DETERMINATION OF APPEAL PANEL	
	
CITATION:	Workers Compensation Nominal Insurer (icare) & Ors v Peacock [2023] NSWPICMP 663	
		
APPELLANT:	K A Hutchins & B R Youssef t/as Bazil’s Café 	
		
RESPONDENT:	Lisa Anne Peacock	
		
Appeal Panel		
		
MEMBER:	Paul Sweeney	
		
MEDICAL ASSESSOR:	Michael Hong	
		
MEDICAL ASSESSOR:	Nicholas Glozier	
		
DATE OF DECISION:	13 December 2023	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; nominal insurer alleges error in the psychiatric impairment rating scale categories of Travel and Employability and in the deduction of one-tenth to reflect the proportion of the worker’s impairment due to a prior injury/pre-existing condition; Panel determines that there were significant factual errors in the Medical Assessment Certificate (MAC); Marks v Secretary, Department of Communities and Justice (No 2), Camden Council v Harle, and Adler v State of New South Wales (Royal North Shore Hospital - HealthShare NSW) considered; Held – Panel should not apply Chapter 11.10 of the Guidelines in this case as it is inconsistent with section 323; after re-examination Panel determined that the deductible proportion was one-third; MAC revoked and new MAC issued to reflect this finding.

  	

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 15 April 2019, K A Hutchins & B R Youssef t/as Bazil’s Café (the appellant) were not insured against their liability to Lisa Anne Peacock (the respondent) under the Workers Compensation Act 1987 (the 1987 Act).
2.	The Workers Compensation Nominal Insurer brings this appeal in the name of the appellants.
3.	On 15 May 2023, the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by John J Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 April 2023.
4.	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.
5.	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. 
6.	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.
7.	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
8.	The respondent worker has a long psychiatric history which is addressed in the MAC and in the histories recorded in the reports of the qualified psychiatrists who have assessed her for the purpose of these proceedings. In the period prior to the subject injury, she was under the care of Dr Catherine Black, a psychiatrist and Ms Rees, a psychologist.
9.	On 1 April 2019, the respondent commenced employment as a kitchen hand/waitress at the appellant’s café. She was employed between 11am and 2 or 3pm on Mondays and Tuesdays.
10.	On 15 April 2019, she was involved in an altercation with her employer,  Mr Youssef,  concerning the processing of her tax file declaration. Her employment was terminated and her employer paid her wages on the spot.
11.	By her evidentiary statement, the respondent says that her employer “stood in the exit to the café area” and, when she tried to exit, pushed back against her. She says that her right hand was “getting crushed in against the wall” and she was “terrified and froze”. When she called out for “someone to call the Police”, Mr Youssef moved aside and allowed her to leave the café where she was comforted by two elderly customers. 
12.	Following the incident, the respondent was interviewed by a police officer. Subsequently, she saw both Dr Black and Dr Rees. The former has increased her medication. She states that she is skipping meals and has lost energy. She states:
“I have a car and I currently feel that I am vulnerable when driving the car by myself.
I don’t drive my car at night or go out at night. I don’t feel safe at the moment. I have no holiday plans at the moment, I don’t feel safe to leave my family to travel somewhere unknown.”
13.	The respondent says she is now locking all the doors in her house. She worries that 
Mr Youssef might break in and assault her again or he might be “waiting on my verandah, yard or inside.”
14.	On 13 April 2022, the respondent saw Dr Rastogi, a psychiatrist, by telehealth for the purposes of a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act.
15.	Dr Rastogi recorded the following psychiatric history:
“There is known previous history of bipolar disorder, at the age of 19 years and commenced on Lithium by Dr Kirby, psychiatrist. She was disorganised, drinking alcohol and had unstable employment. At the age of 32 years, she was diagnosed with bipolar disorder and PTSD and augmented with Epilim and antidepressant by another psychiatrist, by Dr Macroary.
The PTSD was associated with workplace assault, bullying and sexual harassment and she initiated workers compensation. She was seeking treatment under a psychiatrist Dr Wilcox. She then saw Dr Moloney at the age of 43 years and diagnosed with borderline personality disorder in addition to above diagnoses and trialled weaning of Seroquel but was challenging. Then she saw Dr Amos who took her on antidepressant and diagnosed her with complex PTSD. She commenced seeing Dr Catherine Black since 2019.
She had two voluntary admissions, one at the age of 18 years for bipolar disorder and was treated with lithium. The second admission occurred at age of 29 years to Sutherland Hospital for 2 weeks.
There have been multiple relapses over time and affected her functioning and ability to be in stable employment. She had significant debts and uses her superannuation. She was never able to sustain full-time employment due to issues of trust and interpersonal issues.”
16.	Dr Rastogi stated that the altercation with her employer in 2019 led to an exacerbation and a deterioration of the respondent’s pre-existing post-traumatic stress disorder. The respondent had responded poorly to treatment and continued to display a range of anxiety and mood symptoms stemming from the “current assault”. Dr Rastogi assessed the respondent as suffering 24% whole person impairment (WPI). She allocated Class 3 to each of the categories of the Psychiatric Impairment Rating Scale (PIRS) save for employment for which she allocated 4. She also made a deduction for pre-existing impairment pursuant to the assessments of 4% WPI. In assessing the deduction pursuant to s 323, she allocated Class 1 to Self-care and personal hygiene, Social and recreational activities and Travel and rated 2 for Social functioning, Concentration persistence and pace and Adaptation/employment. After that deduction, she expressed the opinion that the respondent had 20% WPI as a result of the subject injury.
17.	Dr Bisht, a psychiatrist, saw the respondent for a second time at the request of the appellant on 10 August 2022 and provided a report dated 25 August 2022. He assessed the respondent as suffering 15% WPI as a result of her psychological injury. However, he deducted 50% or 7.5% of this figure to reflect a pre-existing impairment. He also deducted a further 1.5% to reflect the impact of other psychological stressors on the respondent’s psychological health since the injury.
18.	In respect of pre-existing condition, Dr Bisht said this:
“the worker has been on disability support pension for a number of years, which indicates that she had severe impairment in functioning even prior to the subject workplace injury, when a person is on DSP it indicates that they are unable to work more than 15 hours a week, and that they are only able to work in jobs that do not require complex skills. In addition, as the DSP is on the basis of a psychiatric condition, it would follow that the psychiatric condition would clearly not have just affected the ability to work but also other domains of functioning. Hence I would conclude that the contribution of the pre-existing condition, to the current level of impairment and functioning would be 50%.”
19.	The difference of opinion as to the degree of WPI suffered by the respondent as a result of the injury gave rise to a medical dispute as that term is used in s 319 of the 1998 Act. Accordingly, a delegate of the President referred the dispute for assessment to Dr Baker for assessment. It is from his MAC that the respondent brings this appeal.
PRELIMINARY REVIEW
20.	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.
21.	As a result of that preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination. The Panel noted that neither party sought a re-examination by a member of the panel. However, as it considered there were probably significant errors in the history accepted and relied on by the Medical Assessor, it concluded that, as a matter of fairness, it should provide her with the opportunity to explain these aspects of her medical history .The panel discusses these errors under the heading “Discussion  and findings”  below.
EVIDENCE
22.	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. 
Medical Assessment Certificate
23.	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 
24.	Both parties made written submissions. They are not repeated here in full, but have been considered by the Appeal Panel. 
25.	In summary, the appellant submits that there are two broad errors in the MAC. First, the Medical Assessor has failed to apply an appropriate s 323 deduction in respect of the respondent’s undoubted pre-existing impairment. Secondly, the Medical Assessor has failed to consider whether any part of the worker’s impairment is attributable to a supervening motor vehicle accident in which the worker suffered injury on 24 November 2020. The Medical Assessor’s determination of these issues was flawed by an inaccurate history in respect of critical matters.
26.	The appellant submitted that both Dr Rastogi and Dr Bisht had made a deduction for the respondent’s pre-existing post-traumatic stress disorder and bipolar disorder under s 323(1) of the 1998 Act in assessing WPI. The submissions set out in detail the reasoning by which each of the qualified psychiatrists reached the conclusion that a deduction of more than 1/10th was appropriate in the circumstances of this case.
27.	The appellant also drew attention to the respondent’s prior worker’s compensation claim for a psychological injury. It argued that it was apparent that the respondent was totally unfit for work for a period of more than seven years and thereafter partially incapacitated for work following the previous psychological injury in 2012. The medical certificates lodged at the time refer to “depression and post-traumatic stress disorder, and also exacerbation of bipolar disorder”.
28.	The appellant also referred to entries in the notes of the respondent’s treating general practitioner, Dr Rees between 3 April 2019 and 2 June 2021. These entries demonstrated that the Medical Assessor had erred in concluding that the respondent had only returned to live with her mother after the onset of the injury and received NDIS services for the first time after the onset of injury. On the contrary, the records establish that the respondent was living with her mother at the time of the onset of injury and was “an NDIS approved participant” prior to the subject injury.
29.	The appellant argued that the Medical Assessor did not place sufficient emphasis on the fact that the respondent was in receipt of a disability support pension (DSP) for her psychological condition prior to the injury. It referred to the Social Security Tables (Tables for the Assessment of Work-related Impairment for Disability Support) Determination 2011. It argued that those Tables demonstrated that it was necessary for the respondent to establish “a severe functional impact on activities involving mental health” to qualify for this pension.
30.	The appellant then sets out that list of categories that demonstrate mental health function for the purpose of that legislation which is similar to but not identical to the PIRS. It continues:
“The appellant accordingly submits there is clear evidence of the impairment which was present prior to the subject injury on 15 April 2019, and it was accordingly not appropriate for the MA to apply the assumption under s 323(2) of the 1998 Act.”
31.	After referring to the reasoning of Schmidt J in Cole v Wenaline Pty Limited and of Griffiths AJ in Secretary, Department of Communities and Justice v Lewandowski, the appellant submitted:
“that in the present circumstances there is clear evidence of the actual consequences of the earlier injury and that the assumption under s 323(2) accordingly does not apply.”
32.	In respect of the supervening motor vehicle accident, the appellant argued that the Medical Assessor erred in accepting the respondent’s history that she had not received a psychological injury “in the motor accident of 2020”. It referred to entries in the notes of 
Dr Rees between 26 November 2020 and 13 January 2021 and to the serial certificates of incapacity issued by Dr Rees in respect of the motor vehicle accident which referred to “concussion/exacerbation of PTSD (complex)” and the reference in those certificates to psychiatric review with Dr Black, the psychiatrist and Ms Wetzel, the psychologist.
33.	The appellant continues:
“Despite this extensive evidence, the MA merely relied upon the history given to him by the applicant worker that she did not suffer a psychological injury in the motor vehicle accident on 24 November 2020, which is evidently not the case.”
34.	Finally, the appellant submitted that these errors had particular relevance in the PIRS categories of Travel and Employability where the Medical Assessor found that the worker was “severely impacted without addressing the restrictions attributable to the motor vehicle accident on 24 November 2020”.
35.	The respondent submitted that the clinical notes of Dr Rees, her treating doctor, and other contemporaneous material referred to by the appellant were before the Medical Assessor at his examination. She submitted that he had “considered the documents sent to him”. She also submitted that the details of the DSP payment from Centrelink:
“are not before the Panel as they were not before the medical assessor and should not be accepted as having any relevance to the PIRS assessment made for that reason.”
36.	The respondent submitted that Guideline 11.12 state “the correct test for determining the 
s 323 deduction” in this case not s 323. She continued:
“The respondent agrees with the statement of law in paragraph 10, 11 and 12 of the submissions but submits that guideline 11.12 must be read in conjunction with “Cole v. Wenaline” and “Lewandowski”. The result here is that the medical assessor was correct in deducting the 10% for s 323 as he could not make a PIRS assessment of the worker pre-injury.”
37.	The reference to guideline 11.12 is possibly a reference to Guidelines 11.10 which deals with the methodology for assessing pre-existing impairments. The respondent submitted that 
Dr Rastogi and the medical assessor had correctly applied this clause and that Dr Bisht had “not applied SIRA guideline 11.12 correctly”.
38.	In respect of the assertion that the Medical Assessor had not considered the supervening motor vehicle accident, the respondent submitted that the Medical Assessor has stated that he has considered all of the material given to him. He is not required to refer “in detail for every clinical finding he has made”. She submitted that the medical assessor has “taken the effects of the Motor Vehicle Accident into account”.
Further medical examination
39.	Dr Glozier of the Appeal Panel conducted an examination of the worker on 22 November 2023 and reported to the Appeal Panel. In so far as it is relevant, his report is as follows:
“The worker’s medical history, where it differs from previous records:
Ms Peacock read out a prepared statement identifying what she says was her function prior to the injury because she said this has been incorrectly recorded. She noted she was first diagnosed with Bipolar Disorder in 1989 but returned to work fulltime. She completed a degree at UTS and then said she was in full remission between the ages of 18 and 34. She however also said that when she was 29 she was admitted for two-weeks because of hyperthyroidism but admitted herself to a psychiatric unit, and I believe this was for mania/hypomania In 2002, aged 35, she had a threatening sexually-harassing assault when in a cruiser cabin during a work social event. This led to a Post-Traumatic Stress Disorder which required extra treatment on top of her treatment for her Bipolar Disorder. She said she was ‘cut from the claim’ by the insurer. She then was on the Disability Support Pension for many years following that time. However she said that for periods she worked fulltime and completed further education. She had previously worked in the IT industry but later worked in hospitality and then was spending some time from 2014 onwards engaged in learning about Pranic Healing and increasingly focused on her Animal Link project. She moved to Port Macquarie in 2017 from Melbourne, she said to help her brother and mother look after her niece, Lily, who had significant emotional problems. Although she lived on her own, she would spend some time at her mother’s granny flat at the back of her brother’s house. She said she had been in a relationship with a man named Joel she was not contributing financially as she worked only a few hours with companies such as Stand Up Paddle, caring for a boy after school some hours a week. 
Although the Panel had asked for the complete set of GP notes, for some reason the consultations have been truncated at 15 February 2019. It is quite apparent from the pathology results contained within that she had been seeing her GP, Dr Rees, for well over a year prior and was taking mood stabilisers including Lithium and Seroquel. She was under the care of a psychiatrist, Dr B, and had been for some time, as well as a therapist Jan. She was being treated with Lithium and Quetiapine (Seroquel).
When the notes start in February 2019 she was being referred to an obstetrician and gynaecologist. On 4 March 2019 she had a consultation for right eye floaters and right arm pain, leading to an ophthalmology referral. On 7 March 2019 it was noted that Dr B had ‘not changed meds for a long time.’ However on 19 March 2019 Dr Rees recorded that her psychiatrist Dr B had called the surgery because ‘Lisa in manic episode.’ Her Seroquel was increased with additional prn medication and there was a plan for further antipsychotics if she did not settle. She did improve the following day - ‘seemed calmer’ - and it was noted there was major stressors at home and a referral to problems with her niece. She was already seeing a therapist and considering EMDR for her Post-Traumatic Stress Disorder (that presumably was extant at that time given this is a treatment for PTSD) and it was noted that she ‘worries EMDR might trigger distress. There is no GP consultation in the month of the injury. On 30 May 2019 she called her GP because she had been feeling suicidal over the past few weeks. There is no mention of any workplace injury but rather family stressors, high emotions, difficulties with her niece Lily, and her brother’s alcohol intake. It was noted that her dog was a good support and she went out for hikes but that she was not ‘as composed as usual.’ At this point it was noted her NDIS had been approved and she already had a case worker. She attended again three days later with no mention of any work problems and the increased dose of Seroquel that had been put in place in February was continued. The only other stressor was that she fended off a taxi driver who approached her inappropriately. It is on 21 May 2019 that the workplace event was first noted and a workers' compensation certificate put in place.
I asked Ms Peacock about the manic presentation in March 2019 to her GP and psychiatrist. She did not recall this but said that she had symptoms that might be like that, that were PTSD-related sometime after the injury. I also asked her about the NDIS application. An adult NDIS approval for a plan has a target date of 56 days. She said she was upset that it had taken some time for her GP to talk to her about this and that Dr Black had made the NDIS application some months prior to her being given the approval. She has a plan for $98,000 every two years, which consists of 27 hours of care per week. She noted that this has increased somewhat over time, that she is currently over-spending her package and has applied for a changed circumstances review.
She reports a significant number of NDIS support workers including Natalie who was there with her today but was in a different room, who helps her write emails, has done her CV, and does other aspects of writing, some of which she does with Ms Peacock and some hours she spends doing it not in her presence but for her. She has an occupational therapist, I believe called Jason, who is now focusing on preparing her and her seven-month-puppy for the process to become an emotional support dog over the coming months. She gets up to 7 hours a week with training, dog-walking and building confidence in him being in the community. She has Fiona for an hour at the weekend, and twice a week for a total of 10 hours an administrator called Kirsty. Kirsty helps her with all the administration work, doing calls, organising taxis, tax returns, invoicing and is helping her build her business with creativity, back-branding so that she can focus on the content. 
Additional history since the original Medical Assessment Certificate was performed
Ms Peacock reports ongoing symptoms and explained how she is able to support others and provide healing whilst at the same time not able to support herself, relying upon many of her NDIS workers and their package. In terms of current treatment, she sees a chiropractor weekly who works on her PTSD-related tension. He has apparently taught her to undertake massage underneath her ribs which she says stimulates her vagus nerve and helps her get back to sleep. She changed from her GP, Dr Rees, a few months ago because she said that Dr Rees was fraudulently bulk-billing her when she was not being seen and lost trust with her. For the past 3 or 4 months she has seen a new GP over the road. She stopped seeing her long-term psychiatrist, Dr Black, in 2021. She felt that Dr Black’s interpersonal boundaries, ‘talking to me about her disabilities’, stories of other people’s problems, and focus on CBT-style techniques were undermining their relationship and her growth. She said she was increasingly unable to tolerate stories of other people’s distress and so changed psychiatrists. She was then seeing Dr Candice Jensen, another psychiatrist, whom she engaged well with. She is aggrieved in that she said that iCare had a two-year obligation to pay her fees but would make frequent cancellations and non-payment, leading to Dr Jensen not seeing her for many months, although they had one bulk-billed appointment just the last week. She was commenced on a new antidepressant, Pristiq, and also had her Lithium slowly reduced. The GP notes indicate the Pristiq was helping as of July 2022. In early 2023 Dr Rees noted that she was also tapering her Seroquel. Due to bruxism her Pristiq was changed to Escitalopram and in January this year was also referred for an ADHD assessment. She completed an OT assessment for driving and driving lessons and has completed these and is able to drive. She stated today that over this year she has reduced her Lithium to zero but stays on the Quetiapine/ Seroquel 600mg nocte with some slow-dose 25mg prn. As of June 2023 it was noted she had ceased this and ‘generally feeling better off it.’ 
For some time she had a psychologist Annette Bliss, but stopped seeing her in the middle of 2023 because she says that this psychologist yelled at her when she asked for a letter of support for various pieces of paperwork. The GP notes then finish with her not going to appointments in July and August which would corroborate with her withdrawal from that practice. 
Ms Peacock says that she continues to live with her mother who, although has some illnesses, is functional. She sees less of her niece who is now 20 and says that she has lost this relationship because of how she has been. She has a reasonable relationship with her family and is comfortable with them when she sees them but is not the same person as she used to be. She spends a lot of time focusing on her new puppy. He comes in at 8pm and she settles him down. She then goes to bed at 9pm, having taken her medication soon beforehand. Her current medications are Quetiapine 625mg, Lamotrigine one tablet mane, Escitalopram ½ a tablet one day/one tablet the following, Vitamin B and occasional Osteo Panadol. When she goes to sleep she gets off easily but wakes around 1:30-2am, some four hours later. She goes to the toilet four times in the night and then can be up for some time, each time up to a maximum of two hours. She does a range of different techniques to get her back to sleep including listening to music, oms, meditating and vagus massaging, and then finally wakes up around 7am. She says she has to get dressing into thick clothes because the dog nips and they spend a couple of hours out in the yard playing and where he has his breakfast. 
Much of the day during the week is involved with her various support workers whom she sees for several hours each day and they help with a range of tasks around the home. She might go shopping with her mum but does not always go into the shops but might sit and have a coffee on her own and wait for her mother. She can drive alone although prefers to only do so with others. She has to go and see an insurance doctor down in Sydney in a week’s time and will have to fly there on her own but be dropped off and picked up by support people including her old friend from Sydney. Some time ago she was doing some independent living support work for three children with neurodevelopmental disorders. The family moved to Kempsey so the number of hours she does this for are reduced. However they will come down to Port Macquarie or she sees them over Skype but the amount of time has been reduced each week. Over the past couple of years she has done a lot of work with compassionate listening, skill development, helping the children complete their higher education and one of them get into a selective school. Interestingly she suggests he was almost non-verbal when she first saw him which generally would equate with a very low IQ but apparently he is now interested in being an engineer and making jewellery. She some Pranic Healing via Zoom or Teams which she finds very energising as she enters a spiritual realm. She has two clients in Sydney whom she will heal at the weekends. Otherwise there appears to be a lot of focus on the various activities, managing the different claims including this workers' compensation claim, the tail of the motor vehicle accident claim, and her NDIS packages. She will watch fairly undemanding TV such as Below Deck or artistic shows and describes her hobby as Pranic Healing and vibrational medicines as well as trying to focus on getting her dog skilled-up to become an emotional support dog although she is fearful that he may not do this because he is a cattle dog puppy. 
She reported that there are no ongoing sequelae from the motor vehicle accident. She said that her injuries were assessed at either zero or 2% by even her own doctors, although she has to attend for another one. She reports no ongoing psychological sequelae, short-term memory problems or any issues with what she says were labral tears previously which have been treated conservatively.
Findings on clinical examination
Ms Peacock was well-kempt with no signs of self-care problems. She had a mildly anxious affect. She showed excellent focus/concentration throughout the assessment for over 75 minutes, addressing discrepancies and pointing out where things were in various reports or deficits in such reports. For instance she suggested it was Gair Legal who had made the insertion of a manic episode into the record. She was a detailed, focused historian, keen to demonstrate the event at work the injury as the benchmark between her previous life and now. At the end she read out a prepared list of her function and her history for me in case this had not been recorded accurately. I took this down verbatim and I have summarised it above. She describes her moods as generally anxious, predominantly about the appointment but also being anxious outside, wary of people, not trusting and has evidence of this from recent interactions. She prefers not to be out with people and is looking forward to a time when she can have her dog with her so she can go to more isolated places or places with social supports. She is still wary of being in socially-demanding settings. She says she enjoys little apart from being with her dog and has little fun now. She has a middle insomnia, intrusive recollections of various traumatic features which may interfere at night, some middle insomnia and perceptions of being disabled/dysfunctional in a range of domains whilst also at the same time being future-focused and wishing to move on and attempting to do so, again with domains that fit her values such as complementary medicines and disability work. She reports no significant recent periods of hypomania or depression and says that she still has over $100,000 in the bank because she is saving for the future, only existing on her DSP and indicative of no impulsive spending. 
Results of any additional investigations since the original Medical Assessment Certificate
Nil.
Summary
Ms Peacock has a long-term history of Bipolar Disorder. It may be Bipolar I but I am unclear whether she had true psychotic episodes although she does occasionally use this term to describe some of her PTSD-style features. She had a prior episode of Post-Traumatic Stress Disorder following a sexual assault and entrapment which led to substantial symptoms and her deterioration, necessitating extended treatment. This was associated with some degree of dysfunction for some years afterwards, being placed on the DSP, although she was keen to identify how she had overcome many aspects of this dysfunction over time. 
It is apparent from the history and the contemporaneous notes that not only was she on the DSP, she had also made an application to the NDIS prior to the work injury which was accepted just after the work injury and the application made prior to that. This has led to significant help and a near-median level package for a psychosocial disability, in a range of life domains including self-care, employability, social interactions and cognitive function, organisation of her life and finances. It also apparent that she had what would appear to be – at the very least – a brief hypomanic episode just prior to the workplace incident, resulting in an increase in her mood stabilising/antipsychotic medication and consideration of further antipsychotic medication. As such the contemporaneous notes do not support her assertion of her being very stable just before the injury although she did start work at a few hours a fortnight.
With this information, it is apparent that a Section 323, one-tenth deduction is at odds with the available evidence that she was not very stable/fully-functional prior to the brief period of employment at the café. Furthermore, given the similarity of the event which objectively would not be so impactful in someone who did not have a previous psychiatric ,condition and very similar, if not more threatening and impairing, injury in 2002, she would not have decompensated into the severity and chronicity of her current Post-Traumatic Stress Disorder and associated impairment had she not had the previous episode, as well as potentially a Complex Post-Traumatic Stress Disorder background as well, as highlighted by several clinicians. At the very least a one-quarter deduction, and quite likely a one-half deduction, is warranted for the contribution of her significant pre-existing psychiatric condition to her current whole person impairment arising from the accepted injury, an aggravation of Post-Traumatic Stress Disorder. 
There is no evidence that there is any ongoing psychiatric sequelae to the motor vehicle accident and she specifically told me there was no psychological sequelae nor cognitive sequelae and in fact any short-term problems have resolved.”
FINDINGS AND REASONS 
40.	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. 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. 
41.	In Campbelltown City Council v 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.
42.	The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW. 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 Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the Medical Assessor without first identifying error. 
43.	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.”
44.	The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example, El Masri v Woolworths Ltd. 
45.	In the MAC, the Medical Assessor summarised the respondent’s primary psychological injury as post-traumatic stress disorder DSM5 and Bipolar 1 Disorder in full remission DSM5. He continued:
“Ms Peacock has suffered from a previous episode of PTSD in 2022 she has suffered from depression and a psychotic illness in 2002. Her depression and psychotic illness were understood as an exacerbation of her Bipolar 1 Disorder. The Bipolar 1 Disorder component of the injury resolved with her returning to the workplace as part of her rehabilitation in 2003. The PTSD component of the 2002 pre-existing injury took longer to resolve. Treatment ended for her PTSD in about 2008. Ms Peacock continued to accept psychiatric treatment for her Bipolar 1 Disorder as she had prior the 2002 existing injury.
Between the injury in 2002 and this primary psychological injury in April 2019, Ms Peacock has worked in various capacities. She had attended university and completed her Bachelor of Visual Communication. She had also completed a post graduate diploma of creating writing. She followed her family and settled close to her mother in Port Macquarie about 5 years prior to this assessment. She was on the Disability Support Pension.”
46.	The Medical Assessor continues:
“Ms Peacock was looking for more hours at work as she had become aware that she was entitled to work less than 30 hours a week while receiving a DSP. The employer was accessible and close to her mother’s home. She was renting a room and living independently prior to the injury. She was in an intimate relationship with a permanent partner Joel prior to the injury in 2019.”
47.	In respect of the supervening motor vehicle accident, the Medical Assessor recorded the following:
“Ms Peacock’s second motor accident was in 2020. She was driving her car with her mother as passenger. She stopped at the entry to a round-about and was hit at slow speed in the rear of her vehicle. She lodged a CTP treatment claim for injury to her shoulder. She had a labral tear to her shoulder joint. She was treated with conservative management. She did not suffer from psychological injury and had not received psychological treatment for this minor motor accident.”
48.	In respect of the provision of NDIS services, the Medical Assessor recorded that:
“Ms Peacock received NDIS services for the first time after the onset of this injury. NDIS prepare and cook her meals as well as prompt her to shower and maintain her personal hygiene.”
49.	The Medical Assessor then addressed the issue of a deduction pursuant to s 323 of the 1998 Act. He considered that there was no evidence that the respondent suffered a borderline personality disorder, a diagnosis previously suggested, on his assessment. He stated that both her bipolar disorder and post-traumatic stress disorder had “stabilised” prior to the subject injury. She was able to live independently, study successfully with her work having been published, and maintain an intimate relationship. The doctor therefore expressed the opinion that it was appropriate to make a deduction of one tenth pursuant to s 323(2) to reflect the contribution of a pre-existing condition to her impairment.
50.	The Medical Assessor considered the opinion of Dr Rastogi that 4% WPI should be deducted pursuant to s 323 and Guideline 11.10. He thought that it was difficult to understand her calculations and he did not agree with her assessment. The Medical Assessor also considered the opinion of Dr Bisht. Again, he stated that he did not agree with that assessment. He noted she had been assessed by NDIS and that she “did not receive NDIS prior to the onset of this primary psychological injury”.
51.	The appellant relied on the notes of Dr Rees to argue that there were factual errors in the history recorded by the Medical Assessor. It argues that the note of 3 May 2019 suggests that the respondent was living with her mother at the time of the injury of 15 April 2019. The note records family stresses at home and interpersonal conflict with and between her close relatives. The respondent reported to Dr Rees that she was “NDIS approved”. On 21 May 2019, Dr Rees recorded that the respondent suffered injury in her work at the appellant on 19 April 2019. On that day, Dr Rees signed an initial WorkCover certificate by which she stated that the respondent had suffered an exacerbation of complex post-traumatic stress disorder and stress as the result of the incident on 19 April 2019.  
52.	As the appellant submitted, it is highly improbable that the application to NDIS was made after the injury of 19 April 2019. The specialist psychiatrists of the panel concluded that it was inconceivable that a NDIS application for a psychiatric injury  could be made and approved in the few weeks between the injury and the consultation of 3 May 2023. The need for assistance in daily living predated the work injury. Conversely, the entry of 3 May 2019 does not conclusively establish that the respondent was living home at the time of the incident. It is plausible that she left her rented apartment and moved home in the interval between 19 April 2019 and 3 May 2019.
53.	The appellant also relies on the entries in the clinical notes of Dr Rees’s practice, following the car accident on 26 November 2020. It submits that the notes establish that the respondent suffered a supervening psychological injury in that incident which the Medical Assessor failed to address and her inability to drive results from injury.
54.	On 6 November 2020, Dr Lena Zhou recorded that the respondent had a car accident the previous Tuesday afternoon. She was the driver of a vehicle which was rear-ended by another vehicle travelling at 50kmph. Dr Zhou recorded that the respondent suffered the following:
“–	PTSD exacerbation;
-	Tremors
-	Unable to focus at work
-	Likely concussion
-	Headache and pressure in the occiput
-	Visual blurring 
-	Nausea
-	Neck pain
-	Uncoordinated/imbalance
-	Forgetfulness
-	Unable to follow instructions”
55.	On 27 November 2020, Dr Zhou recorded that the respondent had suffered an exacerbation of post-traumatic stress disorder/concussion in the motor vehicle accident. She had seen a trauma counsellor and was to have an expedited referral to a psychiatrist. A CTP claim form was contemplated by the doctor.
56.	On 8 December 2020, at another consultation concerning the motor vehicle accident, the following was noted:
“- 	Psychological trauma and stresses with poor sleep
-	Flashbacks
-	Reluctance going in the car and driving
-	Phone consult Dr Catherine Black
-	More in keeping with acute distress disorder rather than an exacerbation of PTSD given onset of symptoms”
57.	On 22 December 2020, the respondent saw Dr Rees and told her that she felt she could not drive, due to anxiety.
58.	On 5 January 2021, Dr Zhou noted that symptoms persisted. The respondent was suffering forgetfulness, headaches, and experiencing visual changes. She wished to see a neurologist.
59.	On 13 January 2021, Dr Zhou provided the respondent which a referral to a neurologist which stated:
“She had symptoms of concussion following the accident, however symptoms had persisted in spite of a normal CTB, MRI Brain and Neck (results attached), and continues to see Dr Catherine Black (psychiatrist), for a likely flare in her complex PTSD.”
60.	On 5 March 2021, Dr Rees recorded that:
“The ongoing post-concussive symptoms she feels are poor memory, cognitive slowing, and headaches and all this has exacerbated her complex PTSD.”
61.	On 27 November 2020, Dr Zhou issued a CTP medical certificate in which he diagnosed concussion and an exacerbation of post-traumatic stress disorder flowing from the motor vehicle accident. There are several CTP certificates in the material produced by Dr Rees which refer to anxiety and exacerbation of post-traumatic stress disorder.
62.	The above history strongly suggests that the respondent did suffer, at least, a transient exacerbation of psychological illness as a result of the vehicle accident. It also suggests that she was driving a vehicle up to the time of the motor vehicle accident and that her subsequent inability to drive related to that accident. 
63.	In the opinion of the panel, the Medical Assessor erred in concluding that the respondent’s acceptance by NDIS resulted from disabilities associated with the work injury and in failing to consider the explicit evidence of psychological injury in the supervening motor vehicle accident. These errors are material to the PIRS categories of travel and employability challenged by the respondent. The error in respect of NDIS goes to the factual assumption underlying the Medical Assessor’s deduction for a pre-existing condition, namely that the respondent “sustained an independent lifestyle” and “was independent in her capacity to self-care” before the subject accident. These errors necessitated a further medical examination. The panel concluded that these aspects of the history should be put to the respondent as a matter of fairness. It also requested the respondent’s solicitor to provide the panel with a full set of the notes of Dr Rees. However, no further documents have been provided to the panel by either party.
64.	Following Dr Glozier’s medical examination, the panel reconvened and considered his assessment of the respondent. The panel accepted that the additional history obtained by Dr Glozier did not establish that the respondent had significant ongoing psychological problems as a consequence of the motor vehicle accident. While it was likely that the respondent’s inability to drive arose from the motor vehicle accident, this did not invalidate the Medical Assessor’s determination in the PIRS category of Travel, which he assessed as a mild impairment. While the respondent plainly drove a vehicle after her work injury, it is probable that she fell within the descriptors for Class 2 in Table 11.3 of the Guidelines.
65.	Conversely, the panel concluded that the respondent’s acceptance into the NDIS scheme on the basis of an application made prior to the injury was only consistent with the existence of long term sequelae of her previous psychiatric illness. Equally, her referral to Dr Black for a manic episode several weeks before the injury suggests a significant residue of her previous injury/illness. These matters confirmed significant  factual errors in the  in the MA’s conclusions  as to her preinjury health and in assessment of the proportion of the respondent’s WPI which resulted from  a pre-existing condition /previous injury. The panel accepted Dr Glozier’s conclusions that the respondent’s reaction to the work incident, her subsequent psychological illness, and her present impairment have each been significantly magnified by her prior longstanding psychological condition. Those conclusions were plainly consistent with the totality of the evidence in the case.
66.	Section 323 of the 1998 Act which deals with deductions for previous injury or pre-existing condition is as follows:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note : So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter. The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section
Note : Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies.”
67.	In Pereira v Siemens Ltd, Garling J considered the correct approach to the application of s 323 in the light of the case law from the Court of Appeal and Supreme Court. At [82] to [90], he said this (omitting paragraph numbers and footnotes):
“The process encompassed by s 323 requires the application of each of the following steps before reaching the ultimate conclusion of the existence of a pre-existing injury which has an impact on the assessment of the injury the subject of the worker’s claim.
The first step requires a finding of fact that the worker has suffered an injury at work which has resulted in a degree of permanent impairment which has been assessed pursuant to s 322 of the 1998 Act:
see Elcheikh at [125].
The second step which needs to be addressed is, assuming such an injury has been sustained and impairment has resulted, what is the extent of that impairment expressed as a percentage of the whole person: see Cole v Wenaline Pty Ltd [2010] NSWSC  78 at [38]; Elcheikh at [126].
The third matter to be addressed is whether the worker had any previous injury, or any pre-existing condition or abnormality. The previous injury does not have to be one in respect of which compensation is payable under the 1998 Act. If the phrase “pre-existing condition or abnormality” is to be relied upon, then such condition or abnormality must be a diagnosable or established clinical entity: Fire & Rescue NSW v Clinen [2013] NSWSC 629.
A finding of the existence of a previous injury can be made without the presence of symptoms, but there must be evidence which demonstrates the existence of that pre-existing condition: Mathew Hall at [31]-[32].
The pre-existing injury or condition must, on the available evidence, have caused or contributed to the assessed whole person impairment: see Matthew Hall at [32]; Cole at [29]-[31]; Elcheikh at [88] and Ryder at [42].
It cannot be assumed that the mere existence of a pre-existing injury means that it has contributed to the current whole person impairment: Clinen at [32]; Cole at [30]; Elcheikh at [91]. What must occur is   that there must be an enquiry into whether there are other causes of the whole person impairment which reflect a difference in the degree of impairment: Ryder at [45].
Next in dealing with the application of s 323, the extent of the contribution, if any, of the pre-existing condition to the current impairment must be assessed in order to fix the deductible proportion. If the extent of the deductible proportion will be difficult or costly  to determine, an assumption is made that the deductible proportion will be fixed at 10%, unless that is at odds with the available evidence: s 323(2) of the 1998 Act.
Each of these steps, and considerations, is a necessary element of a determination that an assessed whole person impairment is to be reduced by a deductible proportion by virtue of the application ofs323 of the 1998 Act.”
68.	In Marks v Secretary, Department of Communities and Justice (No 2),  Simpson J in the Supreme Court held that Chapter 11.10 of the Guidelines was ultra vires when the pre-existing psychiatric condition was asymptomatic. She said this at [29]:
“I have therefore concluded that Guideline 11.10 of the Workers Compensation Guidelines is, to the extent that it excludes, in the application of s 323(1) of the WIM Act to any psychiatric or psychological impairment, consideration of any contribution made to the impairment by a pre-existing but asymptomatic condition, inconsistent with s 323(1) and invalid.”
69.	In Camden Council v Harle, after considering Marks, the Medical Appeal panel concluded that:
“We are accordingly satisfied that the whole of cl 11.10 of the Guides is inconsistent with s 323 of the 1998 Act and invalid.”
At [123] and [124], the Member stated:
“123.	I acknowledge that the express words of s 323(1) require that some definite part, even if it is difficult or costly to assess in precise terms, of the impairment has been caused by, in this case, a pre-existing condition. But the interpretation adopted by the Court of Appeal is that the section is engaged if the pre-existing condition, or previous injury where applicable, is a concurrent necessary condition, with the work injury, of the degree of permanent impairment.”
124.	Clause 11.10 is inconsistent with this principle. It does not allow a consideration of the effect of a particular pre-existing condition concurrent with the work injury, let alone a consideration of the degree of permanent impairment that pre-existing condition would have contributed to the work injury WPI.”
70.	In Adler v State of New South Wales (Royal North Shore Hospital - HealthShare NSW), the panel reached a similar conclusion. It stated:
“Insofar as [11.10] of the Guidelines stipulates that in the deduction under s 323(1) must be one tenth, then it would be inconsistent with the stipulation in s 323(1) that there must a deduction for “any proportion” of a worker’s permanent impairment that is due to the pre-existing condition. In other words, where the evidence substantiates that the proportion is greater than one-tenth, [11.10] of the Guidelines is inconsistent with s 323(1) and cannot be applied].”
71.	In this case, the panel concluded that the evidence unequivocally led to the conclusion that a deduction of 1/10th was plainly at odds with the available evidence. Bearing in mind the totality of the evidence and the numerous admonishments against speculation in the caselaw, the panel concluded that a deduction of 1/3rd best reflected the proportion of the impairment that is due to a pre-existing condition in this case. At the time of her injury, the respondent remained under the care of a psychiatrist and psychologist for her pre-existing condition illness. She was being treated with Seroquel. Her condition was not stable. She had applied for significant assistance in the activities of daily living through the NDIS scheme. Her longstanding illness undoubtedly contributed to her injury. It undoubtedly contributed to her significant impairment in her activities of daily living.
72.	The panel also concluded that any attempt to assess the respondent’s pre-existing condition by resort to the PIRS scale would require speculation or guess work. In conformity with the reasoning in Harle and Adler, the panel held that  Chapter 11.10 of the Guidelines is either invalid for inconsistency with s 323 or, alternatively, the last sentence in 11.10 is inapplicable in the circumstances of this case as it cannot be applied where the proportion of the impairment that is due to the pre-existing condition is manifestly greater than one-tenth. The panel finds that the proportion of the appellants impairment due to a previous injury or pre-existing condition is one third. After this deduction the respondent’s WPI is 13%.
73.	For these reasons, the Appeal Panel has determined that the MAC issued on 17 April 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

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

Matter number:	W673/23	
Applicant:	Lisa Ann Peacock	
Respondent:	K A Hutchins & B R Youssef t/as Bazil’s Café	

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 Baker 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 injury	15 April 2019	Chapter 11, pages 60-68	Chapter 14	19%	1/3rd.	13%	

Total % WPI (the Combined Table values of all sub-totals)             
	13%	

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002