For the reasons given above, the MAC will be revoked.
Under the PIRS, Mr Rees has a Median Class of 2 and an aggregate score of 14. This is a whole person impairment of 7%. To that, 2% is added for the effects of treatment under cl 1.32, and a deduction of one tenth is applied, leaving a final whole person impairment of 8%.
The new certificate is attached to this statement of reasons.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Yu Tang Shen and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
[4]
Chapter, page and paragraph number in NSW workers compensation guidelines
[5]
Chapter, page, paragraph, figure and table numbers in AMA 5 Guides
[6]
Proportion of permanent impairment due to pre-existing injury, abnormality or condition
[7]
Sub-total/s % WPI (after any deductions in column 6)
[8]
Total % WPI (the Combined Table values of all sub-totals)
Parties
Applicant/Plaintiff:
BOC Ltd
Respondent/Defendant:
Rees [2025] NSWPICMP 220
Legislation Cited (2)
Injury Management and Workers Compensation Act 1998
Injury Commission Rules 2021
Cases Cited (10)
BOC Ltd v Rees [2025] NSWPICMP 220 (31 March 2025)
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. The Appeal Panel's consideration of the matter is limited to the issues raised in the appellant's submissions (per Basten JA in Queanbeyan Racing Club Ltd v Burton[2021] NSWCA 304 at [26]):
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.
The appellant has raised four issues on Appeal. The submissions set out an extensive history of the background to the claim and the proceedings in the Commission, which the Appeal Panel have considered but are not strictly grounds of appeal. The background does represent a critical component of the determination of the grounds of appeal, however, and in particular how the respondent's case was presented in the Commission and the determination made by the Member.
The first ground raised by the appellant is headed "Causation" and is thus adopted by the Appeal Panel. In substance, the appellant submits that the Medical Assessor erred in not taking into account the respondent's psychological condition resulting from his physical injuries when assessing whole person impairment.
The respondent makes a number of submissions in response, suggesting that the Medical Assessor considered the depressive symptoms associated with the physical injury, that the appellant has not identified how the Medical Assessor ought to have assessed to exercise his statutory function, and that the common law principles set out in State Government Insurance Commission v Oakley(1990) 10 MVR 570 and Secretary, NSW Department of Education v Johnson[2019] NSWCA 321 would in any event apply.
To determine this ground of appeal, one must look closely at the way the respondent presented their case in the Commission, back to the original liability dispute and the medical evidence supporting that determination. Whilst there is a mechanism for the general principle espoused by the appellant, a deduction (in the lay sense of the term, not with reference to s 323 of the 1998 Act) or exclusion is to take place in accordance with the legislation.
It is true that Mr Rees has suffered physical injuries in the employ of the respondent. Those issues are set out in the report of Dr Bentivoglio, amongst others, but are not the subject of the present proceedings in the Commission.
The applicant's claim in the Commission, as set out in the Application to Resolve a Dispute (Application) is for a disease with a deemed date of injury dated 20 March 2018, with a description of "The worker was bullied and harassed by management resulting in psychological injury". No reference is made to secondary psychological injuries, although it is accepted that the description is not binding in a strict sense.
It is clear, based on the s 78 notice attached to the Application, that the respondent has long disagreed with the classification of Mr Rees' injury as occurring due to bullying and harassment. That represents the first line in the issues in dispute in the notice dated 12 April 2023:
The issue was first considered by Campbell J in obiter in State of New South Wales (NSW Department of Education) v Kaur[2016] NSWSC 346 at [22]:
The operation of s 65A was also considered in Mercy Centre Lavington Ltd v Kiely & Ors[2017] NSWSC 1234 and Mercy Connect Limited v Kiely[2018] NSWSC 1421 in terms of how the section applies where it is agreed or determined that a secondary psychological injury exists.
It is that final point that is critical to the present appeal. At no point has there been a determination or agreement that a secondary psychological injury was suffered by Mr Rees. Absent such a decision, there is no basis for the appellant's argument about causation at all. In fact, it would appear to be a backdoor way to introduce an argument that had already been determined by the Member, that is that the psychological injury suffered by Mr Rees was not caused by bullying and harassment, but by something else (i.e. the psychological effects of the physical injuries he suffered in the employ of the respondent).
Ultimately, the Medical Assessor completed the statutory task assigned to him in accordance with the referral dated 3 September 2024. Nowhere in that referral, nor in the decision of the Member that predicated the liability question that was determined in that decision, is there reference to the existence of a secondary psychological condition. It may have been open to the respondent to make an alternative argument that some portion of the impairment suffered by Mr Rees was due to a secondary psychological condition. To make that argument (pursuant to s 65A(2)), that liability question must first have been determined by the Commission (s 65A(1)).
Absent such a determination, the appellant's entire argument about causation fails.
The appellant submits that the Medical Assessor erred in his application of s 323. A close reading of the submissions provided is required to determine the extent of this submission. The appellant refers to the respondent's "psychological condition resulting from his physical injuries", which again appears to reagitate the point determined above, that is that there should be some kind of causation based apportionment for the alleged secondary psychological condition.
However, the appellant also submits that the applicant "suffered pre-existing psychological abnormalities". This sentence is not necessarily limited to the secondary psychological condition. It is the Appeal Panel's view that there can be no deduction due to the secondary psychological condition (which has not been found, as above) as s 65A already provides a mechanism for the exclusion of impairment due to such a condition. To make a deduction pursuant to s 323 would be double-dipping. In any event, as the respondent points out, the physical injuries did not predate the accumulation of work-related stressors (i.e. the bullying and harassment) and accordingly any secondary psychological injury cannot be a pre-existing condition.
However, there is an identified pre-existing psychological condition in the form of autism spectrum disorder with ADHD. There is evidence of the basis for this diagnosis dating back to 2003.
The respondent refers to Dr Canaris, who made a deduction of 1/10th, but failed to apply cl 11.10 of the Guidelines. The respondent also submits that if the matter is referred to an Appeal Panel, there is no means of discretely identifying the contribution from the respondent's childhood disorders to his development.
In respect of the first of those submissions, the decisions referred to (Marks v Secretary Dept of Communities and Justice (No2)[2021] NSWSC 616 and Secretary, Department of Communities and Justice v Lewandowski[2023] NSWSC 334) to not preclude a deduction being made pursuant to s 323. They identify that in part, cl 11.10 of the Guidelines is inconsistent with s 323 of the 1998 Act (to the extent that pre-existing impairment was asymptomatic before injury). On the other hand, Quintiliani-Johns v Secretary, Department of Education[2024] NSWSC 1200 suggests that where a pre-existing condition is symptomatic, cl 11.10 must be applied.
The Appeal Panel make the following observations regarding the re-assessment of Mr Rees.
The first is that in both of the PIRS challenged by the appellant, the Appeal Panel has found a lower class of impairment. In respect of social and recreational activities, Mr Rees is able to attend events (rock climbing with his step daughter, attending the pub once a month with his brother and nephews), and does become actively involved within his physical capacity (he did not participate in rock climbing, mainly due to physical restrictions). Mr Rees did not provide any history that he needs a support person to attend these events, a relevant criterion for an assessment under class 3 and he also enjoys solitary activity, e.g. playing video games, although this was not his focus in recent times. The Appeal Panel notes that the Medical Assessor records "he has not attended any social events since the injury", a conclusion inconsistent with the history recorded of seeing a friend a couple of times a year, going to the pub with his brother once a month, and the same history taken on re-examination of attending indoor climbing with his step daughter.
The Medical Assessor then goes on to provide reasons that are inconsistent with the Guidelines when he states: "As he has been mostly socially isolated, though not to the extent that he never leaves his place of residence, he has moderate impairment." The question is not one of "social isolation", but rather the worker's ability to engage in social and recreational activities, in accordance with the descriptors and examples given in the Guidelines.
In respect of social functioning, the Medical Assessor takes no history of strained relationships, periods of separation or domestic violence or an equivalent to spouse, relatives or community services looking after children. On this basis, the conclusion reached by the Medical Assessor is inconsistent with the Guidelines. On re-examination, Medical Assessor Hong took a history of the end of a relationship prior to the date of injury, related to her mental health rather than Mr Rees' psychological injury. Mr Rees has maintained relationships with his immediate family and relates well to his step-children. There has been a loss of some friendships and some evidence of tension with one of his step-children.
The totality of the evidence suggests that Mr Rees is appropriately assessed in class 2 impairment. There is no evidence to rely on to place Mr Rees within class 3.
In respect of travel, the findings on re-examination differ to those recorded by the Medical Assessor. Mr Rees gave a history of no restriction in travel. In fact, Mr Rees specifically reported that the previous history recorded was incorrect, and that he can drive with no psychological restriction, but has some restriction due to pain. As recorded in the PIRS table above, a restriction due to pain is not assessable under the criteria in Table 11.3.
In those circumstances, an assessment of 2% is appropriate, consistent with the allowance given by the Medical Assessor.
The final issue is the application of s 323 of the 1998 Act. The current degree of permanent impairment has been assessed in accordance with the PIRS. Mr Rees has a pre-existing psychiatric condition of autism spectrum disorder, as well as ADHD. These conditions have contributed to the current degree of permanent impairment by making it worse. Autism spectrum disorder is a psychological condition and is defined as such in DSM-5TR. The condition is one that Mr Rees has lived with his whole life, and per his statement his level of functioning has largely been fine despite that diagnosis. The respondent refers to Marks, with reference to the assessment of Dr Canaris, who made a deduction of one tenth. The respondent submits that cl 11.10 of the Guidelines has been held to be inconsistent with the Guidelines and therefore invalid.
Firstly, the finding in Marks is limited to the factual circumstances of that case, that is where the pre-existing condition was asymptomatic (cf Quintiliani-Johns v Secretary, Department of Education[2024] NSWSC 1200 (Quintiliani-Johns) where the worker's pre-existing condition was symptomatic prior to the injury and cl 11.10 was not inconsistent with s 323).
Regardless, Marks is not authority for any proposition that an asymptomatic pre-existing condition cannot be the subject of a deduction. This was discussed in Vitaz v Westform (NSW) Pty Ltd[2011] NSWCA 254 at [43].
Whilst Mr Rees reports that he was largely fine prior to the work injury, the nature of the pre-existing condition of Autism Spectrum Disorder is more nuanced. This disorder makes it more difficult for others to relate to Mr Rees (due to his rigidity and idiosyncrasies) and makes it difficult for him to understand others or put himself in the metaphorical shoes of others. This interpersonal tension follows him and on an evidentiary basis has followed him at school, in his relationships, and in his employment. It is present with him every day, but may not be disabling every day. In that sense, it was symptomatic prior to the injury.
Regardless of how it is characterised (i.e. whether asymptomatic or not) it has, however, contributed to the current degree of permanent impairment. The major distinguishing factor is whether cl 11.10 applies to the operation of s 323 - in it was held to be inconsistent with the 1998 Act for the purposes of an asymptomatic condition. In it was accepted in obiter that cl 11.10 was not inconsistent with s 323 where the condition was symptomatic prior to injury. Very recently, in , Basten AJ disagreed with holding that cl 11.10 of the Guidelines is not invalid (at [35]). The Appeal Panel are faced with inconsistent Supreme Court decisions on the clause.
(1990) 10 MVR 570
In respect of the second point, it should first be acknowledged that whilst the conditions of autism spectrum disorder and ADHD were first (apparently) identified in Mr Rees in childhood, there is reference to such diagnoses continuing into his adult life. There is no doubt that they continued to affect him. The factual basis for the submission is therefore rejected.
In accordance with the preliminary review issued to the parties, the Appeal Panel were satisfied that the Medical Assessor erred in his assessment of s 323 of the 1998 Act. He failed to address, at all, the pre-existing autism spectrum disorder and ADHD that Mr Rees suffered from. He discusses the diagnoses in the context of the report of Dr Canaris (pg 7 of the MAC), but also refers to a diagnosis of autism spectrum disorder in 2019 by his treating psychiatrist (pg 3 of the MAC). When asked specific questions about whether a deduction would be appropriate on pg 7, he states "nil" with no explanation. This is in error.
In order to properly assess and apply s 323 of the 1998 Act, the Appeal Panel determined that it was necessary to re-examine the worker. That assessment initially took place on 18 February 2025 via video. Due to Mr Rees' health at that time, the re-examination was unable to be completed. It was resumed on 14 March 2025.
Consistent with Coca-Cola Europacific Partners API Pty Ltd v Pombinho[2024] NSWCA 191 at [86], the Appeal Panel are satisfied that the "starting point" must be considered, that is the assessment of impairment made under the PIRS, as well as the effect of treatment added by the Medical Assessor. As the appropriate exercise of s 323 is comparative in nature, considering the worker's impairment as a result of injury and the contribution from any previous injury or pre-existing condition or abnormality, it would be impossible to consider the appropriate exercise of the section without considering the PIRS in toto. Further, cl 11.10 of the Guidelines specifically requires an assessment under the PIRS to determine the "injured worker's pre-injury level of functioning in each of the areas of functioning".
It is noted that the appellant has also challenged two of the PIRS with specific submissions as to the errors made by the Medical Assessor and the appropriate assessment of impairment.
The re-examination report, from both assessments, appears below:
In respect of concentration, persistence and pace, it is noted that Mr Rees gave a history to Medical Assessor Hong of significant capacity to research, read and study online. It appears that this can be attributed to two factors: the first is motivated by Mr Rees ongoing legal dispute in the Commission, for which he feels "his lawyers are not doing enough". The second is due to the effects of medication, reporting that "medication has helped slow down his brain to allow him to focus... medication has helped". The history given by Mr Rees on re-examination is consistent with class 2 impairment.
The next issue is in respect of the effect of treatment. Based on Mr Rees' appearance before Medical Assessor Hong on re-examination, with a history given of increased functioning (particularly in the area of concentration, persistence and pace) causing a reduction in impairment (as measured under the PIRS) cl 1.32 of the Guidelines becomes relevant. The Medical Assessor assessed 2% impairment under that criteria.
In Zoric v Secretary, Department of Education & Ors[2024] NSWSC 131 (Zoric). His Honour Chen J set out three steps that must be followed in apply cl 1.32 (at [59]):
Regardless of whether the clause is invalid or not, it is not possible to assess the percentage of pre-existing impairment under the Guidelines. Clause 11.10 envisions such a circumstance in the last line of that clause: "If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI". This is similar to the fallback position provided for in s 323(2) of the 1998 Act, where the extent of the deduction is difficult or costly to determine. In such circumstances, the deduction is 10% of the assessed impairment.
In circumstances where it is difficult or costly to determine the extent of the contribution from the identified pre-existing condition, a deduction of one tenth is appropriate pursuant to s 323(2) of the 1998 Act. That deduction would not be at odds with the available evidence.