DETERMINATION OF APPEAL PANEL	
	
CITATION:	Yates v Uniting (NSW ACT) [2021] NSWPICMP 170	
		
APPELLANT:	Tanya Yates	
		
RESPONDENT:	Uniting (NSW ACT)	
		
Appeal Panel:	Member Paul Sweeney
Dr Douglas Andrews
Professor Nicholas Glozier	
		
DATE OF DECISION:	15 September 2021	
		
CATCHWORDS: 	wORKERS cOMPENSATION-  Worker with psychological injury alleged error in the assignment of Class 2 in the psychiatric impairment rating scale (PIRS) scale for concentration, persistence and pace and in respect of the deduction of 1/10th for a pre-existing psychological condition pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 and/or Guideline 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016; alleged that the consideration of the worker’s employment tasks for the purpose of assessing concentration impermissible; Held - Panel held that this did not constitute error in the context of the evidence including the physical examination of the Medical Assessor; Ballas v Department of Education (State of NSW) distinguished; Marks v Secretary, Department of Communities and Justice (No. 2) considered and applied in respect of alleged error in deduction for pre-existing condition; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 16 June 2021, Tanya Yates (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 8 June 2021.
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,
•	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 grounds of appeal on which the appeal is made. 
4.	The WorkCover Medical Assessment Guidelines 2006 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 the WorkCover Medical Assessment Guidelines 2006.
5.	The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). 
RELEVANT FACTUAL BACKGROUND
6.	The appellant has suffered from depression for most of her life. Over the last several years, the condition has been successfully controlled by the prescription of Pristiq. For many years, the appellant has been employed by the respondent at its premises at Farmborough, at Unanderra, as a care coordinator. 
7.	During 2019, the appellant experienced a number of unsettling events resulting from the restructuring of the respondent’s operation and interpersonal conflict at Farmborough which caused a psychiatric illness. 
8.	On 1 October 2019, she consulted Dr Khan, her general practitioner, who certified her as unfit for work and referred her to a psychologist for treatment. When her condition did not abate, she was referred to a psychiatrist Dr Austin-Woods, who she continued to see on a regular basis.
9.	The respondent accepted liability for the appellant’s psychological condition. She has been paid weekly compensation in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 Act). The appellant has not returned to work with the respondent. However, she has recently obtained alternative part-time employment.
10.	By these proceedings, the appellant claims permanent impairment compensation pursuant to s 66 of the 1987 Act. Her claim for that compensation is based upon the opinion of Dr Martin Allan, a psychiatrist who saw her at the request of her solicitor on 6 November 2020 and provided two reports of that date. Dr Allan expressed the opinion that the appellant suffered a major depressive disorder caused or materially aggravated by her employment. He thought that the disorder would “continue to affect her in her current basis i.e. in the long term there is the potential for some worsening of her mental state”. He thought that she should continue to undergo treatment from her psychologist and psychiatrist. 
11.	Dr Allan expressed the opinion that the appellant suffered permanent impairment as a result of the injury. On the psychiatric impairment rating scale (PIRS) prescribed by the Guidelines, he assessed 15% whole person impairment (WPI). He made no deduction for a pre-existing condition despite the extensive prior psychological history that he recorded in his report. He said this:
“This gives her a 15% level of whole person impairment as there is no evidence of any past functional impairment. I do not make any deductions for any pre-existing condition.”
12.	Dr Kaplan, a psychiatrist saw the appellant at the request of the respondent on two occasions. He provided reports dated 18 November 2019 and 3 March 2021. By his initial report, he diagnosed adjustment disorder with depression and anxiety. He thought that the diagnosis of major depressive disorder was “a more remote possibility”. By his report of 3 March 2021 Dr Kaplan noted that the appellant continued to take Pristiq, Seroquel, and Betablockers. He assessed 7% WPI on the PIRS scale. However, he added 1% WPI on the basis that treatment had significantly improved the appellant’s functioning. He made no deduction for a pre-existing condition or injury pursuant to s 323 of the 1998 Act.
13.	The difference of opinion between Dr Allan and Dr Kaplan gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act. Accordingly, the President referred the dispute to a medical assessor, Dr Michael Hong, for assessment. Dr Hong certified that the appellant suffered 7% WPI as a result of the injury. It is from his assessment that the appellant appeals.
PRELIMINARY REVIEW
14.	The appeal panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
15.	As a result of that preliminary review, the panel determined that it was unnecessary for the appellant to be re-examined by a medical practitioner who is a member of the panel. Neither party sought such a re-examination. Further, the panel was unable to find any error in the medical assessment certificate which would provide the legal foundation for a re-examination of the appellant.
EVIDENCE
16.	The panel had before it all the documents which were available to the MA and has taken them into account in reaching its conclusions.  
Medical Assessment Certificate
17.	The parts of the medical certificate given by the MA which are relevant to the appeal are set out in the body of this decision. 
SUBMISSIONS 
18.	Both parties made written submissions. They are not repeated here in full but have been considered by the appeal panel. 
19.	The basis of the appeal is twofold. First, it is alleged that the MA erred in his assessment of the PIRS category of concentration, persistence and pace. Secondly, the appellant alleged that the MA erred in making a deduction for a pre-existing condition pursuant to s 323 of the 1998 Act.
20.	The appellant contends that the MA erred in that he “mistakenly used the Appellant’s work capacity as being reflective of her level of concentration”. This was compounded by the MA’s failure to understand the extent and duration of her work duties.
21.	The appellant noted that her statement, dated 10 March 2021, confirms “that she has difficulty concentrating and often becomes restless”. The statement also recounts that she “loses track” while watching movies and “needs to use a calendar for appointments”.
22.	The appellant sets out the descriptors for class 2 and class 3 in the PIRS category of concentration, persistence and pace. She notes that both Dr Allan on 6 November 2020, and more recently Dr Kaplan on 3 March 2020 assessed the appellant in class 3 for this category. It is argued that the MA provided no reasoning as to why his assessment differed from that of Dr Allan and Dr Kaplan. The latter saw her after she started her current employment. Thus, her psychological health and her circumstances were the same as at the time she was examined by the MA.
23.	Finally, the appellant submits that she would be more appropriately rated as a class 3 for this category bearing in mind that the MA has overlooked the following:
(a)	the appellant was not able to complete an online study course;
(b)	the appellant requires the use of a calendar for daily activities, and
(c)	the appellant has difficulty keeping track when watching movies.
24.	The second limb of the appellant’s argument concerned s 323. She argued that in making a deduction for a pre-existing condition the MA:
“has failed to take into account the fact that any pre-existing condition was under control and not having any impact on the appellant’s functioning. Further, the AMS has applied the incorrect test and failed to follow the requirements of Guideline 11.10 of Chapter 11 of the Guidelines.”
25.	The appellant argues that there was no medical evidence before the MA “detailing the extent of any pre-existing problem”. On the contrary, the evidence suggests that any “pre-existing condition was under control and not affecting the appellant”. The appellant observes that both Dr Allan and Dr Kaplan made no deduction for a pre-existing condition.
26.	The appellant concludes by setting out Guideline 11.10. She also states:
“It appears the AMS has confused the fact that the appellant may have been more vulnerable to suffering an injury as opposed to suffering from a pre-existing condition which was then exacerbated by the current work injury.” 
27.	By its submissions the respondent emphasised the fact that the MA had found that the appellant’s “mental state examination is consistent with 2”. Other aspects of his history were also consistent with his classification.
28.	Further, the MA was provided with a return-to-work report from Recovery Partners in the respondent’s Reply which was not available to either of the qualified specialists. It recorded that the appellant had completed a two-day online training course in NDIS support and had found the course informative and beneficial.
29.	Then, the respondent argues that the use of an “outlook calendar” is not indicative of impairment. Rather it is “common to many employment situations”.
30.	The respondent submits that while minds may differ in respect of classification there is no “demonstrable error”. It refers to Vannini v Worldwide Demolition Pty Ltd [2018] NSWCA 324 where the second reading speech of the Workers Compensation Legislation Amendment Bill 2001 was quoted. It emphasised that part of the speech where the Minister said that a demonstrable error “would essentially be an error for which there is no information or material to support the finding made”.
31.	In respect of a deduction for a pre-existing condition, the appellant draws attention to the last sentence of Guideline 11.10 which reads:
“If the percentage of pre-existing impairment cannot be assessed, the deduction is one tenth of the assessment of WPI.”
32.	On that background, the respondent sets out aspects of the fairly comprehensive history obtained by the MA in respect of her pre-existing depression.
33.	The respondent also notes the history of pre-existing condition recorded by Dr Allan and comments that even on his formulation a s 323 deduction “was appropriate”. There was a “continuing underlying condition” prior to the appellant’s injury. The respondent states:
“It is that underlying condition which the MA has taken into account in making a one tenth deduction under s 323.”
He did so because there was insufficient evidence to make a pre-injury PIRS assessment in accordance with guideline 11.10.
FINDINGS AND REASONS 
34.	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.
35.	Section 328(2) of the 1998 Act provides that an appeal is to be by way of review of the original medical assessment, but the review is limited to the grounds of appeal on which the appeal is made. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in her application. 

36.	The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace v Australia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error. 

37.	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 medical assessment certificate is binding. 

38.	In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52 (Kocak) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Kocak, 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.”
39.	The reasoning in Kocak has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
Concentration persistence and pace
40.	Descriptors for class 2 and 3 in the PIRS category Concentration persistence and pace are as follows:
“Class II Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.
Class 3 Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
41.	In the body of his report the MA recorded the following:
“Ms Yates performed voluntary work at Meals on Wheels between April and June 2020. She then started work in Hammond Care 3 days a week, altogether 20 hours per week in the last 4 months. By 29 June 2021 she would become permanent if she could p ass her probation. She has not had any feedback yet and thinks that she is doing “okay”. Her employer has not identified any problem. She said that she is trying very hard. She visits clients to assess homecare packages and to discuss the care options with the client and the family. She would collect information, return to the office and enter the information in the computer and then the care manager will take over. Ms Yates may see 1 or 2 clients in a day and each assessment can take 2 or 3 hours.”
The MA also recorded the following:
“Ms Yates does crocheting and has been making a blanket and can do it for an hour each time. She was reading books during COVID and would borrow books from the library but the library closed so she has not read a book for about 9 months.”
42.	In his reasons for classification in the PIRS table, the MA recorded the following:
“Ms Yates reported having reduced concentration. She attempted online study but stopped as she could not get help with it. She subsequently improved further with treatment and was certified fit to do some work. She crochets and performs tasks, such as homecare assessment for significant duration. Her mental state examination is consistent with 2.”
43.	In the circumstances of this case, the different classifications in the category of concentration persistence and pace by Dr Kaplan and Dr Allan do not undermine the classification of the MA. Dr Allan saw the appellant some seven months before the MA and Dr Kaplan saw her some three months before the MA. It is evident that the appellant was improving with treatment throughout that time. On 3 March 2021, Dr Kaplan observed the following:
“Taking this into account, she has improved a lot. There are no problems with work except “in my head”. She is on probation for 6 months doing 20 hours a week and plans to increase to full duties. She needs the job to regain her confidence and her finances” (panel’s italics).
44.	Patently, the appellant’s condition was not static and it should not be assumed that her psychological condition was the same in June 2021 as it had been months previously. 
45.	The appellant argues that the MA misunderstood the nature of the appellant’s work duties and that it was not permissible to consider her “work capacity as being reflective of her concentration”. The panel does not accept that the MA misunderstood the appellant’s work duties. In the passages referred to above, he sets out the nature of those duties in some detail. He recorded that on her days at work she would see one or two clients a day for the purpose of assessment each of which take “2 or 3 hours”.
46.	Further, the panel can detect no error in the utilisation of this information by the MA to assist in his classification of concentration, persistence and pace. It is not possible to exclude from the process of classification in that category the fact that the appellant is able to perform moderately complex work throughout the course of a day. It requires concentration and persistence to complete such tasks. In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633, Garling J observed that the classes in the PIRS were examples of activities which would indicate an assessable level of disability, and further, that the boundaries between the classes are were not ‘bright line boundaries’ at [62] - [65]. That fluidity may not apply between the categories or scales.
47.	In Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (6 May 2020), the NSW Court of Appeal accepted an argument that the PIRS categories or scales are “fixed and are treated by the guidelines as distinct from each other”. The categories considered in that appeal were social and recreational activities and social functioning, where activities can generally be allocated to one or other class. However, it is not possible to ignore aspects of the evidence relating to concentration, persistence and pace merely because it occurred in the appellant’s employment. Patently, in many cases, it is during the long hours of employment that impairment of concentration will be most evident. The descriptors to Class 2 and 3 refer to retraining courses, or standard courses, and complex instructions (e.g., operating manuals, building plans, typing long documents), concepts which are often associated with employment.
48.	The appellant refers to a number of specific matters which it is argued have been “overlooked” by the MA. In the opinion of the panel, none of these issues dictate that the MA erred in his assessment of this category. While it was true that the appellant was unable to complete an online study course in the past, it is evident that she has completed such a course in connection with her present employment. In respect of the use of a calendar the appellant says that she uses a calendar for work. In her supplementary statement, she says:
“My role each day at appointments are put into my calendar for me, therefore it is crucial that I work out of my outlook calendar.”
The panel observes that it is common practice for employees to utilise an outlook calendar and the appellant’s use of this is not a significant indicator of concentration, persistence and pace.
49.	Importantly, as stated in the MAC, the classification of the MA in this category is based upon his mental state examination. The panel will not reiterate the entirety of that examination the MA recorded the following:
“Ms Yates provided a coherent history and elaborated on various aspects of her history. She was consistently focused throughout the assessment. She did not perseverate and there was no set-shifting difficulty. Ms Yates demonstrated reasonable processing speed and pace.”  
50.	In the opinion of the panel, it was open to the MA to classify the appellant as 2 in the category of concentration, persistence and pace. There was ample evidence available in his history and in his physical examination of the appellant to support his opinion. The MA specifically referred to the different findings of Dr Allan and Dr Kaplan but after his examination reached a different conclusion. He stated that there had been improvement in the appellant’s condition since Dr Allan’s examination. The actual path of his reasoning is quite transparent. In those circumstances it cannot be suggested that he failed to provide reasons to the standard required by Kocak.
Pre-existing condition
51.	Guideline 11.10 is as follows:
“To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.”
52.	In the MAC, the MA concluded that the appellant suffered from a “pre-existing condition” and that this condition “contributed to her current impairment”. He also found that as it was difficult and/or costly to determine the precise level of the contribution, it was appropriate to deduct 1/10th in accordance with the section 323 (2). In the opinion of the panel, there was ample evidence to support each of these findings. 
53.	It is unnecessary to reiterate all of the evidence in respect of the appellant’s pre-existing condition. She said in her statement that she had probably suffered from depression “most of my life”. In more recent times, this has been treated with Pristiq which had enabled the appellant to function normally much of the time.
54.	In the MAC summary, the MA concluded that the appellant had “a history of early the life disruption and described recurring depression. And has been on anti-depressant medications continuously since about 2016.” He stated that in the context of her employment “she developed increased depression severe anxiety and this has substantially recovered over time.” He continues :
“Overall, my view is that Ms Yates had a pre-existing disorder which contributes to her impairment and therefore deduction has to be made”
55.	Plainly, this is not a finding that the worker had a pre-existent underlying vulnerability to a depressive illness as the appellant alleges. The MA states that she had a depressive illness that was worsened by the incidents in her employment and that the pre-existing condition contributed to her psychological impairment. In the opinion of the panel, the language used by the MA to inculpate a pre-existing medical condition as a cause of her present impairment could not have been clearer.
56.	Equally, it was open to the MA to find that it was difficult to determine the extent of the contribution of the pre-existing condition to the present impairment and to make a deduction of 1/10th. The assessment of pre-existing WPI in circumstances where the condition is largely asymptomatic is, of course, difficult. That does not mean that there should be no deduction. Patients with extremely serious and volatile psychiatric conditions can be asymptomatic for long periods before relatively innocuous event’s cause a significant recurrence of the condition. In these cases, the pre-existing condition may be the most potent causal factor.
57.	Recently, in Marks v Secretary, Department of Communities and Justice (No. 2) [2021] NSWSC 616 (4 June 2021) (Marks), Simpson AJ held that Guideline 11.10 was invalid in its application to pre-existing asymptomatic psychological conditions. The Judge stated:
“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.”
58.	It is unnecessary to consider the ramifications of this decision in detail for the purpose of this appeal. More so as the parties have not had the opportunity to make submissions in relation to the case. If the appellants pre-existing condition was “asymptomatic” in the period prior to injury, as appears likely, the MA was obliged to apply section 323 of the 1988 Act. If the appellant’s condition was symptomatic prior to the injury, Guideline 11.10 preserves the option of deducting 1/10th, presumably in conformity with section 323 (2), for a pre-existing condition where it is difficult to establish a precise level of pre-existing WPI. In either case, it was open to the MA to deduct 1/10th.
59.	It is often difficult to establish WPI in accordance with the PIRS categories for a pre-existing psychological condition. One reason for this is that treating doctors rarely take medical histories that address the descriptors raised by the PIRS categories. An MA is, therefore, largely reliant upon an in inexact account provided by a worker as to their psychological condition many years previously. Such accounts are not always reliable.
60.	For these reasons, the appeal panel has determined that the MAC issued on 8 June 2021 should be confirmed.