DETERMINATION OF APPEAL PANEL	
	
CITATION:	Inverell Shire Council v BLP [2023] NSWPICMP 346	
		
APPELLANT:	Inverell Shire Council	
		
RESPONDENT:	BLP	
		
Appeal Panel		
		
MEMBER:	Paul Sweeney	
		
MEDICAL ASSESSOR:	Nicholas Glozier	
		
MEDICAL ASSESSOR:	Michael Hong	
		
DATE OF DECISION:	21 July 2023	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; employer alleges error in calculation of whole person impairment (WPI); in the classification of psychiatric impairment rating scale (PIRS) categories of social functioning and the social and recreational activities; in the application of section 323; it also sought to rely on fresh evidence (327(b)) including surveillance of the worker taken several weeks after issue of Medical Assessment Certificate (MAC); Held – error in calculation established; no error in application of section 323; fresh evidence obtained after the assessment admitted as not previously obtainable in the circumstances and strongly suggested error; otherwise, further evidence rejected; after re-examination MAC revoked and new MAC issued.

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 21 November 2022, the Inverell Shire Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 25 October 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): 
•	availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
•	the assessment was made on the basis of incorrect criteria pursuant to s 327(3)(c) of the 1998 Act, and
•	the MAC contains a demonstrable error pursuant to s 327(3)(d) of the 1998 Act.
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 grounds of appeal on which the appeal is made. 
4.	Rule 128 of the Personal Injury Commission Rules 2021 (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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). 
RELEVANT FACTUAL BACKGROUND
6.	BLP (the respondent) was employed by the appellant in the maintenance of parks and gardens from 2 February 2016. From early 2017, he experienced interpersonal conflict with other employees. The appellant alleged that he had damaged a ride-on lawnmower and issued him with a warning letter. He was prohibited from driving the appellant’s trucks for a period.
7.	Subsequently, he was transferred to the “sewer crew” where he found that the staff would not talk to him. It was then alleged that he improperly drove one of the appellant’s street sweepers. After a meeting with his supervisors, he received a second warning letter.  
8.	On 29 June 2017, the respondent saw a general practitioner, Dr McIntyre, who diagnosed him with an exacerbation of depression as a result of workplace harassment. He was certified as unfit for work and referred to a psychologist. He was off work for several weeks.
9.	On his return to work, the respondent received a letter asking him to show cause why he should not be dismissed from his position. The letter alleged that he had threatened violence to his supervisors during a disciplinary meeting concerning his driving of the street sweeper. On receipt of the letter he was stood down on full pay. On the advice of his union representative, he tendered his resignation from the appellant. He has not engaged in paid employment since that time.
10.	Following his cessation of work, the respondent claimed compensation from the appellant for an incapacity resulting from a psychological injury. While the appellant initially denied that it was liable to compensate the respondent pursuant to the provisions of the Workers Compensation Act 1987 (the 1987 Act), a Member of the former Workers Compensation Commission ultimately determined the issue of liability in favour of the respondent. 
11.	On 2 May 2018, the respondent saw Dr Parsonage, a psychiatrist, at the request of his solicitors. The doctor noted a previous history of alcohol use disorder which had been in remission at the time the respondent was employed by the appellant. He expressed the opinion that at the time of his withdrawal from alcoholism in 2014, the respondent also suffered a major depressive disorder for which he was treated with Lovan. That condition was also in remission by the time the respondent commenced employment with the appellant.
12.	Dr Parsonage expressed the opinion that as a result of his employment with the appellant, the respondent had developed anxiety and depressive symptoms which satisfied the criteria for a diagnosis of a major depressive disorder with anxious distress. He thought that the respondent was unfit for work with the appellant but fit for part-time work with “another reasonable employer”. He thought that he should continue treatment with his general practitioner and with a psychologist.
13.	Dr Parsonage saw the respondent again on 16 October 2019 and provided a report of 17 October 2019. Dr Parsonage recorded that the respondent had become “more depressed over these last 17 months”. He had remained under the care of his general practitioner who had treated him with Valium. He was also using cannabis. Dr Parsonage expressed the opinion that the respondent suffered a major depressive disorder which related to his employment with the appellant Council. He assessed the respondent as suffering 24% WPI. From that figure he made a deduction of 10% pursuant to s 323(2) in respect of the contribution made by the respondent’s pre-existing condition.
14.	The respondent saw Dr Bisht, a psychiatrist, at the request of the appellant on 15 September 2020. Dr Bisht accepted that the worker suffered from a psychological condition as a result of his employment. He thought that he was fit for part-time selected duties. He thought that he had not reached maximum medical improvement. 
15.	Dr Bisht saw the respondent again on 19 October 2021 and provided a report of 3 November 2021. He recorded a history of the respondent’s previous alcohol dependence and “multiple depressive episodes over the years”. He diagnosed major depression and cannabis use disorder. He also assessed the respondent’s impairment in accordance with the Guidelines. He assessed 15% WPI. From that he deducted 10% to reflect the contribution made by the respondent’s pre-existing condition pursuant to s 323. He also deducted one third to reflect the contribution made by “other stressors in the last few years”. He, therefore, opined that the respondent’s WPI was 9%. 
16.	By these proceedings, the respondent claims permanent impairment compensation pursuant to s 66 of the 1987 Act. As the difference of opinion as to WPI between Dr Parsonage and Dr Bisht gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act, a delegate of the President referred the matter to Dr Douglas Andrews for a determination. It is from his assessment that the appellant brings this appeal.
PRELIMINARY REVIEW
17.	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.
18.	As a result of that preliminary review, the Appeal Panel determined that there was prima facie error in the MAC and that the worker should undergo a further medical examination. 
Fresh evidence
19.	Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence  additional to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
20.	The appellant seeks to admit the following evidence on appeal:
(a)	an email from Procare (a firm of investigators) dated 16 November 2022 with accompanying still shots of surveillance footage taken of the respondent on 
10 and 11 November 2022;
(b)	surveillance report of Procare dated 4 August 2022, and
(c)	photograph of the respondent from his social media which predated the medical assessment.
21.	The appellant submitted that this further evidence should be admitted as it went to “the correctness of the history taken by the medical assessor”. It maintained that the fresh evidence would change the outcome of the case as it demonstrated error in the assessment of impairment in the category of Social and recreational activities. It was therefore in the interests of justice that these documents be admitted into evidence. 
22.	The respondent opposed the admission of the documents tendered by the appellant as fresh evidence. It submitted that the report of Procare dated 4 August 2022 and the social media posts were obviously available to the appellant prior to the examination by the Medical Assessor on 19 October 2022 and thus it was not fresh evidence as that term is used in s 328(3) of the 1998 Act.
23.	The respondent also objected to the tender of the email from Procare dated16 November 2022. It argued that lodging further evidence after a medical assessment was inappropriate and contrary to the principles enunciated in s 42 of the Personal Injury Commission Act 2020. It also argued that if the receipt of such evidence was permitted there would be “no finality to medical assessments” as further evidence could be relied on to challenge the results of assessments in every case.
24.	The appeal panel determined that the email of Ms Burt of 16 November 2022 and the photographic schedule attached should be admitted into evidence. It is highly improbable that such evidence was available to or obtainable by the appellant prior to the medical assessment.  As the other evidence relied upon by the appellant was plainly available to it prior to the medical assessment, the panel rejected its tender.
25.	Attached to the Reply is a supplementary statement of the respondent worker and of Kylie Jarman which the respondent sought to rely upon in “the unlikely event that the Appellant is permitted to rely on further evidence”. As the panel admitted the email of 16 November 2022 and the photographic schedule attached, it concluded that the respondent should be given the opportunity to explain the circumstances in which the photographs came into existence. It, therefore, admitted those statements into evidence.
26.	The panel discusses the relevance of this evidence in its findings and the reasons below.
EVIDENCE
27.	The Appeal Panel has before it all the documents which were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination. Additionally, the panel has the documents admitted as fresh evidence and referred to above.
Medical Assessment Certificate
28.	The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out in the body of this decision. 
SUBMISSIONS 
29.	Both parties made written submissions. They are not repeated here in full, but have been considered by the Appeal Panel. 
30.	In summary, the appellant submitted that the Medical Assessor erred in his determination of Class 4 impairments in the psychiatric impairment rating scale (PIRS) categories of Social functioning and Social and recreational activities. Secondly, the appellant submitted that the Medical Assessor erred the application of  s 323 of the 1998 Act and in making a deduction of 10% for the respondent’s pre-existing depressive condition in accordance with s 323(2). Thirdly, it alleged he erred in failing to address supervening stressors which had contributed to the respondent’s impairment after he ceased employment. Fourthly, the appellant submitted that there was an error in the Medical Assessor’s calculation, although the correct calculation resulted in a greater WPI than that certified by the Medical Assessor.
31.	In respect of Social functioning, the appellant submitted that the Medical Assessor should have assigned Class 3 in the PIRS. It submitted that the Medical Assessor had not given weight to the evidence of BMN, the respondent’s partner, who stated that she saw the respondent “probably a couple of times every week”. It submitted that the relationship may have been “severely strained”, however “the relationship has not ended, as is required for a class 4 rating”.
32.	In respect of Social and recreational activities, the respondent noted that Dr Parsonage had allocated a Class 3 and Dr Bisht a Class 2. It again relied on the alleged discrepancy between the history recorded by the Medical Assessor and the evidence of BMN. It also relied on the fresh evidence. Relevantly, it submitted that the photographic schedule attached to the email from Procare of 16 November 2022 “depicts a history which is in direct contradiction to the history taken by the medical assessor”. It argued that the still shots from the surveillance of 10 November 2022 and 11 November 2022 showed the respondent worker at the premises of the Bundarra General Store on both days. It submitted that the still shot on the second day demonstrated the respondent “conversing with people”.
33.	In respect of the deduction made for a pre-existing condition pursuant to s 323(2), the appellant submitted that the Medical Assessor:
“did not, as he was required to do, first take into account all of the evidence that had been lodged and then, unless the one-tenth deduction was at odds with same, make a one-tenth deduction from the global impairment assessed.”
34.	The appellant referred at length to the respondent’s clinical history recorded in the records of the Inverell Medical Centre. These recorded treatment for depression suffered by the respondent in 2014 and 2015. The appellant referred to entries in that record up to 
10 March 2015 and submitted that they demonstrated that the respondent’s psychological issues continued beyond October 2014. It argued that the Medical Assessor did not address this evidence.
35.	The appellant also argued that the Medical Assessor erred in law in that the process by which he made a deduction did not comply with the “legal test” identified by Schmidt J in Cole v Wenaline Pty Limited.
36.	The appellant further submitted that the Medical Assessor’s failure to consider the evidence of the mental health service gave rise to a demonstrable error.
37.	Finally, the appellant submitted that the Medical Assessor erred in failing to make a deduction for stressors in the respondent’s life which supervened the work injury. These included losses in a pig breeding business, a strained relationship with his children, and stresses relating to the COVID-19 pandemic.   It submitted that his finding that these stressors “did not create a new or subsequent injury” was not supported by the reasons. 
38.	The respondent submitted that the Medical Assessor’s assessments in respect of the PIRS categories of Social functioning and Social and recreational activities were open to him on the evidence and involved no error. He submitted that the assertion by the appellant that the respondent’s partner or former partner saw him “probably a couple of times a week” was immaterial. That submission:
“fails to appreciate that, as contemplated by class 4, the de facto relationship between the worker and BMN has “ended”. There is no dispute that they had no continuing relationship as a de facto couple.” 
It followed that there was no basis to vary the assessment of the Medical Assessor in respect of Social functioning.
39.	In respect of Social and recreational activities, the respondent submitted that the fact that 
BMN saw the respondent “probably a couple of times a week” did not establish that he was engaged in social and recreational activities. He then addressed the question of the evidence sought to be admitted on the appeal as fresh evidence and briefly referred to the supplementary statements attached to the submissions.
40.	In respect of the deduction for a pre-existing condition or abnormality, the respondent submitted that it was open to the Medical Assessor to consider whether the extent of the deduction was too difficult or too costly to determine. He submitted that the Medical Assessor found that:
“In his professional opinion, it was too difficult or costly to determine and he therefore made the one-tenth deduction.” 
41.	The respondent submitted that the notes of the worker’s medical practitioner referred to by the appellant did not materially affect the history on which the Medical Assessor made his assessment. There was no basis to conclude that the respondent’s pre-existing depression was not in remission at the time he was employed by the appellant.
42.	Finally, in respect of the incorrect calculation, the respondent submitted that the matter should be referred back to the Medical Assessor for reconsideration and correction.
Further medical examination
43.	Medical Assessor Hong of the panel re-examined the respondent on 21 June 2023. Insofar as it is relevant, his report is as follows:
“1. 	HISTORY RELATING TO THE INJURY
•	Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: 
I tried to assess Mr Paul Cowdery on 30 March 2023, however, he was highly distressed and also did not understand why he was being assessed. Given his unusual mental state, the assessment did not proceed.
I assessed Mr Cowdery on 21 June 2023, and he had attended his GP practice in Inverell, and said that he drove there himself. Previously, he allowed his driver's licence to lapse, because he was using cannabis, and then after the Apprehended Violence Order, he had nowhere to live and he regained his driver's licence. He still uses cannabis. He had previously grown and now buys cannabis, and this is not prescribed. Mr Cowdery has cannabis three or four times a day on some days, and does not use other substances. He is aware that he should not drive when he has used cannabis. He reported there has been no problem with driving, but he does not really drive anywhere, only from the free campsite to places he needs to go. He reported funding problems and receives the Newstart allowance. His father is almost 80 years old and is frail, and so he does not want his father to drive him as much.
Mr Cowdery was in a relationship with BMN for about seven to eight years. He said that he could not give her the relationship she wanted and be intimate. He said it was a mutual decision to separate, and that he was never angry and never threatened her, and never assaulted her. He had five cattle and sold them, and gave her $35,000 which she used to purchase a general store/café at Bundarra. Even though he funded 100% of the purchase, he said that his name was not on the contract and the agreement was that she would give him a roof over his head, he would wash up and do some manual chores inside the house. However, within three months of the agreement, he reported she betrayed him.
Mr Cowdery was living on a remote property near Bundarra when he was assessed by Dr Andrews. The property could only be accessed by a 4-wheel drive and he did not have a driver's licence at the time and he relied on his father to drive him. After 
Dr Andrew's assessment, he moved to the general store at Bundarra where the surveillance photographs were taken, and then six months ago, BMN took out an AVO against him, which meant that he is not allowed to be there anymore and he became homeless. They separated about three years ago, and he said she continued to support him until the AVO was taken out. She made an accusation that he assaulted her, and he is to face court for two charges of common assault next month. 
He said he realised that once he had given her the money, she did not need him anymore, and within three months she had betrayed him and used the AVO to evict him from the accommodation at the general store. He stated this was a false accusation because he has never raised his voice, threatened her or assaulted her. 
About three months after the initial charge, he called her wanting some answers about the AVO. He said he was not angry and she was the angry one, and then she contacted the police who then charged him with breaching the AVO. Up until she took out the AVO, even though they were separated, he recalled they were still on good terms and she would come and see him a couple of times a week, and help him. 
We discussed the workplace injury at the Council, I noted he was distressed by the AVO, and his psychiatric functioning has not significantly changed after Dr Andrews’ assessment.
•	Present treatment: 
Mr Cowdery is taking:
•	Desvenlafaxine 200 mg
•	Olanzapine
•	Mirtazapine
He has not consulted a counsellor or psychologist for a long time now. He has not had a psychiatric admission.
His psychological/psychiatric treatment has not changed after Dr Andrews' assessment.
•	Present symptoms: 
Mr Cowdery reported chronic anxiety and depressive symptoms, difficulties with sleep and appetite. He is frustrated and said he is irritable at himself. He has concentration and memory problems and is generally quiet and withdrawn. He has low energy levels and has not experienced psychotic symptoms. He reported being anxious and avoids people generally. 
He was 100kg when he was assessed by Dr Andrews, and he said he is probably about 80kg now. He only eats once a day and he cannot afford food, and does not have much appetite. 
He has not worked since he left the Council. 
•	Social activities/ADL: 
Mr Cowdery is homeless.
He has two friends and he has not had contact with them for several years, and said that they do not make an effort to contact him. He said he was not irritable, never aggressive and had not done anything bad to them. 
He has two adult children who live about 10 hours away. He talks to them regularly, but not every day. He does not have a mobile phone. He said he cannot live with them. Similarly, with his father, he said he cannot live with him as he is not comfortable with the idea. His father comes to visit him regularly. 
Mr Cowdery has been living in his ute and said that it has a canopy and a solar panel, and a gas cooker. He uses public toilets or uses a shovel to cover up, after he does his toiletries on the land. He generally stays at free campsites. He showers every 10 to 14 days, and uses the laundromat to wash his clothes.
We discussed the surveillance material and the photo of him being seated at the table, with 2 women and a man near him. He said that it was BMN and a married couple who own the building where the general store is, and he only went out that day because the police had pulled over a DUI driver, and it was a small town and so he wanted to have a look and see what had happened.
In terms of recreational activity, Mr Cowdery said he normally enjoyed raising cattle, but he has sold them now. He used to belong to a car club and restore old cars. He has a 1989 Daihatsu ute. He does not belong to a car club now, and he can do some maintenance work by himself, such as changing the oil. 
He has two sisters, and said he has not spoken to them for five or six years, because they use alcohol and are drug addicts. He said he is a recovered alcoholic and does not want to be around them because they have nothing in common.
2.	FINDINGS ON PHYSICAL EXAMINATION
Mr Cowdery was assessed by video. He engaged well with the video assessment process. There was no psychomotor slowing or abnormal movements. He was restricted in his affect and did not smile. He spoke spontaneously. He was not psychotic. Mr Cowdery provided a clear history and spoke with a steady pace, in a soft subdued tone. 
•	consistency of presentation
While Mr Cowdery’s account of his social and recreational activities was consistent, the added history he gave in respect of his previous relationship was inconsistent with the account in his supplementary statement and the previous medical histories.
Table 11.8: PIRS Rating Form
Social and recreational activities
	4	He used to go to car clubs and enjoyed activities with his partner and father.
He has no social and recreational activities now and avoids people almost at all costs and cannot engage in recreational activities with people. His father visits him intermittently. Dr Andrews also rated 4. 	

			
Social functioning
	3	Mr Cowdery' described having a financial relationship with his partner. They maintained a supportive friendship and were living under the one roof  until she betrayed him and made false accusations against him. 
He did not engage in domestic violence.
He has no contact with his friends. 
He has a reasonable relationship with his father and children. 
He was never close to his sisters.
I rated 3 as he has a reasonable relationship with his family, and his partner remained supportive and they maintained a friendship until she betrayed him, taking out an AVO unrelated to his injury.  	

			
Score	Median Class	
2	2	3	3	4	5		=3	
Aggregate Score Impairment	Total	%	
+	+	+	+	+		19	24	
Pre-existing injury 	One-tenth 	
Final WPI	22	
Summary:
Mr Cowdery developed a psychological injury, Persistent depressive disorder and Major depressive disorder, as a result of his employment. He has not worked since he left the Council and continues to suffer from the same psychological injury. He described being stressed by the AVO, and has not developed a new psychological injury. His psychiatric injury is stable.
In terms of the WPI assessment: 
Dr Bisht’s PIRS ratings in ascending order were 222333, median 3, WPI 15%.
Dr Parsonage’s last PIRS ratings in ascending order were 233345, median 3, WPI 26%.
Dr Andrews’ PIRS ratings in ascending order were 223445, median 4, WPI 41%.”
FINDINGS AND REASONS 
44.	Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in its application. 
45.	In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), 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.
46.	The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace v Australia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the Medical Assessor without first identifying error. 
47.	Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the Medical Assessor to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Ltd V Kocak  that it is only necessary for the MAC to explain the actual path of reasoning of the Medical Assessor in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
48.	The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example, El Masri v Woolworths Ltd. 
Error in calculation
49.	At the preliminary conference, the panel concluded that the Medical Assessor erred in his calculations under Table 11.7. If the Medical Assessor has correctly reported his classifications, the aggregate score is 20 and the median class is 4. This results in an impairment of 41% WPI.
Section 323(2)
50.	The panel also concluded that the appellant had not proven error in the reasoning by which the Medical Assessor made deduction for a pre-existing condition pursuant to s 323(2) of the 1987 Act. The appellant’s submission that the Medical Assessor did not consider aspects of the respondent’s clinical record   is incorrect. In dealing with the other medical opinion in the case, the Medical Assessor said this:
“General practice notes from the Inverell Medical Centre note depression from as early as 2005 and a suicide attempt in 2014. The notes also mention that Mr Cowdery had seen psychologists Elizabeth Lloyd and Craig Scott.”
51.	While the Medical Assessor did not refer specifically to the notes of Inverell Mental Health, there is nothing to suggest that he did not read all of the notes contained in the evidence. In any event, the panel concluded that the entries in the notes of the Inverell Medical Centre were largely consistent with the history recorded by the Medical Assessor that the respondent worker was in remission from his previous depressive episode at the time he commenced employment with the appellant. On 10 April 2015, a note of the Inverell Mental Health Service records the following:
“Paul reports that his depressive symptoms have largely been alleviated, some anxiety remains however is situational and controllable. Paul continues to keep appointments with myself however was discharged from DACS on February 1, 2015. He ceased naltrexone at the same time. Paul has not relapsed and shows total commitment to never consuming alcohol again. He encouraged and commended in this area whenever we meet and is justifiably proud of himself. From a rough and angry truck driver I have seen Paul soften his attitude towards others, accepting responsibility for past actions, developing his skills and take control of his future and his recovery.
Paul still has to face court on charges the initial incident stop I believe that continued involvement with MH may be beneficial while he negates legal action, he is well represented legally however is still benefiting from ongoing MH support’s.”
52.	There is no further note in the record which suggests a relapse or otherwise undermines the respondent’s history, and the conclusion of the Medical Assessor, that his depressive state was in remission at the time he commenced work with the Council. Where a worker is in remission from pre-existing condition, it is undeniably difficult to determine the precise contribution of these earlier significant stressors to the work injury. There is considerable force in the view, which was also accepted the by the qualified medical specialists for both parties, that the appropriate deduction for a pre-existing condition is one-tenth in accordance with s 323(2). Certainly, the finding that the extent of the deduction was difficult to determine was open to the Medical Assessor on the evidence in this case. It must be borne in mind that s 323 is a disentitling provision and it is for the respondent to point to evidence which would provide an appropriate basis for a deduction. The fact that Dr Bisht, the appellant’s expert, applied s 323(2) is telling in this regard.
53.	The appellant’s argument that the Medical Assessor did not approach the issue of a deduction in accordance with the authorities addressing s 323, including Cole, must also fail. There is nothing in the MAP which would prove that the Medical Assessor applied an incorrect legal test when he addressed the issue of the deduction to be made pursuant to s323(2) for the appellant’s undoubted pre-existing psychological condition. 
54.	The appellant also submitted that the Medical Assessor did not give adequate reasons for concluding that the respondent had not suffered a further psychological injury subsequent to the work injury which would necessitate a deduction from the assessed WPI. It referred to 
Dr Bisht’s references to non-employment related stressors including losses from a pig breeding business he had undertaken after leaving the appellant and a strained relationship with his children. However, the Medical Assessor unambiguously dealt with these issues. He stated:
“These things may have increased BLP’s distress transiently but do not create a new or subsequent injury that would have left him unwell and impaired had he not had the original workplace injury.”
55.	Clearly, the Medical Assessor took the view that these stressors only had a transient effect on the respondent worker’s condition which did not result in permanent impairment. In any event, he expressed the opinion that the psychological effect of these stressors was causally related to the respondent’s employment injury: see Secretary, New South Wales Department of Education v. Johnson and Ozcan v Macarthur Disability Services Limited. Dr Parsonage expressed a similar opinion.
56.	While Dr Bisht has made a deduction for effect of these supervening stressors, the basis on which he has reached this conclusion is not evident from his report. He does not consider whether the respondent’s injury materially contributed to his psychological reaction to these events.  In the opinion of the panel, there is no acceptable evidence that these stressors would have given rise to impairment absent the work injury. The appellant’s assertion that the Medical Assessor did not give adequate reasons for his finding is without a proper evidentiary foundation. At the very least, it was open to the Medical Assessor to make such a finding.
Social and recreational activities
57.	In the MAC, the Medical Assessor recorded that the respondent was living by himself at a remote property which he rarely left. His father dropped off groceries and took him to Bundarra to consult his doctor. The Medical Assessor said this in his reasons:
“BLP has no social or recreational activities. He rarely leaves his home or receives visitors. His previous activities had been around his partner Kylie’s children’s activities.”(Panel’s italics).
Dr Parsonage also assigned class 4 in this category. 
58.	Chapter 11 of the Guidelines identify the following class descriptors for Class 4 in this category Severe impairment: Never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.
59.	While surveillance evidence must be viewed with caution, the still shots of the respondent attached to email of 16 November 2022, suggest a dramatic change in his circumstances in the short period since the medical assessment. Rather than living in complete isolation, the respondent was sighted in a built up area of Bundarra conversing with several other people on the balcony of commercial premises. It seemed plausible that he was at the premises overnight as he was seen there on two consecutive days. The still shots were not consistent with the descriptors for Class 4.
60.	The panel concluded that this evidence either undermined the history recorded by the Medical Assessor or suggested a significant change in the respondent’s circumstances. In either case, it cast doubt on the accuracy of the Medical Assessor’s classification and led to the conclusion that there was prima facie error in his classifications. Accordingly, the panel concluded that the evidence should be admitted as fresh evidence together with the additional evidence lodged by the respondent. It was, therefore, appropriate for Medical Assessor Hong of the panel to carry out a further medical examination of the respondent worker in respect of this category. 
61.	In the specific circumstances of this case, there is some overlap between the evidence that went to the classification in the category of Social and recreational activities and that relevant to Social functioning. The panel concluded that the re-examination should address both categories.
62.	Following Medical Assessor Hong’s examination of the respondent worker, the panel reconvened to consider his classifications in the categories of Social functioning and Social and recreational activities.  It reviewed these categories in the context of the entirety of the evidence including the earlier opinions of Dr Parsonage and Dr Bisht. The panel accepted that the respondent had provided a reliable account of his Social and recreational activities which was largely consistent with the statement evidence and his medical histories. Medical Assessor Hong recorded that the respondent was  living alone in a vehicle and did not engage in  social or recreational activities. The panel concluded that it should adopt his classification of 4 in the category of Social and recreational activities.
63.	There is not the same consistency in the respondent’s account of his Social functioning. By his supplementary statement in December 2022, the respondent described his relationship  with BMN at the time of the surveillance on 10 and 11 November 2022 as follows:

“We are not living together in the house. I'm out the back in my own room, she's running her business and living in the same premises. It is more than a three-bedroom house. We. haven't had sex I estimate for over three years. We are not living together as man and wife. I have no interest in the store. I do not work at the store.”(Panel’s italics)
64.	BMN also stated that the respondent had no interest in the business, although she said that she may have “made reference to doing something with her husband” as she did not want people to know that she was alone in the store.
65.	This evidence is difficult to reconcile with the respondent’s account to Medical Assessor Hong that the store had been purchased with money he provided to BMN from the sale of his cattle. There can be little doubt that the respondent did have a very considerable financial interest in the store. There are other aspects of his written evidence which the panel found difficult to accept.
66.	Chapter 11 of the Guidelines identifies the following class descriptors for Class 3:
“Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children”
The following descriptors are identified for Class 4:
“Severe impairment: Unable to form or sustain long term relationships. Pre-existing relationships ended ( lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).”
67.	While the panel accepts that couples can remain under the same roof after their relationships end, it is not persuaded that the respondent’s relationship was irrevocably brought to an end by his psychological injury.  In late 2022, the applicant and BMN were living under the same roof and he had given her $35,000 for the purchase of the business premises where they were living. The conclusion that the relationship had ended at this time relies entirely on their evidence on this point. That evidence is not reliable.  On the history provided by the respondent to Medical Assessor Hong the relationship finally ended when he was “betrayed” and not because of his psychological injury.
68.	The panel concluded that the psychological injury caused a severely stained relationship, possibly evidenced by periods of separation.  While classification is difficult where evidence is not reliable, the panel concluded that the assignment of Class 3 by Medical Assessor Hong was appropriate in view of all the evidence in the case. The recent evidence of the respondent and the history recorded by Medical Assessor Hong is, of course, very different to that recorded by the Medical Assessor and Dr Parsonage.
69.	On the panel’s assessment the respondent’s WPI is 24% from which 1/10 must be deducted pursuant to s 323(2).
70.	For these reasons, the Appeal Panel has determined that the MAC issued on 25 October 2022 should be revoked, and a new MAC should be issued.  

 

PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002

Matter number:	W2636/22	
Applicant:	BLP	
Respondent:	Inverell Shire Council	
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Andrews 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	17 January 2020 (deemed)	Chapter 11
pp 55-60	14	24%	1/10th
	22%	
Total % WPI (the Combined Table values of all sub-totals)	22%