1. On 9 August 2025 Shane Cunningham, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yu Tang Shen, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on

14 July 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):

(a) the assessment was made on the basis of incorrect criteria, and

(b) the MAC contains a demonstrable error.

1. 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.
2. 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.
3. 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 appellant sustained a psychological injury in the course of his employment with a deemed date of injury of 11 November 2021. Liability with respect to the injury was accepted by the respondent's insurer.
2. The appellant commenced proceedings for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 on 16 May 2025.
3. The matter was referred to a Medical Assessor who assessed the appellant and issued a Medical Assessment Certificate dated 14 July 2025.
4. The appellant now appeals from that Medical Assessment Certificate.

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 Appeal Panel notes that the appellant has sought re-examination by a Medical Assessor Member of the Panel.
3. However, following the preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because while the panel considered the Medical Assessment Certificate contained error in that the Medical Assessor had not sufficiently explained his reasons, there was sufficient material before the Appeal Panel to determine the degree of permanent impairment without requiring a re-examination of 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. 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. 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. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel and discussed where necessary in the consideration of the Appeal Panel below.

1. Chapter 11 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment provides that impairment resulting from psychiatric or psychological disorders is to be assessed in accordance with the PIRS. Six categories of behaviour are set out and divided into five classes where class one represents no or minor impairment attributable to normal variation in the human population and Class 5 is the most serious impairment.
2. Chapter 11.12 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. It is the role of the Medical Assessor to assign a class to each behavioural category and then, using the scores calculate the degree of impairment in accordance with Chapter 11 (see Guidelines at 11.15 - 11.21 and Table 11.7).
2. It is the appellant's submission that the Medical Assessor's assessment, applying the PIRS was erroneous as the assessment was made on the basis of incorrect criteria and the MAC contains a demonstrable error (s 327(3)(c) and (d) of the 1998 Act). The appeal is concerned with the assessment of the behavioural categories of "self-care and personal hygiene",

"concentration, persistence and pace" and "employability". 3. The respondent submits that no such error is made out if any of the three categories appealed. 4. What amounts to error in the application of the PIRS was considered by Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887 where the Medical Appeal Panel had revoked the MAC having reached the conclusion the classification by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error and 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 [2015] NSWSC 633. 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 [2018] NSWSC 140, Harrison AsJ cited 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 useful 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[1] 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. Having considered the authorities, the Appeal Panel notes that the appellant has to demonstrate that his complaints are more than a mere disagreement over a matter about which reasonable minds might differ.
3. Consideration must now be given to each category with which the appellant has raised complaint.

1. The Medical Assessor assessed the appellant as Class 2 and provided the following reasons for doing so:

"Since the subject injury, he said he has been showering when needed, usually twice a week. He said he has not been cooking much, and he makes simple meals such as toast and sandwich, and he can make these meals at least twice a week. He said he has been cleaning the house but less frequently than he should, about once a month. He said he has been doing the laundry once every 3 weeks and he re-wears the same clothes. He has been shopping for groceries at least once a week"

"As he has been able to shower when needed, and able to make simple meals for himself and some housework, he has mild impairment"

1. The Guidelines provide the following descriptors with respect to Class 2 and Class 3:

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.

Class 3 - Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.

1. The appellant submits that the Class 2 assessed by the Medical Assessor is not appropriate for the level of impairment described. The appellant notes he no longer showers daily, now showering only twice a week, he re-wears the same clothes only washing them every three weeks. The appellant further noted that his son motivates him regularly and a friend takes him for a haircut. The appellant makes submissions with respect to poor nutrition and increased alcohol use.
2. The appellant ultimately submits that Class 3 is appropriate.
3. The respondent submitted that Class 2 was appropriate and there was no error in the Medical Assessor's assessment.
4. As submitted by the respondent, it is not necessary for the appellant to meet each descriptor of a class to be assessed as that class.
5. The Medical Assessor has conducted an assessment of the appellant and taken a history of the following:

(a) "His appetite has been poor and he has been "eating all the wrong things" on some days, and other days when he won't eat at all, and other days. His weight has increased about 6-7 kg";

(b) "He is 60 years old and lives in Gymea with his 26-year-old son Nathan." "His son Nathan also helps motivate him regularly";

(c) "One friend takes him out for a haircut and a coffee";

(d) "Prior to the subject injury, he said he would shower every day. He said he would barbecue and healthy home meal 4 times a week on the weekdays. He said he would clean the house after his wife passed. He said he would do the laundry regularly. He said he would go shopping about 2-3 times a week";

(e) "Since the subject injury, he said he has been showering when needed, usually twice a week. He said he has not been cooking much, and he makes simple meals such as toast and sandwich, and he can make these meals at least twice a week. He said he has been cleaning the house but less frequently than he should, about once a month. He said he has been doing the laundry once every 3 weeks and he re-wears the same clothes. He has been shopping for groceries at least once a week", and

(f) "He presented as a casually dressed and reasonably groomed man."

1. In providing reasons for classifying Class 2, the Medical Assessor records:

"Since the subject injury, he said he has been showering when needed, usually twice a week. He said he has not been cooking much, and he makes simple meals such as toast and sandwich, and he can make these meals at least twice a week. He said he has been cleaning the house but less frequently than he should, about once a month. He said he has been doing the laundry once every 3 weeks and he re-wears the same clothes. He has been shopping for groceries at least once a week.

As he has been able to shower when needed, and able to make simple meals for himself and some housework, he has mild impairment."

1. In accordance with Table 11.1 of the Guidelines, a Class 3 assessment would include not being able to live independently without regular support, needing prompting to shower daily and wear clean clothes, not preparing own meals or frequently missing meals and requiring family members or a community nurse to visit two to three times per week to ensure a minimum level of hygiene.
2. Having conducted an assessment, the Medical Assessor has explained that as the appellant is able to shower when needed and make simple meals for himself and do some housework the appropriate classification is Class 2.
3. Having regard to the history taken by the Medical Assessor and the material available to the Medical Assessor and the Appeal Panel (the Appeal Panel note that Dr Khan and Dr Verma also assessed Class 2), the Appeal Panel does not consider that the finding of Class 2 is glaringly improbable and the reasons provided by the Medical Assessor for reaching the classification reached are sufficient to understand the reasoning process undertaken.
4. The appellant can live independently with his 26-year-old son. While his son provides regular motivation there is no evidence that it is support provided by the son which allows the appellant to live independently. The Medical Assessor recorded that during the assessment the appellant was reasonably groomed. The appellant's weight has increased which may be an indication of a poor overall diet and reliance of take-away food but does not suggest the appellant is frequently missing meals. While a friend takes the appellant out for a haircut and coffee, the addition of coffee makes this in part a social activity. The appellant does not say that he would not otherwise be able to have a haircut. It was in this context that the Medical Assessor had taken that aspect of the history.
5. For these reasons the Appeal Panel finds no error in the assessment with respect to "self-care and personal hygiene".

1. The Medical Assessor assessed the appellant as Class 2 and provided the following reasons for doing so:

"Since the subject injury, he said his concentration is "terrible", and he has not been able to read much and he forgets what he has read after a couple of pages, as he finds he ruminates a lot.

He was alert. He was able to provide a detailed account of his injuries and function. He was able to sustain his concentration for the duration of the assessment.

As there is no objective impairment, he has mild impairment"

1. The Guidelines provide the following descriptors with respect to Class 2 and Class 3:

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 (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 appellant submits that the Medical Assessor applied the incorrect criteria in finding "there is no objective impairment, he has mild impairment". The appellant submits there is no requirement for objective impairment and the Medical Assessor misdirected himself as to the correct criteria and this has resulted in an understatement of the appellant's impairment with respect to the category. The appellant submits he should have been assessed as Class 3.
2. The respondent submits that the Medical Assessor's assessment was based on his clinical observation of the appellant which must be given greater weight and referring the Appeal Panel to the decision of another appeal panel in Wright v Ngroo Education Incorporated [2022] NSWPICMP 106. The Medical Assessor explained the basis for the assessment being that the appellant had been able to maintain concentration throughout the assessment.
3. The respondent further submitted that there was a presumption that the Medical Assessor had read all of the material that formed the referral and that there is no "glaringly improbable categorisation" or that the Medical Assessor was "unaware of significant factual matters" referencing Wark. Finally the respondent submits that the Medical Assessor applied the "best fit" categorisation and that the assessment of Class 2 was open to him and there is no error.
4. The Medical Assessor has conducted an assessment of the appellant and taken a history of the following:

(a) "His energy has been very low and easily fatigued, and his concentration has been poor";

(b) "Since the subject injury, he said his concentration is "terrible", and he has not been able to read much and he forgets what he has read after a couple of pages, as he finds he ruminates a lot";

(c) "Prior to the subject injury, he said his concentration was good, and he would be able to read up to 2 hours", and

(d) He was alert. He was able to provide a detailed account of his injuries and function. He was able to sustain his concentration for the duration of the assessment.

1. In providing reasons for assessing Class 2 the Medical Assessor records:

"Since the subject injury, he said his concentration is "terrible", and he has not been able to read much and he forgets what he has read after a couple of pages, as he finds he ruminates a lot.

He was alert. He was able to provide a detailed account of his injuries and function. He was able to sustain his concentration for the duration of the assessment.

As there is no objective impairment, he has mild impairment"

1. As submitted by the appellant, the Guidelines with respect to the assessment of psychiatric and psychological disorders do not require evidence of "objective impairment". The Appeal Panel accepts that the Medical Assessor has misdirected himself in this regard in applying the relevant criteria in assessing "concentration, persistence and pace" and as such the Medical Assessment Certificate contains error.
2. Having found error, the Appeal Panel considers there is sufficient material to correct the error without further examination.
3. The Appeal Panel accepts that primacy must be given to the clinical assessment and judgment of the Medical Assessor. However this must be within the context of the history taken and the material available to the Medical Assessor.
4. The Medical Assessor has taken a history of a significant reduction in the appellant's concentration since the injury. He took a history that the appellant could previously read for two hours and now he is not able to read much and forgets what he has read after a couple of pages.
5. The Medical Assessor in assessing Class 2 places significant weight on the ability of the appellant to concentrate through the assessment. The Appeal Panel notes however that this is in the context of a consultation with a psychiatrist with professional skills in developing and maintaining rapport. The Appeal Panel is also unaware as to the length of the assessment.
6. A classification of Class 2 would mean the appellant is able to undertake a basic retaining course or standard course at a slower pace and focus on intellectually demanding tasks for periods of up to 30 minutes before feeling fatigue.
7. On this history taken by the Medical Assessor, prior to the injury the appellant was able to read for up to two hours. He is now unable to read more than two pages without forgetting what he has read.
8. A classification of Class 3 involves being unable to read more than newspaper articles, difficulty following complex instructions and less relevant activities such as repairs to motor vehicles, typing long documents and sewing and knitting.
9. Having explained why the Appeal Panel does not consider the clinical interview to be a reliable example of the appellant's concentration and the history taken by the Medical Assessor as to the appellant's marked reduction in concentration while reading, the Panel considers that a classification of Class 3 is most appropriate. The Appeal Panel notes this is consistent with the assessment of Dr Khan and Dr Verma.

1. The Medical Assessor assessed the appellant as Class 4 and provided the following reasons for doing so:

"Mr Cunningham said that he is feeling "scared to return to work." He said that he is being asked to do "menial tasks like photocopying and hence he is sceptical about returning to work."

1. The Guidelines provide the following descriptors with respect to Class 4 and Class 5:

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.

Class 5 - totally impaired: cannot work at all.

1. The appellant submits that the Medical Assessor does not suggest the appellant has any capacity for work and does not provide any reasons why he assessed Class 4 rather than 5 in circumstances where the appellant cannot work and has not worked since ceasing work as a result of his injury.
2. The appellant submits that Class 4 is not appropriate. The appellant is unable to work and therefore the appropriate classification is Class 5.
3. The respondent submits that the Medical Assessor was not required to follow the prior assessments of Dr Khan and Dr Verma and is required to undertake his own assessment. The respondent submits that the Medical Assessor did so and based on the appellant's presentation, the history, objective findings and documentary evidence the Medical Assessor provided a classification of Class 4 rather than Class 5.
4. The respondent submitted that an inference can be drawn from the mild assessments in other categories that the appellant had some capacity for work and that the classification of Class 4 was open to the Medical Assessor.
5. The Medical Assessor has conducted an assessment of the appellant and taken a history of the following which formed the basis for the Class 4 assessment:

"Since the subject injury, he has not been able to return to work. He said that the current barriers are his anxiety and worries about his repercussions, about being singled out at work and being harassed at work and being ostracised and assigned menial tasks. He said he is currently on 80% of his previous wage.

He has severe impairment, as he has significant anxious avoidant behaviour and attitudes towards returning to work."

1. A Medical Assessor is required to give adequate reasons for his assessment. In the High Court decision of Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 the plurality stated at [47]:

".....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. The reasons provided by the Medical Assessor for assessing a Class 4 with respect to employability are insufficient to expose the path of reasoning leading to the assessment amounting to error. The Appeal Panel considers there is sufficient material before the Appeal Panel to correct the error without requiring re-examination.
2. The Medical Assessor takes a history that the appellant has not returned to work since his injury and that he is prevented from doing so due to significant anxious avoidant behaviour and attitudes towards returning to work.
3. The Appeal Panel accepts the appellant's submission which is not countered by the respondent that the reference to 80% of his prior wage is a reference to payments of weekly compensation for total incapacity in accordance with ss 37 or 38 of the Workers Compensation Act 1987. That is, the respondent's insurer is making payments to the appellant on the basis of total incapacity for work.
4. Dr Verma and Dr Khan both assessed the applicant has having no capacity for work.
5. The Appeal Panel notes that the appellant's general practitioner, Dr Punjabi, provided a certificate of capacity on 14 February 2025 certifying the appellant as having some capacity for work from 10 February 2025. There is no evidence however that this certification has manifested itself in any demonstrated capacity in circumstances where the appellant has not worked since 2021. As such, the Appeal Panel is satisfied the appellant is totally impaired for employment and a Class 5 classification is appropriate.
6. No complaint was made on appeal with respect to the Medical Assessor's assessment of social and recreational activities (Class 2), travel (Class 2) or social functioning (Class 2). The Appeal Panel found no error with the Medical Assessor's assessment of self care and personal hygiene (Class 2). For the reasons set out above the Appeal Panel found error and reassessed concentration, persistence and pace as Class 3 and employability as Class 5.
7. The individual category scores are therefore 2, 2, 2, 2, 3, 5 and the median class remains Class 2. The aggregate score is 16. In accordance with table 11.7 of the Guidelines this converts to a whole person impairment percentage of 9%.
8. No complaint was made on appeal with respect to a deduction of one tenth in accordance with s 323 of the 1998 Act on account of pre-existing condition or abnormality nor with the 1% uplift on account of treatment effects.
9. Nine per cent less one tenth or 0.9% is 8.1% rounded to 8%. Allowing an additional 1% for the effects of treatment the Appeal Panel has assessed the appellant's whole person impairment at 9%.
10. For these reasons, the Appeal Panel has determined that the MAC issued on 14 July 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 Yu Tang Shen and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Chapter, page and paragraph number in NSW workers compensation guidelines

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

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

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

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

[1] [2022] NSWSC 929.