DETERMINATION OF APPEAL PANEL	
	
CITATION:	BDV v Coles Supermarkets Australia Pty Ltd [2023] NSWPICMP 221	
		
APPELLANT:	BDV	
		
RESPONDENT:	Coles Supermarkets Australia Pty Ltd	
		
Appeal Panel		
		
MEMBER:	John Wynyard	
		
MEDICAL ASSESSOR:	Graham Blom	
		
MEDICAL ASSESSOR:	Michael Hong	
		
DATE OF DECISION:	24 May 2023	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against assessment of psychological injury of 12% whole person impairment; whether appellant’s dependency on methamphetamine relevant to the question of maximum medical improvement (MMI); Held – section 319 requires a medical dispute to be present; the medical experts retained by each party confirmed that MMI had been reached; accordingly, there was no dispute about MMI; Medical Assessment Certificate confirmed.   	

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 19 October 2022 BDV, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Sathish Dayalan, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 21 September 2022.
2.	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.
3.	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. 
4.	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.
5.	The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 
1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). 
RELEVANT FACTUAL BACKGROUND
6.	On 3 August 2022 a further amended referral was issued by the delegate of the President seeking a whole person impairment (WPI) assessment caused by psychological/psychiatric disorder in respect of an injury that was deemed to have occurred on 6 December 2019.
7.	Mr Kestemberg was employed by Coles Supermarkets Australia Pty Ltd (the respondent) as a baker and suffered his psychological injury when he was transferred from the Ingleburn store to Wattle Grove. 
8.	Mr Kestemberg made a suicide attempt at one stage and was an inpatient at Cumberland Hospital for four to six weeks. He was also incarcerated twice for his involvement with crystal methamphetamine, which he started using once he stopped work.
9.	The Medical Assessor assessed a 12% WPI.
PRELIMINARY REVIEW
10.	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.
11.	The appellant requested to be re-examined by a Medical Assessor who is a member of the Appeal Panel. For the reasons given below such a re-examination was not required.
EVIDENCE
Documentary evidence
12.	The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination. 
Medical Assessment Certificate
13.	The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision. 
SUBMISSIONS 
14.	Both parties made written submissions which have been considered by the Appeal Panel. 
FINDINGS AND REASONS 
15.	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. 
16.	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.
17.	The appellant alleged error by the MA in his alleged failure to consider whether maximum medical improvement had been reached.
The MAC
18.	After taking the history of the injury, the MA noted Mr Kestemberg’s prior history, which included an abusive childhood, suicide attempts when a teenager, and a diagnosis of ADHD in 2012.
19.	The Medical Assessor noted Mr Kestemberg’s assertion that he had not used crystal methamphetamine or other illicit drugs prior to his injury, and that his relationship of 15 years with his ex-partner had been good before the injury, after which time she had ended it.
20.	The Medical Assessor recorded:
“Present treatment: Mr Kestemberg was not currently receiving any treatment for his mental health. He acknowledged that he has “been self-medicating with crystal methamphetamine”. He was due to commence a detox program at Concord Hospital in a couple of weeks. He was also keen to see a general practitioner and get commenced on psychiatric medication. He was not sure what type of medication he needed.”
21.	The Medical Assessor noted Mr Kestemberg’s comment that:
“He described ongoing problems with concentration unless he used crystal methamphetamine when he was able to focus….”
22.	The Medical Assessor’s findings on examination included:
“There was no disorder in his thought form. Nil delusions were evident. He reported to have experienced auditory hallucinations in the context of using crystal methamphetamine but was able to recognise them as a symptom associated with his drug use. He presented with attention deficits during the assessment. He acknowledged that he suffered from anxiety and depressive symptoms. He was using illicit drugs to manage his symptoms and was not currently receiving any psychiatric treatment.”
23.	In his summary the Medical Assessor observed:
“Mr Kestemberg had probably developed an adjustment disorder with mixed and depressed mood following the work related events in conjunction with relationship difficulties as indicated in the independent medical examinations. The symptoms have been perpetuated by his use of illicit drugs and consequent incarcerations…”
24.	In the templated questions at [7] of the MAC the following appears:
“b. Have all body parts/systems stabilised/reached maximum medical improvement?
[Mr Kestemberg’s] psychiatric condition has reached maximum medical improvement given the chronicity of symptoms and attempted psychological and pharmacological treatment. Given his personality disorder, it may be challenging to engage him in consistent treatment.”
25.	The Medical Assessor considered the opinions of the medico-legal experts retained by each party.
SUBMISSIONS
26.	Mr Kestemberg submitted that the Medical Assessor had not provided adequate reasons for his assessment. We were referred to the well-known dicta of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak.
27.	It was submitted the Medical Assessor had not delineated “the extent to which the appellant worker’s functioning is dependant on his use of methamphetamine…”
28.	It was submitted that the Medical Assessor ought to have made that enquiry.
29.	The appellant also submitted that the Medical Assessor had erred in failing to address the question of maximum medical improvement. It was submitted that it was apparent that Mr Kestemberg was about to enter a detox program and the Medical Assessor noted that Mr Kestemberg was keen to see a general practitioner to commence psychiatric medication. 
30.	It was submitted that in light of that evidence it was incumbent on the Medical Assessor to provide “more fulsome reasons as to why the detox program was not expected to affect the stability of the worker’s condition.”
31.	It was submitted that the injustice to Mr Kestemberg was that his functioning was presently influenced by his reliance on crystal methamphetamine. It was submitted that if he detoxed from this substance then his functioning would reach its true level, without the overlay from his addiction.
Respondent’s submissions 
32.	The respondent noted the submissions and referred to paragraph 11.12 of the Guides. 
33.	The respondent submitted that it was insufficient for an appellant to just submit that a Medical Assessor ought to have considered certain factors to have been significant. It had to be established that the determination was such that another reasonable mind would not have come to the conclusion reached. We were referred to Glen William Parker v Select Civil Pty Limited.
34.	The respondent submitted that the Medical Assessor had carefully considered the examples in the PIRS table and had adequately set out the reasons for his findings.
35.	It was open to a Medical Assessor the respondent submitted, to take a relevant consideration into account but to dismiss it or give it little decisive weight. We were referred to Baxter v State of New South Wales as to the further submissions of Mr Kestemberg that adequate reasons had not been given. The respondent submitted that it was only necessary for the Medical Assessor to explain the actual path of reasoning in sufficient detail to enable a Court or Appeal Panel to determine whether there was an error in the findings. 
36.	The respondent submitted that the appellant had failed to identify a demonstrable error or the application of incorrect criteria.
DISCUSSION
37.	The appeal must be dismissed. Section 319 of the 1998 Act provides the definition of a medical dispute. It states:
“‘Medical dispute’ means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim-
(a) 	the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) 	the worker's fitness for employment,
(c) 	the degree of permanent impairment of the worker as a result of an injury,
(d) 	whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) 	the nature and extent of loss of hearing suffered by a worker,
(f)	whether impairment is permanent,
(g) 	whether the degree of permanent impairment of the injured worker is fully ascertainable.” 
38.	It can be seen that a dispute must be present for any of the above matters to be referred to a Medical Assessor for assessment.
39.	The dispute in the present case concerned the assessment of the degree of permanent impairment. For the appellant, Dr Richa Rastogi assessed an entitlement of 15% WPI in her report of 15 October 2019. Dr Rastogi said:
“He has reached maximum medical improvement…”
40.	For the respondent Dr Yajuvendra Bisht assessed 5% WPI in his report of 21 April 2020. The following also appears:
“In your opinion has the worker reached Maximum Medical Improvement (MMI)?
Yes he has reached MMI.”
41.	Accordingly there was no dispute before the Medical Assessor to determine regarding the question of whether the degree of permanent impairment of the injured worker was fully ascertainable, which was the basis of the argument as to maximum medical improvement. 
42.	The Panel would also note that Mr Kestemberg has made a number of unsuccessful attempts to wean himself off his dependence without success. There have been two admissions to Campbelltown and Cumberland Psychiatric Hospitals involving psychiatric treatment and substance detoxification. 
43.	All Hospitals have protocols on substance cessation, one of which is that no access is given to substances during hospitalisation. One of Mr Kestemberg’s admissions was longer than two weeks, and his subsequent relapse indicates that his condition seems to be too resistant for treatment to be effective. It is unlikely in any event that further attempts will be any more successful. 
44.	For these reasons, the Appeal Panel has determined that the MAC issued on 21 September 2022 should be confirmed.