1. On 22 August 2025 Deon Quinlan lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 July 2025.
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 delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
4. 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 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).

1. The appellant sustained a psychological injury deemed to have occurred on

24 December 2020 in his employment as a senior park ranger with Coffs Harbour Aboriginal Land Council (the respondent). 2. The appellant lodged an Application to Resolve a Dispute in the Personal Injury Commission (Commission) dated 28 March 2025 in which he claimed lump sum compensation in respect the psychological injury. 3. In a Certificate of Determination - Consent Orders (COD) dated 3 July 2025, Member John Wynyard determined:

"1. I grant leave to the respondent to re-file the Application to Lodge Additional Documents dated 27 June 2025.

2. I remit this matter to the President for referral to a Medical Assessor for a whole person impairment assessment on the following bases:

(a) Date of injury: 24 December 2020 (deemed)

(b) Matters for assessment: Psychological/psychiatric injury

(c) Evidence: ARD and attached documents

Reply and attached documents

Application to Lodge Additional Documents from the respondent dated 27 June 2025

Note

A. The parties agree that the injury is an aggravation injury."

1. The matter was referred to Dr Michael Hong, Medical Assessor, for assessment of whole person impairment (WPI) of a psychiatric/psychological disorder as a result of the injury deemed to have occurred on 24 December 2020.
2. The Medical Assessor examined the appellant on 22 July 2025 via video link and assessed 13% WPI in respect of the psychological injury deemed to have occurred on

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the appellant to undergo a further medical examination because there was sufficient information on which to make a determination.

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.

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

1. Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
2. The appellant's submissions include the following:

(a) ground 1 - at page 8, the Medical Assessor states: "Sedation and medication side effects are not assessable in the PIRS". The applicant refers to cls 1.31 to 1.32 of the Guides and, in particular, clauses 11.8 and 11.9 of the Guidelines submitting that "this is likely incorrect criteria and the Medical Assessor has not clarified or considered this correctly, as the effects of treatment can be considered and WPI may be adjusted for effects of treatment";

(b) ground 2 - Self-care and personal hygiene - At page 8, the Medical Assessor states: "Mr Quinlan described his self-care and personal hygiene activities is similar to his 2021 statement, and consistent with independent living without prompting. Even though he neglects his self-care and personal hygiene, he maintains basic nutrition and hygiene independently". This is incorrect and a demonstrable error and no proper rationale is provided to explain the Medical Assessor's position;

(c) on page 4 of the MAC where the following evidence is noted, and not challenged: "He has an Aboriginal case manager who comes once a week to help him leave home, give him food vouchers, and help him access a psychologist... He buys groceries online and buys takeaway food. He showers and changes clothes twice a week without prompting. He said even if someone told him to shower, he would not shower more";

(d) ground 3 - Social functioning - at page 9 of the MAC, the Medical Assessor states: "My view is his relationship break-up is not due to his psychiatric impairment and the separation is therapeutic for him, therefore not assessable in the PIRS (only impairments are assessable). In the MAC it is recorded: [page 2]: "Mr Quinlan reported they were together for five or six years, and the relationship ended in late 2023. He has not had other partners since. He said the IME tried to say his psychological injury was from his partner, but it was not; the relationship broke up after his work injury." [page 3]: "A council worker sent information to Peta that led to his relationship break-up. She was not the problem, and it was his employment and colleague";

(e) on page 16 of the ARD complaints to his manager are noted in a contemporaneous email from the appellant where he alludes to his work colleagues causing a rift in his relationship with his partner;

(f) on page 8 of the MAC it is recorded: "A co-worker, JD, surname not known, was taking photos of him and sending them to his partner. That led to the relationship problem. In February 2022, they moved to Brisbane for a fresh start but broke up after three years, because it was hard not being able to work and pay bills";

(g) in Ferguson v State of NSW & Ors [2017] NSWSC 887 it was held "the Panel should have made a full assessment of all aspects of the relationship before and after the separation," and in this instance, the Medical Assessor's finding is contrary to the evidence which was not challenged;

(h) the Medical Assessor's findings on the appellant's relationship breakdown are incorrect, demonstrable error and inconsistent with the evidence. There is no rationale to support the Medical Assessor's conclusion, and the only reasonable conclusion is that the appellant's relationship broke down as a direct result of his injury as per his statement on page 7;

(i) ground 4 - Assessment of pre-existing condition using PIRS - In regard to the diagnosis of a pre-existing adjustment disorder, ADHD and substance use disorder, the Medical Assessor relied on the records of GP Dr Patchett.

Dr Patchett, in his letter to the appellant's solicitors dated 30 November 2023 at page 192 of the ARD, states: "a. Resolved - Substance Abuse b. Resolved - Alcohol Abuse c. Ongoing - PTSD";

(j) the Medical Assessor's diagnosis is erroneous and without rationale. There is no reference or record of any pre-existing condition affecting the appellant's ability to work and function. The Medical Assessor has utilised incorrect criteria with inconsistences;

(k) the Medical Assessor did not consider the medical evidence in the ARD page 86 where his treating doctor, Dr David Cheang, reported in regard to a relapse: "The trigger was quite specific around the exposure to alcohol and other drug use by his co-workers... Deon used to drink heavily but stopped and was always afraid the exposure to other people using would be a risk factor for his relapse... Deon has made several reports about his concerns and his viewpoint but nothing has changed and doesn't want to go back down that route";

(l) the appellant's Indigenous Aboriginal background is a predisposition of his vulnerability and exposure to a traumatic childhood, substance and alcohol abuse were demonstrably evident and were not appropriately considered by the Medical Assessor in the assessment;

(m) in the ARD page 75, IME Dr Canaris stated:

"I was left with the strong impression from my perusal of the documentation that there had been much trauma and chaos in his life though this had been mitigated by his grandfather's influence.

Mr Quinlan impresses as a very vulnerable man who had a very difficult and traumatic background but who nevertheless had strongly positive input to his life from his grandfather and had made creditable attempts to transcend pre-existing problems related to trauma and a substance use disorder. Unfortunately, he found himself in a psychologically toxic work environment in which he was exposed to bullying and [at ARD page 76:] harassment with rife substance use which appears to have triggered or reactivated preexisting difficulties";

(n) in Neader v The Trustee for Vestito Unit Trust t/as TS 14 Plus Australia Pty Ltd [2025] NSWSC 866 which explored the issue of the application of a deduction to permanent impairment, Schmidt AJ indicates at [12] to [13] that there are some cases where the presence or absence of any previous injury, pre-existing condition or abnormality, can make no difference at all to the impairment which results from a later injury: Cole v Wenaline Pty Limited [2010] NSWSC 78 at [30]- [31]. Section 323 thus does not permit assumptions to be made but requires a determination on the evidence of "whether any proportion of the permanent impairment present after the second injury was due to the earlier injury";

(o) the Medical Assessor attempted to exercise the assessment of the pre-existing condition but has utilised incorrect criteria and committed demonstrable error by determining that the pre-existing injury can be properly assessed as per cl 11.10 of the Guidelines. The Medical Assessor has not referred to any distinct evidence, provided clear rationale or adequate explanation to determine the extent the pre-existing conditions contributed to the overall permanent impairment. In actual fact, the Medical Assessor has substituted his own opinion against the totality and weight of the evidence in a severe manner;

(p) there is no evidence or challenge these pre-existing conditions were significantly affecting his functioning until the subject work injury became prevalent at the point it caused incapacity for work. The PIRS assessment on pages 10 to 11 cannot be accepted or confirmed as proper or a valid deduction;

(q) the Medical Assessor has conducted a second PIRS on pages 14 to 15 concerning the specific work injury. In relation to the assessment for the second PIRS, the appellant submits:

"a. Self-Care and Personal Hygiene: the Medical Assessor provided a class score of '2'. The evidence and the MA's own findings stated at pages 4 to 5, is that he has an Aboriginal case worker, is applying for NDIS support, is receiving the disability pension, and his sister tries to visit once a week. He only showers twice a week without prompting and would not shower more even when prompted. He buys groceries online and buys takeaway food. It was also noted in the MAC at page 4, the appellant gained 30kg since the work injury and gained more weight in the past 6 months. Further the appellant when taking medication, is described as 'zombie-like' and if he stops his medication, he feels suicidal. A reasonable interpretation of the evidence and guides would give grounds that this category should be marked as Class 3 as the evidence goes beyond the general descriptors in Table 11.1 of the Guidelines.

b. Travel: the Medical Assessor obtains a history at page 4 that the appellant does not drive regularly due to near misses on the road and only do school drop-off. Further, the appellant's support person comes to help him, and he has not been out for the past 5-6 months. This is supported by the fact he does his groceries online and orders take away food. A reasonable interpretation of Table 11.3 would be the appellant exceeds the examples and ratings of Class 2 and should be considered as Class 3'.

c. 'Social Functioning': the Medical Assessor has committed demonstrable error where he opined that the appellant's relationship ending was not resulting of psychiatric impairment, which is inconsistent with the evidence. The Medical Assessor at pages 2 to 3 obtained the history where a key incident involving a council worker sending his partner messages after work hours contributed to the development of the injury and the subsequent break down of the relationship. The appellant divulged there is a DVO between himself and his partner subsequent to his injury. At page 5, the Medical Assessor obtained a history where the appellant had lost connection to people, stating he has no friends now and cannot remember when he had friends and that he has not engaged in a relationship since. A reasonable interpretation of Table 11.4 can only conclude a Class 4 where the appellant meets the bulk of the example criteria";

(r) the Medical Assessor has also committed demonstrable error and utilised incorrect criteria in providing a score of zero for Treatment Effects (cl 11.8 of the Guidelines). The Medical Assessor has obtained a history stating, the appellant, when taking medication, is described as 'zombie- like' and if he stops his medication, he feels suicidal. The appellant is currently noted as taking Mirtazipine, Citalopram and Propranolol. The substance and alcohol abuse occurred six to seven years prior to the work injury. The appellant's treating GP,

Dr Patchett, in his letter to the appellant's solicitors dated 30 November 2023 noted substance abuse and alcohol abuse as "resolved." There was no evidence of any restrictions in the appellant's activities of daily living prior to subject work injury;

(s) this is not a matter of cavilling with the opinion of the Medical Assessor in disagreement, but incorrect criteria and demonstrable error applied by the Medical Assessor in the assessment to where on review where there is ample evidence to suggest a substantial change in permanent impairmen;

(t) in relation to the matter of a deduction, if a deduction should be adopted, then a proper deduction would be 1/10th, noting any preexisting conditions were not impacting the appellant's ability to function, work, and engage in a relationship. In Ryder v Sundance Bakehouse [2015] NSWSC 526, where it was held that it is not necessary that the pre-existing condition give rise to the rateable percentage under s 323 of the 1998 Act, but for the pre-existing abnormality, the degree of impairment resulting from the work injury would not have been as great, and

(u) the MAC ought be set aside and the matter to be referred to the Medical Appeal Panel for determination and assessment of permanent impairment.

1. The respondent's submissions include the following:

(a) the appeal is overall quite unstructured with no clearly outlined grounds of appeal. The appellant failed to identify any area that might be constructed as demonstrable error or a stray from the Guidelines;

(b) ground 1 - adjustment for effects of treatment - the Medical Assessor is correct in his comment that there is nothing within the PIRS assessment that allows for an assessable impairment for medication side effects or sedation;

(c) an adjustment for the effects of treatment is only applicable when there has been a "substantial or total elimination of an illness or injury'" This has plainly not been the case for the appellant and therefore no adjustment for the effect of treatment should apply. The Medical Assessor has correctly applied no increase in his WPI assessment for treatment effect;

(d) self-care and personal hygiene - the Guidelines also make it clear that a significant descriptor for Class 2 is "able to live independently", whereas for Class 3 a significant descriptor is "can't live independently without regular support". The Medical Assessor's clinical assessment of the appellant on the day of the assessment supports that he can live independently, although to a diminished level;

(e) there is no family member or community nurse required for the appellant to maintain a basic level of hygiene and nutrition as the appellant is able to shower independently and orders groceries for home delivery. The appellant is also the primary carer for his 5-year-old son and there is no indication that he cannot provide adequate care;

(f) whether a claimant can look after themselves adequately and live independently are matters that fall within the discretion afforded to the Medical Assessor. It was open to the Medical Assessor to find that the appellant fell within Class 2 based upon his clinical judgment and expertise;

(g) the Medical Assessor has made no demonstrable error or made his assessment on the basis of incorrect criteria;

(h) travel - the appellant stated that he had not left home for six months and barely left the home for five years. However, he then stated that he will leave the house with his Aboriginal case manager. The Medical Assessor pointed out this discrepancy to the appellant who said that his case manager helps him leave the house. However, the appellant would then go on to state that he has been going out once a week and occasionally going out on his own. The appellant providing inconsistent and unreliable accounts is a common theme in this matter;

(i) the Medical Assessor has found that the appellant is able to travel without a support person in the local area (i.e. school drop off) which is consistent with a Class 2 assessment. On the face of the MAC, it was open to the Medical Assessor to assess under Class 2. The appellant has simply outlined their disagreement with the Medical Assessor's assessment however have not identified any error;

(j) social functioning - the appellant alleges that the Medical Assessor erred in finding that his relationship ending was not a result of his psychiatric impairment. In regard to the relationship breakdown, Dr Canaris had recorded in his assessment at page 10 of his report: "His son's mother has left him about a year ago "because I was a zombie - because the medication destroyed me - she couldn't deal with it...". The insinuation here is that the relationship had deteriorated and ultimately ended due to the appellant's partner not being able to cope with the side effects of his medication;

(k) this conclusion is inconsistent with the objective treating evidence. Dr Canaris has either downplayed or ignored the extensive private, pre-existing, deep seated and non-work-related issues between the appellant and his former partner.

Ms Georgie Godfrey, Counsellor at the Institution for Urban Indigenous Health, provides clinical notes commencing at page 88 of the ARD (see entries dated

25 April 2023 (commencing at page 104 of the ARD), and 9 May 2025 (commencing at page 102 of the ARD);

(l) the evidence makes it clear that the issues with the appellant's partner existed long before the work injury. It would also seem that it was his former partner that interfered with his employment, not the other way around. The appellant appears to have broken up with former partner around April 2023, well over two years after the work injury;

(m) the work injury may have caused some distress in his already dysfunctional relationship however his employment cannot be said to be cause of the relationship breakdown in the face of the extensive clinical material outlining severe non-work-related issues. Based on the available evidence, it was open to the Medical Assessor to conclude that the appellant's relationship ending was not due to his psychiatric impairment;

(n) in respect of the assessment itself, in providing his assessment at page 14 of the MAC, the Medical Assessor stated: "Mr Quinlan's relationship with his partner ended and it is not due to his psychiatric impairment. The relationship with his son is good and he looks after his son at a sufficient level. He has been isolative and does not have contact with his friends. His sister is his main family contact. The relationship with his broader family has longstanding difficulties and is somewhat worse over time";

(o) the appellant's contention that he meets the criteria for a Class 4 assessment lacks any evidentiary basis. There is no evidence in this matter that the appellant cannot look after his son. The appellant maintains a good relationship with his sister. The Medical Assessor noted there to be no real relationship with his mother, however these issues pre-dated the injury with the Medical Assessor noting that the "relationship was never great";

(p) the Medical Assessor had adequate considered the evidence and has explained why his opinion differed to that of Dr Canaris. Based on his clinical examination, it was reasonably open to the Medical Assessor to assess the appellant under Class 2 for social functioning. There has been no demonstrable error;

(q) section 323 deduction - it is appropriate and necessary to discuss the appellant's severe and extensive previous psychological conditions and abnormalities. There is a considerable number of clinical notes contained within the ARD and Reply. The Appeal Panel must review all the clinical material to understand the gravity of the appellant's various prior psychological conditions. The clinical notes of Galambila Aboriginal Medical Centre (Galambila) start at page 123 of the ARD and include the following:

• Under 'Past Medical History' there is a note of alcohol abuse in 2019, predating the injury;

• 15 July 2013 - Drinking 'cartons' of alcohol every day and also THC. Depressed mood, worse when his father died;

• 25 February 2014 - Triggered by past memories of trauma, described not caring if he lived or died and thoughts of harming himself. Inpatient detox at Riverlands;

• 28 October 2014 - Uses MDMA, depressed mood. Concerned about drinking;

• 5 November 2014 - Low mood, poor sleep. Tried to hand himself last year but the branch broke. Strong family mental health. Mixed anxiety and depression;

• 15 May 2015 - No drugs for two months, previously using THC, ICE, ecstasy, mushrooms and cocaine;

• 17 December 2015 - Struggle to manage abstinence from alcohol. Tends to smoke ice / use amphetamine when drinking;

• 22 December 2015 - Substance abuse (primary alcohol at that point in time). Started drinking heavily at 17 when leaving school. Alcohol and alcoholism major features of family life, negative memories associated with family dysfunction. Started drinking more heavily following the death of his grandfather;

• 10 January 2018 - Had been using MDMA and cocaine;

• 13 November 2018 - He is on long-term mirtazapine for anxiety for years;

• 2 August 2019 - Wants referral to alcohol rehab, drinking excessively and causing problems with his relationship. "MDMA when drunk";

• 13 January 2020 - Helped in recent fires, does 14 hours as well as second job. Not getting sleep, "Gets nightmares about fire";

• 9 June 2020 - Worried about anxiety, has had it for years. Used to drink heavily to help deal with it. Drinks heavily when not working. "Anxiety feels similar to what he's had for yrs [sic] on and off";

• 3 February 2021 - "Priority is to restabilise - contain traumatic content from childhood that has been reactivated..." (emphasis added);

• 22 April 2021 - Recurrence of 'PR' bleed, occurred "after large binge + cocaine use last week, for 4 days, today stopped".

(r) the clinical notes of Ken Love, psychologist, commence on page 210 of the ARD and include:

• 12 May 2021 - First memory was being left by his mother with his father and other junkies. Found mate dead in the river;

• 26 May 2021 - Unable to leave home, 3 deaths in the family in the past week and is struggling to cope. Panic has returned.

(s) clinical notes from Georgie Godfrey, Counsellor at the Institution for Urban Indigenous Health, can be found from page 88 of the ARD and record the following:

• 25 April 2023 - Very traumatic upbringing in Aboriginal community, saw horrific things (e.g. saw uncle hanging from a tree). Mother was a "very destroyed woman" and was sexually assaulted by his uncle. Left ex-partner (Peta) who had harassed, stalked and blackmailed him. She told police the worker was bashing her and DVO put in place. Had been applying for jobs. "Has PTSD from fire fighting - can still smell the scent of burning bodies". Used to be a drug addict and living on the streets, attempted suicide a few times;

• 9 May 2023 - Had job interviews lined up. Hasn't been able to secure a job until this point due to not having a car. His ex-partner is still harassing him daily via text message. The worker reported that Peta brought AVO charges against him and she had coercive control over him for many years "prior to him leaving" She blackmailed and threatened him for many years which caused him to have a deep depression and suicidality;

• 17 May 2023 - Had job offers and accepted a job as a mental health support worker however was later informed his blue card had been taken away;

• 20 July 2023 - Accepted a job with Moreton Bay Region as a fire officer. He was also doing odd jobs as a labourer through air tasker and was on job seeker. • 26 September 2023 - Did not get the fire officer job, however had started a machine operator job.

(t) the appellant's continued and repeated outright denial to acknowledge the extent of his clinical history is relevant. Dr Canaris, Dr Sherman and the Medical Assessor have all recorded self-reported histories from the appellant was inconsistent and, at times, completely at odds with the clinical evidence. The appellant's refusal to acknowledge his psychiatric history and substance abuse issues does not diminish their importance or weight;

(u) section 323 deduction - the Medical Assessor was permitted to make such an assessment of pre-work WPI under the Guidelines. The extent of the pre-existing conditions was so extensive in this matter that it warranted an assessment;

(v) in respect of the Medical Assessor's assessment:

(i) Self-Care and Personal Hygiene - the Medical Assessor identified a history of suicidal ideation, risk of self-harm and substance abuse. This is identified within the clinical material, see specifically the notes of Galambila on 25 February 2014, 28 October 2014, 5 November 2014, 17 December 2015, 2 August 2019 etc;

(ii) Social and Recreational Activities - the Medical Assessor recorded that the appellant engaged with recreational activities. The clinical notes from Galambila similarly support this finding;

(iii) Travel - the Medical Assessor correctly identified that the appellant's previous substance use has impaired his ability to drive;

(iv) Social Functioning - the appellant's issues with his family during his childhood and prior to his work injury are well documented - see above. The Medical Assessor did not assess loss of his partner under this table due the vagueness of the appellant's history;

(v) Concentration Persistence and Pace - The clinical evidence makes clear that the appellant has a pre-existing diagnosis of ADHD, which was correctly identified by the Medical Assessor as a relevant pre-existing factor, and

(vi) Employability - the Medical Assessor has again correctly identified that the appellant cannot work while under the influence of drugs and alcohol;

(w) the Medical Assessor made no error in providing his assessment of the appellant's pre-exiting level of functioning. In the alternative, the Medical Assessor stated that if a s 323 deduction was to be made, it would be greater than one-tenth "as his pre-existing psychological diagnoses caused significant impairment in all scales in the PIRS, and one-tenth deduction would be at odds with the evidence. In that scenario, my view is his pre-existing psychiatric disorder contributes to his current WPI by 4-tenths";

(x) there is clear evidence that the appellant's pre-existing condition affected his ability to function. Neither the Guidelines, legislation nor case law require a pre-existing condition or abnormality to interfere with employment or the ability to engage in a relationship in order for a deduction to apply - see Ryder and Vitaz;

(y) the extensive clinical material supports the Medical Assessor 's deduction under s 323. In NSW Police Force v Daniel Wark [2012] NSWCCMA 36 in which the Appeal Panel stated at [33]: "In this branch of medical science, the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face";

(z) not only does the clinical evidence detail significant pre-existing trauma and substance abuse, it also provides support for pre-existing diagnosis of ADHD, substance use disorder, adjustment disorder, anxiety, depression and potentially even post-traumatic stress disorder;

(aa) the previous prescriptions list at page 16 of the Reply details that the appellant has been medicated for his pre-existing psychological conditions for an extensive period of time. The appellant has been prescribed Mirtazapine since around 2014;

(bb) the Medical Assessor has provided sufficient reasoning to support his deduction under s 323. The Medical Assessor's review of the material and clinical examination clearly supports that that the appellant's current condition would not have been as great if not for his pre-existing psychological condition, see Southwell and Ryder above. The appellant's prior history with drug and alcohol use appears to have been triggered during his employment. The appellant's reaction to the workplace would not have been as severe if not for his pre-existing childhood trauma, alcohol abuse and substance abuse;

(cc) whether a deduction is "difficult or costly to determine" is within the purview of the Medical Assessor. Section 323(2) specifically gives the example of a lack of medical evidence being the reason it may be difficult or costly. Clearly in this case, there is no shortage of medical evidence supporting the Medical Assessor's deduction;

(dd) the Medical Assessor has considered the evidence as to the actual consequence of the earlier pre-existing condition or abnormality. The Medical Assessor has used his clinical expertise and provided clear logical reasoning to articulate the extent that the later injury was due to the earlier pre-existing condition or abnormality and made an appropriate deduction, and

(ee) the assessment was not made on the basis of incorrect criteria and there is no demonstrable error. The MAC should be confirmed.

1. 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.
2. 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.
3. The Appeal Panel reviewed the MAC and the evidence in this matter including the evidence referred to by the parties in their submissions.

1. The appellant submits that the Medical Assessor made a demonstrable error by failing to provide an adjustment for the effects of treatment as his medication makes him 'zombie-like'.
2. The applicant refers to cls 1.31 to 1.32 and 11.8 and 11.9 of the Guidelines.
3. Clause 1.31 of the Guidelines provides:

"In circumstances where the treatment of a condition leads to a further, secondary impairment, other than a secondary psychological impairment, the assessor should use the appropriate parts of the Guidelines to evaluate the effects of treatment, and use the Combined Values Chart (AMA5, pp 604-06) to arrive at a final percentage of WPI."

"Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant's permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3% ..."

"Consider the effects of medication, treatment and rehabilitation to date. Is the condition stable? Is treatment likely to change? Are symptoms likely to improve? If the injured worker declines treatment, this should not affect the estimate of permanent impairment. The psychiatrist may make a comment in the report about the likely effect of treatment or the reasons for refusal of treatment."

"Consider comorbid features (eg bi-polar disorder, personality disorder, substance abuse) and determine whether they are directly linked to the work-related injury, or whether they were pre-existing or unrelated conditions".

1. The Appeal Panel considers that the only clause in the Guidelines that is relevant to permitting an increase in an assessment of WPI for effects of treatment is cl 1.32.
2. The appellant noted that the Medical Assessor when commenting on the appellant's statement wrote: "Sedation and medication side effects are not assessable in the PIRS". It is correct that sedation and medication side effects are not taken into account as a separate item to be assessed in the PIRS but such effects would be an inherent part of the assessment made. For example, any sedation which resulted in problems with concentration would be taken into account in assessment of concentration, persistence and pace although usually not specifically identified. The Appeal Panel is satisfied that the fact medication made the appellant drowsy, and caused problems with memory and concentration, was taken into consideration in PIRS assessment of concentration, persistence and pace.
3. The Appeal Panel is of the view that the Medical Assessor is correct in in his comment that there is nothing within the PIRS assessment that allows for an assessable impairment for medication side effects or sedation in the sense that there is no separate assessment to be made for medication side effects or sedation in the PIRS.
4. The Appeal Panel is not persuaded that there was error or an application of incorrect criteria because the Medical Assessor failed to provide an adjustment for the effects of treatment with his medication making him 'zombie-like'. The Appeal Panel agree with the respondent that this is a misunderstanding and misapplication of the adjustment for treatment effects. The claim by the appellant that his medication makes him 'zombie-like' is irrelevant to the application of treatment effect.
5. An adjustment for the effects of treatment is only applicable when there has been a 'substantial or total elimination of an illness or injury'. This has plainly not been the case for the appellant and therefore no adjustment for the effect of treatment would apply. The Medical Assessor has correctly applied no increase in his WPI assessment for treatment effect.

1. The appellant submits that the Medical Assessor's statement on page 8 of the MAC that the appellant described his self-care and personal hygiene activities "as similar to his 2021 statement", and consistent with independent living without prompting is incorrect and a demonstrable error with no proper rationale provided to explain the Medical Assessor's position.
2. The appellant refers to page 4 of the MAC where it is noted, and not challenged: "He has an Aboriginal case manager who comes once a week to help him leave home, give him food vouchers, and help him access a psychologist... He buys groceries online and buys takeaway food. He showers and changes clothes twice a week without prompting. He said even if someone told him to shower, he would not shower more".
3. The examples under Table 11.1 for "Self-care and personal hygiene" in the Guidelines are:

"Class 2 Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.

Class 3 Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition."

1. The Medical Assessor assessed the appellant as Class 2 for self-care and personal hygiene. In the PIRS Rating Form, the Medical Assessor wrote:

Mr Quinlan reported a decline in his hygiene and in his eating patterns, and gained weight, with reduced self­care and personal hygiene and does not need prompting."

1. Under "Social Activities/ADL" the Medical Assessor noted:

"Mr Quinlan said he is applying for NDIS, and currently, he has an Aboriginal case manager who comes once a week to help him leave home, give him food vouchers, and help him access a psychologist....

He buys groceries online and buys takeaway food. He showers and changes clothes twice a week without prompting. He said even if someone told him to shower, he would not shower more...

I asked him about looking after his son, he said he helps his son, drives him to school, and his son does the before school program. He spends time after school and on the weekend with his son at home, and they watch movies together...

1. On page 8 of the MAC, the Medical Assessor commented on the appellant's statements and wrote:

"I also noted, Mr Quinlan described his self-care and personal hygiene activities is similar to his 2021 statement, and consistent with independent living without prompting. Even though he neglects his self-care and personal hygiene, he maintain basic nutrition and hygiene independently."

1. Dr Christopher Canaris, consultant psychiatrist, in a report dated 22 March 2024 assessed Class 3 for self-care and personal hygiene, providing the following reasons:

"His sister checks on him once or twice a week and will help him 'like if I need groceries or something'. He would get groceries 'once a week' though he would 'try and avoid it at all costs - I get as much as I can at one go - it's hell - as soon as I'm out, I get short of breath and weird feelings in my hands and fingers...'. His sister would 'come over and clean the house'. She does not live close by 'but she's the only person I have in Brisbane'. He is not doing well in relation to showering and changing his clothes and has not shaved for a long time but cuts his own hair "very few months". He has gained 15 kg of weight because of inactivity and eating junk food. He does very little cooking saying it is too much effort and relies on takeaway though he might cook sausages or 'something easy on the pan' for his son. He tends to leave washing up 'for a while' and would do laundry 'here and there - end of the week or fortnight'.

Comment: I came away with the distinct impression that he would not cope with

living on his own or with caring for his son without his sister's regular visits and assistance."

1. In his statement dated 15 May 2021 the appellant wrote: "I can shower regularly and look after myself. I try and stay groomed. Nothing has changed there."
2. In his statement dated 20 February 2024, the appellant stated:

"The following is my symptoms of pain and suffering:

a. I shower every second day. I no longer shave and have a full beard now when

b. I have not gotten my hair cut in months. I used to go to the barber every week

c. I eat one meal a day because my medication makes me lose my appetite. I

never used to eat chocolate and hated sugar. I used to cook and prepare my

meal weekly, but now I only eat junk food and takeaway food.

d. I used to love cooking, but now I no longer cook.

e. My lawns and garden are weedy and overgrown. I have a qualification in

horticulture and conservation and land management, and I used to love

gardening, but I am unable to attend to this because of my injury and

f. My sister comes over and helps me out a lot. She cleans my house and

sometimes cooks for me. She also does my shopping for me because I get

overwhelmed by being surrounded by a lot of people."

1. The Appeal Panel does not agree with the Medical Assessor that the description by the appellant of his self-care and personal hygiene activities is similar "to his 2021 statement". In the appellant's statement dated 15 April 2021, he said that he can shower regularly, look after himself and tried to stay groomed. For the reasons set out below, there has been a clear deterioration in his functioning in this scale.
2. The Medical Assessor noted that the appellant has a case manager who attends his home weekly. The Medical Assessor noted that the appellant buys groceries online and takeaway food, and showers and changes clothes twice a week without prompting. The Medical Assessor also noted that the appellant moved back to Coffs Harbour from Brisbane in September 2024 because he had more family there including a sister who could support him. The Medical Assessor noted that the appellant said his sister visits him weekly and he calls her if he needs anything.
3. Dr Canaris, in his report of 22 March 2024, noted his sister checked in on him once or twice a week and helped if he needed need groceries "or something" and would "clean the house". Dr Canaris reported that the appellant was not doing well in relation to showering and changing his clothes, had not shaved for a long time, cut his own hair "very few months" and had gained 15 kg of weight because of inactivity and eating junk food.
4. The appellant, in his statement dated 20 February 2024, stated that he showered every second day, no longer shaved, had not had a haircut for months, ate one meal a day, eats chocolate and sugar (which he never used to eat) and ate junk food and take away. The Appeal Panel notes that the appellant showers less frequently (twice a week) at the time of assessment by the Medical Assessor compared to in 2024 when he stated he showered every second day.
5. The Appeal Panel also notes that there had been a significant gain in weight of at least 15kg which has serious implications for his health. The clinical records of Galambila Aboriginal Medical Centre record a weight of 85.8 kg on 13 November 2019, a weight of 92 kg on

13 January 2020, a weight of 98 kg on 7 June 2021, a weight of 103.35 kg on 2 April 2024. 6. This gain in weight is attributable, in the view of the Appeal Panel, to a change in his diet following the work injury and the consumption of take away food and junk food including chocolates and sugar. The Appeal Panel does not agree with the Medical Assessor that the appellant maintains basic nutrition since he has clearly not maintained his prior standard of nutrition and his nutrition since the injury has resulted in significant weight gain. This amount of weight gain in a person of First Nations heritage carries very significant health risks including diabetes and is a further indication of greater than simply mild impairment. 7. The Appeal Panel considered that there was an inconsistency in the MAC in that the Medical Assessor stated that the appellant neglects his self-care and personal hygiene but maintains basic nutrition and hygiene independently. The Appeal Panel is of the view that if basic nutrition and hygiene are neglected, it is not possible to conclude that basic nutrition and hygiene are maintained. 8. Based on the evidence before the Appeal Panel, and for the reasons provided by the Medical Assessor in the MAC, the Appeal Panel considered that the reasoning process was not sufficiently clear in the assessment of self-care and personal hygiene. The Medical Assessor did not provide in his reasons an adequate explanation of why he determined that the appellant had a mild deficit in circumstances where there was a significant weight gain, neglect of personal hygiene and visits by a case manager weekly and by his sister once or twice a week. In these circumstances, the Appeal Panel concludes that the Medical Assessor failed to provide sufficient reasons for rating the appellant as Class 2 for self-care and personal hygiene and such failure was a demonstrable error. 9. This ground of appeal is made out. 10. Having found error in the scale of self-care and personal hygiene, the Appeal Panel must assess the level of impairment in this scale. The Appeal Panel accepts that the Guidelines make it clear that a significant descriptor for Class 2 is "able to live independently", whereas for Class 3 a significant descriptor is "can't live independently without regular support". The appellant's sister visits once or twice a week and a case manager once a week. Even with these visits, the appellant struggles to maintain a basic level of hygiene and his nutrition is poor. The Appeal Panel, having reviewed the evidence, assesses the appellant as Class 3 for self-care and personal hygiene.

1. The appellant submits that the Medical Assessor's findings on the appellant's relationship breakdown is incorrect, a demonstrable error and inconsistent with the evidence. The appellant argues that there is no rationale to support the Medical Assessor's conclusion, and the only reasonable conclusion is that the appellant's relationship broke down as a direct result of his injury as per his statement.
2. The appellant refers to the matter of Ferguson v State of NSW & Ors [2017] NSWSC 887 where it was held "the Panel should have made a full assessment of all aspects of the relationship before and after the separation," and in this instance, the Medical Assessor's finding is contrary to the evidence which was not challenged.
3. Dr Canaris, in a report dated 22 March 2024 assessed Class 3 for social functioning providing the following reasons:

"His son's mother has left him about a year ago 'because I was a zombie - because the medication destroyed me - she couldn't deal with it...'. She now lives on the Gold Coast but did not take their son apparently because 'she's got other kids'. He said of his son, He's the only thing that keeps me going - I have to look after him...cook for him.' His son attends day-care five days a week - he has been assisted by Family and Child Connect (The Benevolent Society) who pay fees and attend from 6:00 AM to 6:00 PM 'which helps massively'. He does do his sons laundry saying, 'I'm stuck home all day - me being able do that little stuff is what keeps him going'. He added, 'I have no friends now...'. He said later, 'I don't think I could be with a woman until I heal myself'.

Comment: I noted evidence in the documentation suggesting that his ex partner

had multiple problems of her own. That said, he would not be able to care for his

son without considerable outside assistance which places him firmly into Class 3 in this category.'

76.I have changed medication a couple of times to try and resolve this."

1. In his statement dated 20 February 2024, the appellant stated:

" i. I used to have a partner and kids. I no longer live with my partner, our son who is 4 years old, and my stepchildren. My partner and I separated due to my zombie-like condition and behaviour. She could not handle me being like this anymore - like a vessel without emotions like a zombie.

1. My mood is often bad. I always forget important things, such as not being able to concentrate on my son, her and my stepchildren.
2. Because of my condition, I couldn't do things with her and the kids.
3. I also have not been able to work, which affected us financially. She had to carry all the load while I was not improving at all. If I try to get off my tablets, I get suicidal and very depressed. She tried to put up with everything to help and support me but couldn't anymore.
4. It is difficult for my son to sleepover at my house because I have to take my medication at certain times. Once I take my medication, I fall asleep easily and have no control over when to wake up. As a result, I only see my son every 2 months or so, which makes me very depressed.
5. I only go out when it is very important, like medical appointments. I avoid as much contact with people as possible to avoid being anxious. This caused a hindrance in my relationship with my family and friends."

1. The Appeal Panel notes, however, that there was evidence considered by the Medical Assessor concerning long term issues in the relationship between the appellant and his partner, Peta. Ms Georgie Godfrey, Counsellor at the Institution for Urban Indigenous Health, provides clinical notes commencing at page 88 of the ARD. In an entry dated

25 April 2023 (commencing at page 104 of the ARD), Ms Godfrey recorded:

"Recently broke up with ex-partner, she was controlling, emotionally abusive and was cheating on Deon a lot. This had been going on for years. Deon stayed for so long so he could be with his son.

Ex-partner harassed, stalked, blackmailed, and ruined all his job by e.g. messaging his co-workers.

She told the Police that Deon was bashing her, in spite of him not wanting to be with her. DVO was put in place, however Deon has appointment this Friday to revoke it, as he has evidence disproving the abuse."

1. In the entry dated 9 May 2025 (commencing at page 102 of the ARD), Ms Godfrey recorded:

"Deon reiterated he wished he left Peta years ago, but he stayed because of his son.

Staying made him depressed and suicidal. He said he tried "everything there is possible".

Deon recounted one time Peta held a knife up to him and Deon called the Police

screaming. However, when Peta threatened that he would never see his son again he was forced to tell the Police not to come anymore. He said she did this many times, and Deon had done multiple stints living in hotels trying to get away from her."

1. The Medical Assessor at page 6 of the MAC wrote:

"In terms of Mr Quinlan's relationship, he had a long-term relationship, but the evidence was that it contributed to his psychiatric distress, and he felt better for leaving her. Mr Quinlan himself said that he had not done anything to cause the relationship to fail. She wanted to get back with him, but he refused because of her behaviour. He said he has not perpetrated domestic violence, but she made false accusations against him leading to a DVO. On the basis of his reported history, I do not believe the separation was because of his behaviour or injury, but rather it was therapeutic for him to have left her."

1. The Appeal Panel considers that the clinical notes of Ms Godfrey support the Medical Assessor's conclusion that the work injury did not cause the break down of the appellant's relationship with his partner. The appellant did not address these clinical notes in his submissions. The Appeal Panel considered that the Medical Assessor properly placed significant weight on the clinical notes of Ms Godfrey, which were quite detailed as she had worked with the appellant over a 10-month period.
2. The Appeal Panel, considering the evidence as a whole, do not consider that the only reasonable conclusion is that the appellant's relationship broke down as a direct result of his injury (as per his statement). The Medical Assessor's reasoning as to the cause of the relationship breakdown was thorough and supported by the documentation.
3. The Appeal Panel accepts the respondent's submission that while the work injury may have caused some distress in an already dysfunctional relationship, the employment cannot be said to be cause of the relationship breakdown in the face of the extensive clinical material outlining severe non-work-related issues in the relationship.
4. The Appeal Panel finds no error in the Medical Assessor finding that the separation was not because of his behaviour or injury.
5. The appellant submits that he meets the criteria for a Class 4 assessment in social functioning.
6. The examples under Table 11.4 for "social functioning" in the Guidelines are:

"Class 2: Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.

Class 3: Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.

Class 4: Severe: Unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependents (eg own children, elderly parents)."

1. The Medical Assessor assessed Class 2 in relation to social functioning noting:

"Mr Quinlan's relationship with his partner ended and it is not due to his psychiatric impairment. The relationship with his son is good and he looks after his son at a sufficient level. He has been isolative, and does not have contact with his friends. His sister is his main family contact. The relationship with his broader family has longstanding difficulties and is somewhat worse over time."

1. In the MAC at page 2 - 3, the Medical Assessor wrote:

"Mr Quinlan reported they were together for five or six years, and the relationship ended in late 2023. He has not had other partners since. He said the IME tried to say his psychological injury was from his partner, but it was not; the relationship broke up after his work injury....

A council worker sent information to Peta that led to his relationship break-up. She was not the problem, and it was his employment and colleague."

1. At page 9 of the MAC, the Medical Assessor states:

"My view is his relationship break-up is not due to his psychiatric impairment and the separation is therapeutic for him, therefore not assessable in the PIRS (only impairments are assessable)"

1. In commenting on the assessment of Dr Canaris, the Medical Assessor wrote:

"In terms of social and recreational activities, he rated 3 as a result of relationship breakup with Peta and struggles with looking after his son. My view is his relationship break-up is not due to his psychiatric impairment and the separation is therapeutic for him, therefore not assessable in the PIRS (only impairments are assessable). I noted his ex-partner voluntarily gave him custody, and he said he looks after his son, buys things needed for his son and does the school drop-off. There is no family court involved, no legal service involved and there is no evidence he cannot look after his son."

1. In his statement dated 15 May 2021 the appellant wrote:

"75. I used to socialise with mates all the time. I used to meet mates regularly at the

pub. I don't do it anymore. I don't even want to be in Public. I just start panicking.

1. I have changed medication a couple of times to try and resolve this."
2. In his statement dated 20 February 2024, the appellant stated

"i. I used to have a partner and kids. I no longer live with my partner, our son who is 4 years old, and my stepchildren. My partner and I separated due to my zombie-like condition and behaviour. She could not handle me being like this anymore - like a vessel without emotions like a zombie.

1. My mood is often bad. I always forget important things, such as not being able to concentrate on my son, her and my stepchildren.
2. Because of my condition, I couldn't do things with her and the kids.
3. I also have not been able to work, which affected us financially. She had to carry all the load while I was not improving at all. If I try to get off my tablets, I get suicidal and very depressed. She tried to put up with everything to help and support me but couldn't anymore.
4. It is difficult for my son to sleepover at my house because I have to take my medication at certain times. Once I take my medication, I fall asleep easily and have no control over when to wake up. As a result, I only see my son every 2 months or so, which makes me very depressed.
5. I only go out when it is very important, like medical appointments. I avoid as much contact with people as possible to avoid being anxious. This caused a hindrance in my relationship with my family and friends."

1. As noted above, Dr Canaris assessed Class 3 for social functioning and the Medical Assessor commented on that assessment and provided reasons for not agreeing with

Dr Canaris' assessment. 2. The Appeal Panel notes that the appellant has a good relationship with his sister, who is very supportive of him. The appellant has a good relationship with his son and reasonable relationship with other family members. The Appeal Panel considers that the break up of relationship with his former partner was predominantly due other factors, and particularly the behaviour of his partner. The Appeal Panel is not persuaded that the relationship broke down because of his psychological injury. It was a dysfunctional relationship that contributed to his psychiatric distress. 3. The appellant refers to the decision of Ferguson v State of NSW & Ors [2017] NSWSC 887 it was held "the Panel should have made a full assessment of all aspects of the relationship before and after the separation". The Appeal Panel considers that such an assessment is only required if the Medical Assessor is satisfied that the separation was due to impairment resulting from the work injury, which is not the case in this matter.

Ground 4 - Assessment of pre-existing condition

1. The Medical Assessor at page 9 of the ARD wrote:

"In terms of pre-existing condition, my view is that there is a significant pre-existing condition with evidence of impairment arising from substance use disorder and ADHD, and adjustment disorder, which affected all areas of functioning in the PIRS, as noted later."

1. The Medical Assessor at page 10 of the MAC wrote:

"Mr Quinlan's pre-existing condition contributed to his current impairment, because his file indicated psychiatric diagnoses which cause "ongoing" problems and his psychiatric impairment would not have been as great, were it not for the pre-existing psychiatric diagnoses."

1. The Medical Assessor at page 10 and 11 of the MAC wrote:

"In the alternative, if a s 323 deduction was to be made, it would be greater than one-tenth, as his pre-existing psychological diagnoses caused significant impairment in all scales in the PIRS, and one-tenth deduction would be at odds with the evidence. In that scenario, my view is his pre-existing psychiatric disorder contributes to his current WPI by 4-tenths."

1. The appellant submits that in making the PIRS assessment made in respect of the pre-existing conditions, namely, pre-existing adjustment disorder, attention deficit hyperactivity disorder (ADHD) and substance use disorder, the Medical Assessor relied on the records of GP, Dr Patchett.
2. The appellant notes that Dr Patchett, in his letter to the appellant's solicitors dated

1. At page 10 of the MAC, the Medical Assessor noted that prescription records noted Mirtazapine/Avanza in 2014, 2015, 2017, 2018. The Medical Assessor wrote: "There was a pre-existing condition, which was consistent with an Adjustment disorder, substance use disorder and Attention deficit hyperactivity disorder".
2. The appellant submits the Medical Assessor's diagnosis is erroneous and without rationale. The appellant argues that there is no reference or record of any pre-existing condition affecting the appellant's ability to work and function.
3. The Appeal Panel notes that s 323 of the 1998 Act requires a "deduction for any proportion of the impairment that is due to any previous injury ... or that is due to any pre-existing condition or abnormality".
4. The appellant, firstly, submits that the Medical Assessor's diagnosis is erroneous. However, the Appeal Panel notes that the appellant had been prescribed Mirtazapine, which is used to treat anxiety and/or depression since 2014. The Appeal Panel is satisfied that the prescription of Mirtazapine on a long term basis is evidence sufficient that the appellant had a pre-existing psychological condition, namely, an anxiety disorder. The clinical notes of Galambila Aboriginal Medical Centre dated 9 June 2020 reported that the appellant "worried about anxiety, has had it for years." The Appeal Panel considers that the Medical Assessor may have used the term "pre-existing adjustment disorder" to describe this condition.
5. In respect of the diagnosis by the Medical Assessor of a pre-existing substance use disorder, the Appeal Panel considers that the appellant may have had such a disorder in the past, but Dr Patchett, who has treated the appellant for many years, found that the substance abuse disorder and alcohol abuse disorder had resolved. The clinical records of Galambila Aboriginal Medical Centre include various entries in 2013, 2014, and 2016 concerning substance abuse, that was primarily alcohol and occasional drug abuse. After a reference to using MDMA and cocaine on 10 January 2018, there is no further reference to substance abuse apart from a reference on 2 August 2019 about drinking excessively.
6. The Appeal Panel notes that Dr Ian Sherman, consultant psychiatrist, expressed a similar opinion in his report dated 22 July 2024 (page 2 Reply) stating: "I consider his past substance and alcohol abuse and childhood abuse to be vulnerability factors or predisposing factors rather than the immediate cause of his current condition".
7. Dr Canaris, in his report dated 20 April 2024, made a deduction of one tenth for pre-existing impairment because of evidence that he had major pre-existing difficulties going back to early life. Dr Canaris commented:

"Evaluating impairment related to preexisting psychiatric problems and to other difficulties not relating to his workers compensation claim would be a monumentally difficult task particularly as your client is not the best of historians."

1. In his report dated 22 March 2024, Dr Canaris wrote:

"There is evidence of pre-existing psychological difficulties. It is difficult to ascertain how active these were just prior to his workplace injury or how much impairment if any they caused. It would be prudent therefore to deduct 1/10 or 2%."

1. The Appeal Panel does not consider that there is sufficient evidence to supports a finding that the appellant had a substance abuse disorder before the events occurred at work causing the subject injury. Even, if the Appeal Panel is wrong in this respect, the Appeal Panel is not persuaded that there is any evidence that such a substance abuse disorder contributed to the impairment assessed.
2. Although the respondent refers to the various traumatic experiences that the applicant experienced as a child and adolescent, there was no evidence that the appellant had developed any actual psychological disorder as a result of trauma in his childhood or adolescence. The Appeal Panel notes that it should not be assumed that exposure to trauma necessarily results in the development of a psychological condition. Such traumatic experiences merely made, in the opinion of the Appeal Panel, the appellant more vulnerable or pre-disposed to psychological injury. In Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416, Beech-Jones J (as he then was) reiterated the need for evidence of an actual pre-existing condition rather than a predisposition or susceptibility.
3. The Medical Assessor referred to a diagnosis of ADHD being made in 2000. The Appeal Panel notes that since that diagnosis the appellant managed to obtain employment, acquiring qualifications in conservation land management and horticulture through TAFE and completed his traineeship with the respondent as a ranger. There is no evidence that the appellant was treated for ADHD, although Dr Patchett, GP, described the condition as ongoing in his letter dated 30 November 2023 (page 192 ARD).
4. In conclusion the Appeal Panel finds that the appellant had pre-existing conditions, namely an anxiety disorder and ADHD. The Appeal Panel finds that the Medical Assessor erred in making a diagnosis of substance abuse pre-injury as that condition had resolved. The Medical Assessor did not comment on Dr Patchett's letter dated 30 November 2023 in which Dr Patchett the substance abuse and alcohol abuse had resolved. The Appeal Panel considers this was a failure to consider material evidence, particularly as Dr Patchett was best placed as the treating GP, to make such a diagnosis. The Appeal Panel notes that his diagnosis was supported by the clinical note dated 14 November 2017 in which Dr Cheang noted the appellant had cut back on alcohol and "GGT back in almost normal range".
5. The appellant submits that there is no reference or record of any pre-existing condition affecting the appellant's ability to work and function. The Appeal Panel accept that there is no satisfactory evidence that any pre-existing condition impacted on the appellant's functioning at the time of the work injury.
6. The appellant submits that the Medical Assessor utilised incorrect criteria in relation to the assessment of pre-injury impairment.
7. The Medical Assessor made the following assessment of pre-injury impairment as follows:
   1. "Self-Care and Personal Hygiene:

There is a previous history of serious suicidal ideation with risk of self-harm, in the context of substance use or earlier life trauma, although Mr Quinlan denied this. Substance misuse is also a form of self-harm."

1. The Appeal Panel accepts this assessment uses incorrect criteria, and not as the reasons are not the appropriate or usual descriptors for consideration in this category. The Appeal panel accepts this is inconsistent with the SIRA Guides Table 11.1 and the guiding descriptors or examples of impact on self- care and personal hygiene,

He engaged in recreational activities with substance use, which is unsafe."

1. The Appeal Panel accept that this assessment uses incorrect criteria, is erroneous, not supported by the evidence and the guiding principles of the Table 11.2,

"There is a history of loss of license. His substance use led to problems driving".

1. The Appeal Panel accept that the Medical Assessor relied on incorrect criteria of 'substance use' to justify impairment,

"Mr Quinlan has difficulties with his relationship, partly due to substance use and irritability.

I have not assessed the loss of girlfriend as noted in his file, due to the vagueness of the history. If he lost a girlfriend due to his substance use, then the rating would be 3 or higher."

1. The Appeal Panel accepts that the Medical Assessor's opinion is inconsistent with all of the evidence. To the extent the opinion based on 'substance abuse', this was expressed as an alternative which was not relied upon by the Medical Assessor. The Medical Assessor comments on the loss of his girlfriend, which is erroneous as this occurred after the claim for the subject work injury was made.

"Mr Quinlan has Attention deficit hyperactivity disorder and substance use disorder, both affect his concentration. This is at least 2."

1. The Appeal Panel accept that the Medical Assessor does not refer to any evidence of impairment or prior conditions or symptoms having any impact on ability to work or function in this category prior to the subject work injury,

"He cannot work when he is under the influence of substances.

There is evidence of job loss due to his mental health or substance use in his GP's treatment records.

I have not assessed the loss of employment as noted in his file, due to the vagueness of the history. If he lost a job due to his substance use, then the rating would be hiqher."

1. The Appeal Panel agree that there is no evidence that the appellant was using substances causing any incapacity for work in his employment with the respondent prior work injury apart from a reference on 27 April 2017 (page 229 ARD) Dr Cooper noted that the appellant "missed work due to drinking" and had attended a recent funeral. An isolated absence from work on one occasion should not be taken into account in assessing employability pre-injury.
2. The Appeal Panel notes above that the Medical Assessor in the pre-work injury WPI table under "Reason for Decision" referred in the various scales to such matters as a previous history of serious suicidal ideation with risk of self-harm (in the context of substance use or earlier life trauma), substance misuse being a form of self-harm, substance use which is unsafe, loss of driving licence due to substance use, ADHD and substance use affecting concentration and inability to work when under the influence of substances and evidence of job loss due mental health or substance use in GP records.
3. These matters that were identified by the Medical Assessor relate largely to the existence of condition or to ideation and not to the functioning that is to be examined in a PIRS assessment as set out in Tables 11.1 to 11.6 of the Guidelines. Clause 11.10 of the Guidelines provides that the assessment is to look at the actual level of functioning in each of the areas of function. The Appeal Panel considers that the Medical Assessor failed to properly perform that task and to assess the appellant's level of functioning in each scale taking into account the descriptors set out in the tables or similar matters going to the characterisation of conduct as going to that particular scale.
4. The Appeal Panel finds that the Medical Assessor applied incorrect criteria in his assessment of pre-injury impairment and that the application of incorrect criteria is a demonstrable error.
5. The Appeal Panel, therefore, will determine the s 323 deduction.
6. Section 323 of the 1998 Act provides:

"(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. In Southwell v Qantas Airways Ltd [2024] NSWSC 497, (Southwell) Wright J commented on the operation of s 323 at [50], stating that it involves three enquiries:
   • firstly, what the extent of the resulting impairment is;
   • secondly, whether the pre-existing condition contributed to the impairment, and
   • thirdly, if it did, what proportion of the impairment was due to the pre-existing condition.
2. This requires a consideration of whether the pre-existing condition contributed causally to the impairment suffered as the result of the workplace injury, as well as whether a portion or part of that level of impairment was due to the pre-existing condition, rather than the workplace injury.
3. Campbell J stated at [45] in Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder) with respect to a deduction under s 323, "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."
4. The Appeal Panel was satisfied that the pre-existing conditions an anxiety disorder and ADHD contributed to the impairment assessed.
5. As noted above, the Appeal Panel is satisfied that the appellant had long-standing pre-existing psychological conditions, namely, an anxiety disorder and ADHD. As Dr Canaris observed: "There is evidence of pre-existing psychological difficulties. It is difficult to ascertain how active these were just prior to his workplace injury or how much impairment if any they caused."
6. The Appeal Panel does not consider that the evidence available demonstrates that the anxiety disorder and ADHD had any great impact on his functioning pre-injury. The appellant was employed by the respondent since about 2015. He maintained his employment with the respondent until the subject work injury. The appellant, pre-injury, played football, went to the gymnasium, surfed, socialised, shaved regularly, had weekly haircuts and cooked at home. Dr Sherman in examining pre-injury functioning wrote:

"He emphasised the positive impact his grandfather had on his upbringing, ensuring he excelled academically by attending school, and acquiring multiple qualifications in machinery operation, business, and horticulture through TAFE and Charles Darwin University. He said he had thrived in various sports like football, and surfing, and went to the gym daily, maintaining an active and social lifestyle."

1. On balance the Appeal Panel concluded that it was appropriate to make a deduction pursuant to s 323(2) of 10% because the precise deduction is difficult to determine. While there is medical evidence of various symptoms and problems pre-injury, there is almost no evidence that address the actual level of function in each of the PIRS scales.
2. The Medical Assessor referred to there being evidence of job loss due to his mental health or substance use in his GP treatment records. The Appeal Panel noted that Dr Luke Manestar-Forde in an entry dated 28 October 2014 (page 246 ARD) noted that the appellant was concerned about drinking, lost work and lost his licence in the context of his father and grandfather having passed away this week. The Appeal Panel noted that in an entry dated 27 April 2017 (page 229 ARD) Dr Coper noted that the appellant "missed work due to drinking" and had attended a recent funeral. In the factual investigation report dated

15 June 2021 Mr Tamison Duff of NCA Consulting noted that the appellant commenced with the respondent in around 2015 as a trainee ranger and commenced working as a ranger in May 2019. These isolated events referred to in the clinical notes took place sometime before the work injury and no basis for assessing functioning immediately prior to the subject work injury. 3. The Appeal Panel, on reviewing the level of functioning prior to the work injury, does not consider that a 10% deduction is at odds with the evidence.

1. The appellant submits that the Medical Assessor erred in his assessment of the PIRS on pages 14 and 15 of the MAC in relation to the categories of self-care and personal hygiene, travel and social functioning. The Appeal Panel has addressed above the submissions made in respect of self-care and personal hygiene and social functioning ratings and will now address the submissions made in respect of the category of travel.

1. The appellant submits that the Medical Assessor obtained a history at page 4 that the appellant does not drive regularly due to near misses on the road and only do school drop-off. Further, the appellant's support person comes to help him, and he has not been out for the past five to six months which is supported by the fact he does his groceries online and orders take away food. The appellant argues that a reasonable interpretation of Table 11.3 would be the appellant exceeds the examples and ratings of Class 2 and should be considered as Class '3'.
2. The examples under Table 11.3 for "Travel" in the Guidelines are:

"Class 2 Mild impairment: Can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.

Class 3 Moderate impairment: Cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment."

1. The Medical Assessor assessed Class 2 in relation to travel noting: "Mr Quinlan has social anxiety when out and avoids crowded places. He drives in the local area."
2. Under "Social activities/ADL" the Medical Assessor wrote:

"He then said that he has been going out once a week and sometimes goes out on his own. He does school drop off on his own...".

Mr Quinlan stated that he occasionally drives and had near-misses on the road, so does not drive regularly, due to concentration difficulties. He drives to do the school drop-off."

1. In his report dated 22 March 2024, Dr Canaris assessed the appellant as Class 2 for travel and provided the following reasons:

"I noted in this context that he drives his son to day-care "but he goes late sometimes when I get up late... I find it hard to drive especially when I'm changing medication... sometimes I ask my sister to take him or pick him". He lives next door to Woolworths and so does not have to drive to get groceries although he sometimes gets his sister to do this for him."

1. The appellant submits that a reasonable interpretation of Table 11.3 would be the appellant exceeds the examples and ratings of Class 2 and should be considered as Class '3'.
2. The Appeal Panel accepts that the appellant leaves his house to drop his son off at school, which involves him being able to drive regularly in his local area and goes out once a week and sometimes goes out on his own.
3. The Appeal Panel considers that the evidence including the history obtained by the Medical Assessor is consistent with a Class 2 rating for travel.
4. This ground of appeal is not made out.
5. The Appeal Panel assesses the appellant as Class 3 for self-care and personal hygiene. The Appeal Panel finds no error, nor the application of incorrect criteria in the assessments of Class 2 for travel and Class 2 for social functioning. No appeal was made in respect of the assessments for social and recreational activities, concentration, persistence and pace and employability.
6. The Appeal Panel finds that the PIRS scales score 3 3 2 2 3 5, ascending order 2 2 3 3 3 5, median 3, aggregate 18 so that the WPI = 22%. The Appeal Panel applies a deduction of one tenth pursuant to s 323 results in a total of 20% WPI.
7. For these reasons, the Appeal Panel has determined that the MAC issued on 28 July 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reason.

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 Michael Hong 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)