1. The worker's permanent impairment of his whole person resulting from the injuries sustained as a consequence of the work accident on 26 June 2016 is 32%.

1. Pursuant to s 138AB(3)(b) of the Workers Rehabilitation and Compensation Act 1988 the degree of permanent impairment of the worker resulting from the injuries sustained as a consequence of the work accident on 26 June 2016 is not less than 20% of the whole person.

1. It is noted for the purposes of s 138AB(3)(a) of the Workers Rehabilitation and Compensation Act 1988 that there has been provided to the Tribunal a statement in writing, signed by a medical practitioner, certifying that, in the opinion of the practitioner, the degree of permanent impairment of the worker resulting from the injury is not less than 20% of his whole person.

1. The parties are to file a memorandum of agreed proposed orders in respect to the costs of the referrals within 21 days from the date of this determination. In the event that proposed orders are not agreed any application for costs is to be filed and served within a further 14 days together with submissions.

Workers compensation - Claims for assessment of whole person impairment - Upper digestive tract injury, post-traumatic stress disorder and scarring

Workers Rehabilitation and Compensation Act 1988

Coad v Tasmania [2021] TASFC 2;

Kazal v Thunder Studios Inc (California) [2023] FCAFC 174;

Lehrmann v Network 10 Pty Limited (Trial Judgment) [2024] FCA 369;

Damjanovic v Sharpe Hume & Co [2001] NSW CA 407;

Kooragang Cement v Bates (1994) 35 NSWLR 452;

March v Stramare (E & MH) Pty Ltd [1991] HCA 12;

Stephen Mervyn Jones v Devonfield Enterprises [1996] TASSC 11;

Ling v Incat Tasmania [2000] TASSC 87;

Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37

Worker: B Hilliard & I Gunadasa - Simmons Wolfhagen

Employer: B McTaggart SC & M Valentine - Wallace Wilkinson & Webster

The decision has been anonymised for the purpose of publication.

Amended pursuant to s119 of the Tasmanian Civil & Administrative Tribunal Act 2020

Clerical error, amendment of date in paragraph 16 to 4 July 2015,

1. The worker has filed two referrals pursuant to the Workers Rehabilitation and Compensation Act 1988 (the WRC Act):

(a) a referral pursuant to s 138AB seeking a determination that the worker has a degree of permanent impairment of his whole person of not less than 20%; and

(b) a referral pursuant to s 71 seeking a determination of his level of whole person impairment.

1. The material issues and evidence on the referrals are the same and the referrals were heard together.
2. The worker claims whole person impairment in respect to the combination of a gastrointestinal injury, scarring and a primary psychiatric injury, arising from a work incident on 26 June 2015. He originally sought a component of whole person impairment for a back injury claimed to have been sustained in the incident, but subsequently abandoned that component of the claim.
3. At a directions hearing in May 2024 the employer consented to an order that it pay to the worker a sum equivalent to a 15% whole person impairment. The employer agreed that the worker may seek further compensation pursuant to s 71. The employer expressly represented that it would not seek a finding that the impairment is less than 15% nor seek any recovery of the payment already made. As a consequence the central issue on the referrals is whether the worker's whole person impairment is greater than 15%, and if so whether for the purposes of the s 138AB referral the impairment is not less than 20%, and for the purposes of the s 71 referral the degree of whole person impairment.

1. Section 71(1) and (2) of the WRC Act provide for compensation by way of a lump sum for physical and psychiatric permanent whole person impairment.
2. Section 72 provides for assessment of the degree of whole person impairment. Section 72(1) and (2) provide:

(1) An assessment of a degree of impairment is to be undertaken by an accredited medical practitioner in accordance with -

(a) any relevant guidelines, issued under section 71A , as in effect on the date on which the assessment is made; or

(b) if there are no such guidelines, the AMA Guides as in effect on the date on which the assessment is made; or

(c) if there are no such guidelines and the AMA Guides are not applicable or are unsuitable, any method as may be prescribed.

(2) In assessing a degree of impairment of an injury -

(a) regard is not to be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, the physical injury; and

(b) the degree may comprise a combination of impairments arising out of the same incident or occurring on the same date assessed together using the combination tables in the AMA Guides; and

(c) if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed separately; and

(d) an impairment arising otherwise than from the injury is not to be taken into account in assessing the degree of the impairment resulting from the injury.

1. The guidelines referred to in s 72 are the WorkCover Tasmania Guidelines to the Assessment of Whole Person Impairment (the Guidelines). The AMA Guides referred to are the American Medical Association Guides to the Evaluation of Permanent Impairment (4th Edition) (the AMA Guides).
2. Section 138AB provides a threshold pre-condition for commencement of a common law claim for damages against an employer in respect of a work injury. Section 138AB(2), (3), and (5) relevantly provide:

(2) A person may not commence proceedings for an award of damages in respect of an injury to a worker for which compensation is payable under this Act, unless the threshold requirement is met in relation to the injury.

(3) The threshold requirement is met in relation to an injury if -

(a) there has been provided to the Tribunal a statement in writing, signed by a medical practitioner, certifying that, in the opinion of the practitioner, the degree of permanent impairment of the worker resulting from the injury is not less than 20% of the whole person; and

(b) the Tribunal has determined that the degree of permanent impairment of the worker resulting from the injury is not less than 20% of the whole person.

(5) An assessment of the degree of the worker's permanent impairment for the purposes of this section is to be carried out in accordance with section 72 or 73.

1. The worker commenced employment with the employer on 29 October 2014. At the relevant time his duties included feeding timber into an automatic edging machine.
2. On 26 June 2015 the worker was feeding timber into the edging machine when it kicked back causing a piece of timber approximately 3m long x 50mm wide x 25mm deep striking the worker in the abdomen.
3. The worker was taken to the Royal Hobart Hospital where he underwent a laparotomy, which is a surgical incision into the abdominal cavity. This was by a 20cm midline vertical incision made through the scar of a prior laparotomy. The worker was found to have a perforation injury to the jejunum, which is the middle part of the small intestine between the duodenum and the ileum. The perforation was repaired in the course of the surgery.
4. In the expert evidence the injury to the small intestine was variously described as being to the jejunum and to the duodenum, the first part of the small intestine. However described, the injury was to the small intestine and no expert raised any significance as to whether the description was injury to the jejunum or duodenum.
5. On 8 September 2015 the worker underwent further surgery to excise the scar at the entry site of the timber and for removal of some suture material present in the incision for the laparotomy.
6. In addition to the physical injury and scarring the worker contends that he has experienced whole person impairment as a consequence of a post-traumatic stress disorder (PTSD) caused by the incident.
7. There was no dispute between the parties in respect to the circumstances and occurrence of the work injury as described above.
8. The worker made a claim for compensation on 4 July 2015. Liability for the claim was accepted.

1. The employer criticised the reliability and credibility of the worker's evidence and submitted that his evidence should be rejected where it is not corroborated.
2. The worker was clearly uncomfortable giving evidence, both in the circumstance and physically. He was a poor historian. For example, he was unsure of the date of his accident, suggesting it was either 24 or 25 July 2015, but accepting that it was in fact 26 June 2015. In cross-examination he contended that his current weight was 54kg notwithstanding that in his evidence in chief he described it as being close to 60kg. He contended that he gained weight after 2009 in part by starting to play soccer, but also said that he started soccer in 2008. He said in examination in chief that he was living with his mother-in-law and in cross examination that it was with his sister-in-law.
3. The worker gave evidence that he was stabbed with a glass bottle while walking home from a party on New Years Day 2006, at which time he would have been 19 years old, having a birth date in August 1987. The stabbing incident is recorded in the history reports of doctors who saw the worker for medico-legal purposes in respect to the work injury, but they report the injury as having occurred variously in 2002, 2006 and 2007, and when the worker was 18.
4. The worker downplayed back problems recorded in his medical records prior to the work incident, and a history of being prescribed analgesic and anti-depressant medication. He did not mention in his evidence in chief a low back injury sustained by him while working in a woodyard. An assessment by a consultant rheumatologist at the Royal Hobart Hospital Spinal Assessment Clinic on 12 November 2010 noted that the injury in the wood yard occurred when the worker was aged 18, some five years previously. This incident would have had a significant effect on the worker's life. He made a workers compensation claim. His medical records indicate a significant period of substantial pain and functional impairment for which he received opioid medication, underwent consultations with specialists, and underwent radiological investigations. This injury is not noted in the history taken by any of the doctors appearing at the hearing, nor in the reports of other doctors who examined the worker for medico-legal purposes in connection with the work injury included in the documentary material tendered at the hearing.
5. In cross examination the worker was very vague about these matters and asserted that he could not recall working in a woodyard when 18, or the injury, but did not deny them. The worker said that the effects of the 2015 work injury had affected his memory, but he had a good recollection of the stabbing incident, which like the woodyard incident, occurred approximately 10 years prior to the work injury. It stretches credulity to believe that he could not remember a significant work injury, particularly one occurring in a woodyard, at around the same time.
6. The conclusion I draw is that either the worker has a poor and selective memory or that he was not telling the truth in respect to this matter. That does not mean that his evidence should be rejected in respect to other matters, but may affect the weight and the degree of satisfaction of his evidence as to the existence or otherwise of facts in issue in the proceedings: Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 at [272], see also Lehrmann v Network 10 Pty Limited (Trial Judgment) [2024] FCA 369 at [136] - [138] and [151] - [153]. There is a difference between the rejection of a witnesses evidence and a finding of deliberate lying: Damjanovic v Sharpe Hume & Co [2001] NSW CA 407 at [166]. I am not prepared, without more, to make a finding that the worker has lied, nor to go so far as the employer contends, that his evidence should be rejected where it is not corroborated. However, where the worker's evidence conflicts with the documentary evidence or the evidence of the other witnesses, who were all experts, I will generally prefer that other evidence.

1. The worker gave evidence that he left school after grade 9 and then worked fulltime doing fencing for two or three weeks. He then had some time off work on social security.
2. He said that the stabbing on New Years Day 2006 causing a laceration to his liver. The stab wound was to the right side of his abdomen. After the assault he experienced psychological issues including nightmares and depression for a year or a little longer. In the aftermath of the stabbing the worker was medicated for depression. He continued to take that medication until a while before he commenced working with the employer.
3. The worker said that he lost weight after he had been stabbed, but after a little while his appetite returned and he started to gain weight. He began taking protein shakes and lifting weights. He became more social and started playing golf, cricket and soccer. He undertook cross-fit training, boxing training and weightlifting and kept track of his weight. He was attempting to put weight back on. He estimated his weight prior to his work injury at between 70-75kg.
4. The worker moved to Melbourne a couple of years after the stabbing and obtained fulltime labouring work on the railways. He described himself as at that time being physically really fit. He continued to have psychological issues, particularly in respect to going out with workmates, but the issues were manageable and he was able to cope. At that time he had some backpain for which he took Tramadol.
5. The worker had two periods of work in Victoria and then returned to Tasmania permanently in late 2008 or early 2009 because of a family illness. After a short period on social security he obtained work for a labour hire company undertaking vegetation maintenance work around highways in southern Tasmania.
6. The worker said that he injured his back working for the labour hire company in 2011, but he was unsure of that date. The back wheel of a ride on mower he was operating dropped into a drain culvert bouncing him up and out of the mower and jolting his low back. He made a workers compensation claim but said he had no time off, working light duties for a week or two weeks and then back to full normal duties. Eventually he was made redundant in 2012 or 2013.
7. About six months later he obtained fulltime permanent employment with the employer, commencing in October 2014. He had attempted several times previously to obtain work with the employer. He commenced as a racker and then moved up to a docker man and then edge operator. This was the role that he had wanted from the start and he enjoyed the work.
8. The worker described the circumstances of his injury and his stay in hospital, which reflect the description above.
9. After the surgery he experienced excruciating stitch-like pain in the left side of his abdomen on a daily basis. He continues to experience pain. The level of pain varies depending on activities, such as stretching high, bending down, walking, sitting, standing, coughing and sneezing. He said that he feels the pain with pretty much everything he does.
10. The worker takes opioid pain medication, anti-depressant medication, and an anxiolytic. In addition he self-medicates daily with cannabis. He also uses a TENS, but is unable to use it for more than two hours a day because the pads irritate his skin. The worker said that he has had numerous nerve blocks to attempt to control the pain but they have been unsuccessful.
11. The worker said that he has no bowel control, which he described as having no urge to hold, which I understand from his description to mean urge incontinence. Prior to the injury he had full control, but now as soon as he experiences the urge to defecate he has no control of that urge. Defecating increases the pain in his abdomen.
12. In order to try to alleviate the pain associated with releasing his bowels he had used Metamucil to soften his stools, but that made his urge incontinence worse. He returned to having very hard stools which resulted in excruciating pain. As a consequence he is careful of what he eats which, keeping his diet as simple as possible, favouring fibre-rich foods. He now avoids a number of foods that he used to enjoy, as they adversely affect his bowel function. He also experiences nausea.
13. The worker said that after a year of total incapacity he attempted to return to work. He was unsuccessful because of his psychological symptoms, excruciating pain and difficulties with concentration. He experienced nightmares and flashbacks. He became short tempered and felt terrible. He said that the return to work program lasted for about a year.
14. The worker said that his lowest weight after the work injury was 53kg. He believes that he lost weight because of his loss of appetite, pain and psychological symptoms. The worker said that his current weight would be close to 60kg. He was weighed in the presence of counsel during the hearing and it was agreed that he weighed 57.9kg clothed but without shoes.
15. The worker described an off-and-on relationship with the mother of his three children, one of whom was born since the work incident. He lives with his partner's mother and her partner.
16. In cross-examination the worker agreed that he experienced symptoms of depression and anxiety in 2007 and was treated by a psychologist. At that time he was taking Tramadol and Panadeine Forte for back pain. He had poor concentration as a result of his psychological symptoms and back pain. He agreed that he had been diagnosed with PTSD, as a result of the stabbing incident, and was unable to leave his house for approximately two years. He denied that the work injury worsened that PTSD and said that he was fine at work. He did not accept that his PTSD after the stabbing contributes to his current psychological distress.
17. Although unsure of the back injury at the woodyard when he was 18, he accepted that he had had a significant back injury since that age. He accepted that he had experienced depression since that time. The worker accepted that he was prescribed opioids and anti-depressants from 2011 until the date of the injury in June 2015 although he claimed that he did not take the medication.
18. The worker accepted that he had a workers compensation certificate for incapacity following the mower incident but denied that he had had time off work.
19. The worker agreed that his weight was 56kg in June 2009. He agreed that in June 2016 his weight was 59.7kg and was subsequently measured in the range of 60.5kg to 65kg between then and December 2021.
20. The worker said that he sees the mother of his children daily and stays over two to three nights per week to see his children. He said that has been the same since the accident and that before the accident they had off-and-on relationship and that he stayed between houses.
21. Concerning his return to work, he accepted that he returned to work in July 2016 and had worked his way back onto an edging machine, but said that it was a different one to that on which he was injured. He felt safe with the machine. He agreed that he had made a good transition back to four days per week but said that he should not have returned and that it did not work out, and he ceased work in February 2016.
22. The worker accepted that he used cannabis prior to being injured and did not commence using cannabis to help with the pain after his work injury, but said that he increased his use due to the pain and psychological problems.
23. The worker was taken to a comment in a report by Dr Phillip Reid, a psychiatrist, stating that the he had been with his partner before the accident of 26 June 2015 and that changes to his mental health and chronic pain had put a strain on the relationship. It was put to him that that was not true and that he had been living with other people since 2009 only spending some nights with the mother of his children. He accepted that he was living with his partner's sister and her partner.

1. The worker called evidence from Dr Dominic Yong, a specialist occupational physician. A report of Dr Yong's dated 6 June 2017 was tendered. The history taken by Dr Yong described the worker's current symptoms as abdominal pain at 9/10 on a visual analogue scale, located around the scar below his umbilicus and radiating to the left side of his abdomen, worsening with defecation. The worker also complained of nausea and loss of appetite but stated that he did not vomit. The abdominal pain worsened with pressure on his left leg and when he tensed his stomach. He also complained of pain in his laparotomy scar at 6/10 to 7/10 and stated that he did not like looking at the scar.
2. Dr Yong recorded the worker's height at 171cm and his weight at 60kg.
3. On examination Dr Yong noted a 17cm longitudinal scar running from the epigastrium to the suprapubic region. Some of the scar was broad and there were trophic changes more on the superior half of the scar and contour defects in the scar around the superior part. There was a 2cm scar extending perpendicular to the laparotomy scar consistent with the removal of skin lumps and a 2cm scar in the lower left quadrant. Dr Yong also noted a 1cm scar to the right of the umbilicus consistent with the stab wound. All the scars were tender except for the stab wound scar. The worker was tender to palpation around the left side of his abdomen. The worker complained of faecal accidents, constipation and loss of weight.
4. Dr Yong undertook an assessment of whole person impairment in accordance with chapters 10 and 13 of the AMA Guides. Chapter 10 deals with the digestive system and chapter 13 with skin.
5. Noting that the worker had surgery on his small bowel, Dr Yong referred to table 2 Classes of Impairment of the Upper Digestive Tract in chapter 10 of the AMA Guides. He considered that the worker had symptoms and signs of organic and upper digestive tract disease, being nausea, abdominal pain and constipation. He was taking stool softeners and medication which did not completely control his symptoms. Based on the worker's report that his body weight prior to the accident was 71kg and his then weight of 60kg, Dr Yong noted an 11kg, or 15%, weight loss below desirable weight which he considered was ascribable to the disorder to the upper digestive tract.
6. Dr Yong assessed the worker as falling into class 3 in table 2, which provides for a range of 25% - 49% whole person impairment. Having regard to impacts on his function at work and home and the factors he has described he concluded that the worker had a 25% whole person impairment.
7. In respect to the worker's scarring, Dr Yong noted that signs and symptoms of skin disorder were present with intermittent treatment being required with no limitation, or limitation in the performance of few activities of daily living. He classified the scarring as within a class 1 impairment for skin disorders according to table 2 of chapter 13. He then used the Table for the Evaluation of Minor Skin Impairment (TEMSKI) in the Guidelines and, noting the trophic changes, consciousness of the scar, notable colour contrast and easy location of the scar, intermittent treatment, no adhesions and minor limitation on performance of some activities of daily living assessed a 2% whole person impairment.
8. Combining the values Dr Yong concluded that the worker has a 27% whole person impairment for his physical injuries.
9. A further report of Dr Yong dated 2 May 2024 was tendered. In the report Dr Yong noted that the worker continued to have abdominal pain predominantly to the left side of his abdomen but radiating slightly to the right and continued to have bowel accidents. The worker had stopped taking a fibre supplement and altered his diet to increase fibre and avoid certain foods which caused his symptoms to flare up. He continued to feel nauseous but did not vomit and his abdominal scar was still painful. On examination the worker's bodyweight was 53.9kg. He continued to experience tenderness on palpitation of the abdomen and the scar.
10. Dr Yong observed that the worker continued to have symptoms and signs of an organic upper digestive tract disease with nausea, abdominal pain and change in bowel habits. He considered that the worker had anatomic loss or alterations from the traumatic small intestine perforation and the subsequent surgery. Dr Yong maintained his opinion in respect to whole person impairment.
11. In evidence in chief Dr Yong explained his assessments of impairment:

Right. Now, in both of your reports you adhere to the same assessment, so you reiterated the assessment of whole person impairment at 27 per cent that you made in 2017 in your second report. Can you just explain the process that you went through and how you came to the conclusion of 27 per cent in relation to the whole person impairment, please?......Sure. Just - so, just to backtrack to that table 2 again and from the history and, I suppose, from the clinical features, he had the symptoms and signs and the organic upper GI disease present with anatomical loss or alteration. He had a blunt injury to his abdomen which - the blunt injury led to the perforation of the duodenum. It required surgical treatment and, pretty much after that, he had ongoing symptoms related to his abdominal condition. And I did not note any history of any pre-existing abdominal symptoms, so they all related to that. So, certainly, that first paragraph was relevant. The second paragraph, he was taking some drugs to try to control his symptoms, some Metamucil as well. And in addition there was weight loss and I calculated the weight loss from, I think the base line was - I will just have a look - the base line was 71 kilograms, he gave a history of, when I weighed him he was 60 kilograms. So, there was an 11 - kilogram loss. So, 11 - and then I calculated the percentage of 11 kilos from his original weight and that fitted within the 10 to 20 per cent loss of weight. So, I classified him as Class 3, and a low Class 3 at 25 per cent. But in addition, because of the skin issues and I assessed according to Chapter 13, the - the skin condition, and noted sort of how the scars and the painful scars had affected him, and I also noted on examination some other changes of the scars, prior to changes, and he was conscious of the scar and there was colour contrast. So, I used the - the Chapter 13 table from the AMA guide, it's page 280, which is table 2, which is a Class 1 impairment. And then with the Tasmanian recommended path application using the TEMSKI, which the table for the evaluation of minor skin impairment, and I followed through the TEMSKI table, and he qualified for a two per cent impairment of a whole person. So - so, from the digestive system was 25 per cent and then from the skin, Chapter 13, was two per cent. And so, then you go through a process where you combine the two values, and using the particular table in the AMA 4 guides those two numbers are combined to 27 per cent. So, that's how I got to 27 per cent.

1. The worker also called evidence from Dr Siddarth Sethi, a consultant gastroenterologist and hepatologist. A report by Dr Sethi dated 19 January 2022 was tendered. In the history set out in the report Dr Sethi noted that the worker has experienced constant ongoing pain in the mid and lower abdomen since surgery, described as an electric shock and stabbing type of pain, which fluctuated in severity and is often severe and rated at 9/10. Bending over, walking, sneezing, coughing, tensing the abdomen and lifting heavy objects exacerbated the worker's pain. On examination he noted that the worker was 167cm tall and weighed 62kg. The worker's abdomen was soft and non-tender.
2. Dr Sethi considered that the worker's abdominal pain and weight loss are a direct result of his work injury. He noted that the worker had no previous history of abdominal pain prior to his work injury and that he experienced pain immediately after surgery which has persisted and been severe. In Dr Sethi's opinion the pain has likely arisen due to damage to nerves in the abdominal wall. He described the trauma to the abdominal wall as significant with the bowel perforation and defect in the abdominal wall requiring surgical repair. He considered it very likely that the worker suffered significant nerve damage which causes his current pain.
3. The history taken by Dr Sethi was that the worker's pre-accident weight was 75kg and that since the injury he has experienced poor appetite and nausea and had lost weight. Dr Sethi considered that this is likely caused by the analgesia prescribed for the worker's injury.
4. Dr Sethi undertook an assessment of whole person impairment of the upper gastrointestinal tract. He considered that there were symptoms and signs of upper digestive tract disease, anatomic loss and alteration and noted that drugs were required for control of the worker's symptoms. He observed that there was a loss of weight below desirable level which did not exceed 10%. He considered that the worker fell within class 2 in table 2 of chapter 10 of the AMA Guides, which provides for a range of 10% - 24% whole person impairment, and assessed the worker's whole person impairment of the gastrointestinal tract at 24%.
5. A proof of evidence of Dr Sethi dated 3 May 2024 was also tendered. Having reviewed the worker, Dr Sethi maintained the opinions expressed in his report. In particular, he maintained his opinion that the worker's weight loss resulted from nausea and poor appetite, and from a gastrointestinal cause rather than a psychological cause. He maintained his view that the worker's pain resulted from gastrointestinal injury.
6. The worker also called evidence from Dr Philip Reid, a psychiatrist. A report of Dr Reid dated 19 August 2022 was tendered. Dr Reid took a history which included the circumstances of the accident and the worker's subsequent treatment. He noted that the worker was using cannabis to self-medicate for pain. He stated that the worker experienced ongoing sleep disturbance caused by dreams and pain, having dreams of work events that had reduced from most nights to once a week. The worker experienced anxiety and felt nervous and on edge most of the day. His mood was low and he was sad at his predicament and loss of function. He had previously had a high degree of avoidance behaviour as a result of his anxiety, struggling to leave the house and fearful of further injury, which had slowly receded. The worker's lifestyle remained restricted. His routine was restricted by ongoing pain, having previously been active in sports, at the gym and in vehicle maintenance. He no longer performed most of his hobbies. He had a small friendship group and saw one close friend once or twice a week. The worker had contact with his family and saw them for dinner once a fortnight. His concentration, memory and focus were restricted and he found himself easily distracted. The worker estimated his weight as around 65kg
7. Dr Reid described the worker as often feeling overwhelmed at his current boarding arrangements and that he had the option to stay at his partner's parents to break up the week and limit the sense of tension in the home. He was still having contact with his partner and children and she often brought the children to him. The worker's mental state had taken a toll on their relationship and he argued frequently with his partner. They are largely separated but come together for the sake of the children.
8. Dr Reid referred to an earlier report by another psychiatrist who referred to the stabbing incident and a subsequent diagnosis of PTSD and anti-depressant use, but with a history of improvement four years prior to the work injury. Dr Reid diagnosed the worker with PTSD with a guarded prognosis as a consequence of the combination of the PTSD and chronic pain.
9. Dr Reid undertook an assessment of whole person impairment. He prepared an assessment form which reflected tables 7.1 to 7.5 inclusive in the Guidelines. Each table incorporate 5 classes, into which a best-fit of the worker is made.
10. In respect to table 7.1 Self-Care and Personal Hygiene, Dr Reid assessed the worker as being in class 2. Class 2 is described as: able to live independently, looks after self adequately, although may look unkept occasionally, sometimes misses a meal or relies on takeaway food. Dr Reid's assessment was that the worker was staying with friends and was able to live somewhat independently, but with some adaptions to self-care and meal preparation.
11. In respect to table 7.2 Social and Recreational Activities, Dr Reid assessed the worker as being in class 2, which is described as: occasionally goes out to social events without needing a support person, but does not become actively involved. Dr Reid's reasoning was that the worker reported a restricted lifestyle and rarely went to social events.
12. In respect to table 7.3 Travel, Dr Reid assessed the worker as being in class 1, which is described as: no deficit or minor deficits attributable to the normal variation in the general population - can travel to new environments without supervision. His reasoning was that the worker continued to drive independently with no particular restrictions from his mental health.
13. In respect to table 7.4 Social Functioning, Dr Reid assessed the worker as being in class 3 which is described as: previously established relationships severely strained, evidenced by periods of separation or domestic violence, spouse, relatives or community services looking after children. Dr Reid's reasoning was that the worker had separated from his partner.
14. In respect to table 7.5 Concentration, Persistence and Pace, Dr Reid assessed the worker in class 2, which is described as: can undertake a basic retraining course, or a standard course at a slower pace, can focus on intellectually demanding tasks for periods of up to 30 minutes then feels fatigued or develops headache. Dr Reid's reasoning was that the worker reported poor focus, concentration and memory and was inattentive and disorganised.
15. In respect to table 7.6 Adaptation, Dr Reid assessed the worker in class 5, which is described as: cannot work at all. Dr Reid's reasoning is that the severity of the worker's PTSD is such that the worker is not able to work in his former roles around machinery or any other role that he is qualified or trained in.
16. Those scores give a median class value of 2 and a total aggregate score of 15. Using the conversion table in table 7.7 of the Guidelines the combination of the median class score of 2 and the aggregate score of 15 is an 8% whole person impairment.
17. In examination in chief Dr Reid explained his approach to the classifications:

Thank you. Would you mind just briefly going through each of the categories and explaining what they relate to and how you've come to the class in each - each case?......I'm happy to but I think the overview is that in psychiatry we don't have a direct measure for the whole person impairment. So, it's based on a secondary assessment of their functioning. So, in psychiatry, conditions impair function. So, that's what we're measuring in this condition, in this paper. So, it would - created this document, looked at areas of impairment over a broad area of personal functioning from self-care to - to work, and they give guidance on severity of an impact from mild to severe. So, the classes represent the severity, and the categories are areas that are measured in functional ways reflecting impairments of the psychiatric illness. So, they're reasonably self-explanatory but my scores represent what I felt this patient had in the impact and reflecting on the training that was provided to give examples. So, for example, in the self-care, he wasn't - he was relying on some others for meal preparations. So, that's a mild impairment a class of two, given his post traumatic stress, he was less social, a score of two, and despite his post traumatic stress, chronic pain he was able to travel independently, so a score of one. But to his social functioning I scored him three, as I felt that his relationship had separated, there was a fundamental change secondary to his developing PTSD from his injury that his relationship had changed - relationships are all different in different manners but fundamentally his had changed. He certainly was wanting to spend time with his children, but he couldn't do it as he once did. So, I scored that as a three. He certainly reported poor focus and concentration, a score of two, and given the severity of his condition I felt that he was incapacitated for work.

1. Dr Reid was cross-examined at length concerning his assessment of the worker as within class 3 of table 7.4. He was not troubled by the off-and-on history of the worker's relationship with his partner prior to the incident. The following passage is illustrative of his view:

You've given him three on the social functioning for separating from his partner?......Yes.

If he was separated from his partner prior to the June injury you would have to revisit the three, wouldn't you?......Oh, I think that's the point, you know, how do you define a relationship - he had a continuous relationship, now it's fractured, which impacts on his partner and his children. So, I think sustaining and maintaining a relationship is very much around that point of that severity of function.

The fact that he's been living apart four or five nights a week for some six years prior to the subject injury would suggest that there's a bit of fracturing already involved, wouldn't it?......Well, I'd - people live different relationships, but I think the thing that really stuck is that something had changed. It wasn't the same relationship afterwards.

1. The employer called evidence from Dr David Gorman, a consultant general physician, pain management physician and medical oncologist. A report by Dr Gorman dated 22 June 2001 was tendered. In it Dr Gorman sets out the circumstances of the injury and subsequent medical treatment. He noted that the worker continued to have pain in the left lower quadrant, that he experienced pain on passing motions and had some faecal incontinence, that his appetite was poor and that he had lost weight from 75kg to 62kg. The worker reported tingling and hypersensitivity over the left lower quadrant with tenderness on light palpation. On examination Dr Gorman noted the worker's height at 162cm and his weight at 62kg.
2. Dr Gorman diagnosed abdominal wall sensitisation with perpetuation of symptoms due to fear avoidance behaviour from inactivity and deconditioning. He considered that the worker's depression and PTSD had magnified and perpetuated his pain.
3. Proofs of Dr Gorman dated 1 May 2024 and 2 August 2024 were tendered. In the first proof of evidence Dr Gorman undertook an assessment of whole person impairment based on his 2021 assessment of the worker. He expanded on that in the second proof. Dr Gorman did not consider that the worker's left lower quadrant pain was associated with the upper digestive tract. He considered that the worker may have scarring involving the nerves of the abdominal wall and that he may have developed a chronic pain outcome with his perception of pain being magnified by his psychiatric condition rather than it being explained by his original injury. Dr Gorman considered that the worker suffered no anatomic loss of the small intestine as the perforation was repaired by oversewing without any resection of the bowel. He did not considered that there were any organic changes or signs of upper digestive tract disease.
4. Dr Gorman considered that the worker's bowel motility problems of constipation and incontinence are best explained by his use of opioid medication and he considered that if the mediation ceased then the symptoms would cease.
5. In summary, Dr Gorman considered that the worker's main impairment related to his abdominal wall hypersensitivity and that he had no assessable gastrointestinal impairment.
6. In terms of scarring, Dr Gorman noted that the worker had a pre-existing long abdominal scar from previous abdominal surgery and that the laparotomy was carried out through that scar. He noted some colour contrast and that the scar would be easily able to be located and that there were no adhesions. He considered that the scarring equated to a 1% whole person impairment using TEMSKI but that his pre-existing scarring was the same. Subtracting the pre-existing impairment would result in a 0% impairment from the injury.
7. The employer also relied on a report dated 29 September 2017 and proofs of evidence dated 15 November 2017 and 31 July 2024 by Dr Andrew Jakobovits, a gastroenterologist. Dr Jakobovits report and proofs were tendered into evidence but the employer did not call Dr Jakobovits and he was not subject to cross-examination, although he was available.
8. In the report Dr Jakobovits described the circumstances of the accident and subsequent treatment. He referred to the stabbing incident and observed that an emergency laparotomy was undertaken following that incident and that the laparotomy was performed through the scar of the long vertical midline incision from the previous laparotomy. Dr Jakobovits noted that the worker complained of abdominal pain, mainly in the left iliac fossa, but radiating across the whole of the lower abdomen, which was a constant sharp burning sort of pain independent of position. He noted that the pain was worse before a bowel action and eased to some extent after a bowel action. He said that there were no other aggravating or alleviating factors.
9. Dr Jakobovits noted that the worker had taken opioid analgesics since the surgery and at the time of the report he was taking Metamucil and having three or four bowel actions per day which were urgent with occasional episodes of faecal incontinence. His sleep was interrupted by abdominal pain and his psychological condition.
10. Dr Jakobovits noted that the worker's appetite was poor and that his weight had dropped to below 60kg from a preinjury weight of 76kg. He experienced nausea which Dr Jakobovits considered was a side effect of the opioid analgesics.
11. On examination the worker was 160cm tall and weighed 57.2kg. Dr Jakobovits noted a 20cm vertical midline scar, a 2-3cm scar in the right upper quadrant from the stabbing and a 2-3cm scar below the umbilicus to the left from the work injury. The worker was tender to touch all over the abdomen, which Dr Jakobovits considered was exaggerated.
12. Dr Jakobovits noted that the work injury resulted in a small bowel perforation which was oversewn but that the worker continued to have incapacitating pain since the injury. He considered it likely that the worker had developed a chronic pain syndrome as a consequence of his injuries, depression and PTSD and that long term opioid analgesia had resulted in the development of a bowel motility disturbance. Dr Jakobovits did not believe that the small bowel perforation and its treatment was the cause of the worker's current symptoms.
13. In his first proof of evidence Dr Jakobovits undertook an assessment of whole person impairment. He considered that the assessment should be made as impairment of the upper digestive tract as the worker had an injury to the small intestine. He noted that the worker had both symptoms and signs, that he had pain and significant abdominal tenderness and that he had anatomical alteration in that he had had an operation on his small bowel. Appropriate medication did not control the worker's symptoms and he continued to have ongoing pain, although Dr Jakobovits did not consider that the pain and weight loss were related to the gastrointestinal tract but were more appropriately ascribed to his psychological symptoms. Dr Jakobovits concluded that from a gastrointestinal viewpoint the worker had a 10% whole person impairment.
14. In his second proof of evidence Dr Jakobovits confirmed his opinion that the worker's weight loss was not related to the pathology of his upper digestive tract and that there was no physical gastroenterological cause for the worker's abdominal pain, which he considered as psychogenic in nature. He referred to his opinion in his report that the repair of the small bowel could be regarded as an anatomic alteration but said that there was no loss of small intestine and no functional loss as a result of the injury. He confirmed his view that the worker's nausea, poor appetite, weight loss and altered bowel habit were a result of his taking opioid medications for pain control.
15. The employer did not call any psychiatric evidence.

1. Dr Sethi assessed the worker's upper digestive tract impairment as falling within class 2 in table 2 of chapter 10 of the AMA Guides. Dr Yong placed the worker's impairment in class 3. In assessing the gastrointestinal impairment at 10% Dr Jakobovits must have placed the worker in class 2, albeit at the other extreme to Dr Sethi. Dr Gorman considered that the worker had no assessable gastrointestinal impairment.
2. Table 2 in chapter 10 sets out classes of impairment of the upper digestive tract, which includes the small intestine. Class 2 establishes a range of 10% - 24% whole person impairment. The three criteria for inclusion in class 2 are:
   • Symptoms and signs of organic upper digestive tract disease are present, or there is anatomic loss or alterations; and
   • Appropriate dietary restrictions and drugs are required for control of symptoms, signs, or nutritional deficiency; and
   • Loss of weight below desirable weight does not exceed 10%.
3. The second and third criteria differ for class 3, which establishes a range of 25% - 49% whole person impairment, and the second and third criteria are expressed in the alternative:
   • Symptoms and signs of organic upper digestive tract disease are present, or there is anatomic loss or alterations; and
   • Appropriate dietary restrictions and drugs do not completely control symptoms, signs, or nutritional state; or
   • There is a 10% to 20% loss of weight below desirable weight that is ascribable to a disorder of upper digestive tract.

1. The employer cross-examined Dr Sethi and Dr Yong on the difference between signs and symptoms. Essentially, signs are objective clinical findings and symptoms are the subjective experiences of physical or mental changes caused by an injury or disease.
2. Clause 10.4 of the AMA Guides notes that for the small intestine:

Symptoms and signs of impairment include abdominal pain, diarrhea, steatorrhea, bleeding, obstruction and weight loss, which are often associated with general debility and other extraintestinal manifestations.

1. Dr Sethi considered that the injury to the worker's jejunum and its sequelae constituted symptoms and signs of organic upper digestive tract disease, meeting the first criterion of both class 2 and class 3. He said:

DEPUTY PRESIDENT: So, you consider that a sign and symptom of organic upper digestive tract disease?

WITNESS: Yes. That's correct. It is a sign and symptom, both, yes, in that because of the actual injury, it would classify as a sign, not just a symptom, so both a sign and a symptom, both.

But then focus on the word 'disease'. Is that a disease process?......It is a disease process in that the term disease is, of course, very broad and I think the injury could be regarded as a disease, that's correct. Yes, it could. I think the vast majority of my peers would think that way.

So - so from your point of view, you wouldn't need to see any - any further pathological progress or change to fit into that category of disease?......That's correct.

1. While at first blush it might seem unusual to consider the worker's injury in a category referring to disease, it is consistent with the language of the AMA Guides which do not contain a definition of injury but include a very broad definition of disease that would include the pathophysiological consequences of trauma, which may reflect their genesis and purpose as a tool for physicians rather than specifically for litigation:

Illness, Disease: An illness may be considered to be the summation of the physical, mental and other kinds of factors that are involved in an individual's less than optimal health status. A disease may be considered to be the specific pathophysiologic processes involved , which give rise to the individual's signs and symptoms and their progression.

1. In his evidence in chief Dr Sethi explained his view that the worker met the first criterion:

You have found that that paragraph is made out. Did you find signs and symptoms of organic upper digestive tract disease?......Yes, I did. The signs are that pain he's - the signs are the fact that he's had a scar - he had a scar from previous surgery, would clearly demonstrate that he's had organic damage which demonstrates - which is - which is the structural anatomical alteration in that there was an injury which required - which required operative repair, and the symptoms of the pain he's having. So he does have, by that criteria, both signs as well as symptoms.

Thank you. There's evidence about the surgery that he had, and I think you've seen the surgical report, consisted of an over-sewing of the perforation to the duodenum. Is an over-sewing of a perforation an anatomic alteration?......Yes, it is definitely an anatomical alteration. It cannot be regarded by - as anything else.

Thank you. Now, it's your view that the chronic pain condition that the worker is suffering from is due to the injury that he had at work. Are you of the view that the abdominal - sorry, that the pain is a reflection of the initial blunt force trauma or is there also a component of a side-effect of the surgery?......I think it's both. It's not only a side-effect of the trauma but also from surgery, in that the surgery has caused, because they've had to cut him open, so to speak, perform a laparotomy, that doesn't necessarily cause damage to the nerves in the intestinal wall. I think both factors have played a significant role here.

1. In respect to whether there was a continuing anatomic alteration Dr Sethi said:

Mm. So , there are - there is a continuing process of anatomical alteration in that he suffered a significant injury to the jejunum which required operative repair, that in my opinion, is leading to causing ongoing sequela, in that he's having - experiencing chronic pain - jejunum injury requiring him to take ongoing analgesic medications.

1. Dr Yong was comfortable that the worker satisfied the first criterion. He considered that the worker's tenderness on palpation and his weight loss were relevant signs and that nausea was a relevant symptom. He also considered that the worker had anatomic alteration from the small intestine perforation, although he did not consider that finding necessary to establish the criterion:

DEPUTY PRESIDENT: Now, if I can take you to page 239 of the AMA Guides and Table 2......Yes.

And the first paragraph of Class 2 and Class 3......Yes.

Okay. So, the first part of that paragraph refers to symptoms and signs of organic upper digestive tract disease. And Mr McTaggart took you at some length into what is a sign and isn't a sign......Yes.

So, is it your view that [the worker] falls into - satisfies that first aspect of the test, symptoms and signs of organic upper digestive tract disease by reason of the symptoms which he's complained of and those signs of tenderness and weight loss?......Yes.

And then it goes on to say, those - the signs of - symptoms and signs of upper digestive tract disease are present and then there's alternative or there is anatomic loss or alteration, does that - ......Yes.

• does that come into [the worker's] circumstances having regard to his surgery?......Well, it may, yeah - I mean it may. Certainly - I mean, 5 not the anatomical loss 'cause it's not like he has a section of bowel removed. But there is alteration. You know, there is - the argument is the blunt trauma, he had it sewn over. It's - there could be some - yeah, there can be an alteration. You know, you could, with any pipe you know, could cause a little kink or it could cause some issue with 10 alteration. So, you can - could be classified under that as well.

So, did you form a view that [the worker] fell into that category as well or did you just rely on signs and symptoms?......No. No, I just relied that he fit somewhere in that first paragraph. So, I was comfortable that he was in class 2 or 3 at that point after reading the first paragraphs. And then I went down through the different paragraphs and worked out the best fit.

Okay. So, you found symptoms and signs that it wasn't necessary to interrogate that any further, you could then go to the next step...... Yep. Yes, yes.

1. Dr Jakobovits apparently also considered that the worker satisfied the first criterion, saying in his proof of evidence of 15 November 2017:

[The worker] has both symptoms and signs in that he has pain and significant abdominal tenderness (probably related to the abdominal wall). He clearly has anatomical alteration in that he has had an operation on his small bowel.

1. Dr Gorman alone considered that the worker did not meet the first criterion. He considered that the repair of the perforation of the small bowel by oversewing did not constitute an anatomic alteration. He considered that the oversewing would heal completely and be invisible.
2. The admissibility of Dr Gorman's evidence in respect to impairment was challenged by the worker at the hearing. I ruled that Dr Gorman's evidence was admissible and gave reasons for that ruling. Having completed the core unit of study Dr Gorman is accredited by the WorkCover Tasmania Board to undertake assessments of whole person impairment under s 77C of the WRC Act. Dr Gorman has not completed the specific module for assessment of the digestive system. He has treated patients with abdominal conditions but is not a gastroenterologist and has not undertaken any study in gastroenterology other than in the course of his specialist general physician training. Dr Yong, Dr Sethi and Dr Jakobovits have each undertaken the training module in assessment of impairment of the digestive tract and Dr Sethi and Dr Jakobovits are specialist gastroenterologists. Dr Yong gave evidence that he sat as a presiding member and mentor on a Victorian medical tribunal that determined disputes concerning the assessment of whole person impairment. He gave evidence as to the advantage arising from undertaking the special module:

MR HILLIARD: Thank you, Deputy President. (Resuming) I'll take you straight to the question of assessment of the digestive system, which is noted on that certificate that you have. In relation to that accreditation, what advantages would that provide to you over someone who had not done that course in relation to the assessment of whole person impairment of the digestive system?......Well, I probably would say if you have not done the specific course on the digestive system you should not undertake the whole person impairment, if you have not undergone the certification for that.

And as to what it is that course has provided to you in relation to knowledge, what advantage do you think that gives you over someone who has not done the course? Apart from the accreditation issue, but as to the knowledge, what is your view in relation to the course itself and its provision of additional information to enable you to provide the assessment?......So, the course itself will give you specific information and learnings how to approach the assessment of each particular system, such as the digestive system. And you would need to do that course, and then the relevant case studies and, you know, pass the exam to then get your skills up to a level to where you would be accredited to undertake this assessment.

1. Dr Yong, Dr Sethi and Dr Jakobovits have the advantage described by Dr Yong. Dr Gorman said that he would defer to gastroenterologists in the clinical care of gastroenterological conditions. Dr Sethi and Dr Jakobovits are specialist gastroenterologists. On matters relating to impairment of the digestive tract I prefer the evidence of Dr Yong, Dr Sethi and Dr Jakobovits to Dr Gorman. Accordingly I am satisfied that the worker meets the first criterion in both class 2 and class 3.

1. The worker used stool softeners to help with his painful motions, but they worsened his faecal incontinence. He now uses dietary restrictions to reduce his symptoms but still experiences incontinence. He takes analgesic medication but continues to experience significant pain. The worker will satisfy the second criterion in both classes if his incontinence is a sign of upper digestive tract disease or if his abdominal pain is from his upper digestive tract.
2. The signs and symptoms of impairment set out in clause 10.4 do not include incontinence. Weight loss has been identified as a sign, but there was no evidence of drugs being used to treat the weight loss, nor that it, as opposed to the worker's incontinence, is being treated with dietary restriction. Dr Jakobovits considered that the worker has a bowel motility disturbance related to his use of opioid analgesics. He considered that medication is required for the treatment of symptoms of his upper digestive tract disease. He considered that appropriate dietary restrictions and drugs do not completely control the worker's symptoms. Dr Sethi also considered that the medication was required because of the worker's organic upper gastrointestinal condition.
3. The cause of the abdominal pain, which has a clear temporal link with the injury and surgery, is not certain. Dr Sethi considered that the pain results from nerve damage caused by the blunt force trauma and surgery. He said that it was highly unlikely to be from anything else. He considered that the nerve damage was in the worker's abdominal wall considered that that reflected upper gastrointestinal tract pathology, as the abdominal wall reflects pathology felt in the small intestine.
4. Dr Jakobovits also considered that the genesis of the worker's pain was his abdominal wall, and he also apparently accepted it as assessable under table 2 in Chapter 10, given that he made an assessment of whole person impairment.
5. Dr Gorman, who has expertise in pain management, accepted that the worker experienced pain as a consequence of his work injury. He considered that the worker's pain is related to the abdominal wall and is magnified by his psychological condition. He considered that assessment of the abdominal wall, except in respect to hernias of the abdominal wall which may impact on bowel function, does not fall within chapter 10 of the AMA Guides. Again, Dr Gorman is the dissenter, and for the reasons already described I prefer the opinions of Dr Yong, Dr Sethi and Dr Jakobovits.
6. I am satisfied that the worker experiences symptoms and signs, as identified by Dr Yong and Dr Sethi, that they result from the worker's upper digestive tract injury and that they are not completely controlled by dietary restrictions and drugs, satisfying the second criterion in class 3.

1. The worker told Dr Sethi, Dr Jakobovits and Dr Gorman that his pre-injury weight was 75 kg. He told Dr Yong that it was 70 kg or 71 kg, one of which is likely a typographical error in Dr Yong's report. The only objective record of the worker's weight prior to the injury in June 2016 was a note by his GP some six years earlier on 29 June 2009 at 56 kg. The worker's evidence was that he lost weight after the stabbing, in 2006, and that from around 2008 he made an effort to increase his weight, using protein shakes, weightlifting, cross-fit training, boxing training and soccer. A group photo of the worker's soccer team taken in 2012 was tendered. In it he appears neither under or over-weight. His evidence was that his weight during his employment with the employer was between 70 - 75 kg.
2. The hospital records for the workers admission immediately after his injury do not record his weight. The first note of the worker's weight after the accident is 68 kg in a hospital admission record in December 2015, about six months after the injury, referred to by Dr Yong. His GP records first note post-injury weight in June 2016 about 12 months post-injury, at 59.7 kg. This tends to confirm the worker's evidence of his pre-injury weight and shows a significant drop in weight after the injury.
3. The worker then had a progressive increase in weight, reaching 63.9 kg in August 2028. His weight then fluctuated to 62 kg in March 2019, 65 kg in August 2019, 60.5 kg in December 2029 and 62.6 kg in December 2021. The workers weight was noted by Dr Yong in June 2017 at 60 kg, Dr Jakobovits in September 2017 at 57.2 kg, Dr Gorman in June 2021 at 62 kg, Dr Sethi in January 2022 at 62 kg, Dr Reid in August 2022 at an estimated 65 kg and Dr Yong in May 2024 at 53.9 kg. His weight at the date that his evidence was taken was 57.9 kg.
4. Dr Jakobovits accepted that the worker has experienced weight loss, but considered that it resulted from long term opioid use rather than a gastrointestinal disorder. If Dr Jakobovits is correct it does not necessarily mean that the causal connection between the upper digestive tract injury and the weight loss is broken. Consideration of factual causation is to be determined on the facts of the case, is not limited to the immediate proximal cause of injury and requires "a commonsense evaluation of the causal chain": Kooragang Cement v Bates (1994) 35 NSWLR 452 at 463, see also March v. E & MH Stramare Pty. Ltd. [1991] HCA 12; (1990-91) 171 CLR 506, Stephen Mervyn Jones v Devonfield Enterprises [1996] TASSC 11 and Ling v Incat Tasmania [2000] TASSC 87 [16]-[18]. Although the worker has a history of being prescribed analgesic medication there is a clear temporal and causal link between his injury, the surgery, his complaints of pain, his treatment with opioid analgesic medication and his weight loss, even if the mechanism is by way of side effects of the medication. The consequences of medical treatment of an injury do not constitute a break of the causal chain, even if negligently given: Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37 [7].
5. Clause 10.1 provides that 'desirable weight' is to be determined, where possible, by history or from previous medical records, as the weight before onset of the relevant disorder that the patient considers was usual and customary. Where such a weight cannot be determined by history or medical records then the chapter provides a table. None of the experts referred to the table. The evidence as to the worker's pre-injury weight at 70-75 kg is uncorroborated. It is supported by the admission record in December 2015, but there is a significant degree of uncertainty. Ten per cent of a pre-injury weight of 70 kg is 7 kg, such that a 10% loss of pre-injury weight would be a reduction to 63 kg. He is below that weight currently, but has clearly experienced weight fluctuations since 2015. I can be satisfied that the worker has experienced loss of weight below desirable weight. The worker therefore falls within class 2 in respect to the third criterion. The recorded fluctuations of weight have all been under 63 kg except for a GP measurement in 2019 and an estimate in 2022. The worker's current weight is well under 63 kg. On balance, I am satisfied that the worker also meets the criterion of 10%-20% weight loss for the purposes of the third criterion in class 3.

1. I am satisfied that the worker falls to be assessed under class 3. I am satisfied that the meets the first criterion. If I am wrong in my conclusions as to either of criteria two and three, that wrong criterion will drop away, as the second and third criteria are in the alternative, and the worker will still fall for assessment within class 3.
2. The only doctor who assessed the worker in class 3 was Dr Yong. His assessment of 25% is at the bottom of the range of 25%-49% in that class. Dr Sethi assessed the worker at the top of the range in class 2, at 24%, which lends support to Dr Yong's assessment at 25%. Indeed, in his evidence in chief Dr Sethi said that if the worker's weight loss moved him into class 3 he would assess impairment at 37% as the mid-point of the range. Dr Jakobovits put the worker at the bottom of the range of class 2. He did not explain his reasoning for that percentage. As Dr Jakobovits was not presented for examination and cross-examination his evidence was not tested and he did not have the opportunity to expand on his reasons for assessment. The weight of the opinions in his report are therefore lessened in comparison to those of Dr Yong and Dr Sethi.
3. I accept Dr Yong's assessment at 25%, being the only assessment under class 3, and being a conservative assessment at the bottom of the range.

1. Although the employer disputes the assessment of whole person impairment in respect to the psychological injury, it was not disputed that the injury was a primary injury and not secondary to the physical injury. The significance of this is that pursuant to s 72(2)(a) of the WRC Act a secondary psychiatric injury is not to be included in the assessment of whole person impairment of an injury.
2. The degree of impairment claimed by the worker for the psychiatric injury is less than the 10% threshold required under s 71(2) of the WRC Act, however as the physical injury exceeds the threshold of 5% in s 71(1)(b) the psychiatric impairment may be combined with the physical impairment notwithstanding that it does not meet the 10% threshold: Coad v Tasmania [2021] TASFC 2 [46].
3. The only expert evidence as to psychiatric impairment was that of Dr Reid. The employer contended that Dr Reid's assessment was largely based on an unreliable history provided by the worker and as a consequence is either totally unreliable or excessive. The worker did not inform Dr Reid of the woodyard injury when he was 18. Dr Reid was aware of the stabbing incident, the prior diagnosis of PTSD and the worker's use of anti-depressant medication, albeit from medical reports by two other psychiatrists provided as part of his brief rather than a history provided by the worker. The worker's evidence at the hearing indicated a higher level of social engagement and self-care than reflected in Dr Reid's report, noting that it was prepared in late 2022, matters that might support reclassification within tables 7.1 and 7.4. If the worker moved down a class in one or both of those tables his median class score would not alter, but the conversion table would reduce his impairment to 7%. It should be noted, that as explained by Dr Reid, the assessment of psychiatric impairment bears heavily on clinical judgment and there is no certainty that those matters would result in a lower assessment.
4. Dr Reid was cross-examined at length concerning his view that the worker's relationship with the mother of his children was severely strained given that the periods of his engagement with her and the children are similar to what they were pre-injury, however he was not shaken in his assessment.
5. Dr Reid agreed that if the worker had a pre-existing impairment he would need to consider whether there should be a deduction, but he did not have the history of depression and did not undertake an assessment of any pre-existing impairment. Given the worker's evidence of his level of functioning prior to the work incident it is not clear that there would have been an assessable pre-existing impairment, as opposed to perhaps a pre-disposition to psychiatric injury. Both are merely speculative.
6. Given the employer's contentions it is a little surprising that it did not lead any expert psychiatric opinion. The only expert psychiatric witness was Dr Reid. It may be that another expert might differ from his assessment, but the facts underlying his opinion were not disproved and his process of reasoning was not established to be unsound.
7. I therefore accept Dr Reid's opinion and assessment and find that the worker has an 8% impairment of his whole person as a result of his psychiatric condition from the work incident.

1. Dr Yong assessed the worker as having a 2% whole person impairment for scarring. Dr Gorman has assessed the impairment at 1%.
2. A note to TEMSKI provides:

This table uses the principle of 'best fit'. You should assess the impairment to the whole skin system against each criteria and then determine which impairment category best fits (or describes) the impairment. A skin impairment will usually meet most, but does not need to meet all, criteria to 'best fit' a particular impairment category.

1. The differences between 1% and 2% are, with (i) referring to the criteria for 1% and (ii) referring to the criteria for 2%:

1. Contrast: 1. some parts of the scar(s) or skin condition colour contrast with the surrounding skin as a result of pigmentary or other changes; and 2. noticeable colour contrast of scar(s) or skin condition with surrounding skin as a result of pigmentary or other changes. 2. Trophic changes: 1. minimal trophic changes; and 2. trophic changes evident to touch.

1. Visibility: 1. anatomic location of the scar(s) or skin condition is not usually visible with usual clothing / hairstyle; and 2. anatomic location of the scar(s) or skin condition is usually visible with usual clothing / hairstyle.

1. Activities of daily living: 1. negligible effect on any ADL; and 2. minor limitation in the performance of few ADL
2. Dr Yong explained in his report the components, including trophic changes and observing notable colour contrast, leading to his conclusion of 2%. Dr Gorman did not refer to trophic change in his report and stated that "I believe that currently there is some colour contrast". In his evidence in chief he said: "I think I just assessed that rather than a marked colour change, there was just some colour contrast, so I didn't think it was a marked difference - a marked pigmentation, enough to push it up to 2 per cent". I note that Dr Gorman's assessment was undertaken almost three years after he saw the worker without review, while Dr Yong's assessment of impairment was contemporaneous with his assessment of the worker. I prefer Dr Yong's assessment.
3. However, the Guidelines require that any assessable pre-existing impairment should be taken into account. Clause 1.30 provides:

1.30 The assessment of the degree of permanent impairment may be complicated by the presence of an impairment in the same region that existed prior to the relevant work-related injury. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the work-related injury, then its value should be calculated and subtracted from the current whole person impairment value. If there is no objective evidence of pre-existing symptomatic permanent impairment, then its possible presence should be ignored.

1. The only assessment of pre-existing impairment is that by Dr Gorman, at 1%. That impairment should be deducted from Dr Yong's assessment.
2. I find that the worker has a 1% impairment of his whole person as a result of scarring from the work injury.

1. The AMA Guides include a chart for the combining of separately assessed impairment values. Applying the values of 25%, 8% and 1% to that chart results in a combined impairment of the whole person of 32%.

1. For the purposes of s 71 the worker's whole person impairment is 32%. For the purposes of s 138AB his permanent impairment is not less than 20%. For completeness, I note that in Dr Jong's and Dr Sethi's reports the Tribunal has been provided with statements satisfying s 138AB(3)(a).
2. Accordingly:
   1. The worker's permanent impairment of his whole person resulting from the injuries sustained as a consequence of the work accident on 26 June 2016 is 32%.
   2. Pursuant to s 138AB(3)(b) of the Workers Rehabilitation and Compensation Act 1988 the degree of permanent impairment of the worker resulting from the injuries sustained as a consequence of the work accident on 26 June 2016 is not less than 20% of the whole person.
   3. It is noted for the purposes of s 138AB(3)(a) of the Workers Rehabilitation and Compensation Act 1988 that there has been provided to the Tribunal a statement in writing, signed by a medical practitioner, certifying that, in the opinion of the practitioner, the degree of permanent impairment of the worker resulting from the injury is not less than 20% of his whole person.
   4. The parties are to file a memorandum of agreed proposed orders in respect to the costs of the referrals within 21 days from the date of this determination. In the event that proposed orders are not agreed any application for costs is to be filed and served within a further 14 days together with submissions.