WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC) of permanent impairment in relation to psychiatric and psychological disorders; whether the Medical Assessor (MA) erred in his finding of a 30% deduction to his assessment of permanent impairment in accordance with section 323; Held - error found in that the MA did not assess the deduction required by section 323 in accordance with clause 11.10 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines); Matheson v Baptistcare NSW & ACT, and Quintiliani-Johns v Secretary, Department of Education applied; Marks v Secretary, Department of Communities and Justice (No 2), and Secretary, Department of Communities and Justice v Lewandowski distinguished; State Government Insurance Commission v Oakley found not to be relevant; in accordance with Coca-Cola Europacific Partners API Pty Ltd v Pombinho Appeal Panel required both to re-assess the worker's level of permanent impairment and to correctly utilise clause 11.10 of the Guidelines; permanent impairment assessed at 22% and 10% deduction found in accordance with section 323(2); MAC revoked; new MAC issued.

1. On 8 November 2024, Brickworks Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Appeal). The relevant medical dispute was assessed by Medical Assessor Wayne Mason (the Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 14 October 2024.
2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
   • the assessment was made on the basis of incorrect criteria, and
   • the MAC contains a demonstrable error.
3. The President's delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. She issued her decision in this regard dated 9 December 2024. The Appeal Panel has therefore been convened and it has conducted a review of the original medical assessment, limited to the grounds of appeal upon which the Appeal is made.
4. Clause 128 of the Personal Injury Commission Rules 2021 (the Rules) and Procedural Direction PIC7 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 cl 128(1) of the Rules.
5. The relevant medical dispute involves an assessment of permanent impairment, which is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). The psychiatric impairment rating scale categories (the PIRS categories) to be utilised in the necessary assessment are outlined at cls 11.11-11.12 and at Tables 11.1-11.6 of the Guidelines.

1. Isabella Maybel Wright (the respondent) is the daughter of the late Stewart Wright (the worker). She was granted letters of administration in relation to his Estate by the Supreme Court on 2 January 2024, him having taken his own life in May 2023.
2. The worker commenced employment as a truck driver with the appellant on or around

13 January 2013. 3. In his signed 29 January 2021 statement (found at page 2 of the Application to Resolve a Dispute (ARD)), he advises of significant physical and psychological injuries which he received in a motor vehicle accident prior to his employment with the appellant, in 2008. He was at that time employed by R H Giles Pty Ltd, and he received workers compensation benefits following the accident. 4. Those workers compensation benefits included lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the amount of $35,750, awarded to the worker by way of a Certificate of Determination of the Workers Compensation Commission dated 14 September 2012 (found at page 1 of the respondent's Application to Admit Late Documents dated 17 September 2024 (respondent's AALD)). That award followed the worker being assessed by Workers Compensation Commission Approved Medical Specialist Robert Gertler, and the issuing of a Medical Assessment Certificate (2012 MAC) dated 27 July 2012 (found at page 2 of the respondent's AALD) finding the worker with 22% permanent impairment as a result of his psychological injuries. 5. In his 29 January 2021 statement however, the worker outlines the following in relation to the 2008 motor vehicle accident:

"I was also diagnosed with Post Traumatic Stress Disorder ('PTSD') subsequent to the collision. I received psychological interventions for the next two (2) years...After substantial psychiatric treatment the advice from my treater's was that I had made a complete and full recovery...I believed and felt that I had made a complete recovery."

1. In the 29 January 2021 statement, the worker then advises that during his employment with the appellant its safety standards slipped, and he became marginalised by management when he raised safety issues. He specifically refers to an incident that occurred on

16 August 2019 in this regard. Following that incident, he had meetings with the appellant's management, which resulted in him leaving work and seeking psychological treatment. 2. The appellant initially denied liability when the worker claimed workers compensation benefits from it in relation to a psychological injury, and the worker therefore commenced previous proceedings before the Personal Injury Commission (Commission). The result of those proceedings was a Certificate of Determination (which was later confirmed on appeal) dated 23 August 2021 (found at page 72 of the ARD) awarding the worker weekly benefits compensation from 23 September 2019 on an ongoing basis, in relation to the psychological injury. 3. The worker's solicitors then arranged for him to be assessed by Dr Bertucen in relation to the psychological injury, and the doctor's report dated 12 January 2023 (found at page 116 of the ARD) assessed him with 22% permanent impairment as a result of the injury. 4. The worker's solicitors formally claimed compensation from the appellant pursuant to s 66 of the 1987 Act for 22% permanent impairment, and the appellant arranged for the worker to be examined by Dr Roberts on 6 April 2023. 5. After receipt of Dr Roberts' report dated 2 May 2023 (found at page 4 of the appellant's Reply (Reply)), the appellant issued a notice pursuant to s 78 of the 1998 Act dated

31 May 2023 (found at page 65 of the ARD), denying liability for the worker's claim pursuant to s 66 of the 1987 Act. The appellant argued that any permanent impairment of the worker's was not greater than 15%, and that any such permanent impairment did not result from his psychological injury in its employ. 6. The worker had passed away prior to the issuing of the notice pursuant to s 78 of the 1998 Act, and the respondent therefore continues his claim pursuant to s 66 of the 1987 Act, on behalf of his Estate. 7. The respondent instructed the issuing of these proceedings in the Commission, and the proceedings were listed before Member Turner on 20 September 2024. Consent Orders were then made remitting the proceedings to the President for referral to the Medical Assessor. The Consent Orders recorded the worker's deemed date of injury with the appellant to be 16 August 2019.

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
2. As a result of that preliminary review, the Appeal Panel determined that the Medical Assessor had fallen into error. It was therefore incumbent upon the Appeal Panel to conduct a re-assessment of the worker's permanent impairment.
3. However, prior to re-assessing the permanent impairment, the Appeal Panel issued directions to the parties in accordance with s 324 of the 1998 Act for further clinical/medical records to be provided to it from:

(a) Dr Chan;

(b) St John of God Hospital;

(c) Nepean Hospital;

(d) Dr Liew;

(e) Emu Plains Doctors;

(f) Dr Nguyen;

(g) Brooke Seydler, and

(h) EML (being the insurer currently responsible for the worker's workers compensation claim regarding his 2008 accident).

1. In its 20 February 2025 preliminary review certificate, the Appeal Panel advised the parties:

"On preliminary review, the Panel considers that it should have before it all available clinical/medical records of the worker's between 27 July 2012 and 16 August 2019, in order for it to determine the Appeal...The Panel notes in this regard that there are no records currently before it from a large number of the worker's treating doctors during that period, and that some of the records that are currently before it do not appear to be complete in relation to that period."

1. The Appeal Panel considered that prior to his psychological injury with the appellant, the worker had a previous injury, pre-existing condition or abnormality, so that when it re-assessed his permanent impairment, it needed to determine whether to apply a deduction in accordance with s 323 of the 1998 Act. His treatment records between the date of the 2012 MAC and the agreed deemed date of his psychological injury with the appellant on 16 August 2019, were highly relevant to that determination.
2. The Appeal Panel also advised the parties by its 5 March 2025 preliminary review certificate that it considered that the Medical Assessor had made the same error as the medical assessor in Quintiliani-Johns v Secretary, Department of Education [2024] NSWSC 1200 (Quintiliani), and that:

"It is appropriate that the full reasons for error being found are incorporated in the final Statement of Reasons for Decision of the Appeal Panel in relation to a Medical Dispute, to be issued after the Panel's re-assessment of the respondent's [worker's] permanent impairment...It is sufficient at this stage to advise the Panel's opinion that Assessor Mason erred in his application of s 323 of the Workers Compensation Act 1987 in his assessment of the respondent's [worker's] permanent impairment as he did not undertake the necessary assessment of the respondent's [worker's] pre-injury level of functioning, specifically by referencing the PIRS categories referred to in the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021."

1. Both parties subsequently lodged further documentation with the Commission in accordance with the Appeal Panel's directions.
2. The Appeal Panel is therefore now satisfied that it has before it as much documentation as possible regarding the worker's treatment between the 2012 MAC and 16 August 2019. It advised the parties as such by its 9 May 2025 preliminary review certificate.
3. That preliminary review certificate also advised the parties that Nicholas Glozier from the Appeal Panel would be conducting the necessary re-assessment of the worker's permanent impairment 'on the papers', on 2 July 2025.
4. The report from that re-assessment 'on the papers' is quoted in full at paragraph 66 below.

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination:

(a) the ARD and its attachments;

(b) the Reply and its attachments;

(c) the respondent's AALD and its attachments;

(d) the appellant's Application to Admit Late Documents dated 17 September 2024 (appellant's AALD) and its attachments, and

(e) the Consent Orders made by Member Turner on 20 September 2024.

1. The Appeal Panel also has before it the following documents, which were lodged by the parties in accordance with the directions made by it:

(a) the appellant's Application to Lodge Additional Documents dated 20 March 2025 (appellant's ALAD) and its attachments - which include clinical/medical records of the worker's from St John of God Hospital, Nepean Hospital, Emu Plains Doctors, Dr Nguyen, Brooke Seydler and EML - as well as information that records could not be obtained from Drs Chan and Liew, and

(b) the respondent's Application to Lodge Additional Documents dated

26 March 2025 (respondent's ALAD) and its attachments - which include confirmation that all of Dr Chan's available records were attached to the ARD.

1. As noted, Nicholas Glozier from the Appeal Panel conducted a re-assessment of the worker's permanent impairment 'on the papers' on 2 July 2025, and has reported to the Appeal Panel - see paragraph 66 below.

1. Only the parts of the MAC that are relevant to the Appeal are set out.
2. The Medical Assessor summarises in some detail the evidence before him in relation to the worker's symptoms and treatment both following his 2008 accident, and in the years between that accident and his psychological injury in the appellant's employ, as well as subsequent to that injury.
3. He notes that the worker developed post-traumatic stress disorder and major depressive disorder following the 2008 accident, and did not return to work until 2013. He notes the finding of 22% permanent impairment in the 2012 MAC.
4. He notes that in May 2016, the worker reported a relapse of his post-traumatic stress disorder and acute depression subsequent to separation from his wife. There was an emergency admission to Nepean Hospital, and then an admission to St John of God Hospital between 15 August 2016 and 2 September 2016. There was then a reconciliation between the worker and his wife in late 2016.
5. He also notes recurrences of psychological symptoms reported by the worker on

8 March 2017 following a minor motor vehicle accident, and in mid 2017 following a near-miss motor vehicle accident. 6. He assesses the worker's permanent impairment at 24% by utilising the PIRS categories, following reviewing, again in detail, the evidence before him as to the worker's symptoms prior to him passing away. He states:

"Mr Wright suffered an exacerbation of both pre-existing post-traumatic stress disorder and major depressive disorder as a consequence of the work injury. In my opinion the preponderance of the work-related injury was a major depressive disorder as is evident from his eventual suicide. Whole person impairment was 24%...I believe a s.323(2) deduction is necessary. In my opinion the appropriate production [sic] is 3/10, resulting in final whole person impairment of 17%."

1. He explains his reasons for the deduction that he made in accordance with s 323 of the 1998 Act by referencing the decision in State Government Insurance Commission v Oakley (1990) 10 MVR 570 (Oakley):

"Dr Bertucen provided reports in 2023 and 2024. He diagnosed Major Depressive Disorder with Anxious Distress caused by events in the workplace between 2017 and 2018. He did not diagnose PTSD and asserted the main work place injury was major depressive disorder with significant anxious distress. He assessed WPI at 24% and made a 1/10th deduction for pre-existing condition from 2008. This is in accordance with Oakley 2 but ignores the fact that PTSD symptoms were re-ignited by the workplace injury of 2019. However I agree the predominant symptomatology was depressive in nature...I believe Dr Bertucen's formulation is closer to the reality of the situation with the exception of his failure to diagnose PTSD. Taking the aggravation of the PTSD component into consideration, I believe a 3/10 s.323(2) deduction is warranted to exclude the PTSD component."

1. He later formally finds that the worker had a previous injury, pre-existing condition or abnormality in the form of a post-traumatic stress disorder and a major depressive disorder. He also formally finds that the previous injury, pre-existing condition or abnormality contributed to the worker's symptoms prior to his passing away. He states however:

"Whilst the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence. In my opinion the deductible proportion is 3/10 for the following reasons:

(i) The pre-existing condition consisted of a leading diagnosis of post-traumatic stress disorder and a lesser diagnosis of major depressive disorder. The situation caused by the 2019 work injury was the reverse of that i.e. a leading diagnosis of major depressive disorder and a lesser diagnosis of post-traumatic stress disorder. I draw attention to the nature of the injury which was not sustained in a motor accident and to the fact that the injury resulted in Mr Wright's suicide.

In my opinion the deductible proportion is 3/10 for the following reasons:

(i) The main psychiatric injury was Major Depressive Disorder while the lesser psychiatric injury was Post Traumatic Stress Disorder. Had it been the other way around, a 7/10 deduction would be warranted."

1. Both parties have made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
2. In summary, the appellant submits that:

"a. The Medial Assessor has made demonstrable error in his application of the test of causation found in State Government Insurance Commission v Oakley (1990) 10 MVR 570.

1. The Medical Assessor has used incorrect criteria and made demonstrable error in his application of s 323 of the 1998 Act and cl 1.11 [should read 11.10] of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Guides)."

1. The appellant argues that the Medical Assessor should have found that the full extent of the worker's permanent impairment was due to the 2008 accident. He should have applied the first categorisation in Oakley rather than the second categorisation in Oakley (see paragraph 37 above), being that the psychological injury in the employ of the appellant would not have occurred had the worker been in normal health prior - "it is evident that the PTSD that was triggered by the later injury simply could not have been so but for the first injury in 2008 and any resulting depressive symptoms cannot be excluded when assessing causation".
2. The appellant otherwise argues that the Medical Assessor did not correctly apply cl 11.10 of the Guidelines, which requires assessing the worker's previous injury, pre-existing condition or abnormality by using the same method (that is, the PIRS categories) as is used to assess the injury in the employ of the appellant. The appellant submits that if the Medical Assessor had correctly applied that clause, the findings in the 2012 MAC (of 22% permanent impairment) should have been used to make the necessary deduction in accordance with s 323 of the 1998 Act. Alternatively, it submits that "there has been ample evidence of the Deceased's prior functioning for the PIRS table to be completed in respect of the prior conditions".
3. The appellant finally submits that:

"Should the MAP be of the opinion that the preexisting condition could not be accurately assessed using the PIRS, the Appellant submits that the deduction of only 30% does not accord with the preponderance of the medical evidence in this matter."

(a) common law principles of causation are not relevant to the assessment of a previous injury, pre-existing condition or abnormality - those assessments are solely to be undertaken in accordance with s 323 of the 1998 Act - which "is purely statutory rule and has no common law equivalent";

(b) the application by the Medical Assessor of a categorisation in accordance with Oakley was not required by him - the categorisations in Oakley were only applicable where a further injury had been sustained at a time after the injury being assessed - "because there is no statutory equivalent of s 323 applying to the effect of a later injury on the assessment of an earlier injury";

(c) cl 11.10 of the Guidelines is invalid - relying upon Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616 (Marks) and Secretary, Department of Communities and Justice v Lewandowski [2023] NSWSC 334 (Lewandowski);

(d) the Medical Assessor's path of reasoning is "amply" recorded in order to satisfy that requirement in accordance with Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (Wingfoot) - the respondent references the extract quoted at paragraph 38 above, and

(e) in essence, the appellant is attempting to "cavil at matters of clinical judgement" of the Medical Assessor - matters which are not appealable.

1. In Campbelltown City Council v Vegan [2006] NSWCA 284, 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.
2. 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 - that is those errors identified by a party in its submissions - see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792.
3. The Appeal Panel in this regard has to ensure that it does not disturb any unchallenged findings in the MAC. In Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304, Basten JA stated (at [35]):

"The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and [emphasis in original] the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessor's reasoning with respect to that finding; neither course was part of its statutory function."

1. The appellant specifically relies upon two grounds of appeal (see paragraph 40 above). The Appeal Panel will therefore only consider those grounds.
2. In relation to the first ground of appeal, the Appeal Panel agrees with the respondent (see paragraph 44 above) that common law principles of causation and the categorisations in Oakley are not relevant to the assessment required to be undertaken by the Medical Assessor of the worker's permanent impairment. The three categorisations in Oakley all refer to the effect of subsequent injuries on the injury being assessed (which was in this case the worker's injury in the employ of the respondent, rather that his injury from the 2008 accident), and whether those subsequent injuries should be taken into account as having a causative relationship with the injury being assessed. There is no evidence in this regard that the worker sustained a subsequent injury to his injury in the employ of respondent.
3. The categorisations in Oakley do not deal with the effect of a previous injury, pre-existing condition or abnormality on the injury being assessed. Instead, s 323 of the 1998 Act specifically deals with that situation.
4. It is not disputed that the worker sustained a psychological injury in the employ of the appellant. It is also not disputed that prior to that injury, he had a previous injury, pre-existing condition or abnormality. In those circumstances, it was incumbent upon the Medical Assessor to assess his permanent impairment in accordance with the Guidelines, and to then determine whether to make a deduction from that assessment in accordance with s 323 of the 1998 Act.
5. Section 323 of the 1998 Act reads as follows:

"(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.

(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence."

1. Clause 11.10 of the Guidelines then deals with how to assess deductions to be made in accordance with s 323 of the 1998 Act:

"To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker's pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker's current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI."

1. The appellant's second ground of appeal relates to the Medical Assessor not complying with cl 11.10 of the Guidelines, as he did not utilise the PIRS categories to assess the worker's previous injury, pre-existing condition or abnormality. The Appeal Panel agrees that the Medical Assessor erred in this regard as the sections of the MAC in which he explains why he deducted 30% from his assessment of the worker's permanent impairment in accordance with s 323 of the 1998 Act (see specifically the extracts quoted at paragraphs 36-38 above), do not in any way reference the PIRS categories when considering the worker's pre-injury level of functioning. They instead provide other reasoning.
2. In Quintiliani, Mitchelmore J summarised (at [75]):

"In order to ascertain what, if any, proportion of the plaintiff's current level of WPI was due to her pre-existing condition, the Guidelines required the medical assessor to undertake an assessment of the plaintiff's pre-injury level of functioning, by reference to the PIRS. If that could not be assessed, the Guidelines prescribed that the deduction was to be one-tenth of her assessed WPI (it was not submitted that this was inconsistent with s 323(2)). The plaintiff's complaint to the Appeal Panel was that the medical assessor did not approach the issue consistently with the Guidelines. Instead, notwithstanding his conclusion that the extent of the deduction was difficult or costly to determine, he settled on a deduction of 50% on the basis of an assessment on his part of what proportion of her psychological impairment - that is, her injury - could be attributed to her pre-existing condition."

"In my view, in dismissing this complaint, the Appeal Panel adopted the same erroneous approach as the medical assessor, focusing on 'the contribution to the current injury by the pre-existing bipolar disorder'. So much is clear from the penultimate sentence of paragraph [39] of the Appeal Panel's reasons, in which the Panel concluded that 'the contribution to the current injury by the pre-existing bipolar disorder on the one hand and the psychological injury on the other are about equal'. As the plaintiff submitted, that did not address the issue she had raised, and in any event it was not the right question. In asking itself the wrong question in this regard, the Appeal Panel made a jurisdictional error; it may also be characterised an error of law on the face of the record. I would uphold ground 4."

1. In the opinion of the Appeal Panel, the Medical Assessor has made the same error as the medical assessor in Quintiliani. He focused on the contribution to the current level of the worker's impairment made by the previous injury, pre-existing condition or abnormality, rather than assessing the previous injury, pre-existing condition or abnormality in accordance with cl 11.10 of the Guidelines.
2. The respondent submits (see paragraph 44(c) above) that cl 11.10 of the Guidelines is invalid. He specifically relies upon the decision of Simpson AJ in Marks. That case involved a consideration of the effect of s 323 of the 1998 Act and cl 11.10 of the Guidelines, in relation to a pre-existing psychological condition that was asymptomatic at the time of the relevant psychological injury. Her Honour stated (at [17-18]):

"In the light of this consistent line of authority, s 323(1) must be construed as requiring deduction from the assessment of the degree of permanent impairment of any proportion of the impairment that is due to 'previous injury ... or ... pre-existing condition or abnormality', whether or not the pre-existing condition or abnormality is symptomatic at the time of injury. As noted in the preliminary reasons, the cases which have previously considered this question all related to physical injury. However, as was observed on behalf of the first defendant, s 323(1) does not distinguish between physical and psychiatric or psychological injuries. It applies to all injuries equally.

Guideline 11.10, with its focus on 'pre-injury level of functioning', does not allow for deduction from the assessment of impairment in cases where an asymptomatic pre-existing condition contributes to the degree of permanent impairment assessed. To the extent that Guideline 11.10 excludes consideration of any contribution to the permanent impairment that might be made by an asymptomatic pre-existing condition, it is inconsistent with s 323(1)."

"I have therefore concluded that Guideline 11.10 of the Workers Compensation Guidelines is, to the extent that it excludes, in the application of s 323(1) of the WIM Act to any psychiatric or psychological impairment, consideration of any contribution made to the impairment by a pre-existing but asymptomatic condition, inconsistent with s 323(1) and invalid."

1. The respondent also relies upon the decision of Griffiths AJ in Lewandowski. In that case, the worker had a pre-existing post-traumatic stress disorder, and his Honour found that the appeal panel in the case fell into jurisdictional error in failing to determine what proportion of the worker's pre-existing post-traumatic stress disorder contributed to her impairment following her psychological injury. He stated (at [54-55]):

"The Panel focused its attention not on the proportion of Ms Lewandowski's impairment which was due to her PTSD, but rather on whether the impairment produced by the PTSD could itself be measured. This was the wrong legal test, which flowed from the Panel asking itself the wrong question. This constitutes jurisdictional error.

It is evident from [62] and [63] that the Panel was conscious of the need to address whether the pre-existing PTSD condition contributed to her impairment but instead of analysing the available medical evidence relating to the issue of contribution, the Panel was distracted from the relevant legal task by its consideration of whether Ms Lewandowski's pre-existing impairment could be measured according to the PIRS."

1. There appears to be significant inconsistency between the decisions in Marks and Lewandowski, and the decision in Quintiliani. This inconsistency was discussed in detail recently by Basten AJ in Matheson v Baptistcare NSW & ACT [2025] NSWSC 213 (Matheson). His Honour determined that cl 11.10 of the Guidelines was not invalid, and gave comprehensive reasoning in this regard, specifically distinguishing the decision in Marks (at [20-35]):

"The claimant submitted that the assessment by the appeal panel in relation to a pre-existing condition was required to be undertaken in accordance with the PIRS, and that, assessed on that basis, no permanent impairment was identified. The claimant submitted that, that being the only basis for assessment, there should have been no deduction for a pre-existing condition.

To the extent that the appeal panel's reasons sought to identify some element of the claimant's current psychological impairment as due to pre-existing conditions, that matter will be addressed below. For present purposes it is convenient to turn to the legal question raised by the claimant.

There are authorities in this Court and in the Court of Appeal holding that s 323(1) of the Workplace Injury Act requires a causal connection between a pre-existing injury, condition or abnormality and the impairment arising from the injury the subject of the claim. That is, there is to be a deduction where any proportion of the impairment 'is due to' any previous injury, condition or abnormality. The deduction is not contingent upon a finding that the previous injury itself caused an impairment. Accordingly, an asymptomatic injury which contributes to the present impairment must result in a deduction.

However, all but one of the cases was concerned with physical injury: only one, to be addressed below, involved a psychological injury. Although s 323 does not distinguish between physical and psychological injuries, other parts of the Workers Compensation Acts do make such a distinction. For example, s 65A of the Workers Compensation Act, introduced in 2001, varied the threshold for lump sum compensation payments from 10% (which thereafter has only applied to physical injuries) to 15% for a primary psychological injury: s 65A(3). Secondly, s 65A introduced an obligation to disregard, in relation to psychological injuries, a 'secondary psychological injury'. There is thus no a priori reason for assuming that a general provision such as s 323 of the Workplace Injury Act necessarily applies in the same way to each category of injuries.

Importantly, cl 11.10 in the Guidelines, dealing specifically with the calculation of a 'pre-existing impairment', in relation to a psychological injury, requires the calculation of a percentage impairment in applying s 323.

It is, of course, true that the Guidelines cannot, of their own force, vary the substantive effect of the Acts. However, the Guidelines do not operate of their own force in that manner: their operation is given mandatory statutory effect, in general terms by s 322(1) and, specifically in relation to the calculation of a pre-existing condition, by s 323(4). There is no reason in principle why those two provisions cannot give effect to a guideline which, in a particular respect, qualifies the substantive effect of s 323(1).

Further, as has been explained by reference to the detailed and, in one sense, artificial, structure imposed by the Guidelines on the assessment of 'permanent impairment' with respect to psychological injuries, the degree of permanent impairment has no content separate from the numerical value mandated by application of the Guidelines.

Further, as a practical matter, the concept of an asymptomatic psychological condition differs from that of an asymptomatic physical injury. For example, a degenerative condition of the spine may be asymptomatic until the occurrence of a frank injury, but will have contributed to the impairment resulting from that injury. In such a case, the existence of the asymptomatic condition is capable of being identified and diagnosed. The existence of an asymptomatic psychological condition is usually not open to such proof of existence. Thus, the PIRS used to assess permanent impairment from psychological injuries is entirely based on behavioural factors, as compared with the guidelines dealing with physical injury which require assessment of physical conditions, such as reflexes, hearing loss and the results of radiological investigation.

Thus, where the impairment caused by a psychological injury is to be assessed by reference to behavioural elements, it makes sense that any reduction in the numerical result of that assessment should be made by reference to behavioural elements.

In one sense, this approach is consistent with the proposition that the existence of a pre-existing condition must be proven and not assumed. For example, not everyone exposed to a sudden shock which would qualify as criterion A for post-traumatic stress disorder under the DSM-5-TR will experience post-traumatic stress disorder. On the other hand, a person not exposed to such a shock cannot, by definition, suffer from PTSD.

In Marks v Secretary, Department of Communities and Justice (No 2), Simpson AJ held that to the extent that cl 11.10 of the Guidelines precluded the assessment of impairment from a previous injury which was asymptomatic, it was inconsistent with the causative element of s 323 and was therefore invalid: at [29].

The reasoning to this conclusion involved five steps.

(1) First, and uncontroversially, s 323(1) requires a causal connection between a pre-existing injury and a current state of impairment.

(2) Secondly, an asymptomatic condition could contribute to the degree of impairment, as explained in the following passage:

'[16] The more important question, which the plaintiff's submissions did not address, is whether a pre-existing condition, notwithstanding that it is asymptomatic at the time of the injury in respect of which the assessment is undertaken, may, nevertheless, contribute to the degree of impairment. In respect of physical injuries, it has long been held that it can: Government Cleaning Service v Ellul (1996) 13 NSWCCR 344; Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; (2000) 21 NSWCCR 34; Elcheikh v Diamond Formwork (NSW) Pty Ltd (In Liquidation) [2013] NSWSC 365 at [91] and [95].'

(3) Thirdly, because s 323(1) does not distinguish between physical and psychological injury, the authorities dealing with physical injuries must apply equally to psychological injury: at [17].

(4) Fourthly, insofar as the Guidelines make such a distinction, they are inconsistent with s 323(1) of the Workplace Injury Act: at [19]-[20].

(5) Fifthly, because the Guidelines cannot prevail over the Act, cl 11.10 of the Guidelines is to that extent invalid: at [29].

This reasoning fails to address the distinctions drawn within the Workers Compensation Acts as to the treatment of psychological and other injuries, and thus omits inferences to be drawn from the legislative scheme. Further, the reasoning fails to give proper effect to the statutory provisions relating to the Guidelines. A finding of invalidity of one part of a coherent and rational statutory scheme should not readily be made.

It appears that the statutory analysis set out above did not feature in the submissions in Marks (No 2). Thus the plaintiff's submission in that case was characterised as being 'that s 322(1) 'gives precedence' to the Guidelines': at [28]. The judge observed that there was nothing 'in either s 376 or s 323(4) that authorises the issue of guidelines that are inconsistent with any provision of the [Workplace Injury Act]'. That is so: however, what is required is a construction of the legislation which deals harmoniously with the different provisions. Although in Marks (No 2) it was recognised that s 322(1) 'mandates that the assessment of the degree of permanent impairment 'is to be made' in accordance with those guidelines' (at [6]), there was no consideration of how permanent impairment could be assessed otherwise than by reference to the Guidelines. In a real sense, the statutory scheme is one by which the Guidelines defined what was and what was not a permanent impairment, by placing a firm structure, with specified criteria, for the assessment of the degree of permanent impairment.

As to the specific authorisation in s 323(4) that the Guidelines 'may make provision for or with respect to the determination of the deduction required by this section', Simpson AJ held that the phrase 'required by this section' referred back to s 323(1), and thus could not limit the causal connection. With respect, that reading turns the phrase identifying the power with respect to which the Guidelines are to operate, into a constraint on the scope of the Guidelines. No doubt it is true that sub-s (1) is the operative provision, identifying the purpose of the section; however, it is not to be read in isolation from the rest of the section, or from the previous section. A precondition to the operation of s 323(1) is that a causal connection can be established between a previous injury and the existing state of impairment. There is no inconsistency between the terms of sub-s (1) and a guideline which states how that pre-condition may be satisfied. Accordingly, a guideline which states that an asymptomatic psychological condition cannot satisfy the precondition, is not inconsistent with the operation of s 323(1).

In my view, cl 11.10 of the Guideline is not invalid. It follows that the medical assessor and appeal panel were bound to apply it in the present case. The next question is whether the appeal panel did apply that guideline: it certainly purported to do so, up to a point."

1. The Appeal Panel has quoted extensively from Matheson as it intends to follow the reasoning of Basten AJ. It is consistent with the reasoning in Quintiliani, and explanatory as to why cl 11.10 of the Guidelines is valid, and therefore required to be utilised when assessing impairment due to a previous injury, pre-existing condition or abnormality, especially when (unlike in Marks) the previous injury, pre-existing condition or abnormality was not asymptomatic when the psychological injury was sustained (as was the situation with the worker in these proceedings).
2. As already outlined, the Medical Assessor does not reference cl 11.10 of the Guidelines when assessing the deduction to be made from the worker's permanent impairment in accordance with s 323 of the 1998 Act, in order to take into account his previous injury, pre-existing condition or abnormality. The Medical Assessor does not assess the worker's pre-injury level of functioning by reference to the PIRS categories. The Medical Assessor instead concentrates on the contribution to the worker's permanent impairment of his pre-existing post-traumatic stress disorder, without any consideration of cl 11.10 of the Guidelines and how that pre-existing post-traumatic stress disorder was to be assessed in accordance with the PIRS categories.
3. The Appeal Panel finds both demonstrable error and the incorrect application of criteria in this regard.
4. Having found error, it is incumbent upon the Appeal Panel to re-assess the worker's permanent impairment. This assessment needs to both:

(a) assess the worker's permanent impairment afresh - without being bound by any "fixed starting point", such as the 24% permanent impairment finding of the Medical Assessor, and

(b) correctly utilise cl 11.10 of the Guidelines to assess the worker's permanent impairment with respect to his previous injury, pre-existing condition or abnormality, in accordance with the PIRS categories - or to make a determination in accordance with s 323(2) of the 1998 Act if such an assessment is difficult or costly to find and therefore cannot be assessed.

1. Although the Medical Assessor's 24% permanent impairment finding is not in itself the subject of any ground of appeal, it is still an assessment which needs re-assessment, in accordance with Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 (Pombinho), where Ward P stated (at [86]):

"In any event, Ground 4 in my opinion suffices to bring the assessment of

Mr Pombinho 's current whole person impairment within the scope of the grounds of appeal and hence within the jurisdiction of the Appeal Panel. That is because I accept the appellant's submission that, in order to determine the impact of pre-existing injury on current whole person impairment, a comparative exercise was necessary and that it would be logically incoherent simply to begin the exercise from a fixed starting point (i.e., the 24% whole person assessment made by the Medical Assessor) and then separately to consider the extent to which pre-existing injury contributed to that whole person impairment (and then to apply that amount to the fixed starting point) without considering the starting point itself. The approach required by the Guidelines is a subtractive approach, requiring a deduction from the starting point of whole person impairment but it would make the exercise artificial if, having been required to consider all of the material that the Medical Assessor had failed to consider, the Appeal Panel could not then revisit the starting point of the assessment."

1. The necessary re-assessment of the worker's permanent impairment of course had to be conducted 'on the papers', and was conducted by Nicholas Glozier from the Appeal Panel. His report follows:

It is accepted that Mr Wright experienced a significant injury including burns to his face, head, hands and a Posttraumatic Stress Disorder following a motor vehicle accident on 4 April 2008. This led to many years of physical and psychological treatment with a slow but significant gain in symptoms of amelioration and function, and with further relapses over the years prior to the index injury.

Relevant information that could enable an assessment of impairment arising from pre-existing condition

Mr Wright's statement outlines the impact that that injury had had on him, from his perspective, as of that time. At that stage he reported symptoms of irritability, impaired concentration, misplacing objects, forgetful of details in conversations, jumpiness, easy startle, and irritability. He reported being sensitive, easily distracted, that minor things set him off, he had lost patience. He reported physical abuse even of his wife, e.g. 'I yell at Justine, call her names, push and shove her'. He further reported panic attacks, not socialising, very rarely leaving the house, little interest in activities out of the home and little contact with friends. He reported a loss of self-esteem, increase of weight, trouble tolerating and entertaining visitors. He noted that his mood varied enormously, he became very easily irritated and easily provoked to anger. Although he reported having previously taken a wide range of medication, by the time of this statement he had stopped all medications because of perceived side effects.

The clinical notes from Dr Chan, his treating GP, from Emu Plains start in March 2005 and end in 2021. They are densely handwritten and mostly illegible.

In September 2011 Mr Wright was certified for suitable duties and in December 2011 had completed a bobcat course - NB: This seems at odds with his reporting and the determination in the MAC a few months afterwards that he was totally unable to work.

On 9 October 2013 it was noted he 'wants to drive trucks' with an unreadable note about Employers Mutual.

There are only infrequent notes over 2014 and 2015, all of which are illegible.

On 9 May 2016 it was noted that 'feels down, suicidal since wife left.'

On 19 May 2016 it was noted he had been at Nepean Hospital and seeing Dr Nguyen. There is a later reference that he had been to St John of God Hospital, had 'a mini mental state of 29/30'.

In December 2026 he had a diphtheria and tetanus injection.

He was again seen in January and February 2018 but the notes are illegible.

On 4 September 2019 there is a note referring to the incident of 16 August 2019.

The Medical Assessment Certificate of Dr Gertler dated 27 July 2012 for the psychiatric injury of Posttraumatic Stress Disorder arising from the 2008 injury reiterates the symptoms and impact on his function as recorded. He is rated as having a mild impairment in self-care and personal hygiene, and travel; moderate impairment in social and recreational activities; social functioning; and concentration, persistence and pace, and was deemed currently totally unfit for any employment at all. This resulted in a 22% whole person impairment.

These commence on 29 December 2014 when he registered. (This would also indicate that during this period he was not just seeing Dr Chan.)

Over 2014/2015 there are records only of attendance for physical health symptoms including skin complaints, an eye injury, and a minor infection.

On 26 May 2016 depressive and resurgent PTSD symptoms arising from his wife leaving him were noted, leading to his GP starting him on the SSRI antidepressant Escitalopram and referring him to a psychologist under a mental health care plan.

On 14 June 2016 it was recorded he was seeing a psychologist for 'relationship issues secondary to anger outbursts'.

This would indicate a recurrence or aggravation of these common symptoms of PTSD, with associated impact on social functioning, which had been identified as pervasive for many years after the 2008 accident.

Over the next couple of months he was only seen for smoking cessation consultations and there is no record of the admission to St John of God Hospital in August that year.

He was provided with a Workcover Certificate of Capacity on 11 September 2016, purportedly for 'surgery needs post-op recovery' although this was backdated to August 2016 and would appear to coincide with his psychiatric admission to St John of God Hospital.

On 22 May 2016 there is a letter from Dr Nguyen, psychiatrist, following his assessment due to the recurrence of psychological symptoms and impairment that year. It was noted that he had 'anger and irritability outbursts with her' (his ex-wife) possibly related to PTSD. Dr Nguyen noted the relapse of PTSD with intrusive recollections of prior trauma.

This letter also notes that there had been an assessment by consultant psychiatrist Dr Bisht on 8 November 2013 for fitness to drive, stating he was 'in complete remission from PTSD and Major Depression and could return to driving normal trucks.'

On 25 November 2017 it was noted he had been on holiday, spent a lot of time underwater and spent that time 'on an island'.

On 11 May 2016 Mr Wright was brought in by police to Nepean Hospital due to concerns about suicidality following him sending his ex-partner a social media photograph of himself with a noose around his neck. This recurrence in his pre-existing psychiatric condition (as determined by Dr Nguyen) followed his wife leaving him some six weeks previously. It was noted he had continued to work as a truck driver to keep himself distracted until he had a panic attack on the day of the admission. It was recorded the suicidality resolved quickly and that this deterioration appeared to have been precipitated by the social situation.

It was also noted that only two days previously his own GP had driven him to the Emergency Department although he was discharged.

St John of God Hospital notes for the admission dated 15 August 2016 to 2 September 2016

The discharge summary records a 'limited increase in PTSD symptoms following his wife leaving him in April that year.' It was noted that his wife accused him of being verbally and physically abusive over time although he denied this at that time. She also alleged marijuana use but he denied this and the urinary drug screen on admission was negative. It was recorded at discharge that his PTSD symptoms had remitted and his mood was euthymic as of 1 September 2016.

This report follows an assessment on 8 March 2017 where he was referred for outpatient treatment at St John of God Hospital Richmond, Counselling and Therapy Centre. At this stage he was noted to have sleep disturbance, hypervigilance, anxiety and avoidance symptoms, intrusive memories, mood fluctuations, social withdrawal/isolation, lack of motivation. He was noted to be working fulltime 'as a possible distraction'. His symptoms had flared following a recent motor vehicle accident and she provided expectations of treatment outcome. A key focus was to reduce avoidant behaviours, improve his motivation and concentration, improve his relationships and communication/involvement with the family and reduce anxiety symptoms. There are however no notes following this from Ms Seydler and despite apparent attempts, there have been no further notes, either reports or clinical notes, located and none are found within the St John of God documentation, as suggested by Hall + Wilcox in their letter dated 27 March 2025.

The weekly hours on the payroll from the Austral Brickworks company indicates that Mr Wright was working fulltime hours throughout late 2018 and into early 2019 with no indication of need for sick leave or any other unsupported absence until the pay run of 3 September 2019, coinciding with his admission to St John of God Hospital.

There is a letter from Dr Nguyen dated 19 December 2019. By that stage Mr Wright was an inpatient at St John of God Hospital with Dr Nguyen stating that diagnosis of his condition AFTER the injury is 'Posttraumatic Stress Disorder, Major Depressive Disorder and Panic Disorder related to a severe work injury in 2008'. He had completed TMS treatment and reported benefit from it and was seeking discharge and to be followed up by another psychiatrist.

He saw Dr Malik and was admitted on 30 January 2020. According to the letter by Dr Malik of 3 April 2020, he had been an inpatient for over two months and following a decision on 6 April 'went missing, was later discovered with cuts on his body and scheduled to the public mental health services'.

In a letter dated 12 March 2020 by Dr Malik during that admission to his case manager, it was noted that he had been terminated from his job and also lost his home during the admission. This was not necessarily attributed to his symptoms or impairment but rather to coincidence or possible other planning by other actors. Dr Mailk suggested that these events caused more apparent deterioration. Dr Malik was apparently unaware of the admission in 2016 and treatment for some time afterwards into at least 2017.

As Dr Malik noted 'I am not surprised by the current severity of his PTSD symptoms but am surprised by his continued functioning in the last decade post-accident. One could speculate the postponement of PTSD symptoms is due to a stable life, motivation to continue to provide for his family, diligence and stoicism'. Dr Malik also comments on the AVO taken out by his ex-wife towards him prior to that admission.

Pre-injury Impairment arising from pre-existing condition

Dr Gertler recorded a whole person impairment of 22% in 2012 which by definition is meant to indicate a maximum medical improvement.

However this proved remarkably incorrect with subsequent remission, further recurrence and associated impairment and treatment.

In the period prior to the index injury I can identify no impairment in self-care recorded.

There is no evidence either for or against a degree of impairment in social and recreational activities after 2012.

Mr Wright was working as a truck driver and it would appear that he was unimpaired in his capacity to travel.

He would appear for a number of years to have been moderately impaired in the area of social functioning given there were recurrent periods of separation and interpersonal violence which he himself and his clinicians attributed to the symptoms arising from his pre-existing disorder.

He had assessments for cognitive function which showed no clinically significant impairment, certainly during the time he was admitted in 2016, and no indication that there would have been any further impairment after that.

He was working full time and even became a union representative.

As such the estimate of pre-existing impairment attributable to his pre-existing condition would indicate no impairment in four classes, moderate impairment in another, and an indeterminate amount of impairment in the sixth. The complete calculation of WPI is not possible.

A Section 323 one-tenth deduction is not at odds with the evidence of the pre-existing impairment relating to his pre-existing condition and the contribution of that condition and its impairment to the whole person impairment at the time of his demise and/or certification.

Assessment of whole person impairment at the time of demise between May 6 and 10

This assessment pre-dates Mr Wright's demise by four months. Dr Bertucen provided internally consistent reasons for his ascertainment of the degree of impairment in each of the classes within the PIRS based upon the information he was given. These appear consistent with the descriptors within the guidelines for the assessment for whole person impairment. In order these are 3,3,1,4,3,5 with a total of 19; median class 3; resulting in a 24% whole person impairment at that time, with a Section 323 deduction of 1/10.

2. Medical Certificate from Dr Ravimohan dated 1 May 2023 only a week before his death

This ascertains Mr Wright is unfit for all forms of employment.

3. Report by Dr Rastogi, consultant psychiatrist dated 23 July 2020

This pre-dates Mr Wright's death by three years. Although Dr Rastogi also provides a WPI of 22% but for different reasons and makes the same diagnosis, Dr Rastogi's report differs from Dr Bertucen in terms of certain classes - understandable given this was 2½ years later and does not provide information very relevant for the ascertainment of impairment in early 2023.

4. Reports by Dr Roberts, consultant psychiatrist for the appellant

The first report dated 7 August 2021 appears to be a file review and refers to a previous assessment by Dr Roberts which I have been unable to locate. Dr Roberts opines that Mr Wright's behaviour in the workplace is a manifestation of a longstanding refractory PTSD. Whilst I am sympathetic that his degree of irritability and outbursts reflect behaviour that has been observed over time, his condition cannot be described as refractory given the repeated descriptions of this as being relatively asymptomatic or possibly at times in remission, and the high degree of functioning noted by many in many areas including those by his treating doctors in 2019 and 2020.

Dr Roberts then assessed Mr Wright on 6 April 2023 just one month before his demise. Dr Roberts continues to opine that 'his current presentation can be assumed as not being reflective of his response to his employment with Brickworks in the absence of the very significant stressors arising from the motor vehicle accident in 2008.' In the body of that assessment he makes the following observations relevant to certain classes

• Self-care and personal hygiene: 'Mr Wright reiterated he lived in his car...for three years'. However at the time of assessment his address was given as a specific address in Emu Plains. It was described that at the time he was living in a granny flat. Mr Wright 'indicated he couldn't get out of bed, he can't sleep properly, he gets his days mixed up, he cannot function nor put things in their place'. Regarding domestic duties he 'cannot do this sometimes, he may wait until the next day until he comes good but he may not come good for a week'. He was recorded as consuming 'occasional spirits and alcohol'. 'When asked in regard to the quantity of alcohol ingested he commented that he had no idea - he in response to certain questions denied that he drank to the point of being drunk but when questioned in regard to experiencing 'blackouts' in association with alcohol consumption replied 'probably sometimes'. He was noted to at times smoke and at times vape. He reported he was not taking medication although was prescribed sleeping tablets and Olanzapine and 'sometimes uses marijuana to sleep'.

• Social and recreational activities: It was reported that he 'denied hobbies and recreational activities'.

• Social functioning: He was described as angry, being derogatory about his ex-wife and being detached from his children and not speaking to his two daughters. There was no mention of the presence or absence of the sibling or maternal support reported previously. He obviously had some contact with supportive friends given he had at times been sleeping on people's couches and at one stage had moved to a mate's house in Newcastle for one month.

• Employability: Dr Roberts did opine that Mr Wright was totally impaired in terms of employability.

As noted by Dr Roberts - 'Mr Wright presented in a manner suggesting a deteriorating mental health status and from a psychiatric viewpoint I am concerned that Mr Wright has made threats to harm certain persons'. He felt that Mr Wright's deterioration prevented him from making a whole person impairment assessment.

Mr Wright was an inpatient at South Coast Private Hospital from 23 November 2022 to 14 December 2022. The discharge summary from Dr Griskaitis on 17 January 2023 noted that he was living alone in Emu Plains 'with supports from a brother nearby and a sister'. He was described as 'chaotic' with poor functioning, and concentration - such as being unable to provide a good history. Ongoing social difficulties and splits with his wife and daughters were noted, as well as significant anger and the quite consistent observation of threats to the person he blamed for his condition. Even at discharge it was noted: 'at no stage was he capable of attending to groups' and he was noted to be 'highly emotionally fragile with absent emotional skills'.

The text messages contained within the annexures provided by Mr Corcoran contain very relevant information in the month or two prior to the suicide.

On 11 April 2023 Mr Wright texts that he is looking after his son for a week but was finding it hard to plan because of financial problems. He also texts at that time that he had a girlfriend who was 'beside herself about all of this'.

His texts on Thursday 20 April state that 'if I lose my partner from this, it will be like losing my right arm because she is the only one I have that knows how to support me'.

He texts that he had seen the doctor in Emu Plains who gave him the workers compensation certificate and he was trying to get into hospital, but on Saturday 6 May was reaching out to his solicitor saying that he 'needed a chat' because he could not get himself into hospital.

This would indicate that in the months prior to his suicide, Mr Wright had established a new partnership with someone he described as his partner, who was very supportive, and he had been able to care for his son for a week. Neither of these are compatible with a class 4 social functioning rating and both are indicative of someone who has been able to form a new long-term relationship and has been able to care for his own children.

I have been unable to identify any more contemporaneous actual clinical notes from any clinician over the early part of 2023.

On review of the assessment of whole person impairment, the ascertainment by Dr Bertucen in January 2023 fits with the evidence, including the evidence of impairment provided by Dr Roberts and Griskiatis for 5 of the 6 PIRS classes.

Social Functioning is moderately impaired. Dr Bertucen was only told at the time that he had 'irregular contact with one of his children'. However the evidence indicates that in the months prior to his death that he was caring for his son for at least a week with significant limitations from finances, not his impairment. Dr Bertucen was not informed of any partner and it was reported that he had no intimate relationships. Clearly Mr Wright had a partner over the subsequent months who was described as very supportive. He also had support from siblings. As such the evidence is that in the time just prior to his death, his social functioning was moderately impaired.

Thus, in toto, I assess that the whole person impairment at the time of his demise in May 2023 would be:

• Self-care and personal hygiene Moderately impaired - class 3

• Social and recreational activities Moderately impaired - class 3

• Concentration, persistence and pace Moderately impaired - class 3

I would further assess that the significant pre-existing condition was intermittently symptomatic and led to some impairment, certainly at times in social functioning. The actual determination, despite the enormous amount of evidence provided, is impossible to accurately determine but is not at odds with a Section 323 one-tenth deduction on the basis of a probable moderate impairment in social functioning and possibly some impairment in social and recreational activities although no evidence of impairment elsewhere.

This would result in a total whole person impairment arising from the workplace injury of 16 August 2019 of 22% - 1/10th = 20%."

1. The Appeal Panel is satisfied with the report prepared by Nicholas Glozier, and it is also satisfied that the Medical Assessor's re-assessment of the worker's permanent impairment 'on the papers' was conducted thoroughly, and that the Medical Assessor considered all the relevant and significant material that is in the evidence before the Appeal Panel. The information referred to in the report is exhaustive and the report undertakes the necessary re-assessment as outlined at paragraph 64 above. The assessments in the report are in accordance with the PIRS categories. The Medical Assessor has used his clinical judgement in this regard.
2. The Appeal Panel is satisfied that it took all reasonable steps (see paragraphs 20-25 above) to obtain as much evidence as it could regarding the worker's pre-existing psychological condition, to enable it (and specifically Nicholas Glazier during his re-assessment of the worker's permanent impairment 'on the papers') to decide whether, in accordance with s 323(2) of the 1998 Act, it was too difficult or costly to determine the extent of the permanent impairment deduction to be applied due to that pre-existing condition.
3. The Appeal Panel accepts the opinion and the reasoning of Nicholas Glozier regarding the significant difficulty (indeed impossibility), on the evidence before it, of being able to assess the worker's previous injury, pre-existing condition or abnormality according to the PIRS categories. It also accepts the opinion and the reasoning of Nicholas Glozier that a 10% deduction (for the previous injury, pre-existing condition or abnormality) to the level of the worker's assessed permanent impairment is not "at odds with the available evidence".
4. The Appeal Panel therefore finds that, in accordance with s 323 of the 1998 Act, there is to be a 10% deduction to the level of the worker's assessed permanent impairment of 22%.
5. In Pombinho, Ward P considered (at [88]):

"The statutory provisions assume power on the part of a medical member of the Appeal Panel to carry out a re-examination and assessment of the worker. It may be inferred that the Appeal Panel, in adopting the report and findings, was endorsing the reasoning in that report since that is where the reasons are to be found. I do not accept that the Appeal Panel was required to deliver separate or distinct reasons as to why the Appeal Panel (or two of the three members of it, perhaps) accepted Medical Assessor Glozier's assessment in preference to the assessment of, say, the Medical Assessor. In my opinion, it was sufficient for the Appeal Panel to adopt Medical Assessor Glozier's assessment (for the reasons contained therein)."

1. The Appeal Panel formally adopts the report prepared by Nicholas Glozier, and the findings and assessments contained in it. It is noted:

(a) a slightly lower overall permanent impairment percentage was found - 22% compared with 24% as found by the Medical Assessor, and

(b) in relation to the deduction to that overall permanent impairment percentage to be made in accordance with s 323 of the 1998 Act, a finding of a 10% deduction in accordance with s 323(2) was made, rather than the Medical Assessor's 30% deduction.

1. For these reasons, the Appeal Panel has determined that the MAC issued on

14 October 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

Isabella Maybel Wright - as Executor of the Estate of the late Stewart Wright

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 Medical Assessor Wayne Mason and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Chapter, page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

Total % WPI (the Combined Table values of all sub-totals)