1. On 18 March 2025 [BUW], the appellant lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ankur Gupta, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 February 2025.
2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
   • the assessment was made on the basis of incorrect criteria, and
   • the MAC contains a demonstrable error.
3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed

1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). "WPI" is reference to whole person impairment. "Baseline WPI" is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.

1. On 12 December 2024 this matter was referred for an assessment of WPI caused by a psychiatric/psychological disorder that occurred on 20 May 2022. [BUW] was injured by the behaviour of her manager who was harassing her over a period between Christmas 2019 and 20 May 2022 when [BUW] ceased work.
2. The Medical Assessor assessed 11% WPI.

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because no error was established by the appellant.

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

1. Medical Assessor Douglas Andrews of the Appeal Panel conducted an examination of the worker on 20 August 2025 and reported to the Appeal Panel.

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

1. Both parties made written submissions which have been considered by the Appeal Panel.

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

"[BUW] says that her issues at work started around Christmas 2019. Her first-line manager was the perpetrator. She says that the manager had asked her to drop him at a bar and then made her drive to his house. He asked if she would sleep with him despite knowing that she was in a same-sex relationship. She says that she refused, but he then asked her for a kiss. She felt unsafe, but she managed to drop him off safely. She says that he apologised in January 20 and nothing happened for a while, but then his behaviour restarted. She says it was 'on and off' until she stopped working on 20 May 2022. She says that this person once licked her face and her partner's face in a restaurant. He tried to kiss her on several occasions as well. He would send her lewd photos, stating that that was what he expected. She says that she reported him to the director before coming off work 'but the latter just laughed at her,' stating that the manager wouldn't do that since he was a churchgoer."

1. The Medical Assessor noted an extensive pre-injury history after she had been sexually assaulted at the age of 14. Following that she "Went off the rails", her school grades deteriorated, she got into "trouble" at school, she started cutting herself, she was admitted to a psychiatric hospital at least twice under the Mental Health Act. She was also using drugs and diagnosed with a borderline personality and bipolar disorder.
2. After the workplace incident she was using cocaine and alcohol but ceased in 2024.
3. She had tried to kill herself in 2022.
4. There was an incident also some time in 2022 when an attempt to sexually assault her was made in a pub but she managed to get away.
5. In dealing was her social activities and activities of daily living, the Medical Assessor noted that [BUW] was in a relationship at the time of the injury but that it ended in 2022 owing to her mental state. She was living with her mother at present and where her older brother also lived.
6. Whilst she got along well with her mother she has always had long-term issues with her brother which has have deteriorated since the injury.
7. The Medical Assessor said:[2]

"She still has friends but does not see them often. They visit her on occasion, but she cancels outings. She had stopped eating after the injury and lost twenty kilos. Her weight has been stable for almost twelve months now.

She does not cook often. She says she likes to have a clean room, but it is a struggle. She tries to shower daily. She can omit showering sometimes. She cleans her teeth at least once a day. At the time of the assessment, she was sitting in her friend's house, cat sitting, in Cronulla, one hour and twenty minutes away. She travels there once or twice a year. She is on her own as her friend is away. She says that she goes everywhere in her car. She likes to drive to have control. She says that she enjoys animals and likes to spend time with her mother's dog and cat. She usually gets groceries delivered. She has been to the shops but tends to avoid it. She travelled to Bali with her mother in 2023, which she enjoyed. She says she would like to work but would like to have a female boss and a place that is not a small family business."

1. The Medical Assessor diagnosed [BUW] as having post-traumatic stress disorder and major depressive disorder.
2. At [10] the Medical Assessor considered the evidence before him. He noted the statements dated 16 June 2022 and 7 November 2024 from [BUW].
3. He noted the report of Dr David Kumagaya, psychiatrist and that a full history had been taken by Dr Kumagaya of her deliberate self-harm and suicide attempts, previous medications and her several admissions to the public mental health units for drug and alcohol detoxification.
4. Dr Kumagaya noted that [BUW] was described to have a stable mental state at the time of her workplace injury but that since she had had three hospital presentations including an admission for drug and alcohol detoxification, an admission to a private psychiatric hospital and an admission to a public mental health unit. She had been attending a DBT program at St John of God Hospital for 10 months.
5. The Medical Assessor said of Dr Kumagaya:[3]

"He advised that the diagnoses related to the workplace injury were major depressive disorder with anxious distress, aggravation of post-traumatic stress disorder, alcohol use disorder in remission and cocaine use disorder in remission. He assessed

[BUW] to have 22% impairment of the whole person."

1. He noted reports from the treating psychiatrist Dr Sivaruby Thavakulasingham and the treating psychologist Ms Kylie Pennings reports and documentation.
2. The Medical Assessor reviewed the patient health summary from My Health Penrith and the clinical records from Astley Medical Centre.
3. In considering the past history of [BUW] at [11] the Medical Assessor noted there was no evidence that she was suffering from any psychiatric condition or was functionally impaired in the months leading up to the work-related injury.
4. He said that she had an underlying vulnerability to post-traumatic stress disorder from exposure to sexual trauma but did not have any pre-existing condition.
5. He certified 11% WPI.

1. [BUW] acknowledged from the outset that a mere disagreement as to the class ratings under the psychiatric impairment rating scale (PIRS) was not sufficient to found an appellable error.
2. We were referred to Ferguson v New South Wales[4] to which further reference will be made presently.
3. Before embarking on submissions as to each of the impugned five categories, [BUW] submitted that there was a more fundamental problem with the MAC, namely, "The MA's failure to adequately engage with the evidence before [him]."
4. [BUW] had made two statements and had the support from Dr Kumagaya. The Medical Assessor's comment that Dr Kumagaya had assessed a 22% impairment, it was submitted, was unsatisfactory in view of the fact that that the Medical Assessor had said that his opinion was consistent with other reports in terms of diagnosis.
5. It was submitted that it was "insufficient" for the Medical Assessor to not go any further than agree about the diagnosis.
6. [BUW] observed that the assessment by the Medical Assessor was half the amount assessed by Dr Kumagaya and that was apparent that there were significant differences of opinion as to the extent of the impairment, which the Medical Assessor had failed to address "in the slightest."
7. There were, it was argued, fundamental differences of opinion with regard to functioning that had not been duly considered by the Medical Assessor on the basis of the history given by

[BUW] in both her statement, and as noted by the Medical Assessor. Further,

Dr Kumagaya's opinion "at the very least" regarding WPI should have been duly considered. 8. Having made those general submissions [BUW] then turned to each of the impugned categories.

1. [BUW] referred to the reasons given by the Medical Assessor in the table 11.8 rating form and this was compared with the class descriptors in Table 11.1 for classes 1 and 2.
2. We were referred to the reasons given by the Medical Assessor for finding a class 1 rating.
3. [BUW] noted that the history taken in the body of the MAC that [BUW] had lost 20kg and that her weight had been stable for almost 12 months.
4. This was compared to [BUW]'s statement of 7 November 2024 and the assessment by Dr Kumagaya, who placed [BUW] in class 2. We were referred to Dr Kumagaya's findings in that regard. It was submitted that it was "simply glaringly improbable in the light of the histories given by [BUW] and Dr Kumagaya and indeed the history taken by the Medical Assessor that [BUW] could be placed into a class 1 rating".
5. [BUW] submitted that the Medical Assessor had totally disregarded her weight loss of 20 kg (which she argued was "presumably" because of a lack of self-care, as it had been included in the context of this category) and therefore could not constitute a "minor deficit."
6. There was a conflict between Dr Kumagaya's history that she regularly missed meals and the history taken by the Medical Assessor that she ate one or two times per day. It was submitted that this conflict should have been "further explored." There was no history taken as to what [BUW]' eating habits were prior to the injury. [BUW] presumed that a person would eat three times a day and if she regularly missed meals as recorded by Dr Kumagaya, she would fit more appropriately into class 2.
7. Further, [BUW] argued, there was the aspect of showering.
8. We were referred to the Medical Assessor 's comments that [BUW] tried to shower daily but that she omitted showering "sometimes." This, it was submitted, was more appropriate to class 2 than class 1. Cleaning teeth once a day it was submitted was not a sufficient basis to award a class 1 rating if it was also considered that [BUW] missed showers, washed her hair less regularly, "potentially" was missing meals and had suffered a "considerable weight loss of 20kg." This was a "glaringly improbable" assessment and a class 2 rating was more appropriate. [BUW] submitted.

1. We were referred to the Medical Assessor's description in the Table 11.8 Rating Form, for which he found a class 1 rating.
2. We referred again to the findings of Dr Kumagaya, who stated that [BUW] avoided leaving the residence if at all possible. She was able to attend familiar areas with a support person, but was unable to attend unfamiliar areas following the injury, Dr Kumagaya found.
3. We were referred to the class descriptors in this category for class 1 and class 2.
4. We referred to [BUW]' second statement of 7 January 2024, in which she said that:
   • she avoided going out and did her shopping online;
   • when she did go to the shops it was only to get what she wanted and she would then come straight home, and
   • she only left her house if she had to.
5. We were referred to the history taken by the Medical Assessor that she was more alert when she went out. She put her headphones on without music so that people would not speak to her. She did not describe a startle response and said she avoided the area of her employer and did not drive through the area where the perpetrator lived.
6. [BUW] referred to the observation by the Medical Assessor that she was staying by herself with a friend, cat-sitting in Cronulla, which was an hour and 20 minutes away from where she lived and that she travelled there once or twice a year.
7. [BUW] also referred to the history taken by the Medical Assessor that she went everywhere in her car. She liked to drive and have control but that she usually gets her groceries delivered, did not go to the shops but tended to avoid it.
8. [BUW] referred to the fact that in 2023 she went to Bali with her mother.
9. [BUW] submitted in these circumstances indeed a class 2 rating is appropriate, as she avoided the area of her employer and did not drive through where the perpetrator lived. She avoided catching public transport and only goes everywhere by car "due to control issues," she said. She had gone to Bali but she had gone with her mother and she rarely went to the shops. The history of her only going to familiar areas [BUW] acknowledged came from the history by Dr Kumagaya. She submitted it whilst she was at her friend's house, she only went there once or twice a year.

1. We were again referred to the reasons given by the Medical Assessor in the Table 11.8 Rating Form for the class 3 rating, and to the class 3 and class 4 descriptors.
2. [BUW] referred to the finding by the Medical Assessor that she put her headphones on without music to stop people from talking to her.
3. [BUW] referred to the observations of the Medical Assessor regarding her activities of daily living. She also referred to her second statement, in which she said she had cut herself off from people, did not go to the gym anymore, and that her relationship broke down because of her injury.
4. [BUW] also referred to Dr Kumagaya's opinion that a severe strain in the relationship that resulted in the separation in 2022, that her relationship with her family was also strained, and that she had lost several friendships.
5. The Medical Assessor, [BUW] said, had "failed to take a history or have regards to" those matters. She acknowledged that the Medical Assessor took a correct history regarding the separation and that she still had friends, but did not see them often.
6. It was submitted that these facts amounted to a class 4 impairment because [BUW] was unable to form or sustain a long term relationship, and that pre-existing relationships had ended. Class 4 also spoke of a claimant being unable to care for dependents, to which

[BUW] noted that although she had no dependents, she had moved back in with her mother. 7. She submitted that no inference was available because she had been looking after a cat that she was able to look after dependent children or an elderly parent. 8. Medical Assessor had drawn an inaccurate inference, it was claimed, that [BUW] had not fallen out with any of her friends. This, in the light of the broader history, was "glaringly improbable."

1. [BUW] again referred to the Medical Assessor 's findings in the table 11.8 rating form.
2. [BUW] noted that Dr Kumagaya assessed a class 3 rating and referred to his reasons for doing so. Whilst she noted the findings in the body of the MAC that [BUW] told the Medical Assessor that her concentration had been impacted, the class 2 rating, when considered with the evidence of Dr Kumagaya, was again "glaringly improbable."
3. The Medical Assessor appeared to base that rating on the fact that [BUW]' concentration was reduced, but she could focus during the assessment, she said. She struggled to watch TV for long but some of her concentration difficulties were related to an underlying attention deficit hyperactivity disorder as well.
4. [BUW] submitted that this history was "completely inadequate."
5. On the basis of the history before the Medical Assessor it was submitted [BUW] was unable to engage in any cognitively demanding tasks recently. There was no real history of substance that had been taken about her ability to read, draft emails or follow complex instructions, she said. It was submitted that she did not appear to be undertaking recreational or semi-vocational activities such as making clothes learning, a musical instrument and such like.
6. This made it improbable that a category 2 rating was appropriate, and a class three rating should have been given.

1. [BUW] noted that she had been rated a class 3 by the Medical Assessor, where as

Dr Kumagaya had given a class 5 rating. [BUW] also relied on a report from a doctor Morgans, who thought that she was variously "totally incapacitated," "not fit for preinjury duties," and "has no capacity." 2. We were referred to the relevant descriptors in Table 11.6 of the Guides and [BUW] submitted that although the Medical Assessor took a history and diagnosed her, he did not "take any history in relation to" potential job roles that she may or may not have been able to do. In the light of her other impairments, it was submitted that the Medical Assessor had taken an inadequate history and [BUW] again said that the finding was "glaringly improbable." Dr Kumagaya's view that a class 5 rating was appropriate, should be accepted as being more realistic. The alternative a class 4 would be appropriate.

1. The respondent submitted generally that the appellant was simply cavilling with matters of clinical judgement, and that a Medical Assessor was not required to explain why his opinion was different to that of either party's experts. It then answered each of the issues raised by

1. The respondent submitted that the reasoning given for the class 1 rating by the Medical Assessor was clear and consistent with his findings in the body of the MAC. He had examined [BUW] and based his clinical findings on his expertise and judgement.
2. These findings were not inconsistent with either the history given to Dr Kumagaya or

[BUW]'s statement. The findings were sufficiently consistent with the evidence relied on by [BUW]. The Medical Assessor had provided a detailed description and complied with the Guides, it was submitted. 3. The respondent referred to various factual matters in support of its response.

1. The respondent repeated its submissions, arguing that the reasons given by the Medical Assessor were clear and consistent with what he had said body of the MAC. The fact that his opinion differed from that given by Dr Kumagaya was not an appellable error, it was submitted.
2. The relevant descriptors were referenced and the respondent submitted that they were examples, providing guidance for the Medical Assessor, whose description complied with the class 1 rating. He had given a detailed description, and the respondent referred to the facts he relied on.

1. Again, the respondent submitted that the reasoning by the Medical Assessor is clear as he had accurately summarised in the rating form the content of what he had said in the body of this MAC. Examples were given and the respondent repeated that it was not an appellable error for the Medical Assessor to have a different opinion from Dr Kumagaya.
2. Bearing in mind the relevant descriptors, the class 3 rating was consistent with the reasons the Medical Assessor had given.

1. There was no error in the class 2 rating given by the Medical Assessor in this category, it was argued. His reasoning was well explained and easy to follow, as was evident by the examples to which the respondent referred.
2. The Medical Assessor, the respondent said, was not required to agree with the clinical judgement of qualified experts, and his description overall was consistent with the requirements of Chapter 1.6 of the Guides.

1. The respondent submitted that the Medical Assessor had given clear reasons for the class 3 rating. We were referred to those reasons and it was again submitted that a Medical Assessor was not required to "accord with the clinical judgement of the qualified experts."
2. The clinical view of the Medical Assessor, the respondent argued, was that [BUW] could work for 20 hours per week less stressful environment, which was consistent with the class 3 rating he had given.

1. On 4 July 2025 the Panel issued the following direction:

"1. The Panel is of the view that a re-examination is called for in view of a number of issues that have arisen on our review. [BUW] should attend on Dr Douglas Andrews of the Medical Appeal Panel on 20 August 2025 at 9am via Teams.

1. We further note that the terms of the referral describe this case as a personal injury that occurred on 20 May 2022. The Application to Resolve a Dispute described the injury as being caused in the course of her employment, but the deemed date box was not ticked. We are of the view that this may be is a disease case under the provisions of s 4(b) of the 1987 Act and we call for submissions as to whether the parties accept that proposition. We would be grateful, if there is no such acceptance, that submissions be lodged pursuant to the timetable below."
2. We received an email from the applicant dated 29 July 2025 in which she agreed with the proposition in our second direction. No responses received from the respondent.
3. Before outlining why a re-examination was called for, it is useful to rehearse the relevant authorities.

1. The PIRS is established as the rating system for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
2. Chapter 11.12[5] provides:

"Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person's cultural background. Consider activities that are usual for the person's age, sex and cultural norms."

1. The assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11[6].
2. The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[7] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:

"By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:

'... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face'.

1. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
2. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides 'the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment': Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are 'examples only': see Jenkins v Ambulance Service of New South Wales[8]. The Appeal Panel said 'they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected': Appeal Panel reasons at [37]."
3. In Glenn William Parker v Select Civil Pty Ltd,[9] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:

"In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])....."

"It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review."

1. It is accordingly a useful approach for the Panel to enquire whether the assessment by the AMS in this category involved one of the following matters (to use the reference by Campbell J in Ferguson):

(a) if the categorisation was glaringly improbable;

(b) if it could be demonstrated that the AMS was unaware of significant factual matters;

(c) if a clear misunderstanding could be demonstrated, or

(d) if an unsupportable reasoning process could be made out.

1. In Lancaster v Foxtel Management[10] Basten AJ noted at [88-89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
2. Thus, an aggrieved claimant has to demonstrate that his/her complaints are more than a mere disagreement over a matter about which reasonable minds might differ.
3. A Medical Assessor is, however, required to give adequate reasons for his assessment. At [48] of the often-cited High Court decision of Wingfoot[11] the plurality stated:

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

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

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

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

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

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

1. We have some disquiet as to the accuracy of the assessment in view of the reasons given by the Medical Assessor.

1. The relevant descriptors are set out in Table 11.1 of the Guides:

"Class 1 No deficit, or minor deficit attributable to the normal variation in the general population

Class 2 Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food."

1. In his Table 11.8 Rating Form, the Medical Assessor in rating in this category as a class 1 said:

"As described in the main body of the report, there is a minor deficit attributable to normal variation in the general population. Her weight has been stable for the last 12 months, and she cleans her teeth regularly.

She sometimes misses taking a shower but tends to keep herself clean overall. She pets sits [sic] for one of her friends."

1. As noted above, when considering [BUW]' activities of daily living, the Medical Assessor noted relevantly to this category:

"...She had stopped eating after the injury and lost twenty kilos. Her weight has been stable for almost twelve months now. She does not cook often. She says she likes to have a clean room, but it is a struggle. She tries to shower daily. She can omit showering sometimes. She cleans her teeth at least once a day..."

1. The respondent was quite right to submit that the function of a Medical Assessor did not involve a requirement for him/her to choose between competing arguments, or competing specialist opinions, to summarise the dicta in Wingfoot. However, there are aspects of the reasoning by the Medical Assessor that lack sufficient detail to enable us to understand why a class 1 rating was chosen.
2. [BUW] made two statements dated 16 June 2022 and 7 November 2024. In her latter statement she said:[12]

"6. Since suffering my work-related psychological injury I have lost 20 kg in weight. This is mainly due to my loss of appetite since my injury."

1. The relevance of the comments by the Medical Assessor that her weight had been stable for almost 12 months was not apparent. The loss of 20 kg did not appear to correlate with the finding that [BUW] had a minor impairment attributable to the normal variation in the general population.

1. As a re-examination was necessitated by the uncertainty as to the Medical Assessors reasoning in the self-care and personal hygiene category, this category will also be revisited. The submissions however appeared to be based on a misunderstanding of the manner in which the descriptors are applied in assessing the behavioural consequences of a psychiatric disorder. The six categories of the PIRS relate to a person's functional impairment, so that if the evidence demonstrates that a person is able to function within one of the categories, then the assessment is based on the level of the impairment, as we have indicated above. With the exception of the class 3 descriptors in the travel category (which speak of excessive anxiety or cognitive impairment where a claimant needs a support person to travel away from home) the descriptors across the six categories are not concerned with subjective matters, but rather with the severity of the impact of the disorder on a claimant's behaviour.
2. [BUW]' submissions appeared to be based on an erroneous assumption that her subjective feelings when travelling were relevant.

1. Table 11.4 of the Guides provides the following classes, relevantly:

"Class 3 Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.

Class 4 Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent)."

1. In his Table 11.8 rating form, the Medical Assessor gave the following reasons for his class 3 rating:

"As described in the main body of the report, there is moderate impairment. Her long-term relationship has ended, and she is not able to form new ones. She remains close to her mother and has not fallen out with her friends."

1. [BUW] referred to documentary evidence that was before the Medical Assessor in submitting that he had not accurately reflected the contents of that evidence particularly that [BUW] had indeed experienced a loss of friendships. That apparent contradiction was not addressed by the Medical Assessor, and whilst his findings may have reflected what he had been told at the assessment, the histories given to Dr Kumagaya of her losing several friends were not addressed.

1. Table 4.5 of the Guides provides the following relevant classes:

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

Class 3 Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting."

1. The Medical Assessor gave the following reasons in his Table 11.8 rating form for his class 2 rating:

"As described in the main body of the report, there is mild impairment. Her concentration has reportedly reduced, but she was able to focus throughout the assessment. She struggles to watch TV for long. Some of her concentration difficulties are related to her underlying attention deficit hyperactivity disorder as well."

1. It is apparent that the Medical Assessor has taken into account [BUW]'s pre-existing ADHD condition in assessing the baseline WPI. It is unclear whether he reduced the rating for that reason, and it is difficult to understand why else he would have mentioned it at that point. That is an impermissible approach to the assessment of a pre-existing condition,[13] and is also contrary to his finding at [11] that [BUW] had no pre-existing condition, but rather had an underlying vulnerability.

"Class 3: Moderate impairment: cannot work at all in same position.

Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).

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. In his Table 11.8 rating form, the Medical Assessor said:

"As described in the main body of the report, there is moderate impairment.

[BUW] has been adversely impacted in the open job market because she is fearful of working with males and in small family-run businesses. She has the capacity to work up to 20 hours per week in a less stressful environment."

1. In the light of the evidence in the case, it is difficult to follow the reasoning of the Medical Assessor that she has the capacity to work up to 20 hours per week. We were unable to locate where in the body of his report he discussed [BUW]' employment prospects, beyond his comment when considering her activities of daily living that "she would like to work but would like to have a female boss and a place that is not a small family business."
2. Medical Assessor Andrews' report follows:

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

[BUW] is a 32-year-old woman who lives in Werrington County with her mother. Her brother had also been living with them, but he has recently moved out.

She commenced work with B & L Linings Proprietary Limited in 2016. She alleges that there were inappropriate work demands, for example, demands to work weekends without pay, from the commencement and that sexual harassment by her manager started around Christmas 2019. She stopped work on 20 May 2022 and has not worked since. During her employment with B & L, she also had a secondary employment with Meals on Wheels, working a few hours on the weekend. She also gave up this job.

The workplace incidents that led to her injury are well described in the various briefing documents.

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

Her treating clinicians are general practitioner Dr Lauren McCann, psychologist Ms Kylie Pennings and psychiatrist Dr Sivaruby Thavakulesingam.

Her medications are long-acting methylphenidate 60 mg once a day, diazepam 5 mg daily and suvorexant daily.

She has previously used quetiapine, fluoxetine, sodium valproate and prazosin.

She attends her psychiatrist every four weeks and her psychologist every two weeks. She is having a course of EMDR, focused on her workplace trauma.

She was admitted to a detoxification unit for alcohol abuse in 2022 and to St. John of God Hospital for the same reason. Subsequently, she underwent a 12-month outpatient program of dialectical behaviour therapy, followed by a schema therapy program.

[BUW] feels that her condition has improved, although she is still suffering significant symptoms.

[BUW] has had mental health problems since adolescence. Following an assault when she was 14 years old, she was admitted to the hospital involuntarily twice and had attempted suicide. She went through a period of drug and alcohol abuse.

She has been diagnosed with post-traumatic stress disorder, substance use disorders, bipolar disorder and borderline personality disorder.

[BUW] has been diagnosed with asthma, psoriasis, Sjogren's syndrome and polycystic ovarian syndrome.

She is on ustekinumab by injection every three months for psoriasis.

She had a microdiscectomy in 2023 and further back surgery in 2024. She does not suffer from ongoing low back pain or other problems.

She lost 20 kg quickly after leaving work. Her weight stabilised for a year, but she has lost a further 4-5 kg in recent months. Her current weight is 68 kg; at 178 cm, her BMI is 21.5, in the healthy range.

[BUW] had been abstinent from illicit drugs for several years. During that time, she only occasionally drank small amounts of alcohol. Following the work injury, her alcohol intake increased, and she briefly used cocaine.

Recently, she had been abstinent from alcohol for seven months until she was contacted four weeks ago. She recommenced drinking, consuming six standard drinks daily, because she was upset about the contact. She stopped drinking one week ago.

She had been vaping nicotine and has quit this with the help of the medication varenicline.

[BUW] described a low mood with a reduced capacity to experience positive emotions. There is no diurnal variation. She struggles with motivation.

She is often anxious and worries that this might be visible to others because she has flushes. Her anxiety increases occasionally so that she must leave situations and return home.

She has significant subjective problems with concentration, attention and memory.

She has ongoing thoughts of suicide without plans or intent.

I assessed [BUW] in her home via an audiovisual link. Shortly after commencing, a third-party entered the meeting, identified as Gary George (her lawyer), who appeared to be attempting to record the meeting using an AI transcribing service, Otter.ai. I terminated the Teams meeting and had the PIC set up a new meeting. This commenced a few minutes later, and the assessment proceeded for a further 80 minutes without incident. The connection quality was adequate to do a comprehensive evaluation.

I explained the purposes of the assessment, the limits of confidentiality and that I would not offer treatment advice.

[BUW] presented casually attired in a black top with her hair pulled back. She appeared well-kempt.

She described a low mood and anxiety. Her affect was reactive, consistent with her mood and congruent with the interview content.

[BUW] gave a coherent and comprehensive history without apparent loss of focus. She did not need to have questions restated or redirected.

She was distressed when she became aware that the appeal panel decisions were published. She said that had she been aware, she might not have appealed. She agreed to continue with the assessment and understood that my report would form part of the appeal panel's statement of reasons.

[BUW] lives with her mother in a freestanding house. Her mother works full-time as a national credit manager, and [BUW] is an independent adult and does not rely on her mother for practical support.

[BUW] prepares a healthy breakfast, showers and brushes her teeth daily. She often skips either lunch or dinner. She will prepare simple meals or rely on services such as Uber Eats. She does some housework, including laundry, although her mother does a thorough clean each Sunday. She shops for groceries online.

Before becoming unwell, she enjoyed outdoor activities such as riding his motorbike, four-wheel driving and camping. She had travelled around Australia and twice to Europe. She had outings with friends and attended a gym six days a week. She liked to go to orchestral concerts occasionally on her own.

She has stopped going to the gym but attends an exercise physiologist weekly. She is anxious about going out and may arrange activities and then cancel them. She went on a four-wheel-drive trip to Lithgow with a group recently. This is about two hours from her home, and they drove around further once they arrived. She is comfortable driving and feels good because she is driving alone, although accompanied by others in their vehicles.

She has recently gone out for lunch at a restaurant with her mother. Two weeks ago, she competed in the City to Surf fun run accompanied by a friend. In 2023, she travelled to Bali for 10 days with her mother. Regarding the Bali trip, she said she was 'surprisingly okay'. She had recently booked a trip to Adelaide but cancelled.

Twice yearly, she cat-sits for a friend at Cronulla when her friend travels.

She sold her motorbike because she wanted to buy a four-wheel-drive. She briefly had a dirt bike but has given up.

About her driving, she said, 'Driving is good for me; it is calming.'

She was in a relationship from 2020 to 2022, her longest relationship ever. Her partner left because she didn't want to deal with [BUW]'s mental health struggles. She has considered dating but hasn't got past the online conversation. She has a good relationship with her mother and three friends.

She is not close to her brother and has no contact with her father. These things predated her work injury.

[BUW] has never been a reader. She plays Candy Crush for a few hours daily, which requires minimal mental effort. She also plays online Scrabble for one hour daily, an activity that does require engagement and focus. She watches serials such as The Rookies and Suits on Netflix, but without close engagement. She has no other projects or hobbies.

She has lost confidence in her ability to work and said that she might struggle working for a male boss.

• Persistent depressive disorder with an ongoing major depressive episode.
• Alcohol use disorder - in remission.
• Attention-deficit hyperactivity disorder

Of the nine criteria outlined for a major depressive disorder, [BUW] describes all but psychomotor agitation or retardation. Therefore, she has eight of nine criteria, with at least five being necessary for the diagnosis.

She started drinking to excess in 2022. She has made significant efforts to control her drinking, including attending a detoxification program and Alcoholics Anonymous. She briefly relapsed one month ago but has resumed abstinence one week ago.

Her ADHD was diagnosed when she was 14 years old. She briefly used psychostimulants then and recommenced them while employed at B & L. This is a long-standing condition that predates her work injury.

[BUW] has been diagnosed with a borderline personality disorder. She has psychiatric symptoms commencing in adolescence with a pattern of instability in interpersonal relationships, affective dysregulation and impulsivity. Her symptoms are enduring and still present. This is a pre-existing condition.

I cannot support a diagnosis of PTSD, although the MA and Dr Kumagaya made this diagnosis. IME psychiatrist Dr Sue Morgans did not. [BUW] does not meet the mandatory criterion A, that of exposure to actual or threatened death, serious injury or sexual violence. However, she would meet the ICD-11 criteria for complex PTSD, but using two diagnostic nosologies leads to overlapping conditions and unnecessarily adds diagnoses.

[BUW] is less attentive to her appearance. She often skips either lunch or dinner. She lost considerable weight after the onset of injury and 4-5 kg recently. She attends to hygiene, showering and brushing her teeth daily without prompting. She exercises, but less frequently than before. She can live independently.

As per the MA's rating. This category was not appealed.

She is independent with local travel, and when travelling further afield. She enjoys driving, which she described as "calming", and has recently gone on a four-wheel-drive outing with friends to Lithgow without support in her vehicle. She has also travelled to Bali with her mother, a trip that she described as "surprisingly good." There is no indication that she needed her mother as a support person. She is functioning within the normal variation in the general population.

Her two-year relationship broke down in 2022 because of her work injury. She has been unable to form further relationships. She gets along well with her mother and has retained three close friends. She is not close to her brother and is estranged from her father, circumstances that predate her workplace injury.

[BUW] doesn't read but has never had much interest in this. She plays Candy Crush for a few hours daily, which requires concentration but not much intellectual engagement. She also plays Scrabble for one hour daily, a game that involves intellectual engagement. She has no hobbies or other projects. She gave a comprehensive and coherent history during my 80-minute assessment.

[BUW] has moderately severe symptoms, has lost motivation and confidence. She is anxious about the prospect of working with a male employer. Considering her current level of impairment and her symptoms, it is likely that [BUW] could work in an appropriate environment for at least a few hours weekly. Her pace may be reduced and her attendance erratic.

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

1. We adopt Medical Assessor Andrews' report.
2. We note that an application for de-identification has been made by [BUW]'s legal representatives. We would recommend that course, given the circumstances of this dispute.
3. For these reasons, the Appeal Panel has determined that the MAC issued on

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

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

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

Chapter, page and paragraph number in NSW workers compensation guidelines

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

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

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

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

[4] [2017] NSWSC 887.

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

[7] [2017] NSWSC 887.

[8] [2015] NSWSC 633.

[9] [2018] NSWSC 140.

[10] [2022] NSWSC 929.

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

[13] Coca-Cola Europacific Partners API Ltd v Pombinho [2024] NSWCA 191.