1. On 28 October 2024, Jamie Kay (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor (the Appeal). The relevant medical dispute was assessed by Medical Assessor Ankur Gupta (the Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 4 October 2024.
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 President's delegate has been satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has therefore been convened and it has conducted a review of the original medical assessment - limited to the grounds 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 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 necessary assessment of the appellant's 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). The psychiatric impairment rating scale categories (the PIRS categories) to be utilised in the necessary assessment are outlined at cls 11.11-11.12 and at Tables 11.1-11.6 of the Guidelines.

1. The appellant was employed as a police officer by the New South Wales Police Force (the respondent) from around May 2012 until she last worked for it in September 2021. She dealt with numerous traumatic events during the course of her employment, especially motor vehicle accidents, but also domestic violence incidents, deaths (including suicides), self-harm incidents, and mental health incidents. She developed a psychological injury. The deemed date for the injury has been agreed between the parties as being 14 June 2013.
2. The appellant claimed compensation from the respondent in relation to the injury, and the respondent has accepted that it is liable to pay compensation in this regard, in accordance with the provisions in the Workers Compensation Act 1987 (the 1987 Act). It has therefore variously paid her weekly benefits compensation, as well as expenses in accordance with s 60 of the 1987 Act.
3. The appellant then claimed lump sum compensation from the respondent pursuant to s 66 of the 1987 Act. She made her formal claim by a letter from her solicitors to the respondent's insurer dated 15 February 2024. She relied upon an opinion from Dr Snowdon in this regard, who assessed her with 20% permanent impairment from the injury.
4. The respondent arranged for Dr McDonald to assess the appellant, and based upon that doctor's assessment, it issued a notice pursuant to s 78 of the 1998 Act dated 27 June 2024, in which it denied liability for the appellant's claim pursuant to s 66 of the 1987 Act on the basis that Dr McDonald had only assessed the appellant as having 12% permanent impairment from the injury.
5. As a result, by an Application to Resolve a Dispute (ARD), dated 14 August 2024 and filed with the Personal Injury Commission (Commission), the appellant has claimed inter alia compensation pursuant to s 66 of the 1987 Act.
6. As the respondent had accepted liability for the appellant's injury, the Commission referred the medical dispute regarding the extent of the appellant's permanent impairment directly to the Medical Assessor. The referral in this regard was dated 6 September 2024.

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with Procedural Direction PIC7.
2. As a result of that preliminary review, the Appeal Panel formed the view that the Medical Assessor had fallen into error in a number of respects when assessing the degree of the appellant's permanent impairment.
3. The Appeal Panel also formed the view that it was not itself able to determine the degree of the appellant's permanent impairment without a further medical examination of her. It therefore exercised its power in accordance with s 324 of the 1998 Act to require the appellant to attend an examination with Dr John Lam-Po-Tang from the Appeal Panel on 17 March 2025.
4. The Appeal Panel in this regard followed the two-stage process explained by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 (at [33]):

"However, if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment."

1. A preliminary review certificate was issued on 17 February 2025 following the preliminary review. It informed the parties of the medical examination on 17 March 2025. The appellant attended the medical examination ordered.

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:

(a) the ARD and its attachments, and

(b) the respondent's Reply (Reply) and its attachments.

1. The parts of the MAC that are relevant to the Appeal are set out in the body of this decision. It is unnecessary however to refer to the MAC in more detail, given the specific grounds of appeal on which the Appeal is made.
2. The Medical Assessor takes an uncontroversial history of the onset of, the causes of, and the treatment for the appellant's psychological injury.
3. In relation to the appellant's "present symptoms", the Medical Assessor only records the following:

"Ms Kay says that her mental state has not improved despite the treatment that she has received. She says that she is 'pretty much the same'. She says that her mood is low most of the time. She can enjoy watching comedic shows, but her mood usually stays low. Her sleep is impaired because of waking up in the middle of the night. She wakes up in sweats but usually cannot remember her dreams. She last had a nightmare two weeks ago. Ms Kay says that she gets anxious when she has to leave the house but not when she is at home. She says that she avoids anything that might cause her panic attacks, such as being in crowded places. Her last panic attack was over one year ago. She says that she does not experience flashbacks for the same reason. She says that she used to avoid driving past the site of the accident from 2013. She moved north to the central coast in 2017 and is now away from that region. She jumps when she hears a siren and starts thinking about the jobs she used to do. She says she usually sits with her back towards the wall for safety. She is hypervigilant when she is out of her house. She denies any irritability or anger. She says that she feels tired all the time...Ms Kay says that she has lost her drive and motivation. Ms Kay says that she has not had a drink for twelve months but had started drinking two to three cans of Southern Comfort per night after the injury. She denies any drug use. She says that she is scared to think about her future. She says that she sometimes thinks about suicide but does not have any plans of doing anything. She says that she feels like a 'waste of space'."

1. In relation to the appellant's "social activities/ADL", the Medical Assessor only records the following:

"Ms Kay is in a de facto same-sex relationship, which has been going on for eleven years. She does not have any children. She says that she and her partner are not as close as they used to be. She says there have been instances when her partner 'packed and left'. She says that that has happened four or five times since the injury, the last time three months ago. She has lost contact with her friends from the police. She remains close to her mother and grandmother. She had drifted apart from her sister and her father...Ms Kay says that she used to go to the gym and do Pilates and Karate prior to the injury but has stopped doing so. She does not take diazepam if she is at home but takes a tablet when she leaves home. This is twice per week on average. She usually goes out to the shops to buy food. She usually shops online but can go to the shops for small buys. She says she walks with her partner around the block a couple of times per week. She went to Woolworths with her partner but had to leave owing to 'too many people'. She scrolls through Facebook and posts occasionally. Her last post was four days ago, which was a picture of a lake she had walked to. The other was about a football game that she was watching. She watches NRL when it is on. She last went to a game two years ago. She has avoided going owing to 'too many people'. She went out for her birthday in April but ensured that it was open space and not crowded. She says she can only attend such events if it is not 'cramped in' and outdoors...She eats a lot of takeaways and has put on fifteen to twenty kilos since the injury. Her partner usually cooks for the two of them. She says that she showers every three to five days. She cleans her teeth at the same frequency. She had a filling in a tooth last year but has not had to see a dentist otherwise. She says that she tries to keep things tidy around her house. She says that she shares cleaning duties with her partner. She says that she drives to her doctor's appointments. She is aware of what other drivers are doing. She says she does not drive long because she worries about her concentration. She says that her mind wanders too much. She says that she is too anxious as a passenger. She does not feel she can use public transport because there are 'too many people'. Ms Kay says she does not think she can work as she does not trust anyone to look after her. She says that she gets too anxious thinking about working. She says that her attention is reduced. She says that she used to enjoy learning new things. She is unable to concentrate for more than fifteen minutes. She says she usually watches reruns of programs such as 'Friends and Big Bang Theory' so she does not have to concentrate on them. She manages her finances. She says she can remember things to do with the claim but has become forgetful otherwise. She forgot her father's birthday and that of her cousin last year."

1. The Medical Assessor does not otherwise record psychological symptoms of the appellant's, and the MAC is silent as to whether any mental state examination was conducted.
2. The Medical Assessor diagnoses the appellant with post-traumatic stress disorder and persistent depressive disorder. The appellant's permanent impairment is assessed at 7%, and the assessment is explained by reference to the PIRS categories (which is discussed below). The Medical Assessor does not make any deduction from the assessment to take into account any previous injury or pre-existing condition or abnormality.

1. As noted at paragraphs 14-16 above, Dr Lam-Po-Tang from the Appeal Panel conducted an examination of the appellant on 17 March 2025. He has now reported to the Appeal Panel, and his full report follows at paragraph 77 below.

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 failed to provide any or any adequate reasoning with regard to his application of the PIRS categories. He did not provide a rationale for his ratings in accordance with cl 11.6 of the Guidelines. He only provided a limited commentary in this regard, and his ratings contrast starkly with those of Drs Snowdon and McDonald. The appellant quotes from the decision of Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887 (Ferguson) at [23]-[24]:

"By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:

... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face.

The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense."

1. The appellant compares the Medical Assessor's reasoning to the reasoning (which was found by an Appeal Panel to involve error) of the Medical Assessor in Tibbey v Central Coast Council [2023] NSWPICMP 510, where the Appeal Panel found (at [90]-[91]):

"This inattention to the evidence before him also infected the reasoning given by the Medical Assessor in all the other categories. We note the submissions by the respondent, and agree that the reasons given by the Medical Assessor were indeed 'economical'. They were, however, also unable to be understood sufficiently to enable the Panel to see whether the MAC does or does not involve any error.

We did not follow the respondent's submission that 'primacy attaches to the opinion of the MA'. Moreover its submission that the Medical Assessor had regard to all the relevant facts was not supported by reference to any portion of the MAC. It is difficult from a reading of the MAC to infer that the Medical Assessor had in fact read all the material before him. Whilst there is a presumption of regularity which attends administrative action, and thus a presumption that a Medical Assessor will have read all the material before him, the paucity of reasoning exhibited rebuts that presumption. There is nothing more than the most peremptory reference to the other expert opinions, and the reference at [10c] of the MAC to the diagnoses and assessments of Dr Smith and Dr Davies falls far short of the standard required as set out in Vegan and Wingfoot. The Medical Assessors path of reasoning was conspicuous by its absence, and whilst reasons need not be extensive or provide a detailed explanation, the standard set out in Vegan requires a minimum explanation of the criteria applied in reaching a medically professional judgement, which the Medical Assessor has failed to do."

1. In reply, the respondent submits that the Medical Assessor's assessments of the appellant in accordance with the PIRS categories were a matter for his clinical judgement, and were open to him on the evidence. He did indeed provide explanations and reasoning for his relevant assessments. It submits that the appellant is seeking to "cavil with a matter of clinical judgement" contrary to Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88 (Pitsonis), and it further submits:

"What an MA is required to do, is demonstrate that they have engaged with the relevant medical evidence available to them, the history obtained from the worker on the date of the assessment and the worker's presentation during that assessment, and provide a conclusion that is open to them on the basis of that evidence considered holistically...The MA has clearly done this as he has dedicated pages 2 to 3 of the MAC to the history provided to him by the appellant, present symptoms and findings on mental statement examination, as well as pages 4 to 7 where the MA provided his reasons for assessment including reference to the medical evidence. It follows that there is no requirement for the MA to explicitly refer to why his findings differed from those of Dr Snowdon or Dr McDonald beyond the explained reasons supporting his conclusions."

1. In Campbelltown City Council v Vegan [2006] NSWCA 284 (Vegan), 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.
2. 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 - that is those errors identified by a party in its submissions - see New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792.
3. The Appeal Panel in this regard has to ensure that it does not disturb any unchallenged findings in the MAC. In Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304, Basten JA stated (at [35]):

"The Appeal Panel was correct in the present case to address the subject matter of the ground of appeal, set aside the medical assessment certificate and issue another certificate including the amended assessments and [emphasis in original] the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessor's reasoning with respect to that finding; neither course was part of its statutory function."

1. The appellant alleges error on the part of the Medical Assessor in relation to each of the PIRS categories. In Parker v Select Civil Pty Ltd [2018] NSWSC 140 (Parker), Harrison AsJ relied upon Ferguson, and stated (at [66]) in relation to a Medical Assessor's assessments pursuant to the PIRS categories that "there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense".
2. In Parker, an Appeal Panel had determined that a Medical Assessor "had erred in assessing Class 3 [relevant to the PIRS category of self care and personal hygiene] because the proper application of the Class 2 mild impairment is the more appropriate one on the history taken by the AMS and the available evidence". However, Harrison AsJ found (at [71]):

"The AMS took the history from Mr Parker and conducted a medical assessment, the significance or otherwise of matters raised in the consultation is very much a matter for his assessment. It is my view that whether the findings fell into Class 2 or Class 3 is a difference of opinion about which reasonable minds may differ. Whether Class 2 in the Appeal Panel's opinion is more appropriate does not suggest that the AMS applied incorrect criteria contained in Class 3 of the PIRS. Nor does the AMS's reasons disclose a demonstrable error."

1. Paragraph 11.12 of the Guidelines makes it clear that the descriptors in Tables 11.1-11.6 are examples only. This position is also made clear in the decision of Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 (Jenkins), in which Garling SCJ helpfully summarised (at [52]-[57]):

"Chapter 1 of the WorkCover Guides is a general description to those in the position of an AMS as to how to apply the Guides. Of particular importance in clause 1.5(a) is the statement which notes that assessing permanent impairment involves clinical assessment on the day of assessment.

A clinical assessment of a claimant is one, but not the only, method of accumulating information about a claimant. Clearly, other medical reports about the claimant's condition, histories obtained from independent observers such as members of the claimant's family, and histories obtained from the claimant themselves, either in the past, as contained in medical reports, or in the process of a consultation, are all matters which are legitimately able to be taken into account.

Clause 1.13 of the WorkCover Guides cannot reasonably be read in the way contended for by the plaintiff. A reasonable reading of that clause underlines the usual process engaged in by a medical expert when assessing the presenting condition, the diagnosis, and the severity of the condition which is being presented. Clause 1.13 requires medical specialists to exercise their clinical judgment. Whilst it is correct to say that the words in the following sentence in clause 1.13 require the medical expert to determine a degree of permanent impairment '... using the tables, graphs and methodology given ...' [emphasis in original], that does not mean that clinical judgment or assessment has no role to play in that process of determination of the degree of permanent impairment.

Particularly with the assessment of psychiatric or psychological impairment, so much, in my view, is self-evident. There is no objective method by which the extent of a psychiatric impairment can be measured, unlike the objective measurement of a restriction on a degree of movement in an upper limb, by way of example, or an objective, and measurable, assessment of the extent of loss of hearing or eyesight.

In assessing the extent of a psychiatric impairment, the WorkCover Guides require the AMS to determine from all of the material at their disposal, whether, in respect of each functional area, the degree of impairment fits into one of the classes which range from no impairment to total impairment.

The submission of the plaintiff that, in assigning a class of impairment to each scale, the AMS is restricted only to the examples of activities listed in the tables or, alternatively, to those activities as a minimum, cannot be accepted."

1. In Jenkins, Garling SCJ emphasises the importance of the clinical judgement of the Medical Assessor in applying the PIRS categories, and concludes at [73]:

"It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review."

1. In accordance with Jenkins, as well as Parker and Ferguson, for the appellant to succeed in showing that the Medical Assessor erred in his assessment of her in relation to any of the PIRS categories, she needs to show that a relevant assessment did not involve merely a disagreement or a difference in opinion. Alternatively, she needs to show that the Medical Assessor did not explain his path of reasoning in sufficient detail, such that speculation is involved in determining whether an assessment does indeed involve merely a disagreement or a difference of opinion, or whether it involves error.
2. The assessment that a Medical Assessor undertakes of a worker's permanent impairment is an administrative task, and consequently there is a presumption of regularity that a Medical Assessor has attended to all matters necessary to undertake the task of assessing a workers' permanent impairment. In Bojko v ICM Property Service Pty Ltd & Ors [2009] NSWCA 175, Handley AJA stated at [36] why the appellant failed in that case:

"The worker has therefore failed to establish either ground of appeal. Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:

'... a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. ... the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.'"

1. In Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 (Vitaz), Basten JA at [34] stated:

"Questions as to the adequacy of the reasons given by an approved medical specialist are different in kind. Although reasons are required so that the unsuccessful party may know why he or she has failed, it does not follow that a medical specialist has to give reasons which are immediately comprehensible to a person with no medical expertise. For example, a medical expert speaking to other practitioners might say that some degree of impairment was self-evidently caused by a pre-existing condition, despite the fact that the person was asymptomatic prior to the injury. On the other hand, such a conclusion may be medically contestable. In order for the applicant to succeed in this Court in asserting inadequacy of reasons, there must at least be material properly before the Court which demonstrates that the opinion falls into the latter category."

1. A Medical Assessor's reasons for an assessment need to be such, so that an appellant and a respondent, as well as the Appeal Panel, can comprehend why an appellant's permanent impairment is assessed at a certain level. The reasons need to explain the actual path of reasoning followed by the Medical Assessor. In Western Sydney Local Health District v Chan [2015] NSWSC 1968, Adams J (at [13]) saw the role of the Medical Assessor as analogous to the role of the Victorian Medical Panel discussed by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (Wingfoot). At [55] in Wingfoot, the plurality of the High Court stated as follows:

"The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."

1. In relation to this PIRS category, the Guidelines describe the following in Table 11.1:

"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 placed the appellant in Class 2 and gave reasons:

"As described in the main body of the report, there is mild impairment. She does not look after her hygiene much. However, she keeps the house clean with her partner. She keeps her surroundings clean as well. She did not appear unkempt at the time of the assessment. Although she describes a loss of appetite, she states that she also states that she has gained a significant amount of weight since the injury".

1. The Medical Assessor records (see paragraph 21 above) that the appellant "eats a lot of takeaways" and that her partner usually cooks for them both. He also records that the appellant only showers and cleans her teeth every three to five days.
2. In her 5 August 2024 statement (found at page 17 of the ARD), the appellant advises:

(a) she buys prepared meals because "I just do not cook";

(b) she often goes long periods without showering;

(c) she needs prompting to brush her teeth or change her clothes, and

(d) if her partner was not around, she would "certainly regularly skip meals".

1. Having regard to this evidence (including that taken by the Medical Assessor), the Appeal Panel finds error with his assessment. He has not explained his path of reasoning in finding a Class 2 impairment, considering the appellant's lack of showering, cleaning her teeth, and wearing clean clothes, as well as her reliance upon her partner. He does not even mention these (significant) issues when giving his specific reasons for his assessment. Even if the path of reasoning was found to be explained, it is the opinion of the Appeal Panel that the reasons are not supported by the evidence, which establishes significantly more than the Medical Assessor just expressing "a difference of opinion on a subject about which reasonable minds may differ". It is the opinion of the Appeal Panel that the evidence is such that it cannot produce a finding of a Class 2 impairment.

1. In relation to this PIRS category, the Guidelines describe the following in Table 11.2:

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

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

1. The Medical Assessor placed the appellant in Class 2 and gave reasons:

"As described in the main body of the report, there is mild impairment. She can go out, but only in a limited manner. She can go for meals if the place is not crowded and is in an open setting. She can go to the shops to buy things if needed and go out to buy food as well. She goes out for walks with her partner."

1. The Medical Assessor records (see paragraphs 20-21 above) that the appellant watches comedic shows at home but her mood usually stays low. She is active on Facebook and watches rugby league on television. She usually shops online except she can go to the shops for "small buys". She gets anxious and needs to take medication when she leaves her house. She avoids crowded places. She has ceased going to the gym. She walks with her partner "around the block a couple of times per week".
2. The appellant refers to some of these activities in her 5 August 2024 statement, and she also advises:

(a) she avoids leaving her house as much as possible and is "largely housebound";

(b) her panic attacks can be triggered by leaving her house, even if it was only to buy a birthday card or go to a coffee shop, and

(c) although she travelled independently to the United States, "it did not go well", her anxiety increased, she was miserable the whole time, and she returned home early.

1. The Appeal Panel notes that the specific reasons for the Medical Assessor's assessment essentially only refer to the three activities of dining out, essential shopping (not a social or recreational activity), and walking. They do not refer to social and recreational activities conducted at home (which are to be considered in accordance with Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781) and they do not refer to the appellant's United States travel or her ceasing to go to the gym.
2. The reasons are vague, partly irrelevant, and lacking in detail. The reasons do not sufficiently engage with the evidence. The Appeal Panel cannot see the Medical Assessor's path of reasoning to his assessment on this basis. The Appeal Panel finds error in this regard.

1. In relation to this PIRS category, the Guidelines describe the following in Table 11.3:

"Class 1 - No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.

Class 2 - Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour."

1. The Medical Assessor placed the appellant in Class 1 and gave reasons:

"As described in the main body of the report, there is a minor deficit attributable to the normal variation in the general population. She stated that she only drives for up to 20 minutes and cannot use public transport, but it is documented that she travelled to Las Vegas for a holiday in early 2024."

1. The Medical Assessor records (see paragraphs 20-21 above):

(a) the appellant avoided driving past the site of an accident which she investigated in 2013 during the course of her employment with the respondent;

(b) the appellant is hypervigilant when travelling, especially when she hears a siren;

(c) the appellant is able to drive to doctor's appointments, but she does not drive for long as she worries about her concentration, and

(d) the appellant does not use public transport.

1. Relevantly however, the Medical Assessor did not record a history taken directly from the appellant (see paragraphs 20-21 above) of her Las Vegas trip, in order to ascertain its significance.
2. In her 5 August 2024 statement, the appellant:

(a) explains the difficulties which she experienced during her Las Vegas trip - see paragraph 48(c) above, and

(b) explains - "Whilst I can still drive, I do so only short distances and places that I know. Travelling long distances is difficult because of my problems concentrating and remembering where I am going. In heavy traffic I can also get very easily panicked and agitated".

1. The appellant's restrictions with travel (as detailed both by her and the Medical Assessor) would seem to place her well outside a Class 1 assessment of having no deficit or only a minor deficit. Nevertheless, the Medical Assessor finds the Class 1 assessment mainly because of her Las Vegas trip (in relation to which he did not record a direct history from her, and in relation to which he does not consider the difficulties experienced by her - as referred to in her 5 August 2024 statement). His path of reasoning is therefore not fully explained or referenced by way of evidence. It does not contain sufficient detail. The Appeal Panel therefore finds error with his assessment.
2. As with the PIRS category of 'self care and personal hygiene', the Appeal Panel also finds that even if the Medical Assessor's path of reasoning was found to be explained, the evidence is such that a Class 1 impairment is "glaringly improbable" (in accordance with Ferguson) and not a "difference of opinion on a subject about which reasonable minds may differ". The evidence (including the appellant's explanation as to her difficulties during her Las Vegas trip) does not support that her travel 'deficit' is only a normal variation present in the general population.

1. In relation to this PIRS category, the Guidelines describe the following in Table 11.4:

"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 placed the appellant in Class 3 and gave reasons:

"As described in the main body of the report, there is moderate impairment. She remains close to her mother but has drifted apart from her father and sister. There have been some periods of separation from her partner."

1. The Medical Assessor records (see paragraph 21 above) that the appellant and her partner are not "as close as they used to be". The partner has "packed and left" on four or five occasions. Nevertheless, her partner usually cooks for the two of them, shares cleaning duties, and goes for walks with her a couple of times per week. The appellant also remains close to her mother and grandmother.
2. In the appellant's 5 August 2024 statement, she advises:

"Whilst my partner, Jasmin has been supportive of what I have been going through, I do feel like we are drifting apart, and our relationship is not intimate anymore."

1. The issue here is whether the appellant's existing relationships have been strained (justifying a Class 2 assessment) or severely strained (justifying a Class 3 assessment). The Appeal Panel finds the specific reasons for the Medical Assessor's assessment in this regard to be vague and lacking in detail. The reasons do not adequately explain his actual path of reasoning to allow the Appeal Panel to determine whether that path of reasoning involves any error. In those circumstances, the Appeal Panel finds error with the assessment.

1. In relation to this PIRS category, the Guidelines describe the following in Table 11.5:

"Class 2 - Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.

Class 3 - Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (eg operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting."

1. The Medical Assessor placed the appellant in Class 2 and gave reasons:

"As described in the main body of the report, there is mild impairment. Her concentration is reduced, and she avoids driving for long periods because of her reduced concentration. She stated that reduced concentration was a barrier to her return to work. Her memory with regard to the claim is maintained, and she was able to focus for the entire duration of the assessment."

1. The Medical Assessor does not in the opinion of the Appeal Panel record sufficient details regarding the appellant's concentration issues. He only substantially records (see paragraphs 20-21 above):

(a) the appellant's sleep being impaired;

(b) the appellant having lost drive and motivation;

(c) the appellant worrying about her concentration while driving;

(d) the appellant being unable to concentrate for more than 15 minutes - as a result, she watches television programs that she does not have to concentrate upon;

(e) the appellant being able to manage her finances, and

(f) the appellant becoming forgetful - especially in relation to birthdays.

1. The appellant refers to some of these issues in her 5 August 2024 statement, and she also advises:

"I have major issues with memory, concentration, energy and mental stamina. I cannot retain new information well and struggle due to being easily distracted. Whilst part of my treatment is trying to develop a routine, I struggle with following instructions and barely keep up with tasks including domestic chores...I find it very difficult to focus and concentrate when I am reading. I tend to zone out and not pay attention when I am watching shows. I tend to only watch repeats which I have seen many times before...I struggle with even the thought of a return to work. I have no motivation, energy, ability to focus or concentrate and have increases in my anxiety with any sort of interaction with people. I believe both myself and my doctors consider that I will be unfit for work indefinitely in the future...It makes me extremely upset to reflect upon the person that I now am. I considered that before my injury I was a high functioning, motivated and capable individual and accomplished many things and was able to travel alone. Now, I feel like a shell of the person I once was."

1. The specific reasons for the Medical Assessor's assessment essentially only refer to the appellant's concentration issues, without sufficient regard to memory, energy, and motivation issues. The assessment is therefore again lacking in detail as well as engagement with the evidence.
2. Further, the Class 2 assessment (which specifies an ability to concentrate for up to 30 minutes) is inconsistent with the Medical Assessor's recording (see paragraph 65(d) above) of an inability to concentrate for more than 15 minutes.
3. The Appeal Panel is unable as a result to determine the Medical Assessor's path of reasoning to his assessment, and finds error in this regard.
4. It is also worth noting that the inconsistency outlined at paragraph 68 above would not be just "a difference of opinion on a subject about which reasonable minds may differ".

1. In relation to this PIRS category, the Guidelines describe the following in Table 11.6:

"Class 4 - Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.

1. The Medical Assessor placed the appellant in Class 4 and gave reasons:

"As described in the main body of the report, there is severe impairment. She can work in a non-policing, home-based role, less stressful for up to 15 hours per week."

1. The difficulty with this assessment is that the Medical Assessor does not record (see paragraph 21 above) any discussions with the appellant regarding her work capacity, other than to note that she does not think that she can work, as she does not trust anyone and as she gets too anxious when she thinks about work. It is therefore unclear why he believes that she has some work capacity, especially in the light of:

(a) her statement evidence - see paragraph 66 above;

(b) Dr Snowdon's opinion as to her being unfit for any work (for at least 12 months) - in the doctor's 7 February 2024 report (found at page 28 of the ARD), and

(c) the opinion of her treating psychologist (Krista Hawke) in a report dated 5 February 2024 (found at page 74 of the ARD) that "Ms Kay may be able to be reassessed in 24+ months though it is unlikely she will make sufficient gains to ever be employable again".

1. It seems that the Medical Assessor may have based his assessment of the appellant's work capacity in accordance with Dr McDonald's opinion as he mentions that opinion on page 6 of the MAC. However, he does not detail in any respect his reasoning for agreeing with Dr McDonald, rather than agreeing with the appellant, Dr Snowdon, and Krista Hawke. There is in fact no path of reasoning that can be identified at all in this regard. The Appeal Panel therefore finds error with the assessment.

1. The Appeal Panel has therefore found error in relation to each of the Medical Assessor's assessments of the appellant in accordance with the PIRS categories. It has found his actual path of reasoning to not contain sufficient detail to enable the Appeal Panel to determine whether that path of reasoning discloses error (in accordance with Wingfoot), which also indicates that insufficient reasons have been provided to enable the appellant to know why she "failed" (in accordance with Vitaz).
2. The Appeal Panel as a result rejects the respondent's submissions. While the respondent is correct that assessments in relation to the PIRS categories are matters of clinical judgement for the Medical Assessor, the Appeal Panel does not accept that he provided explanations and reasoning for his clinical judgement. In relation to the other issues raised by the respondent at paragraph 28 above:

(a) the Appeal Panel considers that the Appeal is not an attempt to cavil with a matter of clinical judgement as discussed in Pitsonis as the relevant clinical judgement is not adequately explained with reasoning;

(b) the Appeal Panel does not consider the Medical Assessor to have taken a sufficient history from the appellant regarding her psychological symptoms - the full extent of that history is quoted at paragraphs 20-21 above - the Medical Assessor as a result has been unable to use that history to develop an actual path of reasoning for his assessments, and

(c) the Appeal Panel can find no reference to the Medical Assessor conducting a mental state examination - contrary to the respondent's submissions.

1. Having found the Medical Assessor to have erred, it is incumbent upon the Appeal Panel to re-assess the appellant in accordance with the relevant PIRS categories. As advised, this assessment took place on 17 March 2025 and Dr Lam-Po-Tang has reported to the Appeal Panel after that assessment, as follows:

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

Ms Kay advised that in October 2023, she flew to the United States. She explained that her psychologist, Ms Krista Hawke, had encouraged her to do so. She flew to Los Angeles by herself, and stayed in Burbank for one or two nights. Whilst there, she went on VIP tours of Universal Studios and Warner Bros Studios, explaining she did so because she wanted to avoid crowds. She then flew to Las Vegas to meet a friend, who had flown from Canada, to attend a music festival. Once at the festival, Ms Kay advised she lasted an hour before deciding she was unable to cope with it, and did not see the acts that she had hoped to see. She recalled: 'I couldn't handle the crowds', and thought to herself: 'I can't do this'. She ended up curtailing her trip, spending 6 days away, instead of the planned 14. She stated she flew directly from Las Vegas to Australia. When questioned about this, given there are no direct flights between Las Vegas and Australia, she expressed uncertainty about her route. She said that she found the trip very challenging, and opined it has taken more than 12 months to recover from it.

Ms Kay has been trialled on a range of psychotropic medications in the past, including antidepressants, sertraline, agomelatine, mirtazapine and most recently, desvenlafaxine, from 2022 to 2023. She has been prescribed a range of others, including sodium valproate, clonidine, propranolol, quetiapine and lorazepam. She has not been on any antidepressant medication since 2023. The only persisting medication has been the current diazepam.

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

Ms Kay was initially assessed in September 2024 for a Medical Assessment Certificate. At the time of this evaluation, she had been consulting with her psychologist, Ms Hawke, for around 7 years, typically every 4 weeks for face-to-face consultations of an hour. The nature of intervention was described as cognitive behaviour therapy, with an emphasis on 'a lot of trigger management, management of anxiety and PTSD'.

Since the September 2024 assessment, Ms Kay has continued to take diazepam on an as-needed basis, either 2 mg or 4 mg. She has not been prescribed any new psychotropic medications since that time.

At some point after the September 2024 assessment, Ms Kay was advised that Ms Hawke was taking leave; her last consultation was in either October or November 2024. Ms Kay advised that she wasn't given any notice about this, and has no idea about the reason for the leave. Ms Kay opined that since ceasing psychological consultations, her motivation has deteriorated, and she is less likely to leave the house.

In November 2024, Ms Kay's partner, Jasmine, began IVF treatment, and has had two cycles to date, though has not conceived. When asked how she thought she'd cope with a new baby in the household, Ms Kay replied: 'I have no idea, she's always wanted one, so I don't feel I have a choice. It'll be difficult'.

At Xmas 2024, Ms Kay and her partner visited her partner's sister at her home for an hour or so. At New Year, Ms Kay and her partner stayed at home.

Ms Kay has continued to see her general practitioner, Dr Stephen Green, on a

4-weekly basis since September 2024, and has continued to see her psychiatrist, Dr Mark Scurrah, every 3-4 months. She consults Dr Green in person for consultations lasting around 15 minutes, at the Warnervale Superclinic. The focus of these are completion of workers' compensation documentation, review of overall health, and prescription of diazepam. The consultations with Dr Scurrah are all via telehealth - Ms Kay has never met him in person - and last around 45 minutes. The focus of consultations has been 'mainly just discussing symptoms'.

In the week prior to the current evaluation, Ms Kay advised she contacted Ms Hawke's office to enquire whether or not Ms Hawke is able to provide ongoing psychological consultations. She said that if this is not possible, she will have to organise to see another psychologist.

At no point since September 2024 has Ms Kay consulted another psychologist, required psychiatric hospitalisation, required community mental health follow-up, or attempted self-harm. She reported no trials of psychotropic medications between September 2024 and the present time. She advised she has continued to experience ongoing psychiatric symptoms, with no significant change in these. She reported no change to her physical health status during the period of interest.

Currently, Ms Kay reports ongoing psychiatric symptoms. She described her mood as 'consistently flat', rating it at 3-4/10 on a 10-point scale, where 0/10 represents a very depressed mood, and 10/10 represents a very cheerful mood. She reported the capacity to enjoy some things, such as spending time with her partner, or her cat. She reported no diurnal mood variation. She denied intent or urges to commit suicide, but commented: 'I sometimes think I'm a waste of space - I don't contribute to anything. It would be just better off if I wasn't here'. She denied any overvalued ideas of guilt, and expressed some thoughts of hopelessness vis-a-vis symptomatic improvement. She described her energy levels as 'non-existent'. She reported reduced appetite and interest in food. She thought her weight was slowly increasing. She estimated her current weight at 71 kg, at a height of 163 cm. Persistent insomnia was reported, with Ms Kay estimating it typically took several hours to fall asleep, with multiple wakenings during the night. Sleep was described as unrefreshing. She reported inconsistent dreams of being at work, but added: 'I wouldn't call them nightmares'. She denied experiencing flashbacks for around 2 years.

Additional symptoms reported by Ms Kay included recurrent thoughts of distressing incidents: 'I think all the time - I often think about the fatal car accident I went to that caused all of this. I think - What if I didn't go there? Why did this happen to me?'. She reported unsuccessful attempts to suppress these memories. She reported avoidance behaviour of the scene of the fatal car crash, and advised she moved to the Central Coast many years ago to avoid having to drive near or past the site. She described general avoidance of leaving the home, and avoidance of crowded situations. She recounted: 'I'm hypervigilant on the roads, yah, I'm always thinking someone's going to pull out on the road'. This occurs whilst driving or when being driven by her partner. She reported feeling 'jumpy' about the potential for collisions. She reported anxiety about being 'not in control of the car', and related this to a workplace incident where she was a passenger. She reported a tendency to worry about her safety and the safety of others, and also a sense of mistrust: 'I don't trust anyone in the world. Even doctors, sometimes, [I worry] if they're going to retire or leave me. I don't feel I can rely on anybody'.

Ms Kay presented as a Caucasian woman of stated age. She had short brown hair, and wore a patterned top, appearing in good physical health. She made good eye contact through the videoconferencing platform. There were no distinguishing marks or features. She was co-operative with the assessment process. No psychomotor agitation or retardation was noted at any stage.

Ms Kay's speech was spontaneous, fluent, and normal in rate, volume and rhythm. There were occasional delays prior to answering some questions, but no persistent increased latency of response. Her affect was moderately restricted in range and intensity; she smiled very occasionally and only briefly at these times. She was not labile or tearful. Her affect was congruent with the subject matter. Her mood was described as depressed; objectively she did not present as elevated, apathetic or irritable. Her thought form was logical and sequential, with no formal thought disorder. Her ideas were presented with an appropriate degree of elaboration or detail, with neither poverty of thought nor overinclusiveness. No delusional thought content was expressed or observed. She denied any suicidal urges or intent, however, described thoughts of death, hopelessness and worthlessness.

Ms Kay presented as alert and oriented throughout the 75-minute assessment, with no drowsiness observed, nor any fluctuation in level of consciousness. She did not appear easily distracted. She was able to persist with, and maintain the pace of, the interview.

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

Ms Kay advised she may not shower for up to 4 or 5 days at a time, doing so when her partner prompts her to do so. Ms Kay's partner comments on her smell when she has not washed for a number of days. She estimated brushing her teeth once a week. She dyes and cuts her own hair once every 6 weeks. She advised she never cooks for herself or her partner, relying on her partner to cook food, or ordering takeaway food. She may also eat pre-prepared meals such as 'Lite & Easy'. She orders groceries for the household online, to be delivered. She advised she does little around the house, other than cleaning the cat's litterbox.

Ms Kay reported very limited regular participation in social or recreational pursuits with her partner. She said that she and her partner will walk to a nearby lake, about

5-7 minutes on foot, but they do not swim. She last did this 2 months prior to the evaluation. She said she will drive 5 minutes to a beach in a national park by herself: 'Sometimes I'll go over there to sit on my own' for around 10 minutes. She estimated she did this about once a month. She watches rugby league games on TV: 'I usually watch the [Newcastle] Knights game every week' at home. She explained her partner will usually be in the room at the same time, but has less interest in the game. She said she watches re-runs on TV, namely, 'The Big Bang Theory', 'Will and Grace' or 'Friends', and may have these on for 3 or 4 hours in a day. She noted: 'I can't watch movies any more', and last tried to watch a superhero movie, but ceased watching after 40 minutes due to poor concentration. She does not listen to music, listen to podcasts or listen to the radio. She does not read articles or materials in print or online. She does not play any sport or engage in any exercise.

Ms Kay advised she is able to leave the home alone and drive up to an hour, before she loses concentration. She advised driving to familiar locations, such as her doctor (20 minutes) or her psychologist (40 minutes), or local leisure spots. She opined she could 'probably not' use public transport, due to the presence of other people. She occasionally rides her motorcycle, doing so during the week prior to the evaluation. She advised she had not ridden her electric bicycle for around 12 months. Ms Kay did travel to the US in 2023 alone, however, has not travelled overseas or elsewhere within Australia for 17 months.

Socially, Ms Kay has been in a de facto relationship with Jasmine since 2013. When asked about children, she replied: 'Not at the moment, no', before explaining her partner's recent IVF treatment. She reported no periods of separation. She commented: 'Our relationship has been quite strained since I've been off work and since she's been off work', referring to her partner's workplace physical injury, that resulted in her ceasing work in late 2021 or early 2022. Ms Kay maintains contact with her mother, seeing her approximately every 2 months, when her mother comes to visit: 'Mum's been coming up to my place for about an hour', and they will have a cup of tea. She has limited contact with her father, whom she saw three days prior to the current evaluation, when he dropped by her house for about 10 minutes. She noted: 'He calls me out of the blue once every 4 or 5 months'. She advised she does not see her grandmother much anymore, since she moved away from where she lived, to her current residence. She said she doesn't have any friends. She advised that her partner also doesn't have any friends. She advised that having moved into her current house in May 2024, she hasn't met or interacted with her neighbours, other than noting: 'They've waved'.

Ms Kay reported subjective impairment in concentration. She advised she was unable to watch more than 40 minutes of a movie. She reported misplacing her wallet and phone. That said, she has not locked herself out of her house, and she has not scraped or damaged her car due to poor concentration for some years. She was able to persist with the interview which lasted 75 minutes.

Ms Kay has not worked in any paid or unpaid capacity since 2021. She has not engaged in any formal or informal study over the same period. She did not describe regularly undertaking activities within the home that would translate to an occupational role.

1. Assessment in accordance with PIRS categories

Ms Kay advised she may not shower for up to 4 or 5 days at a time, doing so when her partner prompts her to do so. Ms Kay's partner comments on her smell when she has not washed for a number of days. She estimated brushing her teeth once a week. She dyes and cuts her own hair once every 6 weeks.

Ms Kay advised she never cooks for herself or her partner, relying on her partner to cook food, or ordering takeaway food. She may also eat pre-prepared meals such as 'Lite & Easy'

Ms Kay reported very limited regular participation in social or recreational pursuits with her partner. She said that she and her partner will walk to a nearby lake, about 5-7 minutes on foot, but they do not swim.

Ms Kay said she will drive 5 minutes to a beach in a national park by herself: "Sometimes I'll go over there to sit on my own" for around 10 minutes.

Ms Kay watches rugby league games on TV: "I usually watch the [Newcastle] Knights game every week" at home. She explained her partner will usually be in the room at the same time, but has less interest in the game. She said she watches re-runs on TV, namely, 'The Big Bang Theory', 'Will and Grace' or 'Friends', and may have these on for 3 or 4 hours in a day.

Ms Kay does not listen to music, listen to podcasts or listen to the radio. She does not read articles or materials in print or online. She does not play any sport or engage in any exercise.

Ms Kay advised she is able to leave the home alone and drive up to an hour, before she loses concentration. She advised driving to familiar locations, such as her doctor (20 minutes) or her psychologist (40 minutes), or local leisure spots.

Ms Kay opined she could "probably not" use public transport, due to the presence of other people.

Ms Kay occasionally rides her motorcycle, doing so during the week prior to the evaluation.

Ms Kay did travel to the US in 2023 alone, however, has not travelled overseas or elsewhere within Australia for 17 months.

Socially, Ms Kay has been in a de facto relationship with Jasmine since 2013. She reported no periods of separation. She and her partner are attempting to have a baby.

Ms Kay maintains contact with her mother, and is in irregular and infrequent contact with her father.

Ms Kay reported subjective impairment in concentration. She advised she was unable to watch more than 40 minutes of a movie. She reported misplacing her wallet and phone.

That said, Ms Kay has not locked herself out of her house, and she has not scraped or damaged her car due to poor concentration for some years.

Ms Kay was able to persist with the interview which lasted 75 minutes. She did not appear easily distracted in the interview.

Ms Kay has not worked in any paid or unpaid capacity since 2021. She has not engaged in any formal or informal study over the same period.

Ms Kay did not describe regularly undertaking activities within the home that would translate to an occupational role.

1. The Appeal Panel adopts the report of Dr Lam-Po-Tang, and its associated assessments of the appellant in relation to the relevant PIRS categories. These assessments are different to the assessments of the Medical Assessor.
2. For these reasons, the Appeal Panel has determined that the MAC issued on 4 October 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

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

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

Chapter, page and paragraph number in NSW workers compensation guidelines

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

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

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

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