DETERMINATION OF APPEAL PANEL	
	
CITATION:	La Trobe Financial Services Pty Ltd v Karboulahanos [2023] NSWPICMP 145	
		
APPELLANT:	La Trobe Financial Services Pty Ltd	
		
RESPONDENT:	Zoe Karboulahanos	
		
Appeal Panel		
		
MEMBER:	Catherine McDonald	
		
MEDICAL ASSESSOR:	Douglas Andrews	
		
MEDICAL ASSESSOR:	Nicholas Glozier	
		
DATE OF DECISION:	17 April 2023	
		
CATCHWORDS: 	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; assessment under psychiatric impairment rating scale (PIRS); State of NSW v Kaur, Jenkins v Ambulance Service of NSW, Ferguson v State of NSW and Parker v Select Civil discussed; section 323 deduction; call for documents from former General Practitioner under section 324; re-examination unlikely to be of assistance; Held – Medical Assessment Certificate revoked.   	

BACKGROUND TO THE APPLICATION TO APPEAL
1.	On 1 November 2022 La Trobe Financial Services Pty Ltd (La Trobe) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Lam-Po-Tang, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 5 October 2022.
2.	La Trobe relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
•	the assessment was made on the basis of incorrect criteria, and
•	the MAC contains a demonstrable error.
3.	The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out, being that in s 327(3)(d). We conducted a review of the original medical assessment but limited to the grounds 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 NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
6.	Ms Karboulahanos suffered a psychological injury in her role as a settlement officer with La Trobe as a result of interactions with her manager, both in Melbourne and after her transfer to Sydney. She ceased work on 14 January 2020, after suffering a panic attack for which she sought hospital treatment.
7.	The Medical Assessor assessed 17% whole person impairment. He assessed Ms Karboulahanos under the Psychiatric Impairment Rating Scale (PIRS) in class 2 for self-care and personal hygiene, class 3 for social and recreational activities, class 2 for travel, class 2 for social functioning, class 3 for concentration, persistence and pace and class 5 for employability.
8.	Ms Karboulahanos told the Medical Assessor that she had not been diagnosed with a psychological condition in the past and that she was prescribed anti-depressant medication “for weight loss” in about 2013 and that she did not know it was an anti-depressant. She said that she experienced persistently low mood at the time of her divorce 13 years ago.
9.	In summary, La Trobe appealed on the basis that the Medical Assessor erred in his assessment in his assessments of social functioning and concentration, persistence and pace and that he erred in failing to make a deduction under s 323 of the 1998 Act.
PRELIMINARY REVIEW
10.	We conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
11.	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 there is sufficient information in the file to determine the appeal, subject to the production of documents from Ms Karboulahanos’ former general practitioner in Melbourne.
12.	We issued a direction on 31 January 2023, calling for production of those documents under s 324(1)(b) of the 1998 Act. On receipt of the documents from Hill Medical Services we determined that it was necessary for the parties to have an opportunity to make submissions on them. We received submissions in accordance with our direction.
13.	For reasons set out below, we determined after review of those documents that a further examination was not appropriate.
EVIDENCE
14.	We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
15.	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 
16.	Both parties made written submissions. They are not repeated in full, but we have considered them.
17.	With respect to the assessment of social functioning, La Trobe noted that there was no reported loss of friendships, that Ms Karboulahanos maintains a close relationship with a cousin and with both of her children, and that she regularly engages with social media. La Trobe submitted that the Medical Assessor did not explain his path of reasoning to enable an appeal panel to determine if there was an error when there were no reports of strained relationships nor reports of tension or arguments. La Trobe said that the Medical Assessor should have assessed Ms Karboulahanos in “PIRS category one” and said this was both a demonstrable error and the application of incorrect criteria because the Medical Assessor “applied the wrong PIRS category.”
18.	La Trobe made similar submissions with respect to concentration, persistence and pace and said that the appropriate assessment was in class 2, on the basis that the impairment is mild. It said:
“The MA has not provided examples of the Applicant being unable to read more than newspaper articles or follow complex instructions. The Respondent submits that if the Applicant can play games daily, she would be able to read more than newspaper articles and we therefore again refer to the decisions of Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52 and El Masri v Woolworths Ltd [2014] NSWSC 1344.
…
A PIRS Category 2 provides that the worker can focus on intellectually demanding tasks for period of up to 30 minutes and then feels fatigued or develops headaches, we consider this to be a more appropriate PIRS category.”
19.	With respect to s 323 of the 1998 Act, La Trobe said the Medical Assessor noted that Ms Karboulahanos had been taking antidepressant medication for a number of years for weight loss. It said that the suggestion that she took it for weight loss required expert evidence from a psychiatrist or pharmacologist to be accepted. Latrobe submitted that, in the absence of expert evidence that Ms Karboulahanos took antidepressant medication for weight loss, it was likely she was taking it because she was depressed. It noted that the clinical records in the Application to Resolve a Dispute were incomplete and that its request for a teleconference to “obtain” a Notice [sic - Direction] for Production was declined. It said that the Medical Assessor should not have taken Ms Karboulahanos’ word and should have requested her entire clinical history. It said that the Appeal Panel should request the full clinical records and undertake a re-examination.
20.	In reply, Ms Karboulahanos submitted that the history which the Medical Assessor obtained was consistent with a mild impairment for social functioning. She noted that both Dr Allan, who assessed her on behalf of her solicitors, and Dr George, who assessed her at the request of La Trobe, have also assessed her impairment in class 2. She said that the evidence supported an assessment in class 3 for concentration, persistence and pace, referring to her statement and Dr Allan’s report.
21.	Ms Karboulahanos noted that neither Dr Allan nor Dr George had made a deduction under s 323. Each of those doctors had the history of her use of medication for weight loss since 2013 neither found any evidence of a pre-existing condition nor said that further information was required. She said that the Medical Assessor was not required to conduct “some kind of inquisition” in respect of her claim. Neither the independent medical examiners nor the Medical Assessor thought that further documents were necessary.
22.	In response to our direction for further submissions, La Trobe said that the documents from Hill Medical Services supported its appeal with respect to s 323 because they demonstrated a long history of depression since at least 2013 and raised issues about Ms Karboulahanos’ credit that warranted a re-examination. La Trobe said the documents showed a pre-existing impairment with respect to social functioning.
23.	Ms Karboulahanos submitted that the documents related mainly to the period before her employment with La Trobe and that they had no impact on the assessment of social functioning and concentration, persistence and pace. She submitted that she was “fully functioning” at the time of her injury so that no more than a one-tenth deduction was appropriate.
FINDINGS AND REASONS 
24.	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.
25.	In Campbelltown City Council v Vegan the Court of Appeal held that an 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.
26.	It is important to set out some general principles before considering the parties’ submissions in detail.
27.	Paragraph 11.12 of the Guidelines describes the application of the PIRS:
“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”
28.	The important part of the description of each class in the PIRS is the level of impairment – e.g. no deficit, mild impairment, moderate impairment. Rather than providing criteria for assessment (as La Trobe submitted) what follows in each class are examples of limitations on activities which are consistent with the level of impairment. In Jenkins v Ambulance Service of NSW Garling J said:
“I am satisfied that the descriptions of the activities which give rise to a conclusion by an AMS of the extent of a disability of an individual by reference to each table in the PIRS, are simply, in my view, examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability.”
29.	Campbell J described the decision in Wingfoot Australia Partners Pty Ltd v Kocak on which La Trobe relied in State of New South Wales (NSW Department of Education) v Kaur (Kaur). His Honour said:
“In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
‘The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or 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 perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
‘The statement of reasons… explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law.’”
30.	The same passage was quoted by Campbell J in El Masri v Woolworths Ltd. His Honour said:
“…, the process is one of expert evaluation. Often when judgment of any type is called for, there will be a gap between expression of reasons and articulation of decision which cannot itself be fully articulated. That gap constitutes what might be called judgment. ... Basically, the statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. Applying that standard, it is clear what was decided and why, as is the reasoning process that led to the decision, …”
31.	The Medical Assessor was required to exercise his clinical judgement in assessing Ms Karboulahanos under the PIRS. Campbell J considered the categorisation of impairment in Ferguson v State of New South Wales (Ferguson) and said:
“The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides ‘the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment’: Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are ‘examples only’: see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. The Appeal Panel said ‘they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected’…”
32.	Harrison AsJ cited Ferguson in Parker v Select Civil Pty Ltd (Parker) and said:
“To find an error in the statutory sense, the Appeal Panel’s task was to determine whether the AMS had incorrectly applied the relevant Guidelines including the PIRS Guidelines issued by WorkCover. Even though the descriptors in Class 3 are examples not intended to be exclusive and are subject to variables outlined earlier, the AMS applied Class 3. The Appeal Panel determined that the AMS had erred in assessing Class 3 because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence.
The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel’s opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS’s reasons disclose a demonstrable error. The material before the AMS, and his findings supports his determination that Mr Parker has a Class 3 rating assessment for impairment for self-care and hygiene, that is to say, a moderate impairment of self-care and hygiene…”
33.	The Medical Assessor is an administrative decision maker and his reasons are to be considered in that light. In Bojko v ICM Property Service Pty Ltd Handley AJA (with whom the other members of the Court agreed) said that the worker had failed to establish his grounds of appeal because:
“Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’ "
Social functioning
34.	The social functioning table measures the strength of a worker’s relationships.
35.	La Trobe was incorrect to say that the Medical Assessor did not give reasons for his assessment and its submissions did not quote the reasons that he gave in the PIRS Table at the end of the MAC. He assessed Ms Karboulahanos in class 2 signifying that she has a mild impairment and said:
“Ms Karboulahanos maintains a close relationship with a cousin, and with her son, with whom she lives. Her cousin is in very regular contact, both face-to-face and by phone.
Ms Karboulahanos reported maintaining regular phone contact with her friends in Melbourne, with long phone calls.
Ms Karboulahanos maintains phone contact with her daughter, who lives in Melbourne.”
36.	The Medical Assessor based that summary on the history he obtained and set out under the heading Social activities/ADL. He noted that Ms Karboulahanos does maintain telephone contact with friends but does not attend family events, being worried about being involved in arguments, thus evidencing tension in family relationships. He also noted that she said in respect of face to face conversations “its alright, it starts then I get irritated.” La Trobe’s submission that the assessment was inappropriate because there was no evidence of tension is untenable when the MAC is read as a whole.
37.	The assessment in class 2 was open to the Medical Assessor in the exercise of his clinical judgement.
Concentration, persistence and pace
38.	La Trobe’s submissions with respect to Table 11.5 do not convey an understanding of the principles set out in Ferguson and Parker, highlighted by the use of the words “we consider” and “more appropriate category” as well as the submission that a PIRS category “provides” certain capacity. The Medical Assessor was not required to provide examples of Ms Karboulahanos being “unable to read more than newspaper articles or follow complex instructions”; he was required to assess the extent of her impairment, aided by reference to the examples in the PIRS.
39.	The Medical Assessor gave reasons for his assessment in class 3 in his PIRS Table:
“Ms Karboulahanos reported subjective impairment in concentration. She reported personal administrative issues related to poor concentration, such as forgetting financial commitments.”
40.	In the body of the MAC he said:
“Ms Karboulahanos described her short-term memory as follows: It's just a blur everything's just everywhere. I've got a diary and I put things down in there’. She reported  forgetting to pay bills ‘plenty of times’, and that she had been repeatedly penalised for late payments.”
	And:
“She disclosed she is neglectful with bills. Ms Karboulahanos is able to use a smart phone, email, and access the internet. She has two social media accounts and accesses Facebook every day, including actively posting on her profile. She states she has an Instagram account, but she does not use this very often.”
41.	That assessment is consistent with Ms Karboulahanos’ evidence in her statement that she is often overwhelmed with information and needs time to process simple things. It is also consistent with her evidence that she tried to undertake a course in 2020 but could not cope and dropped out after three weeks. Dr Allan obtained a history in October 2021 that Ms Karboulahanos does not attend to complex tasks because she feels overwhelmed.
42.	Dr George assessed Ms Karboulahanos in class 2 noting that she reads on her computer or phone and plays computer games. As her submissions observed, scrolling though social media is not indicative of concentration. Games can range from undemanding to complex and playing repetitive games does not require significant concentration.
43.	While the assessment of Ms Karboulahanos’ concentration, persistence and pace might be one about which reasonable minds may differ, the Medical Assessor has given reasons consistent with a moderate impairment. His assessment is not glaringly improbable and was open to him in the exercise of his clinical judgement.
Section 323
44.	The Medical Assessor said:
“Ms Karboulahanos explained she had been prescribed an antidepressant medication, sertraline, at a dose of 100 mg daily, since around 2013 or 2014. She continued to take this after her commencement with Latrobe Financial, and was still taking this medication at the time she had the panic attack in January 2020.”
	And:
“Ms Karboulahanos stated she was prescribed an antidepressant medication, sertraline, from around 2013 or 2014. She explained, ‘I was extremely overweight and it was recommended for weight loss.’ When asked who recommended this medication for her, she explained that sertraline was recommended for her by a dietitian. She thinks the dietitian may have made a recommendation about prescribing sertraline to her GP at the time. She was also seeing a medical weight loss physician at the time, but did not think they prescribed sertraline. She explained ‘I didn’t know’ [sertraline] was an antidepressant’ adding that ‘a year or two later I was in discussion with friends’, when she learned it was an antidepressant. When asked who reissued the sertraline prescriptions, given they last at most six months, she believed her GP at the time wrote these. She was not referred to a psychiatrist or psychologist at this time. 
When asked if Ms Karboulahanos had experienced a period of two weeks or longer where she experienced persistently low mood every day, most of the day she replied ‘When I went through my divorce…13 years ago’ Ms Karboulahanos denied any history of panic attacks prior to commencing employment with Latrobe Financial.”
45.	The Medical Assessor wrote:
“Whilst Ms Karboulahanos was prescribed an antidepressant medication, sertraline, at the dose of 100 mg daily from 2013 or 2014 onwards, it was ostensibly for weight loss, rather than for psychiatric purposes, notwithstanding the fact that sertraline may cause weight gain. Nonetheless, the ongoing prescription of this medication did not prevent her from developing clinically significant anxiety symptoms from at least 2018 onwards.”
46.	The Medical Assessor did not make a deduction under s 323 and did not explain why.
47.	Section 324 of the 1998 Act provides that a Medical Assessor may:
“(b)	call for the production of such medical records (including X-rays and the results of other tests) and other information as the medical assessor considers necessary or desirable for the purposes of assessing a medical dispute referred to him or her, …”
48.	The Medical Assessor members of the appeal panel have the 
49.	powers of the Medical Assessor – s 324(4). We relied on that power to call for the notes of Ms Karboulahanos’ general practitioner in Melbourne. It was appropriate to do that because of her potentially implausible history that anti-depressant medication was prescribed for weight loss.
Hill Medical Services
50.	A review of the notes from Hill Medical Services shows that Ms Karboulahanos saw Dr Pang on 8 October 2012 and said that she had struggled with her weight since the birth of her second child seven years before. She was undergoing a stressful divorce. In November 2012 Ms Karboulahanos was hospitalised for trigeminal neuralgia and prescribed Endep, an antidepressant also used for neuralgia. 
51.	On 11 December 2012 Dr Boyko noted that she was awaiting bariatric surgery and had suffered an exacerbation of depression secondary to weight gain. In June 2013 Dr Lee noted that Ms Karboulahanos was on the waiting list for bariatric surgery and prescribed Zoloft, an SSRI antidepressant. She described a “remarkable response to medication and improved mood, decreased anxiety, has managed to lose a few kg.”
52.	On 6 December 2013 Dr Drake provided a repeat prescription for Zoloft, noting that Ms Karboulahanos’ mood was stable but the drug was not working as well as it used to. She was taking the maximum dose of 200mg and said that the gastric sleeve surgery had taken place in August and “she thought it would fix all her problems but it hasn’t.”
53.	Ms Karboulahanos discussed depression with Dr Rai on 10 and 15 January 2014. Pristiq, an SNRI antidepressant, was prescribed and on 20 January Ms Karboulahanos said that she had no side effects. She was working for a family lawyer and found it depressing. By 29 January she told Dr Rai that she still felt flat and had no improvement on Pristiq.
54.	On 4 May 2015 Ms Karboulahanos saw Dr Yau who recorded:
“comes in requesting to go back on zoloft or another SSRI
has been off it for 1 mth
ran out of script
also found it wasn't helping towards the end
had been on it for 1 yr for depression
was going well for 6 mths
dose was 200 mg
has been on and off it the last few months (usu when runs out of script)
tried pristiq before and didn't really work
not sleeping well
feels overwhelmed , everything is 'too hard'
tired
single mum - works as legal clerk
not anxious per se but says getting panic attacks
appetite up and down
no suicidal thoughts
not seen any psychologists for this…”
55.	Dr Yau prescribed Zoloft and discussed the possibility of a mental health care plan. On 2 April 2016 Ms Karboulahanos asked Dr Yau for a repeat prescription. Dr Yau noted that the previous prescription was half the dose that Ms Karboulahanos said she was taking and queried if she was “getting scripts elsewhere.” Dr Yau prescribed Zoloft 100mg.
56.	On 17 June 2016 Dr Tong recorded:
“1) Psych condition
1/52 'down', irritable, friends have been calling her 'bitter'
feels that 'the world is caving in on her'
has been on Zoloft for about 3 years -> wonders whether this is doing anything
previously 170kg -> lost 80kg over past 3 years
has had divorced settled for past 2 years
…
speaks with friend (who is a trained counsellor at Lifeline) daily
previously seen counsellors, 3-4 years ago, but did not find very helpful
5/7 ago
pt says she had thoughts of self-harm -> 'but she says she wouldn't act on it'
- she thought about this for about 15 mins but then thought about her 2 kids to look after & then 'snapped out of it'
- no intent on acting out
- has not had thoughts of self harm over past 4 days
- for past 5/7, 'felt sorry for herself' but not sure why
no thoughts of harm to others
says she has supportive friends…”
57.	Zoloft was again prescribed. On 29 June 2016 Ms Karboulahanos told Dr Tong that she felt better but still slightly flat. Dr Tong referred her to a psychologist and provided a mental health care plan, recording that Ms Karboulahanos had been divorced in 2009 and “in & out of court for 6 years” Dr Tong noted a history of morbid obesity and that she had been commenced on anti-depressant medication by the clinic where she underwent surgery. On 4 July Ms Karboulahanos told Dr Tong that she will book in to see the psychologist soon.
58.	On 11 October 2016 Dr Navaratnam recorded:
“received letter from vic legal aid - wanting letter stating she has depression and this contributed to fines
i adv that i dont believe that depression would have contributed to her fines
also explained that i need a doubt appt to write any legal letter - im only here on thursday or Friday
she needs letter this week - in court on Monday
she would like to see Dr Jessica tomorrow.”
59.	On the following day Dr Ho recorded:
“Current legal proceedings with ex husband
Has a number of fines under her name which are apparently her husband's (Up to $20,000)
Has been advised by Legal Aid to get a letter in regards to her depression and treatment
Advised there will be a fee
She is happy with this
Ongoing symptoms of depression
Still ongoing issues with nutrition
Still flat mood
Good sleep - 5 hours, no initial issues
Zoloft has made a big difference
Stress, poor concentration
Difficulty managing at work - quit in July following 7 months
Ongoing stressors at home - 2 children
Labile mood
Poor motivation.”
60.	Dr Ho’s letter to Legal Aid is dated 13 October 2016 and notes that Ms Karboulahanos had first attended the practice in the context of a very stressful divorce and was diagnosed with depression in 2013. She wrote:
“…she would focus mainly on her children being fed, clothed and healthy. With the stressors in her life and its effect on her depression she struggled with additional day to day tasks such as paying bills. Poor concentration and memory contributed to this.
Furthermore, Zoe struggled working as conveyancer. She ceased working in 2010 to November 2013. After returning to work she still found she was unable to concentrate at work, had difficulty making decisions and managing stress. She was working on a part time basis and had many days off work under sick leave. Zoe describes having a poor mindset at work and felt day to day tasks were overwhelming. She struggled with motivation and this is an ongoing feature of her mental health issues.
Zoe still continues to struggle with depression and anxiety. She remains on antidepressant medication which is useful and is accessing psychological therapy. The aim is to help her improve her coping skills. She also has regular reviews with myself. While she feels there is some improvement in her symptoms I still note significant symptoms of depression including poor concentration, feelings of being overwhelmed and incapable, poor sleep and issues with diet and nutrition.”
61.	On 21 January 2017 Dr Ho wrote:
“Was successful with Legal Aid - debt from $20,000 down to $4000 and she is still contesting final $4000
Mood has been quite stable, attending work without issue
More happy and well in herself.
…
Repeat script for Zoloft provided
Advised to continue at this stage - no side effects
It was only a few months ago that she was still quite unstable with mood
If going to reduce - reduce over several months
No benefit in changing agents.”
62.	Ms Karboulahanos saw Dr Soon on 15 July 2017 seeking another medical report for court which was “updated and reprinted.”
63.	On 30 November 2017 Dr Chaing wrote:
“script for zoloft
ran out a few days ago - hasnt been taking
now getting withdrawal symptoms
mood has been a bit up and down
yesterday called lifeline for a chat
denies suicidal ideation, self harm
yesterday ex partner called - triggered negative feelings
counselling provided
to return for mental health care plan
continue zoloft 100mg - discussed importance of compliance.”
64.	In 2018 the practice recorded that Ms Karboulahanos had moved to Sydney. In November she asked for copies of the letters “re medical history for court case in Sydney on Friday.”
65.	Ms Kaboulahanos began to see Dr Matar in 2018. On 15 October 2018 she said that she was “put on Zoloft 1 mg daily when she started losing weight.”
Consideration
66.	Those notes show that the history Ms Kaboulahanos provided to the Medical Assessor about her pre-existing depression was incorrect. Though she was prescribed anti-depressant medication by the clinic where she underwent weight loss surgery, it was not prescribed for weight loss but for depression. Based on the records, indicating repeated presentations with psychiatric symptoms and consultations evaluating the impact of the medications on her mood, she must have been aware of that so that the history she provided was implausible. We consider that the Medical Assessor should have probed further and called for the records that we have now obtained.
67.	We note that La Trobe accepted that Ms Karboulahanos has suffered an injury and agreed to the referral to the Medical Assessor without the need for determination of any dispute by the Personal Injury Commission. Though it requested leave to issue directions for production of documents Ms Karboulahanos’ treating doctors in Sydney, there is nothing in the file to show that La Trobe’s insurer had sought access to any notes from the general practitioners in Melbourne.
68.	The entries from the records from Hill Medical Services show that a deduction under s 323 was warranted because Ms Karboulahanos did have a pre-existing condition. We do not consider that a re-examination would assist us in assessing the deduction by ascertaining the pre-existing level of impairment through Ms Karboulahanos accurately recalling her function and impairment prior to the injury, primarily because Ms Karboulahanos is an unreliable historian and is likely to remain so. Further the contemporaneous records do not contain sufficient information to undertake an impairment rating.
69.	Our conclusion about Ms Karboulahanos’ unreliability is reinforced by the history obtained by Dr Allan that she “exquisitely denies any past psychological health diagnosis” and that she was prescribed sertaline (Zoloft) to assist with weight loss (which he considered unusual). Dr Allan’s conclusion from the history he was given is that any previous symptoms were “extremely mild”. Dr George was provided with a similar history and said that whether or not Ms Karboulahanos had a pre-existing depressive disorder is open to question. Neither doctor considered that a deduction under s 323 was applicable.
70.	The most useful material for the assessment of the deduction is the previous general practitioners’ notes. They show that Ms Karboulahanos had been taking medication for a number of years. Despite that, she was able to secure a job with La Trobe in 2017 and in 2018 accepted a transfer to the company’s Sydney office. Though she began to experience stress in that position in October 2018, she was able to maintain her position until she suffered a panic attack in January 2020.
71.	In Cole v Wenaline Pty Ltd, Schmidt J considered a case in which the medical members of an appeal panel found that a deduction under s 323 was warranted because surgery had been undertaken as a result of a previous injury some years before. Her Honour said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment.
Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, It will always, ‘irrespective of outcome', contribute to the impairment flowing from any subsequent injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.”
72.	In Ryder v Sundance Bakehouse Campbell J said:
“What s 323 requires is an inquiry into whether there are other causes, (previous injury, or pre-existing abnormality), of an impairment caused by a work injury. A proportion of the impairment would be due to the pre-existing abnormality (even if that proportion cannot be precisely identified without difficulty or expense) only if it can be said that the pre-existing abnormality made a difference to the outcome in terms of the degree of impairment resulting from the work injury. If there is no difference in outcome, that is to say, if the degree of impairment is not greater than it would otherwise have been as a result of the injury, it is impossible to say that a proportion of it is due to the pre-existing abnormality. To put it another way, the Panel must be satisfied that but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great.”
73.	As the Medical Assessor noted, the medication that Ms Karboulahanos was taking did not prevent her developing clinically significant anxiety symptoms. That diagnosis is different to the diagnosis of depression which led to the earlier prescription of medication, although some of her current symptoms identified by the Medical Assessor are similar to symptoms reported in the general practitioners’ notes in the years prior to the injury.
74.	We accept that Ms Karboulahanos’ previous condition contributed to the severity of her current impairment and made a difference to the outcome. We do not agree that she was “fully functioning” as she submitted because she was taking medication. We do not consider that it is possible to determine the extent of the contribution of her previous condition. The appropriate deduction is one-tenth in accordance with s 323(2).
75.	Ms Karboulahanos’ permanent impairment under the PIRS is 17%. A deduction of one-tenth results, after rounding, in a total assessment of 15% WPI.
76.	For these reasons, we have determined that the MAC issued on 5 October 2022 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:	W4009/22	
Applicant:	Zoe Karboulahanos	
Respondent:	La Trobe Financial Services Pty Ltd	
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 Dr John Lam-Po Tang 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)	
Psychiatric	14 January 2020	Chapter 11, p 6	N/A	17	1/10
	15%	
Total % WPI (the Combined Table values of all sub-totals)                          	15%