DETERMINATION OF APPEAL PANEL	
	
CITATION:	Dolan v Health Services Union NSW [2023] NSWPICMP 637	
		
APPELLANT:	Lisa Dolan	
		
RESPONDENT:	Health Services Union NSW	
		
Appeal Panel		
		
MEMBER:	Marshal Douglas	
		
MEDICAL ASSESSOR:	Michael Hong	
		
MEDICAL ASSESSOR:	Douglas Andrews	
		
DATE OF DECISION:	4 December 2023	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether the deduction of 50% Medical Assessor (MA) made under section 323(1) for the proportion of the appellant’s permanent impairment that was due to a pre-existing condition was correct; Appeal Panel held that based on the evidence and for the reasons MA explained making an assumption under section 323(2) that the deductible proportion is 10% would be at odds with the evidence; Appeal Panel held that based on the evidence and for the reasons MA explained it was open to the MA to make a deduction of 50% under section 323(1); Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 29 August 2023 Lisa Dolan, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 31 July 2023.
2.	The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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 (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). 
RELEVANT FACTUAL BACKGROUND
6.	The appellant commenced employment with Health Services Union NSW, the respondent, on 27 January 2015. Due to stressors to which she was subjected in her employment thereafter she suffered a psychological injury. 
7.	Consultant psychiatrist Dr Ben Teoh examined the appellant via an audio-visual link on 
7 August 2020 at the request of her solicitors. He provided a report to her solicitors on that day in which he advised he diagnosed the appellant’s injury was chronic adjustment disorder which mixed anxious and depressed mood. His diagnosis was based on the DSM5 Diagnostic Criteria. He said the appellant’s injury was a result of her employment with the respondent. He said that the appellant had a pre-existing psychiatric illness that made her vulnerable to developing a further psychiatric condition. He advised he assessed the appellant had 17% whole person impairment (WPI). He also advised 2% WPI of that related to her pre-existing psychiatric condition and that he assessed therefore the appellant had 15% WPI from her work injury. 
8.	On 5 January 2022 the appellant’s present solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation under s 66 the Workers Compensation Act 1987 (the 1987 Act) for 15% WPI from her injury. The appellant’s solicitors advised the insurer that the appellant relied upon the report from Dr Teoh dated 7 August 2020 and provided the insurer with a copy of that report with its letter. 
9.	The respondent’s solicitors then organised for the appellant to be examined by psychiatrist Dr Yajuvendra Bisht on 21 February 2022. In a report of that date Dr Bisht advised the insurer that he diagnosed the appellant had major depressive episode. He advised that he assessed the appellant had 15% WPI, but he considered 10% of that was due to a pre-existing impairment, specifically a mental illness the appellant developed in 2005 from relationship problems, and 10% of it was also the consequence of stressors to which the appellant was subjected after her injury.  He advised he therefore assessed the appellant had 12% WPI from her injury. 
10.	On 19 May 2022 the insurer wrote to the appellant notifying her pursuant to s 78 of the 1998 Act, that it disputed she was entitled to compensation under s 66 of the 1987 Act. In its letter it also explained its reasons for its decision were that the Dr Bisht had assessed she had 12% WPI from her injury and this did not exceed the 15% WPI threshold that s 65A (3) of the 1987 Act required in order that she be entitled to compensation for permanent impairment. 
11.	The appellant then initiated proceedings in the Personal Injury Commission (Commission) seeking determination of her claim for compensation. A delegate of the President of the Commission duly referred the matter to the Medical Assessor. In the MAC the Medical Assessor issued on 31 July 2023 he certified he assessed the appellant had 19% WPI but he deducted half of that under s 323 (1) of the 1998 Act for a proportion of that permanent impairment he concluded was due to a pre-existing condition the appellant had. He consequently certified he assessed the appellant had 10% WPI from her injury. 
PRELIMINARY REVIEW
12.	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.
13.	As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel would be confirming the MAC and did not need to re-assess any part of the medical dispute that had been referred for assessment. Moreover, absent the Appeal Panel finding error in the MAC, the Appeal Panel has no power to examine the appellant.
EVIDENCE
14.	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
15.	The appellant’s appeal relates to the Medical Assessor’s conclusion that the proportion of her permanent impairment that was due to a pre-existing condition was 50%. 
16.	The Medical Assessor obtained a detailed history relating to the appellant’s psychopathology prior to her commencing her employment with the respondent. He noted that history dated from 2003, which the Appeal Panel observes is around 12 years prior to her commencing employment with the respondent. The Medical Assessor noted that this history included the appellant’s admission into Sutherland Hospital in 2005 at which time she was diagnosed with schizophrenia. The Medical Assessor noted the history included a further hospital admission under the Mental Health Act in 2008 following the Cronulla riots. The Medical Assessor noted the appellant had been taking amisulpride 200mg since then. The Medical Assessor noted the appellant was managed by a mental health team in 2007. The Medical Assessor noted the appellant presented to the Kogarah Community Mental Health Centre in 2014 and that her psychiatric care was managed by her general practitioner between 2015 and 2018 and by psychologists Mr Emmett and Ms Breen.  The Medical Assessor noted the appellant came under the care of psychiatrist Dr Goran Stevans in 2018. 
17.	The Medical Assessor provided the following summary of the appellant’s injury and his diagnosis: 
“Ms Dolan is a 44-year-old woman previously employed as an administration assistant at the Health Services Union. She claimed she was persecuted and targeted by her former employer.
She has an extensive psychiatric history with several admissions to a mental health hospital under the Mental Health Act with psychotic symptoms. The diagnosis at the time was schizophrenia. She has had no further hospital admissions since 2008 but has consistently taken amisulpride, an antipsychotic, ever since. Her adherence has been good. Her longitudinal vocational history suggests a functional decline with onset around the time she had her first admission with a psychotic episode. She has struggled with employment ever since. Other markers of psychosocial decline include her inability to live independently, contraction of her social network and an overall decline in her ability to function independently. The medical evidence suggests a person with chronic mental health problems struggling in jobs, particularly the interpersonal elements.
Adjustment disorder with mixed anxiety and depressed mood is a misdiagnosis considering all available evidence, although I acknowledge that the injury aggravated the mood and anxiety symptoms of schizoaffective disorder. I have benefited from an extensive longitudinal history, the passage of time, and collateral information not available to Ms Dolan’s treating clinicians. No records have been provided concerning her admissions to Sutherland Hospital or her contact with the community mental health services. Still, the history, the family history of schizophrenia in a first-degree relative, and subsequent psychosocial trajectory are consistent with a chronic psychotic illness such as schizophrenia or schizoaffective disorder. Positive symptoms (delusions, hallucinations and behavioural outbursts) have been attenuated by consistent treatment with antipsychotic medication. There have been periods of breakthrough paranoia during stressful periods. Negative symptoms (blunted affect, alogia, avolition, asociality and anhedonia) with functional impairment persist. I acknowledge that Ms Dolan rejects the diagnosis of schizophrenia.
In my opinion, Ms Dolan meets DSM-5 criteria for schizoaffective disorder with delusions for two or more weeks in the absence of a major mood episode during the lifetime duration of the illness. Symptoms that meet the criteria for a major mood episode are present for the majority of the total duration of the active and residual portions of the illness. The schizoaffective disorder is of the depressive subtype in partial remission such that the defining criteria of the disorder are only partially fulfilled and negative symptoms and mood symptoms predominate rather than psychotic symptoms. For a significant portion of the time since the onset of the disturbance, the level of functioning in one or more major areas such as work, interpersonal relations, or self-care has been markedly below the level achieved before the onset, and there has been a failure to achieve the expected level of interpersonal academic or occupational functioning. Continuous signs of the disturbance have persisted for at least six months, including prodromal and residual periods with negative symptoms.
She meets DSM-5 criteria for major depressive disorder with persistently depressed mood, anhedonia, sleep disturbance, fatigue, impaired concentration, depressive thoughts including worthlessness and weight changes with impairment in social, occupational and other important areas of functioning.
The current depressive episode is an aggravation of her pre-existing condition. To some extent, the aggravation is work-related and ongoing, evidenced by her preoccupation with events at the Health Services Union and the long-term impacts on her confidence.
There is ample evidence of impairment from before the injury and schizoaffective disorder is considered a major mental illness with significant functional consequences.”
18.	The Medical Assessor stated at 8e in the MAC that a proportion of the appellant's permanent impairment was due to a pre-existing condition. He identified that at part 11a of the MAC as a schizoaffective disorder depressive type. 
19.	The Medical Assessor said at 11b of the MAC that there was evidence of the appellant having recurrent psychotic episodes with prominent mood features which had caused her significant functional impairment and psychosocial decline and that this had pre-dated her employment with the respondent. The Medical Assessor said at 11c of the MAC that it is “difficult or costly” to determine the extent to which the appellant’s whole person impairment is due to her pre-existing condition but he said a deduction of one tenth is at odds with available evidence. He explained that the deductible portion for the purpose of s 323(1) should be 50%.  He provided these reasons for that:
“(i) The impact of her pre-existing psychological condition is substantial and affected her function before (and likely during) her employment with the Health Services Union.
The pre-existing condition is a major mental illness with a particular natural history
and significant functional impact.
(ii) The current impairment is a product of both pre-existing psychological disorders and
the effects of the subject injury. Ms Dolan’s pre-event psychological status was
fragile and impacted her work function. The subject injury worsened a pre-existing
clinical level psychological disorder. The link between the perceived criticism at work,
the subsequent loss of her employment, and her depressive symptoms are clear,
confirming an ongoing work-related component to her mood symptoms and the
aggravation of schizoaffective disorder.
(iii) Ms Dolan’s representations of her preinjury function must be considered with the
collateral information provided, including evidence of substantial and ongoing
problems with her mental health and social and interpersonal function, and
considering the natural history of schizoaffective disorder, accepting there were
periods in which her condition fluctuated or improved in the years leading up to her
employment with the respondent.
(iv) I have not attempted to calculate the preinjury impairment using the PIRS because I cannot reliably evaluate aspects of the functional assessment, such as the frequency
of social and recreational activities based on her self-report or the information in the
documents provided.
(v) I cannot conclude that the larger portion of her psychological impairment arises from
a work-related psychological injury. The pre-existing condition and the work-related injury had substantial impacts; one is not greater than the other.”
SUBMISSIONS 
20.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
21.	In summary, the appellant submitted that the Medical Assessor made an error with respect to the deduction he made under s 323(1) of the 1998 Act for the proportion of her permanent impairment that was due to her pre-existing condition because the Medical Assessor did not follow the Guidelines regarding how that was to be done.  The appellant submitted the approach required by the Guidelines was for her pre-injury condition to be assessed by reference to the psychiatric impairment rating scale (PIRS) and then for that to deducted from the WPI she was assessed to have post injury. The appellant submitted that it was not possible for the Medical Assessor to adopt that approach then “the standard 10% is to be deducted”. 
22.	The appellant submitted that the deduction under s 323 (1) of the 1998 Act for her pre-existing medical condition ought to have been 10%.  
23.	The appellant submitted that both Dr Teoh and Dr Bisht had based the deduction they each made under s 323(1) by assessing her pre-injury condition by reference to PIRS. 
24.	The appellant submitted that she did not have any symptoms prior to her suffering her work injury and that her psychiatric symptoms pre-dated her injury by at least 10 years. 
25.	In reply, the respondent submitted that the method that the appellant submitted the Medical Assessor ought to have used when considering what deduction ought to be made under 
s 323(1) is inconsistent with what s 323(1) requires and inconsistent with the authority of Marks v Secretary, Department of Communities and Justice (No2). The respondent submitted that if the Medical Assessor adopted the approach the appellant contended the Medical Assessor would have made an error. 
26.	The respondent submitted that there was ample evidence that the appellant was not functioning at a normal level before her injury. The respondent submitted that there was ample evidence that demonstrated the appellant had a pre-existing condition that contributed to her permanent impairment.
FINDINGS AND REASONS 
27.	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. 
28.	In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. 
29.	The Appeal Panel does not accept the appellant’s submission that her psychiatric symptoms pre-dated her injury by at least 10 years. There is extensive evidence that she had suffered psychiatric illness for considerable years preceding her employment with the respondent and she was symptomatic throughout this period. 
30.	The Medical Assessor provided an extensive history detailing the appellant’s psychiatric illness dating from 2003. The Medical Assessor identified that as recently as 2014, which was the year proceeding the appellant commencing her employment with the respondent, she was being managed by the St George Kogarah mental health community and that her psychiatric illness was thereafter managed by her general practitioner and psychologist. 
31.	The Medical Assessor identified the appellant pre-existing psychiatric illness as schizoaffective disorder depressive type. The Appeal Panel considers, based upon the evidence before the Medical Assessor, that it was open to the Medical Assessor to make this diagnosis. As the Medical Assessor said, this is a serious illness. The appellant had been taking an antipsychotic medication as treatment for that illness for numerous years prior to her commencing her employment with the respondent. 
32.	The Medical Assessor was correct to conclude that a proportion of the appellant's permanent impairment was due to her pre-existing condition. Indeed, it seems the appellant does not contend otherwise given that she submitted the deduction that the Medical Assessor ought to have made under s 323(1) of the 1998 Act should have been 10%. 
33.	The Appeal Panel also does not accept the appellant’s submission that the Medical Assessor ought to have assessed her permanent impairment from her pre-existing condition using PIRS and then deducted that from her total permanent impairment, as that method would be conflict with what s 323(1) of the 1998 Act required the Medical Assessor to do. What s 323 (1) of the 1998 Act requires is to establish what proportion of a workers’ permanent impairment, as assessed at the time the assessment is undertaken, is due to the pre-existing condition. That is a different thing from using PIRS to measure the permanent impairment of a worker from the pre-existing condition for the purpose of establishing the deductible proportion for s 323(1). In so far as the Guidelines instruct a Medical Assessor to do this, they are inconsistent with s 323(1). 
34.	In any event, the Medical Assessor indicated that he could not reliably evaluate the appellant’s function so as to assess her pre-injury impairment using PIRS. 
35.	The Appeal Panel observes too, contrary to what the appellant submitted, that neither 
Dr Teoh nor Dr Bisht assessed her impairment relating to her pre-injury condition using PIRS. Nothing within their respective report indicates that that is the method that they adopted to establish the deductible proportion for the purpose of s 323(1). Rather both simply made a deduction of 10% with neither providing any explanation for why the deduction was 10%.  It would seem they both assumed it was 10% in accordance with s 323(2), which requires a Medical Assessor, in the circumstance where it would be difficult or costly to determine the extent of the deduction to be made under s 323(1), to assume the deduction under s 323(1) is 10% unless making that assumption is at odds with the available evidence. 
36.	In this case the Medical Assessor, for cogent reasons he explained in the MAC, formed the view that it would be at odds with the evidence that was available to him to assume the deduction to be made under s 323 (1) was 10%. Those reason were that the appellant had a long standing and substantial pre-existing psychopathology that had affected her function in a significant way. Further, he considered the appellant’s current permanent impairment was both the product of that pre-existing psychopathology and the injury she suffered due to the stresses of her work.  He explained that her work injury worsened her pre-existing psychological disorder. Further, the Medical Assessor also explained that he could not conclude that the proportion of the appellant’s permanent impairment from her work injury was greater than that due to her pre-existing psychopathology. In other words, the Medical Assessor, based on the evidence before him, considered that each factor contributed equally to the appellant’s current permanent impairment. 
37.	The Appeal Panel considers, for those reasons and based on the evidence before the Medical Assessor, the Medical Assessor was correct to form the opinion that the appellant’s pre-existing condition contributed 50% to her current permanent impairment. 
38.	For these reasons, the Appeal Panel has determined that the MAC issued on 31 July 2023 should be confirmed.