WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether the Medical Assessor (MA) erred by not making a deduction under section 323(1); Appeal Panel found MA erred because the evidence demonstrated that the respondent had a pre-existing condition and that a proportion of her permanent impairment from her injury was due to that pre-existing condition; Held - Medical Assessment Certificate revoked.

1. On 5 December 2025 the Secretary of the Department of Communities and Justice, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Alan Doris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 November 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. Teesha Maree Cotic, the respondent, commenced employment in 2015 as a sheriff's officer with the New South Wales State Government, working within the Department of Communities and Justice. The appellant is, in accordance with ss 21 and 26(1) and Part 1 Schedule 1 of the Government Sector Employer Act 2013, the employer of the respondent.
2. Due to the behaviour of another employee of the appellant from December 2018, the respondent suffered a psychological injury. She has been unable to work since 21 May 2020 as a consequence of that injury.
3. Relying on a report dated 24 March 2025 that her solicitors obtained from consultant psychiatrist Dr Terrance Lim, the respondent claimed compensation for permanent impairment resulting from her psychological injury of the order of 42% whole person impairment (WPI).
4. On 22 April 2025 the solicitors acting for the appellant wrote to the respondent's solicitors advising them that the appellant offered to settle the respondent's claim by paying her compensation for 20% WPI. The appellant's solicitors also advised that the appellant relied on a report they had obtained from psychiatrist Dr Russel Davies dated 18 July 2025.
5. Subsequent to that correspondence, the respondent lodged with the Personal Injury Commission (Commission) an Application to Resolve a Dispute dated 16 September 2025, seeking the Commission determine her claim for compensation for permanent impairment from her injury. Following the appellant filing a reply to that, a delegate of the President of the Commission referred the matter to the Medical Assessor to assess several medical disputes relating to the respondent's claim, including the degree of permanent impairment of the respondent as a result of her injury and whether any proportion of her permanent impairment is due to any previous injury or pre-existing condition or abnormality and the extent of that proportion.
6. In the MAC the Medical Assessor certified he assessed the degree of the respondent's permanent impairment from her psychiatric illness comprising her injury is 22% WPI. No issue has been raised regarding the correctness of that assessment in terms of it being the degree of the respondent's permanent impairment from her psychiatric illness. The challenge the appellant raises in his appeal against the medical assessment relates to the Medical Assessor assessing that no proportion of the respondent's permanent impairment is due to any previous injury or pre-existing condition or abnormality, the consequence of that being is the Medical Assessor did not in his assessment of the respondent's permanent impairment from her injury make a deduction under s 323(1) of the 1998 Act.
7. Relevant to that issue, the Medical Assessor recorded in the MAC that the respondent was diagnosed with an anxiety disorder approximately 20 years ago and that she was then commenced on Dothiepin by her general practitioner. The Medical Assessor also noted from the records of the general medical practice at which the respondent has attended in recent time an entry on 13 March 2018 recording the respondent had presented with a depressed mood in the context of both her father being diagnosed with a serious illness and work pressures. The Medical Assessor further noted from that entry that the respondent's general practitioner increased the respondent's Dothiepin from a half tablet to one tablet.
8. The Medical Assessor had regard to a referral that the respondent's general practitioner,

Dr David Jones, wrote to psychiatrist Dr Stuart Saker on 22 March 2022, in which Dr Jones described the respondent's workplace injury and noted a past history of the respondent having depression in 2006. 9. The Medical Assessor also recorded "there is consistent prescription of Dothiepin 75mg and reference to psychological treatment". The Medical Assessor also noted that the notes recorded "previous use of Sertraline" but did not specify details for that or for how long. It is apparent that these observations of the Medical Assessor were based on his review of the clinical records kept by the general medical practice at Charlestown at which the respondent had been attending. 10. The Medical Assessor also referred to a report of Dr Russel Davies dated 28 August 2023 in which Dr Davies advised he assessed the respondent had a permanent impairment of 19% WPI and that one-tenth of that was due to a pre-existing condition with the result being that the respondent's permanent impairment resulting from her injury at that time was 17% WPI. With respect to the deduction Dr Davies made the Medical Assessor commented as follows:

"While Ms Cotic has had pre-existing problems with anxiety I do not believe there was evidence of impairment prior to the workplace injury. A deduction for a pre-existing condition is not appropriate."

1. For completeness, the Appeal Panel observes that this report of Dr Davies related to a consultation he had with the respondent on 28 August 2023, which the appellant's insurer had arranged. Dr Davies again examined the respondent on 18 July 2025, this time at the request of the appellant's solicitors, and in his report of that date advised he assessed the respondent's overall permanent impairment from her injury is 22% WPI of which he deducted 10% that he said was due to "pre-existing impairment". In that report Dr Davies also advised that the respondent "has further enunciated today within the course of our second meeting, clear history indicative of a prior anxious and possibly depressive disorder". When his two reports are compared however, it is not apparent what history he obtained at his latter meeting with the respondent that is "indicative of a prior anxious and possibly depressive disorder".

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 respondent to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for the Appeal Panel to deal with the appeal.

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. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
2. In summary, the appellant submitted that the Medical Assessor made an error by not finding the respondent had a pre-existing condition that formed a proportion of her permanent impairment from her injury. The appellant referred to the history Dr Lim obtained and set out in his report of 24 March 2025 in which he noted the respondent was prescribed Dothiepin about 10 years ago for anxiety following complications the respondent experienced from hearing loss surgery. The appellant referred to the history that Dr Davies obtained and detailed in his report of 18 July 2025 that the respondent experienced emergent symptoms of anxiety and low mood around the age of 40 corresponding with a period in which she had treatment for hearing loss. The appellant also referred to the clinical records the respondent's general medical practice kept relating to the respondent, that the appellant contended revealed the respondent had issues relating to her mental health prior to her work injury.
3. The appellant submitted that the Medical Assessor failed to consider whether the psychological conditions that it contends the clinical records revealed the respondent suffered in 2009, 2018 and 2019 causally contributed to her current impairment from her work injury.
4. The appellant submitted that the Medical Assessor failed to provide sufficient reasons why s 323 could not be engaged on the available evidence.
5. In reply, the respondent submitted that evidence does not support she had a pre-existing condition. The respondent submitted that the appellant's submissions are to the effect that s 323 was to be engaged because she had suffered from psychological symptoms some years prior to her work injury. The respondent submitted that is not the relevant test. The respondent submitted that the Medical Assessor was aware that she had difficulties with anxiety in the aftermath of unsuccessful surgery in 2010. The respondent submitted that the Medical Assessor rightly determined that there was no convincing evidence of any significant pre-existing psychological disorder.
6. The respondent submitted that it is clear from the MAC that the Medical Assessor had regard to the clinical records and the Medical Assessor was consequently aware of her having a prescription for an anti-depressant. The respondent submitted that the Medical Assessor has applied his clinical judgment to conclude that no portion of her impairment is due to a pre- existing condition.

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.
3. The Appeal Panel agrees with the appellant's submission that the Medical Assessor erred by not finding the respondent had a pre-existing condition.
4. The respondent's injury occurred due to her being exposed in the period after December 2018 to toxic behaviour from another of the appellant's employees. Any pre-existing condition she had, for which deduction is to be made under s 323(1) of the 1998 Act, must have existed at that date, that is December 2018.[1] That pre-existing condition must also form a proportion of her current permanent impairment from her injury, in the sense that her pre-existing condition makes a difference now to the outcome of the degree of her impairment resulting from the work injury. In other words, the respondent's pre-existing condition as at December 2018 must now make the degree of her impairment greater than it would otherwise have been as a result of her work injury.[2]
5. Returning again to the issue of whether the respondent had a pre-existing condition, the Appeal Panel notes from the clinical records kept by the general medical practice at Charlestown at which the respondent attended, that the respondent had been for some years prior to December 2018 prescribed Dothiepin at a daily dosage of 75mg. That medication is a tricyclic anti-depressant used to treat major depression particularly after other therapies have failed. The respondent reduced her daily dosage to 25mg on 23 February 2016 but she was returned to her higher daily dosage of 75mg on 13 March 2018 following her consulting a general medical practitioner on that day. That is a date some six months prior to the respondent being exposed to the toxic behaviour of her fellow employee from which her injury arose. The history the medical practitioner recorded relating to that consultation included that the respondent's father had been diagnosed with prostrate cancer, that the respondent had been experiencing some stress at work, that she had a history of depression, that she was not coping at all, that she wants some time off work, and that she is currently on half a tablet of Dothiepin.
6. Following the consultation of 13 March 2018, the respondent remained on a daily dosage of Dothiepin of 75mg.
7. The Medical Assessors members of the Appeal Panel consider that this history reveals that the respondent had prior to December 2019 been suffering from major depression. This was well managed with Dothiepin. When however that medication was titrated down, the respondent became unable to deal with stressors such that she had a recurrence of her major depression necessitating an increase in the dose of Dothiepin. The recurrence of her depression occurred prior to the stressors within her workplace from which her current work injury arose.
8. It is thus the case that at the relevant date, that is December 2018, the respondent suffered a pre-existing condition of depression.
9. The Appeal Panel also considers that the respondent's pre-existing condition of depression results in her impairment from her work injury being worse than would otherwise have been the case if she had not suffered the condition. The respondent's injury is, in substance, a recurrence and worsening of her illness of depression. Had she not had her illness previously, her impairment now would not be as severe. Her pre-existing condition necessarily contributes to her current level of impairment.
10. Paragraph 11.10 of the Guidelines provides the instructions to a Medical Assessor, or an Appeal Panel in the Medical Assessor's place, on the method a Medical Assessor or an Appeal Panel must follow when determining the deduction to be made pursuant to s 323(1) of the 1998 Act. That paragraph that is issued by SIRA pursuant to its authority under ss 323(4) and 376 of the 1998 Act is valid and must be applied by a Medical Assessor or an Appeal Panel.[3] The evidence here does not enable the Appeal Panel to rate the respondent's pre-injury level of functioning in each of the psychiatric impairment rating scale categories. The evidence is not sufficient to determine what her functioning was in December 2018. As the Appeal Panel has indicated above, it finds that the respondent's pre-existing condition of depression does contribute to her current level of impairment. Consequently, in accordance with the last sentence of paragraph 11.10, the deduction to be made must be one-tenth.
11. In summary, the Appeal Panel finds that the MAC contains a demonstrable error because the Medical Assessor was wrong not to conclude the respondent had a pre-existing condition and that that pre-existing condition contributes to her current level of permanent impairment from her work injury. Applying paragraph 11.10 of the Guidelines, the Appeal Panel assesses the deductible portion for the purpose of s 323(1) of the 1998 Act is 10%.
12. For these reasons, the Appeal Panel has determined that the MAC issued on

7 November 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

Secretary, Department of Communities and Justice

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 Alan Doris 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)

[1] Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 at [47]- [58]; Craigie v Faircloth & Reynolds Pty Ltd [2021] NSWSC 1211; Oswell v Subline Instore Pty Ltd [2024] NSWSC 1586 at [85]- [92].

[2] Ryder v Sundance Bakehouse [2015] NSWSC 526 at [45].

[3] Matheson v Baptist Care NSW & ACT [2025] NSWSC 213 at [22]- [29] and [35].