1. On 21 October 2025 Samantha Bailey, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Surabhi Verma, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 24 September 2025.
2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
   • the assessment was made on the basis of incorrect criteria, and
   • the MAC contains a demonstrable error.
3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed

1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). "WPI" is reference to whole person impairment. "Baseline WPI" is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.

1. On 27 August 2025 this matter was referred for a WPI caused by psychiatric/psychological disorders which occurred on a deemed date of 15 December 2023.
2. Ms Bailey was employed as a Property Manager when she was bullied and harassed by two colleagues over the period of her employment between November 2023 and mid February 2024.
3. A meeting was held in January 2024 but things did not improve and she was transferred to another department within property management. In that other department she was also bullied and left after two weeks.
4. The Medical Assessor found 9% WPI.

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 worker to undergo a further medical examination. Ms Bailey did not seek to be re-examined by a member of the Panel and as no error was found, a re-examination was not necessary.

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

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

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

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.

1. The Medical Assessor took the following details as to Ms Bailey's present treatment:[1]

"She is currently seeing a psychiatrist every month. She saw a psychologist for nearly a year and worked on EMDR, but then stopped seeing this Psychologist when she had 'severe reaction to the EMDR' as the Psychologist 'sped up the sessions.' She is currently on Mirtazapine 45 mg, Venlafaxine 150 mg, and Quetiapine 100 mg. She is also on Atorvastatin 40 mg, HRT gel, and Candesartan 4 mg."

1. The Medical Assessor took the following history regarding Ms Bailey's past medical history:[2]

"Details of previous subsequent accident injuries condition: Ms Bailey reported that in 2012, she developed depression in the context of workplace bullying and saw a psychiatrist then. She took the antidepressant venlafaxine and continued taking it until she started working with her current employers. Ms Bailey reported that her dog passed away this year, and she said that 'he was the only reason I was getting up.' She added that she used to feed him and she has lost that purpose. She said that it 'definitely impacted her health and deteriorated her mental health'."

1. With regard to Ms Bailey's daily activities, the Medical Assessor noted relevantly:

"Social and recreational activities: She mentioned that she had previously been in touch with four school friends regularly before the incident, as well as another friend who lives locally. She said she has stopped seeing her friend as she is not up to it. She receives occasional text messages from her friends. She said she saw one friend once at her birthday lunch, but does not want to see them anymore, as she feels awkward talking to them. Until her dog passed away, she enjoyed catching up with a large group of dog owners, but she has stopped since then. I noted that the documents mentioned she was able to attend Pilates. I highlighted that the documents stated she was going to Pilates and catching up with her mother and sister, as mentioned in the document dated 24 September 2024. She replied that she was attending the gym intermittently and doing Pilates, but she was unable to continue. I believe she has mild impairment in social and recreational activities. It was noted that she continued socialising with the dog group even after the incident at work, stopping only when her dog died."

"Social functioning: She has two brothers and two sisters. Her mother visits her, and she also visits and stays with her at times. She reported remaining single since the incident at work but has lost most of her friendships."

1. In her summary the Medical Assessor said at [7] of the MAC:[3]

"Ms Bailey is a 57-year-old single female who lives in Nelson Bay. Ms Bailey has a past history of being diagnosed with depression in 2012 in context of workplace bullying. She was commenced on anti-depression Venlafaxine and has been on that since then. At the time, when she started working with index employers she was still on Venlafaxine, but denied experiencing any mental health symptoms.

1. At [10c] the Medical Assessor considered the evidence before him. Relevantly he said:

"I have noted IME by Dr Abhishek Nagesh dated 11 February 2025, I agree with the diagnosis of Major Depressive Disorder, however, I have noted that with regards to the past history, there is no mention of Ms Bailey being on the antidepressants when she started working with her employers. I have also noted the WPI as calculated. I agree with the calculation in the various areas except for the area of concentration, persistence and pace. Although, Ms Bailey subjectively reported significant difficulties. She has been able to take care of her finances including paying her bill online and on time. She was able to focus and concentrate during the assessment and was not distracted. There were no significant cognitive deficits noted.

IME by Dr Simmi Kumari dated 26 [M]ay 2025, Dr Kumari concluded that the presentation was consistent with the diagnosis of Adjustment Disorder with mixed anxiety and depressed mood. She calculated the WPI as 9%. Kindly note that my WPI is same however my ratings in social and recreational activities and concentration persistence and pace differ.

1. At [11] the Medical Assessor discussed the one tenth deduction she made pursuant to s 323. She said:[4]

"(i) Ms Bailey has a past history of being diagnosed with depression in the context of workplace-related bullying and sexual harassment in 2012, and has remained on Venlafaxine and was on it even when she commenced working with her next Employer

1. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
   1. The pre-existing history of Major Depressive Disorder contributes to her current presentation, as the past history predisposed her to develop exacerbation of her symptoms in the context of the workplace incidence."

Ground one - mischaracterising "social and recreational activities" and erroneously assigning a level of impairment to "social functioning"

1. Ms Bailey noted that the Medical Assessor gave a Class 3 rating for the social and recreational activities category of the Psychiatric Impairment Rating Scale (PIRS).
2. Ms Bailey reproduced the Medical Assessor's reasons for that rating. Ms Bailey noted that a Class 2 rating had been given in the category of social functioning. We were referred to the findings by the Medical Assessor in that regard.
3. Ms Bailey referred to Ballas v Department of Education (State of New South Wales)[5] and reproduced portions of the judgment. Ms Bailey submitted that the reasons given by the Medical Assessor for the Class 2 rating in the social functioning category were brief, which underscored the mischaracterization Ms Bailey alleged. The rating in the social and recreational activities category, Ms Bailey, submitted was predominantly involved in an evaluation of the regularity with which she saw and communicated with friends and acquaintances, being other dog owners.
4. Ms Bailey submitted that these activities fell squarely within the social functioning category and that the only relevant fact the Medical Assessor found relating to the social and recreational activities category was her attendance at Pilates.
5. Ms Bailey commented that her activities in attending gym and doing Pilates were dated, as she had told the Medical Assessor that she was no longer doing it.
6. Ms Bailey also submitted that the Class 2 rating was demonstrably erroneous. The Medical Assessor's evaluation "plainly" recorded a strain on family relationships and the ending of pre-existing social relationships, Ms Bailey submitted.
7. We were referred to the comment by the Medical Assessor in the body of her report to the effect that she was now a social recluse. This it was submitted constituted a demonstrable error and the Class 2 rating was "beyond the scope" of the Medical Assessor's discretion. We were referred again to Ballas in that regard.
8. Ms Bailey acknowledged that there was a "latitude of opinion" permitted in the assessment process, but submitted that the narrative evaluation and commentary in the body of the report warranted a Class 3 rating and that the Class 2 rating was "plainly outside the range".

Ground two - incorrect criteria and demonstrable error in respect of the scale "concentration persistence and pace"

1. Ms Bailey referred to Chapter 1.6 of the Guides, submitting that the Medical Assessor had misapplied them. The Medical Assessor's conclusion that Ms Bailey's ability to complete her real estate license in August 2024 was relevant to the evaluation of this category on the date Ms Bailey was assessed, 12 September 2025, was said to be demonstrably erroneous.
2. The Medical Assessor was said to have failed to engage with the evidence, including the statement evidence and the assessments of the medico-legal specialists Dr Nagesh and Dr Kumari. This was because the Medical Assessor had failed to provide reasons that disclosed a supportable reasoning process for her conclusions, which were contradicted by that material. This, it was argued, constituted an application of incorrect criteria because Ms Bailey was not assessed as she presented on the day of the assessment.
3. We were referred to the reasons given by the Medical Assessor for the Class 2 rating which included Ms Bailey's complaints that she was limited in her ability to watch and comprehend television, that she had not played mobile games at any time and that she did not read books and she often forgot what she had read.
4. It was submitted that the Medical Assessor's evaluation suggested a greater capacity as the Medical Assessor noted that Ms Bailey took care of her bills and finances and was able to complete the real estate licence in August 2024 and was able to focus and pay attention during the entire assessment.
5. Ms Bailey noted that the Medical Assessor had acknowledged a note from Dr Felicity Fizelle regarding Ms Bailey's activities on 24 September 2024. This it was submitted, established that the real estate licence had been obtained by 24 September 2024 and that an earlier note of 14 March 2024 demonstrated that she was in the process of obtaining it.
6. Ms Bailey argued that the Medical Assessor did not discuss the length of the course or its inherent requirements. She did not establish the commencement date nor the usual time taken to complete the course. It was accordingly not open for the Medical Assessor to conclude that, because she had completed a course in August 2024, it was relevant to her level of impairment in this category.
7. We were referred again to Chapter 1.6 and it was submitted that the Medical Assessor had "impermissibly used the nebulous criterion" regarding the completion of Ms Bailey's real estate license to assess the level of impairment as at the date of presentation, 12 September 2025.
8. It was submitted that it was not open for the Medical Assessor to conclude that the completion of the course in August 2024 was relevant to the level of impairment assessed. Moreover, it was submitted that the Medical Assessor had misapplied Chapter 1.6(a) by "adopting a retrospective focus derived from secondary material" rather than assessing her as she presented on the day of assessment.
9. Ms Bailey then argued that the interpretation made by the Medical Assessor of Dr Fizelle's note of 24 September 2024 was erroneous. Ms Bailey had said in her statement of 16 July 2025 that as of 22 December 2023 she had three units to complete for her real estate licence by the end of March 2024. This evidence, it was submitted, underscored the error in the Medical Assessor's approach, as the completion of the licence in August 2024 said little of her degree of impairment as at that date, "much less than 12 September 2025".
10. In contrast Ms Bailey submitted, her statement of 16 July 2025 set out a substantial degree of impairment, and three paragraphs of that statement were repeated.
11. Ms Bailey then referred to the opinion of Dr Abhishek Nagesh who on 11 February 2025 had assessed a Class 3 rating. Dr Nagesh's reasons were reproduced, as were the comments made by the Medical Assessor regarding Dr Nagesh's opinion.
12. We were also referred to the report of Dr Simmi Kumari who too assessed a Class 3 impairment. Dr Kumari's reasons for that rating were given, and Ms Bailey referred to the comment made by the Medical Assessor that noted that his assessment differed.
13. Ms Bailey referred to a number of matters she had told the Medical Assessor, which she submitted was contrary to the rating given by the Medical Assessor. She submitted that the fact that she paid her bills and finances online was an ordinary activity which said little of her impairment in this category. Ms Bailey also submitted that the Medical Assessor's comment that she was able to focus and pay attention during the assignment was not a relevant matter, as it was an inherent requirement of the process itself.

Ground three - "The medical assessor misconceived the application of s 323 of the 1998 Act and in the alternative, the medical assessor failed to apply Clause 11.8 of the guidelines to consider the effects of medication, treatment and rehabilitation to date"

1. Ms Bailey kindly reproduced the terms of s 323 and referred to the comments made by the Medical Assessor regarding her past psychiatric history. Ms Bailey submitted that that her pre-existing history did no more than render her more vulnerable to subsequent injury and that it had therefore not contributed to her current impairment.
2. We referred to the well-known case of Cole v Wenaline Pty Ltd[6] in that regard. It was submitted that there was no evidence that demonstrated how a previously treated condition caused any contribution to the baseline impairment caused by the present injury.
3. The Medical Assessor had accordingly failed to give adequate reasons, as she did no more than identify the previous psychological history.
4. The Medical Assessor had failed to address the critical issue of causation, it was submitted.
5. Alternatively Ms Bailey submitted that the Medical Assessor had failed to apply the provisions of Chapter 11.8 of the Guides to consider the effects of medication, treatment and rehabilitation in view of the role of medication had played in her previous injury.
6. Ms Bailey referred to the Medical Assessor's review of that earlier treatment.

1. O'Meara Property Pty Ltd (the respondent) submitted firstly that it was unclear whether Ms Bailey was appealing against the Class 3 assessment for social and recreational activities category or the Class 2 assessment for social functioning. Ms Bailey, it was submitted, had not referred to any incorrect criteria with regard to either category, nor any mischaracterisation in the Medical Assessor's reasons.
2. There had been no infringement of the principles in Ballas, the respondent submitted. Whilst there was some overlap between the two categories, neither of them had been mischaracterised in the Assessor's reasoning.
3. It was submitted that the findings made by the Medical Assessor were open to him on the evidence.

1. The respondent referred to Chapter 11.12 of the Guides in stating that the descriptors in the various classes were not criteria but were examples only.
2. It submitted that the Class 2 impairment for concentration persistence and pace was appropriate.
3. The respondent denied that the Medical Assessor had infringed the provisions of Chapter 1.6 of the Guides. It submitted that there had been no contravention of the terms of that guideline. The detail of Ms Bailey's attaining her real estate licence was not required, the respondent submitted, citing Hazelton v Royal Freemasons Benevolent Institution.[7] A Medical Assessor was not required to refer to every aspect of the history taken in completing the PIRS table, it was submitted.
4. We were further referred to Ferguson v New South Wales,[8] which we will discuss below.
5. The respondent submitted that in order to establish error a claimant had to show that there was more than a difference of opinion at play.
6. As to the submission that the Medical Assessor did not engage with Ms Bailey's statement evidence, or adequately consider the medical evidence, the respondent referred to State of New South Wales (NSW) Department of Education v Kaur[9] and its exposition of the well-known High Court case of Wingfoot Australia Partners Pty Ltd v Kocak.[10]
7. The respondent submitted that the Medical Assessor had recorded an extensive history which was supported by the evidence. and had provided detailed reasoning for her assessments. She explained her actual path of reasoning to the standard set out by the above authorities and thus no error had been made out.

1. As to the deduction under s 323, the respondent referred to the Medical Assessor's reasons and submitted that she had clearly identified the pre-existing condition and had made no error in making the deduction pursuant to s 323 (2).
2. The submissions made by Ms Bailey were misconceived, the respondent said, in view of the contents of Chapter 1.32 of the Guides. The respondent referred to the narrative given by the Medical Assessor as to Ms Bailey's prior psychiatric history and submitted that the evidence did not enliven Chapter 11.8.
3. We were referred to Zoric v Secretary, Department of Education[11] regarding the application of Chapter 1.32.
4. The respondent submitted that the guidelines had been complied with.

1. The PIRS is established as the rating system for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
2. Chapter 11.12[12] provides:

"Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person's cultural background. Consider activities that are usual for the person's age, sex and cultural norms."

1. The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[13]
2. The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[14] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Review Panel had fallen into jurisdictional error. He said at [23]:

"By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:

'... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face'.

1. 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.
2. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides 'the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment': Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are 'examples only': see Jenkins v Ambulance Service of New South Wales[15]. The Appeal Panel said 'they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected': Appeal Panel reasons at [37]."
3. In Glenn William Parker v Select Civil Pty Ltd,[16] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:

"In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24]) ....."

"It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review."

1. It is accordingly a useful approach for the Review Panel to enquire whether the assessment by the AMS in this category involved one of the following matters (to use the reference by Campbell J in Ferguson):

(a) if the categorisation was glaringly improbable;

(b) if it could be demonstrated that the AMS was unaware of significant factual matters;

(c) if a clear misunderstanding could be demonstrated, or

(d) if an unsupportable reasoning process could be made out.

1. In Lancaster v Foxtel Management[17] Basten AJ noted at [88]-[89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
2. The tension between these descriptors, which we apprehend the authors of the Guides foresaw, in the many different possible scenarios within the six categories of the PIRS and the classifications thereof, is the basis for the reservation in Chapter 11.12 that the descriptors are intended to be non-binding examples, giving a general guide to the level of the behavioural consequences of the particular psychiatric disorder, and thus allowing a wider discretion to be applied than if the descriptors were intended to be strict criteria.

1. The appellant, Ms Bailey, appeals firstly against the Class 3 rating assessed for social and recreational activities. We found the submissions difficult to follow, but it seems the appellant was arguing that some of the reasons given by the Medical Assessor for the Class 3 rating were incorrect. The examples she had used, Ms Bailey said, ought properly to have been used in the social function category.
2. The result of this adjustment, if Ms Bailey's argument had been accepted, would be that the Class 2 rating in the social functioning category would be increased to Class 3, as we understood the submission. That logic carries with it a conundrum. If the social functioning category should obtain the benefit of these examples, then it would follow that the Class 3 rating for the social and recreational activities category should be reduced by the same margin. That would result in exactly the same entitlement - 9% WPI. The only way Ms Bailey could pass the desired 15% threshold would be if the Class 3 rating for the social and recreational activities were also retained. No submissions were made in that regard. It follows that on the appellant's own argument her submission must fail.
3. We would observe that in any event the hypothesis itself was without foundation. It was built on an assumption that the dicta Ms Bailey relied on in Ballas meant that a Medical Assessor could not assign a particular behaviour to more than one category (or "scale"). Thus every time an Medical Assessor considered under one category an activity which properly fell under another, he or she committed jurisdictional error which could be the subject of review in the Supreme Court.
4. This interpretation has been doubted in subsequent authority. The relevant cases have been discussed in Diaz v Sydney International Container Terminals Pty Ltd,[18] For present purposes we refer to the judgement of Basten AJ in Lancaster v Foxtel Management_,_[19] where at [70] his Honour set out the passage at [94] of Ballas relied on by Ms Bailey. From [71], he said:

"The function of the delegate under s 327(4) [of the 1998 Act] was to determine whether the appellant had identified a ground which was capable of constituting 'demonstrable error' on the part of the medical specialist. That error did not need to be a legal error. Accordingly, the assessment of a particular activity under the wrong 'scale' could constitute a factual error. Clearly it was an error which was reviewable by an appeal panel. As the joint reasons in Ballas sought to make clear, the exercise being undertaken by the medical specialist was evaluative, not discretionary....

[72] The plaintiff's reading of Ballas would have surprising consequences. It would mean that every time a medical specialist considered under one scale an activity which a court determined properly fell under another scale, he or she committed jurisdictional error which could be the subject of review in the Supreme Court..."

1. Thus, the question of whether particular conduct was applicable to one category or another is an evaluative one, as indeed is the question whether particular conduct may be associated with more than one category.
2. The relevant class descriptors for social and recreational activities are set out in Table 11.2 of the Guides:

"Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.

Class 2 Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).

Class 3 Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn."

1. In his Table 11.8. Rating Form the Medical Assessor found a Class 3 rating, repeating the above findings he gave in the body of his report, namely:

"She said that she previously had four school friends whom she was in touch with regularly before the incident and another friend who lives in the local area. She said that she has stopped seeing her friend as she is not up to it. She receives text messages from her friends at times. She said that she has seen her once when she attended her birthday lunch, but does not want to see them anymore as she feels awkward when talking to them. Up until her dog passed away, she enjoyed catching up with the with a big group of dog owners but has stopped doing them since her dog passed away. I have noted that the documents mentioned that she was able to go to Pilates. I highlighted that the documents stated that she was going to Pilates and catching up with the dog walking through and with her mom and sister as mentioned in the document dated 24 September 2024 to which she replied that she was attending gym on and off and doing Pilates, but she was not able to continue doing it. I believe that she has mild impairment in the area of social and recreational activities. I have noted that she was able to continue socialising with the dog group even after the incident at work and only stopped doing so when her dog died."

1. Ms Bailey's summary of those reasons was that they were predominantly an evaluation of the degree of regularity with which she saw friends and acquaintances, including the other dog owners. We were left in some doubt as to how her behaviour had been "mischaracterised." Seeing friends and walking the dog are social are recreational activities. They are age, sex and culturally appropriate to Ms Bailey's situation as a 57-year-old woman. The Medical Assessor accepted that Ms Bailey no longer socialises with the dog owners, or that she continued doing Pilates or going to the gym, notwithstanding that she had to prompt her about the latter activities. She noted that evidence and assessed Class 3. She accepted that Ms Bailey rarely went out, since her dog had died.
2. She agreed with Dr Nagesh, Ms Bailey's medico-legal specialist, whose rating on 11 February 2025 had also been Class 3. He disagreed with the class 2 rating assessed by Dr Kumari on 26 May 2025. Dr Kumari had noted that "[Ms Bailey] attended only a few social events" in the body of his report, and said in her rating form:[20]

"Mild impairment: She occasionally goes out to such events without needing a support person, but does not become actively involved (e.g. dancing, cheering favourite team). She is avoiding most of the social activities."

1. Ms Bailey's approach to this ruling was novel, as we have discussed above. However we are not satisfied that the assessment of the social and recreational activities category was erroneous, for the above reasons. Ms Bailey was arguing against the opinion of her own expert and we are unconvinced by her argument.
2. We had further difficulty with Ms Bailey's submission that the Medical Assessor's findings regarding the degree of regularity of seeing and communicating with friends and acquaintances (namely other dog owners) rather "fell squarely" into the social functioning category.
3. The relevant descriptors for this category are contained in Table 11.4 of the Guides:

"Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).

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

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

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

Class 5 Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact."

1. The Medical Assessor rated Class 2 in this category, saying:

"She has two brothers and two sisters. Her mom comes and visits her and she too goes and visits and stays with her at times. She reported that she continues to be single as before the incidence at work, but has lost most of her friendships."

1. Ms Bailey relied on the allegedly mischaracterised findings from the social and recreation category to submit that if they were added to the Medical Assessor's Class 2 reasons, a Class 3 rating should then be given. The added findings were said to fit in "squarely" because they demonstrated a degree of communication with Ms Bailey's friends and dog owner acquaintances. Ms Bailey did not advance any argument as to how the added findings would achieve a change in the rating. There was no suggestion that they evidenced any severely strained previous relationship, or that there were periods of separation or domestic violence, or that there were any children being looked after - the area of conduct concerned with Class 3. We doubt that the added findings would have had any effect on the Class 2 rating assessed for social functioning.
2. We accordingly find that the Medical Assessor made no error in the ratings given for these two categories. Ms Bailey's submissions were, with respect, misconceived.

"Class 1 No deficit, or minor deficit attributable to the normal variation in the general population. Able to pass a TAFE or university course within normal time frame.

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 of 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 (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.

Class 4 Severe impairment: can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.

Class 5 Totally impaired: needs constant supervision and assistance within institutional setting."

1. The Medical Assessor gave the following reasons for his Class 2 rating:

"Ms Bailey reported that she takes care of her bills and finances and pays it online. She watches TV and prefers to watch shows. She watches TV for about 15 minutes and does not feel like watching it. She is unable to remember the storyline and characters. She does not play mobile games and did not used to play it even before. She does not read any books as she often forgets what she has read. She was able to complete the real estate licence in August 2024 which was after the incidents at work and once she had stopped working. She was able to focus, pay attention during the entire assessment."

1. The gravamen of Ms Bailey's challenge was that the Medical Assessor's inclusion of Ms Bailey's successful completion of her real estate license was erroneous, because although it was not challenged that she was working on her real estate license course on 11 March 2024 or that she had completed it in August 2024, the Medical Assessor did not have sufficient evidence about the details of the course to enable her to find that its completion was relevant.
2. Ms Bailey referred to the clinical notes of her psychologist, Ms Felicity Fizelle, saying that they established that she was doing the real estate course on 14 March 2024, and had completed by 24 September 2024.
3. The entry in Ms Fizelle's notes of 14 March 2024 stated:

"Prior to the incidents at work - was happy, energetic and loving her work and doing a course to get her real estate licence."

"It is going to Pilates, catching up with dog walking group and mum and sister. Received real estate licence."

1. We were referred to Ms Bailey's statement dated 16 July 2025 in which she said at [17]:

"On or about 22 December 2023, I found myself sitting alone during Secret Santa. After the gifts were distributed, everyone left for the 2023 Christmas Break. I did not feel like catching up with my friends or family. I did not want to talk about work, as I was feeling tired and flat. I thought it was a good opportunity to work on my Real Estate course Certificate IV as I had three units to complete by the end of March 2024."

1. Whilst it is correct that error would be demonstrated if a Medical Assessor had been unaware of significant factual matters, error is not demonstrated where the alleged factual matters were unidentified, as is the case before us. The Medical Assessor had before her evidence that subsequent to Ms Bailey's injury, Ms Bailey continued with, and completed, her real estate licence.
2. If the appellant thought that the commencement date in the course was relevant, if she thought the length of the course and its inherent requirements were relevant, and if the usual time taken by candidates to complete the requirements of the course had some relevance to Ms Bailey's situation, such information should have been before us - if necessary by the procedure afforded by s 328(3) of the 1998 Act.
3. It was a reasonable inference for the Medical Assessor to conclude that a person who was able to complete such a course would be able to undertake a basic retraining course, or a standard course at a slower pace, and to be able to focus on intellectually demanding tasks for periods up to 30 minutes, which examples are given for a Class 2 assessment. The completion of the course did not raise questions that the appellant was unable to read more than newspaper articles or found it difficult to follow complex instructions, which was the general tenor of a Class 3 impairment.
4. The appellant secondly argued that error had been demonstrated because the Medical Assessor had infringed the provisions of Chapter 1.6 of the Guides.
5. Chapter 1.6 of the Guides provides:

1.6 The following is a basic summary of some key principles of permanent impairment assessments:

1. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant's relevant medical history and all available relevant medical information to determine:
   • whether the condition has reached Maximum Medical Improvement (MMI)
   • whether the claimant's compensable injury/condition has resulted in an impairment
   • whether the resultant impairment is permanent
   • the degree of permanent impairment that results from the injury
   • the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines."

1. The infringement was said to be that "the Medical Assessor impermissibly used the nebulous criterion that she had completed her real estate licence in August 2024 to assess her level of impairment as of 12 September 2025, the date of assessment." There had been, it was submitted, a misapplication of Chapter 1.6a because the Medical Assessor had adopted a "retrospective focus."
2. This submission, with respect, rather turned a blind eye to the rest of Chapter 1.6 which, as can be seen, requires a Medical Assessor not only to clinically assess a claimant on the date of assessment, but also to take into account the relevant medical history and all available relevant medical information to determine relevantly the degree of permanent impairment that results from the injury. We regard completion of the real estate licence as being relevant medical information that informed the Medical Assessor's consideration of this category.
3. Ms Bailey next submitted that the obtaining of the real estate licence said little about the degree of impairment she was suffering when she was assessed on 12 September 2025. She relied on [89]-[91] of her statement of 16 July 2025:

"89. My tiredness, anxiety and low mood from my injury have affected my ability to concentrate. I have given up on trying or doing things. I find it hard to remember things, to concentrate or make simple decisions.

1. I cannot work fast, remember things, concentrate properly; I don't want to be around anyone, and particularly strangers. Just thinking about this causes me huge anxiety, as I feel I will fail and scared of getting into trouble and being bullied.
2. My injury has totally ruined my self-esteem, I have lost faith in my ability to do anything correctly and fear being verbally abused. I no longer trust my decision making skills. I now have trouble making any decisions. My injury makes me feel exhausted all the time."
3. We were also referred to the Medical Assessor's comments regarding the medico-legal opinions before her, which we have referred to above. The appellant also referred to the recorded complaints she made to the Medical Assessor. When recording Ms Bailey's present symptoms, the Medical Assessor noted that her energy levels were often low; when recording her findings on mental state examination[21] the Medical Assessor recorded Ms Bailey's complaint of ongoing negative ruminations, intrusive thoughts, and low mood, lack of interest in activities and social withdrawal. In her summary, the Medical Assessor noted that Ms Bailey exhibited a number of subjective symptoms.
4. The appellant submitted that the Medical Assessor had "fail[ed] to engage with the statement evidence and the differing assessments of Dr Nagesh and Dr Kumari" and that the A Medical Assessor had failed to disclose "a supportable reasoning process for conclusions contradicted by that material."
5. It is axiomatic that the assessment of psychological injury is not based on a claimant's self-report. There are many reasons why a Medical Assessor might not accept some or all of the injured person's complaints. In State of New South Wales (NSW Department of Education v Kaur[22] Campbell J cited the often-cited judgement in Wingfoot at [25], relevantly:

".....The function of a [Medical Assessor] is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give [his/her] own opinion on the medical question referred to him/her by applying the Assessor's own medical experience and own medical expertise."

1. Accordingly, the opinions of other experts, and indeed all the evidence before the Medical Assessor, have a bearing on the medical question before her, but only insofar as they assist her to fulfil her function. Whilst the rating of a medical specialist from one side or the other might be the same as determined by the Medical Assessor, such a view is relevant only to the extent that it coincides with the application of the independent opinion reached by the Medical Assessor after she has exercised her own clinical judgement. Similarly a claimant's self-assessment during the consultation or elsewhere in the evidence is very much subject to the exercise of a Medical Assessor's clinical judgement.
2. This rating is confirmed.

1. Section 323 of the 1998 Act 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."

1. The Medical Assessor deducted one tenth from the baseline impairment pursuant to s 323(2), as indicated above. At [11] she nominated the pre-existing condition as being the depressive state Ms Bailey was diagnosed with after a workplace related bullying and sexual harassment case in 2012. The Medical Assessor noted that Mr Bailey had remained on venlafaxine, and was continuing to take this medication when she commenced work with her next employer. This past history, the Medical Assessor explained, predisposed her to develop exacerbation of her symptoms in the context of the workplace incident.
2. Ms Bailey made a reference to the generic term used by the Medical Assessor at [8g] of the MAC, namely "mental health". We had difficulty in understanding the relevance of that reference.
3. It was then the submitted that the reasons in [11] of the MAC could be interpreted as saying no more than that the pre-existing Major Depressive Disorder, for which Ms Bailey was compensated in the sum of $500,000, was no more than a vulnerability. We were not referred to any medical opinion that confirmed that submission. Dr Nagesh said that Ms Bailey had been in complete remission at the time of the subject injury, but this was contradicted by the evidence that Ms Bailey has been taking Venlafaxine since her 2012 injury. Dr Kumari took the history of the 2012 depression, and deducted 1%.[23]
4. Moreover, during her treatment for her 2012 injury, Ms Bailey was treated by psychiatrist Dr Rosalie Wilcox, whose clinical notes were before us. On 6 October 2017 Dr Wilcox reported:[24]

"...Samantha has been under my care for several years. She has had a torrid time with a stressful Work Cover Claim and has had severe depression with at times persecutory ideation."

1. We reject the submission. Ms Bailey's pre-existing condition was a fully diagnosed psychiatric injury, namely Major Depressive Disorder with mood-incongruent psychotic features.[25]
2. Alternatively Ms Bailey submitted that the Medical Assessor had failed to apply Chapter 11.8 of the Guides, which provides:

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

1. This was another submission that we had some difficulty in following. It was not explained how this guideline would affect the calculation of WPI. We note that a Medical Assessor is enjoined not to alter her estimate of further impairment should a claimant decline treatment, but otherwise the guideline is not relevant to the assessment of WPI.
2. The respondent assumed that Ms Bailey's submission incorporated Chapter 1.32 of the Guides, which does permit a modifier to be given to the baseline WPI where effective long-term treatment of an illness resulted in apparent substantial or total elimination of a claimant's permanent impairment. This submission however was not made, and could not have succeeded in any event, as the treatment regime relied on by the appellant did not suggests there was any apparent substantial or total elimination of Ms Bailey's permanent impairment.
3. For these reasons, the Appeal Panel has determined that the MAC issued on 24 September 2025 should be confirmed.

[1] Computer clock page 35 (the appeal papers were not paginated).

[5] [2020] NSWCA 86.

[6] [2010] NSWSC 78.

[7] [2025] NSW PICMP 885.

[8] [2017] NSWSC 887.

[9] [2016] NSWSC 346

[10] [2013] HCA 43.

[11] [2024 NSWSC 131.

[13] See 11.15-11.21 at Guides page 65 and Table 11.7 at Guides page 66.

[14] [2017] NSWSC 887.

[15] [2015] NSWSC 633.

[16] [2018] NSWSC 140.

[17] [2022] NSWSC 929.

[18] [2024] NSWPICMP 437.

[19] [ 2022] NSWSC 929. See also Keelan v Pearl Beach Real Estate Pty Ltd [2024] NSWSC 1430 per Elkaim J from [56]-[61].

[21] The template the Medical Assessor was using referred to "physical examination", but psychiatrists conduct mental state examinations.

[22] [2016] NSWSC 346.

[25] See Dr Wilcock's opinion of 5 September 2013 at computer clock page 376.