1. On 17 April 2025 the appellant, Michael James Lee Brereton lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ankur Gupta, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on

21 March 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 30 January 2025, this matter was referred to the Medical Assessor for an assessment of WPI caused by a psychiatric/psychological disorder which occurred on a date of injury of

21 January 2022. 2. Mr Brereton was employed as a Data Analyst for the respondent. There were interpersonal conflicts and Mr Brereton was left as the only person on the executive team and was therefore responsible for carrying on the General Manager and CEO duties. He ceased work over Christmas, his last day of employment being 21 January 2022. 3. The Medical Assessor found 7% 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 the worker should undergo a further medical examination for the reasons given below.

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. Medical Assessor Glozier of the Appeal Panel conducted an examination of the worker on

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 noted Mr Brereton's pre-existing ADHD condition. He said:[1]

"...[Mr Brereton] was diagnosed with ADHD at the age of six and was on medication for a year. He was diagnosed again in his twenties and has been on medication 'off and on' since. He has been under the care of a psychiatrist since his late twenties but has never been diagnosed with any condition other than ADHD.

Mr Brereton was in a relationship at the time of the injury. They were together for eighteen years, but it ended six months after the injury. He says that that was unrelated to the workplace injury and happened as they did not want the same things anymore. They have two daughters, aged ten and five years. His daughters stay with him every second weekend. He says that he hangs around at home and goes for a swim in the lake nearby with them. He says that he buys snacks and sometimes cooks for them. He buys pre-cooked things for his meals. He lives next door to his mother in a granny flat. His mother brings him meals sometimes. He says that his appetite is 'good'. He keeps himself clean by showering regularly and cleaning his teeth. He does his laundry and wears clean clothes. He tries to keep the flat clean, but it is a struggle. He does a "big clean" every few weeks with his mother's help. His mother pays for his bills. He pays some rent but not for some time as he had had expenses over Christmas buying presents and his car needed to be repaired. He is close to his mother and his daughters. He has a few friends but cannot remember the last time he met them. He says that he keeps in touch by texting. He says that he has tried to go camping with his friends, but the plans fell through because he got anxious about the planning and preparation. He says that his ADHD was well controlled before the injury, but he has been struggling to concentrate. However, his medication regimen for ADHD has not been titrated since the injury. He says that his memory is not very good. He has become forgetful and struggles to remember things, including what happened to him at work. He says that he is unable to remember things when he needs to and 'blocks them out'. He collects gemstones as a hobby and enjoys going to the beach. He manages his shopping independently. He can drive around in his car without any impediment. He has driven to Sydney and Newcastle to go shopping and visit his sister. He walks and does some resistance training at home to keep fit. He says he is not socialising as much as his friends are busy. He says he wants to meet up with them, but their lives are also busy. Mr Brereton says he has not been able to work since the injury. He says that his doctors advised him to focus on getting better first. He says that he is considering starting his own business, selling gems. However, he is struggling to plan for things. He says that he has looked into the requirements but has 'made no progress.' He does not have an ABN for the business either."

"a.In my opinion, the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:

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:

(i) There is ample evidence in the clinical documentation that Mr Brereton's ADHD was impacting his concentration and work performance before he was injured.

There is no deductible proportion despite a history of ADHD and anxiety. The impact of ADHD has been considered in determining the current impairment rating, and there is no evidence of reduced functionality related to the pre-existing anxiety."

1. The Table 11.8 psychiatric impairment rating scale (PIRS) Rating Form contains a precis of the reasons given for each class rating. In view of the findings of Medical Assessor Glozier on re-examination a fresh Table will be issued.

1. Mr Brereton challenged the assessments in all the categories of the PIRS except social and recreational activities.

1. Mr Brereton was assessed as a Class 1 in this category. He submitted that the following factors indicated a mild Class 2 impairment:
   • his mother brings him meals;
   • he buys snacks and pre-cooked things for his meals;
   • he tried to keep the flat clean but it is a struggle, and
   • he does a big clean every week with his mother's help.
2. It was submitted that those factors indicated a mild impairment or even in the alternative a moderate impairment. As it was submitted that "it was arguable" that Mr Brereton could not live independently without regular support from his mother.

1. Mr Brereton noted that he had also been assessed as having a Class 1 rating. Mr Brereton submitted that the following factors indicated that his travelling habits were more consistent with a Class 2 rating:
   • the fact that he had driven to Sydney and Newcastle to go shopping and visit his sister was not an indication of his ability to drive long distances "on a regular basis", and
   • he can travel without a support person but only travels to familiar areas such as local shops and/or shopping with his sister.

1. Mr Brereton was assessed as having a Class 2 rating, and he submitted that a Class 3 or Class 4 rating would be more appropriate.
2. That submission was based on:
   • the breakdown of his long term relationship, which Mr Brereton argued indicated more than an "existing relationship strain";
   • although the Medical Assessor found that the breakdown was unrelated to the workplace injury, nonetheless, Mr Brereton's relationship had lasted for 18 years and ended six months following the injury;
   • the Medical Assessor noted that Mr Brereton had not been able to have his children over much and that "this aspect has not improved despite treatment";
   • the exacerbation of Mr Brereton's mental state from the time of the injury onward was evidenced in "numerous of the medical reports" and could not be ignored;
   • Mr Brereton, with his confused thinking and inability to concentrate, was not a good judge regarding the cause of that break up;
   • this was particularly so when he "blocks out" things that are not suiting his thinking at the time;
   • the finding by the Medical Assessor that Mr Brereton was "not socialising as much" was contrary to the fact that, apart from his increasingly fractured relationship with his children, he did not socialise at all, and
   • a Class 3 rating was appropriate as Mr Brereton's previous established relationship had been severely strained, or even a Class 4, as his previous relationship had ended, and he had "lost partner."

1. Mr Brereton submitted that the Class 2 rating assigned by the Medical Assessor indicated that he could undertake a basic retraining course or a standard course at a slower pace as set out in the descriptors for that class.
2. However, Mr Brereton said:
   • since the date of injury he was he has been unable to participate in any such endeavour;
   • Mr Brereton's prior ADHD condition was well controlled before the injury, but he has since been struggling to concentrate, which was noted by the Medical Assessor;
   • the ADHD did not cause Mr Brereton any difficulties between 2013 and the date of injury and he had been granted numerous promotions prior to the injury;
   • thus it was not the ADHD that was causing his inability to concentrate, but rather the work related diagnosis;
   • the Medical Assessor had noted that Mr Brereton's memory was "not very good" and that Mr Brereton was unable to remember things when he needed to. In fact he blocked them out;
   • the Medical Assessor noted that Mr Brereton would find it difficult to follow complex instructions;
   • the Medical Assessor failed to give adequate reasons for this classification. It was contrary to the history given, and
   • the more appropriate assessment would be a Class 3 in terms of the descriptors for this category.
3. Mr Brereton argued that the Medical Assessor had found:
   • Mr Brereton had concentration deficits;
   • Mr Brereton was unable to do things that require short term planning;
   • his memory was not good;
   • he struggled to remember things;
   • he blocks things out, and
   • he struggles to plan for things.
4. These, it was submitted indicated error in the Class 2 rating.

1. Mr Brereton submitted that the Class 4 assessment was erroneous and the more appropriate class should be a Class 5. This was because:
   • Dr Farid considered him to be completely unfit for two years to the present date, and
   • Dr Bertucen on 25 March 2025 assessed a Class 5 on the basis that Mr Brereton would struggle to attend to independent employment, even home based work.
2. Mr Brereton submitted that a re-examination would be beneficial as he had in the past had difficulty expressing himself when giving histories and that may have resulted in the assessments being made without the benefit of full histories.

1. The employer referred to the accepted authority of Vannini v Worldwide Demolitions Pty Limited[2] and to Glenn William Parker v Select Civil Pty Limited.[3]
2. The respondent submitted globally that there were no demonstrable errors contained in the MAC.
3. It submitted the reliance on Dr Bertucen's report was misconceived both because the Medical Assessor had power to give a different assessment and that Dr Bertucen's report in any event was over a year old. The following submissions were made as to each category.

1. The respondent referred to the facts as found by the Medical Assessor and submitted that his findings were consistent with the assessment made.
2. The Medical Assessor had provided adequate reasons it was submitted and the assessment made was opened to him.
3. The submissions by Mr Brereton that alternative classification should have been made was no more than the difference of opinion about which reasonable minds might differ.

1. We were referred to the following findings in this category by the Medical Assessor:
   • Mr Brereton can travel to new places and has driven long distances on a regular basis;
   • Mr Brereton manages his shopping independently, and
   • he can drive around in his car without any impediment and had driven to Sydney and Newcastle to go shopping and visit his sister.
2. The respondent submitted although Mr Brereton had argued that it could not be said that the trips to Sydney and Newcastle were made on a regular basis, Mr Brereton lives in Hallidays Point about a two hour drive from Newcastle and a three and a half hour drive from Sydney.
3. The evidence was that Mr Brereton was able to undertake those trips without any difficulty, independently. That conduct, it was submitted, was consistent with either a person with no deficit or in this category, or someone whose deficit is very minor and will be attributable to the normal variation in the general population.
4. Again, the employer submitted that the argument by Mr Brereton was simply a difference of opinion.
5. The respondent noted that Mr Brereton own expert, Dr Bertucen, also found him to be rated at Class 1. There were it was submitted no grounds to appeal this categorisation, which was no different to Mr Brereton own expert's assessment in any event.

1. The Medical Assessor's findings were noted.
2. In particular, the respondent resisted the submission that there was any connection between the workplace injury and the separation, relying on the reasons given by the Medical Assessor as explained to him, namely, that the couple had just grown apart. Mr Brereton felt misunderstood and they separated six months after his ceasing work.
3. This history had also been given to Dr Cassimatis and it was submitted that the breakdown occurring six months after Mr Brereton had finished work was simply coincidental.
4. The submission by Mr Brereton that the Medical Assessor had erred in accepting his history as to the causation of the breakdown was inappropriate, it was submitted.
5. The Medical Assessor was fully entitled to make his assessment based on the history given to him by Mr Brereton. It was submitted the accuracy of that history was supported by the history taken by Dr Cassimatis. The submission by Mr Brereton was, it was submitted "disingenuous".
6. The respondent referred to the history taken by the Medical Assessor and submitted the classification was open to him, noting that whether a Class 2 or Class 3 assessment was the more appropriate was again no more than a difference of opinion about which reasonable minds might differ.

1. We were referred to the descriptors provided by the guides for both Class 2 and Class 3 rating in this category.
2. We were referred further to the remarks made by the Medical Assessor who, whilst stating that Mr Brereton's impairment in this category was moderate, said also that the effect of the underlying ADHD impacted the category and consequently he found the rating to be a Class 2, mild impairment.
3. The respondent rejected the appellant's submission that sufficient reasons had not been given on the basis that the Medical Assessor had found that the ADHD condition was contributing. The Medical Assessor was entitled to incorporate the pre-existing ADHD when considering the pre-injury level of functioning, the respondent said. There was clear evidence that the ADHD condition was pre-existing.
4. The respondent submitted that Mr Brereton was again relying on a mere difference of opinion.

1. The opinions of Dr Farid and Dr Bertucen that a Class 5 rating should apply was affected by the history taken by the Medical Assessor, supported by the treating psychiatrist, that

Mr Brereton wanted to start his own business selling gemstones.

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[4] 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 assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[5]
2. The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[6] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the 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[7]. 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,[8] 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 necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (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[9] 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 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.
3. It is accepted that Mr Brereton suffered from a pre-existing condition. The Medical Assessor considered it when assessing the behavioural consequences of Mr Brereton's psychiatric disorder in the category of concentration persistence and pace, and explained its significance at [11] of the MAC, as we have noted above. He said, to repeat:

"There is no deductible proportion despite a history of ADHD and anxiety. The impact of ADHD has been considered in determining the current impairment rating, and there is no evidence of reduced functionality related to the pre-existing anxiety."

1. In the Table 11.8 PIRS Rating Form, in giving his reasons in the category concentration, persistence and pace, the Medical Assessor said:[10]

"Mr Brereton describes a reduced ability to focus and forgetfulness, which was apparent during the assessment as well. In my opinion, Mr Brereton would

find it difficult to follow complex instructions and can be considered to have a moderate impairment. However, this is also impacted by the underlying ADHD.

1. This approach is wrong in law. In Coca Cola Europacific Partners API Pty Ltd v Pombinho[11] the Medical Assessor was found not to have taken sufficient account of material that had been before him. The Panel had revoked the MAC and applied a 1/10th deduction pursuant to s 323 of the 1998 Act to the WPI found by the Medical Assessor. At [86] Ward P, with whom White and Stern JJA agreed, said:

"...I accept the appellant's submission that, in order to determine the impact of pre-existing injury on current whole person impairment, a comparative exercise was necessary and that it would be logically incoherent simply to begin the exercise from a fixed starting point (i.e., the 24% whole person assessment made by the Medical Assessor) and then separately to consider the extent to which pre-existing injury contributed to that whole person impairment (and then to apply that amount to the fixed starting point) without considering the starting point itself. The approach required by the Guidelines is a subtractive approach, requiring a deduction from the starting point of whole person impairment but it would make the exercise artificial if, having been required to consider all of the material that the Medical Assessor had failed to consider, the Appeal Panel could not then revisit the starting point of the assessment."

1. In the present case, the Medical Assessor has limited his attention to the one category as being affected by the pre-existing condition, but attempted to incorporate the deduction into the baseline assessment for that category, rather than to only assess the impairment that arose from the subject injury, said to have occurred on 21 January 2021, and then made a deduction for Mr Brereton's pre-existing ADHD, or attention deficit disorder.
2. Section 323 of the 1998 Act provides relevantly:

"(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. It is well accepted that there are three steps to be considered in the application of this section. In Cole v Wenaline Pty Ltd[12] Schmidt J held that firstly the level of impairment caused by the subject injury should be assessed - what is described herein as the "baseline impairment." Her Honour said:

"What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the [subject] injury was. Secondly, whether a proportion of that impairment was due to the [pre-existing condition][13]. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical

judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section."

1. By not following these steps, the Medical Assessor has fallen into error, as Mr Brereton's pre-existing condition may well have affected other categories, and the subtractive approach required has not been taken. The proper approach is to revisit the starting point of the assessment, which is the calculation in regard to each of the categories assessed.
2. Medical Assessor Glozier's report follows:

Mr Brereton was assessed at home via the Teams platform. His mother was there for the start of the interview and the explanation of the process and confidentiality issues. She then left.

At the outset Mr Brereton explained that he had difficulty expressing himself or remembering specific details at times, particularly in disentangling his capacity to do things compared to his ability to initiate them, due to the anxiety-related impact on his planning, execution, procrastination and initiation of complex tasks, particularly if there is a degree of expectation or demands.

1. The worker's medical history, where it differs from previous records

Mr Brereton has recently had his antidepressant changed from Desvenlafaxine 100mg to Clomipramine 100mg mane. He said he has only taken this for a week or so but it has already benefited his sleep a little. He reported that this was changed to better address his prominent anxiety.

Since the initial certificate he has been working with a new psychologist, Abbie, who is 'very good...she understands me.' He noted they do some thought-challenging and identification of triggers. Conversely, despite his positive description of her, he reported no improvement in any of his symptoms or functioning over that period of time.

I could elicit no other treatments e.g. TMS, hospitalisation or other approaches for his psychiatric disorder.

He has been treated by an exercise physiologist, but reports that due to his intermittent attendance he has not engaged for some time and needs to restart this as he knows this is good for him.

Lisdexamfetamine 70mg mane, Clomipramine 100mg mane

1. Additional history since the original Medical Assessment Certificate was performed

Throughout the assessment Mr Brereton was keen to identify how previously he had been able to manage his ADHD and any symptoms or impact through medication and the range of strategies that he had developed over the years. It became clear over the assessment that the marked increase in his anxiety arising from his injury has now made any previous impacts of his ADHD far more manifest and have substantially hampered his ability to manage them.

His predominant mental state is one of anxiety, procrastination, and frustration with his avoidance of any significant stressors or demands, particularly those that involve complex tasks or expectations from himself or others, and his stress intolerance. He reports making grand plans across a wide range of activities in his life but frequently not able to follow through on them, at times "paralysed" by anxiety. He noted that over the past few weeks he realised he had not paid his fines and so his licence had been suspended. Further he had been avoiding the registration of his car due to organisation associated with this. As a result he has been unable to drive, pick up his daughters or take them to dance. This 'sent me into a spiral' where he became more anxious and avoidant, frustrated, and that he is letting people down, further enhancing his anxiety. He remains optimistic and in fact reported no pervasive depressive phenomena, such that any sense of 'beating myself up, being down on me' or low mood lasts a maximum of a day and has resolved by the following morning: 'each day is a new day.' He finds himself ruminating over and over about how he should do things, getting lost in anxiety/worry loops and this worry becomes generalised to a wide range of tasks with associated physical features of anxiety. He does not have panic attacks but if overly anxious 'zones out'.

He thus procrastinates and avoids a range of tasks, particularly if there is any pressure whereas he can do many things 'on a whim' or if unstructured and unpressured. For instance he can spend some hours on the internet searching and researching about his 'projects', e.g. gemstones, and thinking about a related business, and 'grand plans' purpose of enabling him to move on. However implementing these has proved impossible as he gets so anxious. He said that many months ago he had identified a local farmer/miner who has a large collection of opals. With his knowledge and the farmer's collection, he has plans of establishing a company to market/sell these with associated jewellery production but has not made any progress due to his inability to sequence, plan and follow through. He enjoys these projects and does not report any significant anhedonia, gaining pleasure from thinking about what he might do and being interested in them. He also bought a drone recently but then, having taken it out on the lake at night, it didn't return, such that he has now lost this. Again the process of administrative tasks to try and gain compensation for this, or claim against its warranty - as presumably it was malfunctioning - has thwarted him.

Noticing he gets in these loops, he gets more anxious, though can break out of them by 'doing something healthy' e.g. going for a walk or taking a shower, or moving onto another 'healthy project.'

He lives in the granny flat at the back of his mother's which has its own shower, cooking facilities etc. His mother runs a consulting business and he says although she is supportive, she tries to maintain boundaries. He has two daughters aged 10 and 5, and has a friendly cordial relationship with his ex. He says she is actually very understanding about his procrastination, anxiety and avoidance when he gets over-anxious and is flexible about managing this without punishing him when he doesn't do his parenting as over the past week or so. Their custody arrangements are by mutual agreement rather than consent orders. I explored their break-up and he said they had broken up over some time having grown apart. Although given the opportunity, he did not make any specific statements that this related to his work injury, increased anxiety etc, but attributable to their slow movement apart over the years such that they split 'before our relationship became toxic.' He dated briefly but not for some time.

He reports the days as similar. He goes to bed around 9:30pm, falls asleep easily, and sleeps throughout the night, waking around 6am when he takes his Vyvanse. He reports no nocturnal intrusive phenomena or difficulties. He gets up around 6:30am and uses the cognitive improvement from his Vyvanse to get on with his 'projects', 'researching' on the internet, which he may do for some hours. He ensures he has a healthy breakfast. The rest of the day can be variably disrupted dependent upon whether he has actually managed to do any of his tasks which will either exacerbate or reduce his anxiety.

As he noted, he actually has no problem when behind the wheel or, as when flying to Perth last year, being on a plane. His issue is not actually when travelling but trying to initiate his transport, reflecting his planning and cognitive difficulties rather than travel impairment. The same is also true of if he plans to go for a walk around the lake, which again he can do without limitation when has overcome any procrastination. It is often easier if he makes quick decisions on a whim as he cannot overthink these and undermine himself.

He will shower regularly and maintains a healthy diet, describing this as 'a focus.' However his unit is described as a mess and he is embarrassed about having his children around as again he finds the planning and management of even the more daily tasks around his unit difficult. If someone is coming around he will do 'a massive cleanup.' His mum will cook for him a few nights a week if she is preparing something but otherwise he makes his own breakfast and lunches. Again when shopping, he has no problem when in the supermarket but may be overwhelmed by anxiety with the thought of what he might have to do when shopping.

Although he spends many hours a day doing things he enjoys: researching, going for a walk, he does almost nothing socially now and described few social contacts. He has lived in the area for many years and has a range of acquaintances and has friends but has very little contact with them. He could not recall the last time he had actually physically seen them although flew to see a friend in Perth last year. He had obviously also been in contact with the miner/farmer over the gems and opals.

He will do a little bit of training on his own at home, utilising the regime given to him by the EP but had not been to the EP's gym for many weeks. He noted that he has been a bit less able to do all of these tasks over the past couple of weeks following the organisationally-induced anxiety spirals.

He enjoys being with his girls, walking in nature and his hobbies. His primary support is his mother and he noted his ex is also cordial and supportive. He rarely sees his family and hasn't seen his sister down in Sydney for some months. He does not game, and doesn't appear to get involved in any other cognitive tasks. He has planned to take courses e.g. gemmology or other associated interests but became paralysed when having to go to the course or register and so has not started them. For the same reason he has not engaged in any work or volunteer activities. He finds even the thought of external stressors/expectations highly anxiety-provoking.

He drinks alcohol a maximum of about once a month, does not smoke/vape, use any illicit substance, medicinal cannabinoids, microdose. He has no physical health conditions, no recent injuries/ operations and takes no medications although will occasionally take a gym supplement.

Mr Brereton was well-kempt, clean and looked slightly younger than his age. He was pleasant and engaged although showed a degree of distractibility. At times he was quite vague and difficult to pin down on details. He suggested he struggled with detailed recollections of his life. He did not describe either of the two cardinal features required for depression. He has intermittent negative cognitions when he has become more impaired by his anxiety, where he will beat up on himself for a day at most. He remains motivated and continues to push himself daily and described himself as optimistic. He has a generalised anxiety, at times physical symptoms of this but a more dominant pattern of worry/anxiety/procrastination loops that are at times difficult to get out of. Although he has no panics, he reports that when overwhelmed with anxiety and worries, he 'zones out' and 'my mind goes blank.' (This is a classic feature of GAD.) He describes significant difficulty with following through on planned activities and very low stress tolerance although conversely can focus for prolonged periods of time on things that interest him, e.g. his projects, if there are no stressful demands.

1. Results of any additional investigations since the original Medical Assessment Certificate

Mr Brereton is a slightly unusual case. There is a very well-documented history of a pre-existing psychiatric disorder, Attention Deficit Disorder, which at times showed periods of marked impairment. This was managed through long-term treatment from his psychiatrist and with a range of strategies that Mr Brereton had implemented to enable him to reduce the impairing aspects of the ADHD. From reading the documentation, and again corroborated today, when he was promoted to a more demanding role but under-supported in his job, his capacity to manage this became overwhelmed by anxiety.

His work-related psychiatric injury does not have the required features for a mood disorder or depressive episode. It is also more severe than that of an Adjustment Disorder with symptoms that clearly meet the diagnostic criteria for a more severe disorder under our hierarchical diagnostic system.

He meets the criteria for a Generalised Anxiety Disorder with chronic excessive anxiety in a wide range of situations, particularly around activities with demands and expectations. He finds this very difficult to control and it is associated with several physical features e.g. restlessness, difficulty concentrating, his mind going blank, being tense, with irritability and frustration, and it causes clinically significant distress.

He does not have a, commonly co-morbid, Panic Disorder

He has a pre-existing condition of Attention Deficit Disorder, the impairment of which has become far more manifest following the injury. This continues to overwhelm his ADHD management strategies today such that he finds it difficult to follow through on tasks, plan, sequence activities in any stressful or demand-related scenario.

As noted, there is in fact an error in the overall impairment and each category appealed (and the two not appealed) as the method by which the MA deducted the contribution of the pre-existing condition's impairment is unsupportable. Moreover, It does not enable a reader to identify what the actual current WPI is and what was the rating in each category currently as 'The impact of ADHD has been considered in determining the current impairment rating.'

Whilst I would suggest from a medical perspective Mr Brereton's pre-existing condition of Attention Deficit Disorder might well be contributing to a much greater whole person impairment than that arising solely from the injury related condition of Generalised Anxiety Disorder, this cannot be easily assessed. Thus, given his pre-existing ADHD was reasonably well-managed previously through medication and his own strategies, and probably 'asymptomatic', its contribution to the current WPI can only be dealt with by a Section 323, 1/10th deduction.

It is clear that the Medical Assessor was cognisant of this pre-existing injury in terms of the answers to 11(a) and 11(b) but has dealt with the pre-existing injury in 11(b) as 'the impact of the ADHD has been considered in determining the current impairment rating.' This is of course not the correct manner to handle the contribution of a pre-existing injury to the current whole person impairment and has contaminated the assessment of some of the PIRS categories, in particular Concentration, Persistence and Pace, as appealed by the worker.

In attempting to rate the impairment in each category, I have attempted to differentiate the impairment in the conduct of that category from his difficulties in the planning, sequencing and initiation of tasks in that category. This is most overt in the area of Travel where once actually travelling he reports no impairment when driving or flying, but at times finds great difficulty in overcoming the related anxiety required to initiate this.

I have constructed the following PIRS Rating Form to reflect my findings:

Generalised Anxiety Disorder with chronic excessive anxiety

He reports regular washing without prompting, being able to do his own shopping if he does not get overcome by his anxiety, go for walks around the lake, exercise, and having a focus on healthy eating. He however also reports that his unit is very messy, to the extent he is embarrassed by it and doesn't want his girls to see it but will do an infrequent major clean-up. His mother cooks for him a couple of times a week, but he makes many meals. He thus reports for the majority of time being able to live independently and not necessarily requiring prompting, and in fact doing healthy activities to break his decision 'paralysis': mild impairment.

This category has not been appealed and the information elicited today would support the rating by the Medical Assessor which accords with the rating of Dr Bertucen.

Both the appellant's IME and the Medical Assessor rated Travel as a 1. I concur. He noted that he has no difficulties when actually travelling, although will at times - even frequently during the weeks such his recent 'spiral' - have difficulty initiating this travel.

He clearly reported today that the split from his ex was not a result of his psychiatric impairment but rather a longer term growing apart. However the anxiety- and cognitive-related impairments mean that he at times lets his daughters down, relying upon his ex to look after his children more than she should do. For the same procrastination and stress intolerance reasons he also at times relies upon his mother to help him look after his children. He has little contact with his friends although a very supportive mother. This is a moderate impairment.

Although he can focus on his 'projects', these appear to reflect spending hours on the internet about areas he is interested in. Whilst this one descriptor meets that of a mild impairment, the anxiety related difficulty he has with initiating cognitive tasks - particularly if there is a complexity or stressful component to these- leads him to relinquish these, not persist and even prevented him starting courses he is very interested in. His pace in more demanding tasks with an external expectation is disrupted and slowed, indicative in toto of a class 3 impairment in this domain.

The marked unpredictability, stress intolerance, incapacity to manage stressors, demands and expectations arising from his anxiety, and degree to which it now overwhelms his ability to manage ADHD impairments renders him unemployable. He has been unable even to progress any employability in his hobby that he really enjoys and has a great deal of knowledge about: gemmology.

1. We adopt Medical Assessor Glozier's report and assessment.
2. For these reasons, the Appeal Panel has determined that the MAC issued on 21 March 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

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

Chapter, page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

Total % WPI (the Combined Table values of all sub-totals)

[2] [2018] NSWCA 324.

[3] [2018] NSWSC 140.

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

[6] [2017] NSWSC 887.

[7] [2015] NSWSC 633.

[8] [2018] NSWSC 140.

[9] [2022] NSWSC 929.

[11] [2024] NSWCA 191.

[12] [2010] NSWSC 78 at [38].

[13] In Cole there were two injuries under consideration. The words in parentheses replace 'second' injury and the previous "first injury."