1. On 11 November 2025 Datacom Systems (Au) Pty Ltd (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 15 October 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. On 26 November 2025 the respondent to the appeal, the worker, Guy Elvy, lodged a Notice of Opposition to the Appeal Against the Decision of the Medical Assessor.
4. On 1 December 2025 the President's Delegate was satisfied that, on the face of the application, at least one ground of appeal has been made out.
5. The Appeal Panel conducted a review of the original medical assessment but limited to the grounds) of appeal on which the appeal is made.
6. 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.
7. 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 Medical Assessor has taken a detailed history in part 4 of this MAC with the background details set out below.
2. Mr Elvy is aged 39. He was employed as the operations manager with the appellant and developed a psychological injury in the course of that employment. The deemed date of injury is 26 March 2018 and since that time he has been treated by several psychologists. Since 2019 he has been treated by Dr Tsang, psychiatrist and has been prescribed medications including Lamotrigine, Mirtazapine, Desvenlafaxine and previously Venlafaxine and Zoloft. He had a three-week admission to St John of God Hospital in 2022 and completed an outpatient program in 2023. At present he sees his general practitioner every month, his psychologist every two weeks and Dr Tsang every six months.
3. He lives with his brother-in-law's father. After his psychological injury his relationship with his partner broke down. He informed the Medical Assessor he has been in contact with his siblings once a month or every two months, and is in contact with his father with a similar frequency although it is also recorded he has been seeing them very rarely. He has caught up with friends about a month prior, having lunch at someone's house, which was the first time in 2025.
4. The Medical Assessor found he has persistent depressive disorder. He also found that Mr Elvy had previously suffered from a depressive disorder which was quiescent until his work injury. However, the Medical Assessor found the prior depressive disorder can be seen to have recurred as a consequence of the injury and it contributes the current psychiatric impairment but the extent of which is difficult or costly to determine so a 1/10th deduction was made under s 323 of the 1998 Act.

1. On 22 December 2025 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 at [39] of its submission states there is no need for reassessment and that the matter can be determined on the papers. The respondent has not sought a re-examination by the Appeal Panel.
3. 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 there is sufficient material before the Appeal Panel to determine the appeal.

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

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

1. Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
2. In summary, the appellant submits that the Medical Assessor's assessment was made on the basis of incorrect criteria and contains a demonstrable error. It identifies four areas concerning which it submits there is error, as follows:

(a) failure to properly assess the evidence and make findings in respect of the Psychiatric Impairment Rating Scale (PIRS) scale of social functioning and erroneously assigned the wrong class;

(b) failure to properly assess the evidence and make findings in respect of employability and erroneously assigned the wrong class;

(c) error in assessing 1% whole person impairment (WPI) for the effects of treatment and

(d) erred in failing to consider the effects of co-morbid features on the worker's overall impairment.

1. The details of these grounds of appeal are discussed below.
2. In summary, the appellant seeks for the Appeal Panel to assign class 3 for social functioning and for employability, remove the additional 1% WPI for the treatment effects and make a further s 323 deduction for the co-morbidity.
3. Mr Elvy rejects the appellant's submissions and submits the Medical Assessor has not made any error and no ground of appeal has been made out and the appeal should be dismissed.

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.

1. Table 11.4 of the Guidelines have the following descriptors for this scale:

"(a) 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.

(b) 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. Medical Assessor Shen assessed class 4 to the PIRS scale relating to social functioning giving the following reasons:

"...after the subject injury, he said his relationship with his partner broke down, as a result of his changes related to the work injury. He said he has been in contact with his siblings once a month, or every two months. He said he would be in contact with his father to a similar frequency. He said he has been seeing them very rarely ... Since the subject injury, he said he has caught up with friends a month or so ago, the first time this year, and he had lunch at someone's house. He happened to walk out of his driveway to take photos of an air show at Richmond recently. He has not been engaging in any other social events or activities. As his relationship with his partner broke down, and he has become distant from friends and family, he has severe impairment."

1. The appellant submits that in his history Medical Assessor Shen recorded the history that Mr Elvy's relationship with his partner broke down and his contact with his siblings and father had become infrequent to the extent where he had contact with them once a month or every two months. He also stated that Mr Elvy's interaction with his friends had reduced with him stating he had last caught up with his friends for lunch a month before the examination, being the first social engagement of 2025.
2. The appellant submits that this evidence is consistent with class 3 but not class 4. The appellant argues that while the descriptors for class 4 make specific reference to the ending of a pre-existing relationship, but Mr Elvy has not said that there has been a complete breakdown, or there is strain, in relationships with his family and friends and that he has not been able to maintain relationships in that regard. The appellant also submits that Mr Elvy has not given evidence that he has a strained relationship with his housemate, being his brother-in-law's father.
3. The appellant submits that Dr Nagesh and Dr Bisht assigned a class 3 and 2 to this scale, respectively.
4. In summary, the appellant submits that assigning class 4 for the PIRS scale of social functioning amounts to a demonstrable error and application of incorrect criteria "because it is at odds with the PIRS scale when read in conjunction with the balance of the evidence."
5. Mr Elvy's submission is that the Medical Assessor has not made an error in relation to his assessment of social functioning. He submits that appellant's submission that the relationship with his partner has not completely broken down is contrary to Dr Bisht and the Medical Assessor recording that he is divorced from his wife. Furthermore, it is argued that the history to the Medical Assessor is that he has only seen his family and friends once over the last two years. Mr Elvy submits that class 4 is the correct assessment.
6. The Appeal Panel finds that the Medical Assessor has erred in assessing at class 4 and that class 3 is the appropriate class because while his marriage relationship has broken down there is a need to consider all of his relationships. The Appeal Panel finds that Mr Elvy has been able to sustain relationships with his father and family, even if they are strained and distant. Also, there is evidence that he has maintained relationships with friends such that he was invited to lunch with them with recently.

1. Table 11.6 of the PIRS scale for employability has the following classes relevant in this matter:

"(a) 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).

(b) 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.

(c) Class 5: Totally impaired: Cannot work at all."

1. The appellant submits the Medical Assessor erroneously assigned class 5 when the evidence only supports class 3 or 4.
2. Medical Assessor Shen's reasons for assessing employability at class 5 is that since the injury Mr Elvy has not been able to return to work, studying or volunteering.
3. The appellant submits that Dr Bisht in his reports in mid-2025 referred to the WorkCover certificate which stated Mr Elvy had a capacity for employment for 15 hours per week and Dr Bisht says he "has been actively looking for employment opportunities (albeit with limited success)". The appellant submits that it was on this basis that Dr Bisht assessed a class 3, stating the applicant could work for five hours a day, three days a week if he was to adhere to various restrictions. It was further submitted that Dr Bisht found Mr Elvy could undertake 15 hours a week in employment as a technical writer which was a vocation identified in the vocational assessment report of 4 December 2024 and endorsed by the respondent workers general practitioner, Dr Azzi, on 29 November 2024.
4. The appellant also relies upon the fact that Mr Elvy has not presented Certificates of Capacity specifically stating he has no current work capacity for any employment.
5. Attention is drawn to Mr Elvy's statement at paragraph 42 (ARD 4), wherein he notes he continues to look for work "which is not stressful" (albeit qualifying same on the basis he remains significantly impaired).
6. In addition, the appellant in support of this ground of appeal in relation to the assessment of employment refers at [19(c)] of its submissions to Medical Assessor's findings in relation to the PIRS scale of Concentration, Persistence and Pace assessing at class 2. The Appeal Panel does not accept this submission as it finds this would involve applying incorrect criteria. "Employability" is to be assessed separately to the scale "Concentration, Persistence and Pace" and one needs to be mindful not to conflate the categories of functional impairment as discussed in Ballas v Department of Education [2020] NSWCA 86 at [94].
7. Mr Elvy submits that the history taken by Dr Bisht is not correct because in his statement at [42] he said that while he is looking for less stressful work, he feels totally incapacitated for work, not that he could do some work. It is submitted that the Medical Assessor took the history that he could not work and so class 5 for employability is correct. He is supported by the evidence of the treating doctors including Dr Levinson, Harison, Smith and Alexander.
8. The Appeal Panel finds that the Medical Assessor did not make a demonstrable error, nor did he apply incorrect criteria in assessing employability at class 5. The Appeal Panel finds that the evidence discloses Mr Elvy has become more isolated and dislocated from employment, and he does nothing of a vocational nature that is remunerative of a day to day basis. The Appeal Panel finds that "seeking work" is not in and of itself indicative of capacity to work. The Appeal Panel finds that the treating medical evidence referred to in Mr Elvy's submission supports the approach taken by the Medical Assessor that he should be placed in class 5 for employability.

1. Clause 1.32 of the Guidelines reads as follows:

"Where the effective long-term treatment of an illness or injury results in apparent substantial or total elimination of the claimant's permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief."

1. The Medical Assessor assessed 1% WPI for the effects of treatment finding that "treatment has affected an improvement in self-care".
2. The appellant submits that "the effects of long-term treatment has not, in fact, resulted in 'substantial or total elimination of the claimant's permanent impairment' (Zoric v Secretary, Dept of Education [2024] NSWSC 131".
3. The appellant submits that neither Dr Nagesh nor Dr Bisht gave an additional percentage for the effects of treatment. It also argues that the Medical Assessor only refers to the effects of treatment in relation to one of the PIRS categories, that of self-care. It queries if this is permissible and also argues that the Medical Assessor has provided a dearth of reasoning for this aspect of his assessment.
4. Mr Elvy submits that clause 1.32 of the Guidelines and the decision in Zoric do not preclude an allowance for the effects of treatment where only one PIRS scale is affected. He submits 1% WPI is an appropriate allowance.
5. The Appeal Panel finds that the Medical Assessor did apply incorrect criteria in relation to awarding an additional 1% WPI for the effects of treatment because Zoric, as quoted above, refers for the need for "substantial or total elimination" of permanent impairment and the Appeal Panel finds this has not occurred in Mr Elvy's case. The worker records on his statement the ongoing symptoms and impairment despite treatment. The minimal recorded improvements of "being more able to get himself out of bed, his overall hygiene has improved - taking care of himself more consistently and starting to cook more" have regressed recently. This minimal improvement in post injury impairment is limited to conduct in only one of the six categories domain of impairment rated by the PIRS. There is no evidence of any improvement in any other domain rated by the PIRS nor any other aspects of his functioning. Therefore, this ground of appeal is successful, and the Appeal Panel finds there should be no WPI awarded for the effects of treatment.

1. Clause 11.9 of the Guidelines in respect to 'co-morbidity' states:

"Consider comorbid features (eg bi-polar disorder, personality disorder, substance abuse) and determine whether they are directly linked to the work-related injury, or whether they were pre­existing or unrelated conditions."

1. The appellant submits the Medical Assessor has made a demonstrable error in not considering a further deduction under s 323 of the 1998 Act in relation to co-morbidity. It refers to Dr Bisht's history and Mr Elvy's statement [38] that his migraines have worsened since the onset of his psychiatric condition. At [33] of its submission the appellant refers to other evidence about Mr Elvy suffering migraines. The appellant submits that the Medical Assessor needed to address why he did not believe that there should have been a deduction for co-morbidity as was done by Dr Bisht.
2. Mr Elvy submits that both Dr Bisht and the Medical Assessor made a s 323 deduction on the basis of migraines and not in relation to any other condition. He submits that Dr Smith referred to the past psychiatric history of bipolar II mood disorder but said it was in full remission. It is submitted that the Medical Assessor made the same deduction under s 323 as Dr Bisht and there is no need for the Medical Assessor to have explained his reasons for so doing further.
3. The Appeal Panel considers that this ground of appeal is misconceived. Worsening of migraines is a physical condition and not a co-morbidity. The examples set out in Clause 11.9 refer to psychological conditions that may be considered a "co-morbidity". The Appeal Panel finds that the Medical Assessor did not make any error in assessing the s 323 deduction and there is no basis to make a further deduction as argued referring to "co-morbidity" for worsening migraines.
4. The scores are self-care and personal hygiene 2, social and recreational activities 3, travel 2, social functioning 3, concentration, persistence and pace 2, employability 5. Making a Median of 3 and an Aggregate Score Impairment of 17 which equates to 19% WPI. A s 323 deduction of 1/10th is made and no adjustment for the effects of treatment. The combined % WPI is 17%.
5. For these reasons, the Appeal Panel has determined that the MAC issued on 15 October 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)

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.