State of New South Wales (Sydney Local Health District)

WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appellant submits that the Medical Assessor erred in his assessment of two psychiatric impairment rating scale (PIRS) categories; Held - Appeal Panel found no errors; the assessments were consistent with the evidence; MAC confirmed.

1. On 8 August 2025 Katherine Kowalik lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Clayton Smith, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 July 2025. The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
   • the MAC contains a demonstrable error.
2. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
3. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
4. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed

1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal for reasons we will set out below.

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
2. In summary, the appellant submits that the Medical Assessor erred in his whole person impairment (WPI) assessment of two of the categories of the psychiatric impairment rating scale (PIRS), namely self-care and personal hygiene and social and recreational activities.
3. In reply, the respondent submits that no errors were made.

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
3. The appellant was referred to the Medical Assessor for assessment of WPI in respect of a primary psychological injury on 15 November 2020.
4. The Medical Assessor obtained the following history:

"Ms Kowalik is a 42-year-old registered nurse residing with her mother and sister in Kellyville, New South Wales. Her fiancé lives separately with his parents due to financial constraints. She currently works casual shifts at Norwest Private Hospital as a registered nurse, averaging 25 to 40 hours per week, and rotating through various wards.

At the time of the injury on 15 November 2020 while working at Atlas Hotel COVID quarantine facility, Ms Kowalik was assaulted by an elderly male patient. She described being in charge with two other staff members when escorting the patient to his room. During blood pressure measurement and COVID protocols the patient made inappropriate comments asking if she was single. He then grabbed her arm and scrubs at her hip, pulled her towards him, removed his mask and attempted to kiss her while making kissing noises. A colleague witnessed the incident but did not intervene. Ms Kowalik had to break free. Following protocol for COVID exposure, she was instructed to shower and change. She initially continued working but by early January 2021, reported significant deterioration. The incident was reported to police but charges could not be pursued as the perpetrator was deemed unfit to face charges. She stated, "What happened to me was a crime" and expressed frustration at a lack of recognition of this fact.

By early January 2021, she experienced sleep disturbance, fear of the dark and felt generally unsafe and afraid to be alone and of men. She required time off work and engaged with EAP services briefly before her therapist departed, limiting treatment to three sessions.

She returned to modified duties in March 2021, working in an administrative role, transcribing for the bereavement and palliative care service one day a week. She progressed to administering COVID vaccinations in June 2021. By September/October 2021, she was cleared for unrestricted duties in the casual pool, but was avoiding hotel quarantine work. She attempted work on the COVID ward in late 2021 but found the environment highly distressing particularly managing dying patients without family present and dealing with the angry public.

There was an acute deterioration in January 2022, resulting in a two-week work absence. She developed intrusive thoughts about self-harm, although she denied active suicidal intent. Her living situation became problematic with the fear of being alone in a granny flat. She began uncharacteristically drinking alcohol (one to two glasses of wine at night). In May 2022, she witnessed an incident where a dementia patient struck a male nursing student in the genital area. She found that other people's dismissive response was highly distressing. She was subsequently restricted to working in the discharge lounge and special care nursery two days a week from May 2022 to August 2023.

She has been seeing a psychologist since 2021 and continues treatment currently. She has not seen a psychiatrist for treatment. She was ambivalent about medication. Her general practitioner manages her care but has not actively pursued a psychiatric referral despite initial discussions. She told me she did not want to see a male psychiatrist because she does not like being alone with men and there were lengthy waiting periods to see a psychiatrist so she stopped trying.

She has not taken any psychotropic medication since the incident. Workers' compensation provided domestic assistance for four hours weekly of cleaning until January 2024."

1. Present treatment was noted as follows: "She continues to see her psychologist. She is not on medications currently."
2. Present symptoms were noted as follows:

"Ms Kowalik said she is frightened to be alone. When alone at home, she experiences panic symptoms and paces the house repeatedly, checking doors while calling out to verify if anyone is present. She imagines male intruders inside the house and has required her partner to check the premises. She has a fear of being attacked, manifesting in constant scanning of her surroundings and risk assessment of every person she encounters, particularly in work settings, where she evaluates each patient as a potential threat. She avoids being alone with male patients and has requested work accommodations to primarily care for female patients.

She has difficulty falling asleep because she is afraid of the dark. She uses a night light. She has developed an elaborate bedtime routine requiring her partner to remain on a muted video call via Messenger for approximately one-and-a-half hours until she falls asleep. He monitors her as she falls asleep before ending the call. She reported occasional awakening during the night with variable ability to return to sleep. Nightmares occur approximately monthly.

Her mood symptoms include daily crying episodes and thoughts of suicide, though she denied current active suicidal intent. She expressed hopelessness about her future stating, 'I just feel like this shit life that I live is just not even worth it'. She compares herself unfavourably to her pre-injury self.

She described intrusive memories and flashbacks of the assault, accompanied by rumination about the lack of justice and institutional response. These thoughts have recently intensified including a preoccupation with whether her attacker understands or cares about the impact of his actions.

Ms Kowalik reports significant psychological distress related to the compensation process itself. She expressed feeling invalidated and dismissed throughout the

4.5-year period, stating, 'I've had to go through all of this constantly just trying to feel heard.' She described particular distress regarding an IME in late 2023 which she found 'quite dismissive of everything that I've been through and just said that there was nothing wrong with me.' Following this assessment, her payments and treatment were suspended. She reported feeling re-traumatised by repeatedly having to prove her symptoms and justify her experiences. She expressed anger about having to 'constantly prove myself' while being 'denied of the support that I needed.'"

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

"She developed distress in Year 12 in 2000 following her father's sudden death from leukemia. She experienced depressive symptoms that impacted her academic performance but she did not seek formal treatment. During her university studies, she experienced anxiety related to academic performance and the need to excel, managing without professional intervention. In 2014, she experienced distress following her uncle's death, coinciding with the first year of her nursing career. She developed anxiety related to managing difficult patients and exposure to abuse in the nursing role. She did not seek treatment.

She sought psychological treatment in 2018/2019, attending regular sessions with a psychologist under a mental health care plan. Treatment focused on exploring her life situation, emotional regulation and anxiety about the future. Sessions occurred fortnightly to monthly until overseas travel interrupted treatment. No psychiatric medications were prescribed during this period.

She experienced a sexual assault while travelling in India in 2020 involving being groped while asleep on a train. She reported the incident to the transit police, who detained the perpetrator. She declined to remain for formal proceedings but described police response as empowering. She denied lasting psychological impacts from this incident.

No history of childhood trauma was reported. She described a strict upbringing by her mother and grandmother, contextualised within a Polish immigrant family focused on maximising opportunities in Australia. Previous reports noted a suggestion of attachment difficulties with her mother and perceived rejection, though their current relationship is described as closer in adulthood. There was no history of suicide attempts, psychiatric hospitalisations, or previous trials of psychotropic medications."

1. The Medical Assessor then set out details of the impact of her injury on her social activities and activities of daily living (ADL's) as follows:

"On non-workdays, she remains in her pyjamas all day, only showering before changing back into them. Her mother does the cooking, cleaning and laundry. She folds her clothes after her mother washes and places them on her bed. She maintains basic hygiene for work. She does not cook for herself. She has her hair cut every six months. She does not engage in other personal grooming activities like nail care, except for an occasional pedicure. She noted that she was never very interested in these types of self-care activities.

Her social contact is limited to her mother and sister with whom she lives, her partner whom she sees three to four times weekly and rare contact with university friends approximately every six months. She maintains two international friendships via video calls. She has attended two large scale entertainment events in six months; ice dancing performances accompanied by her sister. She participated in Polish folk dancing for two and a half years but told me she was asked to leave due to memory difficulties, as she could not remember the dance sequences.

She avoids crowds, timing her shopping trips for periods when the stores are quiet. Activities with her partner are limited to drives around local areas and occasional meals at shopping centres. She rarely ventures into Sydney city with one recent exception for a Vivid Harbour Cruise. She is not required to use public transport. She primarily limits her driving to local areas for work. She said she spends approximately 10 hours daily on her phone playing games and scrolling. She denied any regular hobbies or recreational activities.

She has undertaken two overseas trips: one with her aunt to Egypt, Israel, and Jordan in 2023, which she terminated early due to difficulties managing crowds at religious sites; and another with her partner to Indonesia and Vietnam for one and a half weeks, which she described as unsuccessful due to the weather.

She lives separately from her partner although this is primarily a financial consideration. She lives with her family and he lives with his. She has been in this relationship for approximately three years, and they are engaged; they have been attempting to conceive through IVF. She has lost contact with former work colleagues from RPA following cessation of her employment. She reported particular difficulty with male interactions avoiding male patients at work and expressing discomfort being alone with men.

She spends extensive periods on her phone without purposeful activity. She reported memory problems. She manages work tasks, and there have been no concerns about her performance. She has maintained her continuing professional development.

On a work day, she is typically up at 5:40 am to 6:00 am for morning shifts, drives to work, completes her nursing duties, returns home, goes to bed, gets up for dinner prepared by her mother, returns to bed with her phone and requires her partner to video call her to sleep. On non-workdays, she remains in bed, stays in her pyjamas, engages in extensive passive phone use, interacts minimally with household members, takes occasional outings with her partner for meals or drives, and maintains specific routines for necessary activities of daily living, such as shopping at predetermined quiet times.

She maintains part-time casual work 25 to 40 hours per week as a registered nurse. She currently works casual shifts at the Healthscope Norwest Private Hospital, averaging 25 to 40 hours per week across various wards, including maternity, coronary care unit and neurology. She does not work night shifts, with her latest finish time being 10:00 pm. She worked as a casual in the special care nursery at RPA until April 2025, when her shifts were abruptly terminated. She had expressed an interest in obtaining permanent part-time work with the special care nursery (approximately 24 hours per week) but was informed on 4 April that she could no longer work in the nursery. She believed the end of her employment with RPA and the loss of her shifts at the special care nursery were repercussions of her workers' compensation claim."

1. Findings on examination were reported as follows:

"Ms Kowalik presented casually dressed. She had taken no care with her appearance. At times she presented as helpless, hopeless and defeated, becoming tearful at times during the interview. She displayed irritability and defensiveness at times, particularly around perceived invalidation of her experiences. Her speech was normal in rate, tone and volume. She reported her mood as anxious and depressed. She expressed depressive themes, including worthlessness and hopelessness about her future. Anxious themes centred around a fear of being alone, fear of the dark, hypervigilance and a specific fear of being attacked by men. There was no evidence of psychosis.

She was alert and oriented. There were no overt cognitive deficits. Cognition was not formally assessed. Her speech was articulate, with good memory and recall for events. Her insight and judgment were partial, noting that she failed to follow up on specialist psychiatric treatment despite ongoing symptoms. She was ambivalent about antidepressant medication."

1. The Medical Assessor then summarised the injuries and diagnoses as follows:

"Ms Kowalik is a 42-year-old woman employed as a registered nurse. She was assaulted in November 2020 on a background of previous trauma exposure and pre-existing personality vulnerabilities, including perfectionism, interpersonal sensitivity and difficulty with emotional regulation. Her symptoms have been exacerbated by multiple stressors including COVID 19 pandemic impacts, difficulties with fertility and perceived lack of support through the workers compensation process.

Although she meets the DSM-5 criteria for post-traumatic stress disorder, it is not clear if the work-related trauma meets Criterion A. In my view, the diagnosis of persistent depressive disorder with anxious distress is more appropriate with persistently depressed mood for more than two years, anhedonia, sleep disturbance, depressive thoughts including suicidal thoughts, interpersonal sensitivity, lack of motivation and fatigue. Anxious distress with post-traumatic stress themes includes re-experiencing symptoms, feeling upset when reminded of the incident or cues associated with the incident, physical anxiety symptoms when reminded of the incident, avoidance of cues associated with the incident and hypervigilance."

"Ms Kowalik's presentation was generally consistent, although I note and agree with the concerns of previous examiners who have observed the contrast between her occupational function and her reported function in other settings. Her presentation was consistent with the medical evidence provided by her treating clinicians."

1. The Medical Assessor assessed 7% WPI.
2. He then set out a detailed summary of the material he had before him.
3. Relevant to the issues in dispute, he said:

"In her report dated 4 July 2024, Dr Richa Rastogi, Independent Medical Examiner and Consultant Psychiatrist, detailed the circumstances of the injury and the evidence of anxiety predating the injury and a sexual assault while travelling in India in 2020. She diagnosed an adjustment disorder with generalised anxiety and post-traumatic stress disorder. Dr Rastogi noted the history of pre-existing anxiety with perfectionist traits and evidence of poor distress tolerance and emotional regulation skills predating the injury. She noted that the events of November 2020 destabilised her underlying personality vulnerabilities, emotional dysregulation and anxiety exacerbated by the COVID lockdown being stuck and further exposure to conflict and abusive patients and lack of dismissal by her employment leading to exacerbation of anxiety and PTSD and partial vocational incapacitation. She assessed whole person impairment at 15% with self-care and personal hygiene at Class 2, social and recreational activities at Class 3, travel at Class 2, social functioning and relationships at Class 2, concentration, persistence and pace at Class 3 and employability at Class 3. I note her evaluation of concentration, persistence and pace was at odds with the available evidence, particularly her occupational function at the time.

In her report dated 6 November 2023, Dr Gemma Edwards-Smith, Psychiatrist and Independent Medical Examiner detailed the circumstances of the injury noting symptoms of depression when she was in Year 12 when her father died, anxiety about succeeding at university during her university years and sessions with a psychologist for two years in 2018 "trying to explore her life situation". Dr Edwards-Smith noted a sexual assault while travelling in India when she woke up to see a man bending over and grabbed her breast and groped her. She screamed at him to get away and told the transit police who detained the man. She signed a statement but declined to remain and give evidence. Two-and-a-half years ago she was involved in a motor vehicle accident and sustained problems with neck and whiplash injuries subject to a compulsory third party claim with no anxiety component or psychological component to this claim. She noted that the work-related incident did not meet DSM-5 criteria for post-traumatic stress disorder, not meeting Criterion A. She noted a suggestion of longer term personality issues with instability in personal relationships and a paucity of long-term interpersonal relationships. She noted there were inconsistencies in her presentation noting that she currently presented with symptoms of major depressive disorder with comorbid anxiety noting attachment issues in her family of origin to her mother and suggestions of longer term personality issues with emotional dysregulation and difficulties with stress management.

In her subsequent report dated 19 February 2024, she noted from a previous report by Dr Lee, developmental issues noting that her mother was controlling, that she felt she was a disappointment to her mother, that her mother favoured her two siblings and rejected her and she felt unable to share her feelings with anyone and felt like an outsider at high school and a paucity of long-term interpersonal relationships. She noted she stopped short of diagnosing a personality disorder.

In her report dated 22 November 2024, Dr Gemma Edwards-Smith noted the progress since the assessment. She diagnosed major depressive disorder. She noted her condition had been inadequately treated. She nonetheless assessed whole person impairment at 13% assessing self-care and personal hygiene at Class 3, social and recreational activities at Class 3, travel at Class 2, social and relationship functioning at Class 2, concentration, persistence and pace at Class 1 and employability at Class 3. No deductions were made for a pre-existing condition. I note this was amended to 13% due to a miscalculation.

In a report by Dr Yue Chong Lee dated 18 November 2021, Independent Medical Examiner and Psychiatrist which detailed the circumstances of the injury noting the past psychiatric history where she saw a psychologist monthly from 2018 to 2019. She diagnosed an adjustment disorder with post-traumatic stress features on a background suggestive of emotional dysregulation and distress intolerance. She noted developmental vulnerability with attachment difficulties and suggestions of identity disturbance and feelings of not belonging."

"Despite vulnerabilities, no pre-existing psychological condition meeting the clinically significant threshold was noted on history or in the documents."

1. The Medical Assessor assessed a Class 2 rating and said:

"Ms Kowalik can independently maintain a minimum level of hygiene and nutrition. She maintains a level of hygiene and self-care adequate to attend the workplace. She is less motivated to care for herself than previously. Her mother provides support because they live together."

"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."

"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. Many of the appellant's submissions focus on her statement, however, it must be remembered that cl 1.6 of the Guidelines provides:

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

1. The appellant's further submissions are as follows:

(a) the overwhelming evidence is that the appellant's symptoms ought to properly be regarded as "Moderate Impairment", which is demonstrated by: "Can't live independently [moved in with mother], needs prompting to shower daily and wear clean clothes [is prompted by her mother], does not prepare own meals [has take-away meals and meals prepared by her mother], frequently misses meals. Family member visits or should visit 2-3 times per week to ensure minimum level of hygiene and nutrition" (with commentary inserted);

(b) it is an error on the face of the document to have assessed self-care and hygiene as "mildly" impaired, when the appellant was (on the Medical Assessor's finding) high functioning and living independently prior to her injury, and has since moved in with her mother in order to function safely, and

(c) in context of the appellant's pre-injury function, the effect has not been "mild". This is a demonstrative understatement of the appellant's actual loss and impairment.

1. There is nothing in the evidence to suggest that the appellant requires a "Family member or community nurse" to visit "(or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition."
2. The appellant continues to work in a high pressure and difficult job as a nurse, which also requires a level of hygiene appropriate to that job. As the Medical Assessor noted, she currently works "averaging 25 to 40 hours per week across various wards, including maternity, coronary care unit and neurology."
3. The appellant also emphasises the assistance her mother provides, but that is primarily because she lives with her mother, not because of any need to do so for assistance in activities of daily living but because, as the Medical Assessor noted:

"she lives separately from her partner although this is primarily a financial consideration. She lives with her family and he lives with his. She has been in this relationship for approximately three years, and they are engaged..."

1. One further matter we note is the Medical Assessor's comment regarding this category that:

"She does not engage in other personal grooming activities like nail care, except for an occasional pedicure. She noted that she was never very interested in these types of self-care activities."

1. Clearly she had limited interest in various forms of self care and grooming for some time, again, not specifically related to her psychological condition.
2. Her faecal incontinence is a medical issue unrelated to her psychological condition. She has a prolapsed rectum.
3. In short, we agree that she has some restrictions as the Medical Assessor accepted, but she is able to function appropriately in this category consistent with her work and other daily activities.
4. Although not bound by the opinions of other doctors, they do form part of the evidence.
5. Dr Rastogi, the appellant's IME also assessed a Class 2 rating in this category.
6. For these reasons, we agree that the Medical Assessor's assessment was consistent with all the evidence, and we see no error in his assessment.

1. The Medical Assessor assessed a Class 2 rating and said:

"She occasionally attends social events with her partner or sister and has been to ice skating events and a vivid harbour cruise. They occasionally go for drives and eat out. She is more vigilant in social settings. She has stopped Polish dancing."

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

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

(a) the Medical Assessor understates the factual degree of impairment relevant to social and recreational activity;

(b) in her statement sworn 7 May 2025 the appellant describes her degree of hypervigilance as profound and disabling. She states:

"I cannot be home by myself as I do not feel safe. I frequently have panic attacks where I have a rapid, pounding heart rate, chest pain, throat tightness, abdominal cramping and can often feel dizzy or lightheaded. I have had to call my partner to come and get me or call/text him excessively as I feel as though someone is constantly trying to gain access to the home... My mother and sister work 3-4 evenings a week and I can be at home alone for anywhere between 2-5 hours. I cannot relax when I am home alone and need to have someone with me at all times. I travelled around the world and went to 82 countries solo. My life is dramatically different to how life was prior to the attack, before trips to far off places were my reality, now I can't even fathom a trip to the shops" (emphasis added);

(c) in her statement of 5 March 2025, the appellant stated:

"I avoid social settings and being in crowded places such as shopping centres. I have lost a lot of friends since the injury and don't enjoy going out to socialise like I used to. I feel very isolated and find I only like to leave the house if I'm in the company of my partner or my family. I prefer to be at home";

(d) a Moderate Impairment (which the appellant submits is the more appropriate category) in fact describes what the appellant describes and what the Medical Assessor recorded, and is as follows:

"Rarely goes out to such events [correct], and mostly when prompted by family or close friend [correct - being either her partner or sister, and only rarely]. Will not go out without a support person [correct]. Not actively involved, remains quiet and withdrawn", and

(e) the appellant submits that on any reasonable view of the described socialising, and having regard to the appellant's evidence that she is a reluctant participant who attends events only with a support person and largely only to maintain and foster her romantic relationship with her partner, she is in fact a "Moderately impaired" person in this category.

1. We repeat our earlier remarks regarding cl 1.6 of the Guidelines.
2. Once again, the appellant's submissions focus on her statements.
3. Since her injury the appellant has been on two overseas trips and two significant entertainment events in six months.
4. She has contact with friends overseas.
5. She plays video games, a recreational activity.
6. She goes to dinner with her partner.
7. She went on a harbour cruise, clearly an activity in a confined environment, inconsistent with a Class 3 rating, and not consistent with her statement that she "avoids crowds."
8. According to her general practitioner, she ceased Polish dancing because of neck problems.
9. Thus it can hardly be said that her social contact:

"is limited to her mother and sister with whom she lives, her partner whom she sees three to four times weekly and rare contact with university friends approximately every six months" as recorded by the Medical Assessor based on her own account.

1. Dr Rastogi also reported that she was never very interested in social and recreational activities other than as described above.
2. In short, the evidence in our view is entirely consistent with a Class 2 rating as assessed by the Medical Assessor.
3. We also say this in the context of the Medical Assessor's observation that:

"I note and agree with the concerns of previous examiners who have observed the contrast between her occupational function and her reported function in other settings."

1. For these reasons, the Appeal Panel has determined that the MAC issued on 11 July 2025 should be confirmed.