DETERMINATION OF APPEAL PANEL	
	
CITATION:	Secretary (Department of Education) v Clarke [2022] NSWPICMP 320	
		
APPELLANT:	Secretary, Department of Education	
		
RESPONDENT:	Jessica Clarke	
		
Appeal Panel:	Member Jane Peacock
Medical Assessor Nicholas Glozier
Medical Assessor Michael Hong	
		
DATE OF DECISION:	8 August 2022	
		
CATCHWORDS: 	wORKERS cOMPENSATION-    Psychological Injury; appellant alleged error in the assessment under one category under the Permanent Impairment Rating Scale (PIRS) namely social and recreational activities; the ratings was open to the Medical Assessor (MA) and the Panel could discern no error; the appellant also alleged error in the MA failing to apportion impairment between primary and secondary injury; the diagnosis of the psychiatric condition that results from a psychological injury referred to the MA is a matter for the expert clinician; based on the MA’s assessment using his clinical judgment on the day of assessment; an MA cannot assess impairment from a psychiatric condition that he is not able to diagnose on the day of assessment; Held — Medical Assessment Certificate confirmed.  

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 9 May 2022 the Secretary, Department of Education (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 11 April 2022.
2.	The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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 ground(s) 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). 
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 WorkCover Medical Assessment Guidelines 2006.
7.	The appellant did not request that the worker undergo a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because the Appeal Panel could not find error. Absent error, the Appeal Panel has no power to require a worker to undergo a re-examination: see New South Wales Police Force v Registrar of the Personal Injury Commission of New South Wales [2013] NSWSC 1792. 
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. 
Medical Assessment Certificate
9.	The parts of the medical certificate given by the MA that are relevant to the appeal are set out, where relevant, in the body of this decision. 
SUBMISSIONS 
10.	Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel. 
FINDINGS AND REASONS 
11.	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. 
12.	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.
13.	The matter was referred to the MA for assessment as follows:
“The following matters have been referred for assessment (s 319 of the 1998 Act): 
•	the degree of permanent impairment of the worker as a result of an injury (s319(c)) 
•	whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
•	whether impairment is permanent (s319(f))
•	whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
•	Date of injury: 29 May 2014
•	Body parts/systems referred: Psychiatric/psychological disorder
•	Method of assessment: Whole Person Impairment” 
14.	The MA issued a MAC certifying as follows:
Body Part or system	Date of Injury	Chapter, page and paragraph number in NSW workers compensation guidelines	Chapter, page, paragraph, figure and table numbers in AMA5 Guides
	% WPI 	WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)	Sub-total/s % WPI (after any deductions in column 6)	
1. Psychiatric /Psychological	29/05/2014	Chapter 11, Work Cover Guides	n/a	15%	Nil	15%	
Total % WPI (the Combined Table values of all sub-totals)	15%	
15.	The assessment was based on his assessment under the Permanent Impairment rating Scale (PIRS) as required by the Guides as follows:
Table 11.8: PIRS Rating Form
Name	Jessica Clarke	Claim reference number (if known)	W4388/21	
DOB	5 December 1986	Age at time of injury	27 years old	
Date of Injury	29 May 2014	Occupation at time of injury	Physical Education Teacher	
Date of Assessment	30 March 2022	Marital Status before injury	Defacto Relationship	

Psychiatric diagnosis	1.Posttraumatic Stress Disorder.	
		
Psychiatric treatment	Nil.	
Is impairment permanent?	Yes			

PIRS Category	Class	Reason for Decision	
Self Care and personal hygiene	2	Mild impairment. Ms Clarke is able to live independently. Her partner does most of the cooking and she helps him. She is only able to cook very simple meals by herself. Her partner does most of the shopping because she is very anxious when in crowds. She is less interested in her personal appearance as she does not go out now. She showers and changes her clothes every day. She and her partner share in the care of their two-month-old baby.	
Social and recreational activities	3	Moderate impairment. Ms Clarke generally remains quiet and withdrawn at home. She avoids going out, if at all possible, because of her fear of being hit on the head again. She particularly avoids crowded places, parks and being near schools. She will occasionally go out with her husband at his prompting for a walk in the local neighbourhood.	
Travel	2	Mild impairment. Ms Clarke is able to drive short distances by herself in the country where she now lives. She was not able to drive when recently living in Sydney because of the traffic and her fear of having an accident. She is not able to drive by herself to visit her family in Kempsey (a two-hour drive from her home) and relies on her partner to drive her.	
Social functioning	2	Mild impairment. Ms Clarke reports having a good relationship with her partner despite some strain in the relationship due to her symptoms, particularly her irritability. She reports having good relationships with her family. She said she has lost almost all her friendships due to her social withdrawal. 	
Concentration, persistence and pace	3	Moderate impairment. Ms Clarke finds it very difficult to read because of her reduced concentration and needs to read line-by-line to remember what she has read, a technique she was taught by an occupational therapist. She is frequently forgetful at home. There were significant cognitive impairments on testing at the interview, particularly reduced short-term memory and concentration. I believe that some of her impairments in this area are due to memory impairments from her head injury, but I believe that she also has significant impairment of a moderate Class 3 level due to her condition of Posttraumatic Stress Disorder.	
Employability	3	Moderate impairment. Ms Clarke is working approximately 20 hours per week in a significantly less stressful position than as a teacher. She works at home for a Rainforest Foundation. She said her employer is very supportive and is aware of her psychological and cognitive problems, and allows her a significant degree of flexibility.	
Score	Median Class	
2	2	2	3	3	3		=3	
Aggregate Score Impairment		 Total	
+2	+2	+2	+3	+3	+3		=15	

Impairment Percentage WPI from table 11.8:                  	15%	
Less pre-existing impairment if any:                         	Nil	
Final Impairment % WPI:                                   	15%	
16.	The employer appealed.
17.	In summary the appellant submitted that the MA erred by basing his assessment on incorrect criteria and by making demonstrable error. 
18.	The appellant complained about only one of the assessments in the PIRS categories, namely Social and Recreational activities when he assessed a Class 3 and a Class 1 or 2 should have been assessed.
19.	In addition the appellant submitted that the failure by the MA “to make any apportionment to his assessment to account for the contribution of Ms Jessica Clarke’s (the respondent) secondary psychological injury to her psychological presentation means that the assessment has been made on the basis of incorrect criteria or alternatively, this failure amounts to a demonstrable error. 
20.	In summary, the respondent worker submitted that the MA did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed. 
21.	The role of the MA is to conduct an independent assessment on the day of examination. The MA is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the MA. The MA must bring his clinical expertise to bear and exercise his clinical judgement when making an assessment of impairment under the PIRS categories. The assessment is not to be based upon self-report alone. An appeal panel cannot disturb ratings under the PIRS scale for mere difference of opinion but must be satisfied as to error.
22.	The MA took a history which was broadly consistent with the other evidence before him. He recorded in detail the appellant’s reporting of present symptoms and impact on activities of daily living (ADLs). The MA recorded as follows:
“Brief history of the incident/onset of symptoms and of subsequent related events, including treatment: 
Ms Clarke said on 29 May 2014 she was working as a physical education teacher at Kempsey High School. She was working at a sports carnival event on an oval when she was hit on the head from behind by a discus. She had a loss of consciousness and remembers waking up on the ground with people around her. She was taken to Port Macquarie Hospital and apparently no skull fractures were seen on x-ray, and no abnormalities were found on investigation. That night she said she had to go to Kempsey Hospital because of symptoms of nausea, vomiting and severe head pain (Ms Clarke was visibly extremely distressed when she talked about this experience). She described that after the accident she was ‘not feeling right’. She felt confused and said she did not want to go out to meet people because she would forget their names and who they were. She said that people treated her ‘badly’ at that time because of her poor memory and said that this was very upsetting to her. She became depressed and socially withdrawn. Her concentration was impaired and she was very forgetful. She still has problems with her memory and now has systems in place to help with her memory such as memory aids. She said an occupational therapist has been very helpful to her with regard to this. She still has frequent migraines and headaches.
Ms Clarke said she has been seeing a neurologist Dr Granot at Bondi Junction since around 2015. She said she was seen about every one or two months and had Botox injections, and also was prescribed medication for her migraines. She said the last time she saw Dr Granot was some time in 2021 before the COVID outbreak. She was taking oral medications for migraines, but when she became pregnant, she stopped her medications. She had her baby in January 2022. She said her pregnancy was difficult as the only medication she could take then for her headaches and migraines was Panadol. She is seeing her GP soon and hopes to stop breastfeeding so as to be able to take medications for her migraines and headaches Ms Clarke said she was a patient at Royal Ryde Rehabilitation Hospital where she saw a psychiatrist, Dr Ralph Ilchef. She also attended a pain clinic at Newtown and saw a pain specialist there. She also saw a Dr Browne, a pain specialist who worked at Royal Ryde Rehabilitation Hospital and St Vincent’s Hospital. She said she has not seen a psychiatrist or psychologist for many years. She said that she has not taken medications for anxiety and depression for several years.
•	Present treatment: 
Ms Clarke is not currently having any treatment for her psychological symptoms. She is not seeing a psychiatrist or psychologist and is not taking any psychotropic medication.
•	Present symptoms: 
Ms Clarke avoids going near certain places such as high schools, and tries to avoid people throwing soccer balls or frisbees or other types of balls as she is worried about being hit on the head again. She said she prefers not to leave her home because of her fear of being hit on the head again. She experiences nightmares which relate to the accident with the discus after which she wakes up screaming. These are more frequent around the anniversary of the date of the accident in May. The nightmares have been reducing in frequency but are still triggered by certain situations such as seeing balls being thrown in parks. She tries to avoid thinking and talking about the accident. She avoids going to parks where she might see balls and frisbees being thrown. She tries to avoid seeing teenage children playing with balls or other objects. She particularly tries to avoid the oval in Kempsey where the accident occurred. The traumatic memories are associated with shortness of breath and a heavy pressure on her chest, and great agitation. She has lost interest now in playing and coaching sport and watching sport on television. She has less interest now in dancing. She prefers to be at home alone and does not like socialising with people. She has lost many friendships through her social withdrawal. She describes seeing the world as a dangerous place. Her sleep has been very poor with frequent awakenings since the accident. She is irritable and has anger outbursts which affect her relationship with her partner. She reports having reduced concentration and memory. She feels very tense and on guard and on the lookout for danger when she is outside the home especially when in parks or near schools or sports grounds, even more so when in Kempsey where the work accident occurred. She is very anxious for example when her partner and nephew throw a ball between each other. She has had some thoughts of self-harm but has never acted on them. 
Ms Clarke reports that her symptoms have gradually improved over the time since the accident in 2014, but she still remains troubled by the symptoms.
•	Details of any previous or subsequent accidents, injuries or condition: 
Ms Clarke reported no previous psychiatric history. She reported being in good psycological health prior to the work accident on 29 May 2014.
There have been no subsequent accidents, injuries or conditions except her pregnancy and delivery of her baby in January 2022.
•	General health: 
Ms Clarke continues to suffer with very frequent migraines and headaches for which she has had Botox injections and was taking medication for them before she became pregnant. 
She used to have a very occasional glass of wine before becoming pregnant, but now she says she does not drink alcohol, smoke cigarettes or use illicit drugs.
•	Work history including previous work history if relevant: 
Ms Clarke was born in Kempsey and completed year 12 at high school. She then completed a Bachelor of Education Degree specialising in physical education and dance at the Australian College of Physical Education. She then worked as a casual teacher in Sydney with the NSW Department of Education. She then worked as a teacher in London for two years. She returned to Australia and commenced work at Kempsey High School as a physical education teacher in the first term of 2014. 
After the accident in May 2014, Ms Clarke had found it difficult to find work because of her cognitive limitations. She started her own business teaching young children to dance but found she could not cope with this and had to stop. She started working for a Rainforest Protection Foundation, Rainforest 4 in 2021. This has involved doing administrative work from home with flexible hours up to 20 hours per week. She said that her employer has been very understanding of her cognitive and psychological problems. She has been on maternity leave but plans to return to work after she starts taking medication for her migraines again.
Ms Clarke has been with her partner for the past 10 years.
•	Social activities/ADL: 
Ms Clarke lives in her own home in Maitland with her partner and two-month-old son. They have recently moved there from Sydney. Her partner also works from home in a fulltime capacity for Rainforest 4. Her partner does most of the shopping. She helps him with the cooking. She is able to cook simple meals by herself. She and her partner share the housecleaning and clothes washing as she is also limited in these activities by her pain. She prefers to stay at home and avoids social and recreational activities. She avoids being in crowds or being near places like parks and schools which trigger the intrusive memories. She would occasionally go with her partner for a walk around their neighbourhood. She is able to drive short distances by herself. She is not able to drive longer distances because of her anxiety and reduced concentration. She was not able to drive when living in Sydney because of the traffic. She is not able to drive to Kempsey by herself, a drive of about two hours, and her partner needs to drive her. She showers and changes her clothes on a daily basis but is less interested in her personal appearance as she is not going out very much now. She said she and her partner share the care of their baby son. She feeds the baby and changes his nappies. Her partner bathes the baby as her physical pain limits her in doing this.”
23.	The MA conducted a mental state examination and recorded his findings as follows:
“Ms Clarke was a well-groomed young woman wearing no makeup or jewellery. She was cooperative but very tense and agitated. She became very distressed when she was asked to talk about the subject work accident that occurred in May 2014. Her speech was of normal rate and flow. Her mood was extremely anxious. Her affect was appropriate to her mood and restricted in range. There was no formal thought disorder and no psychotic symptoms.
Ms Clarke was alert and orientated. There were no impairments in immediate memory, but she could only recall 1 out of 3 items at two-minute recall. Her concentration was impaired as she only scored 3 out of 5 in spelling the word WORLD backwards and was very slow and made one mistake in her serial three subtractions.”
24.	The MA made a diagnosis as follows:
“•  	summary of injuries and diagnoses
In my opinion Ms Clarke has the psychiatric condition of Posttraumatic Stress Disorder according to DSM-5 diagnostic criteria. This is a primary psychological injury. This condition occurred after she was hit on the back of the head by a discus whilst working as a physical education teacher at Kempsey High School on 29 May 2014. The injury was potentially serious as she said she was told by doctors that she could have been killed in the accident. Her condition has remained clinically significant since the accident.
From the history given to me and the documentation provided, Ms Clarke’s injury has also led to frequent migraines and headaches and ongoing impairment in her concentration. 
I do not believe that Ms Clarke currently has a secondary psychological injury.
•	consistency of presentation
Ms Clarke was consistent in her presentation of her history and symptoms. She did not appear to be exaggerating or minimising her clinical condition.”
25.	The MA explained his reasons for assessment under each of the PIRS categories as set out in the table above.
26.	The appellant complains that the MA has erred in respect of one of the categories assessed namely, Social and Recreational Activities.
27.	The Panel cannot interfere with these ratings absent error by the MA. The Panel cannot interfere with the rating because opinions might differ as to the best fit in each category. There must be error or assessment on the basis of incorrect criteria.  
28.	In respect of Social and Recreational Activities, Table 11.2 of the Guides provides as follows:
Table 11.2: Psychiatric impairment rating scale – social and recreational activities
Class 1	No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.	
Class 2	Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).	
Class 3	Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn.	
Class 4	Severe impairment: never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or garden when others come to visit family or flat mate.	
Class 5	Totally impaired: Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.	
29.	The MA assessed a moderate impairment at Class 3 with the following reasoning:
“Moderate impairment. Ms Clarke generally remains quiet and withdrawn at home. She avoids going out, if at all possible, because of her fear of being hit on the head again. She particularly avoids crowded places, parks and being near schools. She will occasionally go out with her husband at his prompting for a walk in the local neighbourhood.”
30.	The appellant submitted that a Class 1 or 2 should have been assessed. 
31.	The Independent Medical Expert (IME) qualified on behalf of the respondent Dr Kumar rated the respondent worker Class 1 for social and recreational activities. The MA explained why his opinion differed as follows:
“Dr Kumar rated Ms Clarke a Class 1 for Social and Recreational Activities, whereas I have rated her a Class 3 as she is very socially avoidant and avoids leaving her home at all because of her fears of being hit in the head again. She only occasionally goes out with her husband at his prompting for a walk in the local neighbourhood.” 
32.	The appellant submitted that the MA’s failure “to provide reasoning for his assessment of the respondent’s functioning in the domain of social and recreational activities by reference to the contents of the desktop investigation reports of Procare dated September 2020 and July 2021 amounts to a demonstrable error” or has caused him to make an assessment on the basis of incorrect criteria. 
33.	The MA has not directly referred to the contents of the Procare reports although they form part of the material that he lists as before him and that he has taken into account.
34.	The respondent worker had provided statements of evidence which addressed her social and recreational activities and traversing the contents of the Procare reports. These also form part of the material that the MA lists as before him and that he has taken into account although again they are not directly referred to by the MA.
35.	There is no obligation on the MA to refer to each piece of evidence.
36.	Here we have investigation reports explained by the evidence of the respondent. All this evidence was before the MA.
37.	He has taken a detailed history from the respondent worker.
38.	After careful review, there is nothing in the procare reports, noting the explanation from the respondent in her statements and given the history given to the MA, which would lead to a different classification in the Class of Social and Recreational Activities. Even without the worker’s explanation the desktop report shows infrequent recreational activity and only in the company of her partner. A consideration of all of the evidence does not lead to a different classification for Social and Recreational Activities. That is, on consideration of all of the evidence before the MA Class 3 is the best fit. 
39.	The Appeal Panel can discern no error in the assessment of Class 3 as the MA’s findings accord with the criteria for that class and it is the best fit.
40.	In addition the appellant submitted that the failure by the MA “to make any apportionment to his assessment to account for the contribution of the respondent’s secondary psychological injury to her psychological presentation means that the assessment has been made on the basis of incorrect criteria or alternatively, this failure amounts to a demonstrable error. 
41.	The MA’s job is to assess the degree of permanent impairment, if any, resulting from a referred injury. As part of the referral the MA was provided with the consent determination of Member McDonald which observed that the respondent worker had sustained both primary and secondary psychological injuries as a result of the workplace incident on 29 May 2014. Order 3 provided that the MA was to assess the permanent impairment attributable to the effects of the respondent’s primary psychological injury only in accordance with s 65A of the post  1987.
42.	The Appeal Panel notes that on the day of assessment, using his clinical expertise and having due regard to the evidence before him, the diagnosis of the psychiatric condition resulting from injury is a matter for the MA.
43.	The guides provide at 11.3 and 11.4 s as follows:
“11.3 Permanent impairment assessments for psychiatric and psychological disorders are only required where the primary injury is a psychological one. The psychiatrist needs to confirm that the psychiatric diagnosis is the injured worker’s primary diagnosis.
Diagnosis
11.4 	The impairment rating must be based upon a psychiatric diagnosis (according to a recognised diagnostic system) and the report must specify the diagnostic criteria upon which the diagnosis is based. Impairment arising from any of the somatoform disorders (DSM IV TR, pp 485–511) are excluded from this chapter.”
44.	The MA has diagnosed the primary psychiatric condition of post traumatic stress disorder He records his diagnosis as follows:
“In my opinion Ms Clarke has the psychiatric condition of Posttraumatic Stress Disorder according to DSM-5 diagnostic criteria. This is a primary psychological injury. This condition occurred after she was hit on the back of the head by a discus whilst working as a physical education teacher at Kempsey High School on 29 May 2014. The injury was potentially serious as she said she was told by doctors that she could have been killed in the accident. Her condition has remained clinically significant since the accident.
From the history given to me and the documentation provided, Ms Clarke’s injury has also led to frequent migraines and headaches and ongoing impairment in her concentration. 
I do not believe that Ms Clarke currently has a secondary psychological injury.”
45.	The MA has clearly found on the day of assessment that the respondent suffers from post traumatic stress disorder as a result of the injury and that “currently”, that is, on the day of assessment there is no impairment to be found from a secondary psychological injury. As a consequence there is no assessable impairment resulting from any secondary psychological injury because the MA has found that there was no such secondary injury (and possible associated impairment) on the day of his assessment. The diagnosis of the psychiatric condition that results from a psychological injury referred to the MA is a matter for the expert clinician, the MA, based on his assessment, using his clinical judgment, on the day of assessment. An MA cannot assess impairment from a psychiatric condition that he is not able to diagnose on the day of assessment. The panel also noted the MA specifically discounted any impairment of concentration, persistence and pace attributable to a primary physical injury in his rating of that class.
46.	The MAC must be read as a whole. The MA has very clearly and adequately explained how he has reached this conclusion and the regard he has had to the extensive material before him as follows:
“I note there was a voluminous amount of 974 pages of documentation provided.
I note a report on Ms Clarke by Dr Glen Smith, psychiatrist dated 2 October 2019. Dr Smith noted that Ms Clarke was taking the medication Venlafaxine 150mg daily at that time. Dr Smith made the diagnoses of Persistent Depressive Disorder, with intermittent major depressive episodes, without current episode and Posttraumatic Stress Disorder (PTSD), whereas I have made the sole diagnosis of Posttraumatic Stress Disorder. I believe that all her symptoms are best fitted under the sole diagnosis of Posttraumatic Stress Disorder. 
In his report dated 2 October 2019 Dr Smith gave Ms Clarke a whole person impairment rating of 24%. 
I note a supplementary report on Ms Clarke by Dr Smith, psychiatrist dated 30 March 2020 in which he wrote, ‘…Ms Clarke was directly traumatised by being hit in the head by a discus and she suffered symptoms consistent with the diagnosis of PTSD, which is a primary psychiatric condition’. I agree with this opinion.
I note another supplementary report on Ms Clarke by Dr Glen Smith, psychiatrist dated 18 January 2021. In this report he wrote, ‘…the diagnosis of the primary psychiatric injury is PTSD. The separate diagnosis of Persistent Depressive Disorder is related to both posttraumatic anxiety related to the primary psychiatric injury of PTSD and also a contributing factor of the physical injuries, particularly migraines that contributed to a worsening of her depressive symptoms.’ I have not made a diagnosis of Persistent Depressive Disorder in Ms Clarke as I believe all her current psychological symptoms are caused by her primary psychiatric injury of Posttraumatic Stress Disorder. 
….
I note a report on Ms Clarke by Dr Mukesh Kumar, psychiatrist dated 22 July 2021. Dr Kumar made the diagnosis of Persistent Depressive Disorder in Ms Clarke, which he believed was a primary psychological condition. Dr Kumar did not believe that the experience that Ms Clarke went through when she was hit in the head by a discus met criterion A for the diagnosis of Posttraumatic Stress Disorder according to DSM-5 diagnostic criteria. I believe it did as it was potentially a very serious incident and I have made the diagnosis of Posttraumatic Stress Disorder in Ms Clarke, which I believe is a primary psychiatric condition. Dr Kumar noted at that time that Ms Clarke was having no treatment including medication for her psychiatric condition. Dr Kumar gave Ms Clarke a whole person impairment rating of 13% in this report.
…
I note a number of other reports by specialists in the documentation: 
I note a report by Dr Michael Fearnside, neurological surgeon dated 7 February 2017 in which he wrote, ‘…with regard to an assessment of permanent whole person impairment, on the information available, Ms Clarke does not satisfy the criteria for assessment of mental status impairment or emotional and behavioural impairment under the NSW Workers’ Compensation Guidelines paragraph 5.9 on page 32 …her presentation is more of a psychological/psychiatric type and it is recommended that an assessment of WPI be undertaken in accordance with the psychiatric impairment rating scale (PIRS) by a psychiatrist’.
I note a report on Ms Clarke by Ms Anne Lucas, consultant forensic psychologist dated 28 July 2014 in which was written, ‘…Based on the history provided and presentation at assessment today, Jessica appears to be experiencing significant cognitive difficulties which may be associated with her workplace accident occurring on 29 May 2014; symptoms are suggestive of a traumatic brain injury’.
I note a report on Ms Clarke by Ms Anne Lucas, consultant forensic psychologist dated 17 November 2014 in which she wrote, ‘…Jessica showed particular areas of weakness in cognitive performance in the areas of memory and processing speed. In this respect her performance is typical of individuals with a traumatic brain injury’.
I note a report on Ms Clarke by Dr Terry Kohler, clinical psychologist dated 25 August 2015 in which he wrote, ‘…Ms Clarke is presenting with symptoms consistent with cognitive impairment associated with a closed head brain injury. The neuropsychological assessment conducted indicates that there has been significant impairment in her cognitive functioning as a result of her functioning being significantly lower than what is expected of a professional with her education and vocation’.
I note a report on Ms Clarke by Dr Dudley O’Sullivan, neurologist dated 22 December 2015 in which he wrote, ‘…the diagnosis is posttraumatic extracranial vascular migraine type headaches secondary to the head injury that she sustained on 29 May 2014. In addition, I do think there are significant psychological factors contributing to her ongoing symptoms especially the presence of posttraumatic depression and anxiety’.
I note a letter on Ms Clarke written by Dr Ralph Ilchef, psychiatrist, Royal Rehabilitation Hospital dated 26 May 2016. Dr Ilchef wrote, ‘…In summary it seems that Jessica has a complex post-concussion syndrome following a significant traumatic brain injury with perhaps some evidence of contra coup frontal injury, and has developed a clear-cut Major Depressive Disorder with some posttraumatic features’.
I note a report on Ms Clarke by Dr John Ditton, pain specialist, dated 23 October 2017 wherein he wrote, ‘…Ms Clarke suffered a significant head injury as a result of being struck on the head by a discus. She developed a post-concussion syndrome associated with evidence of a significant cognitive impairment. Ms Clarke subsequently developed a major depression as a result of the injury and had difficulty adapting to her changed circumstances’.
I note a report on Ms Clarke by Dr Nicola Gates, clinical neuropsychologist, dated 21 July 2021. Dr Gates wrote, ‘…I cannot provide reliable diagnoses due to the inconsistency in cognitive test results. However, given the inconsistencies between testing and her history a possible diagnosis is functional neurological disorder (FND)’. 
I did not find any evidence that Ms Clarke was exaggerating or minimising her clinical condition in my assessment of her.
The documentation provided indicates that Ms Clarke did suffer a head injury on 29 May 2014 which has caused ongoing cognitive impairment which I have taken into consideration and excluded in completing the attached PIRS rating table for her primary psychological injury of Posttraumatic Stress Disorder.”
47.	The Panel can discern no error or assessment on the basis of incorrect criteria and accordingly the MAC will be confirmed.
48.	For these reasons, the Appeal Panel has determined that the MAC issued on 11 April 2022 should be confirmed.