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 but have been considered by the Appeal Panel.
2. The appellant's submissions include the following:

(a) the appellant relies upon sections 327(3)(b)(c) and (d) of the 1998 Act in challenging the Medical Assessor's assessments in respect of the categories of Social and Recreational Activities, Concentration, Persistence and Pace and Employability the Psychiatric Impairment Rating Scale ("PIRS"), the failure to diagnose the appellant's Alcohol Use Disorder, and the s 323 deduction;

(b) Ground one - Social and Recreational Activities - the Medical Assessor assessed the appellant as falling within Class 2 in this category, whereas the circumstances of the appellant indicate that she falls within Class 3;

(c) to understand what "social and recreational" refers to under the PIRS, a starting point is the descriptor for "no deficit": The baseline refers to "social activities", and active involvement in "clubs or associations", that is, activities in which the subject is engaged with others in an organised social context. The activity is both social (i.e. involving many people) and recreational. This requires consideration of what "recreational" means - activity engaged in for enjoyment. In the class 2 descriptors the criteria in this category contemplate "events", i.e. organisation of the activity by others, social participation, and active involvement by the subject;

(d) the Medical Assessor misdirected himself in having regard to evidence which is not relevant to events of a social nature when making an assessment in the category of Social and Recreational Activities. The appellant's attendance in yoga classes and boxing was not activity of a social nature. The evidence confirms that the appellant's attendance at yoga does not involve social interaction. Likewise, her attendance at boxing classes is dependent upon the company of her husband as a support person. There is evidence of the appellant's engagement with others in that context;

(e) the appellant's visit to Canberra and the National Gallery is also not evidence of engagement in social activities, but of a rare family outing. There is no indication of any social interaction by the appellant, or engagement with anyone other than family members upon whom she is dependent for support. The Medical Assessor's reliance on the appellant's attendance at the Royal Easter Show as evidence of mild impairment in her capacity to participate in social and recreational activities ignores the evidence he noted: "They went to the Royal Easter show in 2023, but she had a panic attack and said she would not go again;"

(f) the foregoing evidence confirms that the appellant is not capable of participation in social events, even with the support of her family. The evidence noted by the Medical Assessor that the appellant "no longer goes to restaurants and cafes", and that she "doesn't visit friends and doesn't allow visitors to her home" is plainly indicative of moderate impairment. The fact that the appellant visits her brother with her husband is not evidence of engagement in social and recreational activities. It is a matter relevant to assessment in the PIRS category of Social Functioning, not the category of Social and Recreational Activities;

(g) the Medical Assessor erroneously assessed the appellant as meeting the criteria for Class 2, which applies to a person who is able to attend social events "without requiring a support person". Every example referred to by the Medical Assessor in support of his Class 2 assessment involved the presence of a family member. The evidence clearly accords with the descriptors for Class 3. It follows that the Medical Assessor's assessment involved a demonstrable error and was made on the basis of incorrect criteria. The error committed by the Medical Assessor is identical to the erroneous approach considered by the Court of Appeal in Ballas v Department of Education (State of NSW) [2020] NSWCA 86. An objective assessment in accordance with the PIRS would have resulted in Class 3 being assigned under the category of Social and Recreational Activities;

(h) Ground two - Concentration, Persistence and Pace. The Medical Assessor assessed the appellant as falling within Class 2 in this category, whereas the circumstances of the appellant indicate that she falls within Class 3;

(i) there is no evidence of the appellant's undertaking, or being able to undertake, a retraining course or a standard course. Similarly, there is no evidence of the appellant's focussing on intellectually demanding tasks for periods of up to 30 minutes;

(j) the Medical Assessor recorded the following details in support of his assessment of Mild Impairment: "She describes subjective problems with attention and memory. She said she struggled to read and doesn't watch television. However, she can write articles and books, arrange their publications, and participate in podcasts. She was imprecise with dates but otherwise gave a coherent history in my assessment, which lasted more than 100 minutes." Having noted that the appellant said that she has problems with attention and memory, and that she struggled to read and doesn't watch television, all indicating that her impairment is moderate, the Medical Assessor proceeded to state that the appellant can write articles and books and "arrange their publications;"

(k) the Medical Assessor took no proper history of the time taken by the appellant to write any of the material. He noted that Dr Hong had recorded the following: "I asked Ms Broomhall about publishing the books about bullying. She said she doesn't know when this happened or how long it took her to write the book. She then told me that she didn't write the book. She told her children (now aged 15 and 17) what to write and they are the ones who wrote it, and then they had an editor and then a publisher;"

(l) there is no evidence which indicates that the appellant can read more than newspaper articles, follow complex instructions, type long documents and follow patterns;

(m) as Dr Hong had noted, the appellant stated that "she doesn't cook anymore because she is forgetful and had left the stove on". That would clearly confirm that she lacks elementary capacity for concentration, as confirmed by Dr Khan who appropriately assessed the condition of the appellant as satisfying the criteria of Class 3 in this category;

(n) the Medical Assessor, having noted that the appellant "drinks to excess in a manner likely to harm her physical and mental health" when explaining his assessment of Class 3 in the category of Selfcare and Personal Hygiene, failed to consider the impact of the appellant's Alcohol Use Disorder on her capacity to concentrate, maintain attention, draw upon memory and persist with execution of tasks when assessing impairment in the category of Concentration, Persistence and Pace;

(o) the Medical Assessor's failure to diagnose the appellant's Alcohol Use Disorder, and to consider its impact, is a material omission which renders his assessment of impairment unreliable in the absence of a comprehensive understanding of the extent of the appellant's psychiatric pathology. It follows that the Medical Assessor erred in treating the appellant's deficits in this category as being merely mild;

(p) Ground three - Employability. The Medical Assessor assessed the appellant as having limited capacity for employment, and as falling within Class 4 (i.e. Severe Impairment) in this category. His assessment is demonstrably erroneous and at odds with the preponderance of medical opinion, as provided by Dr Khan,

Dr Hong, and Dr Subbamma (the appellant's treating GP);

(q) the Medical Assessor did not acknowledge Dr Hong's opinion regarding the appellant's lack of capacity for work, or the impact of her alcohol intake in rendering her incapacitated for work;

(r) that failure by the Medical Assessor to consider, when assessing the appellant's work capacity (i.e. to secure and retain employment), the extent and impact of the appellant's alcohol intake, a matter he himself described as "to excess" and "likely to harm her physical and mental health", is a material omission which necessarily renders his assessment unreliable;

(s) the Medical Assessor also based his assessment of the appellant's work capacity on the unfounded assumption that "writing and podcasting" are activities which indicate that the appellant is fit to engage in actual employment for remuneration. There is no evidence that establishes how long, in a particular session, the appellant is able to participate in writing or a podcast. The Medical Assessor has failed to appreciate that engagement by the appellant in activities involving writing or a podcast were at her discretion, at times of her choosing, for as long as she chose to engage in such activities, and for as long as she maintained the concentration necessary to thus engage;

(t) none of the foregoing features of the voluntary activity of writing or participating in a podcast are compatible with employment - i.e. with fixed starting and finishing times, the need for punctuality, attending to tasks assigned by supervisors and managers, not as chosen by the appellant, complying with policies and practices of the employer, being subject to discipline and the prospect of disciplinary sanctions, and the requirement that she remain sober;

(u) the Medical Assessor was aware of the distinction between the appellant's voluntary activities and employment, conceding that "it is untested whether she would cope in a structured work environment". It follows that the Medical Assessor could not reliably assess the appellant as having capacity "to do a less demanding job for fewer than 20 hours a fortnight", given the absence of any evidence that she could cope in a structured work environment. Moreover, the Medical Assessor's concluding remark that "her attendance might be erratic" reveals that he could not suggest with any confidence that she would be able to conduct herself reliably and in compliance with the elementary requirements of paid employment, so as to be able to retain a job,

(v) it follows that the Medical Assessor's assessment that the appellant had capacity for employment is misconceived, inconsistent with the medical consensus, based upon an erroneous conflation of voluntary activities with paid employment, and made without acknowledgement of the severity of the appellant's condition and that her Alcohol Use Disorder excludes the prospect of the appellant being able to retain any position. In the circumstances, the Medical Assessor should have assessed that Class 5 applied in the category of Employability, i.e. the appellant is totally impaired for employment,

(w) Ground four - The failure to diagnose the appellant's Alcohol Use Disorder and to consider impairment resulting from that condition. The Medical Assessor's error in this respect has been discussed above in considering the errors made in respect of his assessments of impairment in the PIRS categories of Social and Recreational Activities and Employability;

(x) Ground five - s 323 deduction - The Medical Assessor proceeded on the erroneous basis that the appellant had an "earlier condition", in the absence of any evidence of any psychological illness prior to her commencement of employment with the respondent, or prior to being subjected to protracted stressors in the course of employment;

(y) the Medical Assessor noted at Part 4 of the Medical Assessment Certificate that the appellant "had no problems at work until 2012, when a new deputy chief was appointed". The Medical Assessor failed to refer to Dr Khan's report of 9 June 2022 when making a deduction in respect of a pre-existing condition. The Medical Assessor failed to have regard to the report of treating psychiatrist, Dr Patrick Morris, dated 9 April 2024, and to Dr Morris's recording that "There is no previous psychiatric history". Plainly, the appellant's condition was not attributable to any prior condition and resulted entirely from the stressors to which she was subjected in the course of her employment with the respondent. The Medical Assessor also failed to have regard to the report of treating psychologist,

Mr Darren Wilson, dated 30 March 2022, who noted that there have been "no other factors of pre-existing or influences outside of Ms Broomhall's ongoing workplace exacerbation of her life-threatening treatment from FRNSW over

4 years which culminated in her initial injury being identified on 2 July 2019". The Medical Assessor also neglected to acknowledge the history taken by Dr Michael Hong, in his report dated 20 July 2023: "She had not suffered psychiatric problems, or needed psychological/psychiatric treatment, before joining Fire & Rescue. She said normally she was a teetotaller;"

(z) the Medical Assessor was required, pursuant to s 323 of the 1998 Act, to assess the "proportion of the impairment that is due to any previous injury ... or that is due to any pre-existing condition or abnormality". The Medical Assessor has proceeded to make a deduction in the absence of any evidence of a pre-existing condition. The Medical Assessor's approach is also inconsistent with Cole v Wenaline Pty Ltd [2010] NSWSC78, Ryder v Sundance Bakehouse [2015] NSWSC526, and Fardell v Clinton Industries Pty Ltd [2022] NSWSC 111, which require the Assessor to explain the basis upon which he or she considers the

pre-existing condition to be contributing to the aggregate degree of impairment;

(aa) a further error is that the Medical Assessor, in proceeding to make a deduction pursuant to s 323 of the 1998 Act, failed to attend to the exercise required by Cl 11.10 of the Guidelines. The evidence does not indicate that prior to the appellant's employment with the respondent and the stressors to which she was subjected from 2013, she would have been assessed as having impairment in any of the six categories of the PIRS ;

(bb) it follows that the deduction made by the Medical Assessor: (1) lacked any evidentiary foundation, and (2) was made contrary to the provisions of

s 323 of the 1998 Act and the process required pursuant to Cl 11.10 the Guidelines;

(cc) in the circumstances, it follows that the MAC contains demonstrable errors and reveals incorrect criteria in respect of the assessments made in respect of impairment in the categories of Social and Recreational Activities, Concentration, Persistence and Pace, and Employability, and the deduction made pursuant to section 323 of the 1998 Act; and

(dd) the appellant submits that it is appropriate in the circumstances that the MAC be revoked and substituted with a Certificate pursuant to assessment of impairment by a Medical Appeal Panel.

1. The respondent 's submissions include the following:

(a) the Medical Assessor applied his clinical experience and based his assessment on both the findings on examination, as well as the material before him. The Medical Assessor provided adequate reasons and examples to support his findings. The MAC dated 5 December 2024 does not contain any demonstrable errors and the Medical Assessor correctly applied the criteria when assessing the appellant's injury and impairment;

(b) Ground one - Social and Recreational Activities - The Medical Assessor took a history regarding the appellant's social and recreational activities on page five and six of the MAC. On Page seven of the MAC, the Medical Assessor noted various inconsistencies in the appellant's presentation and reported history. Relevant to the assessment under this category, the Medical Assessor noted the appellant failed to mention activities such as yoga, boxing classes, and other activities until specifically challenged by the records. He concluded that the appellant's narrative was not credible, and he was required to cross-reference her reported history with the documentary evidence which suggested the contrary;

(c) on Page 12 of the MAC, the Medical Assessor noted the appellant initially provided him with the same history as she did to Dr Khan. However, after he closely questioned the appellant and brought the documentary evidence to her, she acknowledged attending yoga classes twice weekly and two boxing classes every few weeks. Last year, she had a family holiday in Canberra where she visited the National Gallery, and the Royal Easter Show;

(d) the Medical Assessor has not erred in his assessment, nor based his assessment on incorrect criteria. The Medical Assessor had regard to all the available evidence, and in circumstances where the appellant's inconsistent and unreliable self-report did not align with such evidence, the Medical Assessor was required to make an informed clinical opinion based on the totality of the evidence. Additionally, activities such as yoga and boxing classes clearly falls within the ambit of 'social and recreational activities' for the purposes of assessment impairment under this category. Further, the appellant's ability to participate in family holidays and social events such as the trip to Canberra in 2023, the National Gallery, and the Royal Easter show occurred post-date of injury. When having regard to the examples provided in the PIRS class descriptors, the Medical Assessor was correct in assessing Class 2 impairment, as such an assessment accounts for the fact that the appellant occasionally goes to such events;

(e) the Medical Assessor has taken an appropriate consideration of the appellant's social activities prior to her injury, and assessed her impairment based on his clinical judgment and the material provided to him considering the activities that are usual for the appellant. Overall, the appellant merely seeks to cavil with the Medical Assessor's wording and characterisation of 'social and recreational activities' in his assessment of her impairment under this category. The Medical Assessor has not made a demonstrable error and has applied the correct criteria in his assessment. His assessment was challenged by the fact that the appellant was an unreliable historian who provided a narrative which was not credible. Accordingly, the Medical Assessor was required to balance the appellant's history and presentation with the totality of the evidence to form an opinion. The Medical Assessor has provided an objective assessment in accordance with the PIRS, resulting in the correct assessment of Class 2 impairment,

(f) Ground two - Concentration, Persistence, and Pace - The Medical Assessor appropriately considered all the available evidence in his assessment of the appellant's impairment and utilised his clinical skills and judgement. The Guidelines, which outlines that the examples provided in the PIRS class descriptors are examples only. It follows that a Medical Assessor's deviation from the specific examples provided in the class descriptors does not in itself amount to a demonstrable error; nor does it necessarily mean that the Medical Assessor has applied the incorrect criteria;

(g) the Medical Assessor provided adequate reasons to justify his Class 2 assessment. In this regard, we note he took the following history in relation to the appellant's ability to concentrate on Page six of the MAC. On Page seven of the MAC, the Medical Assessor noted several inconsistencies in the appellant's presentation, including that she failed to mention her book writing, internet presence, and other activities until specifically challenged with the records. The Medical Assessor did not believe the appellant's narrative was credible. In such circumstances, the Medical Assessor was required to rely on documentary evidence as well as the appellant's reported history where there was nothing to challenge it directly. Additionally, on page 13 of the MAC, the Medical Assessor confirmed that the appellant was an unreliable historian. He noted that she reported subjective problems with concentration and memory, which was at odds with her ability to write and promote two books, write several articles, participate in podcasts, and have an active and dynamic presence online,

(h) the Medical Assessor noted under the PIRS Rating Form that the appellant provided a coherent history on assessment, which lasted more than 100 minutes, evidencing her ability to concentrate for a sustained period;

(i) the Procare Desktop Investigation report dated 29 January 2024, referred to by the Medical Assessor on page 10 of the MAC included entries relevant to this category:

(a) the appellant is the current director, secretary, and shareholder of Bright RAI Pty Ltd. This company has a website that retails two books written by the appellant;

(b) the website also provides links for a YouTube video and podcast in which the appellant partook. The YouTube video is presented by the appellant, providing new ways in how people in leadership roles should approach styles that encourage a positive workplace;

(c) a podcast named 'Fast Track: Career conversations with Margie Hartley' was discovered where the appellant speaks about her published books;

(d) 10 January 2024 - a post regarding the appellant's ideals about how humanity needs to evolve, and that people need to live in harmony. She also provided a link for her book;

(e) 16 November 2023 - a video that advertises her recent publication;

(f) 24 October 2023 - the appellant linked her website that is actively being used to promote her book and the articles she has posted on her website;

(g) 19 October 2023 - the appellant has shared a post about the Victorian court being fined for having a toxic workplace. She responded to this by expressing her views on workplace toxicity and bullying. She refers to her book and encourages people to buy and see how to deal with workplace bullying and harassment;

(h) 5 October 2023 - post reminding people to check out her first book publication;

(i) 20 September 2023 - post in relation to an article she published;

(j) 14 June 2023 - quote from her publication and book that speaks about enjoying the moment;

(k) 15 May 2023 - a video where she is seen recording herself speaking about the launch of her new book. She is seen to speak about the editing of that book and was quite excited about the publication; and

(l) 2 February 2023 - reposted an article link that relates to her views on empowering oneself and to not fear bullies.

(j) the Application to Admit Late Documents dated 24 September 2024, contains a copy of the appellant's 2022 publication. The book was published by MoshPit Publishing, a platform established for self-published titles. The appellant is noted as the author and copyright holder, and the cover concept is attributed to her. This is consistent with the Medical Assessor's findings on page six of the MAC that the worker was self-published and had written the book herself. The Medical Assessor also noted the worker's 2023 title was self-published;

(k) given the above, the Medical Assessor has appropriately considered the available evidence, including the appellant's self-report on the day of examination (despite the several inconsistencies of same). He has sufficiently justified his assessment based on these factors;

(l) further, the Medical Assessor is required to provide adequate reasons for their decision to allow the assessment of permanent impairment to be understood and the basis for it. The Medical Assessor is not required to follow the opinions of any of the doctors qualified for the parties (John Fairfax Publication Pty Ltd v Ankica Gadzuric NSWWC MA 197 (16 June 2009)) ('Gadzuric') and is not required to refer to each and every, piece of evidence filed by the parties and provide reasons as to why he did not agree with it;

(m) the MAC is to be read as a whole to see if the result reached has been adequately explained. It is not to be read 'with an eye keenly attuned to the perception of error' (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, 272);

(n) the Medical Assessor has adequately justified his assessment of a Class 2 impairment in relation to Concentration, Persistence, and Pace;

(o) Ground three - Employability - The Medical Assessor is not required to follow or agree with the 'preponderance of medical opinion' of the other doctors. Rather, the Medical Assessor has utilised his clinical skill and judgement to form his own opinion in respect of the appellant's work capacity;

(p) the Medical Assessor provided the following reasons in the PIRS Rating Form (pages 15 and 16 of MAC) to justify his Class 4 assessment under this category. Additionally, on page 13 of the MAC, the Medical Assessor referred to Dr Khan's opinion that the appellant was unfit for work. He commented that given the appellant's unreliability as a historian and objective evidence of her ability to write books, arrange for publication and promote them, and participate in podcasts, he believed she has some work capacity. The Medical Assessor further explained his opinion by noting these activities resembled work like tasks, consistent with some of the work she has done previously, regardless of the fact that these activities were voluntary and completed at the appellant's own pace. Because of the difficulty in accurately determining her circumstances, the Medical Assessor opined she has severe impairment for work;

(q) given the above, the Medical Assessor has not erred in determining severe impairment (Class 4) under this category. Such an assessment accounts for the fact that the appellant cannot sustain fulltime employment but is likely able to work less than 20 hours in a reduced-pace environment. Further, noting the appellant's ongoing symptoms and presentation, the Medical Assessor noted her attendance may be erratic;

(r) the Medical Assessor has adequately justified his opinion in respect of the appellant having some residual work capacity. Overall, the Medical Assessor did not commit a demonstrable error in his assessment under this category. The fact that his opinion differed from that of the other medical practitioners does not in itself, amount to a demonstrable error;

(s) Ground four - Failure to diagnose Alcohol Use Disorder - The Medical Assessor was at liberty to determine the psychiatric diagnoses of the appellant's injury based on how the appellant presented on the day of examination, what she reported during the assessment, as well as the rest of the documentary evidence submitted by the parties to the dispute;

(t) the Medical Assessor took the following history in respect of the appellant's alcohol intake on page four of the MAC. Additionally, on pages 10 and 12 of the MAC, the Medical Assessor acknowledges both Dr Hong and Dr Khan's diagnosis of Alcohol Use Disorder in their assessments. Accordingly, the Medical Assessor had regard to the existence of such a diagnosis. The Medical Assessor is under no obligation to follow the medical opinion of others: John Fairfax Publication Pty Ltd v Ankica Gadzuric NSWWC MA 197 (16 June 2009);

(u) the appellant did not report to the Medical Assessor any substantial impact of her alcohol intake on her activities of daily living. In fact, the appellant reported that her alcohol intake had been under control. Although the appellant presented as an unreliable historian, the Medical Assessor utilised his clinical skills and judgement to determine whether there was a current existence of such a diagnosis;

(v) overall, the Medical Assessor has not made a demonstrable error by failing to diagnose the appellant with Alcohol Use Disorder. Additionally, and/or in the alternative, the alleged omission has no material impact on the final assessment of permanent impairment considering the Medical Assessor's examination and report addressed the extent of the worker's current alcohol consumption and in fact addressed the worker's alcohol use in relation to her 'selfcare and personal hygiene';

(w) Ground five - Deductions under s 323 of the 1998 Act - The Medical Assessor has clearly justified his decision to afford a deduction under s 323 based on the documentary evidence available to him, as well as what the appellant had reported on the day of examination;

(x) on pages three and four of the MAC, the Medical Assessor noted the appellant had denied any previous injuries or conditions. However, this was contrasted by the numerous history notes provided by Dr Subbamma;

(y) despite the above history, the Medical Assessor noted a report of Dr Subbamma dated 2 May 2013 in which Dr Subbamma recorded no history of pre-existing conditions. Subsequently, the Medical Assessor put this history to the appellant, and she suggested that 'perhaps she has had postnatal depression'. The Medical Assessor pointed out that the appellant's first daughter was born in 2006, and she said that she 'couldn't remember' anything about being depressed or having medication;

(z) noting the above, the Medical Assessor considered the appellant has a significant history of anxiety and depression. He further explained by noting that the use of three antidepressant medications suggests that it had been challenging to control. It appears that she was continuously on medication for at least five years;

(aa) on page seven of the MAC, the Medical Assessor acknowledged the inconsistencies in the appellant's history and presentation, namely that she denied any pre-existing mental health problems, which was directly contradicted by the documentary evidence. On page 13 of the MAC, the Medical Assessor opined the appellant had a pre-existing depression and anxiety disorder which were chronic relapsing conditions. With the workplace stress, she had relapsed. The Medical Assessor concluded that had the earlier condition not existed, the appellant's symptoms and impairment would be less severe now;

(bb) the respondent refers to Holmes v Secretary, Department of Education [2024] NSWPICMP 17 (11 January 2024) in which the Appeal Panel upheld the Medical Assessor's one-third deduction under s 323. In that matter, the worker was 'gainfully employed with the Department of Education for 18 years prior to the alleged injury' [at 105]. However, the evidence supported that her 'pre-existing conditions contributed significantly to her current condition and impairment' [at 107]. The Medical Appeal Panel (MAP) noted that the MAC contained a detailed review of the reports of treating doctors and psychologists. The MAP agreed with the Medical Assessor that even where the pre-existing condition was asymptomatic, there was a detrimental impact from the pre-existing condition which resulted in greater symptoms and impairment in subsequent psychological disorders [at 126]. The respondent relies on this decision and notes that the Medical Assessor has extensively reviewed the documentary evidence and has not erred in including that those conditions resulted in a greater impairment from the work-related injury;

(cc) as such, the Medical Assessor has appropriately justified his decision to provide a deduction for pre-existing impairment. The clinical notes of the appellant's general practitioner highlight the existence of depression and anxiety for which she was prescribed three different types of antidepressant medication. This impairment existed and was treated with medication well prior to the subject injury. The Medical Assessor has sufficiently explained his reasons for affording the deduction; and

(dd) the MAC ought to be confirmed.

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

1. The appellant submits that the Medical Assessor fell into error, and applied incorrect criteria, in respect of his assessment of social and recreational activities. The appellant argued that the Medical Assessor assessed the appellant as falling within Class 2 in this category, whereas her circumstances indicate that she falls within Class 3.
2. The examples under Table 11.2 for "Social and recreational activities" in the Guidelines are:

"Class 2: Mild impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved (e.g. 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. The Medical Assessor assessed the appellant as Class 2 for social and recreational activities. In the PIRS Rating Form, the Medical Assessor wrote:

She goes to yoga classes twice weekly and boxing about every three weeks. She tends to keep to herself. Last year, she visited Canberra, including the National Gallery, on a family holiday and went to the Royal Easter show. She no longer goes to restaurants or cafés. She doesn't visit friends and doesn't allow visitors to her home. She visits her brother with her husband."

1. Under "Present symptoms" the Medical Assessor wrote:

"She spends most of her time in her bedroom, and if she maintains isolation, her mood and anxiety are reasonably good. She said, "I isolate, so I have been pretty good. I don't have anything to do with the outside world."

1. Under "Social Activities/ADL" the Medical Assessor wrote:

"She initially denied using social media, but when confronted with her Facebook profile, she said, "I tried to maintain normality but stopped using social media a few months ago."

Before becoming unwell, Ms Broomhall "had a lot of friends" and enjoyed going to work-related functions, out to dinner, and concerts. She also attended events like the Royal Easter Show with her family. She exercised regularly and went on frequent family holidays. Asked about any trips away from the local area, she recalled visiting South Australia to see the pandas at the zoo, a journey taken while she was still working.

I asked which of these activities she still does. She said, "Nothing." She denied going to restaurants or cafés. She said that she had no friends whom she continued to see. She said, "My family continues to encourage me. It is a condition that if I go anywhere, I always have an escape plan. I don't talk to anyone." She said, "No one is allowed at my house."

I reminded her that she had told Dr Hong that she attended yoga with her daughter and boxing classes with her husband. She said she had participated in the same yoga class for 15 years and still attends twice weekly. She alleged that she sat separately from the class and that her teacher understood her situation. She attends boxing class less frequently, perhaps every three weeks. While she used to go alone, she now only goes with her husband.

She said she only left home for yoga, boxing and weekly shopping with her husband. She sees her general practitioner and psychologist by video. She said she always has a support person, her husband or a daughter, with her. I reminded her that she had told Dr Hong that she had travelled to Canberra in 2023 and had attended the Royal Easter Show in Sydney. She said the family had visited Canberra on her husband's birthday weekend and visited the National Gallery because her daughter was interested in art. They went to the Royal Easter show in 2023, but she had a panic attack and said she would not go again."

1. The Medical Assessor under "Consistency of Presentation" noted:

"There are significant inconsistencies in Ms Broomhall's presentation. She denied any pre-existing mental health problems and failed to mention activities such as yoga, boxing classes, her book writing, her Internet presence and other activities until specifically challenged with the records. She then described the activities as insignificant, said she couldn't remember or indicated they had stopped. This narrative is not credible. Given the difficulty in getting a reliable history, I have relied on documentary evidence where it is available and accepted the history provided by Ms Broomhall, where there is nothing to challenge it directly. This is a conservative approach aimed at giving Ms Broomhall the benefit of the doubt, where possible".

1. The Medical Assessor in commenting Dr Khan's report of 23 August 2023 wrote:

"Dr Khan found a moderate impairment in social and recreational activities, whereas I considered the impairment mild. Dr Khan wrote:

''Ms Broomhall previously enjoyed socialising with family and friends and

attending outings. She no longer engages in any social and recreational

activities. Ms Broomhall remains socially withdrawn.'

Comment: Ms Broomhall initially gave me the same history as she did Dr Khan.

After I closely questioned her and brought the documentary evidence to her, she acknowledged attending yoga twice weekly and two boxing classes every few weeks. Last year, she had a family holiday in Canberra, where she visited the National Gallery and the Royal Easter Show."

1. The appellant in her statement dated 23 January 2023, stated that she had "reduced social skills" and perceived "everyone as a threat".
2. Dr Michael Hong, consultant psychiatrist, in a report dated 20 July 2023 noted that the appellant said she had a lot of friends in Fire & Rescue but once she was "kicked out" she had no contact with them. She said that she has contact with a couple of friends occasionally now. Dr Hong wrote:

"I asked about trips away or attending events in the last two years. She said a couple of weeks ago they went to Canberra for the weekend as a family and also went to the Easter Show, but she felt anxious due to the crowds. Aside from this, she does not recall other events or trips away.

... She does a bit of yoga with her daughter and about twice a week goes to a boxing class with her husband".

1. Dr Hong, in a report dated 14 February 2024, noted:

"Whilst initially she said she never leaves home without her family, she also noted later that she does the school pick-up and drop-off five days a week, which is on her own". 2. In a report dated 23 August 2023, Dr Abdal Khan, consultant psychiatrist, wrote:

"Ms Broomhall had not returned to previously enjoyed social and recreational activities, which included spending time with family and friends and attending outings. She struggled with anxiety and avoidance of crowds when leaving her home and she preferred to remain isolated at home".

1. In a report dated 23 August 2023, Dr Khan assessed a Class 3 for social and recreational activities providing the following reasons:

"Ms Broomhall previously enjoyed socialising with family and friends and attending outings. She no longer engages in any social and recreational activities. Ms Broomhall remains socially withdrawn."

1. The appellant submits that the Medical Assessor misdirected himself in having regard to evidence which is not relevant to events of a social nature when providing an assessment in the category of social and recreational Activities. In particular, the appellant submitted that her attendance in yoga classes and boxing was not activity of a social nature. The appellant argued that the evidence confirms that the attendance at yoga does not involve social interaction and attendance at boxing classes is dependent upon the company of her husband as a support person.
2. In Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781, Sterna JA considered the proper construction of "social and recreational" scale and said:

"As to context, it is clear that the aim of table 11.2 is to provide a tool for trained psychiatrists to assess a worker's impairment as regards social and recreational activities. Whether particular activities should be assessed as involving no, mild, moderate, or more severe impairment is a matter of judgment and degree for such a psychiatrist, having regard both to their training and to the examples in the Guidelines. It is unlikely in those circumstances that the Guidelines were intended to be proscriptive as to whether activities within or outside of a worker's home could be taken into account in making such assessments. Further, there are separate PIRS in the Guidelines for assessing impairment in relation to travel and social functioning. This suggests that the intention in table 11.2 is not to provide a tool for assessing a worker's ability to travel outside the home, nor for assessing their ability to sustain friendships. Rather, the intention in table 11.2 is to provide a tool for assessing the worker's ability to engage in activities that are properly characterised as social or recreational."(emphasis added).

1. The Appeal Panel considers that the Medical Assessor has not erred in his characterisation of the yoga and boxing activities undertaken by the appellant as fitting within "social and recreational activities". The evidence considered by the Medical Assessor is that the appellant would attend the yoga classes twice a week and she sat separately from the class and her teacher understood her situation. The Medical Assessor also considered the evidence that the appellant attends boxing class perhaps every three weeks with her husband. The attendance by the appellant at these yoga and boxing classes shows an established, frequent and regular pattern of attendance although she remains withdrawn in her yoga classes. Further, the Appeal Panel does not consider that the appellant would be totally isolated in her boxing and yoga classes as the nature of such an activity, particularly the former, involves some degree of interaction.
2. The appellant submits that the visit to Canberra and the National Gallery is also not evidence of engagement in social activities but evidence of a rare family outing and there is no indication of any social interaction by the appellant, or engagement with anyone other than family members upon whom she is dependent for support.
3. The Appeal Panel considers that the fact the outing to Canberra and the National Gallery was a family outing does not exclude such an outing being characterised as a social and recreational activity. Many social and recreational activities are done with family members, who may or may not at the time be a specific support person.
4. Further, the appellant argues that the Medical Assessor's reliance on the appellant's attendance at the Royal Easter Show as evidence of mild impairment in her capacity to participate in social and recreational activities ignores the evidence he noted of significant decompensation and severe impairment caused by that event. The Appeal Panel accepts that the appellant had a panic attack when she went to the Royal Easter show in 2023, and said she would not go again. However, this was one event and does not in and of itself demonstrate error when her social and recreational activities she undertakes on a regular basis are considered in toto.
5. The appellant submits that the evidence confirms that the appellant is not capable of participation in social events, even with the support of her family. The appellant argues that the evidence noted by the Medical Assessor that the appellant, "no longer goes to restaurants and cafes", and that she, "doesn't visit friends and doesn't allow visitors to her home," is plainly indicative of moderate impairment.
6. The Appeal Panel accepts that the appellant is more socially isolated and no longer goes to cafes and restaurants. However, she engages in regular recreational activities. The presence of her husband at boxing classes, does not necessarily indicate that he is there as a support person. Although the appellant told Dr Hong in 2023 that she attended yoga classes with her daughter, she did not tell the Medical Assessor that she will only attended yoga classes with her daughter.
7. The appellant submits that the fact that the appellant visits her brother with her husband is not evidence of engagement in social and recreational activities, but a matter relevant to assessment in the PIRS category of Social Functioning.
8. In Ballas v Department of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 ("Ballas") Bell P (as the Chief Justice then was) and Payne JA held that

"the characterisation of conduct as going to "social and recreational activities" on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion": at [93]. Their Honours held, at [94]:

"Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, that is, whether it goes to "self care and personal hygiene", "social and recreational activities", "travel", "social functioning (relationships)", "concentration, persistence and pace" or "employability". This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker's entitlement to compensation."

1. The Medical Assessor in the PIRS Rating Form and his assessment of Class 2 for social and recreational activities included the reason "she visits her brother with her husband." The Appeal Panel noted that there was no additional description of these visits and accepts that such activity could be regarded and correctly characterised as conduct best assessed under "social functioning". However, the removal of this activity from the reasons does not, in the view of the Appeal Panel, change the history and other descriptors in this scale which are overall consistent with a Class 2 rating for social and recreational activities. Therefore, any error made is not a material error.
2. The Appeal Panel is satisfied that the descriptors provided in Table 11.8 by the Medical Assessor are Class 2 descriptors. Therefore, the Appeal Panel is satisfied that the reasoning process for assessing the appellant as Class 2 in this category was able to be made out. The Appeal Panel agrees that the appellant should be rated as Class 2 for social and recreational activities.
3. The appellant submits that the Medical Assessor erroneously assessed the appellant as meeting the criteria for Class 2, which applies to a person who is able to attend social events "without requiring a support person". As noted above, the Medical Assessor made no reference to the appellant only being able to attend yoga classes with her daughter accompanying her as a support person. The Appeal Panel accepts that the Medical Assessor noted that the appellant later said that she always has a support person, her husband or a daughter, with her. However, Dr Hong, in his report of 24 February 2024, noted that the appellant did the school drop off and pick up five days a week. The Appeal Panel notes that this would involve leaving home by herself to do the pick up and returning home by herself after the drop off. In addition, the Medical Assessor found significant inconsistencies in the appellant's presentation. The Appeal Panel on balance does not accept that the evidence establishes that the appellant requires a support person to attend her regular yoga classes.
4. On review of the evidence, the Appeal Panel finds no error in the rating of a mild impairment. The Medical Assessor is entitled to form his own clinical judgment on the day of assessment and having had due regard to the other medical opinions before him. The assessment of Class 2 is in accordance with the criteria in the Guidelines. The Medical Assessor has assessed in accordance with the correct criteria, provided reasons for why he did so, including the significant inconsistencies in the appellant's presentation. In particular, the appellant denied any pre-existing mental health problems and failed to mention activities such as yoga, boxing classes, her book writing, her Internet presence and other activities until specifically challenged with the records. The Medical Assessor notes that she then described the activities as insignificant, said she couldn't remember or indicated they had stopped. The Medical Assessor concluded that this narrative is not credible. The Appeal Panel notes that the appellant gave the Medical Assessor a history of very regular

well- established activities, that is, the yoga and boxing classes. This is not a situation where the appellant rarely goes out to such activities or even goes out to occasional activities. 5. The Appeal Panel rejects the submission that the Medical Assessor erroneously assessed the appellant as meeting the criteria for Class 2. This ground of appeal is not made out.

1. The appellant submits that the evidence supports an assessment of Class 3 for concentration, persistence and pace.
2. The examples under Table 11.5 for "Concentration, persistence and pace" in the Guidelines are:

"Class 2: Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.

Class 3: Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (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. The Medical Assessor assessed the appellant as Class 2 for concentration, persistence and pace. In the PIRS Rating Form, the Medical Assessor wrote:

She describes subjective problems with attention and memory. She said she struggled to read and doesn't watch television. However, she can write articles and books, arrange their publications, and participate in podcasts. She was imprecise with dates but otherwise gave a coherent history in my assessment, which lasted more than 100 minutes."

1. Under "Present symptoms" the Medical Assessor noted:

She has subjective problems with concentration, attention, and memory. She said she struggles to follow a recipe when preparing a meal for her family. "I couldn't go past the first two lines."

1. Under "Social Activities /ADL" the Medical Assessor wrote:

"Sitting in her room, she doesn't read but occasionally listens to music. She may look up things relating to nature on her computer....

She described subjective problems with concentration and said she did not read or watch television.

I asked her about the two books she has written since leaving work: Bullying & Harassment: Understanding the Psychological & Behavioural Tactics of the Toxic Leadership Stronghold in 2022 and The Art of Peace: Creating the Harmonic Humanity in 2023. I also brought to her attention her writing articles and participating in podcasts.

Ms Broomhall responded that writing was easy for her and that she had been a prolific writer. She wrote the books, but much of the first had been conceived before she left work. She was self-published and had made no money from the projects. She agreed that she had taken part in podcasts."

1. Under "Findings on Mental State Examination" the Medical Assessor wrote:

"I assessed Ms Broomhall via an audiovisual link for over 100 minutes....

She described her mood as flat and said she was anxious. Her affect was reactive, consistent with the interview contact and congruent with her stated mood.

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

She gave a coherent history but sometimes said she couldn't remember details. She was imprecise when asked about dates.

When asked at the end of the interview if she had anything else to add, she agreed that we had covered everything necessary".

1. When commenting on Dr Khan's report dated 23 August 2023, the Medical Assessor wrote:

"Dr Khan found a moderate impairment in concentration, persistence and pace, whereas I considered the impairment, at most, mild. Dr Khan argued:

'Ms Broomhall struggles to maintain her attention and concentration. She is

unable to focus on cognitively challenging tasks such as reading and is easily

forgetful. Ms Broomhall's memory is impaired. She needs to recheck kitchen

appliances to ensure she has turned them off as she has forgotten to do so in the past.'

Comment: Ms Broomhall is an unreliable historian. She describes subjective

problems with concentration and memory. For example, she said she can't cook because she forgets to monitor the stove, can't follow a recipe, struggles to wash up because she puts dishes in the garbage, or to shower because she fails to take off her clothes or inadvertently burns herself. This history is at odds with her ability to write and promote two books, write several articles, participate in podcasts and have an active and dynamic presence online".

1. In her statement dated 23 January 2023, the appellant stated:

"I can't concentrate., I have mental fog, I'm easily agitated and angered, I don't handle conflict well...can't handle complex tasks, forgetful..." 2. Dr Hong in his report dated 14 February 2024 under Lifestyle wrote:

"I asked Ms Broomhall about publishing the books about bullying. She said she doesn't know when this happened or how long it took her to write the book. She then told me that she didn't write the book. She told her children (now aged 15 and 17) what to write and they are the ones who wrote it, and then they had an editor and then a publisher. I asked Ms Broomhall whether she spent time online and she says she doesn't. She said she does not use social media or belong to any online groups and she doesn't post things online. When I tried to make further enquiries, she became angry and asked me what that had to do with her mental health and the bullying and harassment. I explained to her the question related to her functioning and is part of a standard IME assessment. Then she started changing her history and said that 'yes' - she 'might go online' to look at gardening and predominately looked at memes. I asked her whether she uploaded videos and she said 'I don't know anything' and 'cannot confirm or deny' whether she uploads videos. Later she told me that she goes online every day. I pointed out to her that when I asked her whether she would go online she said she doesn't, but now she was telling me that she goes online every day, and again she reacted with anger".

1. Under "File Review" Dr Hong noted that there was an update report from Dr Abdal Khan,

23 August 2023. He noted that Dr Khan advised she suffered Persistent Depressive Disorder, Generalised Anxiety Disorder and Alcohol Use Disorder with a WPI of 19%.

Dr Hong noted that the history in that report was quite different and Dr Khan stated she was involved in computing, cooking and cleaning, although struggled to motivate herself to complete these tasks. Dr Hong wrote: "He noted she struggled to maintain concentration and Dr Abdal Khan did not appear to be aware of the online activity or the books she published". 2. Dr Hong wrote: "Procare Desktop Investigation, 29 January 2024, advised that the appellant is a current director, secretary and shareholder of a company and was appointed to these roles in August 2021. Dr Hong noted that there were two books published by her, currently listed for sale and the website also had links to a YouTube video and podcast in which the claimant partook. She has an active profile on Facebook with an updated entry on 10 January 2024. She joined about 45 Facebook groups after the date of injury. Due to the prolific nature, they elected to include content not on Facebook in this report only. She has an interest in visiting Culburra Beach and visited in January 2023. She is a strong activist, expressing views about many social issues. There were further profiles on Twitter, Instagram and other websites. There have been multiple articles written and published by her on different websites after the date of injury". 3. Dr Khan, consultant psychiatrist, in a report dated 23 August 2023 assessed Class 3 for concentration, persistence and pace providing the following reasons:

"Ms Broomhall struggles to maintain her attention and concentration. She is unable to focus on cognitively challenging tasks such as reading and is easily forgetful. Ms Broomhall's memory is impaired. She needs to recheck kitchen appliances to ensure she has turned them off as she has forgotten to do so in the past."

1. In a report dated 23 August 2023, Dr Khan noted that the appellant's cognition was impaired, particularly with regard to her attention, concentration and memory. He wrote: "She was unable to focus on cognitively challenging tasks and she was easily distracted".
2. Under Mental State Examination, Dr Khan wrote: "Ms Broomhall's cognition had evidence of impairment in attention, concentration and memory".
3. The appellant submits that there is no evidence of the appellant's undertaking, or being able to undertake, a retraining course or a standard course, or evidence of the appellant's focussing on intellectually demanding tasks for periods of up to 30 minutes.
4. The Appeal Panel notes that the Medical Assessor reported that the appellant, although imprecise with dates, gave a coherent history in his assessment, which lasted more than 100 minutes. The Appeal Panel infers from this report that the Medical Assessor was satisfied that the appellant was able to attend, persist, understand and comprehend and engage in the interview is such a manner to suggest a mild impairment in this scale. The Appeal Panel accept this report as clear evidence of the appellant's ability to focus on an intellectually demanding task for more than 30 minutes.
5. The Appeal Panel accepts that the Medical Assessor noted that the appellant described subjective problems with attention and memory, saying she struggled to read and doesn't watch television. The Medical Assessor then noted that she can write articles and books, arrange their publications, and participate in podcasts.
6. The appellant submits that the appellant's description of problems with attention and memory, struggling to read and not watching television, all indicating that her impairment is moderate.
7. Garling J in Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 ("Jenkins") at [64] held that the examples given in the tables in the Guidelines were neither the sole, nor the minimum, basis for assessment of a person's impairment as falling within a particular class. Rather, his Honour held, at [60]:

"Those examples attempt to explore the ways in which a psychiatric condition impacts upon the activities of daily living of an individual, and their capacity to function in the areas described."

1. The Appeal Panel notes that the descriptors are referred to by the appellant in submissions are subjective and where there is objective evidence, as in this case, of activities in this scale, such evidence should be given appropriate weight. In this case, the appellant has published two books since she ceased work with the respondent. One of those books, "Bullying and Harassment Understanding the Psychological and Behavioural Tactic of the Toxic Leadership Stronghold;" was published in about May 2023 and is in evidence. The book, including references and index, is over 300 pages.
2. The appellant submits that the Medical Assessor took no proper history of the time taken by the appellant to write any of the material. The Appeal Panel accepts that the Medical Assessor noted that Dr Hong had recorded the following:

"I asked Ms Broomhall about publishing the books about bullying. She said she doesn't know when this happened or how long it took her to write the book. She then told me that she didn't write the book. She told her children (now aged 15 and 17) what to write and they are the ones who wrote it, and then they had an editor and then a publisher."

1. Reference to all of Dr Hong's reports reveals that he had concerns about the inconsistent history he obtained from the appellant.
2. The Medical Assessor was satisfied that the appellant had written and promoted those books, written several articles, participated in podcasts and had an active and dynamic presence online. Indeed, the appellant told the Medical Assessor that writing was easy for her and that she had been a prolific writer, and she agreed that she had taken part in podcasts.
3. The Appeal Panel is satisfied that there is evidence that the appellant can read more than newspaper articles, follow complex instructions and type long documents. Indeed, in the Procare Investigation Report dated 29 January 2024 there is a copy of a post from the appellant dated 15 May 2023 in which she states she received her print proofs for book No two and had to check for errors. The fact that the appellant states that she cannot or struggles to read a book is irrelevant when she is able to write a book which involves considerable research, typing and formatting and then publicise the book. Even if the Appeal Panel accepts the assertion the daughters, (the eldest of whom would have been 14 at the time) may have helped type the book the appellant informed the Medical Assessor, "that writing was easy for her and that she had been a prolific writer," is indicative of at most a mild impairment
4. The appellant referred to telling Dr Hong that; "she doesn't cook anymore because she is forgetful and had left the stove on". This type of activity, in our view, goes to the scale for "self care and personal hygiene". It was also inconsistent with the Medical Assessor's report that she could cook simple meals.
5. The appellant submitted that the Medical Assessor, having noted that the appellant, "drinks to excess in a manner likely to harm her physical and mental health," failed to consider the impact of the appellant's Alcohol Use Disorder on her capacity to concentrate, maintain attention, draw upon memory and persist with execution of tasks when assessing impairment in the category of Concentration, Persistence and Pace. The appellant argues that the Medical Assessor's failure to diagnose the appellant's Alcohol Use Disorder, and to consider its impact, is a material omission which renders his assessment of impairment unreliable in the absence of a comprehensive understanding of the extent of the appellant's psychiatric pathology.
6. The Appeal Panel is satisfied that the evidence does not show that she meets the diagnostic criteria for Alcohol Use Disorder (see below under Ground 4).
7. Further, the Medical Assessor assessed impairment in this scale arising from the injury regardless of the diagnosis. It follows that whatever the diagnosis is, or the diagnoses are, the level of impairment in this scale would be the same. The objective evidence does not show that if a diagnosis Alcohol Use Disorder is made, this results in a higher level of impairment.
8. The Appeal Panel finds no error in the rating of a mild impairment. The Medical Assessor is entitled to form his own clinical judgment on the day of assessment and having had due regard to the other medical opinions before him. The assessment of Class 2 is clearly in accordance with the criteria in the Guidelines. The Medical Assessor has assessed in accordance with the correct criteria, provided reasons for why he did so, including the significant inconsistencies in the appellant's presentation.
9. The Appeal Panel rejects the submission that the Medical Assessor erroneously assessed the appellant as meeting the criteria for Class 2. This ground of appeal is not made out.

1. The appellant submits that the evidence supports an assessment of Class 5 for employability.
2. The examples under Table 11.6 for "Employability" in the Guidelines are:

"Class 4: Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.

1. The Medical Assessor assessed the appellant as Class 3 for employability. In the PIRS Rating Form, the Medical Assessor wrote:

Ms Broomhall has been certified unfit to work by her general practitioner. She describes moderately severe symptoms of her mood and anxiety disorders. However, she is doing work-like activities such as writing and podcasting. These activities are consistent with her previous employment. Given the difficulty in getting an accurate history and that it is untested whether she would cope in a structured work environment, I have conservatively determined that she has a severe impairment. She could do a less demanding job for fewer than 20 hours a fortnight, and her attendance might be erratic."

1. Under "Social activities/ADL" the Medical Assessor wrote:

"I asked her about the two books she has written since leaving work: Bullying & Harassment: Understanding the Psychological & Behavioural Tactics of the Toxic Leadership Stronghold in 2022 and The Art of Peace: Creating the Harmonic Humanity in 2023. I also brought to her attention her writing articles and participating in podcasts.

Ms Broomhall responded that writing was easy for her and that she had been a prolific writer. She wrote the books, but much of the first had been conceived before she left work. She was self-published and had made no money from the projects.

1. In his comments on Dr Khan's report dated 23 August 2023, the Medical Assessor wrote:

"Dr Khan found Ms Broomhall unfit for work, and she says that her general

practitioner has continued to certify her as unfit.

Comment: Given her unreliability as a historian and objective evidence of her ability to write books, arrange for publication and promote them, and participate in podcasts, I believe she has some work capacity. These things are work-like tasks, consistent with some of the work she has done previously. Because of the difficulty in accurately determining her circumstances, I have taken a conservative line and determined a severe impairment for work. It is untested whether she would cope in a more structured work environment. My reasons are given below".

1. In her statement dated 23 January 2023 the appellant wrote:

"7. I have been asked to declare my current employment status and that is unemployed. Whilst I am aware Linkedin shows me as the CEO, and a Behavioural Scientist with Bright Research and Insights, and declares full time since August 2001 to present.

8. I am currently unemployed. I acknowledge that Linkedin shows me as the CEO, and a Behavioural Scientist with Bright Research and Insights, and declares full time since August 2001 to present. I acknowledge that the business has its own web pages and offers services. The business is nominal. I registered a business in hopes of starting afresh but the trauma from my employment with FRNSW overrode that....

10. There has been no income since commencing the registration of the business and I have not worked in the business at any time since its registration."

1. Dr Hong, in his report dated 20 July 2023, noted that the appellant was fit to work full-time with the department if interpersonal differences with management could be improved to a satisfactory level or she was fit to work for another agency. He wrote: "Given her described general distrust of management, it would be better for her to work in a small office without hierarchy, as a contractor without reporting to a manager, or in a self-employed capacity."
2. He concluded that there was a reasonable prospect of the appellant returning to work but not with the respondent.
3. Dr Hong, in his report dated 14 February 2024, wrote: "Accepting that her alcohol intake remains elevated, then she is incapacitated for work." Dr Hong considered that overall it was likely that the appellant had no work capacity. He saw her Alcohol Use Disorder and lack of treatment for it, as being the main barrier in attempting to return to any work.
4. In a report dated 16 November 2023, Dr Khan expressed the opinion that the appellant was totally incapacitated for work due to her psychiatric condition.
5. Dr Khan, in his report dated 23 August 2023 assessed a Class 5 for Employability providing the following reasons: "Ms Broomhall is unable to work due to the pervasiveness of her mental health and cognitive difficulties."
6. The last certificate of capacity dated 2 December 2023 from Dr Subbamma certified the appellant as having no current work capacity.
7. The appellant submits that the Medical Assessor's assessment in this scale is demonstrably erroneous and at odds with the preponderance of medical opinion, as provided by Dr Khan, Dr Hong, and Dr Subbamma. Further, the appellant argues that the Medical Assessor did not acknowledge Dr Hong's opinion regarding the appellant's lack of capacity for work, or the impact of her alcohol intake in rendering her incapacitated for work.
8. The Appeal Panel notes that Medical Assessor is not required to follow or agree with the "preponderance of medical opinion". The role of the Medical Assessor is to utilise his clinical skill and judgement to form his own opinion in respect of the appellant's work capacity.
9. The Appeal Panel does not accept that the Medical Assessor did not acknowledge

Dr Hong's opinion regarding the appellant's lack of capacity for work, or the impact of her alcohol intake in rendering her incapacitated for work. On pages 10 and 12 of the MAC, the Medical Assessor acknowledged both Dr Hong and Dr Khan's diagnosis of Alcohol Use Disorder in their assessments. The Appeal Panel notes that neither Dr Khan nor Dr Hong addressed the criteria that should be met in making a diagnosis of Alcohol Use Disorder under DSM 5.

The Medical Assessor did not make a diagnosis of Alcohol Use Disorder and for the reasons given below the Appeal Panel sees no error in the Medical Assessor not making that diagnosis. Alcohol use and drinking to excess was addressed by the Medical Assessor in the scale of self care and personal hygiene. The Appeal Panel noted that Dr Hong in his report of 14 February 2024 expressed the view that: "It is difficult to be certain of her injury or incapacity or the cause of her incapacity, given the many inconsistencies and her changing history." 10. The appellant submits that by the Medical Assessor failed to consider, when assessing the appellant's work capacity (i.e. to secure and retain employment), the extent and impact of the appellant's alcohol intake, a matter he described as "to excess" and "likely to harm her physical and mental health" and this is a material omission which renders his assessment unreliable. 11. The Appeal Panel rejects this submission. The appellant did not report to the Medical Assessor any substantial impact of her alcohol intake on her activities of daily living and said that her alcohol intake had been under control. The Appeal Panel is satisfied that the Medical Assessor utilised his clinical skills and judgement to determine whether a diagnosis of Alcohol Use Disorder should be made. 12. The appellant submits that the Medical Assessor also based his assessment of the appellant's work capacity on the unfounded assumption that "writing and podcasting" are activities which indicate that the appellant is fit to engage in actual employment for remuneration. The appellant argued that there is no evidence that establishes how long, in a particular session, the appellant is able to participate in writing or a podcast and such activities involving writing or a podcast were at her discretion, at times of her choosing, for as long as she chose to engage in such activities, and for as long as she maintained the concentration necessary to thus engage. 13. The Appeal Panel is satisfied that there is evidence that the appellant published her first book in 2022 and the second book in 2023. The appellant was not just capable of being an author but was also capable of doing podcasts and publicising her books. The Appeal Panel does not accept the appellant's submission that none of the features of the activity of writing or participating in a podcast are compatible with employment as there are many jobs where workers can work from home on a contract basis or part-time. Moreover, engagement in podcasting is now a not infrequent form of self employment either for 'number of views' or to sell or endorse products. It is apparent that appellant has been involved in these activities. 14. The Appeal Panel agrees that the Medical Assessor stated that, "it is untested whether she would cope in a structured work environment", however, it does not follow that the Medical Assessor could not reliably assess the appellant as having capacity "to do a less demanding job for fewer than 20 hours a fortnight". As noted above, there are positions where workers can work from home and such employment can allow for erratic attendance. 15. The Appeal Panel does not accept that the Medical Assessor's assessment that the appellant had capacity for employment is misconceived, inconsistent with the medical consensus, based upon an erroneous conflation of voluntary activities with paid employment, and made without acknowledgement of the severity of the appellant's condition and that her Alcohol Use Disorder excludes the prospect of the appellant being able to retain any position. 16. The Medical Assessor provided the adequate reasons in the PIRS Rating Form. Additionally, on page 13 of the MAC, the Medical Assessor referred to Dr Khan's opinion that the appellant was unfit for work but commented that given the appellant's unreliability as a historian and objective evidence of her ability to write books, arrange for publication and promote them, and participate in podcasts, he believed she has some work capacity. The Medical Assessor further explained his opinion by noting these activities resembled work like tasks, consistent with some of the work she has done previously, regardless of the fact that these activities were voluntary and completed at the appellant's own pace. Because of the difficulty in accurately determining her circumstances, the Medical Assessor opined she has severe impairment for work. 17. The Appeal Panel is satisfied that the Medical Assessor did not err in determining severe impairment (Class 4) under this category. 18. Paragraph 50 of the appellant's submissions is as follows:

"The Medical Assessor has failed to appreciate that engagement by the appellant in activities involving writing or a podcast were at her discretion, at times of her choosing, for as long as she chose to engage in such activities, and for as long as she maintained the concentration necessary to thus engage. She could on a given day, or in a given week, or for as long as she chose, elect not to engage in any such activities. She could, having commenced such an exercise, stop as she saw fit, or proceed at a pace determined by her and as affected by her psychological condition, be it the effects of depression, anxiety or alcohol".

1. The Appeal Panel considers that this description of the appellant's abilities in paragraph 50 of her submissions is actually consistent with the Class 4 descriptors. The appellant is clearly able to do a number of employment like-tasks as she is able to write books, do pod casts and promote her publications. These are all tasks for which she could be remunerated. The fact that she has not received any payment for such tasks does not preclude a Class 4 rating as the ability to work includes voluntary work.
2. The Appeal Panel considers that there is evidence to support an assessment of Class 4 for employability. The Medical Assessor provided adequate explanation for his view the appellant cannot work more than one or two days at a time, less than 20 hours per fortnight with reduced pace and erratic attendance. This ground of appeal is not made out.

Ground 4 - Failure to Diagnose Alcohol Use Disorder

1. The appellant submits that the Medical Assessor failed to diagnose the appellant's Alcohol Use Disorder and to consider impairment resulting from that condition.
2. The Medical Assessor under "General Health" noted:

"When she started work with Fire & Rescue, she was teetotal. Alcohol use was part of the workplace culture, and she said, "Fire & Rescue taught me how to drink." Currently, she is drinking up to 6 daily (up to 9 standard drinks) between three and five days a week. She believes her alcohol intake is under control, that she can stop at any time, and denied that it had caused any physical, social or legal problems."

1. In Table 11.8 in the reasons given for the rating in Self-care and Personal Hygiene, the Medical Assessor wrote: "She drinks to excess in a manner likely to harm her physical and mental health".
2. Dr Patrick Morris, treating psychiatrist in a report dated 9 April 2024 noted that the appellant said: "she was drinking alcohol heavily but has now reduced that significantly with the help of her psychologist".
3. Dr Hong, in his report dated 20 July 2023, wrote:

"She reported that for several years (she could not tell me how many years) she would have three beers perhaps 3-4 times a week, and that in March 2023 she stopped. She said she had never told her psychologist about her alcohol intake until recently, once she stopped drinking".

1. Dr Hong, in his report dated 14 February 2024 under "Update History" wrote:

"Ms Broomhall presented for reassessment on 14 February 2024 and it is difficult to know whether her memory is affected by Alcohol Use Disorder or another psychiatric disorder, because she frequently changed her history and generally said that she 'doesn't know/doesn't remember.'

I asked her when her alcohol intake started to increase or become a problem, and she said in 2013. She said she has not stopped drinking alcohol and I noted when I assessed her in 2023, she reported she had stopped. Her response was that after she stopped, she then started drinking again, she stated because bullying and harassment. I asked her how much she would drink recently and she said she doesn't know. She said her husband buys the alcohol and she would drink it, and she drinks beer and rum. She doesn't know how many days of the week she drinks or how many drinks she would consume in a setting. I asked her what her doctor thought about her alcohol use, and she said her doctor asked her to stop but she is not aware of any alcohol-specific treatment. She is not aware of Thiamine, Naltrexone, Acamprosate and Antabuse for Alcohol use disorder and is not aware of any alcohol management services, such as Alcoholics Anonymous. I asked her whether she would attend an alcohol treatment group and she said she wouldn't because she is anxious with groups of people. I asked whether she would go to one-on-one counselling for alcohol and she said 'if it is like sitting down with Mr Wilson,' she would go. On further enquiry she said if her doctor prescribed a medication for alcohol management, she would take it".

1. Dr Hong made a diagnosis of an Adjustment disorder with anxiety and depressive symptoms and Relapse in Alcohol use disorder.
2. In a report dated 23 August 2023, Dr Khan noted:

"Prior to the subject injury, she consumed alcohol in a controlled manner. Following the subject injury, her alcohol use increased to 4 standard drinks on any occasion, 5 nights per week but she became aware of her escalating alcohol use and had since reduced to infrequent consumption. Ms Broomhall denied any other substance or behavioural addiction".

1. As noted above, neither Dr Hong and Dr Khan actually made a diagnosis of alcohol abuse disorder which identified the symptoms required to meet the definition of alcohol abuse disorder under DSM 5 or ICD 11. The Appeal Panel notes that although the appellant drinks more than the recommended amount, she does not drink every night. Contrary to lay opinion the volume of alcohol or exceeding recommended limits are not criteria for diagnosing an alcohol use disorder. There are no descriptions given by the appellant of cravings, increased salience withdrawal symptoms or an inability to cut down.
2. While the DSM 5 criteria are lengthy and will not be repeated in full here, they involve not just heavy alcohol use but loss of control of drinking, craving or clearly defined medical social or interpersonal disruption which is directly a result of the persistent and excessive use of alcohol. Often this is associated with both tolerance and symptoms of withdrawal if alcohol use is ceased.
3. On the basis of the history provided and examination by the Medical Assessor, the Appeal Panel does not consider that the Medical Assessor made a demonstrable error or applied incorrect criteria in not making a diagnosis of alcohol abuse disorder. The Medical Assessor was clearly aware of the level of the appellant's drinking and was correct to not make such a diagnosis.

1. The appellant submits that the Medical Assessor proceeded on the erroneous basis that the appellant had an "earlier condition", in the absence of any evidence of any psychological illness prior to her commencement of employment with the respondent, or prior to being subjected to protracted stressors in the course of employment.
2. The Medical Assessor (on pages three and four of the MAC) noted the appellant denied any previous injuries or conditions. However, he noted the numerous history notes provided by Dr Subbamma recorded the following entries:

(a) 2 October 2003 - depression and the use of paroxetine;

(b) 4 November 2003 - further prescription fluoxetine and paroxetine changed to sertraline;

(c) 13 January 2004 - use of sertraline;

(d) 10 February 2004 - fluvoxamine commenced;

(e) 20 April 2004 - fluvoxamine continued;

(f) 1 June 2004 - fluvoxamine continued;

(g) 12 August 2004 - fluvoxamine increased from 50mg daily to 100mg daily;

(h) 23 September 2004 - fluvoxamine continued; and

(i) 10 November 2008 - history of depression noted, and fluvoxamine ceased.

1. The Medical Assessor noted that, despite the above history, Dr Subbamma, in a report dated 2 May 2013, recorded no history of pre-existing conditions. The Medical Assessor put this history to the appellant, and she suggested that 'perhaps she has had postnatal depression'. The Medical Assessor pointed out that the appellant's first daughter was born in 2006, and she said that she 'couldn't remember' anything about being depressed or having medication.
2. The Medical Assessor considered that the appellant has a significant history of anxiety and depression. He further explained this by noting that the use of three antidepressant medications which suggests that it had been challenging to control. It appears that she was continuously on medication for at least five years.
3. On page seven of the MAC, the Medical Assessor acknowledged the inconsistencies in the appellant's history and presentation, namely that she denied any pre-existing mental health problems, which was directly contradicted by the documentary evidence. On page 13 of the MAC, the Medical Assessor opined the appellant had a pre-existing depression and anxiety disorder which were chronic relapsing conditions and with the workplace stress, she had relapsed. The Medical Assessor concluded that had the earlier condition not existed, the appellant's symptoms and impairment would be less severe now.
4. Dr Khan, in his report of August 2023, noted that the appellant denied any pre-existing past psychiatric history. He wrote:

"That said, in her clinical records, there was evidence of previous prescriptions of anti-depressant medications under the management of her general practitioner from 2008. The reason for these medication prescriptions was not clear. This treatment seemed to have stopped by 2009".

1. Dr Khan expressed the view that the appellant had, "Nil significant pre-existing psychiatric condition".
2. The Appeal Panel is satisfied that the appellant had a pre-existing condition, namely, depression and an anxiety disorder for which she had been treated by her general practitioner from 2003 to 2008. The Appeal Panel accepts that the Medical Assessor noted that the appellant "had no problems at work until 2012, when a new deputy chief was appointed" and that shortly after the restructure her mental health started to deteriorate.
3. The appellant submits that the Medical Assessor failed to refer to Dr Khan's report in making a deduction in respect of a pre-existing condition. The Medical Assessor commented on Dr Khan's report in some detail and, in particular, where there was a difference in the ratings in the PIRS categories or a difference in the history. Although the Medical Assessor did not specifically refer to Dr Khan not making a deduction under s 323 and his opinion that the appellant had "Nil significant pre-existing condition". The Appeal Panel is satisfied that he read all of Dr Khan's report and would have taken it into account when making the

s 323 deduction. 4. The appellant submits that the Medical Assessor failed to have regard to the report of treating psychiatrist, Dr Morris, dated 9 April 2024, and to Dr Morris's recording that "There is no previous psychiatric history". The Medical Assessor on page eight of the MAC noted: "Treating psychiatrist Dr Patrick Morris on 9 April 2024 diagnosed Ms Broomhall with a panic disorder with agoraphobia and major depressive disorder, noting her reluctance to take medication. Dr Morris did not mention any difficulties with memory or relating her history". 5. The Appeal Panel is satisfied that the Medical Assessor did consider Dr Morris's opinion that the appellant "suffers with Panic Disorder with Agoraphobia and Major Depressive Disorder as a result of her history of bullying and harassment working in a civilian capacity for NSW Fire and Rescue". However, it does not follow that the appellant did not have a pre-existing condition. Although Dr Morris stated that the appellant had no previous psychiatric history, he did not appear to have been provided by the solicitor with details of the clinical entries of Dr Subbamma from 2003 to 2008, clearly indicative of a prior psychiatric condition requiring treatment over many years. 6. The appellant submits that the Medical Assessor also failed to have regard to the report of treating psychologist, Darren Wilson, dated 30 March 2022, when considering the issue of any pre-existing condition. Mr Wilson noted that there have been "no other factors of pre-existing or influences outside of Ms Broomhall's ongoing workplace exacerbation of her life-threatening treatment from FRNSW over 4 years which culminated in her initial injury being identified on 2 July 2019". Again, Mr Wilson did not appear to have been provided with details of the clinical entries of Dr Subbamma from 2003 to 2008. This statement also does not help ascertain whether there was a prior disorder and whether this contributes to the current impairment but rather addresses causation. 7. The appellant submits that the Medical Assessor also neglected to acknowledge the history taken by Dr Hong, in his report dated 20 July 2023: "She had not suffered psychiatric problems, or needed psychological/psychiatric treatment, before joining Fire & Rescue. She said normally she was a teetotaller." The Appeal Panel noted that in his report dated

14 February 2024, Dr Hong wrote: "I confirmed she had not suffered psychiatric problems, or needed psychological/ psychiatric treatment, before joining Fire & Rescue". However, the Appeal Panel noted that Dr Hong listed in his two reports the documents that he was provided with, and these did not include the clinical entries of Dr Subbamma from 2003 to 2008. 8. In the absence of the clinical entries of Dr Subbamma from 2003 to 2008, the Appeal Panel considers that little weight can be placed on the opinions of Dr Hong, Dr Morris and Mr Wilson in terms of whether there had been a pre-existing psychiatric condition. Dr Khan acknowledged that there was evidence of previous prescriptions of anti-depressant medications under the management of her general practitioner from 2008. He noted that the reason for these medication prescriptions was not clear, and the treatment seemed to have stopped by 2009. Dr Khan's past psychiatric history was incorrect in so far as the actual period of treatment was from 2003 to 2008 and not from 2008. This mistake would have affected his assessment of whether there had been significant pre-existing psychiatric condition. 9. The Appeal Panel rejects the submission that the Medical Assessor has proceeded to make a deduction in the absence of any evidence of a pre-existing condition. 10. In relation to the submission that the Medical Assessor must explain the basis upon which he or she considers the pre-existing condition to be contributing to the aggregate degree of impairment, the Appeal Panel is satisfied that the Medical Assessor adequately explained basis upon which he or she considers the pre-existing condition to be contributing to the aggregate degree of impairment. The Appeal Panel agrees with the Medical Assessor that even where the preexisting condition was asymptomatic, there was a detrimental impact from the pre-existing condition which resulted in greater symptoms and impairment in subsequent psychological disorders. The Medical Assessor extensively reviewed the documentary evidence and has not erred in including that those conditions resulted in a greater impairment from the work-related injury 11. The appellant submits that a further error is that the Medical Assessor, in proceeding to make a deduction pursuant to s 323 of the 1998 Act, failed to attend to the exercise required by Cl 11.10 of the Guidelines. The appellant argues that evidence does not indicate that prior to the appellant's employment with the respondent and the stressors to which she was subjected from 2013, she would have been assessed as having impairment in any of the six categories of the PIRS. 12. The Appeal Panel is satisfied that the appellant was asymptomatic at the time of the subject injury. The Appeal Panel accepts that the Medical Assessor did not make the s 323 deduction using the approach set out in cl 11.10 of the Guidelines. However, Marks v Secretary, Department of Communities and Justice (No.2) [2021] NSWSC 615 (Marks) requires that s 323(1) of 1998 Act must be constructed by requiring a deduction from the assessment of degree of permanent impairment that is due to a previous injury or pre-existing condition, albeit the worker is symptomatic at the time of injury. Simpson JA held that Guideline 11.10 of the Guidelines does not allow for deductions to be made for the assessment of impairment for asymptomatic conditions and therefore, Guideline 11.10 of the Workers Compensation Guidelines is inconsistent with s 323(1) of the 1998 Act. Her Honour concluded that Guideline 11.10 was invalid when making a deduction in a case where the worker was asymptomatic at the time of injury. 13. It follows that the Medical Assessor did not fail to attend to the exercise required by

Cl 11.10 of the Guidelines. 14. Section 323(1) requires the Medical Assessor to establish what proportion the pre-existing condition makes to a worker's permanent impairment, as assessed at the time the assessment is undertaken. The Medical Assessor found that the appellant had a recurrence of a previous disorder for which she was treated for about five years. The Appeal Panel considers that even if the appellant was asymptomatic and in remission a deduction of one tenth for the pre-existing condition was reasonable. 15. The appellant submits that the Medical Assessor by making a deduction of one tenth under

s 323 which was unsupported by the evidence and this constituted a demonstrable error and/or the application of incorrect criteria relating to the assessment of the deductible proportion. The Appeal Panel rejects this submission for the reasons set out above. This ground of appeal has not been made out. 16. For these reasons, the Appeal Panel has determined that the MAC issued on