State of New South Wales South Western Sydney Local Health District

WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether the Medical Assessor's (MA) ratings of the appellant's impairment in travel, and concentration, persistence and pace, and employability accorded with the history the MA obtained and the other evidence before the MA; Held - Appeal Panel found that the MA ratings of the appellant's impairment in concentration, persistence and pace accorded with the history the MA obtained and the other evidence before the MA but his ratings of the appellant's impairment in travel and employability did not; Medical Assessment Certificate revoked.

1. On 22 October 2025 Samatha Brien, the appellant, 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

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

1. The appellant commenced employment with the State of New South Wales, the respondent, working as an administration officer at the Campbelltown Hospital within the South Western Sydney Local Health District. Due to matters that occurred in her employment from

5 December 2022 she suffered a psychological injury. 2. The appellant claimed compensation from the insurer of the respondent for permanent impairment that she said resulted from her injury. She relied on a report that her solicitors obtained from consultant psychiatrist Dr Abdal Khan dated 31 May 2024. Within his report, Dr Khan advised he assessed the degree of the appellant's permanent impairment from her injury is 19% whole person impairment (WPI). 3. The insurer of the respondent disputed the appellant was entitled to compensation for permanent impairment. It advised her of that in a notice it issued to her pursuant to s 78 of the 1998 Act on 15 October 2024. Within that notice it also advised that its reason for disputing her entitlement was on the basis that her permanent impairment from her psychological injury is not at least 15%. It advised her that it came to that view based on a report its solicitors obtained from psychiatrist Dr Tessa Daws dated 23 September 2024, in which Dr Daws advised she assessed the degree of the appellant's permanent impairment from her injury is 8% WPI. 4. The appellant then initiated proceedings in the Personal Injury Commission (Commission) by lodging with it an Application to Resolve a Dispute dated 1 August 2025. Following the respondent filing a reply to that application, a delegate of the President of the Commission referred the matter to the Medical Assessor, who examined the appellant on

12 September 2025. He certified in the MAC that he assessed the degree of the appellant's permanent impairment is 7% WPI. His assessment was done in accordance with the requirements of chapter 11 of the Guidelines; that is, by reference to the psychiatric impairment rating scale (PIRS) that is detailed within that paragraph 11.11 and Tables 11.1 - 11.6 of the Guidelines. His ratings in the various behavioural domains comprising the PIRS are Class 2 for self-care and personal hygiene, Class 3 for social and recreational activities, Class 1 for travel, Class 2 for social functioning, Class 2 for concentration, persistence and pace (CPP), and Class 4 for employability. He summarised his reasons for his ratings of the appellant's impairment for each of those domains in the PIRS rating form within the MAC. The appellant in her appeal against the medical assessment has challenged the Medical Assessor's ratings in the domains of travel, CPP and employability. 5. The Medical Assessor's summary of his reasons for his rating of the appellant's impairment in travel as expressed in the PIRS rating form is:

"She has driven up to two hours to visit her aunt. She drives to see her psychiatrist, which can take up to 40 minutes. She used to see a psychiatrist at a different address previously. There is no impairment in this domain."

1. In the history the Medical Assessor detailed in the MAC he also recorded that when the appellant drives to see her aunt she is accompanied by her mother. The Medical Assessor also noted that the appellant drives on her own to keep her appointments with her psychiatrist.
2. The summary of the reasons the Medical Assessor provided in the PIRS rating form for his rating of the appellant's impairment in CPP is:

"She can watch movies with subtitles for up to an hour. She is unable to read for more than thirty minutes. Her memory is variable. She can remember some things and needs reminders for others. There is mild impairment."

1. The Medical Assessor also recorded in the history within the MAC that the appellant reads fiction books and can follow the plot of the books. The Medical Assessor recorded that the appellant reported that her memory is variable and that she can remember some things very well but struggles to remember timelines. The Medical Assessor noted that the appellant has an alarm on her phone to notify her of her medications to ensure she takes them regularly.
2. The summary of the reasons the Medical Assessor provided in the PIRS rating form for his rating of the appellant's impairment in employability is:

"In my clinical opinion, Mrs Brien should be able to work for up to two days per week in a less stressful job. Her attendance is likely to be erratic because of her mental state, but she is not considered totally incapacitated from working."

1. The Medical Assessor also recorded in the history he detailed in the MAC that the appellant had lost trust in managers and that her husband has been trying to get her to work in his business but she does not want to do so because she is scared that she is not good enough.

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. This is because the material before the Appeal Panel is sufficient for the Appeal Panel to deal with the appeal.

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

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
2. In summary, the appellant submitted that the Medical Assessor erred because he failed to apply correctly the criteria of the PIRS to his findings from his examination and the other evidence before him.
3. The appellant highlighted that the Medical Assessor had recorded in the history he obtained that her mother sits with her when she is driving. The appellant also highlighted that Dr Khan rated her impairment in travel as Class 2 and that his reasons for so doing included that she prefers to have her husband present when travelling longer distances and that she struggles with anxiety and avoidance of crowds when she leaves her home. The appellant also highlighted her evidence in a statement she signed on 1 May 2025 that she is only able to drive if absolutely necessary and always has her mother with her when driving. The appellant also referred to Dr Daws' rating of her impairment in travel, which was Class 2. The appellant noted that Dr Daws' reasons for that rating included that she is able to travel to familiar places with a support person.
4. The appellant submitted that it is evident both from what the Medical Assessor recorded and the other evidence relating to her function in travel that she has a mild impairment in travel.
5. With respect to CPP the appellant noted that Dr Khan had assessed her impairment in CPP is Class 3 and that his reasons for that rating are that she struggles with attention and concentration, has difficulty focusing on tasks such as reading and retaining the information she reads, and is easily distracted in conversation and has impaired memory.
6. The appellant submitted that the Medical Assessor "failed to refer to the terms of the definitions in Classes 2 and 3". The Appeal Panel interprets that the appellant's reference to "the definitions" as being a reference to the examples provided in Table 11.5 of the Guidelines for a Class 2 and a Class 3 impairment.
7. The appellant submitted that the Medical Assessor obtained a history that she is unable to read for more than 30 minutes. The appellant noted the Medical Assessor also obtained a history that she can watch a movie for up to an hour. The appellant submitted that watching a movie is not an intellectually demanding task.
8. The appellant submitted there is no evidence that she has the ability to follow complex instructions. The appellant submitted that she is unable to read for significant periods of time and that she struggles to remember timelines and requires prompting from an alarm so she can take her medications. The appellant submitted that this accords with a Class 3 impairment in CPP.
9. With respect to employability, the appellant submitted that the Medical Assessor failed to refer to any evidence to support his clinical opinion that she is able to work for two days a week in a less stressful job but with erratic attendance. The appellant referred to a letter that her treating psychiatrist, Dr Robert Gordon, wrote to her solicitors on 28 February 2025 wherein, according to the appellant, Dr Gordon "confirms" that she is incapable of filling any working position. The appellant also referred to the evidence she gave in her statement that she has lost the ability to work and has no concentration and has fear of people. The appellant also referred to Dr Khan rating her impairment in employability as Class 5 because she could not work at all due to pervasive mental health and cognitive difficulties.
10. The appellant referred to the history the Medical Assessor obtained which included that she had worked for her husband's business but paid the wrong entity and stopped. The appellant submitted that this demonstrates that she has no capacity for any form of employment.
11. In reply, the respondent submitted that the appellant demonstrated that she is able to travel to new environments without supervision and that equates to a Class 1 impairment in travel. The respondent submitted that the Medical Assessor properly explained his reasoning for his rating of the appellant's impairment in travel. The respondent submitted that the examples provided in Tables 11.1 to 11.6 of the Guidelines provide assistance or guidance to a Medical Assessor and they are not prescriptive.
12. The respondent submitted the fact the Medical Assessor has a different opinion from other examiners does not amount to a demonstrable error.
13. With respect to CPP, the respondent submitted that when the MAC is read as a whole the Medical Assessor's assessment of the appellant's impairment is appropriate and is based on a detailed history the Medical Assessor obtained. The respondent submitted that the Medical Assessor assessed the appellant as she presented on the day, taken into account the relevant history and her variations in her functioning over time.
14. With respect to employability, the respondent submitted that when the MAC is read as a whole the Medical Assessor's rating of the appellant's impairment is appropriate. The respondent submitted that the Medical Assessor's assessment is properly explained or alternatively could be properly inferred.

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.

1. The examples provided in Table 11.3 for a Class 1 rating are, "no deficit, or minor deficit attributable to the normal variation in the general population: can travel to new environments without supervision". The examples provided for a Class 2 rating are, "mild impairment: can travel without support person, but only in familiar areas such as local shops, visiting a neighbour".
2. The history the Medical Assessor obtained included that the appellant drives to her aunt's place and that this drive takes two hours to complete. The history included that the appellant's mother sits with her during this drive. The history the Medical Assessor obtained also included the appellant is able to drive on her own to her appointments with her psychiatrist and that that drive takes 35 to 40 minutes to complete.
3. The appellant's evidence in the statement she signed on 1 May 2025, which the Appeal Panel notes is approximately four and a half months prior to the Medical Assessor's examination of her, is that she "generally cannot drive because I have suicidal urges" and "I only drive if absolutely necessary and always have my mother with me". That evidence does not accord with the history the Medical Assessor obtained being that the appellant is able to drive on her own for up to 40 minutes at a time and drives for two hours at a time when accompanied by her mother.
4. The Medical Assessor was, as the respondent submitted, required to assess the appellant based on her presentation and her function at the time he conducted his assessment. That is, he was required to conduct his assessment based on the history he obtained at the time he examined the appellant. That history represented the appellant's capacity at that time.
5. Bearing in mind what the appellant described in her statement, and noting the history

Dr Daws obtained, it is evident from the history the Medical Assessor obtained that the appellant's capacity with respect to travel was not as severely impaired at the time he examined her as that which it was when she signed her statement and at the time Dr Daws examined the appellant in September 2024. 6. Nevertheless, based on the history the Medical Assessor obtained, the Appeal Panel considers that the Medical Assessor was wrong to find that the appellant either had no deficit with respect to her capacity in travel or a minor deficit attributable to the normal variation of the general population. This is because the appellant is unable to drive for two hours without having her mother with her. That deficit in her ability to travel is not attributable to a normal variation within the general population. Her level of impairment, in the Appeal Panel's view, correlates with an impairment described by the examples for a Class 2 rating. The Medical Assessor consequently erred by not rating her impairment in travel as Class 2.

1. The descriptors provided in Table 11.5 for a Class 2 impairment for CPP are:

"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."

"Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting."

1. As is made clear by paragraph 11.12 of the Guidelines, the examples of impaired conduct provided for the various class ratings in the several PIRS Tables are just that- examples. They are not prescriptive. Contrary to the appellant's submission, they are not "definitions". The purpose of providing the examples is to illustrate for a Medical Assessor and guide the Medical Assessor how a worker's impairment may be rated. A worker may exhibit impaired conduct that correlates with an example listed for one of the class ratings within a PIRS category and also exhibit other impaired conduct that correlates with an example listed for another of the class ratings of that particular PIRS category. The fact that a worker may exhibit conduct described in one class rating, does not require a Medical Assessor to rate the worker's impairment within that class. The particular example can be surmounted by other relevant facts.[1]
2. The Medical Assessor's reasons for rating the appellant's impairment as Class 2 in CPP included that the appellant is unable to read for more than 30 minutes. It also included that she able to watch movies with subtitles for up to an hour. The Medical Assessor noted that the appellant's memory is variable in that she can remember some things but needs reminders for others. The Medical Assessor also obtained a history that the appellant could read fiction books and could follow the plot.
3. The fact that the appellant can watch movies with subtitles for up to an hour is consistent, in the Appeal Panel's view, with her being able to focus on intellectually demanding tasks for an hour. Watching a movie with subtitles requires focus and concentration and persistence.
4. None of the various items of activity the Medical Assessor recorded in the history he obtained relating to the appellant's CPP squarely accords with the examples provided for either a mild or moderate impairment. The appellant being unable to read for more than 30 minutes at a time and having variable memory do not accord with the examples provided for a Class 3 impairment, and nor are they inconsistent with the examples for a Class 2 impairment in CPP. But as the Appeal Panel's discussion in [43] above indicates, in terms of rating the appellant's impairment in CPP, the Medical Assessor was entitled to weigh all matters relating to the appellant's CPP to assess the level of her impairment in CPP. Noting the appellant is able to watch movies with subtitles for an hour at a time, and what that involves of the appellant in terms of concentration and persistence, the Appeal Panel discerns no error in the Medical Assessor's rating of the appellant's impairment in CPP as Class 2. In the Appeal Panel's view, it squares with a level of impairment depicted by the examples when considered broadly, for a Class 2 impairment.

1. The examples provided in Table 11.6 of the Guidelines for a Class 4 and Class 5 impairment in employability are:

Severe impairment: cannot work more than 1 or 2 days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic

1. The Appeal Panel agrees with the appellant's submission that the Medical Assessor did not in a cogent way expose why he formed his "clinical opinion" that the appellant could work two days a week in a less stressful job.
2. The history he obtained included that the appellant had tried working for her husband's business but stopped after having paid "the wrong entity". The history included that the appellant had lost trust in managers and that her husband had been trying to get her to work for his business but she was scared to do so because she felt she is not good enough.
3. The evidence reveals the appellant has not worked since January of 2023. She has remained symptomatic since the onset of her injury.
4. The fact that the Medical Assessor did not explain the basis upon which he formed his clinical opinion for his rating of the appellant's impairment in employability is an error, such that the MAC contains a demonstrable error. He was required to expose his reasoning.
5. The Appeal Panel must correct that error, and does so by rating the appellant's impairment as Class 5. That is, she cannot, based on her current presentation, work at all. She has remained symptomatic since the onset of her illness and is scared of returning to the workplace and has not worked since January 2023.
6. The appellant has also relied on the ground for appeal listed in s 327(3)(c) of the 1998 Act. The Appeal Panel finds that this ground is not made out. The Medical Assessor applied correct criteria to make the medical assessment of the appellant's permanent impairment. This is simply because the Medical Assessor applied the criteria of Chapter 11 of the Guidelines, which are the correct criteria.
7. In summary then, the Appeal Panel finds that the Medical Assessor erred with respect to his ratings of the appellant's impairment in travel and employability. The Appeal Panel in correcting those errors rates the appellant's impairment in travel as Class 2, and in employability as Class 5.
8. For these reasons, the Appeal Panel has determined that the MAC issued on

24 September 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

State of New South Wales South Western Sydney Local Health District

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)

[1] Rogers v Help Service Union NSW [2025] NSWSC 291 at [43] - [45].