1. On 29 July 2025 the appellant, Richard Alan Griffiths, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Christopher Canaris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 2 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):
   • 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 June 2025 this matter was referred to the Medical Assessor for a WPI assessment of a psychological/psychiatric disorder that occurred on 5 June 2023.
2. Mr Griffiths was employed as a Detective Senior Constable with the New South Wales Police Force (respondent) when he ceased work. He commenced employment in August of 2007.
3. In his statement of 16 April 2025[1] he described the traumatic scenes he witnessed that is the lot of a first responder. These included homicides, suicides, fatal motor vehicle accidents, recoveries of deceased persons and similar confronting situations.
4. Mr Griffiths was aware that his mental state was becoming affected from about 2011 but he worked on until he saw a general practitioner (GP) in about 2021 when he took leave.
5. Around 5 June 2023, the nominated date of injury, he was assaulted by a domestic violence offender and injured his shoulder.
6. He has not returned to work since that time and is under the care of a psychiatrist and a psychologist.
7. He was assessed at 7% 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 in the MAC.

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 which have been considered below 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.

1. In taking Mr Griffiths' history, the Medical Assessor said:[2]

"[Mr Griffiths] has been drinking up to a bottle to a bottle and a half of wine plus a couple of scotches daily but has 'cut down a lot' and 'I actually had 7 days without alcohol about 3 weeks ago'. However, he would still drink around 4 standard drinks a day.

He has been prescribed medication 'but I'm a bit adverse to taking medication which I know is silly and I thought I could handle where I was at that stage... '. He remains off medication saying, 'I believe I am doing OK'.

I asked him how he was currently faring. His mood is 'obviously a bit anxious today in doing this but I believe that is normal' and has been contending with other issues such as his daughter needing brain surgery for a bleed on the brain. He is often busy and 'when I am busy, my mood improves'. He would 'sometimes get very anxious' especially if he goes to an unfamiliar locale 'and I do my breathing exercises which helps'."

1. The Medical Assessor noted when discussing Mr Griffiths' general health:

"He does not smoke - he stopped 24 years ago. He does not use drugs. He places the pokies when he is at the club."

1. In considering Mr Griffiths' social and daily living activities, the Medical Assessor said:[3]

"He 'used to be an avid fisherman and I played golf - I haven't done those things but I'm hoping to be getting back to that - my son lives on the South Coast and he is trying to motivate me to get back to fishing... I'm working with Mario [his psychologist] on that - my other son is in Sydney and he is trying to get me back to golf, but my shoulder injury is an issue there - I'm afraid of reinjuring that.' He 'might go back to the club' usually motivated by his wife 'but I don't socialise with people - I find it harder to make new acquaintances - we moved down here around 2022...' He might venture out socially '3 or 4 times a week' saying, 'I can't expect [my wife] to just sit there' though he would usually not go out on his own unless it is to his appointments. He is hoping at some time in the future to undertake a caravan trip with his wife.

He is prompted by his wife to shower and change his clothes and would do so every 3 days or thereabouts. He would brush his teeth daily. His wife also prompts him to take his medication. He would 'sometimes skip breakfast'. Overall, his diet is 'normally good', and his wife prepares all the meals. She freezes meals for him which she has to heat up when she is away. He has gained weight which you tributes to being less physically active.

He is appreciative of his wife's support though 'obviously we have our moments - arguments... My family is very supportive... I do find myself becoming short with them sometimes which I never used to...'. There had not been any violence or separations.

He has recently been bought 2 books for Christmas by his daughter and read one of them saying it was 'an easy read'. He managed to stay with the book over the course of a week and could manage to stay with that for 'less than half an hour' at a time but then come back to it. He watches a show from time to time and would have TV on by way of background and can manage a movie right through if he finds it interesting as well as watching football depending on whether the game is interesting. He enjoys History Channel and like documentaries.

He has 'recently renovated our kitchen and I was really motivated' but 'prior to that my motivation was really low...'. He 'took my time' and took around 4 weeks 'and because it was no rush, I didn't put any pressure on myself - I had to be mindful of my shoulder... You come across some hurdles when things don't go according to plan - I took a breath - reset... I managed that well'. He is financially secure relying on income protection and is free of debt. He also has good superannuation and is 'well in front of the curve on that'. He would not be interested in any other line of work saying that he misses the interaction he had with colleagues as an officer. He understands that his fear of getting injured was realistic. He is thinking of involving himself in Men's Shed or undertaking some volunteer work."

1. The Medical Assessor recorded the following findings on mental state examination:

"I interviewed the claimant by Microsoft Teams. He was at his home in Sanctuary Point. His wife was also at home, but he had privacy. A good audiovisual connection was established. I saw his head and shoulders. He presented as a bespectacled clean-shaven man of appearance consistent with his stated age with short cut grey hair. He provided the history documented above. His demeanour was pleasant and his manner cooperative. His affect was warm and reactive. I found no evidence of psychosis or of cognitive impairment."

1. The Medical Assessor summarised Mr Griffiths' condition at [7] of the MAC, saying:

"His overall presentation is consistent with a diagnosis of posttraumatic stress disorder with comorbid major depressive disorder and alcohol use disorder. The latter 2 conditions are in partial remission."

1. At [10c] of the MAC, the Medical Assessor considered the opinions of the expert medical advisors for each party. He said:

"I noted the report of Dr Abdul W Khan, IME psychiatrist, dated 9 July 2024. Dr Khan notes the claimant's trauma exposure, the incident precipitating his departure from work, symptoms, and history of treatment making a diagnosis of posttraumatic stress disorder with comorbid major depressive disorder and alcohol use disorder. He regarded him as unfit for work and to have a guarded prognosis. He considered he had reached maximum medical improvement and assessed him at 22% whole person impairment rating him as Class 2 for travel in social functioning, Class 3 for self-care and personal hygiene, social and recreational activities, and concentration, persistence, and pace, and Class 5 for employability. There was no deduction for pre-existing conditions and no adjustment for treatment effects.

Comment: He has improved significantly since his assessment with Dr Khan. His improvement may reflect his considerable reduction in alcohol consumption which is to his credit.

I noted the report of Dr Peter Young, IME psychiatrist, dated 21 November 2024. Dr Young traversed similar ground to Dr Khan and similarly diagnosed posttraumatic stress disorder, major depressive disorder, and alcohol use disorder. He made an identical of whole person impairment as Dr Khan but took the view that the claimant had not reached maximum medical improvement as he considered that significant improvement was possible with appropriate treatment.

Comment: as per my earlier comments, he has improved significantly since his assessment with Dr Young he has also that he has reached maximum medical improvement."

1. Mr Griffiths chose to approach his submissions in an original format. He relied on four separate grounds and indicated how they affected some of the six categories in the Psychiatric Impairment Rating Scale (PIRS). To facilitate his submissions, we have taken the liberty of emboldening the particular category Mr Griffiths alleged had been affected by these grounds.
2. The four grounds were set out by Mr Griffiths as being:
   • the Medical Assessor failed to take into account relevant considerations;
   • the Medical Assessor failed to provide adequate reasons;
   • the Medical Assessor did not correctly apply the PIRS, and
   • the Medical Assessor failed to afford the appellant procedural fairness.

1. Mr Griffiths said that the alcohol consumption recorded by the Medical Assessor was a relevant consideration in the category of self-care and personal hygiene within the PIRS, and that error had occurred because the Medical Assessor had failed to mention it in assessing a class 2 rating.
2. We were referred to Lo v Chief Commissioner of State Revenue[4] as to the meaning of the term "relevant consideration". In failing to mention the alcohol consumption, the Medical Assessor had incorrectly applied the criteria set out by Chapter 11.12 of the Guides, Mr Griffiths contended, citing Vegan as to the accepted definition of the "incorrect criteria" ground of appeal.
3. Mr Griffiths submitted that the Medical Assessor, having diagnosed alcohol use disorder, had erred by not mentioning Mr Griffiths' consumption of four standard drinks a day, which failure was, it was argued, incongruous with this category. Mr Griffiths also referred to his statement of 16 April 2025 that his alcohol use was still problematic.
4. The Medical Assessor had accordingly not taken into account a relevant consideration, Mr Griffiths said.

Ground two: failure to provide adequate reasons

1. This ground concerned a generic assertion regarding the Medical Assessor's failure to consider some documents he mentioned at [10c], and a specific claim that he had failed to give adequate reasons for his class 4 rating in the PIRS category of employability.
2. We were referred to Vegan as to the legal standard expected of a Medical Assessor's reasons.
3. Mr Griffiths submitted that the Medical Assessor's comment that he "noted the claimant's statement documentation and clinical records" was not sufficient to give any analysis or to explain how those documents were considered. There was, he said, no active intellectual process on the face of the record, citing Singh v Minister for Immigration and Multicultural Affairs.[5]
4. Mr Griffiths referred to the category of employability and the finding by the Medical Assessor.
5. We were referred to the often-cited High Court authority of Wingfoot[6] regarding the necessity for a Medical Assessor to set out his path of reasoning. This path was not clear, it was submitted.

Ground three: the Medical Assessor did not correctly apply the PIRS

1. We referred again to Vegan regarding the submission that the Medical Assessor did not correctly apply the Guides.
2. We were referred also to Tagg v Racing New South Wales[7] as an example.
3. With regard to the category of self-care and personal hygiene Mr Griffiths submitted that it was difficult to reconcile the class 2 rating where both experts on each side of the record had certified a class 3 rating.
4. The Medical Assessor, it was submitted, did not appear did not "appear to grapple with this evidence at all."
5. It was further submitted that by addressing the input of Mrs Griffiths, the Medical Assessor had diverted his focus from Mr Griffiths. The relevance of the observation that Mrs Griffiths would prepare all of Mr Griffiths' meals was said to be not clear.
6. Mr Griffiths reiterated that the alcohol consumption aspect of this category had not been considered at all.
7. With regard to social and recreational activities category it was submitted that the reasons given in the PIRS were at odds with the history in the body of the MAC, where Mr Griffiths would play the pokies when he was at the club. It was asserted that this was "an isolating activity".
8. On a fair interpretation, a class 3 rating should have been given in this in this category, Mr Griffiths said.
9. With regard to the category of concentration persistence and pace, we were referred to Jenkins v Ambulance Service of New South Wales[8] which we will consider below in a different context, but which was cited by Mr Griffiths as authority for the uncontroversial principle that a Medical Assessor is required to consider the whole of the evidence before him, including the history taken from the claimant himself.
10. The Medical Assessor did not "grapple with" the length of the books that Mr Griffiths was engaging with, nor did he give any detail about how long Mr Griffiths would watch shows on television for. It was also argued that the Medical Assessor "appears to ignore" a report dated 14 January 2025 from Dr Thazhathaveetil, a psychiatrist who said that Mr Griffiths continued to struggle with memory and concentration.
11. This ground also affected the PIRS category of employability, it was argued.
12. Mr Griffiths referred to the fact that both expert assessors on each side of the record assessed him as being class 5 when the Medical Assessor had assessed a class 4.
13. We were referred again to the report of Dr Thazhathaveetil's opinion that Mr Griffiths was permanently disabled to perform operational and non-operational duties with the respondent. We were also referred to certificates issued by Dr Prasad, Mr Griffiths GP, that is to Griffiths had no work capacity between 8 February 2025 and 7 May 2025.
14. It followed that the assessment was glaringly improbable, Mr Griffiths argued, citing Ferguson v State of New South Wales,[9] an authority which we again will consider below.

Ground 4 - the Medical Assessor failed to afford the appellant procedural fairness

1. Mr Griffiths submitted that he had not been afforded procedural fairness.
2. We referred to Kioa v West[10] and Rodger v De Gelder[11] regarding the concept of procedural fairness.
3. Mr Griffiths said that he was "perplexed" at the class 2 rating he had been given for the social and recreational activities category of the PIRS. He referred to those parts of the Medical Assessor's reasons that were concerned with his intentions regarding future fishing, future golf, and a future caravan trip with his wife, and he also referred to his actual activities as recorded by the Medical Assessor.
4. Mr Griffiths submitted that the Medical Assessor appeared to either ignore or downplay the severity of Mr Griffiths' difficulty in this category. He submitted:

"The MA adroitly tempers the appellant's difficulties with social and recreational activities by failing to expressly acknowledge the appellant's difficulties in doing so."

1. Mr Griffiths submitted that the Medical Assessor "appears to ignore" the reasoning of Dr Young in a report dated 21 November 2024, and extracted the reasons for the class 3 rating Dr Young gave. Mr Griffiths also extracted the reasons given for a class 3 rating by Dr Khan in his report of 9 July 2024.
2. "The MA does not grapple with this available evidence," Mr Griffiths said. Thus, as we understood the submission, the Medical Assessor did not give him "a fair procedure."

1. After making some general submissions as to the nature of the grounds of appeal pleaded, namely the application of incorrect criteria, and demonstrable error, the respondent replied to the specific issues raised by Mr Griffiths.

Ground 1: the Medical Assessor failed to take in to account relevant considerations

1. The respondent referred to State of New South Wales (NSW Department of Education) v Kaur[12] and its application of the High Court dicta in Wingfoot in submitting that the Medical Assessor had articulated his actual path of reasoning.
2. The Medical Assessor had explained why he differed from the opinions of Dr Khan and Dr Young, in that there had been a clear improvement in Mr Griffiths' condition since those experts had assessed him, the respondent submitted. The same logic applied to the reliance by Mr Griffiths on his statement, as his alcohol misuse syndrome had improved to the point where was in partial remission since his statement had been made. The four standard drinks to which Mr Griffiths had reduced his intake were the equivalent of 2.6 of 150 ml glasses of standard wine, or between 2 and 1.6 pints of standard lager.
3. The respondent submitted that Mr Griffiths did not identify the error alleged.

Ground 2: the Medical Assessor failed to provide adequate reasons

1. The complaint that the Medical Assessor had simply noted some of the documentation before him, the respondent submitted, was not accompanied by submissions as to how further analysis would have change the overall assessment. There was no requirement for a Medical Assessor to record and analysis of every piece of material that was referred to him.
2. With regard to the submission that there had been a failure to provide adequate reasons in the employability category, the respondent referred to the reasons given for the class 2 rating, being the substantial improvement in symptoms that the Medical Assessor recorded, which those reasons confirmed.

Ground 3: the Medical Assessor did not correctly apply the PIRS

1. The respondent submitted in relation to the criticism of the class 2 rating in the self-care and personal hygiene category that the involvement of Mrs Griffiths was a relevant factor, bearing in mind that the descriptors were concerned with preparation of meals and/or reliance on takeaway food. Further, the respondent submitted that Mr Griffiths had not explained why a class 3 rating should have been given. It again submitted that the Medical Assessor had acknowledged the higher rating given by the medical experts before him, but had explained that his assessment was different because of Mr Griffiths' improvement. Moreover, the respondent submitted, the class 2 rating was not inconsistent with the opinion of Dr Young, who had recorded that there were prospects of improvement when he assessed Mr Griffiths on 21 November 2024, which was illustrated by Dr Young's finding that maximum medical improvement had not then been reached.
2. With regards to the submission regarding the social and recreational activities category, the respondent interrogated the phrase "isolating activity" as being appropriate to Mr Griffiths' playing the poker machines, submitting that the evidence showed that Mr Griffiths was accompanied by his wife when he went to the club and the inferences available did not identify that activity is being in isolation.
3. The respondent also addressed the submission that error had occurred in the classification of the PIRS category of concentration, persistence and pace. It submitted that the activity described by Mr Griffiths of reading books for up to 30 minutes at a time, watching programs on television that caught his attention such as history documentaries and sport were all consistent with a class 2 rating.

Ground 4: the Medical Assessor failed to afford the appellant procedural fairness

1. The respondent submitted that Mr Griffiths was largely repeating what he had already submitted. It submitted that Mr Griffiths had misconstrued the findings of Dr Young. It submitted further that the Medical Assessor had relied on direct quotes of what Mr Griffiths had told him.

1. The PIRS is established as the rating system for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11.11 sets out six categories of behaviour to be considered when rating the behavioural consequences of a psychiatric disorder. Each category is 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[13] 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.[14]
2. The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[15] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the Approved Medical Specialist 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[16]. 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,[17] 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 Approved Medical Specialist 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[18] 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. Although Mr Griffiths approached his submissions as described above, in order to succeed it was necessary for him to persuade the Review Panel that one or more of the impugned categories had been misclassified. We will therefore, with respect, consider his submissions by reference to each of those categories.

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

"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 above descriptors in this category do not lend themselves to a discussion about a claimant's alcohol consumption. It can be seen that the focus of the self-care and personal hygiene is to identify the behavioural changes around nutrition and appearance that have been caused by the psychological disorder, rather than the nature of the disorder itself.
2. The Medical Assessor reported on Mr Griffiths' presentation in his findings on physical examination. He found that Mr Griffiths presented as a "bespectacled, clean shaven man of appearance consistent with his stated age, with short cut grey hair." The reasons given for the class 2 rating in the Table 11.8 Rating Form were:

"He is prompted by his wife to shower and change his clothes and would do so every three days or thereabouts. He would brush his teeth daily. His wife also prompts and to take his medication. He would 'sometimes skip breakfast'. Overall, his diet is 'normally good', and his wife prepares all the meals. She freezes meals for him which he has to heat up when she is away. He has gained weight which he attributed to being less physically active."

1. Mr Griffiths submitted that the Medical Assessor had fallen into error because the medico-legal expert psychiatrists, Dr Abdul Khan, retained by Mr Griffiths, and Dr Peter Young, retained by the respondent. both agreed that a class 3 rating was appropriate.
2. There are some difficulties in the way of that submission. Firstly, it is not a function of a Medical Assessor to opine on the correctness or otherwise of any of other opinions before him. Wingfoot was cited by both parties, and of relevance was the opinion of the plurality at [47]:

"...The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."

1. Secondly, Dr Khan's report was dated 9 July 2024 and Dr Young's report was dated 21 November 2024. The Medical Assessor found that there had been a subsequent improvement in Mr Griffiths' condition, and accordingly those opinions were no longer valid.
2. Thirdly, the Medical Assessor acknowledged those opinions, and explained why he differed in the "comment" section when he summarised each of them.
3. Fourthly, Dr Young's class 3 assessment was a preliminary assessment, as he found that "significant improvement is possible."[19] His opinion was that maximum medical improvement had not yet occurred.
4. A further issue raised by Mr Griffiths was that the Medical Assessor, by indicating that Mr Griffiths wife would prepare the meals, raised an irrelevant consideration. It can be seen that meal preparation is relevant to a class 3 rating. We do not however consider in the circumstances that a class 3 rating was warranted. The Medical Assessor acknowledged that Mr Griffiths did not prepare his own meals, but in his clinical judgement did not regard it as determinative.
5. Accordingly, this ground fails.

1. The relevant descriptors for this category are to be found at Table 11.2 of the Guides:

"Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: regularly participates in social activities that are age, sex and culturally appropriate. May belong to clubs or associations and is actively involved with these.

Class 2 Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team).

Class 3 Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn."

1. The class 2 rating given by the Medical Assessor in the Table 11.8 Rating Form repeated his earlier findings:

"He 'used to be an avid fisherman and I played golf - I haven't done those things but I'm hoping to be getting back to that - my son lives on the South Coast and he is trying to motivate me to get back to fishing... I'm working with Mario [his psychologist] on that - my other son is in Sydney and he is trying to get me back to golf, but my shoulder injury is an issue there - I'm afraid of reinjuring that.' He 'might go back to the club' usually motivated by his wife 'but I don't socialise with people - I find it harder to make new acquaintances - we moved down here around 2022...' He might venture out socially '3 or 4 times a week' saying, 'I can't expect [my wife] to just sit there' though he would usually not go out on his own unless it is to his appointments. He is hoping at some time in the future to undertake a caravan trip with his wife."

1. The first challenge to this classification was that there was an inconsistency in the evidence, and either a class 3 rating should be substituted, or there be a re-examination. This inconsistency was said to be because when Mr Griffiths went to the club, he would "play the pokies." It was submitted that this activity was "an isolating activity." We were uncertain as to the thrust of this submission. There has been conflicting authority as to whether playing poker machines may or may not be considered as a recreational activity,[20] but in any event this activity was not mentioned by the Medical Assessor in giving his reasons for the classification. Whether Mr Griffiths played the poker machines when he was at the club with his wife was not as significant as the fact that he attended the club three or four times a week, which it is consistent with a class 2 rating of a person participating in an activity which is age, sex and culturally appropriate.
2. However, Mr Griffiths also submitted that many of the above reasons were not relevant, as they were expressions of future intentions. On this issue, we agree. Chapter 11.11 requires a Medical Assessor to assess the behavioural consequences of a claimant's psychiatric disorder. Expressions of future intent are not social or recreational activity.
3. The detail included that one of Mr Griffiths' sons lived on the South Coast and was trying to motivate him to go fishing, as he now lived in Sanctuary Point, which is also on the South Coast. Mr Griffiths was recorded as saying that he was working on that possibility with his psychologist. Further optimism was also reflected in his declared interest in returning to golf, although the physical limitation of his shoulder injury was also relevant to the classification. The Medical Assessor also recorded that Mr Griffiths and his wife were planning a caravan holiday.
4. The fact that the Medical Assessor recorded these matters indicated that in his professional opinion he may have thought there was a clinical relevance in Mr Griffiths' attitude, which informed his decision to give a class 2 rating. The fact that Mr Griffiths is able to go regularly to the club 3 or 4 times a week however is concordant with a class 2 rating.
5. Mr Griffiths further submitted that the Medical Assessor did not take into account his difficulties when he was performing his social activities. It was alleged that the Medical Assessor had expressly failed to acknowledge Mr Griffiths' difficulties when he did perform social and recreational activities. We assume that these submissions were directed at Mr Griffiths' attendance at the club. The Medical Assessor did note that Mr Griffiths found it hard to make new acquaintances, and that part of his motivation was his concern for his wife. However, just as expressions of future intent are not relevant in assessing the rating for this category, so a person's difficulties when performing the activity are also not relevant. Chapter 11.11 requires to the evaluation to be based on whether a person with a particular psychiatric disorder was able to partake in the behaviour described, rather than whether he experienced difficulties in doing so.
6. On balance, the class 2 rating was open to the Medical Assessor, notwithstanding his description of future intent. We note in any event that a class 3 rating of itself in this category would not have enabled Mr Griffiths to reach the 15% threshold.

"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 reasons given for the class 2 rating by the Medical Assessor were:

"He had recently been bought 2 books for Christmas by his daughter and read one of then saying it was 'an easy read'. He managed to stay with the book over the course of a week and could manage to stay with it for 'less than half an hour' at a time but then come back to it. He watches a show from time to time and would have TV on by way of background and can manage a movie right through if he finds it interesting as well as watching football depending on whether the game is interesting. He enjoys History Channel and like documentaries."

1. Mr Griffiths submission that the Medical Assessor had failed to "grapple with" the minutiae of the above detail was unaccompanied by any reference to authority that supported him. The activities described demonstrated that Mr Griffiths was involved in a range of intellectually demanding tasks, from reading a book (to a limit of 30 minutes concentration) to watching various programs on television, including the History Channel and sport. We regard those activities as ample justification for the class 2 rating. This submission was, with respect, an example of an eye too "keenly attuned to the perception of error."[21]
2. The other issue raised by Mr Griffiths was that the Medical Assessor came to a different view from that of Mr Griffiths' treating psychiatrist, Dr Thazhathaveetil. As noted above however, it is not the function of a Medical Assessor to opine on the correctness of the medical opinions before him/her. The Medical Assessor had the advantage of a face-to-face (albeit by video) consultation at a later time than the 14 January 2025 report by Dr Thazhathaveetil, and utilised his medical experience and expertise to reach a different conclusion, which he adequately explained the above reasons. Moreover, Dr Thazhathaveetil did no more in that report than say "[Mr Griffiths] continues to struggle with memory and concentration," without any further comment or explanation, giving that opinion little weight.
3. The class 2 rating is confirmed.

1. The descriptors are set out at Table 11.6 of the Guides:

"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. The reasons given for the class 4 rating by the Medical Assessor were:

"He has 'recently renovated our kitchen and I was really motivated' but 'prior to that my motivation was really low...' He 'took my time' and took around four weeks 'and because it was no rush, I didn't put any pressure on myself - I had to be mindful of my shoulder... You come across some hurdles when things don't go according to plan - I took a breath - reset... I managed that well'. He is financially secure relying on income protection and is free of debt. He also has a good superannuation and is 'well in front of the curve on that'. He would not be interested in any other line of work saying that he misses the interaction is he had with colleagues as an officer. He understands that his fear of getting injured was realistic. He is thinking of involving himself in Men's Shed or undertaking some volunteer work.

Comment**:** There was evidence of some capacity for employment though he very clearly could not work as a police officer or in a stressful environment."

1. Mr Griffiths raised this rating in his submissions concerning an alleged failure by the Medical Assessor to give adequate reasons. As we noted, the first submission by Mr Griffiths was of a generic nature, alleging that the Medical Assessor should have done more than simply note some of the documentation before him. The documentation mentioned consisted of clinical records, and Mr Griffiths failed to elucidate just what further attention should have been given. The clinical notes were 290 pages long and whilst there is a presumption of regularity that the Medical Assessor would have read them as part of his administrative duty in making his assessment,[22] there was no further need for analysis, unless there was any entry in the notes that was particularly relevant. Mr Griffiths did not point to any. Presumptions are of course rebuttable, but a general non-specific submission is insufficient to do so.
2. The specific complaint was that the Medical Assessor had not given any analysis or "active intellectual process" about Mr Griffiths statement. Again, Mr Griffiths did not refer to any particular part of his statement, made on 16 April 2025. So far as his ability to work was concerned, Mr Griffiths only said in his statement at [26]:[23]

"I haven't returned to work since [the injury], and it deeply saddens me to admit that I do not believe I ever can. My condition psychologically in severe, even with treatment, and even the thought of being made to attend upon or view any graphic crime materials makes my symptoms worsen."

1. The Medical Assessor specifically found that Mr Griffiths was unable to work as a police officer or in a stressful environment. Mr Griffiths did not make any submissions as to how that conclusion did not support a class 4 rating. The Medical Assessor referred to Mr Griffiths' renovation of his kitchen, which he did himself slowly and over period of four weeks. Mr Griffiths was able to complete that project by not rushing and by taking a breath to reset when things did not go to plan. Again, the class 4 rating we find to be appropriate.
2. For these reasons, the Appeal Panel has determined that the MAC issued on 2 July 2025 should be confirmed.

[2] Unfortunately, the pages in the appeal brief were not paginated. The relevant material will accordingly be indicated by the page number indicated on the computer counter. These particular extracts can be found at 40.

[6] Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; 252 CLR 480.

[7] [2023] NSWSC 1547 at [83].

[9] [2017] NSWSC 887.

[10] [1985] HCA 81.

[11] [2015] NSWCA 211.

[12] [2016] NSWSC 346.

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

[15] [2017] NSWSC 887.

[16] [2015] NSWSC 633.

[17] [2018] NSWSC 140.

[18] [2022] NSWSC 929.

[20] See discussion in Diaz v Sydney International Terminals Pty Ltd [2024] NSWPICMP 437 at [136].

[21] See Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36].