1. On 10 October 2025, Katherine Breen-Davies, 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 15 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 grounds 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. On 17 April 2024 the appellant made a claim for lump sum compensation in accordance with s 66 of the 1987 Act with respect to 22% whole person impairment (WPI) for psychological injury.
2. On 23 September 2024 the solicitor for Life Without Barriers (the respondent) indicated by email to the appellant's solicitor that they did not consider the appellant was entitled to lump sum compensation as the degree of permanent impairment did not reach the threshold imposed b s 66(1) of the Workers Compensation Act 1987 (1987 Act).
3. On 19 June 2025 the appellant commenced proceedings in the Personal Injury Commission (Commission). The matter was referred to Medical Assessor Verma for assessment.
4. The Medical Assessor issued a MAC on 15 September 2025 assessing the applicant's permanent impairment at 7%.
5. The appellant now appeals from that decision by the Medical Assessor.

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 the Appeal Panel did not ascertain any error with the Medical Assessment Certificate of Medical Assessor Verma.

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. They are not repeated in full. They have been considered by the Appeal Panel and referred to below with reference to the Appeal Panel's findings and reasons.

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

1. Chapter 11 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment provides that impairment resulting from psychiatric or psychological disorders is to be assessed in accordance with the PIRS. Six categories of behaviour are set out and divided into five classes where Class 1 represents no or minor impairment attributable to normal variation in the human population and Class 5 is the most serious impairment.
2. Chapter 11.12 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. It is the role of the Medical Assessor to assign a class to each behavioural category and then, using the scores calculate the degree of impairment in accordance with Chapter 11 (see Guidelines at 11.15-11.21 and Table 11.7).
2. It is the appellant's submission that the Medical Assessor's assessment, applying the PIRS was erroneous as the assessment was made on the basis of incorrect criteria and the MAC contains a demonstrable error (s 327(3)(c) and (d) of the 1998 Act).
3. The appeal is concerned with the assessment of the behavioural categories of self-care and personal hygiene and social and recreational activities.
4. The respondent submits that no such error is made out.
5. What amounts to error in the application of the PIRS was considered by Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887 where the Medical Appeal Panel had revoked the MAC having reached the conclusion the classification by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Appeal Panel had fallen into jurisdictional error and 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 [2015] NSWSC 633. 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 [2018] NSWSC 140, Harrison AsJ cited 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 useful for the Appeal 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[1] 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. Having considered the authorities, the Appeal Panel notes that the appellant must demonstrate that her complaints are more than a mere disagreement over a matter about which reasonable minds might differ.
3. A Medical Assessor is, however, required to give adequate reasons for their assessment. At [48] of the often-cited High Court decision of Wingfoot[2] the plurality stated:

".....What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself."

"...The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law...."

1. At [56] the Court considered the decision of the Court of Appeal and noted that:

"... the Court of Appeal analogised the function of a Medical Panel forming its opinion on a medical question to the function of a judge deciding the same medical question. Accordingly, it then equated the standard of reasons required of a Medical Panel with the standard of reasons that would be required of a judge giving reasons for a final judgment after a trial of an action in a court.....A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else."

1. In Vegan, Basten JA (Handley and McColl JJA agreeing) said at [122]:

"122 On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: (authority omitted). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required."

1. The appellant's appeal submissions are not coherently structured. The appellant says the appeal is advanced on three grounds:

(a) the assessment was made on the basis of incorrect criteria;

(b) the MAC contains a demonstrable error, and

(c) the Medical Assessor erred in failing to properly apply Clause 11.11 and 11.12 of the Guidelines.

1. The submissions that follow however are essentially addressed to the manner in which the Medical Assessor assessed the PIRS categories of self-care and personal hygiene and social and recreational activity which the appellant says amounts to demonstrable error or the application of the incorrect criteria.
2. The appellant also makes submissions under the heading "Background" which the Appeal Panel has considered below before consideration of the PIRS category submissions.

1. Under "Background" the appellant makes submissions of a general nature that the Medical Assessor "failed to consider evidence" which formed part of the referral, "made demonstrable errors, failed to give evidence appropriate weight, made the assessment based on incorrect criteria and failed to set out the reasons for the assessment".
2. In particular the appellant submitted that the Medical Assessor failed to give consideration to reports from the appellant's treating general practitioner Dr McDonnell, psychologist Ms Fraser and treating psychiatrist Dr Rastogi. The appellant submits, without specifying how, that this evidence was "critical to the determination of this medical dispute".
3. It is beneficial to set out the role of a Medical Assessor in this context.
4. The Guidelines at 1.6 provide that:

"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..."

1. The Medical Assessor is not required to take into account all medical history and all material provided, only that history and material which is relevant to the issues the Medical Assessor is required to assess.
2. In considering the role of a Medical Panel in similar Victorian legislation, the Hight Court in Wingfoot at 47 said:

"The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel 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 its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."

1. That is, it is not the role of the Medical Assessor to weight evidence and competing arguments but rather to express their own opinion, based on their specialised expertise, with respect to the medical dispute referred to them.
2. The appellant submits that the Medical Assessor's assessment was based on incorrect criteria as she assessed impairment in a manner contrary to the Guidelines and that the factual and medical evidence are inconsistent with the Medical Assessment Certificate.
3. The Appeal Panel have considered the reports of Dr McDonnell, the appellant's treating general practitioner dated 6 June 2025, Mrs Fraser, treating psychologist dated 16 April 2025 and the report Dr Rastogi dated 9 July 2025 referred to by the appellant in her submissions as relevant evidence not properly considered by the Medical Assessor.
4. Dr McDonnell stated that the appellant "struggles with daily self care". Has "...poor self care in regard to her diabetes". "She rarely leaves the house and is very socially isolated" and "She rarely socialises."
5. Mrs Fraser noted that her psychological symptoms "impact her daily functioning".
6. Neither Dr McDonnell nor Ms Fraser's reports were provided for the purpose of assessing permanent impairment with reference to the PIRS.
7. The report of Dr Rastogi dated 9 July 2025 does provide an assessment with respect to the PIRS category. The history and opinion with respect to the appellant's "present and/or continuing disabilities" is limited to the following paragraph:

"She remains pervasively depressed with anhedonia, depressive cognitions, reduced self-care, and neglect. She is socially avoidant and lost friendships. She is home bound most days and lost interest in things. She has ongoing triggers resulting in flashbacks, arousal, panic attacks. She remains suicidal. Her concentration is poor, and she struggles with day-to-day activities. She has impaired retention and judgement".

1. With respect to self-care and personal hygiene Dr Rastogi comments:

"Moderate impairment as she struggles with routine and maintaining regular meals patterns and there is self-neglect. She has gained weight and there is no routine, and she cannot cook meals and struggles with day-to-day activities"

1. With respect to social and recreational activities Dr Rastogi comments:

"Moderate impairment as she does not get too involved in social activities, remains home bound and isolated. She has lost desire to do things and feels socially inept. She only attends church and interacts with her priest but not with other people."

1. The appellant has not otherwise submitted how these reports assist the Medical Assessor in assessing impairment beyond indicating the appellant suffered from ongoing psychological symptoms which affect her daily functioning.
2. The Medical Assessor has considered a large quantity of treating records as set out on pages 6-8 of the MAC. These include various records from Dr McDonnell, Ms Fraser and Dr Rastogi as well as the clinical records of Medimind, Dr Rastogi's practice (referred to in the MAC as Mery Mind).
3. The Appeal Panel is satisfied from the totality of the material reviewed by the Medical Assessor, the Medical Assessor was aware in reaching their assessment, of the issues of reduced psychological functioning raised in the reports of Dr O'Donnell, Ms Fraser and Dr Rastogi.
4. In providing their assessment the Medical Assessor is not required to engage with every treating note or report and is only required to take into account that material which is relevant. The Medical Assessor is not partaking in an adjudicative process of weighing competing evidence but rather providing their own expert opinion based on relevant material provided and most importantly their own clinical examination.
5. The Medical Assessor has taken a history from the appellant and applied that history in assessing the relevant Class. As discussed below, the Medical Assessor's path of reasoning for reaching the assessment with respect to self-care and personal hygiene and recreational and social activities is disclosed in the MAC. Having regard to the history taken by the Medical Assessor and the material before the panel, the Appeal Panel does not consider that a finding of Class 2 with respect to either category was glaringly improbable.
6. Dr McDonnell and Ms Fraser make limited broad comments with respect to the applicant's difficulties with self-care and daily function. They also comment on her social isolation. The basis for the impairment assessment made by Dr Rastogi in not apparent from the limited history contained in her report. While it may inform the Medical Assessor's history taking and assessment, these limited comments were not in reference to a PIRS assessment but rather the observations of other treating professionals.
7. In so far as there is a difference between Dr McDonnell, Dr Rastogi and Ms Fraser this is sufficiently explained by the history taken by the Medical Assessor and the pre-eminence given to the Medical Assessor's clinical own observations in reaching their assessment.
8. While Dr Rastogi as clearly reached a different assessment to that of the Medical Assessor in classifying impairment with respect to self-care and personal hygiene and social and recreational activity the basis for the Medical Assessor's classification is clear from the MAC and it is clearly an area where reasonable minds may differ.
9. That difference of opinion does not amount to error.

1. The appellant submits that the Medical Assessor's assessment with respect to self-care and personal hygiene is incorrect.
2. The appellant submits that due to her work injury she struggles with regular personal care tasks, has lost interest in maintaining her appearance, showers infrequently and struggles with household chores.
3. These submissions are made by the appellant without reference to any evidence.
4. The appellant submits with reference to 11.1 of the Guidelines that her functioning ought to have been assessed as Class 3.
5. In response, the respondent submits that a finding of Class 2 was consistent with the history taken by the Medical Assessor.
6. The respondent submits that the examples used in the Guidelines are not prescriptive but rather examples of the types of activities to assist the Medical Assessor to arrive at a finding.
7. The respondent submits there is no error.
8. The Medical Assessor assessed a Class 2 with respect to self-care and personal hygiene.
9. The Medical Assessor recorded the following reasons for the assessment:

"Ms Breen-Davies reported that she is independent in doing her activities of personal hygiene. She showers and brushes every day. She said that she 'hates doing chores as her lower back hurts'. She does not cook much as the smell of meat make her vomit and reminds her of the smell in the morning when she found her team leader lying on the floor. Her weight often fluctuates. She is however still able to live independently on her own."

1. Table 11.1 of the Guidelines provide the following class descriptors:

"Class 2 - 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.

Class 3 - 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 her statement dated 18 March 2025 the appellant details difficulties but it differs from the history provided to the Medical Assessor at the time of the assessment on 28 August 2025.
2. The appellant submits that the Medical Assessor's assessment was based on incorrect criteria as she assessed impairment in a manner contrary to the Guidelines and that the factual and medical evidence is inconsistent with the MAC.
3. It is evident from the history and material before the Commission that the appellant lives alone, and does not require the regular assistance of others to do so. The Medical Assessor has taken a history that the appellant was independent with her personal hygiene and showers and brushes her hair every day. The Medical Assessor notes that the appellant does not cook much as the smell of meat affects her. The Appeal Panel considers a Class 2 classification was clearly open to the Medical Assessor on the history taken.
4. The Appeal Panel finds no error in this process nor the assessment of Class 2 for self-care and personal hygiene based on the history recording during the Medical Assessor's clinical examination of the appellant.

1. The appellant submits that the Medical Assessor's assessment of social and recreational activities category is incorrect.
2. The appellant submits that as a result of her psychological injury she no longer participates in activities such as showing horses and mustering. She now feels uncomfortable going out in public or riding public transport and also struggles with trusting people and making an effort to see or meet new people.
3. The appellant further submitted that the Medical Assessor acknowledged that she did not want to associate with people and incorrectly assessed the appellant as Class 2.
4. The respondent submits that Class 2, as assessed by the Medical Assessor, is appropriate and there is no error.
5. The Medical Assessor recorded the following history with respect to social and recreational activities:

"She previously enjoyed roller derby, horse riding, going for walks, taking her to the park and meeting people there. She mentioned that, even before the incidents, she did not really have friends except for colleagues at work. She reported that she has been unable to engage in horse riding, roller derby, etc. since she injured her back in 2022. She cannot do gardening, renovations, or farm work because of her ongoing back pain. She visits church once a month and talks to her priest but does not have any friends and prefers not to socialise".

1. The Medical Assessor provided the following reasons for assessment with respect to social and recreational activities:

"Ms Breen-Davies earlier enjoyed roller derby, horse riding, going out for walks, taking her down the park and meeting people there. She said that even before the incidents, she did not have 'friends except for people at work'. She reported that she has been unable to engage in horse riding, roller derby, etc since she injured her back in 2022.

She said that she is unable to do gardening, renovations or farm work because of her ongoing backpain. She also goes to the church once a month and talks to her priest. She however does not have any friends and does not want to associate with anyone. I have noted that even before the incident at work, she did not have a very active social life and had limited friendships. I believe that the reduction in social and recreational activities caused by her psychiatric condition, after discounting the pain, is only mild"

1. Table 11.2 of the Guidelines provide the following class descriptors:

"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. It is correct that the applicant no longer undertakes social activities such as roller derby, horse riding and going for walks however on the history taken by the Medical Assessor this is because of her back injury in 2022, not because of her psychological condition. It is the role of the Medical Assessor to assess the degree of impairment that results from the injury, in this case, the psychological condition, as opposed to other causes of variation in functional capacity. The Medical Assessor has undertaken this task.
2. The Medical Assessor has clearly explained that on the history taken, the reduction in physical activities (which were predominately the social and recreational activities undertaken by the appellant) was from 2022 onwards when the appellant injured her back and not a result of her psychological condition.
3. This is consistent with the statement evidence of the appellant:

"In the past I was able to do showings of horses and mustering, I miss being able to go to showings of my horses and mustering. I used to have no fear and now I am fearful to ride to my back injury I will not be able to tolerate the motion, and this deeply upsets me."

1. It is also consistent with the history taken by Dr Bisht in a report of 14 February 2023:

"She said that she used to enjoy horse riding, walking, gardening. She is only able to do some gardening now, due to the restrictions caused by the back injury."

1. A finding that the appellant does not want to associate with people is not inconsistent with the Class 2 classification by the Medical Assessor. The Appeal Panel notes that there has been a reduction in the applicant attending church and speaking with her priest which she now only does once a month and that she does not interact with the congregation. This is consistent with an occasional activity where she does not become actively involved rather than a rare activity. Further, she does this without a support person. This is consistent with a Class 2 classification.
2. The Appeal Panel does not consider the classification by the Medical Assessor with respect to social and recreational activities as Class 2 to be glaringly improbable. The Medical Assessor's path of reasoning in reaching the classification is clear from the Medical Assessment Certificate. No error is established.
3. For these reasons, the Appeal Panel has determined that the MAC issued on

[1] [2022] NSWSC 929.

[2] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [47].