1. On 30 October 2024 Justin Ibanez, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on

2 October 2024. 2. The appellant relies on the following grounds for 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 (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 commenced employment at some time in December 2020 with Life Without Barriers, the respondent, working as a part-time disability support worker. On 8 November 2021 one of the respondent's clients assaulted the appellant and during the assault threatened to kill the appellant on several occasions. The appellant suffered a psychological injury as a consequence of that incident.
2. On 25 March 2024 the appellant's solicitors wrote to the respondent's solicitors advising them that the appellant claimed compensation from the respondent under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment the appellant had from his injury. They informed the respondent's solicitors the appellant relied on reports of psychiatrist Dr David Kumagaya dated 15 December 2023 and 24 March 2023. In the latest of Dr Kumagaya's reports he advised he assessed the degree of the appellant's permanent impairment from his injury was 19% whole person impairment (WPI).
3. On 4 July 2024 the respondent's lawyer wrote to the appellant care of his solicitors advising them that the respondent denied liability to pay the appellant compensation for permanent impairment "at this time". In an accompanying notice issued under s 78 of the 1998 Act, it advised the respondent's reason for that was that the degree of the appellant's permanent impairment did not exceed the threshold imposed under s 65A(3) of the 1987 Act of at least 15% to entitle the appellant to compensation for permanent impairment under s 66 of the 1987 Act. The respondent relied on reports of psychiatrist Dr Abhishek Nagesh dated

17 July 2023 and 25 June 2024, which the respondent's solicitors provided with their correspondence. 4. A medical dispute consequently arose between the parties regarding the degree of the appellant's permanent impairment from his injury. To resolve that dispute the appellant instituted proceedings in the Personal Injury Commission (Commission) by filing with the Commission an Application to Resolve a Dispute dated 25 July 2024. Following the respondent lodging a reply to that application a delegate of the President of the Commission referred the medical dispute to the Medical Assessor to assess. As noted earlier, the Medical Assessor issued the MAC in response to that referral on 2 October 2024. 5. The Medical Assessor assessed the degree of the appellant's permanent impairment by reference to the Psychiatric Impairment Rating Scale (PIRS), as detailed in paragraphs 11.11 - 11.20 of the Guidelines. Based on that criteria, the Medical Assessor certified that he assessed the degree of the appellant's permanent impairment from his injury is 7% WPI. 6. The Medical Assessor noted within the MAC that as a consequence of the assault upon the appellant the appellant developed symptoms of post-traumatic stress disorder. The Medical Assessor detailed in the MAC the relevant criteria of DSM-5 to enable that diagnosis and detailed how the appellant met those criteria. He noted that both Dr Kumagaya and Dr Nagesh made the same diagnosis. 7. The Medical Assessor noted that the appellant's symptoms of post-traumatic stress disorder are ongoing. The Medical Assessor detailed in the MAC that the symptoms the appellant reported to be suffering currently consisted of occasional nightmares, reliving the assault and thinking about it, being depressed about the stress of unemployment, having an "up and down" appetite, having "up and down" weight, getting triggered when hearing noises outside, experiencing flashbacks in the form of nightmares, and being triggered by events such as attending the examination for his assessment by the Medical Assessor. The Medical Assessor also noted that the appellant reported being "not bad" now and living on his own and also enjoying things such as seeing his family or a comedy or a TV series and having a "quite levelled" mood. The Medical Assessor also recorded within the history he detailed in the MAC that the appellant gets up in the morning and does house chores and cleaning and keeps himself busy "by reading or looking for stuff to do at home". The Medical Assessor recorded that the appellant has been trying to find work and that before suffering his injury he was a "lively person", enjoying going to events and regularly being invited to various events. 8. In his appeal against the medical assessment, the appellant has challenged the Medical Assessor's rating of his impairment in the PIRS categories of self-care and personal hygiene and social and recreational activities, in regards to which the Medical Assessor rated the appellant's impairment respectively as Class 1 and Class 2. The Medical Assessor provided in the PIRS rating form attached to the MAC the following reasons for rating the appellant's impairment as Class 1 in self-care and personal hygiene:

"Mr Ibanez showers twice a day and brushes his teeth every day. His grooming is not that great, and he may not care at times. He may get upset. He mostly makes simple food or will use microwave and air fried meals. Earlier he took a lot of pride in cooking for himself, however it is not the same and he is cooking less often and simpler meals."

1. The Medical Assessor provided the following reasons for rating the appellant's impairment in social and recreational activities as Class 2:

"Mr Ibanez described his social life as up and down which is quite limited as well. He mostly keeps in touch with people over the phone. He hates doing things alone. He would like to be accompanied by someone. He has attended family events however he has avoided few of them. He went to a wedding and visited a second cousin who was born recently. He goes outside for walks. He likes watching movies and watching documentaries and he likes reading."

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 the appellant should undergo a further medical examination. This is because, for reasons the Appeal Panel explains below, the Appeal Panel found that the MAC contained a demonstrable error, which the Appeal Panel would need to correct. In order to do that the Appeal Panel considered it needed further clinical data which it could only be obtained from a further examination of the appellant. The Appeal Panel appointed one of its members, namely Medical Assessor Glozier, to conduct that examination, which he did on 26 March 2025. Medical Assessor Glozier's report to the Appeal Panel is set out below under "Finding and Reasons".

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 misunderstood or misjudged the descriptors provided within Tables 11.1 and 11.2 of the Guidelines The appellant submitted that the Medical Assessor did not refer to those descriptors and use them as guidance. The appellant submitted that the Medical Assessor did not have proper regard to the importance of a support person for engagements in social activities.
3. The appellant submitted his symptoms from his injury are such that his capacity in self-care and personal hygiene could not be attributed to the normal variation in the general population. The appellant submitted his symptoms are such that his impairment in social and recreational activities is more than mild.
4. The appellant referred to the reports of Dr Kumagaya. The appellant acknowledge that the Medical Assessor was required assess his impairment as at the day he presented for assessment but he submitted that the Medical Assessor's reasoning is inadequate regarding the Medical Assessor's assessment of his impairment because it is difficult to understand why there is a difference between the Medical Assessor's assessment and the assessment Dr Kumagaya made.
5. In reply, the respondent submitted, with respect the appellant's submission relating to the difference between the Medical Assessor's assessment of his impairment and Dr Kumagaya of his impairment, that the appellant "has conflated a difference of opinion with a demonstrable error" and that a difference of opinion does not amount to a demonstrable error. The respondent submitted that it was open on the evidence before the Medical Assessor to make the finding he did and assess the appellant as he did. The respondent submitted that paragraph 11.2 of the Guidelines provides that the descriptors in the various PIRS Tables are examples only "do not have to apply verbatim".
6. The respondent noted that Dr Nagesh had assessed the appellant's impairment in self-care and personal hygiene as Class 1. The respondent submitted that Dr Kumagaya "was the outlier".
7. The respondent submitted that the appellant's submissions did not engage with how the appellant's post-traumatic stress disorder has impacted upon his self-care. The respondent submitted that appellant's post-traumatic stress disorder has not caused a deficit with respect to his capacity in self-care.
8. The respondent submitted that the appellant's history and symptoms relating to his social and recreational activities are compatible with a mild impairment. The respondent submitted that a Class 3 impairment, that is a moderate impairment, is for individuals who rarely attend social and recreational activities. The respondent noted that the appellant described his social life as up and down. The respondent submitted the history that the Medical Assessor obtained was that the appellant's social life is mostly positive. The respondent submitted that the appellant enjoys socialising with friends and with his extended family and would like to be accompanied by someone when attending social events but does not need someone to accompany him. The respondent submitted that the Medical Assessor obtained a history that reflects a Class 2 impairment.

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. The assessment of a worker's permanent impairment by reference to PIRS requires, as both parties noted in their submissions, a Medical Assessor to assess the worker as a worker presents on the day of assessment. It involves an evaluative judgement being made by the Medical Assessor based on how the worker presents.[1] The fact that other clinicians may have formed or an Appeal Panel might form a different opinion on the degree of a worker's permanent impairment from what the Medical Assessor has assessed to be, is not of itself an error.[2]
4. A Medical Assessor is required by s 325(2)(c) of the 1998 Act to explain his or her reasons for the assessment of the degree of a workers' permanent impairment, which requires the Medical Assessor to expose the path of his or her reasoning for the assessment made, but that does not require the Medical Assessor to explain why he or she did not assess the workers' impairment differently as another clinician has.[3]
5. Ultimately the Medical Assessor's task is to exercise his or her clinical judgement to assess the worker's permanent impairment, based on the relevant clinical data within the documents that have been provided to the Medical Assessor, the history the Medical Assessor obtains at the time of assessment, which inevitably is done by reference to the clinical data within the documents, and the Medical Assessor's observations and findings from the Medical Assessor's examination of the worker at the time of assessment. The reasons for the Medical Assessor's assessment must be apparent from the MAC in which the assessment is recorded, when read as a whole.
6. The Appeal Panel does not accept the appellant's submission that the Medical Assessor erred by not explaining why his assessment differed from the assessment Dr Kumagaya made. The Medical Assessor's obligation to provide reasons for his assessment did not require him to do that. As has been noted in the preceding paragraphs, his obligation to provide reasons for his assessment, required him only to explain his assessment.
7. The descriptors provided in Table 11.1 of the Guidelines for a Class 1 impairment in self-care and personal hygiene are "no deficit, or minor deficit attributable to the normal variation the general population". Those provided for Class 2 or a mild impairment are "able to live independently: looks after self adequately, although maybe look unkept occasionally; sometimes misses a meal or relies on takeaway food".
8. Paragraph 11.12 of the Guidelines emphasises that these descriptions of activities in which a worker may engage are "examples only". They are descriptive and are intended to provide guidance only to a Medical Assessor when evaluating the seriousness of the workers' impairment in a particular PIRS category.
9. The Medical Assessor's reasons for rating the appellant's impairment as Class 1 in self-care and personal hygiene included that the appellant's grooming "is not that great" and that he may not care at times regarding his grooming. They also included that previously the appellant took great pride in cooking, but now mainly makes simple food for himself using a microwave and air fryer. That accords with what the appellant set out in statements he signed on 14 August 2023 and 24 November 2023 wherein he describes no longer cooking for himself but previously loving cooking healthy meals. He also describes previously taking great pride in his appearance, the inference from which is that at the time he signed those statements, he no longer does so.
10. Noting the appellant's pre-injury function with respect to his appearance and cooking, the Appeal Panel considers that the Medical Assessor has erred in assessing the appellant's impairment in self-care and personal hygiene as either being no deficit or corresponding to the normal variation in the general population. That is to say, the Appeal Panel considers that the Medical Assessor has erred with respect to the exercise of his clinical judgement by rating the appellant's impairment in self-care and personal hygiene as Class 1. On the material before him it was not open to the Medical Assessor do that. That is an error on the part of the Medical Assessor. It is more than just a difference of opinion between the Appeal Panel and the Medical Assessor in that it was simply not available on the evidence before the Medical Assessor to rate the appellant's impairment as Class 1. The function of the appellant's capacity in self-care and personal hygiene, relative to how it was before his injury, has deteriorated and does not fall within the normal variation within the general population.
11. The examples provided in Table 11.2 of the Guidelines for a Class1, 2 and Class 3 impairment in social and recreational activities are:

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.

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).

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 reasons the Medical Assessor provided for rating the appellant's impairment as Class 2 in social and recreational activities described, essentially, that the appellant prefers to do things on his own and rarely goes out or gets involved in activities. That also accords with what he has described in his statements in that prior to his injury he enjoyed participating in sports such as martial arts and boxing and undergoing various activities and being a "social guy". He does not participate in martial arts or boxing anymore. He described needing "a nudge from family or friends to leave his house". He described when he does leave his house to socialise he finds it tough and that he is quiet and keeps to himself.
2. The Medical Assessor reasons for rating the appellant's impairment as Class 2 reveal a level of impairment greater than mild, when regard is had to the appellant's pre-injury function in social and recreational activities. It was not open to the Medical Assessor, based on the evidence before him and the reasons he provided for his rating of the appellant's impairment, to rate the appellant's impairment as mild. His doing so represents an error in the exercise of his clinical judgement.
3. The Appeal Panel is required to correct these errors in the MAC. The Appeal Panel considered that in order for it to do so it required further information from the appellant regarding his current capacity in self-care and personal hygiene and social and recreational activities. The Appeal Panel resolved to have Medical Assessor Glozier examine the appellant to obtain that information and, as said, Medical Assessor Glozier did so on

26 March 2025 and subsequently provided the Appeal Panel with the following report:

1. The worker's medical history, where it differs from previous records

Mr Ibanez has not sought any medical or psychological treatment for a prolonged period of time and has not needed to seek any treatment. He takes no medications of any form, specifically no psychotropic medications. He had some unofficial pastoral counselling from a member of his church: 'a blessing in disguise.' This person will occasionally check in on him and did this as a quid pro quo. Mr Ibanez helped him with some things around his home. He occasionally sees his GP; the last time was for some blood tests.

He drinks socially, every month or so when he has a lunch or dinner with friends. He does not smoke, vape, or use illicit drugs. He has not been prescribed any medicinal cannabinoids, micro-dosed or had any other novel psychotropics.

In terms of his wellbeing, he exercises regularly with a combination of weights and cardio, going to the gym about three days a week. He likes walking, jogging and has tried to do more hiking recently, finding some local trails. He says that just recently he has noticed the variable rain as this has somewhat limited his ability to get out for walks and jogs. He tries to eat healthily with a range of fruit and vegetables but this is difficult, mainly because of his inconsistent work and early starts. As a result he sometimes has microwave meals and occasionally takeaways. He prays up to three times a day: when he wakes, before sleep, and at times in the middle of the day. He has been listening to men's health podcasts and calming music, particularly before he goes to sleep at night.

1. Additional history since the original Medical Assessment Certificate was performed

Mr Ibanez told me that ever since COVID he has been working for various contracting companies as a casual labourer in warehouses, currently averaging about three shifts per week. He says that this work is inconsistent and at times he may be sent home after the minimum shift duration. He has been seeking other jobs but found that really it is only these types of employers who are looking for workers on SEEK etc. He says his current contract agency is okay currently. He has to leave fairly early to get to work for a standard 5am or 6am shift, currently about a 15-20 minute drive to the local warehouses.

He goes to bed around 10:30pm each night. He may listen to music or podcasts, or read, but tries not to use screens because of the impact of this. About half the nights of the week, particularly when approaching an appointment such as this, he may lay awake for up to an hour or so, thinking. On the other nights he gets to sleep fairly quickly, particularly if he has had a strenuous shift or exercised. He says he only gets woken at night by the 'noisy neighbours' or local cats and described no intrusive phenomena at night.. Even on the days he is not working, he cannot sleep past 7am. On his work days he says he gets up, has 'a lukewarm shower,' a breakfast snack, before leaving for work. When he has finished work, either late morning or in the middle of the afternoon (depending on the length of his shift), he will come home, shower again and get on with some chores, maybe go for a walk or occasionally to the gym. On the days off he says he has 'life admin' to do, runs errands, sorts out the house, shops etc. He says he likes to have 'a to-do list' to work from.

He has had no partner since the incident. He has 'dabbled' on the dating apps, the last date being late last year. He said this is not a priority for him as he needs to get his career 'sorted,' noting he has not worked fulltime since Covid.

He has a wide range of supports. He is particularly close to his brother and they see each other quite frequently. He does not have a good relationship with his parents for a long time. He has two or three cousins who he also sees fairly frequently. He last went out socially a couple of weeks ago with his cousin and his godson for dinner. He has two small groups of friends. They have WhatsApp chats quite regularly as many of them have demands with young families that prevent more frequent meeting. However they will get together reasonably frequently, maybe play basketball, have dinner or catch up with each other at each other's houses.

He has been becoming interested over the past couple of years in DJing using both a computer and decks. However he does this for himself, seeing this as 'learning an instrument.'

He described no problems travelling in any modality. At the weekends he will do his chores, run errands and organise his life and not uncommonly catch up with either his brother or a friend. He tries to make regular church on Sundays. He at times cannot go because he is working at weekends. He does not get more involved in the church, e.g. with community work etc.

In terms of symptoms, he describes his mood as 'pretty decent' and he is 'happy-go-lucky.' If he hasn't slept well he may feel a little more fatigued and anergic. He has no pervasive mood problems. He enjoys 'seeing family and friends...eating out when I can,' walks, listening to podcasts and being in the fresh air. He described no significant reduction in interests or pleasure, nor anhedonia. If he has slept decently he has enough energy to do as and what he requires, although can be a little bit demotivated if he hasn't slept well and ruminating in the early hours. He described no pervasive anxiety, avoidance or hypervigilance. He did note that occasionally he might see someone who is obviously a support worker with a client, and this will make him think about the incident. When this does so, it does not have an intrusive re-experiencing quality but he can find himself getting demotivated, sad and angry about the impact it had on his role. He says he no longer gets overly anxious when he has such a trigger. For instance in early 2023 a girl with special needs approached him at the supermarket and grabbed onto his trolley. He tried to calm her and be nice and then was somewhat aggrieved that the support worker appeared not to be looking after her. He said he was 'a bit sweaty and nervous' because of the unpredictability of someone who was non-verbal but described no greater symptoms of arousal. There were no sequelae to this. There appears to be no avoidance phenomena associated with this.

Mr Ibanez was prompt, friendly and well-kempt, with a neatly-trimmed beard. He was engaged and showed no abnormality of affect, speech or movement. I was unable to elicit any pervasive symptoms of a clinically significant nature in any mood, anxiety, OCD, avoidance, hypervigilance, hyperarousal, intrusive or other trauma-related domain. He has some mild sub-clinical symptoms of a slightly heightened anxiety when confronted by people with support needs and can get somewhat demotivated, angry and upset when thinking about what has happened to his preferred career as a support worker. None of these appear to be of a clinically significant or impairing nature. He has some mild early insomnia, but again not enough to warrant the criterion of insomnia disorder.

1. Results of any additional investigations since the original Medical Assessment Certificate

Mr Ibanez has some mild and generally unimpairing symptoms, with the exception of if he is thinking excessively at night then that may lead him to have a delayed onset of sleep and be somewhat less motivated in the day. None of these meet the criteria for any current psychiatric disorder nor would be considered out of the normal as a response to his life circumstances and events.

Self-care: He described regularly showering - up to twice a day if he is working, tries to maintain a healthy diet, and does a range of physical activities designed to maintain his wellbeing and associated interest in men's health. He is unimpaired.

Social and recreational activities: He sees his cousins regularly socially and has two groups of friends with whom he is in fairly regular contact. While this may not always be face-to-face (due to their demands), he says he tries to get to gatherings 'when I can' and describes no difficulties being engaged with them, e.g. playing basketball, 'touch', going on picnics or out for dinner. He also has some solo recreational activities such as hiking, jogging and going to the gym three days a week. He certainly is not moderately impaired and I would even struggle to describe him as mildly impaired.

Currently, and as described today, he appears to be relatively unimpaired in many of the other categories with regards to any sequelae of the psychiatric injury, the medical condition of which has now resolved to a sub-clinical level.

1. The Appeal Panel considers that Medical Assessor Glozier has conducted a thorough examination of the appellant and adopts the updated history Medical Assessor Glozier obtained and also findings from his examination of the appellant.[4]
2. Based on the history Medical Assessor Glozier obtained and the appellant's presentation at his examination with Medical Assessor Glozier, the Appeal Panel rates his impairment in self-care and personal hygiene as Class 1. He has no deficit with his self-care and personal hygiene. He regularly showers. He appeared at presentation well kempt and with a neatly trimmed beard. He maintains a healthy diet and does a range of physical activities to maintain his wellbeing.
3. The Appeal Panel rates the appellant's impairment in social and recreational activities as Class 2. The appellant is regularly engaging in recreational activities and social activity, far more frequently than "rarely', and without needing a support person. The Appeal Panel has rated his impairment as Class 2, rather than Class 1, because the level of his participation in these activities is not as great as it was before as he no longer engages in boxing and martial arts.
4. For these reasons, the Appeal Panel has determined that the MAC issued on

[1] Cheers v Midcoast Council [2024] NSWSC1553 at [52].

[2] Vannini v Worldwide Demolition Pty Ltd [2018] NSWCA324 at [87]; Parker v Select Civil Pty Ltd [2018]. NSWSC140 at [66]; Ferguson v State of New South Wales [2017] NSWSC887 at [24].

[3] Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA43 at [47] and [56].

[4] Coco Cola Euro Pacific Partner API Pty Ltd v Pombinho [2024] NSWCA191 at [88].