1. On 24 February 2025 Gulshan (Jenny) Bhatia (the appellant) 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 29 January 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

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 because none was requested, and the Panel is satisfied that we have sufficient evidence before us to enable us to determine this appeal without any re-examination of Ms Bhatia.

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

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
2. In summary, the appellant submits that the Medical Assessor erred in his whole person impairment (WPI) assessment of two of the categories of the PIRS, namely self -care and personal hygiene and social and recreational activities.
3. In reply, the respondent submits that no errors were made.

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.
3. The appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury occurring on a deemed date of injury of 17 October 2018.
4. The Medical Assessor obtained the following history:

"Mrs Bhatia provided a detailed statement on 23 October 2024, outlining her perception of the cause of her injury, treatment, and daily living activities. In her statement of 23 October 2024, Mrs Bhatia describes the incidents in the workplace that she believes led to her injury. She started work with the NSW Department of Education in 2000 and had problems starting in 2004. She felt bullied, discriminated against and isolated from other staff. This became worse in 2007 when there was a head-teacher change. She first sought treatment in 2010. She attended Richmond High School in 2011, and problems re-emerged in 2016 when the new head teacher suggested she seek a transfer. This continued over the next several years. Symptoms likely reappeared gradually but were apparent by 2028. Mrs Bhatia was off work from 2019 through to late 2022. In October 2022, she returned to work on reduced hours, but this didn't work."

Psychiatric medication: mirtazapine 30 mg nocte and haloperidol 0.5 mg nocte.

Mrs Bhatia has been on this combination of medications for the last 2-3 months. She had been on other antidepressants between 2020 and 2022 before having a period off psychotropic medication.

Mrs Bhatia said it was "hard to say" whether she had improved. She said, "Because of the ongoing bullying and habitation, it's gotten worse in a way." She experiences panic symptoms when she receives communication from the education.[sic]."

Mrs Bhatia has a low mood without diurnal variation. It is sometimes worse in the afternoon and reactive to circumstances. She feels ashamed and embarrassed and has nothing to look forward to. She has lost confidence.

She is anxious and worries about her job and "people gossiping about me." She has somatic symptoms such as abdominal upset and nausea. She experiences panic attacks once a month.

She has subjective problems with concentration, attention and memory.

She is frustrated, irritable and occasionally angry.

She was unable to give a clear answer as to whether she had experienced thoughts of suicide.

She has disturbed sleep with initial and middle insomnia and occasional distressing dreams.

Her appetite is reduced, but she eats a good-quality diet."

"Work history including previous work history if relevant:

Mrs Bhatia was born in India and raised with a younger sister and brother. She grew up in a safe and caring family that valued education. While in India, she earned a Bachelor of Science and a Bachelor of Education. She was married in India and migrated to Australia in 1990. Between 1990 and 2000, she worked as a casual teacher and, for 7 years, as a bank officer. She commenced teaching in 2000. She has a 44-year-old daughter and a 37-year-old son. Through her son, she has a granddaughter.

Mrs Bhatia lives in a freestanding house at Beaumont Hills with her husband, a retired engineer, and her daughter, who works full-time.

She rises between 5 and 6 AM. She often does yoga and breathing exercises in the morning, takes a short walk and then has breakfast.

She showers and wears clean clothes most days, but because her motivation is low, this is often after encouragement from her daughter or husband. She is less attentive to her appearance.

She contributes to housework, including washing, cleaning and meal preparation. She shops for groceries with her daughter or husband.

Before becoming unwell, she enjoyed social outings with friends and family. Her friends were often co-workers.

She is now anxious in social settings and sometimes refuses invitations.

She goes to a restaurant or café with her husband or daughter once a fortnight.

She prefers to be accompanied away from home but can travel locally independently when needed. In 2024, she drove to the Central Coast, a 100 km trip, with her husband to visit a beach.

In July 2024, she travelled to India to see her brother and celebrate her nephew's graduation. She returned to India with her daughter early in very recently and stayed for three weeks. During her time there, she attended lunches and dinners with her extended family and visited Delhi and Hyderabad. On two or three occasions, she went out to see sights.

She has maintained close and caring relationships with her husband, daughter, son and his family, and extended family in India. Because of her social disengagement, she has lost most of her school-based friends. However, she has at least one friend who calls once in a while.

Mrs Bhatia says that she is unable to read. She follows the news superficially and occasionally watches series on Netflix. She struggles to follow the plot or characters, and her daughter sometimes comments on this. She has no hobbies or projects. She used to enjoy gardening, painting and colouring but no longer does these pastimes."

1. Findings on mental state examination were reported as follows:

"I assessed Mrs Bhatia via an audiovisual link in her home with her daughter present as a support person. The connection quality was adequate to do a comprehensive assessment although it briefly dropped out once.

She presented casually attired and well-groomed, wearing a T-shirt, glasses and with her hair tied back.

She was cooperative throughout the interview. She described a low mood and anxiety. Her affect was reactive, consistent with her stated mood and congruent with the interview content.

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

She occasionally struggled with details and event sequences.

When asked at the end of the interview if she had anything else to add, she agreed that we had covered everything necessary. I asked the daughter if she had anything further to add, and she emphasised the extent of her mother's deterioration over the last five years and the change in her personality from bubbly and outgoing to a woman who had lost confidence."

"My diagnoses rely on the Diagnostic and Statistical Manual - Fifth Edition (DSM-5), published by the American Psychiatric Association.

Persistent depressive disorder with an ongoing major depressive episode and anxious distress. Mrs Bhatia has six of the nine described criteria for the diagnosis of a major depressive episode; she has not had significant weight changes, psychomotor agitation or retardation and it is unclear whether she has had thoughts of suicide. Her mood disturbance has been present for more than 2 years, warranting a diagnosis of persistent depression."

"I don't adjust for the effect of treatment because there has not been a substantial or complete elimination of impairment with treatment. Mrs Bhatia said that her condition had not improved."

1. He then summarised the evidence before him and said:

"Treating psychiatrist Dr Susheel Manambrakkat on 21 August 2020 diagnosed Mrs Bhatia with an adjustment disorder with mixed anxiety and depression.

IME psychiatrist Dr David Kumagaya, 6 July 2023, diagnosed Mrs Bhatia with a major depressive disorder and anxious distress. He determined a 19% WPI (classes 2, 3, 2, 2, 3 and 5).

IME psychiatrist Dr Alexey Sidorov, 5 January 2023, diagnosed Mrs Bhatia with an adjustment disorder with mixed anxiety and depressed mood. On 22 November 2023, he determined a 5% WPI (classes 1, 2, 1, 1, 2 and 3).

Comment: A diagnosis of persistent depression or a major depressive episode supersedes that of an adjustment disorder. I note that the assessment of Dr Kumagaya was written 18 months ago and that of Dr Sidorov 14 months ago.

Dr Sidorov found no impairment in self-care and personal hygiene, whereas Dr Kumagaya and I thought the impairment was mild.

Comment: Mrs Bhatia relies on her husband and daughter to encourage her to selfcare. She sometimes skips meals because she has less appetite. She is less attentive to her appearance but contributes to household chores. She practices yoga and breathing.

Dr Kumagaya found a moderate impairment in social and recreational activities, whereas Dr Sidorov and I thought the impairment was mild. Dr Kumagaya wrote:

"Ms Bhatia noted that her low mood and anxiety had precluded her from engaging in any social and recreational activities. Whilst Ms Bhatia previously enjoyed and regularly attended social events with friends, painting, cooking, and gardening, she has not been able to engage in such activities since her workplace injury."

Comment: Mrs Bhatia has given up some activities but is still cooking. In 2024, she went to the beach on the Central Coast and travelled to India twice. In India, she attended family gatherings and went sightseeing on about three occasions. She visits a restaurant or café with her husband or daughter every fortnight. It is expected that a 65-year-old woman from a South Asian background would be accompanied by a family member when taking international holidays.

Dr Sidorov found Mrs Bhatia unimpaired in travel, whereas Dr Kumagaya and I thought her impairment mild.

Comment: Mrs Bhatia prefers to have a family member with her when she travels. She can travel locally independently when necessary but does so infrequently. She would not travel further afield without a close family member.

Dr Sidorov found a mild impairment in concentration, persistence and pace, whereas Dr Kumagaya and I considered the impairment moderate. Dr Sidorov argued:

"There is evidence of mild impairment. Ms Bhatia reports that her memory and concentration have become worse than previously, although there was no objective evidence of this during the assessment."

Comment: Mrs Bhatia has subjective problems with concentration, persistence and pace. She can only read a few lines before losing focus. She follows the headline news and sometimes watches a Netflix series. She struggles to follow the characters or plots. She has no projects or hobbies. She struggled with some details and event sequences during my assessment.

Dr Sidorov found a moderate impairment in employability, whereas Dr Kumagaya and I considered Mrs Bhatia unfit to work. Dr Sidorov stated:

"There is evidence of a moderate impairment. Ms Bhatia is unable to tolerate classroom teaching but would be able to perform another job that is qualitatively different."

Comment: Dr Sidorov does not elaborate on what other job Mrs Bhatia could do or how he arrived at his decision. She has continuing moderately severe symptoms with significant anxiety-based avoidance. She has lost confidence and motivation. She rarely leaves the house without her daughter or husband."

(a) a reliance on family members to shower, eat, prepare meals and complete domestic chores is far short of having an ability to live independently or look after self adequately;

(b) in addition, it is noted that Dr Andrews accepts that Mrs Bhatia "only showers with encouragement of her family." This is far short of 'looking unkept occasionally' and more akin to 'Needs prompting to shower daily and wear clean clothes.';

(c) the accepted description provided by Dr Andrews is in line with a Class 3 assessment as it is accepted that Mrs Bhatia cannot 'live independently without regular support', 'needs prompting to shower', 'frequently misses meals' and has a 'family member visit to ensure a minimum level of hygiene and nutrition';

(d) the accepted and described symptoms and their practical consequences need to be applied to the class descriptor. The task of doing this is more than an exercise in clinical judgement, and

(e) the application of accepted facts to the class descriptors is a matter of applying the guidelines correctly.

(a) the only category in which the assessment of the MA differed from that of the worker's IME was social and recreational activities;

(b) the submissions made by the Appellant in relation to the PIRS category of "Self-Care and Personal Hygiene" argues for a higher rating of impairment in this category than that which is given by the Appellant's own IME;

(c) the descriptors are merely examples and are not intended to represent a precise formula by reason of which a rating is made: this is clear from Chapter 11.12 of the Guidelines;

(d) in NSW Police Force v Wark M1-005236/12, the MAP, said at paragraph 32: "The question of the classification under the PIRS scale is very much for the AMS after a balancing of all the information before him. There can be some grey areas in which other minds might ascribe a higher or lower rating, but unless a glaringly improbably categorisation has been made, or it can be demonstrated that the AMS was unaware of significant factual matters, the assessment is very much a matter for him/her based upon clinical experience and the assessment of all the material before him.";

(e) it is submitted that the appellant's approach in simply picking over the reasoning of the MA in relation to the evidence and the matters that influenced his rating and drawn attention to matters with which she does not agree is not a relevant consideration nor evidence of use of incorrect criteria in the application of the Guidelines as it overlooks the overriding importance of the clinical judgement of the MA in assessing the presenting condition, the diagnosis and its severity (See Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633), and

(f) furthermore, a difference in opinion as to whether the worker ought to be categorised as class 2 or class 3 is insufficient to amount to a demonstrable error for the purposes of s 327(3) of the 1998 Act.

1. The Medical Assessor assessed a Class 2 rating and said:

"Mrs Bhatia presented well-groomed at the interview. With encouragement from her family, she showers and wears clean clothes daily. She contributes to housework, including shopping and meal preparation. She eats a good-quality diet but sometimes skips meals. She is less attentive to her appearance but does not need to present herself in a professional setting, as she did as a teacher. She regularly practices yoga."

"Mild impairment: Able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food."

"Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition."

1. In our view, there is nothing in the evidence that supports a Class 3 rating for reasons that follow.
2. To begin with, the Medical Assessor observed that the appellant was presentable and "well groomed".
3. He also noted that: "She eats a good-quality diet but sometimes skips meals."
4. This does not suggest that she frequently misses meals or that she requires assistance to "ensure minimum level of hygiene and nutrition."
5. In addition, the Medical Assessor observed: "She is less attentive to her appearance but does not need to present herself in a professional setting, as she did as a teacher."
6. The Medical Assessor records the appellant engaging unprompted in other self care activities. He said: "she often does yoga and breathing exercises in the morning,and takes a short walk."
7. Dr David Kumagaya in his report dated 6 July 2023 also rated a Class 2 in this category and said:

"Whilst Ms Bhatia is able to live independently, she experiences challenges with her self-care and personal hygiene as a result of her depressive and anxious symptoms, such that she regularly misses meals and showers."

1. Although not bound by the opinions of other doctors, they do form part of the evidence which we are required to consider.
2. All assessing clinicians rated her as a class 2.
3. There is no suggestion that the appellant is unable to "live independently without regular support." She may well rely on her family for assistance in some aspects of this category, but, as the Medical Assessor noted: "She contributes to housework, including shopping and meal preparation."
4. For these reasons, we agree that the Medical Assessor's assessment was consistent with the evidence.

(a) the accepted details Dr Andrews has provided are not describing a class 2 and instead describing elements of a class 3 assessment, notably, Mrs Bhatia attending social and recreational events like visiting a restaurant or cafe only with her husband or daughter (a support person);

(b) the descriptors used by Dr Andrews do not suggest Ms Bhatia going to such events without needing a support person. In those circumstances, a description of 'rarely going out to such events and mostly when prompted by family or close or close friend' and 'Will not go out without a support person' is more accurate and appropriate;

(c) it is also noted by Dr Andrews that "It is expected that a 65-year-old woman from a South Asian background would be accompanied by a family member when taking international holidays." This is a conclusion that is not appropriate for Dr Andrews to make based on the information available to him, but rather is a conclusion drawn from an inherent bias towards the Appellant;

(d) it is accepted by Dr Andrews that the Appellant attends restaurants with her husband or daughter and attends trips with her husband or daughter. It is submitted that the nature of Dr Andrew's report as a whole would suggest that the Appellant attends these events with a support person, noting it is accepted that a support person is always present in the social activities explained by Dr Andrews;

(e) the Appellant would be participating in social and recreational activities daily without the need of a support person, prior to the work injury, and

(f) although, the appellant may have the ability attend such events rarely, this attendance hinges on the prompting of a close friend or family and the presence of a support person, being her husband or her daughter.

1. The respondent again submits that no errors were made.
2. The descriptor for a Class 2 rating in this category reads:

"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)."

1. For a Class 3 it reads: "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."
2. As the Medical Assessor recorded in the body of the MAC:

""Before becoming unwell, she enjoyed social outings with friends and family. Her friends were often co-workers. She attended a Hindu temple on festival days. She is now anxious in social settings and sometimes refuses invitations. She goes to a restaurant or café with her husband or daughter once a fortnight. She prefers to be accompanied away from home but can travel locally independently when needed. In 2024, she drove to the Central Coast, a 100 km trip, with her husband to visit a beach. In July 2024, she travelled to India to see her brother and celebrate her nephew's graduation. She returned to India with her daughter recently and stayed for three weeks. During her time there, she attended lunches and dinners with her extended family and visited Delhi and Hyderabad. On two or three occasions, she went out to see sights."

1. The appellant clearly engages in a variety of social and recreational activities albeit in the company of family members.
2. The appellant's submissions are misguided for reasons that follow.
3. The appellant has confused the concept of a "support person" within the meaning of the Guidelines with that of a friend or family member.
4. Most people in the community who engage in social activities with family members would not describe them as "support persons", merely that they were enjoying the company of family members during such activities. Social (although not all recreational) activities are by definition conducted with friends and family, and these people cannot all be conceptualised as a "support person".
5. Clause 11.2 of the Guidelines 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 (our emphasis). Consider activities that are usual for the person's age, sex and cultural norms."

1. Contrary to the appellant's submissions, the Medical Assessor was not demonstrating "an inherent bias towards the appellant" but rather doing what was required of him in accordance with the Guidelines.
2. As the respondent correctly, in our view, observed:

"It is open for the MA to make an assessment of what is age, sex and culturally appropriate for the general population and that doing so is not evidence of bias but an observation of general population norms."

1. It should also be noted that the descriptors, or examples, describing each class of impairment in the various categories, are examples only and provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected. (See Jenkins v Ambulance Service of New South Wales [2015] NSWSC 887).
2. A Medical Assessor is able to make assessments based on his expertise and experience that other rational minds might disagree with.
3. Clause 1.6 of the Guidelines notes that the task of a Medical Assessor is to assess a claimant as they present on the day of the assessment.
4. There is nothing in the history obtained by the Medical Assessor that accords with the descriptor for a Class 3 rating.
5. It cannot be said on all the evidence that the appellant "rarely" goes out to social events. She appears to be reasonably well engaged with the various activities she participates in, and when in India attended several family meals and engaged in recreational holiday activities.
6. Finally, we point out that mere disagreement about the level of impairment is not sufficient to demonstrate error.
7. For these reasons, we consider that the Medical Assessor's assessment in this category was consistent with all of the evidence.
8. The task of the Medical Assessor is to weigh up all the medical evidence and draw their own conclusion based on their own clinical assessment in accordance with the Guidelines.
9. For these reasons, the Appeal Panel has determined that the MAC issued on 29 January 2025 should be confirmed.