1. On 3 March 2025, the appellant, Nik Diesel Jayden, lodged an Application to Appeal Against a Decision of Medical Assessor. The medical dispute was assessed by Dr Ankur Gupta, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 February 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 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 none was requested, and we consider that we have sufficient evidence before us to enable us to determine this 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 submits that the Medical Assessor erred in his assessments with respect to three categories in the psychiatric impairment rating scale (PIRS) namely Social and Recreational Activities, Travel and Employability.
3. In reply, the respondent submits that no errors were made.

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 appellant was referred to the Medical Assessor for assessment of whole person impairment (WPI) in respect of a primary psychological/psychiatric injury occurring on a deemed date of injury of 31 January 2023.
4. The Medical Assessor obtained the following history:

"Mr Jayden was working as a safety and security manager for Ikea and had additional responsibility as a duty manager. He was based at the Ikea store in Tempe and worked full-time hours.

He became emotional and stated that he finds it difficult to talk about the incidents but said that he was bullied by his manager. This started in 2018 and worsened in 2019. This manager was promoted in 2021 and the new manager who replaced him continued with the bullying.

He says that his emotional symptoms started around 2020 and he had a 'nervous breakdown' at work in January or February 2021. He says that he suffered a panic attack and left work. He asked for an investigation into the bullying and was off work for about eleven months and it was during this time that the first manager was promoted. He returned to work and says that the new manager 'started on him' the first day of his return. He eventually stopped working in 2022 and has not returned since. He says he eventually resigned from the position as he struggled whenever he received any communication from Ikea. He says that he tried starting a gardening business but was unable to manage it owing to anxiety.

Mr Jayden says that he had been seeing a councillor but had to stop because of issues with payments. He has started seeing another councillor and has had two sessions. He has been under the care of psychiatrist Dr Chow for over a year, who switched him from Escitalopram to Vortioxetine. He was also prescribed Quetiapine 50mg but is trying to come off it."

"Mr Jayden says that he has "ups and downs" but is mostly down in his mental state. He says that he is 'just surviving' and the treatment has not helped him. He says that he feels numb 'ninety percent of the time'. The other ten percent is when he gets motivated and does stuff around the house.

He says that his anxiety is 'bad' and he feels sick in the stomach because having to "relive" what happened. He says he feels anxious most of the time, but the "degree" varies. He struggles to sleep without his prescribed Quetiapine. He describes initial insomnia. He says that he experiences nightmares, but they are not as frequent as they used to be. He gets anxious with any mention of Ikea. He has not been to any Ikea store and says he does not want to be near that business in any country. He says that he has driven through the back streets of Tempe but has changed to another gym to be away from Ikea. He describes feeling angry towards Ikea. He feels angry that they did not help him and no one was held accountable for his injury. He can experience flashbacks of his trauma. He says that that can happen with "small things" such as a smell or a sound. He says that he feels on edge all the time. He has an increased startle response but denies being hypervigilant. He is uncertain about his future. He denies ongoing suicidal ideation."

1. When asked to provide "Details of any previous or subsequent accidents, injuries or condition" the Medical Assessor said:

"Mr Jayden says that his childhood was good. He says that there was domestic violence in his parents' relationship, but he did not suffer any direct abuse. He says that he is unaware of any history of mental illness in his family. Mr Jayden says that he was 'misdiagnosed' with bipolar disorder around 1998/99. He was working for correctional services and says that he filled out a mental health questionnaire once and the psychologist who assessed the intake form decided that he had bipolar II illness and sent him to see a councillor whom he saw once or twice. He says that he has not been formally diagnosed with any mental illness previously but was prescribed Escitalopram by his general practitioner about ten years ago. He says that he was taking Escitalopram 10mg at the time of the accident but denies any ongoing symptoms of functional impairment prior to the injury. He denies any other history of mental illness and had not seen any psychiatrist prior to this injury. He denies any history of alcohol or drug misuse. He was injured in a motorbike accident in 1996. He says that he suffered an injury to his occipital nerve but did not suffer any mental health problems. However, he admitted to becoming 'scared' riding motorbikes and saw a holistic practitioner. He says he returned to riding motorbikes and returned to his usual self. He denies suffering any trauma subsequent to the injury."

1. As regards Mr Jayden's activities of daily living, the Medical Assessor said:

"Mr Jayden says that he has tried to do projects around his house, such as rearranging his lounge. He lives on his own and does not have any home help. His ex-partner visits him ad motivates him to clean the house. He says that he struggles to maintain a regular eating regimen and his weight has been fluctuating. He says that he gets meals delivered by Uber Eats. He used to love cooking but now only prepares meals in the air fryer. He says that his hygiene level fluctuates. Some weeks, he showers every day; on some, he can go three days without having one. He says that it is the same with cleaning his teeth. He says that he spends his time sitting on his couch or staring at his computer screen. He has been trying to get a Certificate IV in entrepreneurship and another one in manufacturing and sourcing. He started both the courses together over twelve months ago. He says that he is not progressing well owing to difficulties with concentration. He finds it difficult to comprehend the material as well. He has completed three modules for the entrepreneurship certificate and two or three for the manufacturing and sourcing. He says that he tried another Certificate IV in social media marketing last year but 'ran out of time' as he could not complete the units in the allocated time. His memory is 'bad' and he is unable to remember numbers and tasks. He says that he manages his finances independently. He takes his medication regularly but only because he has put them beside his bed. He says that he had started a relationship in December 2020, but that ended in January 2022. He says that that was related to his mental state. He has remained single since. He has a few friends left but does not see them very often. He says that he has one friend whom he visits. He says that that takes ten minutes in car. He says that he has tried going out to see some other friends, but that worsens his mental state for a few days after. He says that he goes to the shops for groceries and for essentials like getting his hair cut. He says that he recently took a "long drive" up to the North Coast over the New Year. He says that the drive took two days one way. He spent couple of days there and camped with a couple of his friends and attended a party on New Year's Eve. He says that he could not leave his house on Christmas Day and felt that he needed to do something over New Year. He likes going to the gym and says that he goes six days per week. He says that he wants to work but is scared of people and not being able to do things right or being victimised again. He says that he is trying to work out if he can run an online business but has not worked out the details yet."

1. The Medical Assessor did not set out his findings on mental state examination.
2. The Medical Assessor summarised the injury as: "Persistent Depressive Disorder with anxious distress."
3. The Medical Assessor assessed 15% WPI from which he deducted one-tenth pursuant to s 323, a total of 14% WPI.
4. He then turned to consider the evidence before him which was extensive, and we do not propose to set it out in detail, however, relevant to the issues in dispute, the Medical Assessor noted:

"Psychiatrist Dr Abdal Khan provided an independent medical examination report dated 09 January 24. He advised that Mr Jayden was suffering from major depressive disorder with anxious distress. He advised that there was 22% impairment of the whole person, but 2% could be attributed to pre-existing impairment. He advised that the whole person claimant was related to the accepted injury, which was 20% of the whole person.

Dr Sue Morgans provided an independent medical examination report dated 17 May 24. She noted that Mr Jaydens Saxton's physical health history included a stroke resulting in right-sided hearing loss in 2019, a right cochlear implant, double mastectomy in 2019, and right fourth finger amputation in 2017 amongst others. She advised that Mr Jayden was suffering from persistent depressive disorder with anxious distress.

Dr Loukakis referred Mr Jayden to a psychologist on 08 August 24. According to the lead referral letter, Mr Jayden had a non-binary gender.

Treating psychiatrist Dr Frank Chow provided an initial assessment report dated 09 May 23. It was noted that Mr Jayden's abuse included comments about his gender and race. He further noted that Mr Jayden was a transgender male who had transitioned from being female to non-binary after the trip to Thailand.

Dr Chow's next letter, dated 23 June 23, noted that Mr Jayden was doing much better but was still anxious in the workplace. He opined that he noted that Mr Jayden was doing volunteer garden work with friends occasionally but could not return to the same workplace where he was injured.

The last recorded sessions [with the psychologist] were dated 08 August 23. It was noted that his anxiety had been high lately and that his position had been advertised to replace him on a temporary basis. It was further noted that he couldn't work with anyone because it triggered him. He was trying to get his gardening business up and running. Stress from partner's child being sick was noted as well."

1. Dealing firstly with the category of Social and Recreational Activities, the Medical Assessor assessed a Class 2 and said:

"As described in the main body of the report, he has mild impairment. He attended an event on the North Coast over the New Year on his own volition. He goes to the gym six days a week. When feeling motivated, he tries to work on projects around his house."

"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 appellant submits that a Class 3 rating is appropriate, adding:

(a) The appellant in his statement dated 23 September 2024 at paragraph 25, states that he no longer engages in any social or recreational activities and that he remains at home for most of the day. He also states at paragraph 27 that he withdraws himself from family and friends.

(b) On page 3 of the MAC Dr Gupta records that "he says that he had started a relationship in December 2020, but that ended in January 2022. He says that was related to his mental state. He has remained single since. He has a few friends left but does not see them very often. He says that he has one friend whom he visits" and further "he says that he has tried going out to see some other friends, but that worsens his mental state for a few days after".

(c) The best fit for social and recreational activities should be Class 3 moderate impairment as Dr Khan has assessed. A moderate impairment is consistent with the findings recorded by Dr Gupta in the MAC.

(d) Dr Gupta records that the Appellant did travel to the North Coast over the New Year. However that was a one-off attendance.

(e) Dr Gupta in his MAC recorded that that the worker was consistent in his presentation and that Dr Gupta did not record any inconsistencies during the assessment. As such it is submitted that the worker should be accepted on the history he has provided to Dr Gupta.

(f) Under the heading "Social activities/ADL" Dr Gupta records that the Appellant's relationship ended in January 2022 and that he has remained single since that time and that he has a few friends left but does not see them very often. Dr Gupta also records that the Appellant states he has one friend whom he visits and that he has tried going out to see some other friends but that this activity worsens his mental state.

(g) Dr Abdal Khan in his IME report records in his Table 11.2 that the worker remains socially isolated at his home and also that he doesn't engage in his motorbike club, which is consistent with the description that Dr Gupta sets out on page 3 of his MAC.

(h) The overall functioning of the Appellant is that predominantly his social and recreational functioning is significantly impaired and it is submitted that Dr Gupta has erred in focusing only on one function attended on the North Coast and attending the gym.

1. Attending the gym six times per week is clearly a recreational activity, and one that

Mr Jayden is actively involved in. 2. There is no evidence that Mr Jayden "will not go out without a support person" or that he is "not actively involved" or remains "quiet and withdrawn." 3. In addition, the Medical Assessor noted that the appellant went to the North Coast and he spent "a couple of days there and camped with a couple of his friends and attended a party on New Year's Eve." 4. It must also be remembered that Clause 1.6 of the Guidelines provides:

"Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant's relevant medical history and all available relevant medical information..."

1. The appellant's submissions focus heavily on the appellant's statement which was taken some five months prior to his assessment, and the opinion of Dr Khan.
2. Quite frankly, the appellant's submissions in this category are disingenuous to say the least.
3. We note for example that in a report dated 17 May 2024, Dr Morgans said (noting

"Mx Jayden said they go to the gym every day. Mx Jayden said they did have a long-term partner but is essentially separated from this person, although they still have contact approximately twice per week.

Mx Jayden said they were a member of the 'Dykes on Bikes' club. They said that they did ride their bike in Mardi Gras in 2024. Mx Jayden said that they had recently engaged in archery but only for the induction...They denied any recent holidays...

They have a good relationship with their Mum. Mx Jayden said they started a TAFE course in small business and social media marketing before Christmas and reported it is challenging..."

1. Dr Morgans reported that Mr Jayden in fact went to the gym every day.
2. In short, we agree that the Medical Assessor's assessment in this category was consistent with all of the evidence.
3. Turning next to the category of Travel, the Medical Assessor assessed a Class 1 rating and said:

"As described in the main body of the report, there is no impairment. He has been able to drive long distances without support."

(a) Dr Gupta assesses category 1 for the travel component whereas Dr Khan assesses a 2 for that rating.

(b) Dr Gupta opines there is no impairment of travel because the worker has been able to drive long distances without support. That reference is to the trip to the North Coast over New Years and is not an accurate reflection of the workers overall functioning.

(c) It is submitted that the worker's travelling is restricted generally and that the long drive to the North Coast over the New Year was a one-off. In the body of his report Dr Gupta does obtain a history of an impairment of travel. Dr Gupta records "he says he has tried going out to see some other friends, but that worsens his mental state for a few days after. He says that he goes to the shops for groceries and for essentials like getting his hair cut. He says that he could not leave his house on Christmas Day and felt that he needed to do something over New Year."

(d) In general the worker's condition is that his travel is affected and that a rating of category 2 as recorded by Dr Khan is the best fit. It is also highlighted that

Dr Khan notes in his report at Table 11.3 that the worker struggles with anxiety, panic and avoidance of crowds when he leaves his home.

(e) Dr Sue Morgans in her report dated 17 May 2024, at the Reply page 34 records that the worker struggles to go outside and be with people.

"No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision."

"Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour."

1. Mr Jayden travelled a long distance to the North Coast for a New Year celebration, a trip that took two days and then the return trip.
2. He also travels by car to visit friends and to shop.
3. There is simply no evidence to support the appellant's submission that "the worker's travelling is restricted generally..."
4. Again, we agree that the Medical Assessor's assessment was consistent with all of the evidence.
5. Turning lastly to the category of Employability the appellant submits as follows:

(a) Dr Gupta rates a class 4 being severe impairment whereas Dr Khan rates a class 5 being totally unfit for work.

(b) It is noted that the worker is presently not working and last worked in January 2023.

(c) Dr Gupta sets out that the worker has been trying to get a certificate for entrepreneurship and another one in manufacturing and sourcing. On page 3 of the MAC it is recorded that the Appellant started both those courses together over 12 months ago but he says he is not progressing well owing to difficulties with concentration.

(d) Dr Gupta also records that he has completed three modules for the entrepreneurship certificate and two or three for the manufacturing and sourcing. At the bottom of page 3 the MAC states that the Appellant wants to work but he is scared of people and not being able to do things right or being victimised again. He states that he is trying to work out if he can run an online business but has not worked out the details yet.

(e) Dr Gupta records that "he cannot work for more than one or two days at a time and will struggle to work for more than 20 hours per week or fortnight". There is no evidence that the worker is working for one or two days at a time.

(f) Dr Sue Morgans in her report on page 40 of the Reply states "hence there is evidence to suggest MX Jayden has capacity for early stages of return to work rehabilitation. MX Jayden is reportedly not working. The capacity certificate in April sites 3 hours per day for 4 days a week. I concur" and Dr Morgan states the following completion of necessary treatment it is her opinion that MX Jayden could be considered to have the work capacity of part-time hours.

(g) As at the time of examination the worker isn't working anywhere. The worker has not been able to do any work at all and he hasn't been able to take up doing any work in his gardening business.

(h) It is submitted that the only fair assessment rating for employability must be based upon the workers capacity as at the date of the assessment which is that he cannot work at all and that a rating of 5 should apply.

1. The appellant's submissions are misguided.
2. It is not a question as to whether or not a claimant is actually working but the capacity for work that is relevant.
3. In other words, actually working is not the definitive test.
4. The Medical Assessor assessed a Class 4 rating and said:

"From the review of his documentation and assessment findings, it is my opinion that Mr Jayden has severe impairment. He cannot work for more than one or two days at a time and will struggle to work for more than 20 hours per week per fortnight. [sic] His attendance at work is likely to be erratic, and his capacity would be reduced."

1. The descriptor for a Class 4 rating reads: "Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic."
2. For a Class 5 it reads: "Totally impaired: Cannot work at all."
3. He appellant's treating doctors have consistently noted that he has some capacity for employment.
4. Indeed, Dr Chow noted that Mr Jayden "was doing much better but was still anxious in the workplace." He noted that Mr Jayden "was doing volunteer garden work with friends occasionally but could not return to the same workplace where he was injured."
5. We accept, as did the Medical Assessor, that Mr Jayden certainly has restrictions in this category. He has tried to complete quite a few courses but without success, in part due to the demanding nature of those courses.
6. As the Medical Assessor noted:

"He has been trying to get a Certificate IV in entrepreneurship and another one in manufacturing and sourcing. He started both the courses together over twelve months ago. He says that he is not progressing well owing to difficulties with concentration. He finds it difficult to comprehend the material as well."

1. In a medical certificate dated 5 April 2023, Dr Loukakis noted that Mr Jayden had a capacity to work for "3 hours per day, 4 days per week."
2. In a consultation note dated 26 November 2023 he said: "Nik is able to commence eCommerce industry training now."
3. On 14 January 2024 he said: "Capacity only for computer work required for retraining."
4. Dr Morgans also commented:

"There is evidence to suggest that Mx Jayden has capacity for early stages of return- to -work rehabilitation. The capacity certificate in April cites 3 hours per day, four days per week. I concur."

1. Again, there is ample evidence to support the Medical Assessor's assessment in this category.
2. As the respondent correctly pointed out, "the appellant seeks to cavil with matters of clinical judgment and the MA correctly assessed him in respect of the PIRS categories of social and recreational activities, travel and employability."
3. The task of the Medical Assessor is to weigh up all the medical evidence and draw their own conclusion based on their own clinical assessment in accordance with the Guidelines.
4. For these reasons, the Appeal Panel has determined that the MAC issued on