Woolworths Group Limited v Ayres [2022] NSWPICMP 354

WORKERS COMPENSATION- Appeal in respect of assessment of psychological area of function "concentration, persistence and pace" and against Medical Assessor's (MA) reasoning with respect to deduction for pre-existing condition; moderate impairment classification and finding of no deduction for pre-existing condition challenged as contrary to the available evidence; Held - the reasons given by the MA did not take into account certain aspects of the evidence with respect to undertaking a TAFE course; error also established because the MA based his reason for making no deduction in respect of a pre-existing depressive condition upon the absence of impairment at the time of commencement of employment; discussion of application of paragraph 11.10 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 and section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act); Marks v Secretary Department of Communities and Justice referred to; assessment of moderate impairment confirmed upon re-examination; deduction of one tenth for pre-existing condition applied pursuant to section 323 of the 1998 Act.

1. On 9 May 2022 the appellant, Woolworths Group Limited, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Baker, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 April 2022.
2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
   • the assessment was made on the basis of incorrect criteria,
   • 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 grounds of appeal on which the appeal is made.
4. 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 the PIC Rules.
5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines).

1. The respondent to the appeal, Karan Jane Ayres, suffered a psychological injury in the course of her employment with the appellant, Woolworths Group Limited. The injury was caused by a series of events over a period of time in the workplace and is deemed to have occurred on 19 June 2019 (the subject injury).
2. Mrs Ayres developed symptoms and consulted medical practitioners in 2016. She was referred to a psychiatrist, Dr Cross, for treatment. Mrs Ayres continued to experience difficulties in the workplace, although at a different location. In 2018 Mrs Ayres was admitted to a psychiatric hospital and was treated with electroconvulsive therapy. She continued to suffer psychological symptoms and her employment was terminated by the appellant in 2019.
3. Mrs Ayres continued to receive treatment from her general practitioner, a clinical psychologist and a psychiatrist. She was prescribed pharmaceuticals. She underwent further admissions to a psychiatric hospital.
4. In April 2020 Mrs Ayres was examined by a consultant psychiatrist, Dr Frank Chow, at the request of Mrs Ayres's solicitors for the purposes of assessment for a claim for lump-sum compensation pursuant to s 66 of the Workers Compensation Act 1987. Dr Chow noted a history of physical injuries in the course of employment. He diagnosed Mrs Ayres as suffering a major depressive disorder and assessed her by way of the Psychiatric Injury Rating Scale (PIRS) as suffering 24% whole person impairment (WPI).
5. Mrs Ayres's solicitors made a claim for lump-sum compensation in accordance with Dr Chow's report. The insurer had previously had Mrs Ayres examined by a consultant psychiatrist, Dr Graham George, in March 2020. At that time Dr George reported that Mrs Ayres had a pre-existing psychological condition which may have been aggravated by events in the workplace.
6. The insurer arranged a further examination by Dr George who next saw Mrs Ayres on 19 August 2020. At that time, he noted Mrs Ayres's further history but was of the opinion that her condition had not reached maximum medical improvement and did not permit of assessment of impairment. The insurer accordingly declined the claim.
7. Mrs Ayres's solicitors filed an Application to Resolve a Dispute in the Personal Injury Commission. The medical dispute was referred to the Medical Assessor who examined Mrs Ayres on 22 March 2022. The Medical Assessor diagnosed Mrs Ayres as having a persistent depressive disorder with anxious distress (DSM 5 Code 300.4). The Medical Assessor assessed Mrs Ayres in accordance with the Guidelines by means of the PIRS. He assessed the respective areas of function as follows:

Self-care and personal hygiene - 3 (moderate impairment)

Social and recreational activities - 3 (moderate impairment)

Concentration, persistence and pace - 3 (moderate impairment)

1. The Medical Assessor, noting the median score of three and an aggregate score of 19, assessed Mrs Ayres as suffering 24% WPI in accordance with Table 11.7 of the Guidelines. The Medical Assessor made no deduction in respect of any pre-existing condition or abnormality or any previous injury pursuant to s 323 of the 1998 Act.

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties. As a result of that preliminary review, the Appeal Panel determined that the worker should undergo a further medical examination. Having determined that demonstrable error was established, there was insufficient information available to the Panel to complete an assessment of the extent of impairment resulting from the subject injury.

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. Dr Douglas Andrews of the Appeal Panel conducted an examination of the worker on 30 August 2020 and reported to the Appeal Panel. His report was as follows:

1. The worker's medical history, where it differs from previous records

I conducted a 70-minute assessment of Ms Ayers, allowing for a review of any changes in her condition since the Certificate of MA Baker on 11 April 2022, an update of symptoms, a review of activities of daily living relevant to the WorkCover impairment categories and revision of the history relating to any pre-existing conditions.

Ms Ayers continues to reside in Queensland with her husband, Steve, a security officer, and her daughter, who will stay temporarily during a transition. Ms Ayers's son, daughter-in-law and grandchildren live just five houses away.

Ms Ayers left work in June 2019 and has not worked in any paid capacity since. From May/June 2021 until September 2021, she did volunteer work for We Are Community, an organisation that provides food to people in need. She attended only two hours a week and quit because she found it too challenging. She was admitted to the hospital at Northside Clinic McArther for several weeks during October 2021.

She continues to see her psychiatrist, Dr Mark Cross, once or twice a month and psychologist, Ms Ellie Maroun, weekly by video link. Her medications remain unchanged from 11 April 2022.

Ms Ayers has continuing pervasive depression with anhedonia and diurnal variation.

She is anxious with avoidant behaviour and tends to catastrophise.

She is irritable and prone to anger, often directed at her family.

She has frequent suicidal thoughts without plans or intent. She had been self-harming by cutting until one year ago.

She goes to bed between 11 PM and 3 AM, falling asleep quickly with medication. Her sleep is fitful and often disturbed by unpleasant dreams.

I agree with the MA's diagnoses: a persistent depressive disorder with anxious distress and an ongoing major depressive episode.

Ms Ayers generally wakes at 7 AM and spends most of her day watching television, favouring current affairs programs such as Sunrise and The Morning Show, crime documentaries and crime shows on streaming services. She is often distracted and doesn't follow the narrative of the show.

She does housework, such as laundry or cleaning but leaves much to her husband, who also shops and prepares meals. She showers about twice a week without prompting from family members. She neglects teeth-brushing and has poor dental health. She does not exercise. She eats about one meal daily, grazing on easily prepared foods at other times. Her weight has remained stable; at 95 kg and 175 cm, her BMI is 31.4, in the obese range.

She is avoidant leaving home and no longer socialises with friends. She will infrequently attend family celebrations. For example, she recently went to a theatre restaurant, Dracula's, to celebrate a birthday. She found it stressful to be in a crowded place but persisted. She occasionally goes to a café with her husband. She won't do these activities without a support person. She is dependent on her husband and would struggle to live alone.

She rarely leaves home alone, preferring to have a family member with her for support. In the last few months, she has driven to the airport, a one-hour drive, and Dracula's on the Gold Coast, a two-hour drive. These are journeys to familiar places with family support.

Her relationships with all family members are strained because of her irritability and continuing depression. Nonetheless, she remains close to her husband, son, daughters, in-laws and grandchildren. She has lost most friends because of her social disengagement and poor communication but has one remaining friend in Sydney with whom she keeps in touch by phone or messaging.

She had been enrolled in a TAFE course studying graphic design in the middle of 2021. The course was to continue until the end of the year, but she quit in August. She could not keep up with coursework and assignments and felt unable to continue. She said, 'I didn't get it; my brain didn't compute.'

She was interested in family history and craft work but hasn't persisted with these hobbies.

She previously enjoyed reading novels by Stephen King, Dean Koontz, and James Patterson but now no longer reads because of attention and concentration challenges.

Reviewing all of the impairment categories in the PIRS table, the ratings given by the MA for self-care and personal hygiene, social and recreational, travel, social functioning, and employability are consistent with the history provided by Ms Ayers today and were open to the MA when he made his assessment and should stand.

The appellant employer specifically challenged the MA's Class 3 rating for concentration, persistence and pace, a rating that IME psychiatrist Dr Frank Chow had also determined in April 2020. Among other things, the appellant relied on these arguments:

7. The Appellant Employer draws particular attention to entries from the Respondent Worker's admission in late 2021 as follows [from page 125 of AALD]:

a) The Respondent Worker presented with 'fairly good rapport' and 'good insight'.

b) The Respondent Worker 'can attend groups, gym and yoga'. The Respondent Worker' attended 90 minutes of Resilience and 90 minutes of behavioural activation and was actively listening.' The Respondent Worker also 'participated in group activity focusing on practical skill building benefits'. She was observed to be 'engaging well in craft making, creative thinking and group conversation.' The Respondent Worker 'was able to take in what was discussed.'

c) The Respondent Worker is undertaking a TAFE course online with Classes on Monday, Wednesday and Friday. She was 'observed to be attending homework from TAFE'.

11. The MA does not otherwise consider the Respondent Worker's progress in a TAFE course, which would certainly require a greater level of concentration, persistence and pace than an inability 'to read more than a few lines of text before becoming agitated and abandoning the text' as recorded by the MA (at page 5)

The ability to establish rapport or to achieve insight does not go to the issue of concentration, persistence and pace.

The respondent worker attended psychological treatment, gym and yoga groups, as described by the appellant, while an inpatient in a psychiatric hospital. These programs are designed to support and treat people with severe mental illness, who are usually highly impaired during their inpatient stay. While group attendance is not mandatory, it is expected and encouraged. The bar is set low for noting participation and engagement within that patient cohort. These comments cannot be used to establish that the patient would function well in a less protected and supported environment.

Ms Ayers enrolled in an online TAFE course more than a year ago but soon withdrew because she failed to keep up and could not complete assignments, further evidence of her significant impairment.

Mrs Ayres could not persist with her concentration for more than a few lines of text before she developed a headache and stopped reading. She had made frequent errors whilst attempting to use internet banking. She relied on her husband to organise and pay the bills. Her concentration, persistence and pace were poor for all complex tasks. She had abandoned cooking from recipes as this task was too difficult and complex since the onset of this work-related injury.

She reported having significant concentration problems and this was observed throughout the assessment. She also complained of trouble with words, loss of memory, stuttering with speech when anxious.

Based on my assessment today, I agree with the MA's Class 3 rating for concentration, persistence and pace. Ms Ayers showed cognitive challenges during my evaluation; she no longer reads, she watches television with distraction and poor engagement, has no hobbies or projects, and her husband has taken over managing family finances, something they used to do together.

Mrs Ayers had no pre-existing psychiatric condition. No deduction was made for this reason.

Ms Ayers described that she first developed mood problems when she was 18-19 years old, in 1983, when she and her then-boyfriend Steve broke up. They have been together since she was 14 and married when she was 21. She had a two-week admission to a mental health facility, after which they reconciled, and she recovered. Her brother died in 1988, and she had a grief reaction. In 1997, her father-in-law died, and she was asked to view the body, causing her stress and anxiety.

Ms Ayers said that these were discrete episodes and that she recovered quickly and completely.

6. I have had some stressful times in the past. My family has a history of depression and anxiety. In about 1983 or 1984 I was treated in Sutherland Hospital after I had broken up with my husband. I had taken an overdose of medication. I had some treatment, and I was able to sort things out and return to normal.

8. One of my brothers died unexpectedly in 1988. This was obviously a very difficult time, but I coped reasonably well. I did not have any time off work other than the funeral.

9. From late 1997 I had a very tough few years when my father-in-law died. It was a very difficult time for me. I felt like I had a bit of a breakdown. I was prescribed medication and stopped working for a while. As time passed, I learnt strategies to manage my grief and found that life got better again.

In the case of the Respondent Worker, it is clear that she presents with a long-standing history of prior psychiatric conditions. Dr Chow noted that the Respondent Worker 'has always suffered from anxiety and depression'. This history of pre-existing psychological symptoms is confirmed by the clinical records of Dr Disney which indicate a 'long term history with depression last 20-30 years' per a consult in 2016. Dr Marcus also confirmed 'ongoing depression for the last 20 years', noting that she has seen 'multiple psychiatrists and psychologists over this time.

General practitioner notes refer to mood problems during October 2008, July 2009 and August 2009.

Treating psychiatrist Dr Mark Cross, 23 June 2016, recorded:

In terms of her past psychiatric history she had mood issues in 1998: Panic, anxiety and depression- she has been on medication since this time.

In 1984: she took an overdose and spent a few weeks in a Mental Health unit at Karingbah, no other admissions noted.

In 1998 her father-in-law passed and this escalated her symptoms,

She has seen Psychiatrists In the past, she saw a psychiatrist at Browne Street, she saw a psychiatrist In Campbelltown in the late 90's and she has had therapy, including exposure therapy which helped with coping mechanisms.

She last saw a psychiatrist two years ago. She had Diazepam in the late 1990's, she is not sure if this helped, she has also tried Avanza.

Clinical notes from her admission on 5 February 2018 to the Northside Group McArthur Clinic state:

Referred by Dr Cross after Karen's app[ointment]. Karen has a very long history of depression. Attempted suicide in 1984, OD, admitted to hospital. Karen is coping well until having a 'major breakdown' in 1998 and being admitted to hosp[ital] again.

Med[icines] since 1998 after official d[iagnosis] of depression.

IME psychiatrist Dr Graham George, 4 March 2020, wrote:

She said that she believed she suffered depression in her late teens. Her mother and father had separated when she was 3 years of age and her mother apparently, left the relationship. Her father had brought her up over time. She has never had a good relationship with her mother and her mother did not maintain contact for a number of years.

She recalled being admitted to Sutherland Hospital in 1983 due to depression and was treated then. She has had depression and anxiety over time at different times.

IME psychiatrist Dr Frank Chow, 27 April 2020, noted:

She had a breakdown in 1998. Her brother and father-in-law passed away. She found it difficult to cope. She had medication for six months, but it did not help. She went to a Chinese Dr. She was off work for a few years. She eventually recovered.

IME psychiatrist Dr Graham George, 4 March 2020, took this history:

she said that she believes that she has always had a high level of trait anxiety. She has situation or 'state' anxiety as well.

She recalled being admitted to Sutherland Hospital in 1983 due to depression and was treated then. She has had depression and anxiety over time at different times. She has had marked social anxiety at times. She has had anxiety associated with grief reactions and she related this to when her husband's father died in the late 1990s.

I read these entries to Ms Ayers to allow her to comment. She restated that the problems arose in challenging circumstances and that she recovered quickly and completely.

There is sufficient evidence to determine that she has long-standing issues with recurring mood and anxiety problems, sufficient to make diagnoses of recurring major depression and an anxiety disorder. She had a prejudicial upbringing, with her mother leaving the family when she was three years old and later having poor attachment to her. Her father had depression and anxiety, and a paternal aunt committed suicide, suggesting a genetic basis for her mental health disorders. Without her pre-existing conditions, her current illness would be less severe and her impairment reduced. On the other hand, Ms Ayers functioned well in her work and social life in the lead-up to her injury at Woolworths. A one-tenth deduction is reasonable and warranted.

1. Additional history since the original Medical Assessment Certificate was performed

I assessed Ms Ayers in her home by video link with her husband Frank present as a support person. Frank was silent during the interview.

She presented casually attired and appeared reasonably groomed. She was cooperative throughout the interview.

She said she was very anxious about the interview and expressed dismay at how extended the WorkCover process had been. Her mood was low. Her affect was restricted, consistent with her stated mood and the interview content.

The interview lasted 70 minutes, during which Ms Ayers digressed occasionally and needed redirection. Sometimes she found it challenging to recall details.

There was no evidence of any disorder of thought-form or perception.

Ms Ayers acknowledged thoughts of suicide but said that concern for her family was protective for her.

At the end of the interview, she agreed that we had covered everything necessary and had nothing else to add except to restate her frustration at the process and her desire for it to be over.

1. Results of any additional investigations since the original Medical Assessment Certificate

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. In summary, the appellant submits that the Medical Assessor used incorrect criteria or committed demonstrable error in assessing Mrs Ayres as suffering moderate impairment (Class 3) in respect of the area of function "Concentration, persistence and pace[1]" and in assessing whether a deduction should be made pursuant to s 323 the 1998 Act.
3. In reply, the respondent submits that the assessment of moderate impairment with respect to the area of function "concentration persistence and pace" was open on the evidence and appropriate. The evidence before the Medical Assessor did not establish a pre-existing impairment in that there was no evidentiary basis for concluding that any part of Mrs Ayres's impairment "pre-existed her injury or relates to a pre-existing vulnerability".

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[2] 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 appellant submits that the Medical Assessor fell into error in the assessment of Mrs Ayres as falling within Class 3, moderate impairment, with respect to the area of function "concentration persistence and pace".
4. The Medical Assessor recorded as his reasons for assigning Class 3, in regard to this area of function, as follows:

"Mrs Ayres could not persist with her concentration for more than a few lines of text before she developed a headache and stopped reading. She had made frequent errors whilst attempting to use Internet banking. She relied on her husband to organise and pay the bills. The concentration, persistence and pace were poor for all complex tasks. She had abandoned cooking from recipes as this task was too difficult and complex since the onset of this work-related injury."

1. Medical Assessor recorded his findings on mental state examination:

"Mrs Ayres's concentration was poor. She spoke of losing her concentration whenever she tried to return to her hobby of reading 'thriller novels'. She felt she had lost the joy she had previously experienced while reading. She was unable to read more than a few lines of text before becoming agitated and abandoning the text. Her concentration waned after a brief period into this assessment. She required prompting to remain on topic. Her concentration was impaired by distressing, intrusive depressive memories of being singled out and humiliated by her employer.".

1. The respondent noted the examples from the Guidelines[3] of what could be considered moderate impairment contrasted with those for mild impairment:

"Class 2 (mild impairment): can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods up to 30 minutes, then feels fatigued or develops headache.

Class 3 (moderate impairment): unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting."

1. The appellant drew attention to the records of the Northside Group MacArthur Clinic which formed part of the material supplied to the Medical Assessor. The appellant noted the comments by the Medical Assessor in the MAC with respect to that material: "The above record contains various handwritten and typed records. Handwritten notes by Dr Cross psychiatrist commencing 5 February 2018. Documented Dx: Depression with anxiety. Workup for ECT. Six ECT sessions noted in record."
2. The appellant submitted that the Medical Assessor had not sufficiently engaged with "the 135 pages of records detailing observations of the respondent worker during inpatient admission." The appellant submitted that these observations having been made over a period of time should carry considerable weight "when determining the respondent worker's impairment in respect of Concentration Persistence and Pace".
3. The appellant noted that the notes recorded that Mrs Ayres had presented with "fairly good rapport" and "good insight". Mrs Ayres was noted to attended groups, gym and yoga and had "attended 90 minutes of resilience and 90 minutes of behavioural activation and was actively listening". Mrs Ayres had participated in group activity focusing on practical skill building benefits and was observed to be engaging well in craft making, creative thinking and group conversation. Mrs Ayres was reported to be "able to take in what was discussed".
4. The appellant also noted that the material disclosed that Mrs Ayres was undertaking a TAFE course with classes three days a week and was attending to homework in respect of that course.
5. The appellant submitted that this evidence supported assessment as "mild impairment" in respect of this area of function but the Medical Assessor had failed to engage with that material.
6. The Panel considered that the evidence of participation in activities in the hospital setting was not a relevant indicator of the ability to function with respect to concentration persistence and pace in everyday life. The clinical setting necessarily makes allowance for patients with major deficits in this area of function and techniques are adopted for assisting patients to participate.
7. However, the fact that Mrs Ayres was undertaking a TAFE course is in a somewhat different category and the Panel accepts that this was a relevant piece of information, directly raised by the examples provided in the Guidelines and should have been the subject of recorded comments by the Medical Assessor when recording his reasons. In this respect the reasons provided by the Medical Assessor do not address the relevant evidence and constitutes demonstrable error, there being failure to address a relevant piece of evidence.
8. The Panel accepts that error has been established with respect to assessment of the area of function "concentration, persistence and pace". The Panel did not consider that there is sufficient information regarding the demands of the TAFE course and whether Mrs Ayres relinquished the course due to her moving interstate or her incapacity to meet those demands, and accordingly re-examination was required for the assessment of this area of function.
9. In his report to the Panel, Dr Andrews reported with respect to the appellant's observations contained in the Northside Group MacArthur Clinic notes: "These comments cannot be used to establish that the patient would function well in a less protected and supported environment." The Panel accepts that comment. The environment in which the activities to which the appellant refers took place in a setting which would have provided appropriate support so as to manage any defects in the capacity of the patient to concentrate for continuous periods and to maintain a pace which respected the needs of the patient.
10. Dr Andrews also noted "Ms Ayers enrolled in an online TAFE course more than a year ago but soon withdrew because she failed to keep up and could not complete assignments, further evidence of her significant impairment."
11. That observation is consistent with a number of entries in the MacArthur clinic notes. The notes record on 19 August 2021 "Falling behind in TAFE"[4], 20 August 2021: "she has a TAFE class this morning. Discussed she is having trouble in doing her work stating she does not know how to use Adobe. Patient stating she is in [? - illegible]. Struggling to have it makes sense or stay in her mind.[5]" On 24 August 2021 the notes record that Mrs Ayres has deferred her part of her TAFE course.[6] On 27 August 2021 the notes record "patient partially attended psychological group on procrastination and self compassion. Sat quietly during both groups, alternating between knitting and using her phone.[7]"
12. Dr Andrews commented:

"Based on my assessment today, I agree with the MA's Class 3 rating for concentration, persistence and pace. Ms Ayers showed cognitive challenges during my evaluation; she no longer reads, she watches television with distraction and poor engagement, has no hobbies or projects, and her husband has taken over managing family finances, something they used to do together."

1. The Panel accepts that the observations of Dr Andrews with respect to this area of function support Mrs Ayres as appropriately assessed as Class 3 (moderate impairment). That assessment is consistent with the observations made by the Medical Assessor at the time of his examination and with the assessment of Dr Chow who notedp; "She reported having significant concentration problems and this was observed throughout the assessment. She also complained of trouble with words, loss of memory, structuring with speech and anxious."
2. No submissions were addressed to the other areas of function and the Medical Assessor's assessment of those areas was consistent with the findings of Dr Andrews on re-examination.
3. Accordingly, the Panel is satisfied that the overall level of impairment is appropriately assessed in accordance with the PIRS attached to the MAC, giving an overall level of impairment of 24% WPI.

"In my medical opinion, Mrs Ayres did not have a pre-existing psychological/psychiatric impairment prior to the onset of her employment with this employer. She commenced her employment with this employer in 2004. She had been able to work and persist in her employment adapting to difficult situations when returning from Masters to Woolworths where she was required to work in different roles. She had recovered from physical injuries and attempted to comply with her return to work plan prior to being 'terminated' by her employer.

Mrs Ayres had reported an episode of being upset in 1983. She stated she resolve the issue with her partner, and they had many years of marriage raising their family whilst they both worked. She was not impaired prior to commencing work for this employer. She works solely for this employer between 2004 until 2019 in various roles as directed without any psychological impairment. She had been resilient and adaptable when directed by her employer to work varied roles across different types of retail businesses without any psychological impairment prior to the onset of this work-related injury."

1. The Medical Assessor concluded; "Mrs Ayres had no pre-existing psychological or psychiatric impairment prior to the onset of this work-related injury", noting; "She had a disagreement with her partner and now husband in 1983. The issue was resolved. Mrs Ayres had been resilient in her capacity to work for employer from 2004 until the date of onset of this work-related injury."
2. The Panel accepts that the Medical Assessor fell into error with respect to consideration of whether a deduction was to be made in respect of a pre-existing condition. The conclusion reached by the Medical Assessor was that "Mrs Ayres had no pre-existing psychological or psychiatric impairment prior to the onset of this work-related injury". That conclusion is relevant to the application of paragraph 11.10 of the Guidelines which requires consideration of pre-existing impairment.
3. Paragraph 11.10 of the Guidelines provides:

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

1. Having concluded that there was no impairment prior to commencement of employment with the appellant, the Medical Assessor was required pursuant to s 323 of the 1998 Act to consider whether there was a pre-existing condition, abnormality or prior injury which contributed to the impairment assessed by the Medical Assessor at the time of his examination. In Marks v Secretary Department of Communities and Justice[9], Simpson AJ expressed doubt as to whether paragraph 11.10 was consistent with s 323(1).
2. The Panel accepts that paragraph 11.10 does provide a different test to that found in

"(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."

1. The Medical Assessor in the present case concluded that there was no pre-existing impairment.[10] It does not appear from the MAC that the Medical Assessor considered whether Mrs Ayres suffered from a pre-existing, but asymptomatic, psychological condition.
2. The Panel concludes that Medical Assessor fell into error in failing to consider the test required by s 323(1). The Medical Assessor did not make a finding as to whether there was a pre-existing psychological condition, abnormality or prior injury and did not consider whether such a condition or injury, although asymptomatic, might contribute to the impairment assessed on the day of examination.
3. The Panel is satisfied that the evidence establishes that, at the time of the commencement of employment with the appellant, Mrs Ayres suffered a pre-existing psychological condition diagnosed as depression.
4. The treating general practitioner, in his letter of referral to the psychiatrist, Dr Cross dated 19 May 2016, noted that Mrs Ayres "presents with ongoing depression for the last 20 years"[11].
5. The Northside Group admission notes record the history:

"Referred by Dr Cross after Karen's appointment. Karen has a very long history of depression. Attempted suicide in 1984, OD, admitted to hosp. Karen was coping well until having a 'major breakdown' in 1998 and being admitted to hospital again. States that she lost all motivation and was experiencing anhedonia. Recovered after admission and has been reasonably settled until recently.[12]".

1. In her statement dated 29 April 2021, Mrs Ayres referred to a family history of depression and anxiety, noting that she had been treated in Sutherland Hospital round 1983 or 1984 following an overdose. She said that she been able to return to normal after treatment. Mrs Ayres said:

"From late 1997 I had a very tough few years when my father-in-law died. It was a very difficult time for me. I felt like I had a bit of a breakdown. I was prescribed medication and stopped working for a while. As time passed, I learnt strategies to manage my grief and found that life got better again.

By the time of the events described below I was not impaired from a psychological perspective. I was in a good place with my husband, Steve and my family. I did not have any physical condition that interfered of my work."

1. The independent medical expert, Dr Chow, reported[13]:

"Mrs Ayres said she has always suffered from anxiety and depression not to a point that she was unable to work. She had never been diagnosed and treated in the past until she started working with Woolworths"

"She had a breakdown in 1998. Her brother and father-in-law passed away. She found it difficult to cope. She had medication for six months, but it did not help. She went to a Chinese doctor. She was off work for a few years. She eventually recovered. She did some small jobs in 2003 and started working at Big W".

1. Reporting to the general practitioner in June 2016, the treating psychiatrist, Dr Cross, noted:

"In terms of her past psychiatric history she had mood issues in 1998: panic, anxiety and depression - she has been on medication since this time. In 1984: she took an overdose and spent a few weeks in a Mental Health Unit at Karingbah - no other admissions noted. In 1998 her father-in-law passed and this escalated her symptoms. She has seen psychiatrists in the past, she saw a psychiatrist at Browne Street, she saw a psychiatrist in Campbelltown in the late 90's and she has had therapy, including exposure therapy which helped with coping mechanisms. She last saw a psychiatrist two years ago. She had diazepam in the late 1990s. She is not sure if this helped, she has also tried Avanza."

1. The progress notes of the Northside MacArthur Clinic record[14]: "She has tried various combinations of medications: zoloft + Pristiq + Avanza + Efexor + Cymbalta. (meds since 1998 after official Dx of depression)" and "5/02/18 - patient is a 53-year-old female with a long history of depression, anxiety and paranoia since 1989".
2. The Panel accepts that those records establish the existence of a psychological condition prior to the commencement of Mrs Ayres's employment with the respondent in 2004. Mrs Ayres was continuing to take medication which assisted her to cope with her condition. The Panel does not accept Dr Chow's assertion that "she had never been diagnosed and treated in the past until she started working with Woolworths". That statement is contrary to the weight of the evidence set out above.
3. The Medical Assessor concluded that Mrs Ayres did not have any psychological impairment prior to commencement of employment with the respondent in 2004, but did not give consideration to whether there was an asymptomatic psychological condition at that time which contributed to the extent of impairment assessed on the day of his examination as required by s 323(1).
4. The Panel accepts that where there is inconsistency between paragraph 11.10 of the Guidelines and s 323 (1) the latter must prevail and the failure to consider whether Mrs Ayres suffered a pre-existing, albeit asymptomatic, psychological condition prior to the commencement of employment with the appellant, constituted demonstrable error.
5. The Panel is satisfied that the Medical Assessor failed to address the test required by s 323(1) in that he did not consider whether any proportion of the impairment was due to any previous injury or any pre-existing condition or abnormality.
6. In the light of the evidence set out above, the Panel agrees with and accepts the opinion of Dr Andrews in his report set out above:

"There is sufficient evidence to determine that she has long-standing issues with recurring mood and anxiety problems, sufficient to make diagnoses of recurring major depression and an anxiety disorder. She had a prejudicial upbringing, with her mother leaving the family when she was three years old and later having poor attachment to her. Her father had depression and anxiety, and a paternal aunt committed suicide, suggesting a genetic basis for her mental health disorders. Without her pre-existing conditions, her current illness would be less severe and her impairment reduced. On the other hand, Ms Ayers functioned well in her work and social life in the lead-up to her injury at Woolworths. A one-tenth deduction is reasonable and warranted."

1. The Panel is accordingly satisfied that Mrs Ayres, at the time of commencement of employment with the appellant, suffered a pre-existing psychological condition. That condition was being treated with medication so as to enable her to function in a relatively normal fashion.
2. The Panel accepts that this condition, for which Mrs Ayres was receiving medication, would have contributed to the overall level of impairment assessed by the Medical Assessor at the time of his examination. The condition would not have been as severe if Mrs Ayres had not had the pre-existing condition of depression. It is difficult to determine the extent to which that pre-existing condition contributed to the overall level of impairment but an assessment of one tenth would not be at odds with the evidence, given that Mrs Ayres was able to function in a relatively normal fashion with the assistance of her medication prior to her commencement of employment with the appellant.
3. The Panel accordingly determines that it is appropriate that the overall level of impairment assessed should be reduced by one tenth pursuant to s 323(1) and (2) of the 1998 Act.
4. For these reasons, the Appeal Panel has determined that the MAC issued on 11 April 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

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 Dr John Baker 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)

The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002

[2] [2006] NSWCA 284.

[4] Application to Admit Late Documents, 4 November 2021, page 88.

[5] Application to Admit Late Documents, 4 November 2021, page 91.

[6] Application to Admit Late Documents, 4 November 2021, page 97.

[7] Application to Admit Late Documents, 4 November 2021, page 107.

[9] [2021] NSWSC 306.

[11] Application to Resolve a Dispute, page 33.

[12] Application to Admit Late Documents, 4 November 2021, page 1.

[13] Application to Resolve a Dispute, pages 29 and 30.

[14] Application to Admit Late Documents for November 2021, page 21.