1. On 1 May 2025 Melad Heider-Wardak, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ankur Gupta, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on

3 April 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. The appellant worked as a legal counsel for Hollard Insurance Company Pty Ltd, the respondent. He commenced his employment on 9 March 2020 and his last day of work was on 29 November 2020. Due to both his work load and adverse interactions he had with others employed by the respondent, he suffered a psychological injury.
2. On 15 September 2022 he claimed compensation from the respondent under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment he said resulted from his injury. He relied on a report of psychiatrist Dr Abdal Khan dated 7 September 2022, who assessed the degree of the appellant's permanent impairment from his injury is 20% whole person impairment (WPI). That assessment was the net result of Dr Khan deducting 2% WPI from an overall 22% WPI he assessed the appellant had. Dr Khan made that deduction because of the impact Dr Khan considered a general medical condition of which the appellant was afflicted, namely primary sclerosing cholangitis with progressive cirrhosis, had on the appellant's functioning.
3. Dr Khan was aware that the appellant had also been diagnosed with attention deficit and hyperactivity disorder (ADHD) when the appellant was in his early 20s, but Dr Khan did not make any deduction on account of that and, presumedly, that was because Dr Khan was of the opinion that that pre-existing condition did not contribute to the appellant's permanent impairment from his workplace injury.
4. The respondent's insurer did not accede to his claim. This was because it had obtained a report from the psychiatrist Dr Alexey Sidorov dated 20 November 2022 who diagnosed the appellant injury as major depressive disorder and which he considered had not reached maximum medical improvement. This was because he was of the view that the appellant was receiving appropriate treatment for his illness. Essentially, he considered the appellant's permanent impairment was not at that time fully ascertainable.
5. The insurer provided the appellant with a copy of Dr Sidorov's report, following which the appellant obtained a further report from Dr Khan dated 2 February 2023, in which Dr Khan expressed his disagreement with the opinion of Dr Sidorov. He also explained his reasons for that.
6. Following that the appellant registered with the Personal Injury Commission (Commission) an Application to Resolve a Dispute dated 28 February 2023, seeking the Commission determine his claim for compensation for permanent impairment. Before that could be done, the medical dispute between the parties relating to the appellant's claim for compensation, needed to be determined, specifically whether the appellant's impairment is permanent, if so whether it is fully ascertainable, and if so the degree of his permanent impairment from his injury and whether any proportion of that is due to a pre-existing condition.
7. Those disputes were referred to Medical Assessor Nicholas Glozier to assess. He examined the appellant on 2 August 2023 and in a medical assessment certificate dated

8 January 2024, he advised that he had not undertaken any assessment of the appellant's permanent impairment because in his view the appellant had not achieved maximum medical improvement. He said, "the impairment is not permanent and the degree of permanent impairment will be fully ascertainable following approximately 9 months of further psychiatric treatment and compliance with this". Hence, Medical Assessor Glozier exercised his discretion under s 322(4) of 1998 Act to decline to make an assessment of the appellant's permanent impairment. 8. On 26 September 2024 the appellant's lawyers obtained a further report from Dr Khan, who had examined the appellant on that day. Dr Khan expressed his opinion that in the approximate eight and a half months since Medical Assessor Glozier examined the appellant, the appellant's psychiatric symptomology and functioning had not undergone any significant change. He also expressed his view that the appellant had reached maximum medical improvement because there had not been significant change despite the appellant having received further mental health treatment from his general practitioner. Dr Khan considered that it would be unlikely that the appellant's condition would change substantially in the next year with or without medical treatment. Dr Khan again assessed the appellant's permanent impairment from his injury, this time based on his presentation during his examination on 26 September 2024. Dr Khan advised that the degree of the appellant's permanent impairment from his injury was then 22% WPI, which was the net result after he made a deduction for the appellant's primary sclerosing cholangitis with progressive cirrhosis. 9. The appellant thereupon requested the Commission refer the matter to a Medical Assessor to assess the various medical disputes between the parties. 10. A referral to the Medical Assessor was prepared on 3 December 2024 and amended on

28 February 2025. The Medical Assessor examined the appellant in response to that referral on 20 March 2025, and as mentioned at the outset, issued the MAC on 3 April 2025. In that he certified that he assessed that the degree of the appellant's permanent impairment from his injury is 8% WPI. His assessment was done by reference the psychiatric impairment rating scale (PIRS), detailed within paragraphs 11.11 - 11.20 of the Guidelines, in regards to which the Medical Assessor rated the appellant's impairment as Class 2 in the categories of self-care and personal hygiene, travel, social functioning and concentration, persistence and pace (CPP), Class 3 in social and recreational activities, and Class 4 in employability. 11. The Medical Assessor within the MAC expressed his opinion that the appellant suffered from a pre-existing condition, namely ADHD and that this pre-existing condition directly contributes to the appellant's permanent impairment because it reduces his "ability to focus". In terms of whether a deduction should be made under s 323(1) of the 1998 Act for the extent to which that pre-existing condition forms a proportion of the appellant's permanent impairment from his injury, the Medical Assessor said the following:

"There is no deductible proportion. He continues to suffer from ADHD and it is appropriate to consider its impact as part of the current level of functioning."

1. In the PIRS rating form attached to the MAC the Medical Assessor provided the following reasons for the rating the appellant's impairment as Class 2 in CPP:

"His concentration is reduced, and he has become forgetful. He can even mix up his children's names sometimes. He struggles to read. He was able to focus during the assessment. He also has an unrelated diagnosis of ADHD, which impacts concentration. He can be considered to have mild impairment from the impact of the claimed injury."

1. The Medical Assessor also detailed in the history he provided in the MAC relating to the appellant's injury that the appellant struggles with his ADHD and that he has not renewed his registration with the law society and that he cannot remember details and forgets where he keeps things.
2. It is apparent, it seems to the Appeal Panel, both from the statement the Medical Assessor made to explain why "there is no deductible proportion" and from the reasons the Medical Assessor provided for rating the appellant's impairment in CPP as Class 2, that the Medical Assessor did not make a deduction under s 323(1) of the 1998 Act on account of the appellant's ADHD because he had taken account of that affliction when rating the appellant's impairment in CPP.

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 appellant to undergo a further medical examination. This is because the material before the Appeal Panel is sufficient for 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. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
2. In summary, the appellant submitted that the Medical Assessor incorrectly applied paragraph 11.10 of the Guidelines and s 323(1) of the 1998 Act. The appellant submitted that the approach the Medical Assessor adopted, by taking account of his pre-existing ADHD when rating his impairment in CPP, was wrong and inconsistent with paragraph 11.10 of the Guidelines.
3. The appellant further submitted that the Medical Assessor did not provide adequate reasons for his assessment in that the Medical Assessor, whilst noting his ADHD affected his ability to focus, did not explain whether or how it impacted other PIRS categories.
4. In reply, the respondent submitted that the Medical Assessor made no deduction under s 323(1) of the 1998 Act, and because of that, the appellant's submissions "represent a distinction without difference". The respondent submitted that the Medical Assessor attributed the entirety of the appellant's impairment to his work injury without a deduction for a pre-existing condition.
5. The respondent submitted that the Medical Assessor took account of the fact the appellant had completed school and university and had obtained legal admission despite having ADHD.
6. The respondent submitted that "if there was any aggravation of ADHD or any reduced concentration due to an aggravation of such, the [Medical Assessor] considered it within the impairment of the appellant's injury".
7. The respondent submitted that the appellant did not identify any symptom or restriction he had that would warrant a rating higher than Class 2 in CPP. The respondent submitted that the Medical Assessor considered appellant's concentration and forgetfulness and his struggling to read but also noted that the appellant was able to focus through the examination. The respondent submitted that the Medical Assessor considered the appellant's symptoms and made a clear finding that the appellant's CPP is mild. The respondent submitted that the appellant has not demonstrated that there is a readily apparent error within the reasoning of the Medical Assessor or that his assessment is based on incorrect criteria or that his conclusions are glaringly improbable.
8. The respondent submitted that the appellant's demonstrated ability to focus throughout the assessment accords with the Class 2 impairment.
9. The respondent submitted that the Appeal Panel cannot disturb the Medical Assessor's ratings for a mere difference of opinion that the Appeal Panel must be satisfied that there is an error. The respondent submitted that evidence of a reduce ability to focus "does not inherently contradict or negate the workers' ability to utilise their qualifications and work experience and work experience but rather suggest they may need to adapt their approach to these tasks".
10. The respondent submitted that the Medical Assessor provided "more than adequate examination and reasons" for his assessment.

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.
3. Section 323(1) of the 1998 Act requires a Medical Assessor when assessing the degree of a worker's permanent impairment from an injury to make a deduction for any proportion of that impairment that is due to a previous injury, pre-existing condition of abnormality. Section 323(2) of the 1998 Act requires the Medical Assessor to assume that the deductible proportion is to be 10% of the impairment if it is difficult or costly to determine what the deductible proportion is, provided making that assumption is not at odds with the available evidence. Section 323(4) of the 1998 Act permits the State Insurance Regulatory Authority (SIRA) to issue guidelines regarding how a Medical Assessor is to determine the deduction to be made under s 323.
4. Paragraph 11.10 of the Guidelines relates to the method by which a Medical Assessor is to determine the deduction to be made under s 323(1) in the circumstance where the permanent impairment a worker has results from a psychiatric injury. It reads as follows:

"To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker's pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker's current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI."

1. That paragraph is issued by SIRA pursuant to its authority under ss 323(4) and 376 and is valid, and must be applied by a Medical Assessor.[1]
2. There is no controversy that prior to the appellant commencing his employment with the respondent, and thereby his exposure to the circumstances that gave rise to his psychological injury, the appellant had ADHD.
3. Contrary to what the respondent submitted, the Medical Assessor formed the conclusion that this pre-existing condition did contribute to the degree of permanent impairment the appellant has from his injury and this because the Medical Assessor considered the condition reduced the appellant's ability to focus. The Medical Assessor explicitly said so in s 11b of the MAC. The Medical Assessor also said the appellant continues to suffer from ADHD and that it was appropriate to consider the impact of that condition "as part of the current level of functioning". Within the reasons he provided for rating the appellant's impairment in CPP as Class 2 the Medical Assessor did have regard to the appellant's ADHD and the impact this has on the appellant's functioning in CPP. That is clear because the Medical Assessor explicitly indicated that by saying in the PIRS rating form "he also has unrelated diagnosis of ADHD, which impact his concentration".
4. When that reasoning is taken as a whole, it is apparent, it seems to the Appeal Panel, that the Medical Assessor considered a proportion of the appellant's permanent impairment is due to the appellant's ADHD. Further, it seems to the Appeal Panel, the Medical Assessor adjusted his rating of the appellant's impairment in CPP that was due to that pre-existing condition, and he did so because it was this element of the appellant's functioning that he considered was affected by the condition.
5. In doing that, the Medical Assessor both made an error by not abiding the instructions of paragraph 11.10 of the Guidelines, and also based his assessment on incorrect criteria by not applying paragraph 11.10.
6. Even if the Appeal Panel is wrong in this regard, that is the situation is that the Medical Assessor did not adjust his rating of the appellant's impairment in CPP on account of the impact the appellant's ADHD has on his ability to concentrate, then the Medical Assessor's rating of the appellant's impairment in CPP is wrong. That is to say, the history the Medical Assessor has obtained relating to the matters to be considered when rating the appellant's impairment in CPP do not accord with a severity of impairment described by the examples in Table 11.5 for a Class 2 rating, and best accord with a severity of impairment described by the examples in that Table for a Class 3 rating. The appellant struggles to read. He is forgetful. He mixes up his children's names. He cannot remember details and forgets where he keeps things. He relies on his wife to manage his workers' compensation payments. In the Appeal Panel view that represents that the appellant would be unable to undertake a retraining course or focus on intellectually demanding tasks for up to 30 minutes and indicates that the appellant would be unable to read more than a newspaper article or follow complex instructions or type long documents. That accords, as the Appeal Panel said, with a Class 3 rating.
7. Consequently, the Medical Assessor was in error by not rating the appellant's impairment in CPP as Class 3. Had he done so that would have resulted in the appellant's aggregate class scores increasing to 16 and the median class score increasing to 3. That converts to 17% WPI.
8. The application of paragraph 11.10 of the Guidelines would result in a deduction under s 323(1) of the 1998 Act of 10% of that. This is because the evidence is not sufficient to enable the Appeal Panel to rate the appellant's impairment by reference to PIRS as at the time he commenced his employment with the respondent. The Appeal Panel is of the view his ADHD does have an impact on the appellant's function in CPP in that it would contribute to his forgetfulness and ability to read and focus on tasks. It would affect his persistence in focusing on a task. Hence, consistent with paragraph 11.10, a deduction is 1/10 is to be made. A one-tenth deduction is not at odds with the evidence available.
9. Thus, when the Appeal Panel corrects the demonstrable error in the MAC the outcome is that the Appeal Panel assess the degree of the appellant's permanent impairment from his injury is 15% WPI.
10. For these reasons, the Appeal Panel has determined that the MAC issued on 3 April 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

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

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

Chapter, page and paragraph number in NSW workers compensation guidelines

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

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

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

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

[1] Matheson v Baptist Care NSW & ACT [2025] NSWSC 213 at [22]- [29] and [35].