DETERMINATION OF APPEAL PANEL	
	
CITATION:	Hallinan (previously Rixon) v Finding Yellow Ltd [2024] NSWPICMP 369	
		
APPELLANT:	Jessica Hallinan (previously Rixon)	
		
RESPONDENT:	Finding Yellow Limited	
		
Appeal Panel		
		
MEMBER:	Deborah Moore	
		
MEDICAL ASSESSOR:	Michael Hong	
		
MEDICAL ASSESSOR:	Nicholas Glozier	
		
DATE OF DECISION:	6 June 2024	
		
CATCHWORDS: 	wORKERS cOMPENSATION - The appellant submitted that the Medical Assessor (MA) erred in failing to make any assessment in respect to treatment effects and failed to provide any reasoning process for that assessment; appellant had several other medical conditions and the MA failed to distinguish those in making the assessment; Held –the appellant had not had an “apparent substantial or total elimination of the appellant’s permanent impairment”; Zoric v Secretary, Department of Education & Ors applied; 0% for the effects of treatment was correct; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 19 March 2024 Jessica Hallinan (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, (MA) who issued a Medical Assessment Certificate (MAC) on 21 February 2024. 
2.	The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act): 
•	the assessment was made on the basis of incorrect criteria, and
•	the MAC contains a demonstrable error.
3.	The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made. 
4.	Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
5.	The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
PRELIMINARY REVIEW
6.	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.
7.	As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because none was requested, and we consider that we have sufficient evidence before us to enable us to determine this appeal.
EVIDENCE
Documentary evidence
8.	The Appeal Panel has before it all the documents that were sent to the MA for the original medical assessment and has taken them into account in making this determination. 
SUBMISSIONS 
9.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
10.	In summary, the appellant submits that the MA erred in failing to make any assessment in respect to treatment effects and failed to provide any reasoning process for that assessment.
11.	In reply, the respondent submits that no errors were made.
FINDINGS AND REASONS 
12.	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. 
13.	In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
14.	The respondent was referred to the MA for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury occurring on a date of injury of 15 June 2021. 
15.	After setting out details of the circumstances of the injury, the MA then noted present symptoms as follows:
“Ms Hallinan is currently working, 15 hours a week, and works from home. She works at her mum’s workplace, and with people she has known for 15 years. The work is at a Disability Organization, it’s a low demand and low pressure environment. She works in quality and compliance, works in policy and procedures, and is currently working on an audit. She does not need to go to meetings, reports to her line manager who is her mum. She was going to [the] office, which was more challenging, so she works from home. She started to work in January 2022 and slowly increased the hours of work, as she was struggling with money and was homeless, and was the primary income earner in her marriage. She has ongoing fear of being around people, felt she needed inpatient psychiatric treatment 2-3 times, for her safety, but never took it.
Ms Hallinan is awake by 2-3 am, does a lot of wandering around in circles. She has been trying to motivate to do things, tries to do things in the morning rhythm, leaves half-completed jobs, struggles to watch TV and just watches Tiktok. On the days she works, reads emails and responds to people, and her boss is pretty flexible with her work. She struggles to sleep even when tired, wakes up a few times, has initial insomnia, tends to do a protein shake as not very hungry, may get suicidal thoughts, no self-harm, feels frustrated, and no plans or intent to harm self. She is not having symptoms of PTSD currently, no flashbacks, no nightmares, but may get hypervigilant around people.
Ms Hallinan was married in 2014 and officially separated in 2022. Her ex-husband has 95% of the shared care of her twin children. She struggles to look after them and forgets their medical appointment. She lives in a townhouse where her sister lives next door. She may leave the stove on and forget about it. She does not have enjoyment in her life. Her best friend relocated from Melbourne and has moved in to live with her.”
16.	Present treatment was noted as follows:
“Ms Hallinan is not on any antidepressants currently. She takes Vyvanse 70 mg daily for ADHD. She continues to see Sarah Baker, Psychologist, on a weekly to fortnightly basis and is working on cognitive behavioural therapy.”
17.	As regards her past history, the MA said:
“Ms Hallinan told me that Dr Burton, psychiatrist, diagnosed her with ADHD in 2020. She has a previous diagnosis of Complex PTSD and took treatment for the childhood incidence, around the age of 20 years. Developed post -natal depression in 2016, after quite a traumatic twin pregnancy and birth. From being an executive she went down and stopped working, and took medication for 12 months.
I have noted from report of Dr Surabhi Verma , psychiatrist:
She reported having symptoms of self-harming, feeling angry and irritable, depressed and feeling teary and started having those symptoms when she was 10 years. She remembers truanting, delinquent, and conflicts with her parents. She also experienced nightmares about the sexual abuse. She disclosed about her sexual abuse when she was about 20 years. She then started seeing a Psychiatrist and was trialled on Seroquel, which was later stopped as she was having side effects. She was then recommended antidepressants for 12-18 months and then stopped it as she was doing pretty well. She also saw a Psychologist through Community Mental Health for about 12-18 months. She reflected that after that she was asymptomatic. She since then has become an advocate of mental health and has spoken at seminars. She was diagnosed with ADHD in 2020. She also experienced Postpartum Depression after the birth of her twins in 2016 and took medications for the same for about 1 year. She saw a Perinatal Psychiatrist and was advised that she didn’t need any psychiatrist input and would benefit from psychological input. She reported that after the birth triggered her own anxieties and traumatic experiences as a child. She said that her own Mum who was a clinician was not able to protect her and thought that she might not be able to protect her children. She has trialled multiple antidepressants - Zoloft, Pristiq – other SSRI and SNRI categories. She has also completed Cognitive Behaviour Therapy and Dialectical Behavioural therapy when she was in her 20s. She has also completed EMDR for her trauma and ACT. She said that it seems that the therapies worked, and she went on to work. She said that she was not on any medications until 2020 when she was diagnosed with ADHD.”
18.	Findings on mental state examination were reported as follows:
“Ms Hallinan was well-kempt and dressed appropriately but appeared in distress and upset. She was cooperative, and rapport was well-established. She was casually dressed and appeared clean. The mood described was low and sad and had a restricted and dull effect. She described low motivation, low energy, and no pleasurable thoughts. There was no formal thought disorder and no symptoms of psychosis. She denied thoughts of self-harm or suicide. She doesn’t think about her future and is worried about how things have changed. She was oriented and had clear sensorium. She struggles to focus and reports poor levels of concentration. She had good insight into her problems and was seeking help.”
19.	In summarising the injuries and diagnoses, the MA said:
“Ms Hallinan meets the DSM 5 criteria of Major Depressive Disorder:
She has the below highlighted symptoms-
Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure.
Note: Do not include symptoms that are clearly attributable to another medical condition.
• 	Depressed most of the day, nearly every day as indicated by subjective report (e.g., feels sad, empty, hopeless) or observation made by others (e.g., appears tearful)
• 	Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by subjective account or observation)
• 	Significant weight loss when not dieting or weight gain (e.g., change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day
• 	Insomnia or hypersomnia nearly every day
• 	Psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down)
• 	Fatigue or loss of energy nearly every day
• 	Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick).
• 	Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others)
• 	Recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide
The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.”
20.	The MA added:
“Ms Hallinan has developed Major Depressive Disorder following bullying and harassment at work during her employment with Finding Yellow Limited, as an Accommodation Manager for Supported Independent Living.
She has pre-existing diagnosis of Depression, Complex PTSD and Adult ADHD.”
21.	The MA confirmed that the appellant had reached maximum medical improvement (MMI).
22.	She then turned to consider the other medical evidence before him and explained where her opinion differed where relevant.
23.	She assessed 15% WPI from which she deducted 1/10th in respect of the pre-existing conditions referred to above.
The submissions
24.	The appellant’s submissions may be summarised as follows:
(a)	the treatment regime is set out in the appellant’s statement.
(b)	Notwithstanding a prior abuse history, the appellant had engaged in life and employment prior to the incidents whilst in the employ of the respondent. As recorded by Dr Verma when provided with treatment she did well. After a period of time, and treatment, she was asymptomatic.
(c)	The treating psychiatrist, Dr Burton, noted on 9 August 2021 that since commencing medication the appellant’s condition had improved and was more stable. That improvement with medication continued along with other treatment modalities.
(d)	During the period March 2023 to September 2023 the appellant had received “at least 30 sessions of TMS, 5 days a week for six weeks” and was then undertaking maintenance treatment.
(e)	Beyond the Transcranial Magnetic Stimulation (TMS) treatment, the appellant was, and is provided with ongoing psychological and psychiatric treatment that enabled to continue, to varying degrees, to engage in limited employment. Further treatment was provided by a “mental health OT”.
(f)	As is evident from the clinical records and the various reports, the treatment provided enabled the appellant to continue engagement with employment, albeit with restrictions. Having regard to the treatment regime provided, specifically including the extensive psychological and psychiatric treatment when associated with the TMS regime, it is evident that there has been significant impact upon the appellant.
(g)	As at the time of examination by the MA a history was obtained by him that the appellant was not taking any medications, but was continuing to see a psychologist on a weekly to fortnightly basis “and is working on cognitive behaviour therapy”. He makes no mention of TMS treatment and its effects in the body of his report, other than to observe that the appellant had received the maintenance phase of TMS. He also refers to it in the Table 11.8 Psychiatric Impairment Rating Scale (PIRS) Form, but only insofar as it being a treatment and that the appellant drives to the appointments. He does not engage in questions as to effectiveness or improvement.
(h)	The MA proceeds to analyse the difference in his assessment as opposed to the assessment of Dr Canaris and Dr Verma. This demonstrates an engagement with the reasoning process in respect to the PIRS categories to be applied in assessing the degree of impairment. Nowhere, however, does he engage with the assessment of, reasoning in relation to, or differences in assessment in respect to the assessment for treatment effects. No basis is set out for his assessment which was against the preponderance of the evidence.
(i)	Both Dr Canaris and Dr Verma assessed the impact for treatment affects and made adjustments accordingly. 
(j)	The difficulty with the MA is that he simply, in a proforma part of the PIRS table, states “Treatment effects = 0%”. No rationale or reasoning process is provided. No analysis is undertaken. Indeed under section 10 of his report, as is appropriate, he engages with the reasons for assessment and the last two bullet points on the page sets out his agreement with each of Dr Verma and Dr Canaris.
(k)	The assessment in respect to the issue treatment effects, is contrary to the available evidence and notwithstanding the fact that the determination is contrary to the evidence, no reason is provided or evidenced as to the basis for the 0% allowance.
25.	The respondent’s submissions may be summarised as follows:
(a)	On page 4 under the heading ‘Present Treatment’ the MA said: “Ms Hallinan is not on any antidepressants currently. She takes Vyvanse 70mg daily for ADHD. She continues to see Sarah Baker, Psychologist, on a weekly to fortnightly basis and is working on cognitive behavioural therapy.”
(b)	The modifier from the effects of treatment is only available where there has been effective long-term treatment which has resulted in “apparent substantial or total elimination” of the relevant impairment.
(c)	It is clear from the comments of the MA that the appellant has not had effective long term treatment, and has in fact deteriorated with treatment.
(d)	The assessment of Dr Canaris with regard to the effects of treatment is inconsistent with subsection 1.32 of the Guidelines. He said: “She is having ongoing treatment from a psychologist and a psychiatrist and is on a significant regime of psychotropic medication. She nevertheless remains quite symptomatic. I would consequently add 2% to adjust for treatment effects.”
(e)	This assessment does not evidence a substantial or total elimination of symptoms. 
(f)	The reports of the appellant remaining symptoms [sic] despite treatment are consistent with the finding of 0% WPI for the effects of treatment as made by the MA.
Discussion
26.	Sub-section 1.32 of the Guidelines provides:
“Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant’s permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief.”
27.	A similar issue was recently dealt with by the Supreme Court in Zoric v Secretary, Department of Education & Ors [2024] NSWSC 131 where Chen J said:
“The clause may thus be understood to involve, and require findings about, the following ‘steps’:
1.	First, whether there has been effective long-term treatment of an illness or injury.
2. 	Secondly, whether that treatment results in apparent substantial or total elimination of the claimant’s permanent impairment.
3. 	Thirdly, whether the claimant is likely to revert to the original degree of impairment if treatment is withdrawn.
Upon satisfaction of each step, the medical assessor may increase the percentage of WPI by 1%, 2% or 3%. no submissions were directed to the proper construction of it – in particular, the meaning to be given to the term ‘may’ (broadly, whether it is discretionary or mandatory).
In relation to the first step, therefore, there needs to be a finding about the ‘illness or injury’ that results in permanent impairment and whether there has been effective long-term treatment of that ‘illness or injury’.
In relation to the second step, that enquiry involves a comparative exercise being performed, the nature of which was explained in Peachey v Bildom Pty Ltd (Quality Siesta Resort Pty Limited and Quality Hotel) [2020] NSWSC 781 at [52] as follows:
‘Clause 1.32 requires a comparison to be made between the claimant’s original degree of impairment as a result of the injury before the effective treatment and the claimant’s degree of impairment as a consequence of treatment to determine whether the treatment has resulted in apparent substantial or total elimination of the original impairment. The comparison is to be made between the respective impairments at those two relevant times. I consider this construction to be clear from the wording of the clause… 
In relation to the third step, the question is whether the claimant’s impairment is likely to revert to the original degree of impairment if treatment is withdrawn. Plainly, the resolution of this question is likely to be informed, perhaps significantly, by the findings in relation to the first and second steps.’”
28.	Before addressing the steps referred to above, we at this stage make the following observations about this particular case.
29.	Firstly, it is entirely unclear whether the appellant remains on the TMS regime. The appellant stated that she was on the program… “during the period March 2023 to September 2023…5 days a week for six weeks and was then undertaking maintenance treatment.”
30.	The MA saw her in February 2024 and recorded that her present treatment consisted of medication for attention deficit hyperactivity disorder (ADHD) and visits to her psychologist “on a weekly to fortnightly basis and is working on cognitive behavioural therapy.”
31.	There was no mention of TMS.
32.	In the table accompanying the MAC, the MA did say that the appellant: “drives to the TMS place” but again, it is unclear whether that is what she currently does or whether that was the case in the past. Given the context in which it was mentioned, that is, regarding her ability to travel, we simply do not know.
33.	In summarising the injuries and diagnoses, the MA noted that the appellant still had the following symptoms that fulfilled the diagnostic criteria for an ongoing major depressive disorder.
“• 	Depressed most of the day, nearly every day as indicated by subjective report (e.g., feels sad, empty, hopeless) or observation made by others (e.g., appears tearful)
• 	Markedly diminished interest or pleasure in all, or almost all, activities most of nearly every day (as indicated by subjective account or observation)
•	Insomnia or hypersomnia nearly every day
• 	Psychomotor agitation or retardation nearly every day
• 	Feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick).
• 	Diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others).”
34.	The MA also recorded that the appellant “may get suicidal thoughts” and “may get hypervigilant around people”.
35.	The range and severity of symptoms do not suggest that there has been effective long-term treatment of her injury which had been present at the time of the assessment for over two and half years. 
36.	So turning to the particular steps, we note that the appellant has a work injury and is being treated for a major depressive disorder.
37.	We accept that TMS and psychotherapy are effective long-term treatments for Major depressive disorder, even though the research evidence for maintenance TMS is not particularly robust. The panel also notes that the appellant became more unwell and impaired whilst receiving psychotherapy. The general practitioner records indicate that in April 2021 she had had four sessions of psychological treatment at the Kotara Medical Centre and received a mental health care plan to continue this.
38.	From all of the evidence referred to above of her chronic and clinically impairing symptoms, we do not agree that in the appellant’s case her current treatment regime has been effective in treating her work injury.
39.	Neither has there been an “apparent substantial or total elimination of the appellant’s permanent impairment.”
40.	It seems that on occasions her condition did seem to improve with treatment, enabling her to perform some work and engage in some social activities, but all the evidence suggests that there has been no long-term improvement such that it could be said that there has been “substantial or total elimination” of her impairment.
41.	The Appeal Panel noted to compare impairment before and after treatment is scientifically difficult, because people often engage in multiple simultaneous treatment and any improvement, may be due to one or more treatments, some of which the appellant may not be receiving anymore, and an improvement may also be due to factors unrelated to treatment, as people often fluctuated in their functioning during the active phase of treatment. In the present case, there is no evidence of substantial or total elimination of impairment comparing before and after the treatment she is currently having, although there has been some improvement in some aspects from her worst. The Appeal Panel also note that it cannot use the usual WPI method for evaluating impairment and apply this to a comparison of impairment before and after treatment.
42.	The appellant submitted that “the treatment provided enabled the Applicant to continue engagement with employment, albeit with restrictions.” 
43.	However the MA identified that much of this limited improvement in her functioning/impairment is not the result of her treatment, but through support and accommodation by family and friends. The MA recorded that she is able to work part time because “She works at her mum’s workplace” and “she does not need to go to meetings, reports to her line manager who is her mum.” In terms of her home management “She needs a lot of intervention from family and friends, Mum paid for cleaner, and she struggles to maintain it,” and “The kids have stayed for the night, but she needs support to look after them.”
44.	As the first two steps in paragraph 1.32 need to be satisfied before considering the third step the issue as to whether the appellant “is likely to revert to the original degree of impairment if treatment is withdrawn” is irrelevant.
45.	As such the Appeal Panel does not find reasons supporting the appellant’s assertion that she has met either of the first two steps of paragraph 1.32 of the guideline required by to increase the WPI. 
46.	We therefore agree with the MA’s assessment of 0% for the effects of treatment.
47.	Although not part of the Appeal Panel’s reasoning the Appeal Panel note that MMI is defined in paragraph 1.15 as “when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.” This would seem to imply that to ascertain an injured worker has reached MMI the MA must decide that if the worker goes “without medical treatment” i.e. current treatment is withdrawn, a substantially or totally eliminated impairment would be unlikely to change. 
48.	For these reasons, the Appeal Panel has determined that the MAC issued on 21 February 2024 should be confirmed.