1. On 16 October 2025 Joanna- Marie Hsu-Ming (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 19 September 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).

1. The appellant sustained a psychological injury deemed to have occurred on 12 October 2021 in her employment as a teacher employed by the Secretary, the Department of Education (the respondent).
2. The appellant lodged an Application to Resolve a Dispute in the Personal Injury Commission (Commission) dated 12 June 2025 in which she claimed lump sum compensation in respect the psychological injury.
3. The matter was referred to Dr Yu Tang Shen, Medical Assessor, for assessment of whole person impairment (WPI) of a psychiatric/psychological disorder as a result of the injury deemed to have occurred on 12 October 2021.
4. The Medical Assessor examined the appellant on 15 September 2025 via video link and assessed 10% WPI in respect of the psychological injury deemed to have occurred on 12 October 2021.

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 there was sufficient evidence on which to make a determination.

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. The appellant's submissions include the following:

(a) ground 1 - incorrect criteria and demonstrable error: significant internal inconsistencies in finding maximum medical improvement (MMI).

(b) When one examines page 7 of the MAC, at 10(c), it is evident that there is a significant discrepancy insofar as the Medical Assessor's commentary on the appellant reaching MMI.

(c) The Medical Assessor stated the following:

"In the current context, her treating psychiatrist's goal is to maintain current treatment and there is no opportunity to advance any other treatments, and the claimant is inclined to follow the current trajectory of treatment. Without both being motivated to engage in further treatment changes, there is no practical way that she can access alternative treatments, so from a practical point of view she has reached the maximum level of treatment."

(d) It is important to note that the appellant was in receipt of treatment, including counselling, pharmacotherapy (Prazosin 5mg and Mirtazapine 60mg) in addition to Cognitive Behaviour Therapy (CBT) and Acceptance and Commitment Therapy (ACT). It is totally unclear from the MAC, as to where or how the Medical Assessor arrived at his conclusion that without motivation to engage in further treatment changes, there was no "practical way that she can access alternative treatments" and then went on to conclude "so from a practical point of view she has reached maximum medical improvement". This reasoning is both illogical and also inconsistent with the Clauses 1.15 and 1.16 of the Guidelines

(e) The Guidelines make clear that a Medical Assessor should defer the assessment if treatment has been inadequate. Implicit in the Medical Assessor's abovementioned comments is that he opined she could have taken up further treatment options but has not done so. Additionally, nowhere in the Guidelines does it permit the Medical Assessor to find that MMI has been reached on the rationale provided.

(f) It follows that the Medical Assessor is erroneous in a material respect.

(g) It is noted that Dr Young opined that the appellant had not reached MMI.

(h) Ground 2: incorrect criteria and demonstrable error: Significant internal inconsistencies in the application of the PIRS scales, which render the certificate erroneous.

(i) Under social functioning, the Medical Assessor noted that the appellant has "lost many of her friends". He noted she has not been able to attend church and is overwhelmed by the amount of people present. She sees her family once per year. The Medical Assessor went on then to say that she has a mild impairment.

(j) Attributing this category as class 2 is grossly inconsistent with the Guidelines. The inability to attend church, and being overwhelmed by a large amount of people, which would occur for example during shopping, cannot be regarded as mild. Her relationships, including with her father and brother, can only be regarded as severely strained on an objective view. This can only fit within class 3.

(k) Self-care and personal hygiene - the Medical Assessor accepted that the appellant would shower every couple of days a week and she was heavily reliant on take away food. She does her laundry every three weeks. He also noted that she prefers to avoid shopping. This does not represent the ability to manage self-care independently. This category can only fit within class 3.

(l) Concentration, persistence and pace - the Medical Assessor noted that the appellant could read up to a paragraph and she needs frequent breaks. The Medical Assessor also took into account immaterial matters, such as her ability to drive in this class. The appellant says that in doing so, he committed error by taking into account irrelevant considerations. If the appellant can only read a paragraph before requiring a break, which was accepted by the Medical Assessor, then she could only fit within class 3. The Guidelines refer to class 2 as reflecting someone who can focus on intellectually demanding tasks for 30 minutes. Class 2 is therefore totally inconsistent with the rationale applied by the Medical Assessor.

(m) It should also be noted that the Medical Assessor, for employability, put the appellant in class 5 which is totally inconsistent with concentration, pace and persistence, and social functioning.

(n) The MAC is so internally inconsistent, and the error is so obvious, that the only means to cure is by a re-assessment to be conducted by the review panel. Furthermore, Dr Young in his most recent report of 9 July 2025 on page 6 opines, "...Ms Hsu-Ming's current functioning is accurately described in Dr Rastogi's PIRS assessment".

(o) Ground 3 - demonstrable error: failure to take into account relevant medical evidence and explain why it was rejected.

(p) As can be seen, Dr Rastogi assessed substantially greater impairment (22%) owing to the differences contained in the PIRS rating scale. The Medical Assessor has not grappled, or properly grappled, with her opinions or explained why he disagreed with her.

(q) The decision in De Gelder v Rodger (No 2) [2014] NSWSC 1355(De Gelder 9No 2)) held that circumstances in which the decision maker fails to consider relevant material may constitute a demonstrable error.

(r) The decision in De Gelder (No 2) was later referred to in Wentworth Community Housing Limited v Brennan [2019] NSWSC152. In Wentworth Community Housing, AsJ Harrison noted at [73] that De Gelder (No 2) concerned the decision of an appeal panel; however, the principle was "equally applicable to the decision of the AMS_..._"

(s) The appellant submits that applying De Gelder (No 2) and the fact that the Medical Assessor failed to explain his disagreement with the above reports, leads to the conclusion that the MAC is erroneous. His commentary was limited to "I differ with Dr Rastogi's assessment of her whole person impairment, with the specific reasoning to be found in my PIRS assessment." No such reasoning is contained in the Psychiatric Impairment Rating Scale (PIRS). In fact, the PIRS assessment contains reasoning that is grossly inconsistent with the history taken in this matter.

(t) This does not reflect a proper attempt to grapple with the medical evidence, or explain any disagreement, particularly where the history varied so substantially. Had he rejected the reports, he should have articulated why pursuant to De Gelder (No 2). Instead, his failure to do so leads to the conclusion that he failed to properly take them into account. The appellant is therefore disadvantaged by not having been provided with an explanation as to why the report was rejected.

(u) In addition to the above matters, the appellant instructs that: (i) She had not changed her clothes for two days at the time of the assessment, she had not showered or groom her hair. The suggestion she was reasonably well-groomed is erroneous. (ii)The appellant requested a break during the assessment with the Medical Assessor but was told to keep going. (iii) The appellant never stated that partaking in art class was something that brings her joy, but rather it was recommended by her psychologist. (iv) The appellant never stated that she had studied in the USA. The appellant has never been to the USA.

(v) For the reasons set out above, the MAC contains error. The appellant seeks to be assessed by the review panel.

1. The respondent's submissions include the following:

(a) Ground 1 - the Medical Assessor does not say that treatment provided to date has been inadequate. Rather, the Medical Assessor has recorded an accurate account of the appellant's present treatment, including medication and consultations with her general practitioner (GP), psychologist and psychiatrist [MAC page 2].

(b) The Medical Assessor does not say that the appellant's condition is likely to change substantially with any specific form of further treatment. To the contrary, the Medical Assessor has reported [MAC page 5] that the applicant "has had extensive psychological therapy and adequate medication treatment. Her symptoms have stabilised and she is unlikely to improve further, and so she has reached maximum medical improvement."

(c) In explaining why his own opinion differs from that expressed by Dr Young, the Medical Assessor has recorded that the appellant's treating psychiatrist intends to maintain her current treatment and the appellant is inclined to follow that trajectory. Absent any direction from the treating psychiatrist or motivation on the part of the appellant, the Medical Assessor has (logically) arrived at the conclusion that her condition has reached maximum medical improvement.

(d) The views expressed by the Medical Assessor regarding whether the appellant's condition has reached MMI are not internally inconsistent. To the contrary, the views expressed by the Medical Assessor are clearly articulated and provide a detailed explanation as to why his own opinion differs from that provided by Dr Young on this issue.

(e) Ground 2: the MAC contains internal inconsistencies in the application of the PIRS scale with respect to social functioning, self-care and personal hygiene and concentration, persistence and pace.

(f) The Medical Assessor assessed the applicant as falling with class 2 for social functioning. The respondent rejects the submission made by the appellant that a rating of class 2 is grossly inconsistent with the Guidelines. Rather, the Medical Assessor has provided detailed reasoning for why a rating of class 2 is appropriate and the details of social functioning recorded sit comfortably within a class 2 rating. Notably, in his report dated 24 December 2023, Dr Rastogi (psychiatrist qualified by the applicant) also assesses the applicant as falling within class 2 for social functioning.

(g) The Medical Assessor assessed the applicant as falling within class 2 for self-care and personal hygiene. Again, the Medical Assessor has provided a detailed account of why a rating of class 2 is appropriate [MAC page 11]. The appellant's reports do not justify a class 3 rating, noting that a class 3 rating requires that the claimant cannot live independently without regular support.

(h) With respect to concentration, persistence and pace, the Medical Assessor assessed the applicant as falling within class 2. The Medical Assessor has clearly explained why he considered a class 2 rating appropriate, noting that the applicant has been able to attend art classes, engage in regular therapy and drive short distances. All of those activities require sustained attention and persistence. Further, on his own observations of the applicant, the Medical Assessor considered her impairment in this respect to be mild.

(i) The statutory scheme intends that a properly educated registered medical practitioner should be given the authority to make binding judgements as to the matters set out in the legislation at s.326 of the 1998 Act (Radivoj Matic v Calcono (NSW) Pty Ltd) [WCC 10378 - 04].

(j) It was open to the Medical Assessor to use his skill, judgment and expertise to come to the conclusion that he did, and the respondent submits that the applicant worker was assessed appropriately.

(k) Ground 3**:** the Medical Assessor failed to take into account relevant medical evidence and explain why it was rejected.

(l) At pages 6-7 of the MAC, the Medical Assessor has reviewed the series of reports provided by Dr Rastogi and others in some detail. After commenting upon those areas in which he agrees with Dr Rastogi (MMI), the Medical Assessor has specifically stated that he differs with Dr Rastogi's assessment of WPI. The Medical Assessor then referenced those specific reasons for arriving at the conclusions that he did as set out in the PIRS assessment form. The Medical Assessor added that he had provided a substantially lesser degree of impairment than that provided by Dr Rastogi.

(m) The Medical Assessor has provided detailed reasoning for why his own assessment differed from that provided by Dr Young and Dr Rastogi. As such, those assessments ought not be disturbed.

(n) Ground 4**:** factual errors and procedural issues raised by the applicant. These submissions, noting that they constitute information provided by the applicant to her instructing solicitors. By way of general comment however, the Medical Assessor's own observations made during the assessment ought not be disturbed.

(o) The statutory obligations of the Medical Assessor have been discharged properly and that the assessment of 10% WPI ought to be confirmed.

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
3. The Appeal Panel reviewed the MAC and the evidence in this matter.

Ground 1: the MAC contains internal inconsistencies as to whether the appellant's condition has reached MMI

1. The appellant submits that the MAC contains internal inconsistencies as to whether the appellant's condition has reached MMI.
2. On page 5 of the MAC at 8b, the Medical Assessor reported that the appellant "has had extensive psychological therapy and adequate medication treatment. Her symptoms have stabilised and she is unlikely to improve further, and so she has reached maximum medical improvement."
3. On page 7 of the MAC the Medical Assessor wrote:

"While I agree with Dr Peter Young that she has other treatments available to her, the options of further treatment is best undertaken within the therapeutic relationship with the treater, depending on their level of skills, expertise, and accessibility of treatment options, as well as patient preference and motivation for engagement. In the current context, her treating psychiatrist's goal is to maintain current treatment and there is no opportunity to advance any other treatments, and the claimant is inclined to follow the current trajectory of treatment. Without both being motivated to engage in further treatment changes, there is no practical way that she can access alternative treatments, so from a practical point of view she has reached the maximum level of treatment.

Furthermore, given the ongoing perpetuating factors related to the loss of career identity, social isolation, and the structure of Worker's Compensation system, further medication or biological treatments are less likely to be effective as psychological therapy, which I agree with Dr Rastogi."

1. On page 8 of the MAC, the Medical Assessor certified that "the impairment is permanent and that the degree of permanent impairment is fully ascertainable".
2. Dr Peter Young, consultant psychiatrist, in a report dated 9 July 2025 wrote:

"Ms Hsu-Ming condition is resistant to treatment with Mirtazepine. It is perplexing that other medication options have not even been discussed or apparently considered. She requires urgent escalation of her antidepressant treatment, which should be implemented according to the RANZCP Mood Disorders Guideline. In the first instance, this could involve use of better agents to the current antidepressant (such as lithium or aripiprazole). Further escalation could include trial of tricyclic or monoamine oxidase inhibitor medications, and consideration for neurostimulatory treatments including TMS and ECT. Further, Ms Hsu-Ming could benefit from an institutional second opinion with inpatient assessment and implementation of further management at an appropriately indicated mood disorders unit.

Ms Hsu-Ming appears to remain motivated towards recovery and is open to consideration of further treatment options. In this instance, therefore, I do not consider maximum medical improvement to be met. If appropriate treatment is received and there is no further improvement, then I will consider MMI to be met in this case."

1. Dr Rastogi, in her report of 11 August 2025, stated that she had been the appellant's treating psychiatrist since 29 April 2022. She was of the opinion that the appellant has reached maximum medical improvement given the chronic course of her depression and anxiety, and that the appellant had received adequate counselling and trials of pharmacotherapy. Dr Rastogi noted that the appellant's condition had stabilized, and her impairments were likely to persist despite ongoing treatment.
2. Dr Rastogi wrote:

"Having had the opportunity to assess Joanna longitudinally since 2022, I am of the opinion that her depressive symptoms are very entrenched, and she displays marked avoidance behaviours that is chronic and causing significant social impairments. She has received intensive psychological counselling with CBT as well. Given she has trialled antidepressants and received adequate counselling with limited progress, her prognosis remains limited. Her vocational prognosis remains poor. Joanna' depression is maintained by unresolved grievances, lack of closure, scarring of her self-esteem and confidence and this is unlikely to be shifted or improved with TMS or ECT. She has entrenched marked avoidance, and this poses a poor prognosis. It is unlikely the depressive cognitions or avoidance will respond to pharmacotherapy or ECT. This requires ongoing long-term counselling with CBT and ACT. Her symptoms will need cognitive behavioural strategies to challenge those thoughts and work with graded exposure on an ongoing basis, Hence the options of TMS or ECT was not considered as suitable options of treatment in her presentation. ECT or TMS generally help with neurovegetative symptoms of depression and likely to have better outcomes however in Joanna's presentation I do not see that ECT or TMS would result in better functional outcomes having had clinical experience treating mood disorder over two decades.

I believe inpatient admission to mood disorders unit will be detrimental given she suffers from social anxiety and displays marked avoidance. This will in fact trigger her anxiety and lead to poor outcomes. I would not recommend this given her symptomatology and barriers as well as her perceived fear of stigmatisation. She is unlikely to benefit from group therapy and will decompensate in view of her social anxiety and fears and negative".

1. The appellant submits that it is totally unclear from the MAC, as to where or how the Medical Assessor arrived at his conclusion that without motivation to engage in further treatment changes, there was no "practical way that she can access alternative treatments" and then went on to conclude "so from a practical point of view she has reached maximum medical improvement". The appellant argues that this reasoning is both illogical and also inconsistent with the Clauses 1.15 and 1.16 of the Guidelines.
2. The Guidelines at Clauses 1.15 and 1.16 provide:

"1.15 Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker's condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.

1.16 If the Medical Assessor considers that the claimant's treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation - subject to paragraph 1.34 in the Guidelines."

1. The Appeal Panel considers that the Medical Assessor's reasoning in respect of MMI is clear and cannot be described as illogical. The Medical Assessor concluded that the appellant would not access further alternative treatment. This conclusion is not inconsistent with the Guidelines. The Medical Assessor at 8b in the MAC reported that the appellant "has had extensive psychological therapy and adequate medication treatment. Her symptoms have stabilised and she is unlikely to improve further, and so she has reached maximum medical improvement."
2. The Appeal Panel is satisfied that the finding by the Medical Assessor that the appellant had reached MMI was consistent with the Guidelines.
3. The appellant submits that implicit in the Medical Assessor's abovementioned comments is that he opined she could have taken up further treatment options but has not done so. The Appeal Panel reject this submission because it was not implicit that the appellant could take up further treatment options, especially considering the report of Dr Rastogi dated 11 August 2025.
4. This ground of appeal is not made out.

Ground 2: the MAC contains internal inconsistencies in the application of the PIRS scale with respect to self-care and personal hygiene, social functioning and concentration, persistence and pace

1. The appellant submits that the Medical Assessor accepted that the appellant would shower every couple of days a week, was heavily reliant on take away food, does her laundry every three weeks, and prefers to avoid shopping. The appellant submits that this does not represent the ability to manage self-care independently she fits within class 3 in this scale.
2. The examples under Table 11.1 for "Self-care and personal hygiene" in the Guidelines are:

"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 Medical Assessor assessed the appellant as class 2 for self-care and personal hygiene. In the PIRS Rating Form, the Medical Assessor wrote:

Since the subject injury, she said she has been showering every couple of days a week. She said she has been ordering a lot of DoorDash and UberEats and she rarely cooks, mainly heating cooked food. She said she has been cleaning the house obsessively when she feels 'worked up', which is about every 2 weeks, and at other times she doesn't clean. She has been doing her laundry every 3 weeks. She said she has been shopping online and occasionally she will go for a shop if there is any urgent necessities. She prefers to avoid shopping as her supervisor and principal live nearby, so she goes shopping only in school hours and in school term.

As she can still self-care independently, albeit with a degree of self-neglect, she has mild impairment."

1. Under "present symptoms", the Medical Assessor noted (page 3, MAC): "Her appetite has been poor, and she has to make herself eat 2 meals a day, and she has not had any weight changes."
2. Under "social activities/ADL" (page 4 MAC) the Medical Assessor wrote:

"Prior to the subject injury, she said she would shower every day. She said she would enjoy cooking frequently, which she would do 4 days a week, and she would clean once a week. She said she would go shopping for groceries once a week and a few little shops in between, as needed...

Since the subject injury, she said she has been showering every couple of days a week. She said she has been ordering a lot of DoorDash and UberEats and she rarely cooks, mainly heating cooked food. She said she has been cleaning the house obsessively when she feels 'worked up', which is about every 2 weeks, and other times she doesn't clean. She has been doing her laundry every 3 weeks. She said she has been shopping online, and occasionally she will go for a shop if there is any urgent necessities. She prefers to avoid shopping as her supervisor and principal live nearby, so she only goes shopping only in school hours and in school term..."

1. Under "Findings on Physical examination" the Medical Assessor noted that the appellant presented as a casually dressed and reasonably groomed woman.
2. Dr Richa Rastogi, consultant psychiatrist, in a report dated 24 December 2023, assessed class 3 for self-care and personal hygiene, and provided the following reasons:

"Moderate impairment is observed as she skips meals and self-care, lacks motivation and drive, has lost weight, and does not shower for days, missing her meals."

1. Dr Rastogi reported under "Activities of Daily Living":

"She needs prompting with showering and meals, requiring motivation and reminders for eating. She frequently skips showers and meals, resulting in weight loss, and there are days when she stays in bed with poor self-care.

Household and Domestic Chores: She struggles with chores but can manage basic cooking and washing. She does her shopping at night due to irrational fears and avoidance behaviours".

1. In a report dated 9 July 2025, Dr Peter Young, consultant psychiatrist, noted that the appellant was casually dressed and somewhat unkempt in appearance. He noted that that appellant continued to report poor appetite. He wrote:

"She is uninterested in her appearance, reporting that she showers less frequently and re-wears the same clothes for several days. She no longer enjoys cooking and generally relies on pre-prepared meals as well as ongoing shopping".

1. Dr Young considered that the appellant continued to report symptoms consistent with the diagnosis of major depressive disorder. Dr Young formed the view that the appellant was not at MMI but wrote "however, Ms Hsu-Ming's current functioning is accurately described in Dr Rastogi's PIRS assessment."
2. The appellant submits that the Medical Assessor accepted that the appellant would shower every couple of days a week, was heavily reliant on take away food, did her laundry every three weeks, and prefers to avoid shopping. The appellant argues that this does not represent the ability to manage self-care independently and can only fit within class 3.
3. The Appeal Panel accepts that the Guidelines make it clear that a significant descriptor for class 2 is "able to live independently", whereas for class 3 a significant descriptor is "can't live independently without regular support".
4. The Appeal Panel notes that the appellant lives by herself. There was no reference by either the Medical Assessor or Dr Young to the appellant requiring prompting. The examination by the Medical Assessor was conducted on 15 September 2025 and the examination by Dr Young was conducted on 3 July 2025. Dr Rastogi was the only doctor to report that the appellant needed prompting with showering and meals and that assessment took place in December 2023. Further, Dr Rastogi did not identify who prompted the appellant to shower or eat, nor did Dr Rastogi suggest that a family member or community nurse visits (or should visit) two to three times per week to ensure minimum level of hygiene and nutrition.
5. The Appeal Panel considers that the evidence supports the finding that the appellant can live independently and the assessment of class 2 for self-care and personal hygiene was consistent with the evidence.
6. The Appeal Panel is not persuaded that there has been a demonstrable error with this aspect of the MAC or that the MAC is based on incorrect criteria.
7. This ground of appeal is not made out.

1. The appellant notes that the Medical Assessor assessed the appellant as a class 2 in respect of the PIRS category of social functioning. The appellant submits that attributing this category as class 2 is "grossly inconsistent" with the Guidelines. The appellant submits that the inability to attend church, and being overwhelmed by a large amount of people, which would occur for example during shopping, cannot be regarded as mild. The appellant argues that her relationships, including with her father and brother, can only be regarded as severely strained on an objective view. The appellant submits that this can only fit within cflass 3.
2. The examples under Table 11.4 for "social functioning" in the Guidelines are:

"Class 2: Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.

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."

1. The Medical Assessor assessed class 2 in relation to social functioning noting:

"Since the subject injury, she said she has not had any romantic relationship. She said she sees her brother once a year, but she doesn't tell him about what she has been going through and she finds it embarrassing. Her father moved to Australia about 2021 or 2022, and she sees him once a year and she doesn't want him to know about anything about her condition...

Since the subject injury, she said she has lost most of her friends, and she has two friends, including one from childhood and another from Church. She said she has been seeing one friend every 3 months, and she saw her other friend last year. She said she talks to them every couple of weeks. She said when she sees them she will visit their place, sit with them, chat, and one friend has been taking her to Art classes for moral support about every 3 months. She said she has been attending her physiotherapy and Pilates, and she doesn't talk to the other people attending the classes. She said she had attempted to attend Church a couple of times, but not since March 2025, and she has not been able to persist due to being overwhelmed by the amount of people present, and fear of encountering her supervisor in the area.

There may be a slight cooling of her relationship with her family, though not significantly different compared to pre-injury. However, she has lost many of her friends, apart from 2 friends she remains in regularly though less frequent, contact. Hence, she has mild impairment."

1. Dr Richa Rastogi, consultant psychiatrist, in a report dated 24 December 2023, assessed class 2 for social functioning and relationships, and provided the following reasons:

"Mild impairment as lost friendships and lives a very reclusive lifestyle."

1. Dr Rastogi reported under "Activities of Daily Living":

"Social: There is decreased participation and lost friendships. She feels scrutinized and paranoid in social situations, getting triggered when seeing people and avoiding crowds".

1. In a report dated 9 July 2025, Dr Peter Young, consultant psychiatrist, noted that the appellant had limited social contact with one close friend from school and another close friend from church but no longer attends church.
2. As noted above, Dr Young formed the view that the appellant was not at MMI but considered that the appellant's current functioning was accurately described in Dr Rastogi's PIRS assessment.
3. Class 3 requires that previously established relationships severely strained, evidenced by periods of separation or domestic violence. There is no evidence that any relationship was severely strained evidenced by periods of separation or domestic violence. Dr Rastogi did not assess Class 3 for social functioning.
4. The Appeal Panel notes that the appellant has lost some friendships but has two friends whom she remains in regular contact. The Medical Assessor described the relationship with her family as having a "slight cooling" though not significantly different compared to pre-injury. There is no evidence that the family relationships, including with her father and brother, are severely strained.
5. The Appeal Panel considers that the evidence including the history obtained by the Medical Assessor is consistent with a class 2 rating for social functioning.
6. The Appeal Panel is not persuaded that there has been a demonstrable error with this aspect of the MAC or that the MAC is based on incorrect criteria.
7. This ground of appeal is not made out.

1. The appellant notes that the Medical Assessor assessed the appellant as a class 2 in respect of the PIRS category of concentration, persistence and pace. The appellant noted that the Medical Assessor reported that the appellant could read up to a paragraph and she needs frequent breaks. The appellant argues that the Medical Assessor also took into account immaterial matters, such as her ability to drive in this class, thereby making an error by taking into account irrelevant considerations
2. The examples under Table 11.5 for "concentration, persistence and pace" in the Guidelines are:

"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 (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting."

1. The Medical Assessor assessed the appellant as class 2 for concentration, persistence and pace. In the PIRS Rating Form, the Medical Assessor wrote:

Since the subject injury, she said her concentration has been 'not great'. She said she has tried to read but has struggled to focus on reading. She said she can read for up to a paragraph and she needs frequent breaks to persist with reading. She said she has been able to focus in Art Class in a different manner, as there is no need to focus and there are no mistakes to be made.

As she has been able to attend to Art Classes, engage in regular therapy, drive short distances, all activities which require some capacity for sustaining attention and persistence, and absent any noticeable deficits in the assessment, she has mild impairment."

1. Under "present symptoms", the Medical Assessor noted that the appellant said: "Art classes make her feel comforted."
2. Under "Findings on Physical Examination" the Medical Assessor wrote:

"She presented as a casually dressed and reasonably groomed woman. She had an average build and appeared to be her stated age. She engaged cordially in the assessment and provided relevant answers to questions asked, spontaneously supplying detail.

She appeared mainly dysthymic with limited range of emotional reactivity.

She spoke articulately and in a logical sequence most of the time, without much prompting, with intact prosody.

She complained of intrusive recollections of her experiences in the workplace. She had pessimistic thoughts of shame, and no suicidal ideations.

She was alert. She was able to provide a detailed account of her injuries and function. She did not appear to have difficulties sustaining her concentration in the assessment".

1. Dr Richa Rastogi, consultant psychiatrist, in a report dated 24 December 2023, assessed class 3 for concentration, persistence and pace, and provided the following reasons:

"Moderate impairment is noted as she experiences fatigue, finding it challenging to follow complex tasks. Additionally, she is forgetful with poor retention and recall."

1. Dr Rastogi reported under "Activities of Daily Living": "Concentration and Decision-Making: She reports profound concentration difficulties, forgetfulness, getting frazzled and overwhelmed, and poor decision-making".
2. In a report dated 9 July 2025, Dr Peter Young, consultant psychiatrist, noted that the appellant reported that she has difficulty concentrating on tasks, managing only 20 or 30 minutes when gardening. He wrote: "She is unable to follow simple instructions such as when there is a recipe or to read more than one page of material at a time. She finds it difficult to make decisions and is forgetful."
3. Under "Mental State Examination", Dr Young reported: "Cognition was not formally tested although there is a report of significant subjective difficulties."
4. Dr Young was of the opinion that the appellant was not at MMI but considered that her current functioning "is accurately described in Dr Rastogi's PIRS assessment."
5. The appellant argues that the Medical Assessor took into account immaterial matters, such as her ability to drive, thereby making an error by taking into account irrelevant considerations in making an assessment in the scale of concentration, persistence and pace.
6. The Appeal Panel notes the observations of the Court in Ballas v Department of Education (State of NSW) [2020] NSWCA 86) (Ballas) that conduct must be assigned to the appropriate category:

"[94] Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to 'self-care and personal hygiene', 'social and recreational activities', 'travel', 'social functioning (relationships)', 'concentration, persistence and pace' or 'employability'. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker's entitlement to compensation."

1. The Appeal Panel accepts that the ability to drive is a matter that properly taken into account in the scale of travel and the Medical Assessor erred because he took into account an irrelevant consideration when making the assessment in this scale.
2. Having found error in the assessment of concentration, persistence and pace, the Appeal Panel proceeded to review the evidence and make an assessment.
3. The Medical Assessor notes that the appellant said she can read for up to a paragraph and she needs frequent breaks to persist with reading, although she had been able to focus in art class in a different manner, Dr Young noted that the appellant reported that she has difficulty concentrating on tasks, managing only 20 or 30 minutes when gardening, was unable to follow simple instructions such as when there is a recipe or read more than one page of material at a time. Dr Young noted that she "finds it difficult to make decisions and is forgetful."
4. Considering at the evidence overall, it reveals that the appellant's concentration and attention is limited. The appellant attends an art class every three months with a friend. She describes the activity as therapeutic and states that she doesn't get enjoyment from them. The Appeal Panel notes that her motivation and level of enjoyment are not relevant considerations. What matters is how participation in the class reflects her ability in concentration, persistence and pace. The activity is infrequent and is not necessarily intellectually demanding. There is no evidence that she engages in art as a hobby outside of the classes. Her ability to concentrate on gardening is limited to 20 to 30 minutes, and she cannot persist with reading, needing frequent breaks. Dr Young noted that she was only able to read a page at a time. What the Medical Assessor has described does not reveal that the appellant is able to focus on intellectually demanding tasks for period of up to 30 minutes.
5. The Appeal Panel notes that the Medical Assessor stated that she did not appear to have difficulties sustaining her concentration in the assessment, however, there is a level of prompting in the manner in which an assessment process is conducted. Therefore, the Appeal Panel cannot place undue weight on the Medical Assessor's comment that she did not appear to have difficulties sustaining concentration in the assessment.
6. The Appeal Panel considers that the history the Medical Assessor and Dr Young obtained reveals that the appellant had a moderate impairment in concentration, persistence and pace. The Appeal Panel therefore assesses the appellant's impairment in concentration, persistence and pace as class 3.
7. This ground of appeal is made out.

Ground 3: the Medical Assessor failed to take into account relevant medical evidence and explain why it was rejected

1. The appellant submits that the Medical Assessor failed to take into account relevant medical evidence and explain why it was rejected.
2. The appellant submits that The Medical Assessor has not grappled, or properly grappled, with Dr Rastogi's opinions or explained why he disagreed with her. The appellant refers to the decision in De Gelder (No 2) [held that circumstances in which the decision maker fails to consider relevant material may constitute a demonstrable error.
3. The appellant submits that the fact the Medical Assessor failed to explain his disagreement with the above reports, leads to the conclusion that the MAC is erroneous.
4. The Appeal Panel accepts that the Medical Assessor's commentary was as follows: "I differ with Dr Rastogi's assessment of her whole person impairment, with the specific reasoning to be found in my PIRS assessment." The appellant contends that no such reasoning is contained in the PIRS and the PIRS assessment contains reasoning that is "grossly inconsistent with the history" taken in this matter.
5. The appellant did not particularise the parts of the reasoning in the PIRS assessment that "is grossly inconsistent with the history". The Appeal Panel does not consider that the PIRS assessment contained reasoning that was grossly inconsistent with the history taken in this matter. The appellant has failed to identify any such inconsistencies.
6. The Appeal Panel rejects the submission that the Medical Assessor's commentary read in conjunction with the PIRS does not reflect a proper attempt to grapple with the medical evidence or explain any disagreement. In so far as there may have been a variation in the history, and assuming that the appellant refers to the history taken by Dr Rastogi, Dr Rastogi's assessment took place at the end of 2023 whereas the assessment by the Medical Assessor took place in September 2025. It would not be unusual to see some variation in the history following a 20-month period.
7. The Appeal Panel also noted that commenting upon those areas in which he agrees with Dr Rastogi (ie the appellant being at MMI), the Medical Assessor specifically stated that he differed with Dr Rastogi's assessment of WPI referring to the reasons he set out in the PIRS assessment form. The Medical Assessor added that he had provided a substantially lesser degree of impairment than that provided by Dr Rastogi.
8. The Appeal Panel is satisfied that the Medical Assessor provided adequate reasoning for why his own assessment differed from that provided by Dr Young and Dr Rastogi.

Ground 4: factual errors and procedural issues raised by the applicant

1. In addition to the above matters, the appellant instructs that:

(a) she had not changed her clothes for two days at the time of the assessment, she had not showered or groom her hair. The suggestion she was reasonably well-groomed is erroneous.

(b) The appellant requested a break during the assessment with the Medical Assessor but was told to keep going.

(c) The appellant never stated that partaking in art class was something that brings her joy, but rather it was recommended by her psychologist.

d) The appellant never stated that she had studied in the USA. The appellant has never been to the USA.

1. The matters relied on by the appellant in this ground of appeal comprise information provided by the appellant to her solicitors and then set out in the submissions. This information is not in evidence. The appellant has not sought to file fresh evidence or relied on the availability of additional relevant information as a ground of appeal.
2. Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
3. The Appeal Panel therefore rejects this submission as it is not based on evidence received in the appeal. In addition, the Appeal Panel notes that the Medical Assessor reported that the appellant stated that the art classes made her "feel comforted" (page 3 MAC) and did not report that the appellant stated that "partaking in art classes was something that brings he joy." Further, any incorrect reference to studying in the USA pre-injury was immaterial to the assessment made.
4. The appellant submitted that the Medical Assessor erroneously suggested that she was reasonably well-groomed, however, the Medical Assessor actually described the appellant as "reasonably groomed" and the Appeal Panel would not infer that she was well groomed from that description. Further, any assertion that the appellant had not changed her clothes for two days at the time of assessment and had not showered or "groom her hair"(sic) is not inconsistent with the descriptors in class 2 for self-care and personal hygiene.
5. The final matter concerned a request for a break in the examination, which would be a matter relevant to the assessment of concentration, persistence and pace. However, there was no statement by the appellant in evidence concerning this aspect of the examination. In any event, the Appeal Panel found error in the assessment of this scale, which was reassessed.
6. This ground of appeal was not made out.
7. The Appeal Panel assesses the appellant as class 3 or concentration, persistence and pace. The Appeal Panel finds no error, nor the application of incorrect criteria in the assessments of class 2 for self-care and personal hygiene, and class 2 for social functioning. The assessments in the scales of social and recreational activities, travel and employability were not appealed nor was the assessment of 1% WPI for effects of treatment.
8. The Appeal Panel finds that the PIRS scales score 2 3 2 2 3 5, ascending order 2 2 2 3 3 5, median 3, aggregate 17 so that the WPI = 19 %. The Appeal Panel noted that the Medical Assessor made adjustment of 1% for effects of treatment, which was not appealed. Therefore, the total WPI is 20% as a result of the injury deemed to have occurred on 12 October 2021.
9. For these reasons, the Appeal Panel has determined that the MAC issued on 19 September 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 Appeal Panel noted that the Medical Assessor made an adjustment of 1% for effects of treatment, which was not appealed.