has done in documenting an improvement in her function.
Dr Lim concluded that her treatment regime had resulted in a substantial improvement in her condition.
However, although the appellant had improved to the extent that she was able to resume work in 2022, she again relapsed and required further treatment.
As the Medical Assessor noted:
“Diagnostically Ms Zorić currently suffers from a chronic and persistent Adjustment Disorder. Normally Adjustment Disorders should cease within six months of the cessation of the stressor but there have been multiple exposures, the most recent being the difficulties that she experienced while working in the Administrative Department at GPS.”
The appellant conceded that despite her treatment regime Ms Zoric's functioning has fluctuated at times since her initial injury: the history taken by the Medical Assessor does reflect an improvement in the appellant's condition, as a consequence of treatment.
However, an improvement per se is not sufficient to satisfy the requirements of the Guidelines. The requirement for making such an adjustment is not that “the appellant's impairment has in some respects improved” but rather that the treatment results in “apparent substantial or total elimination of the claimant’s permanent impairment”.
Obviously the elimination has not been total. “Substantial” in general terms means significant, considerable or large and we are not persuaded that Ms Zoric has demonstrated an elimination of her WPI that could meet the definition of “substantial”.
In our view, the evidence does not support such a finding. With such a significant permanent WPI still remaining despite this treatment this test is not met.
Notwithstanding that the Medical Assessor did not consider whether Ms Zoric is likely to revert to “the original degree of impairment if treatment is withdrawn”, we do not accept that he has erred in failing to make an allowance for the effects of treatment for the reasons stated above.
Turning next to the issue of the s 323 deduction, the appellant submits as follows:
(a)    a deduction of 25% is excessive, her pre-existing conditions being asymptomatic prior to the injury;
(b)    the Medical Assessor records the following:
"Ms Zoric has suffered from the impacts of complex post-traumatic disorder related to both childhood abuse and significant periods of separation from her parents .... Nevertheless, she did not have active symptoms prior to the time of her injury so I believe that the statutory deduction is warranted." (Emphasis added);
(c)    the delegate of the President will be aware that the 'statutory deduction' is shorthand for a 10% deduction;
(d)    At question 'b' also on page 14 the Medical Assessor records as follows:
"Were it not for the pre-existing disorder, I think it is inconceivable that her impairments and overall outcomes, particularly in her closest relationships would have been as damaging. A deduction for pre-existing disorder is warranted but the statutory deduction is insufficient. I believe a deduction of 25% is more appropriate due to the impacts of the pre-existing disorders in multiple areas of Ms Zoric's functioning", and
(e)    the reasoning of the Medical Assessor is therefore opaque in that it is not clear which conclusion he prefers. The reasons are internally inconsistent and would not permit a court to follow his path of reasoning.
We agree with the thrust of the appellant’s submissions for reasons that follow.
To begin with, we point out that the borderline personality disorder noted by the Medical Assessor is a condition that develops during the teenage years, and is unrelated to
Ms Zoric’s employment and work-place injury.
In considering the question of a deduction, the Medical Assessor said:
“Ms Zorić has suffered from the impacts of complex Post Traumatic Stress Disorder/Borderline Personality and associated polysubstance abuse, related to both childhood abuse and significant periods of separation from her parents and also paradoxically from her grandmother when she was returned to her parents. She had significant symptoms during her twenties although these appear to have mostly resolved. Whilst her symptoms appear to have settled through much of her late twenties and early thirties, there was still evidence of the long term and ongoing impacts of these disorders – for instance the nature of her relationship with her husband and her tendency to a significant perfectionism and a driven need to succeed and to meet other’s needs, even if unreasonable. Nevertheless, she did not have active symptoms prior to the time of her injury but I believe a deduction is warranted.”
The Medical Assessor also said:
“Ms Zorić has an extremely complex and difficult prior history. Her childhood was a very difficult one. Ms Zorić left home at the age of 21 and at this time she developed significant symptomatology. She said she engaged in lots of high-risk behaviour particularly the use of a variety of drugs and alcohol. She also engaged in various forms of selfharm such as pinching and punching herself. This was associated with at times obsessive perfectionistic behaviour and a repetitive guilty feeling that she had to perform to meet the perfectionistic demands she set herself. Her drug and alcohol abuse continued for at least four or five years possibly longer. It is not clear why the drug and alcohol abuse stopped, or indeed to what extent it ceased…”
The appellant was born in May 1982. She apparently left home at the age of 21, that is, in about 2003.
It was then some 15 years before symptoms began in the context of her work injury in 2018.
The Medical Assessor also noted that “Ms Zorić had been consulting a psychiatrist for treatment of Attention Deficit/Hyperactivity Disorder (ADHD) for many years”.
He added:
“She has also suffered from a previous history of polysubstance abuse which had been in remission, but which recurred during her current symptomatology and unquestionably contributed to the severity of her overall symptoms and impairment. Currently she does not meet the criteria for a current Substance Abuse Disorder, (it is at the time of interview, again in remission) but it has I believe contributed significantly to her ongoing impairment particularly though its impact on her relationships. She remains vulnerable to a relapse of this disorder.”
In our view, the Medical Assessor has focussed too heavily on the circumstances surrounding her condition in her 20’s. As he acknowledged, the substance abuse “had been in remission” and remained so at the time of his assessment.
We also note that despite her apparent ADHD, she was able to obtain employment as a teacher.
The Panel has had regard to the decision in Cole v Wenaline Pty Limited [2010] NSWSC 78, where Schmidt J set out the process a Medical Assessor is required to adopt in making a deduction for pre-existing conditions. In that matter, it was noted:
“For a deduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment…The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined.”
We do however accept that it is not necessary for a pre-existing condition to have been symptomatic prior to the subject injury in order to attract a deduction pursuant to s 323 of the 1998 Act; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254.
Having carefully considered both parties’ submissions, and the totality of the evidence we consider that a deduction is warranted, but we are satisfied that a one-tenth deduction is appropriate for the reasons outlined above.
For these reasons, the Appeal Panel has determined that the MAC issued on
10 January 2023 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 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)

1. Psychological/ Psychiatry

19/09/ 20

Chapter 11, Pages 49-56

AMA replaced Chapter 11

15%

1/10th

14%

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

14%

[2023] NSWPICMP 220

24 May 2023