Willoughby City Council v Lu

[2023] NSWPICMP 162

DETERMINATION OF APPEAL PANEL
CITATION:	Willoughby City Council v Lu [2023] NSWPICMP 162
APPELLANT:	Willoughby City Council
RESPONDENT:	Xiao Chun Lu
Appeal Panel
MEMBER:	John Wynyard
MEDICAL ASSESSOR:	Nicholas Glozier
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	27 April 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal from assessment pursuant to section 323(2) from finding of 19% whole person impairment (WPI); whether finding by Medical Assessor (MA) that claimant had a pre-existing condition in face of the claimant’s denials relevant to assessment; Held – the claimant had denied any pre-existing condition to the experts concerned with her case, but contemporaneous records demonstrated that the claimant was being treated for a condition acquired in similar circumstances just one month prior to her commencing with the subject employer; MA found that the pre-existing condition had been relapsed and exacerbated by the subject injury but did not explain why he ignored this finding in calculating the 1/10th deduction; Ferguson v State of NSW, Cole v Wenaline P/L and Yang v Industrie Clothing considered and applied; Medical Assessment Certificate revoked and 30% deduction substituted.

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 9 November 2022 Willoughby City Council, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 October 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 (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, 4^th ed
   1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5). “WPI” is reference to whole person impairment.

RELEVANT FACTUAL BACKGROUND

1. On 13 April 2022 Consent Orders were entered into and on 2 September 2022 the matter was referred to the Medical Assessor for assessment of WPI caused by psychological injury deemed to have occurred on 11 February 2020.

2. Ms Lu was an After-School Care Educator and commenced with the appellant Council in February 2019. She alleges that she was bullied whilst doing her job and that her employer denigrated, belittled, alienated and abused her verbally.

3. She ceased work in February 2020 and has not worked since.

4. The Medical Assessor assessed 19% WPI from which he deducted 1/10^th pursuant to s 323 of the 1998 Act.

5. The appellant employer appeals against the 1/10^th deduction made by the MA.

PRELIMINARY REVIEW

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. There was a request that the worker be re-examined by a Medical Assessor, but for reasons given below such a re-examination would not have assisted the Panel.

EVIDENCE

Documentary evidence

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.

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.

SUBMISSIONS

1. Both parties made written submissions which have been considered by the Appeal Panel.

FINDINGS AND REASONS

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

The MAC

1. The Medical Assessor took a brief history of the injury and, after describing her present symptoms, recorded the following:[1]

   “• Details of any previous or subsequent accidents, injuries or conditions:

   Ms Lu denied any pre-existing mental health conditions. I discuss this denial further in the section on consistency.”

   [1] Appeal papers page 28.

2. At [7] of the MAC under “consistency of presentation” the Medical Assessor said:

   “Ms Lu denied any pre-existing mental health problems.

   IME psychiatrist Dr Richa Rastogi noted, ‘There is no known previous history of depression or anxiety.’

   Treating psychiatrist Dr Charles Chan wrote, ‘No previous psychiatric history.’

   IME psychiatrist Dr Alice Neale noted: ‘Ms Lu denied any contact with mental health services prior to February 2020.

   IME psychologist Mr Thomas O’Neill wrote:

   Ms Lu denied any behavioural or emotional disturbances in her growing up or early

   adolescent years. She said she did see doctors and a psychologist in 2018, as she was

   having issues navigating shift work in her previous job role and the long distance she

   travelled to and from work.

   From the general practice notes, Dr Ivana Lu:

   6 May 2018:

   … depressed and stressful

   unable to sleep for the last two days

   unable to concentrate and unable to go to work anymore

   lethargy…

   13 May 2018:

   Stress

   Headache

   Insomnia

   18 May 2018:

   Recently discussed with a counsellor and feeling a bit better now

   able to do some exercises which help to relieve stress

   still waiting a few times a night

   still feeling afraid going back to work – under strict scrutiny

   31 May 2018:

   unable to sleep overnight

   coordinator gave her a very hard time and yelling and screaming at her with trivia matters

   has done her best with all the jobs which got good feedback but not sure why the

   coordinator was so rude

   headache

   stress

   depressed

   unable to relax

   26 August 2018:

   work stress

   conflict with work coordinator last Friday

   await further meeting with director and other parties

   a few situations: got accused by coordinator without any reasons

   headache

   unable to sleep at night

   mentally and physically traumatised

   …

   Stress

   ? PTSD

   Insomnia

   23 September 2018

   recently very poor sleep, anxiety

   what of stress at work

   headache

   going through a lot

   worried about her son to

   …

   Headache

   Insomnia

   Anxiety – generalised

   29 September 2018:

   a lot of stress from work and family

   very depressed, anxious

   tearing at home

   don’t know what to do

   Everything is her fault – guilty feeling

   need help to improve coping skills agree for mental health care plan

   …

   Anxiety That – generalised

   18 November 2018:

   stress

   Poor sleep

   …

   Psych: poor sleep. Early morning wakening. Depressed mood. Low self-esteem. Irrational

   fear.…

   I put this series of consultations and the psychologist report by Ms Huang on 12 December 2018 to Ms Lu for comment. She assured me that nothing that happened had been her fault, that work was a problem, and that she had no mental health difficulties. She said, ‘I became stressed but not because of what I had done.’

   Ms Lu has denied having mental health problems with several assessors, even when directly confronted with evidence. Taking into account the contemporaneous medical and psychologist records, I accept that she had a pre-existing condition during 2018.”

3. At [8e] the Medical Assessor recorded:[2]

   “e. Is any proportion of loss of efficient use or impairment or whole person impairment

   due to a previous injury, pre-existing condition or abnormality?

   Yes. Ms Lu has had mood and anxiety problems predating the commencement of employment with Willoughby City Council. Given her consistent denials, it is difficult to determine the nature or extent of these problems. She has experienced an exacerbation or relapse of pre-existing difficulties.”

   [2] Appeal papers page 32.

4. At [10c] the Medical Assessor said further:

   “c. My brief comments regarding the other medical opinions and findings submitted by the parties and, where applicable, the reasons why my opinion differs

   Treating psychologist Ms Ying Huang, 29 February 2020, mentioned that Ms Lu’s initial

   consultation for ‘anxious and depressed mood’ was on 11 December 2018, before

   commencing work with Willoughby Shire Council.

   IME psychiatrist Dr Richa Rastogi diagnosed an adjustment disorder with depressed mood and anxiety and determined a 15% WPI (classes 2, 3, 2, 2, 3, and 3).

   Treating psychiatrist Dr Charles Chan, on 15 May 2021, diagnosed an adjustment disorder with depressed mood.

   I note the report of Worksite Investigations, 3 May 2021.

   IME psychiatrist Dr Alice Neale, 12 March 2021, diagnosed an adjustment disorder with

   mixed anxiety and depressed mood. She determined a 9% WPI (classes 1, 3, 2, 2, 2, and 3) before deducting one-tenth for a pre-existing condition.

   Independent psychological assessor Mr Thomas O’Neill, 25 May 2021, expressed this

   concern:

   Ms Lu endorsed a number of exaggerated, inconsistent, and unusual symptoms that were not quite consistent with an Adjustment Disorder. She scored just 1 point below the threshold suggestive of feigning spectrum behaviour.

   The presence of significant feigning spectrum behaviour does not preclude the possibility that an individual may be distressed or aggrieved, however, the results do indicate that Ms Lu is an unreliable informant as to her current mental health symptoms and other aspects of psychological functioning.

   …

   I am not in a position to provide an opinion on current diagnoses given the extreme feigning spectrum behaviour, and endorsement of bizarre and unusual symptoms that were not consistent with an Adjustment Disorder. (my emphasis)

   The DSM-5 does not have a ‘feigning spectrum disorder.’ Where test results return inconsistent or improbable results, it is appropriate to consider them uninterpretable and the tests invalid. It is not reasonable to make a global judgment of the subject’s honesty or condition. I have addressed his concern that Ms Lu is an unreliable historian above and consider it in my assessment.

   Dr Neale found no impairment for self-care and personal hygiene, whereas Dr Rastogi and I thought it mild. Dr Neale wrote:

   Ms Lu said that she is independently addressing her self-care and hygiene. She said she contributes to housework and shares meal preparation, as has always been the pattern in their family.

   Ms Lu is contributing less to the running of the household and frequently misses meals. She has gained weight because of her lack of physical activity and is now overweight.

   Both IME psychiatrists found a moderate impairment in employability, whereas I thought Ms Lu unfit to work. Dr Rastogi noted:

   Moderate impairment as unable to handles stress and conflict presenting with mark emotional wonder ability and fear based responses. [sic] She cannot work with the same employer and in the future would need to partake step down duties,

   And Dr Neale:

   Ms Lu is able to work on a part-time basis though would be unable to return to her preinjury workplace.

   Ms Lu’s not worked in any capacity for more than two years. Dr Rastogi speculates on what Ms Lu may be able to do in the future, but the impairment rating needs to be determined by how Ms Lu presents at the assessment. I note that Dr Rastogi considered Ms Lu had reached maximum medical improvement. Dr Neale opined that Ms Lu had not reached maximum medical improvement but thought she was fit to work part-time. Taking everything into consideration, as Ms Lu presents now, she is unfit to work.”

5. In explaining the 1/10^th deduction he made pursuant to s 323 of the 1998 Act, the Medical Assessor said at [11]:[3]:

   “Ms Lu had pre-existing mental health problems that either relapsed or were exacerbated.

   Her experiences in her previous workplace seem almost identical to those at Willoughby City Council, including her emotional response.

   However, Ms Lu denies any mental health problems, and it is impossible to determine the precise level of impairment. A one-tenth deduction is appropriate.”

   [3] Appeal papers page 34.

6. In considering the brief comments made by the other medical professionals in the case, the Medical Assessor noted the reports of psychologist Ying Huang of 29 February 2020, noting that her initial consultation was dated 11 December 2018.

7. He noted the assessments by Dr Rastogi, consultant psychiatrist and treating psychiatrist Dr Charles Chang who diagnosed an adjustment disorder and depressed mood.

SUBMISSIONS

1. It was common ground that the Medical Assessor had made an obvious error by referring to the injury date as 28 October 2021 when recording the “worker’s details”. However he accurately recorded the date referred to him as 11 February 2020 (deemed) earlier in his MAC. Nothing turns on this error.

The appellant employer

1. The appellant employer referred to Chapters 1.27 and 1.28 of the Guides. It submitted that the Medical Assessor has fallen into error as it was apparent that he had simply based the deduction on what had been said to him by Ms Lu during the assessment. It was submitted that the above Guides should have been applied and particularly that the Medical Assessor should have:[4]

   “a.     Taken into account all of the available evidence to calculate the degree of permanent impairment which pre-existed the subject injury; and

   b.      Deducted the pre-existing component, which was determined from ‘all of the available evidence’, from the assessed impairment.”

   [4] Appeal papers page 12.

2. The appellant employer further submitted that the deduction of 1/10^th was to be made “unless that is at odds with the available evidence”.

3. It was submitted that the practical effect of that reservation was that the Medical Assessor was bound to undertake an assessment and analysis of the available evidence. The failure by the Medical Assessor to do so, it was submitted, meant that it could not be determined whether the deduction was appropriate, nor as to what the appropriate deduction might be.

4. It was submitted that the entirety of the MAC demonstrated that the Medical Assessor’s approach was not consistent with the Guides because he had failed to assess all of the available evidence.

5. It was submitted further that the error by the Medical Assessor was compounded by the fact that Ms Lu’s evidence was not reliable, given the contradictory nature of the objective evidence before the Medical Assessor.

6. The appellant employer again relied on Chapters 1.27 and 1.28 to submit that the 1/10^th deduction was inappropriate, as the Medical Assessor relied on Ms Lu’s reporting. The application of a 1/10^th deduction was inappropriate because an accurate reflection of the extent of the pre-existing condition could not be assessed from Ms Lu’s statements.

7. It was further submitted that the Medical Assessor’s comments at [11b] were not consistent with his assessment pursuant to s 323. His statement that it was impossible to determine the precise level of impairment raised an inference that the Medical Assessor thought any assessment was impossible because Ms Lu had untruthfully denied any prior mental health problems.

8. The appellant employer submitted that the Medical Assessor had available to him the clinical records which “clearly and unambiguously” contradicted Ms Lu’s assertion that she had had no prior condition.

9. The clinical records, the appellant employer submitted, demonstrated that it was not too difficult or costly to determine the extent of the contribution and particularly could be seen to contain a more accurate and reliable contemporaneous record of Ms Lu’s pre-existing condition. It presented a different account than that she repeated to not only the Medical Assessor but also Dr Rastogi, Dr Chan, Dr Neale and Thomas O’Neill, the appellant employer submitted.

10. The appellant employer then referred us to evidence within the material referred to by the Medical Assessor. It submitted that the evidence, including the report of Ying Huang of 29 February 2020 and her clinical notes dated 5 September 2019, and the evidence noted under “Consistency” ought to have resulted in a deduction of greater than 1/10^th.

11. This evidence confirmed that Ms Lu’s psychological problems were evident in 2018-2019, and the Medical Assessor had accordingly offended the Guides and failed to apply the provisions of s 323 in his assessment.

12. We were referred to Fardell v Clinton Industries Pty Ltd[5] and to passages from Cole v Wenaline Pty Ltd.[6] It was submitted that the Medical Assessor “did not consider the evidence in this matter when determining what deduction is to be made”.

    [5] [2022] NSWSC 111.

    [6] [2010] NSWSC 526.

13. The appellant employer then submitted that as a result the Medical Assessor had failed to undertake the required statutory task in his application of s 323. He was bound, it was submitted, to conduct his own assessment and reach his own conclusions in line with the well-known dicta of Wingfoot Australia Partners Pty Ltd v Kocak.[7]

    [7] [2013] HCA 43.

14. The appellant employer referred to the report of Mr Thomas O’Neill, clinical psychologist of 25 May 2021. It submitted that the Medical Assessor had made a demonstrable error in his findings about the tests carried out by Mr O’Neill. It was argued that the Medical Assessor wrongly rejected the test results Mr O’Neill reported. The Miller Forensic Assessment of Symptoms and the Personality Assessment Inventory – Plus One test results should not have been found to be uninterpretable and invalid by the Medical Assessor, it was argued. Moreover, it was submitted that Mr O’Neill did not actually find that Ms Lu suffered from a feigning disorder, or that it was a DSM 5 diagnosis. Whilst the appellant employer conceded that there could be different interpretations of the significance of the test results, it argued that there was no justification for the opinion of the Medical Assessor that they were invalid. It followed, it was argued, that the Medical Assessor had failed to consider relevant evidence.

15. It was argued that the Medical Assessor should have given the test results more weight in view of the consistent denials by Ms Lu of any prior psychological condition contained in the evidence, which had been disproved by the contemporaneous notes. Ms Lu’s unreliability meant that the provisions of Chapter 1.36 of the Guides were applicable, and the Medical Assessor had failed to modify his assessment in view of the insufficiency of the evidence.

16. This failure, it was argued, also infected the assessments made as to the appropriate classification of the Permanent Impairment Rating Scale (PIRS) categories, particularly social and recreational activities, concentration, persistence and pace, and employability. The appellant employer argued that this was an alternative ground, but it seems that it was intended to be an additional one.

1. The appellant employer submitted that Ms Lu should be re-examined to properly redetermine the s 323 deduction and re-determine and re-assess the class ratings to be applied. That submission may be rejected immediately. Ms Lu has proven to be unreliable and inconsistent in her evidence. We have no reason to believe that she would be any different were she to be re-examined.

Respondent’s submissions

1. Ms Lu, through her counsel Mr Ross Stanton, submitted that the Medical Assessor had assessed the s 323 deduction not only on what he had been told by Ms Lu during the examination, but that it was readily apparent from a reading of his reasons that he took the other evidence into account. In his comments the Medical Assessor had made it quite clear that he was not relying on the respondent’s subjective narrative, it was argued.

2. The reasons given in the assessment of the PIRS categories were detailed and considerable, Mr Stanton contended.

3. As to the alleged failure to give adequate reasons, Mr Stanton submitted that again the Medical Assessor had given detailed reasons sufficient to comply with his obligation. We were referred to Mitchell v Central West Health Service.[8] When looked at as a whole, the contents of the MAC satisfied the Medical Assessor’s obligation to provide adequate reasons, Mr Stanton argued.

   [8] (1997) 14 NSWCCR 526 at [531].

4. Ms Lu then referred to the submission that the Medical Assessor did not consider the “pieces of evidence” mentioned by the appellant employer. That reference, it was submitted, was too vague to be able to answer in detail. The “pieces of evidence” presumably referred to paragraphs 39-46 of the MAC and the vagueness of the appellant employer’s submission was consequently unpersuasive.

DISCUSSION

1. On the one hand it is not uncommon that an injured person fails to mention his or her prior injuries or conditions. This can be for a number of reasons which include nervousness, apprehension, and a feeling of being so overwhelmed by the process that the person does not give sufficient consideration to what he/she was being asked.

2. However when this occurs on a regular basis, as it appears to have in this case, further motives should be at least considered. Ms Lu has denied any prior psychiatric condition on a number of occasions, and in her statement of evidence lodged herein she did not refer to her past psychological health at all.

3. Ms Lu’s statement was dated 15 March 2022. It was 11 pages and 71 paragraphs long. She said that she was born and raised in China, coming to Australia in 2003 when she was in her 30s. She is married and has two children.

4. She said at [8] of her statement:

   “I have not lodged any WorkCover claims in the past nor have I been subject to formal disciplinary action within the workplace.”

5. Whilst this averment may or may not have been technically correct, the contemporaneous clinical notes of Dr Ivana Lu certainly indicated that:

   ·        Ms Lu had been “under strict scrutiny” at work on 18 May 2018;

   ·        Ms Lu’s coordinator had given her “a very hard time. yelling and screaming at her with trivial matters” on 31 May 2018;

   ·        Ms Lu was “not sure” why the coordinator was being so rude;

   ·        Ms Lu had conflict with the work coordinator on 26 August 2018;

   ·        there was to be a “further” meeting with the director and other parties;

   ·        Ms Lu “got accused” “without any reasons” by the coordinator, and

   ·        Ms Lu was under stress generally throughout Dr Lu’s notes between May and November 2018.

6. Moreover, Ms Lu was referred to psychologist Ying Huang on 11 December 2018 by Dr Lu. In his report to Dr Lu of 12 December 2018, Psychologist Huang noted:[9]

   “…Works as a full time childcare educator for local council, allegedly made subject of workplace bullying and was unfairly treated by superiors for the past 6 months. Has resigned from her job in November 2018.

   ……

   She may also benefit from a legal consultation as the matter appeared to be a workplace injury…”

   [9] Appeal papers page 282.

7. In a further report dated 29 February 2020 Psychologist Huang advised that he treated her again on 5 January 2018, and that the Mental Health Treatment Plan expired on 29 September 2019. [10]

   [10] Appeal papers page 80.

8. The Medical Assessor noted the similarity to the present facts at [11] of the MAC. As indicated, he noted that her experiences in her previous workplace seem to be almost identical to what had happened with the appellant employer.

9. The similarity of the complaints in December 2018 is therefore a relevant fact in the s 323 assessment of the appropriate deduction for any pre-existing impairment which might have contributed to the impairment caused by the subject injury of 28 October 2021 (deemed). The temporal connection is also significant. Ms Lu was still receiving treatment for her psychological condition in December 2018, having ceased her employment with the earlier council in November 2018. She remained on a Mental Health Treatment Plan until 29 September 2019, and her last consultation with psychologist Huang was on 5 January 2019, the month before she began working for the appellant employer in February 2019.

10. Section 323 provides relevantly:

    “323 Deduction for previous injury or pre-existing condition or abnormality

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

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

11. It is evident that Ms Lu has employed a difficult logical process to justify her conduct. The Medical Assessor, whose thoroughness we commend, recorded that he put to Ms Lu the inconsistences he itemised in his “consistency of presentation” segment. The Medical Assessor’s record of Ms Lu’s explanation we accept.

12. It may be that Ms Lu has somehow conflated the fact of injury with the concept that her prior condition was only relevant if it had been caused by her fault. She may have thought that as she perceived she had done nothing wrong, she thought that she had no prior mental health problems that were relevant to her case, and therefore there was no need to mention them.

13. In any event Ms Lu’s case is unusual. It is common ground that she has misled, for reasons of her own, the medical practitioners concerned with the presentation of her case.

14. She denied having any pre-existing mental health problems to:

    ·        the Medical Assessor;

    ·        Dr Rastogi;

    ·        Dr Chan, and

    ·        Dr Neale.

15. To psychologist Thomas O’Neill however, she did give a history of her symptoms in 2018.

16. Much has been made of Mr O’Neill’s opinion by the appellant employer. However, there was an inherent contradiction in the appellant employer’s submission regarding the test results reported by Mr O’Neill. The argument was that, as he found the test results uninterpretable and invalid, the Medical Assessor had failed to consider relevant evidence. It is conceptually difficult to see how the Medical Assessor had failed to consider this evidence, when he had determined that the test results were uninterpretable and invalid. It is clear that the Medical Assessor did consider the test results, but in his clinical judgement did not find them to be of any weight.

17. We apprehend that the import of the Medical Assessor’s finding was that where such tests demonstrated that the patient was totally unreliable, their relevance was of limited probative value. The use of the term ‘invalid’ we regard as no more than looseness in the language used by the Medical Assessor.[11] His meaning was tolerably clear, that Ms Lu was so inconsistent in her presentation that any attempt to interpret the content of the tests had no utility. It was clear that the Medical Assessor had found Ms Lu to be unreliable and accordingly the test results, which were inconsistent and/or improbable, did not take the matter any further.

    [11] See eg Bojko v ICM Property Service Pty Ltd {2009] NSWCA 175 at [36].

18. The Medical Assessor’s statement that it was not reasonable to make a global judgment based on Mr O’Neill’s test results about Ms Lu’s honesty we find unremarkable, as self-diagnostic psychological tests of the kind administered by Mr O’Neill are of limited assistance in psychological injury cases.

19. However, whilst the Medical Assessor was correct not to make a global judgment as to Ms Lu’s honesty based only on Mr O’Neill’s test results, he was able nonetheless to make such a judgment after considering the whole of the evidence. This he did by rejecting Ms Lu’s contention that she had no past history of mental health problems. He concluded that she had a pre-existing condition during 2018.

20. The Medical Assessor gave a careful and considered exposition of the evidence, but he did not engage with the effect of that pre-existing condition on Ms Lu’s current impairment. Once the Medical Assessor had accepted that there was such a history he was required to consider whether it had created any relevant impairment which contributed to the current impairment.[12] His diagnosis that the previous condition “relapsed” or “exacerbated” Ms Lu’s current condition carried with it an assumption that the previous condition had indeed contributed to the current impairment caused by the subject injury.

    [12] See Cole v Wenaline Pty Ltd [2010] NSWSC 526.

21. In Ferguson v State of New South Wales[13] Campbell J said at [24]:

    “24.   The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.”

    [13] [2017] NSWSC 887 (Ferguson).

22. In the present case the Medical Assessor did not make any finding as to Ms Lu’s honesty beyond finding that her consistent denials made it difficult to determine the nature and extent of her mood and anxiety problems before she began work with the appellant employer.

23. We do not agree, with respect, that there was any such difficulty at all. The contemporaneous records describe a psychological problem in almost identical circumstances to those which had occurred in 2018, for which psychological treatment was still being given the month before Ms Lu commenced her employment with the appellant employer. This evidence demonstrated the probability that the earlier experiences had played a major role in the occurrence of the subject injury. Indeed, as indicated, the Medical Assessor described Ms Lu’s condition as a “relapse” or “exacerbation” of her earlier condition.

24. The Medical Assessor accepted that because of the inconsistencies, Ms Lu did have a pre-existing condition. It follows that the Medical Assessor did not accept her denial of any pre-existing mental health condition. His subsequent comments at [10c] confirmed that finding.

25. The error made by the Medical Assessor was that he failed to adequately explain his assessment of 1/10^th pursuant to s 323(2). He noted himself that the circumstances were “almost identical” with those of 2018, and he also found that the nature of the injury was either a relapse or an exacerbation. We agree with that diagnosis, but for the following reasons think it more probable that Ms Lu suffered an exacerbation.

26. Firstly, the circumstances of Ms Lu’s previous condition, evidenced chiefly by the clinical notes, were markedly similar to the subject injury.

27. Secondly, the symptoms characterising this condition had been ongoing since May 2018. They were present and necessitated treatment in the month prior to Ms Lu’s commencement with the appellant employer. Given the proximate nature of this treatment for a highly symptomatic condition it is unlikely that Ms Lu suffered a relapse, as we doubt whether Ms Lu was in remission from her pre-existing condition.

28. Thirdly, given the nature of this pre-existing condition, and the well-recognised negative attributional biases associated with depression and anxiety, it may well have constituted a significant cause of the subject injury and accordingly contributed substantially to the impairment caused by Ms Lu’s employment with the appellant employer.

29. In any event, the effect of the pre-existing condition was a relevant fact, as we noted above. We acknowledge that caution must be exercised in drawing inferences from clinical notes. We also observe that ADP Parker stated in Yang v Industrie Clothing Pty Ltd[14] at [65]:

    “….However, multiple entries from multiple doctors over a long period of time, in the absence of explanation, must be given some weight.” -

    [14] [2022] NSWPICPD 10.

30. This dicta applies to the present appeal. The Medical Assessor did not explain how it was that the 2018 condition was of such little import that it warranted only the application of the statutory assumption. Having found that Ms Lu had suffered an exacerbation, the Medical Assessor did not explain why no impairment had been caused by the pre-existing condition which had caused the relapse and exacerbation, beyond 1/10^th. This was not a matter which was lacking in evidence, as it was before him.

31. To employ the language used by Campbell J in Ferguson, the Medical Assessor has accordingly made a deduction that was glaringly improbable, as it was based on an unsupportable reasoning process.

32. The MAC must therefore be revoked. The clinical records demonstrate that Ms Lu suffered from a prior psychological condition, and it may be (although we express no view either way) that her conduct in misleading the experts was also a part of that condition. In any event, the similarity and temporality of the pre-existing conditions satisfies us that the 2018 condition contributed an impairment to that caused by the subject injury. However the contribution was of a far greater extent than the 1/10^th found by the Medical Assessor. We find that the appropriate extent of between one quarter and one third of the current impairment is not at odds with the evidence. Doing the best we can, we find the appropriate deduction to be 3/10^th.

33. With regard to the appellant employer’s submission that the assessments made regarding three categories of the PIRS should be revisited, we find they were open to the Medical Assessor. He was dealing with a complex and unusual injured worker and in particular the behavioural consequences of her psychiatric disorder.[15] He was required to assess Ms Lu as she presented, and her past medical history was not relevant to her condition at assessment, save of course that it was responsible for an impairment that contributed to her condition on presentation.[16]

    [15] See Chapter 12.12 of the Guides.

    [16] See Chapter 1.6a of the Guides.

34. For these reasons, the Appeal Panel has determined that the MAC issued on 11 October 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter number:	W1565/22
Applicant:	Willoughby City Council
Respondent:	Xiao Chun Lu

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Dr Douglas Andrews and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - whole person impairment (WPI)

Body Part or system	Date of Injury	Chapter, page and paragraph number in WorkCover Guides	Chapter, page, paragraph, figure and table numbers in AMA 5 Guides	% WPI	Proportion of permanent impairment due to pre-existing injury, abnormality or condition	Sub-total/s % WPI (after any deductions in column 6)
Psychiatric	11 February (deemed)	Chapter 11 p.54	n/a	19%	3/10	13% (rounded)
Total % WPI (the Combined Table values of all sub-totals)					13%