WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by employer against findings in psychiatric impairment rating scale categories for social and recreational activities, social functioning, travel, concentration, persistence and pace; whether history taken by Medical Assessor (MA) contradicted earlier statement; social functioning; whether alleged improvement in relationships ignored by MA; whether recent trip to the US warranted a class 1 rating; whether MA ignored claimant's ability to concentrate during the assessment; Held - alleged contradiction in social and recreational activities dismissed; no factual basis for allegation in social functioning, concentration, persistence, and pace submissions misconceived; Abdal v Insurance Australia Limited t/as NRMA Insurance, and Ferguson v State of New South Wales considered and applied; MA explained his rating in ignoring trip to US in travel; Chapter 11.12 of the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021 applied; Medical Assessment Certificate confirmed.

1. On 17 September 2025 the appellant employer Blacktown City Council lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gerard Walsh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 August 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. Following Consent Orders made on 18 August 2025 an amended referral dated 18 August 2025 was made seeking an assessment of WPI caused by psychiatric/psychological disorders on a deemed date of injury of 15 March 2024.
2. Ms Dous was employed as a cook by the appellant employer Council. She had been employed as such at a childcare centre for more than 17 years, working five hours per day, five days per week.
3. Ms Dous's injury developed after her grandson and another child had an argument at the centre over a bicycle which then involved Ms Dous and the mother of the other child. This confrontation resulted in an inquiry which eventually resulted in a decision that she was to be transferred. She ceased work thereafter, on 15 March 2024.
4. The Medical Assessor found there to be 22% 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. No re-examination was required, as no error was established in the MAC.

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. In considering the contrast between Ms Dous's pre-injury and post-injury functioning relevantly the Medical Assessor said:[1]

"She stated that before the subject injury, she was completely independent in bathing, grooming, household chores and shopping. She enjoyed cooking and shopped every day. She said she did not do these since the workplace issues.

She stated that before the subject injury, she used to enjoy shopping, putting on makeup, going for walks three times a week and to the gym twice a week. She said she did not do these since the workplace issues.

She stated that before the subject injury, she could travel anywhere and went out with family and friends and had many friends..."

1. With regard to Ms Dous' social activities and activities of daily living, the Medical Assessor relevantly made the following observations:[2]

"Social and recreational activities:

She stated that before the subject injury, she used to enjoy shopping, putting on makeup, going for walks three times a week and to the gym twice a week. She said she did not do these since the workplace issues.

Exercise: She stated that she does not exercise.

Frequency of socialising: She said she has not attended church for the past two months and the last time only stayed for 20 minutes because she could not tolerate it. She previously went with encouragement from her family.

Involvement when out: She reported that she went to her nephew's baby's celebration three weeks ago. She said she went with her sister but only could sit more than 10 minutes because she could not tolerate the noise or concentrate on what is being said.

The Claimant said a support person is not needed to go out.

On 27/03/2025, Dr Abdal W. Khan wrote: Social and Recreational Class 3. The Claimant previously enjoyed socialising with family and friends and attending outings. Her husband encourages her to attend church, and her sister encourages her to meet up. She has lost interest in these activities, and she attends to these activities to appease her family. The Claimant remains withdrawn from her friends. She does not actively engage in any social and recreational activities.

She stated that before the subject injury, she could travel anywhere without any problem.

The Claimant said a support person is not required to travel locally but she can only drive for 20 minutes before feeling anxious. Often, she returns home without reaching her destination.

Holidays - She went to New Jersey four months ago and stayed for 8 days. She said her daughter booked the ticket against her wishes and stated it was a terrible experience.

On 27/03/2025, Dr Abdal W. Khan wrote: Travel Class 2. The Claimant could travel to familiar places on her own although she struggles with anxiety, panic, agitation and avoidance of crowds when she leaves her home.

She stated that before the subject injury, she went out with family and friends and had many friends.

Relationship with her husband: She said she has been with her husband for 39 years. There have been no domestic violence or periods of separation. She said she has moved her husband to another room because she does not want anyone around her.

Relationship with children: She stated that she has an adult daughter and an adult son. She said she has a good relationship with them, but she feels a burden. She does not want to be around her grandchildren for long.

Relationship with siblings: The Claimant said she has three sisters but refuses them when they ask her to go anywhere with them.

Relationship with parents: She reported that both parents died.

Relationship with friends: She stated that she only has two friends now and lost friends because she cannot go out with friends socially. She said she does not want to answer when friends telephone her.

On 27/03/2025, Dr Abdal W. Khan wrote: Social Function Class 3. The Claimant has experienced strain in her marriage. There is no longer any intimacy in her marriage, and she asked her husband to sleep in a separate room. Her relationships with her extended family have become strained and she has lost many friendships.

She said her sleep concentration was good before the subject injury and read the Bible all the time.

She said her concentration was currently poor and she cannot concentrate on reading for more than a few lines. She said she cannot focus on anything and is forgetful.

On 27/03/2025, Dr Abdal W. Khan wrote: Concentration, persistence and pace Class 3. The Claimant struggles with her attention and concentration. She has difficulty focusing on tasks such as reading and retaining the information she reads. The Claimant is easily distracted, even when performing basic tasks, and her memory is impaired."

1. At paragraph 10 the Medical Assessor considered the detail of the evidence before him. This included a reference to the evidence of Dr Roberts:

"07/07/2024 to 16/06/2025 - Dr John Albert Roberts, Consultant Psychiatrist

Dr Roberts question of veracity of the history (sic) provided by the Claimant saying symptoms were 'so extreme and disproportionate to circumstances that on reasonable psychiatric grounds'.

Dr Roberts noted that the criteria for PTSD was not satisfied.

In the subsequent letters, Dr Roberts maintained the position held in the earlier report of 07/07/2024."

1. At [10] of the MAC the Medical Assessor considered in some detail medicolegal report of Dr Abdal W Khan, and set out Dr Khan's assessments. He noted that the final WPI assessed by Dr Khan was 24% and at [10c] the Medical Assessor compared his assessment with that of Dr Khan and noted that whilst he agreed with Dr Khan's ratings, he differed in the question of the appropriate categorization for the social functioning category, stating that his reasoning was to be found in the Psychiatric Impairment Rating Scale (PIRS) table.

1. The appellant employer referred to the well-known authorities as to the application of the PIRS and the principles applying thereto. The appeal challenged four of the assessments by the Medical Assessor.
2. We have noted the submissions advanced by Ms Dous in response to this appeal, and we agree with them, by and large. Accordingly, we will deal with each submission in order as made by the appellant employer.

1. The appellant employer referred to Ballas v Department of Education (State of New South Wales),[3] relying on dicta that has been subsequently doubted.[4] The descriptors for class 2 and class 3 were kindly set out and the appellant employer referred to the facts that were before the Medical Assessor. It submitted that Ms Dous's comment that she attended church two months ago and only stayed for 20 minutes was contradicted by a statement dated 7 August 2024 that she made relating to her activities at that time.
2. References were also made to her latest statement of 30 June 2025, in which it was submitted Ms Dous had "inferred" that she previously went to church once or twice a week and now goes when prompted by family.
3. It was submitted that Ms Dous "more appropriately fits the class 2 category based on her activity and circumstances explained to the MA".

1. In her statement of 5 August 2024 Ms Dous said:[5]

"At page 5, Dr Roberts reports that I now cannot deal with people; that I cannot deal with my grandchildren if they make noise; that if I go to church I cry constantly and that she never stops thinking regarding this matter. Dr Roberts also reports that I stopped my cultural activities including going to church. That is incorrect I recall I reported to Dr Roberts that my relationship with my grandchildren has become strained although they are the ones whom currently shed some light in my day to day life. I recall I reported that I go to church because it gives me a sense of peace, but I will sometimes find myself tearful during the service and I will at times avoid engaging in discussions with the congregation members after the service although I try my best to stay strong and participate."

1. In her statement dated 30 June 2025 Ms Dous said:[6]

"11. Prior to my injury, I was the leader of the Women's meeting at my church. I was always organising activities, including camps and fundraisers. I had been in this role for approximately five (5) years. I was well known to the congregation for my service. Women would confide in me, and I was loved and well respected. Following the injury, I have given up my leadership role and I avoid going to church regularly because there are other attendees. When my husband has taken me on sporadic occasions with prompting, I took a corner to avoid the congregation. I recall once after the service, an acquaintance stopped me in my tracks and said to me words to the effect of 'you look different'. I felt immediate distress and humiliation and I have avoided church since as often as possible. This has been very hard for me as my faith has been integral to my sense of identity.

I would be attending church once to twice a week. As of late, my children, my husband and my sisters have promoted me to go to church in an attempt to get me out of the house which I have been trying to do. When I go, I sit towards the back and generally leave after the service quickly with some friends whom attempt to distract me with a coffee and support me."

1. We were asked to infer that this evidence had been contradicted by the Medical Assessor's findings.
2. In his Table 8 PIRS Rating Form, the Medical Assessor repeated his findings from the body of his report:

"Class 3 and not Class 2 was selected because she rarely goes to social events, and mostly when prompted by family or close friend. Will not go out without a support person.

Frequency of socialising: She said she has not [sic] attended church two months ago and only stayed for 20 minutes. She previously went with encouragement from her family.

Involvement when out: She reported that she went to her nephew's baby's celebration three weeks ago. She said she went with his sister but only could sit more than 10 minutes but could not tolerate the noise or concentrate on what is being said.

The Claimant said a support person is not needed to go out.

She stated that before the subject injury, she used to enjoy shopping, putting on makeup, going for walks three times a week and to the gym twice a week. She said she did not do these since the workplace issues."

1. We fail to see any inconsistency, let alone contradiction. Ms Dous' statement dated 5 August 2024 described her circumstances soon after she ceased work on 15 March 2024 and was concerned with correcting an assertion by Dr John Albert Roberts, the expert retained by the employer, that she had stopped her church going. At that stage she said was still attending church, as it gave her a sense of peace, but that she had become avoidant and tearful in doing so.
2. By the time of her statement of 30 June 2025 Ms Dous was avoiding regular church going because of her symptoms, and by now needed prompting by her family. She contrasted her leadership role in the church community with the effect her injury had wrought on her - to the extent that as at the date of this statement she would now sit towards the back of the church and would leave the service quickly with friends. Her faith, she said, remained integral to her identity.
3. That she had not been to church for two months, as she told the Medical Assessor, was consistent with her narrative. The appellant employer's submission was made with an eye too keenly attuned to the perception of error is rejected.[7]
4. The descriptors for the PIRS category of social and recreational activities are to be found 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 most when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn'.

1. The Medical Assessor explained why he had found a class 3 rating, and the evidence on which he made that ruling was consistent. The appellant employer rather emphasised that rating when the statements it relied on were considered, as we have said. The fact that Ms Dous was able to go out without a support person was acknowledged by the Medical Assessor, but in his clinical judgement nonetheless gave the class 3 rating. It is clear that Ms Dous rarely goes out, and in the case of her churchgoing, she required the encouragement of her family - that it to say, she was prompted by her family.
2. This rating is confirmed.

1. The appellant employer noted that a class 2 rating had been given but submitted that "there appears to be" some improvement in Miss Dous's existing relationships as she was reported to be having a good relationship with her children and two friends.

1. Again, this submission lacks substance. It lacked particularity, and we were not referred to just how the appellant employer thought "there appeared to be" such improvement.
2. Table 11.4 of the Guides provides the relevant descriptors for this category:

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

Class 2 - mild impairment: existing relationships strained. Tension an 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 the children."

1. In his Table 11.8 rating form, the Medical Assessor again repeated the above findings in the body of his report, namely:

"Class 2 and not Class 1 was selected because existing relationships strained. Tension with partner or close family member, loss of some friendships.

Relationship with her husband: She said she has been with her husband for 39 years. There have been no domestic violence or periods of separation. She said she has moved her husband to another room because she does not want anyone around her.

Relationship with children: She stated that she has an adult daughter and an adult son. She said she has a good relationship with them, but she feels a burden. She does not want to be around her grandchildren for long.

Relationship with siblings: The Claimant said she has three sisters but refuses them when they ask her out.

Relationship with parents: She reported that both parents died.

Relationship with friends: She stated that she only has two friends now because she cannot go out with friends socially. She said she does not want to answer the phone.

She stated that before the subject injury, she went out with family and friends and had many friends."

1. In keeping with his methodology in his Table 11.8 reasons, the Medical Assessor specifically referred to the choice he considered available - in this case either class 1 or class 2 - and explained why he had chosen the one over the other. The evidence supported his factual conclusions, and as noted, the appellant employer did not refer to any evidence to support its "appears to be" assertion.
2. This rating is confirmed.

1. The appellant employer noted that the basis of the class 3 rating appeared to be that Ms Dous struggled with reading more than newspaper articles.
2. The relevant descriptors were set out for class 2 and class 3. The appellant employer submitted that despite the recorded statements about Ms Dous's low concentration, nonetheless the Medical Assessor noted that she managed the one-hour assessment with no difficulty and concentration over that period.

1. The relevant descriptors for this category are set out in Table 11.5 of the Guides:

"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."

1. In his Table 11.8 reasons, the Medical Assessor said:

"Class 3 and not Class 2 was selected because she Unable to read more than newspaper articles. She managed the 1-hour assessment well and had no difficulty sustaining her concentration.

She said her concentration was currently poor and she cannot concentrate on reading for more than a few lines. She said she cannot focus on anything and is forgetful.

She said her sleep concentration was good before the subject injury and read the Bible all the time."

1. When rating concentration persistence and pace, the weight which a Medical Assessor can place upon their clinical observations within the assessment has been questioned in Abdal, although subsequently addressed by Griffith AJ in Georges v Musico [2025] NSWSC 1085,

"I would go a step further and state, with respect, that for the following reasons, Abdal is plainly wrong and I would decline to follow it. In particular, I respectfully consider that his Honour's approach involved an incorrect level of judicial review scrutiny to a decision which necessarily involved the application of high levels of medical expertise."

1. However the assessment of CPP in the Motor Accident jurisdiction is limited by the requirement by Motor Accident Guidelines that the descriptors be considered in the context of their application to "work settings."

"6.209 Concentration, persistence and pace is defined as the ability to sustain focused attention, for long enough to permit the timely completion of tasks commonly found in work settings."

1. There is no such limitation in the Workers Compensation jurisdiction.
2. However the Appeal Panel considers that the appellant employer's reliance solely on Ms Dous' recorded ability to manage an hour-long assessment without difficulty in concentration to support that its assertion that the Medical Assessor was required to rate the worker as mildly impaired is unconvincing. There is no other evidence of function that would match class 2 descriptors, and it is very common that the multiple aspects of conduct rated by a PIRS category might fit more than one classes descriptors. The Medical Assessor was clearly aware of Ms Dous' cognitive function in the assessment and used his "medical expertise" to weigh this against all the other evidence before him that clearly matches the class 3 descriptors. There being no other submission about this class rating, it is confirmed.

1. The basis of the class 2 assessment by the Medical Assessor was, the appellant employer said, "because Ms Dous can only travel to familiar areas without a support person".
2. The appellant employer noted that in fact Ms Dous had travelled to New Jersey four months prior to the assessment, although it also noted that Ms Dous stated that it was a terrible experience and that her daughter had booked the ticket.
3. A class 1 rating was appropriate, the appellant employer argued, because Ms Dous had conceded that she could travel without a support person, and her travelling overseas indicated that she was not restricted only to travel in familiar areas and that she could indeed go to new locations.

1. The relevant descriptors are provided by Table 11.3 of the Guides:

"Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.

Class 2 Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.

Class 3 Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment."

1. The Medical Assessor said in his Table 11.8 rating form:

"Class 2 and not Class 1 was selected because she can travel without support person, but only in a familiar area.

The Claimant said a support person is not required to travel locally.

She said she can drive for 20 minutes before feeling anxious. Often, she returns home without reaching her destination.

She said she could not drive to new locations. Holidays - She went to New Jersey four months ago and stayed for 8 days. She said her daughter booked the ticket against her wishes and stated it was a terrible experience."

1. The appellant employer advanced an alternative interpretation of the facts relied on by the Medical Assessor in this category. The flight to New Jersey had been unaccompanied for Ms Dous, and was to a new environment, thus a class 1 rating should have been given, it argued.
2. However, it would appear that Ms Dous' trip to New Jersey was a recent isolated event, as in her statement of 20 June 2025 Ms Dous said:[8]

"12. I can travel to familiar places alone such as to visit my General Practitioner, psychologist, psychiatrist, to see my family members. I avoid shopping areas and grocery stores on my own as much as I can because of the crowd and noise which makes me feel very anxious and agitated and also fear that I am confronted by those whom (sic) work for the Council."

1. Chapter 11.12 of the Guides provides that the examples given by the descriptors are examples only, and Ferguson v State of New South Wales[9] is commonly cited as authority for the proposition 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.[10]
2. The Medical Assessor has explained that Ms Dous had a mild impairment because he accepted that Ms Dous could travel without support but only in familiar areas. He discounted the trip to New Jersey in his clinical judgement, which in the circumstances he described was open to him. The trip was not organised by Ms Dous and the Medical Assessor exercised his discretion against selecting a class 1 rating on the reasonable basis that the venture had been against Ms Dous' wishes and had been a terrible experience for her.
3. This rating is also confirmed.
4. For these reasons, the Appeal Panel has determined that the MAC issued on 22 August 2025 should be confirmed.

[3] 2020] NSWCA 86.

[4] See discussion in Diaz v Sydney International Container Terminals Pty Ltd [2024] NSWPICMP 437 from [110].

[7] See Bojko v ICM Property Service Pty Limited [2009] NSWCA 176 at [36].

[9] [2017] NSWSC 887.