WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; psychological injury; impairment assessment; employer appealed; no compliant about the overall assessment of permanent impairment; complaint on appeal concerned the extent of the deduction of one-tenth made under section 323 in respect of pre-existing condition, abnormality, or injury; appellant employer submitted it was at odds with the available evidence; evidence inadequately reasoned and sought re-examination of the worker; Held - Appeal Panel considered that a re-examination was considered necessary; MAC confirmed.

1. On 25 August 2025 Cerebral Palsy Alliance Accommodation Northern, the employer (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 July 2025.
2. The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
   • the assessment was made on the basis of incorrect criteria; and
   • the MAC contains a demonstrable error.
3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed

1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

1. 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. The appellant request that the worker undergo a re-examination. As a result of its preliminary review, the Appeal Panel determined that it was necessary for the worker to undergo a further medical examination.

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 John Lam-Po-Tang of the Appeal Panel conducted an examination of the worker on 24 November 2025 and reported to the Appeal Panel on 30 December 2025.

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.

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 matter was referred to the Medical Assessor for assessment as follows:

"The following matters have been referred for assessment (s 319 of the 1998 Act):

• the degree of permanent impairment of the worker as a result of an injury (s319(c))
• whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion (s319(d))
• whether impairment is permanent (s319(f))
• whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
• Date of injury: 18 April 2023 disease (deemed)
• Body parts/systems referred: Psychological/Psychiatric disorder
• Method of assessment: Whole Person Impairment"

1. The Medical Assessor issued a MAC certifying as follows:

page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA5 Guides

WPI deductions pursuant to S323 for pre-existing injury, condition or abnormality (expressed as a fraction)

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

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

1. The assessment was based on his assessment under the psychiatric impairment rating scale (PIRS) as required by the Guidelines as follows:

Antidepressants, psychotherapy and psychiatric review.

Ms Burger said she requires goal-setting with her psychologist to maintain basic hygiene. She does not shower every day. She reported wearing the same clothes for two to three days consecutively. She said she was previously well-groomed but has since stopped wearing makeup and discontinued personal care routines, such as manicures and pedicures. She maintains weekly salon visits for hair washing and styling because she said she was unable to complete this task independently, noting, "Washing my hair is a mammoth task for me". She previously received regular beauty treatments but has discontinued them over the past two years. She reported requiring prompting from her son regarding clothing changes and maintaining personal presentation. She skips meals and eats once a day.

She has withdrawn from previously enjoyed activities, including church attendance, social gatherings and hosting dinner parties. She has ceased all social contact except with her son, and rare phone calls from her sister may be once a month. She no longer maintains contact with her three siblings in Sydney or her mother in a local retirement village (I note the family estrangement occurred before the subject injury). She has withdrawn from previously regular church activities, including Bible study and Connect groups, which she had attended for two and a half years. She now employs a dog-walker to walk her dogs and has stopped gardening. She no longer reads magazines or pursues her previous interest in home decoration. She avoids shopping centres, crowds and public spaces due to anxiety about people banging into her or pushing her.

She noted that she required support for air travel using a special needs tag, though she had managed two recent trips to Thailand with her son's support, noting that she spent most of her time in her hotel room watching YouTube.

She has ceased independent driving except for rare occasions, noting that in the last six months, she might have driven twice to the corner shop and back. She relies on her son for all transportation, including medical appointments and hair appointments. She requires her son's support for air travel and uses a special needs tag. She experiences significant anticipatory anxiety about air travel. She avoids public transport due to anxiety about crowds and noise.

She has withdrawn from all previous social relationships. She has ceased contact with friends. She no longer participates in previously enjoyed social outings like coffee outings or lunch at clubs. She cancels planned social interactions due to anxiety. She has withdrawn from her involvement in the church community. She relies almost exclusively on her son for social interaction and support. She was divorced and estranged from members of her family before the subject injury.

She reported difficulty maintaining focus on television programs or reading due to difficulties absorbing information. She described needing to repeatedly pause and rewind church services on YouTube to maintain comprehension. She cannot read her Bible for more than 15 minutes. She has difficulty completing household tasks due to poor concentration and motivation, noting that it was hard for her to stay on track and complete tasks. She has difficulty making decisions.

She is totally incapacitated and unable to work at all.

1. From the 24% WPI assessed above, the Medical Assessor made a one-tenth deduction under s 323 leaving a WPI as a result of injury of 22% WPI.
2. The employer appealed.
3. There was no complaint on appeal about the overall assessment of 24% WPI. The compliant on appeal concerned the extent of the deduction under s 323.
4. In summary, the appellant submitted that the Medical Assessor made assessments on the basis of incorrect criteria and/or made demonstrable errors in the extent of the deduction made under s 323 at one-tenth.
5. In summary, the appellant made submissions which included that the making of a deduction of one-tenth was at odds with the available evidence and was inadequately reasoned particularly in light of the evidence of the worker's pre-existing psychotic disorder.
6. In summary, the respondent worker Brenda Gertrude Burger (the respondent) submitted that the Medical Assessor did not err or make an assessment on the basis of incorrect criteria and the MAC should be confirmed.
7. The role of the Medical Assessor is to conduct an independent assessment on the day of examination. The Medical Assessor is required to take a history, conduct a mental state examination, make a psychiatric diagnosis and have due regard to other evidence and other medical opinion that is before the Medical Assessor. The Medical Assessor must bring his clinical expertise to bear and exercise his clinical judgement when making an independent assessment of impairment.
8. The path of reasoning disclosed by the Medical Assessor must be adequate. This is also dependent on the extent of the history taken and a thorough examination of the worker so that self- report can be properly evaluated in the context of other evidence before the Medical Assessor. The Appeal Panel considered that it was not clear that the Medical Assessor had considered all of the evidence before him and the path of reasoning was inadequate. In these circumstances the Appeal Panel was satisfied as to error and considered a re-examination was necessary.
9. In these circumstances of a finding of error the Appeal Panel considered that a re-examination by a Medical Assessor member of the Appeal Panel was necessary. Medical Assessor John Lam-Po-Tang was appointed to conduct the re-examination and he reported to the Appeal Panel as follows (emphasis in original):

1.The workers medical history, where it differs from previous records

Ms Burger provided more information about a past relationship and the apparent harassment that followed after its end, in the years 2015 to 2018. She explained that she used to work with a man, who was originally from Iran. She said that she was organising for her kitchen to be renovated, and organised to have some her colleague's friends do this. She recounted, "He came in to my home and helped his friends [with the] renovation of the kitchen". She added, "He invited me to dinner... things rolled out from there". She said that for around three months they were in a relationship "sort of". She state they would go out to dinners or to the movies. Whilst she described their relationship as "nothing serious", she confirmed it had been an intimate one.

Following the end of this relationship, Ms Burger commented, "This person became very nasty, throwing rubbish in my front yard, calling out as he drove past my house", and leaving piles of six rocks by the driver's side car door. She alleged he would follow her to church, and said that her friends witnessed some of these behaviours. She also alleged he would throw garbage, including used condoms, in her front yard. She also alleged that her home wifi network would be disconnected, and surmised that her former partner was somehow doing this when he was on her property. When asked how this could be possible, she said that she left her backdoor open at times. She further asserted, "He had all the knowledge - he must've had access to the wifi password to down the cameras [that had been installed]. How else would he have been able to down my cameras?" She alleged this harassment persisted from 2015 until 2018.

Ms Burger was insistent that the reported behaviour occurred: "I just know it happened, and it upset me dreadfully". She said she went to the police, whom she said asked her for photographic evidence of the alleged behaviour, which she said she could not obtain. That said, she said that she did take photos of rocks, garbage and condoms.

Around 2019 or 2020, Ms Burger spent around five or six months away from Sydney, during which time she did not work. She said she had accrued long service leave from one of her two jobs at the time, and also made a claim on an income protection policy, citing the effects of alleged bullying and harassment within the workplace, and that this was supported by her psychiatrist at the time, Dr Anita George. During this period of time, Ms Burger commented, "I thought a change of scenery would do me the world of good. I always wanted to live in the Hobart house", referring to an investment property she owned. She said that she hoped that leaving Sydney would "put a bit of a break in between the stalking".

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

Ms Burger had a medical assessment by Medical Assessor Clayton Smith on 15 July 2025; the Medical Assessment Certificate is dated 28 July 2025. He diagnosed Ms Burger with Major Depressive Disorder with anxious distress, but noted a diagnostic dilemma regarding whether or not she had experienced a psychotic disorder in the past. He did not notice any psychotic symptoms at the time of his evaluation.

Psychiatric treatment at that time comprised monthly consultations with a consultant psychiatrist, fortnightly consultations with a psychologist, and a low dose of an antidepressant medication, escitalopram 10 mg daily, as well as a low dose of an antipsychotic medication, quetiapine 12.5 mg nightly. Additionally, she was prescribed candesartan 8 mg daily.

Dr Gertrude Peries, general practitioner: Ms Burger consults Dr Peries monthly for consultations lasting 30 - 40 minutes. These are mainly in-person, but occasionally via telehealth. These consultations focus on her workers' compensation documentation, general health and medication.

Ms Marianne Restifo, psychologist: Ms Burger has fortnightly video-based consultations. She has never met Ms Restifo in person, despite Ms Restifo practicing in the Inner West.

Dr Sean Yenson, consultant psychiatrist: Ms Burger attends monthly consultations with Dr Yenson, usually lasting 30 - 40 minutes, either in person, or by phone. These sessions focus on "my anxiety issues, the panic I have, feelings of overwhelm".

Ms Burger said that psychological intervention covers a broad array of topics, including goal-setting, relaxation, behavioural activation, and addressing anxiety, including in situ and anticipatory anxiety. She said that she has been discussing 'eco-therapy' with her psychologist, by which she means, by way of example, "going on bushwalking and being surrounded by trees or nature".

Ms Burger presented as a Caucasian woman of stated age, with wet hair, wearing a floral dress and dark-rimmed glasses. She held smelling salts to her nose intermittently throughout the assessment. She logged in to the video-conferencing platform punctually, and was co-operative with the assessment. She made good eye contact through the video-conferencing platform. No psychomotor agitation or retardation was noted; no stereotypic movements were noted. Ms Burger did not appear to be responding to perceptual disturbances.

Ms Burger's speech was spontaneous and fluent, with reduced prosody noted. She spoke in a very deliberate manner, and her rate of speech was often slow. She often paused significantly during her speech, as though she had concluded her response, but then resume speaking, resulting in two of us speaking at once. Her affect was persistently restricted in range and reactivity. Her mood was subjectively anxious. Her thought form was logical and sequential, with no formal thought disorder. She remained adamant that she had been harassed by a former employee on multiple occasions in the past, and could not concede that she may have been mistaken. There was no poverty of ideation; Ms Burger often added extra information.

Ms Burger was alert and oriented throughout the interview, with no drowsiness or fluctuation in level of consciousness observed.

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

Ms Burger noted, "I try to shower every day. I brush my teeth every morning". She visits a hairdresser every week, and gets her hair cut every six weeks. She changes clothes every two to three days. She typically has one meal per day, in the afternoon. She does not cook meals; her son does the household cooking. She said that she was not able to look after herself alone at home.

Around the home, Ms Burger stated, "I try to do the mopping and sweeping up, but I have to stop and take breaks".

Ms Burger said she is able to leave her home alone, without a support person. She said she is able to go for a walk, around the block, around 15 to 20 minutes. She drives alone once or twice a week. She advised she cannot use public transport, and could not do so, even if she were to be accompanied. She reported no domestic travel within the last 12 months. She travelled to Thailand for a holiday with her son, in April 2025. She noted, "My son wanted to go on a holiday and in order to do so, he had to take me with him, because he couldn't leave me by myself". She said she did not do any sightseeing whilst overseas, and stayed at the hotel. She said she spent a lot of the time watching Youtube in her room.

Ms Burger said she no longer uses social media, last doing so around two years ago. She uses the internet to watch Youtube videos. She said she is able to send and receive emails.

Ms Burger said she is able to manage her own bank account. She said she organises her own taxation documents, and uses an accountant to submit her tax return. She said she uses a real estate agent to manage an investment property she owns in Hobart: "They might give me a call and tell me" something about the property.

Socially, Ms Burger said she does not catch up with friends: "My friends have stopped calling me; I've dropped off". She estimated last catching up with friends around 18 months prior to the present evaluation. She said she does not go to restaurants, cafes or clubs by herself or with her son.

Ms Burger reported subjective impairment in concentration. She commented, "I can only flick through a magazine and look at the pictures". She reported difficulty reading, and said that whilst she used to read the Bible regularly, she can "read a few sentences". She said that when attempting to watch movies or TV, "I can't focus - I fade out". She said she can watch five to six minutes of videos, and sometimes has to pause and re-wind them.

Ms Burger described her mood as anxious at the time of the evaluation. She rated it as 4/10 on a 10-point scale, where 0/10 represents a very depressed mood and 10/10 represents a very cheerful mood. She commented, "I don't look forward to anything". She denied any diurnal mood variation. She denied any suicidal ideation or urges. She reported some impairment in motivation. She said that she can get herself out of bed, but may remain in the same clothes. Ms Burger reported some somatic symptoms of anxiety, such as "tightness in my stomach", and reported avoidance due to her anxiety, such as driving or leaving her home.

Impaired appetite was reported by Ms Burger, in the form of reduced enjoyment of food. She described her weight as "stable". She reported lowered energy levels, commenting, "I feel fatigued - it's a big battle for me to achieve my goals". She said she typically retired at around 22:00 - 22:30, and that at night, she may experience increased anxiety and tension. She estimated waking up several times per night. She reported consistent flashbacks at night, stating these were about having had a panic attack, which she interpreted at the time as a heart attack, at work, and the reaction of her manager to her distress.

Ms Burger confirmed she had been diagnosed with Posttraumatic Stress Disorder in 2003. It was around this time that she was initially prescribed the antidepressant medication, escitalopram, which she took until 2005.

In 2007, Ms Burger said that she was diagnosed with Posttraumatic Stress Disorder in relation to fears for her son's safety. She explained that the threats came from her son's partner at the time. Many years, later, in 2022, Ms Burger said that her son was still being somehow harassed in relation to the 2007 incidents.

In June 2023, Ms Burger was admitted to the St John of God Hospital, Burwood, for 12 days. She said that at the start of the admission, she was allocated a private room, but after a period of days, she was asked to change her room, and share with another person. She said she became too anxious, and requested discharge from hospital.

In July 2023, Ms Burger was prescribed an antipsychotic medication, haloperidol, whilst in the Ramsay Northside Clinic, under the care of psychiatrist, Dr Ong. The dose was gradually increased to 2 mg daily. She expressed the view that the haloperidol made no difference to her mental state. This is at odd with the opinion of her treating psychiatrist at the time, who thought it had improved her mental state. When Ms Burger was asked why she took haloperidol for two years if it make no difference, she replied, "I don't know". In May 2025, Ms Burger said she ceased taking haloperidol on the recommendation of her current psychiatrist, Dr Sean Yenson. This is at odds with correspondence from Dr Yenson, in which he advised she should continue it. When Ms Burger was asked to clarify the discrepancy, she alleged he said something like, "I can't see why you're taking it".

During 2024 and 2025, Ms Burger advised she was not admitted to a psychiatric hospital.

Ms Burger said she disagreed with psychiatrists who were of the view that she had experienced psychotic symptoms: "No I don't, I don't agree with them... they based that [opinion] on the stalking event, because I couldn't get photographic evidence. I haven't had delusions at all".

1. The Appeal Panel considers that the examination undertaken by Medical Assessor John Lam-Po-Tang was conducted in a thorough manner. The Appeal Panel notes the history Medical Assessor John Lam-Po-Tang has provided in his report to the Appeal Panel, including the past psychiatric history. The Appeal Panel notes that Medical Assessor John Lam-Po-Tang had clear regard to the other evidence before him, has not relied on self -report alone and has used his clinical expertise on the day of assessment in respect of reporting to the Panel.
2. A deduction under s 323 in respect of any pre-existing condition, abnormality or injury can only be made if the pre-existing condition has contributed to the overall level of whole person impairment assessed. Here there is no suggestion that a deduction should not have been made. It is the extent of the deduction at one-tenth that was under challenge. The appellant asserted that a deduction of one-tenth was at odds with the available evidence and was inadequately reasoned. A re-examination was requested. This was undertaken and the Appeal Panel has considered carefully the re-examination report of Medical Assessor John Lam-Pa-Tang along with the other evidence that was before the original Medical Assessor.
3. The Appeal Panel considers that there was no error in the making of a one-tenth deduction because the extent of the deduction is too difficult to determine and is therefore mandated to be one-tenth because the Appeal Panel does not consider a one-tenth deduction to be at odds with the available evidence. It is not at odds with the available evidence given the diagnostic uncertainty between the treating professionals in relation to any pre-existing psychosis, which also may be considered on the evidence, a transient disorder as no evidence of existing psychosis was found on proper clinical examination by either the original Medical Assessor Clayton Smith or at the time of re-examination by medical Assessor John Lam-Po Tang as well taking into account the lack of evidence of any functional impairment in an extended period (12 months) prior to the work injury.
4. For these reasons, the Appeal Panel has determined that the MAC issued on 28 July 2025 should be confirmed.