1. Ms Kennedy (the appellant) was employed with the respondent. The claimant received a Q fever vaccination on 18 June 1999 and developed chronic fatigue.
2. Ms Kennedy filed an Application to Resolve a Dispute (Application) seeking a determination of the level of whole person impairment. The appellant had previously been awarded compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) based on functional disability to a number of body parts under the Tabel of disabilities due to the chronic fatigue syndrome.
3. The claim for permanent impairment of was based on the report of Associate Professor Haber dated 2024.[1] Associate Professor Haber assessed the chronic fatigue syndrome by analogy with anaemia under Table 9-2 of American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
4. The respondent did not raise any liability issues. In the dispute notice dated 27 August 2024 the respondent referred to the reports of Dr Gorman which indicated the appellant was suffering from chronic fatigue syndrome but there was no impairment for fatigue provided by AMA5 or the Guidelines. The insurer disputed that the assessment should be made analogous to anaemia in circumstances where the appellant experienced variable levels of fatigue and there was a psychological component to the symptoms.
5. The matter was listed before a Member. The assessment of impairment was then referred to a Medical Assessor as the respondent had raised no liability issues. The orders of the Member and the referral to the Medical Assessor specified the body part to be assessed as chronic fatigue syndrome.[2]

1. The medical dispute was assessed by Medical Assessor Gibson who issued a Medical Assessment Certificate dated 1 October 2025 (MAC).[3]
2. The present symptoms recorded by the Medical Assessor were:

"Ms Kennedy reported unremitting fatigue. She said her symptoms are constant and she feels she only has about 40% of the energy she had prior to the vaccination (so in 1999). There are frequent headaches. Her sleep is disturbed. She feels lightheaded at times. She has muscle pains in legs, arms, knees and shoulders. She suffers with restless legs.

There are cognitive issues, in particular problems with memory. She illustrated this by stating that she may read a book before bed, but the following night she can't recall the name of the book, although she can recall the content. She has difficulty remembering staff and student names. She feels unable to undertake mathematic problems as she had previously been able to perform and Mathematics used to be one of her areas of expertise. She described slowing of cognition and general brain fog.

Her mood is low, as she reflects on her loss of career and ability to engage socially. She said that prior to 1999 she was involved in a pony club and clay pigeon shooting. She feels she is not as physically capable as she was before. Her libido is reduced. She has bladder issues. There is also neck pain. She noted that she at one stage she was found to have abnormal liver function tests but these have since returned to normal. She said the abnormality had been attributed to the medication she had been taking for sleep, which she has since ceased."

1. When discussing other medical opinions, the Medical Assessor stated:[4]

"Dr Richard Haber reported 27 January 2024. He had noted that she was currently fit for light part-time duties but was likely as she gets older to be able to cope with a few hours. He assessed her whole person impairment by analogy and was of the view that the best analogy was anaemia. He felt she was equivalent to a haemoglobin of 8g percent with moderate to marked symptoms and thus assessed 40% whole person impairment with no deduction.

Dr Haber has assessed the condition as being analogous to an anaemia, and references Table 9.2 of AMA 5 and applies the upper end of the range. Whilst I concur with his analogy, I do not agree with the impairment rating, as described above.

Dr David Champion reported 10 March 2006. He noted that "because this is essentially a neurobiological disorder, it is very difficult to formulate a measurement, and yet she is a person who should be believed, as I do and as her treating doctors have done, so must be appropriate to arrive at an assessment.

Whilst noting that there would be 'very diverse views' he assessed 20% permanent loss of use of right arm at or above the elbow, 20% loss of use of the left arm at or above elbow, 20% loss of efficient use of the right leg at or above knee, 20% efficient use of left leg at or above knee, 20% impairment of neck and 20% impairment of back.

He did note however that "there is no actual disease process in her limbs nor in her spine, but rather functional incapacity as a consequence of 'neurobiological injury in a legal sense.' She is able to use her neck, back and all limbs normally in brief examination, but is not able to use her limbs (all her neck or back) to a normal degree throughout the working week.

Dr Champion does note that there were no objective findings, and I agree."

1. The Medical Assessor provided the following reasons for the assessment of whole person impairment:[5]

"Ms Kennedy reports longstanding and troubling symptoms, since a Q Fever vaccination in 1999. There were no objective abnormalities demonstrated on blood testing and she takes no medication specifically for the condition in question. She has described her current restrictions relating to day to day activities and her occupational limitations. There is no impairment rating in AMA 5 for fatigue illnesses, or for vaccine mediated fatigue, which is the case here. However s1.23 of the NSW Workers Compensation guidelines does allow assessment based upon an analogous condition. In this case, a haematological condition, anaemia is the most applicable, as this can produce fatigue. I was of the opinion, that her presentation today has more in common with an anaemia of chronic disease, as per the Class 1 example 9.2 (p194), with impaired ADL, which would rate up to 10%WPI. Nevertheless, I do appreciate that her description of the regularity of her symptoms, and thus accept this could approach a Class 2 impairment. However, based on my assessment today and the lack of any objective blood abnormalities, I was of the opinion that the lower end of the scale would be more appropriate."

1. The Medical Assessor found no assessable pre-existing condition and assessed overall impairment at 11%.

1. On 29 October 2025 the appellant lodged an Application to Appeal Against the Decision of the Medical Assessor. The grounds of appeal were that the MAC contained a demonstrable error, and the assessment was made on the basis of incorrect criteria.
2. In her written submissions the appellant requested a re-examination.
3. The respondent filed a Notice of Opposition to Appeal Against a Decision of the Medical Assessor denying relevant error.
4. The delegate of the President was satisfied that a ground of appeal has been made out and referred the application to appeal to a Medical Appeal Panel.[6]
5. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and the parties' submissions on the appeal.
6. We are required to only address the subject matter of the ground of appeal. In Queanbeyan Racing Club Ltd v Burton[7] Basten JA stated:[8]

"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 the original unchallenged assessment. In doing so it neither purported to reassess the unchallenged finding nor to adopt the medical assessors' reasoning with respect to that finding; neither course was part of its statutory function."

1. The appellant sought to admit her statement concerning the conduct by the Medical Assessor in the medical examination. The statement relevantly provided that the Medical Assessor:[9]
   • stated that she "only have three pages" and showed these pages to the appellant;
   • did not call or email anyone during the course of that examination seeking any additional documents, and
   • did not ask any questions "about any other medical reports, notes, records and./or my earlier statements".
2. The appellant submitted that without the statement the "errors in the medical assessment may not be fully appreciated in the context of the examination".
3. The appellant submitted that the statement is not merely evidence of criticism of the medical assessment of the process but is "evidence of a medical kind in that it assists to understands the circumstances of the short coming" outlined above.
4. The appellant referred to the observations of Hodgson JA in Lukacevic v Coates Hire Operations Pty Ltd[10] and submitted that the further statement has "substantial prima facie probative value", there was nothing "flimsy in what the Appellant is raising in the statement" and there was "no mandatory rule preventing the admission of such statements".
5. The appellant submitted that preventing reliance on the statement was inconsistent with the objects of the 1998 Act, inconsistent with the guiding principle of "just, quick and costs effective" (s 42 of the Personal Injury Commission Act 2020 (the PIC Act)) and that the proceedings should be conducted with little formality and technicality and the Personal Injury Commission (Commission) should inform itself of any matter acting in accordance with equity, good conscience and the substantial merits (s 43 of the PIC Act).
6. The respondent submitted that the statement that the Medical Assessor only had three pages of evidence appeared "at odds with the contents of the MAC" given the comments on page one of the MAC and the discussion at pages six and seven of various documents.
7. The respondent further submitted that the appellant failed to make any submissions as to how the assessment was unfair or how this impacted on the assessment of the appellant's condition.

Determination of the admission of the statement

1. The appellant does not state whether it seeks to admit the material under s 327(3)(b) or 328(3) of the 1998 Act.
2. Section 327(3)(b) of the 1998 Act provides that the material must be "additional relevant information" which was not available to and could not have been obtained prior to the examination.
3. Section 328(3) of the 1998 Act provides that the Appeal Panel is not to receive evidence that is fresh evidence, or evidence in addition to, or in substitution for, the evidence received in relation to the medical assessment appealed against, unless the evidence was not available to the appellant before the medical assessment and could not reasonably have been obtained by the appellant before the medical assessment.
4. In Lukacevic Hodgson JA stated:[11]

"Having regard to the matters I have set out, in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act."

1. Handley AJA considered evidence pertaining to the examination process as "fresh evidence" within the meaning of s 328(3). His Honour also considered that the Panel could exercise its discretion in deciding whether to admit the evidence.[12]
2. The Court of Appeal in Stolzenberg v Workers Compensation Nominal Insurer[13] recently referred to the observations of Hodgsons JA in Lukacevic. Stern JA stated:[14]

"As to such matters, the observations of Hodgson JA in Lukacevic v Coates Hire Operations Pty Ltd [2011] NSWCA 112 ('Lukacevic') at [78] have resonance. His Honour found that it would be reasonable for an appeal panel not to admit evidence raising a dispute as to the history in a MAC or observations made by a medical assessor 'unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support'. Whilst I am not considering the same issue as was before this Court in Lukacevic, the exhortation to consider the probative value of evidence disputing matters in a MAC by reference to its 'particularity, plausibility and/or independent support' is equally apt when considering whether the plaintiff has discharged his onus of proving factual errors or misdescriptions in the MAC."

1. Contrary to the respondent's submissions, the original Medical Assessor does not respond to these complaints.[15]
2. Contrary to the appellant's submissions, the statement is not objective evidence of the facts stated. We agree with the respondent's submission that the statement is inconsistent with documents referred to and addressed within the MAC.
3. There are a number of inconsistencies between the appellant's statement and the contents of the MAC. First, there is the reference by the Medical Assessor to the terms of the referral document contained at page 1 of the MAC. The Medical Assessor obviously viewed the referral because the date of injury, body parts and method of assessment are quoted from the referral within the MAC.
4. Secondly, the documents referred by the Commission are set out in the referral of assessment of Permanent Impairment to Medical Assessor[16] at page 1 of the MAC. Those documents were described in the referral as the Application and documents attached to the Application, the response and documents to the Response and the Member's certificate of Determination.
5. Thirdly, the Medical Assessor at page 6 of the MAC referred to a "consideration of the documentary evidence".
6. Fourthly, there is discussion within the MAC to a number of medical reports. They include:
   • the report of Dr Richard Haber dated 27 January 2024 at pg 6 of the MAC. This is a seven-page report;
   • the report of Dr Champion dated 10 March 2006 at pg 6 of the MAC There are two reports provided by Dr Champion. Both reports are summarised by the Medical Assessor including the second report which provided assessments under the table of disabilities. These reports are seven pages, and
   • the Medical Assessor correctly stated that the appellant has suffered a reaction which has produced ongoing symptoms of fatigue which "has been accepted to be the case by multiple treating physicians". This statement indicates that the Medical Assessor read the reports produced by "multiple treating physicians".
7. The applicant's statement that the Medical Assessor only considered three pages is inconsistent with the fact that the Medical Assessor has referred to a number of documents of various length. Further, the Medical Assessor has noted the referral which sets out the material referred for assessment. The appellant's statement that the Medical Assessor only considered three pages is implausible and rejected because it is inconsistent with the material referenced and summarised in the MAC.
8. The appellant's submission that her supplementary statement should be admitted because of other statutory provisions is rejected. Both s 327(3) and s 328(3) of the 1998 Act provide the statutory basis for the admission of fresh or further evidence on an appeal from a medical assessment. Those provisions are not subject to general provisions concerning the admission of evidence generally or the practice of the Commission. The submission is contrary to the principle of statutory construction that a general provision in a later Act does not repeal specific provisions in earlier legislation.[17]
9. Sections 327 and 328 provide the statutory basis for the admission of further evidence on an appeal from a medical assessment. The specific terms are restrictive and consistent with the scope of the appeal process discussed in Burton.
10. The claimant selectively referred to the system objectives in s 3(d) of the 1998 Act ("fair") whilst omitting references to a system which is "affordable and financially viable". General provisions concerning purpose where no specific purpose is identified does not override the clear restrictive provisions in ss 327 and 328 for the admission of fresh and further evidence on appeal.
11. Even if the other general statutory provisions applied, which we do not accept, for the reasons outlined above, the supplementary statement has limited value and is implausible. The evidence is rejected.
12. We otherwise agree with the respondent's submission that the statement is a criticism of the medical assessment and/or the process. In light of these conclusions, it is unnecessary to refer to the respondent's other submissions supporting a rejection of the supplementary statement.

1. The appellant noted there was no dispute that the appellant suffered from chronic fatigue syndrome following the administration of a Q-fever vaccination on 18 June 1999. There was no dispute between the parties as to the existence of the condition because of the acceptance of liability. The dispute between the parties was the degree of permanent impairment caused by the condition and whether the condition was capable of assessment under the Guidelines and AMA5.
2. The appellant noted that the Medical Assessor assessed impairment by analogy under Table 9.2 of the Hematopoietic System. It was submitted that the Medical Assessor "fell into error in assessing impairment of the digestive system "by asserting that there was an absence of clinical signs". The Medical Assessor concluded that the lower end of class II was appropriate given the absence of objective blood abnormalities. The appellant submitted that the errors were:

(a) adopting an additional requirement for confirmation of an underlying condition by reference to blood abnormalities in circumstances where the condition is not in dispute, and

(b) linking the class associations in Table 9-2 to haemoglobin concentration and objective evidence where no such data was present or capable of comparison in circumstances where the contract criteria itself were being used as analogous basis to assess the extent that condition.

1. The appellant noted that the Medical Assessor referenced lack of objective findings as being relevant to the assessment notwithstanding the fact that injury was not an issue and applied the haematologic table "mechanistically rather than functionally". It was submitted that applying the correct criteria required the Medical Assessor to undertake a functional assessment under table 9-1 coupled with classification by analogy. In those circumstances the appellant was properly assessed as class III reflecting "moderate to marked symptoms" given the consistent evidence that she can only sustain eight hours of work per week, suffers profound fatigue and has significant limitations in domestic and recreational activities.

1. The respondent submitted that the appellant has mischaracterised the Medical Assessor's commentary on various opinions. It noted that Dr Champion assessed impairment under the table of disabilities and observed that there was no actual disease process in the appellant's limbs and that the functional incapacity is the result of neurobiological injury.
2. The Medical Assessor observed, on reviewing the opinion of Dr Champion, that she was unable to identify objective findings of functional incapacity in the appellants limbs.
3. The respondent stated there was no dispute that the appellant has an accepted diagnosis of chronic fatigue syndrome attached to the date of injury and that the assessment of the Medical Assessor was to be done by way of analogy. It was the respondent's position that the assessment has not been undertaken on the basis of incorrect criteria.
4. In providing the assessment by way of analogy, the Medical Assessor was required to consider the appellant's chronic fatigue comparable to someone suffering from haemoglobin 8-10g/dL and no transfusion was required. This was the course adopted by both Associate Professor Haber and Dr Gorman.
5. Associate Professor Haber considered the appellant's fatigue would be the equivalent of haemoglobin 8g/dL whilst Dr Gorman considered that the appellant had a level of fatigue better than that. Neither doctor actually considered the haemoglobin level.
6. The respondent further submitted that the Medical Assessor considered the functional impact of the appellant fatigue on the activities of daily living noting such matters as:
   • driving an automatic car for a period of up to one hour;
   • gardening for an hour or so on the weekend;
   • cooking during the day;
   • doing some laundry and most shopping;
   • feeding the animals twice a day when the husband was not around, and
   • socialised during the day by having coffee with friends.
7. The respondent submitted that on the final history taken by the Medical Assessor, the appellant fell within class II of Table 9-1 as there was no evidence that the appellant required assistance "from others to perform the usual activities of daily living" (Class III of Table 9-1).
8. The respondent submitted that when this is read in conjunction with Table 9-2, a class II allocation was appropriate and, on the basis of the history taken by the Medical Assessor, it would be at the lower end.

1. Dr Champion, rheumatologist, was qualified by the appellant and provided two reports dated 10 March 2006.[20] The reports were provided as support for a s 66 claim under the table of disabilities.
2. Dr Champion note the claimant's reaction to the vaccination outlined in a series of reports from Dr Sutherland who outlined a hypersensitivity reaction to the Q fever vaccination. It was noted that Professor Lloyd reviewed correspondence and referred to information from Professor Marmion that it transpired that the appellant had low level pre-existing evidence of antibodies against Q fever prior to the time of the vaccination, which appeared to have triggered the event of a constitutional illness.
3. Dr Champion stated that Professor Lloyd reviewed the history in 2003 and noted there was some evidence that the appellant may well have been immune to Q-fever infection prior to the vaccination, which was a relative contraindication to the vaccine. These key facts went on to apparently trigger the onset of a fatigue syndrome which had persisted and met the diagnostic criteria for chronic fatigue syndrome.
4. After describing various articles, Dr Champion opined that the claimant's response was "likely to be a neurobiological condition". The doctor noted that there was only a small probability of substantial resolution of symptoms.
5. Dr Champion provided an assessment under the table of disabilities for loss of efficient use and an impairment of various body parts.
6. Associate Professor Haber physician and cardiologist was qualified by the appellant's solicitors and provided a report dated 27 January 2024.[21] The doctor opined that the claimant suffered from chronic fatigue syndrome, which is a neurobiological disorder, caused by the Q fever vaccination.
7. Associate Professor Haber assessed the condition based on analogy which was best based on anaemia. The doctor considered that the appellant had the equivalent of Hb 8% with moderate to marked symptoms. Whole person impairment was assessed at 40%.
8. Professor Lloyd, infectious diseases physician provided a series of reports commencing in March 2001.[22] The doctor noted that it is transpired that the appellant had low level pre-existing evidence of antibodies against Q fever prior to the time of the Q fever vaccination which appeared to trigger the event of a constitutional illness following immunisation.
9. In February 2006, Professor Lloyd noted the appellant status remained essentially unchanged, continued to be troubled by prominent fatigue, disturbances of sleep and mood and by musculoskeletal pain. The appellant was then managing 25 hours a week in the workplace and three regular half-hour sessions in the gym as part of a graded exercise program. Activity above these levels precipitated a prolonged exacerbation of symptoms. It was noted the appellant's mood was reasonably stable on regular antidepressant medication and there were no new symptoms to suggest an intercurrent or alternative diagnosis.
10. Professor Lloyd opined that, given the prolonged nature of the illness and the static nature of the disability, his expectation was that the symptoms set in the functional impairment associated with those symptoms will continue at the current level for the foreseeable future.
11. The latest report from Professor Lloyd is dated 19 February 2019. The doctor noted a slowly improving trend with regard to both sleep and mood management. He noted the fatigue state was stable and the appellant was familiar with the principles of activity pacing for day-to-day management.[23]
12. Dr David Gorman, physician, was qualified by the respondent and provided a report dated

1 November 2021.[24] Dr Gorman accepted that the claimant was suffering chronic fatigue syndrome substantially caused by the Q fever vaccination. 13. In a report dated 19 January 2022 Dr Gorman noted there was no assessable impairment for chronic fatigue syndrome in the Guidelines or AMA5.[25] 14. Dr Gorman provided a further report dated 6 August 2024 having reviewed the report of Associate Professor Haber dated 27 January 2024.[26] Dr Gorman maintained his view that the Q-fever vaccination had led to the chronic fatigue syndrome but also felt the perpetuation of the symptoms had been related to a depressed mood. 15. Dr Gorman again noted that there is no provision for the assessment of chronic fatigue syndrome although assessment by analogy is used in circumstances where there is fatigue associated with cancer. The doctor stated:[27]

"However, this should only be done where there is a specific diagnosis and not a diagnosis which is disputed and which is not able to be confirmed by investigation or examination. They should also not be used where there is a psychological component to the symptom of fatigue there is no doubt that in Ms Kennedy's case there has been depression increasing her fatigue symptoms.

In this case also, importantly, her level of fatigue is better than one would get with a haemoglobin of 8 in particular, the variations that she suffers during the day are not those that would be reported for somebody with a haemoglobin of 8 (where the symptoms would be constant). The 40% WPI is excessive.

In conclusion, while on occasions for fatigue associated with conditions such as cancer, we do use the anaemia tables, in this case it is not appropriate for this non-specific condition with variable levels of fatigue and with a psychological component to her physical symptom."

1. We accept that there is an error in the application of incorrect criteria in accordance with the discussion by the Court of Appeal in Campbelltown City Council v Vegan.[28]
2. The assessment of chronic fatigue due to the Q-fever vaccine was appropriately assessed by the Medical Assessor by way of analogy in accordance with a haematologic system disease based on Tables 9-1 and 9-2 of AMA 5.
3. However, the Medical Assessor then purported to assess at the bottom of Class II because:

"[B]ased on my assessment today and the lack of any objective blood abnormalities, I was of the opinion that the lower end of the scale would be more appropriate."

1. The assessment by way of analogy will not always satisfy particular criteria set out in AMA 5 or the Guidelines. Table 9-2 refers to a haemoglobin level. We accept, in accordance with the respondent's submissions, that the functional incapacity can be comparable to the haemoglobin level within a Class under Tabel 9-2. However, the Medical Assessor did not state that and purported to assess at the lower end because there was a lack "of any objective blood abnormalities".
2. There are no objective blood abnormalities for determining chronic fatigue syndrome caused by the Q-fever vaccine. The condition is explained by the various medical opinions including treating medical opinion. The respondent accepted that the appellant suffered from this condition.
3. It was an application of incorrect criteria to assess by analogy and then use the absence of blood abnormalities when this does not apply to the condition being assessed.

1. The appellant noted that the Medical Assessor was required to provide adequate reasons as required by s 325(2) of the 1998 Act citing Vegan sufficient to explain the actual path of reasoning and how the evidence and the Guidelines/AMA 5 were applied.
2. The appellant submitted that the Medical Assessor simply concluded 11% permanent impairment without addressing critical evidence for demonstrating the application of the relevant criteria.
3. The appellant submitted that the Medical Assessor did not summarise the applicant's statement evidence of her limited capacity for work which was eight hours per week and the curtailment of ordinary domestic and recreational activities. She submitted that this went directly to the impact on the activities of daily living which was the functional cornerstone of Chapter 9 of AMA5.
4. The appellant referred to the opinion of Associate Professor Haber who found class III under the relevant table and assessed 40% whole person impairment. It was submitted there was no explanation why this analysis of functional impact was rejected and the explanation of how the lower end of Class I [sic Class 2] was applied.

1. The respondent accepted that the Medical Assessor was obliged to provide reasons which "should outline the matters he or she was required to decide, in sufficient to detail to explain why that view was reached: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247."
2. The respondent submitted that the characterisation of the Medical Assessor's reasonings is without merit noting that there was a description of the current restrictions relating to day-to-day activities and the occupational limitations (para 10(a) of the MAC). The Medical Assessor expressly noted (MAC, p 4) that she worked one day a week as a relief teacher and this has been scheduled since 2022. This history was consistent with the appellant's statement evidence dated 8 August 2024.
3. The respondent otherwise noted the contents of the MAC summarised daily functioning and submitted that there were sufficient reasons provided as to why the assessment differed from that given by Associate Professor Haber.

1. The Medical Assessor has a statutory obligation to provide reasons (s 325 of the 1998 Act). Those reasons must be adequate and disclose the reasons sufficient to show the "actual path of reasoning"[29] by which the opinion was formed and such that an Appeal Panel could determine whether, in the context of the medical appeal provisions under the 1998 Act, either the MAC contained a demonstrable error, or the assessment was made based on incorrect criteria.
2. We accept that a failure to provide adequate reasons can amount to demonstrable error.
3. An Appeal Panel can analyse the evidence when determining whether the certificate contains a demonstrable error: Vannini v Worldwide Demolitions Pty Ltd.[30] In Vannini Gleeson JA observed that, consistent with the observations of Basten JA in Mahenthirarasa v State Rail Authority of New South Wales, a "demonstrable error must be apparent in findings of fact or reasoning contained in the medical assessment certificate, although the error may be established in part by reference to materials that were before the approved medical specialist".[31]
4. It is unnecessary to determine this question as we have upheld the first ground of appeal that there was an incorrect application of criteria. The reasons of the Medical Assessor were deficient for the reasons we have set out earlier.

1. The appellant was examined by Medical Assessor Grainge on 22 January 2026. The examination findings are set out herein:

"The workers medical history, where it differs from previous records

I spoke to Ms Kennedy today, 22/01/2026, on a Telehealth link to her home in Scone from the Sinergy offices in Sydney.

The reason for the Telehealth consultation was to make an assessment of her whole person impairment following accepted vaccination-induced chronic fatigue syndrome.

Using Table 1-2 in AMA-5, I made an assessment of her activities of daily living under the activity headings detailed there.

Regarding her self-care and personal hygiene, Ms Kennedy essentially has no issues. She can shower, brush her teeth, visit the bathroom, dress herself and has no problems eating.

Ms Kennedy finds that she is socially withdrawn secondary to the energy required to maintain social contact. For example, the energy needed to follow a conversation and engage socially is markedly reduced from her pre-injury baseline which limits her social interactions. She gave an example of this that if she has to make phone calls, she does this first thing in the morning when her activity levels are at their highest and actively avoids interpersonal communication from the late morning onwards. If she wishes to do computer work, again this gets done first thing in the morning and is limited to around 60 minutes and after any more time than that she experiences light headedness and an inability to follow coherent trains of thought.

Ms Kennedy limits her cooking again to first thing in the morning with her husband performing most of the meal preparation due to fatigue. This means she often ends up eating pre-prepared meals with microwave reheating secondary to the effects of cooking inducing marked fatigue. She is unable to perform housework secondary to fatigue and she and her husband employ a cleaner for approximately 3 hours per fortnight self-funded to perform these activities. She walks her dogs for approximately 10 minutes a day when she is well around her paddock but usually only manages this 3 times weekly due to ongoing fatigue. She is able to manage to climb half a flight of stairs before having to stop. She was previously an avid horse rider and is no longer is able to either ride or care for her horses which have now been sold. She is a previous clay pigeon trap shooter and is unable to perform this hobby due to perceived lack of strength in her arms and ability to move her neck briskly, especially when fatigued.

Ms Kennedy limits her driving to approximately 1 hour as she feels that after this period of time, she cannot focus on the road conditions and she feels unsafe. Her husband drives any further than this and as a result, given their relatively remote location in Scone, her family interactions with her family that live in Sydney have been markedly reduced.

Ms Kennedy has no issues from a sensory function point of view.

From non-specialised hand activities, she has no sensory or tactile discrimination problems but does have limited lifting capacity, for example was recently helping her husband cut some branches in the garden but had to cease after a limited period of time secondary to fatigue and then had markedly increased fatigue the next day.

Ms Kennedy has issues with dyspareunia, decreased libido and is seeing an Urogynaecologist in order to help with this and also with an associated bladder hyper-reactivity syndrome.

Ms Kennedy generally retires to bed around 18:30 hours, being asleep by 20:00 hours. She wakes approximately 6 times nightly because of her bladder hyper-reactivity, rising in the morning around 07:00 hours. She has previously been diagnosed with mild obstructive sleep apnoea and following a diagnostic sleep study, was placed on CPAP therapy under the care of a Respiratory and Sleep Physician. She has recently lost approximately 10kg in weight and her Sleep Physician has advised that she can now cease CPAP therapy. In addition to her CPAP, she has periodic limb movements of sleep which are new since her vaccination which she describes as painful and is on medication for this. She is not sleepy during the day although is fatigued and lethargic and does not nap.

Outside the Table 1.2, assessment of activities of daily living, Ms Kennedy is working 1 day a week for 8 hours in primary school teaching. She finds that she has to rest for the day prior and the day after her teaching activities and notes that her speech and concentration become more difficult towards the end of the working day. She finds interaction with other staff difficult due to the energy required to engage in conversation, as with the communication above.

Ms Kennedy has a Cardiologist for an underlying new sinus tachycardia, a Gastroenterologist for her reflux disease, the Urogynaecology Specialist, as above, and sees her General Practitioner approximately 3 monthly in reference to her chronic fatigue. She sees a Chiropractor approximately fortnightly, especially for upper back and neck tension associated with fatigue.

As previously noted, the chronic fatigue syndrome, especially that following vaccination, is not addressed in the American Medical Association Guidelines to the Evaluation of Permanent Impairment, 5th Edition. Using assessment by analogy, specifically using Table 9-2 Criteria for rating permanent impairment due to anaemia, I place Ms Kennedy in Class III impairment, 31%-70% impairment of the whole person, especially with reference to the worked examples on pages 195 and 196, especially examples 9-4, 9-5 and 9-6. The worked example in 9-5 gives the example symptoms of fatigue, decreased energy, resting and afternoon naps daily, performing light activities of daily living with help, and the worked example of 9-6 gives current symptoms of fatigue, very limited exercise tolerance. The worked example 9-5 gives an impairment of 65% impairment of the whole person and 9-6 of 60%-69% impairment of the whole person. My assessment of Ms Kennedy is she is less severe than the worked examples 9-5 and 9-6 but worse than the worked example of 9-4 where a 25% impairment of the whole person is given with current symptoms of slight fatigue and being off work several times per year.

Hence, it is my opinion that a 40% impairment of the whole person is reasonable in Ms Kennedy's situation.

Additional history since the original Medical Assessment Certificate was performed

Clinical examination was not possible as this was a telehealth consultation.

Results of any additional investigations since the original Medical Assessment Certificate

1. The Panel has reconvened following the examination undertaken by Medical Assessor Grainge. The Panel adopts the examination findings subject to the following further observations.
2. Like the original Medical Assessor, we accept that the appellant's condition is assessed by way of analogy. The respondent was on notice because that is how the claim was made and how the original Medical Assessor assessed the appellant.
3. The concerns raised by Dr Gorman[32] articulated earlier in these Reasons do not apply because the Medical Assessor has made a specific finding that the claimant suffers from chronic fatigue caused by the Q fever vaccine. That finding is not challenged on the appeal.
4. The claimant has, as has been noted in previous reports, an ongoing functional incapacity caused by neurobiological injury. That finding made by the Medical Assessor is not the subject of an appeal.
5. The original Medical Assessor did not address the complete criteria for the effect on ADLs. Whilst this was not argued as a ground of appeal, we have correctly assessed the claimant in accordance with Table 9-1 which required assessment of the appropriate Class by reference to the effects on the activities of daily living (ADL).
6. The various criteria for the effects of the ADLs are contained in Table 1-2 of AMA 5.[33] The use of Table 1-2 to assess the impact on ADLs is confirmed by cl 1.24 of the Guidelines and referenced in Table 9-1. The particular ADLs are:
   • self care, personal hygiene;
   • communication;
   • physical activity;
   • sensory function;
   • nonspecialized hand activities;
   • travel;
   • sexual function, and
   • sleep.
7. Class II of Table 9-1 requires "some signs or symptoms of disease; individual performs the usual activities of daily living with some difficulty. Class III provides:

"Signs and symptoms of disease; individual requires varying amounts of assistance from others to perform the usual activities of daily living.

1. The re-assessment shows that the appellant's condition is appropriately Class III because there are "signs and symptoms of disease" rather than "some" of these as required by Class II. The evidence otherwise shows that the appellant requires varying amounts of assistance to perform the usual activities of daily living such as assistance with physical activity and travel. Some activities of daily living are unaffected such as self-care whilst other activities of daily living are severely limited, such as sexual function, and cannot be remedied by the second descriptor in Table 9-1.
2. We agree with the respondent's submission that the level of fatigue caused by the Q-fever vaccine must compare with someone who falls within the various classes of Table 9-2 insofar as they applicable to a determination of the level of fatigue caused by the vaccine.[34]
3. We otherwise note that Dr Gorman commented that "the perpetuation of symptoms had been related to depressed mood at times".[35] That comment was in part based on the opinion of Dr Lee, psychiatrist, who provided a report in 2006 when he doubted the ongoing effects of the original work injury and strongly suspected there were "other non work factors" contributing to the current diagnosis. The doctor recommended investigations "centred around objectively establishing how limited she actually is".[36]
4. There is no evidence contradicting the appellant's account of her current symptoms and functional impairment which have fluctuated overtime. Further a finding was made by the original Medical Assessor that the claimant has ongoing chronic fatigue caused by the Q fever vaccine. As we noted, that finding was not disputed when the matter was referred, on appeal from the findings of Medical Assessor Gibson, the submissions on appeal and is otherwise confirmed by the clinical examination undertaken by Medical Assessor Grainge.
5. Section 65A(2) of the 1987 Act provides that in assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, "no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury". The section was discussed by Basten AJA in Matheson v Baptistcare NSW & ACT[37] in the context of the separation in the assessment process of impairment resulting from primary and secondary psychological injuries. Basten AJA stated:[38]

"As can be seen from s 65A(2), impairment resulting from a secondary psychological injury is not so much a basis for a deduction as a matter to be disregarded in assessing the permanent impairment resulting from the primary psychological injury. One consequence of this approach is that both must be assessed on the correct basis, namely by application of the Guidelines."

1. That comment was made in the context of disregarding the effects of secondary psychological injury from the effects of primary psychological injury. However, the observations are apposite to the assessment of physical injury and require the effects of any second psychological injury to be disregarded. We have applied those principles to this assessment.
2. Our assessment is substantially different from that provided by Dr Gorman and similar with that made by Dr Haber. We are required to provide our own assessment limited to the grounds of appeal. We have correctly applied the effects on ADLs, something lacking in the various medical opinion which provided assessments in the matter. We otherwise reject the respondent's case that the claimant's impairment, assessed by analogy, is anything near 0% based on the clinical history of the disease and the recent examination.
3. We otherwise have considered the respondent's submission to disregard the effects of any psychological condition. Medical Assessor Grainge is a specialist physician in respiratory medicine. We have relied in part on his clinical expertise in the assessment of the appellant which is consistent with the longstanding chronic condition caused by the Q fever vaccine and is otherwise supported by the treating specialist opinions. We find that the assessment provided by the Panel is due to the chronic fatigue caused by the Q fever vaccine and not due in part of otherwise to the effects of any underlying psychological condition.
4. Finally, we observe that an assessment of a range within a class involves an evaluative judgment in part informed by the exercise of clinical judgment involving matters of degree and impression. This evaluative decision making is similar to assessing the extent of any deduction under s 323 of the 1998 Act.[39]
5. There is no road map specifying the precise percentage within a Class. Rarely do submissions assist in describing why a particular percentage should be made within a Class. The reasons of Medical Assessor Grainge, which we adopt, explain the selection of a particular percentage within Class III by reference to the claimant's symptoms and the examples provided in AMA 5.[40]

1. For these reasons, we have determined that the MAC is revoked. A replacement medical assessment certificate is attached to these Reasons.

Secretary, Department of Primary Industries and Regional Development (NSW)

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 Gibson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

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)

[7] [2021] NSWCA 304 (Burton).

[8] At [35], Leeming and McCallum JJA agreeing.

[10] [2011] NSWCA 112 at [78].

[12] Lukacevic at [100] and [103].

[13] [2025] NSWCA 40 (Stolzenberg).

[14] Stolzenberg at [42], Griffiths AJA and Price AJA agreeing.

[17] See the authorities discussed in Statutory Interpretation in Australia, 8th Ed, [7.18]-[7.21].

[28] [2006] NSWCA 284 (Vegan) at [95], McColl JA agreeing. These comments were approved in Marina Pitsonis v Registrar of the Workers Compensation Commission of New South Wales [2008] NSWCA 88 at [41].

[29] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [48].

[30] [2018] NSWCA 324 (Vannini) at [90].

[34] There is no suggestion that transfusions are a relevant consideration to the appellant's condition.

[37] [2025] NSWSC 213 (Matheson).