1. On 13 February 2025, Andrew Robert Mazan (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by

Dr Bradley Ng, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 January 2025. 2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act): * the assessment was made on the basis of incorrect criteria, and * the MAC contains a demonstrable error. 3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made. 4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules. 5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed

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

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because although one was requested, we consider that we have sufficient evidence before us to enable us to determine this appeal, for reasons which will become apparent 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 Social and recreational activities and Employability.
3. In reply, the respondent submits that no errors were made.

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
3. The appellant was referred to the Medical Assessor for assessment of WPI in respect of a primary psychological injury on a date of injury of 1 August 2022.
4. The Medical Assessor obtained a detailed history of the circumstances leading to the injury which we do not intend to repeat here.
5. After setting out details of Mr Mazan's treatment regime, the Medical Assessor then noted present symptoms as follows:

"Mr Mazan felt flat. He was generally not happy but could have happy moments. He felt lonely and isolated. He had poor concentration and focus, especially with harder cognitive tasks. He described himself as easily irritable but rarely angry. He denied being violent. He had previously alluded to some suicidal ideas, but they were not to the fore now. He denied any strong intent or attempt. Mr Mazan had no plans for the future. He denied having any flashbacks or intrusive memories of his time with the New South Wales Police Force.

Mr Mazan described feeling anxious all the time. He was particularly anxious when there was no 'escape plan.' He gave an example. Friends invited him to a party and offered to give him a lift there. Mr Mazan declined because if he went with his friends and did not take his own vehicle, it would be hard for him to leave the party, should he need to. If he wanted to leave, he wanted to have the ability to leave straight away. He was also anxious in crowds and busy places.

Mr Mazan noted his sleep was up and down. Some nights it was very good and other nights he had primary insomnia and would take medication because he could not switch off. Other nights he had middle insomnia due to a noisy environment. He denied any dreams or nightmares. Once awake it was sometimes very difficult to fall asleep. He might listen to music in the lounge and then fall asleep on the sofa."

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

"Mr Mazan had been living at his current address for twenty five years. It was purchased. He lived alone with his dog. He had never married and never had children. His last long-term relationship was of four years and it ended in 2011 and he blamed work and personal issues. He had tried dating since, but was unsuccessful and had not tried to establish a relationship for the last four to five years. His father died in April 2024 and his mother died in August 2018. He still had a relationship with his father's de-facto partner who is now very elderly. He had a cousin in Hungary but no siblings. His parents had separated when he was three years of age. He left the family home when he was aged sixteen years. When asked about next of kin if he was in hospital, Mr Mazan stated that he would either name a friend or a neighbour. He had very few friends. He had two good friends still with the New South Wales Police Force. He was now a loner but had never been like this pre-morbidly.

Mr Mazan sometimes forgot to brush his teeth and showered most days. He was caring for his dog but could not be bothered looking after himself. He did not do any cooking and relied on take-away meals or frozen meals. He was able to do an adequate amount of housework. At home, Mr Mazan listened to music but did not watch television or read. He did not go out much. He had a good relationship with his next door neighbour. They might have a meal together at a local club. He no longer attended gigs or music venues as he hated crowds. His weekends were very quiet. He was currently looking after a friend's dog. He had nothing planned for the Australia Day long weekend.

Mr Mazan enjoyed mountain biking and went every two to three weeks. There were mountain bike tracks near his home, or in nearby suburbs. He might go mountain biking for a couple of hours. He enjoyed skiing and travelled to Lake Tahoe in the United States in 2024 and met up with a friend who was living in Los Angeles. They spent two weeks skiing. He had a good time and nothing bad happened.

Mr Mazan could drive but preferred to drive when it was quiet on the roads. He might become angry or raged on busy roads. He denied any overt road rage or violence. He avoided, but could use, public transport when needed to do so. For example, he took the train from home today to attend this appointment and that took one hour and twenty minutes. There were no difficulties. He came by himself.

Mr Mazan did have friends, but spent most of his time by himself, as noted above. Some of his friends had their own family responsibilities and he did not want to bother them."

1. Findings on examination were reported as follows:

"Mr Mazan presented as a middle aged man in clear consciousness. He was casually dressed with reasonable grooming and presentation. He had good eye contact and we developed a good rapport. There were no gross speech or motor abnormalities. His mood was flat with some anxiety. His affect was broad, reactive and congruent with his mood. There was no formal thought disorder or evidence of psychosis. There were no delusions or hallucinations. There were no strong suicidal or homicidal ideas. His cognition appeared grossly intact. His insight was fair and his judgment was reasonable."

1. The Medical Assessor then summarised the injuries and diagnoses as "The DSM IV/V diagnosis is Major Depressive Disorder, chronic."
2. The Medical Assessor assessed 7% WPI.
3. He then set out a summary of the material he had before him.
4. Relevant to the issues in dispute, he said:

"Report by Dr Abdal Khan, Consultant Psychiatrist, dated 29 May 2024.

Mr Mazan may have engaged briefly with EAP counselling in 2017. Otherwise, there was no other psychiatric history. Various medications have been trialled, including Venlafaxine, Agomelatine, Amitriptyline, Clonidine and Promethazine. A group program focusing on trauma of 8 weeks was completed at South Coast Private Hospital. The diagnoses were Post Traumatic Stress Disorder and Major Depressive Disorder. Maximum medical improvement had been reached. He was assessed at 22% Whole Person Impairment with Class 3 for all categories except Class 2 for Self Care & Personal Hygiene. Class 2 for Travel and Class 5 for Employability. There were no adjustments for pre-existing impairment or for treatment effect.

Report by Dr Nicholas Cassimatis, Consultant Psychiatrist, dated 1st October 2024.

He recalled seeing Dr Selwyn Smith in 2021 who diagnosed an Adjustment Disorder. There did not appear to be any particular episodes that led him to completely cease work in 2023. Psychological symptoms were depressed mood and anger. Symptoms may have first appeared in 2010. There were no active symptoms of Post Traumatic Stress Disorder, but there were symptoms of Major Depressive Disorder. It is possible that the PTSD was in remission. The active psychiatric disorder was a Major Depressive Disorder. It was the opinion that Mr Mazan had not reached maximum medical improvement. He was commencing new treatment with a new psychologist and was feeling optimistic. The Whole Person Impairment was calculated at 9% with Class 2 for all categories except Class 3 for Social & Recreational Activities and Class 5 for Adaptation. There was a 10% deduction for a pre-existing condition which resulted in a Whole Person Impairment of 8%."

"I agree with Dr Cassimatis and whilst Mr Mazan did describe some symptoms of Post Traumatic Stress Disorder, he also denied issues such as flashbacks or nightmares. He also did not identify criteria on events that may have triggered these symptoms, or symptoms of PTSD. Hence I could not arrive at the diagnosis of Post Traumatic Stress Disorder. It may be in remission and if it is in remission, it cannot be counted as a permanent disorder. However, what persists are significant depressive and anxiety symptoms and I agree with my colleagues that there is a Major Depressive Disorder.

There is a wide discrepancy in Whole Person Impairment. Dr Khan has a Whole Person Impairment of 22% with no deduction for pre-existing conditions. Dr Cassimatis gave a Whole Person Impairment of 9% with a 10% deduction for a pre-existing condition resulting in Whole Person Impairment of 8%. Such a wide discrepancy of Whole Person Impairment cannot be reconciled. I base my own calculations of Whole Person Impairment on the assessment of Mr Mazan today, including his history, his description of his own functioning and mental state examination. I disagree with the deduction for a preexisting condition. There is no evidence of an active, pre-existing psychiatric disorder prior to more recent events."

(a) The Medical Assessor erred by failing to apply the history he was given to the PIRS categories; failing to have regard to the other evidence in the case (for instance, the other expert reports and statement evidence); failing to provide proper reasons; and failing to provide him with a fair opportunity to deal with the matters set out in his PIRS assessments.

(b) The worker presented/or complained about the following symptoms to the Medical Assessor : a. Poor concentration and focus, especially with harder cognitive tasks. b. Irritability. c. Anxiety all the time. d. Anxiety without an escape plan. e. Avoidance of crowds and busy places. f. Variable sleep. Insomnia at times. Difficulty getting back to sleep once awake. g. Forgets to brush teeth. h. Can not be bothered looking after himself. i. Does not do cooking. j. Does not go out much. k. No longer attends gigs or music venues as he hates crowds. l. Weekends are very quiet. m. Prefers to drive when quiet. n. Might become angry or raged [sic] on busy roads. o. Spends most of his time by himself.

(c) The Medical Assessor assessed a class 2 impairment. He said:

"Mr Mazan no longer goes to busy events. He is withdrawn and no longer goes to gigs or crowded places. He can enjoy some activities with friends. He does have some enjoyable solitary activities such as mountain bike riding. He recently had been able to travel overseas and enjoyed skiing. All of this equates to a mild impairment."

(d) However, this ignores the history he was given. a. Firstly, the worker said he felt anxious all the time. This was particularly so if there was "no escape plan". An example was given (p 3) in that his friends invited him out, although he did not wish to do so unless he could take his own vehicle so that he could escape. b. Secondly, he was anxious in crowds and busy places. The history was not that he avoids busy places (although that is also the case) (p 3). This shows a lack of attention to detail. c. Thirdly, he did not go out much (p 4). d. Fourthly, he may go mountain bike riding every 2 or three weeks. Note, the worker's statement goes into further detail about the mountain bike riding. He said this was dependent on his mood generally and he may not go riding for long periods of time. e. Fifthly, he spent "most of his time by himself" (p 4). f. Sixthly, he did not attend gigs or music venues.

(e) Dr Cassimatis and Dr Khan both found a class 3. The former considered that he remained isolated, avoided shopping, was hostile with people, and would go out only with friends.

(f) Importantly, under "Social Functioning", the Medical Assessor said: Mr Mazan is very withdrawn. He now keeps to himself. He is able to maintain some closer (sic, not "close") friendships. He has lost contact with some".

(g) The Medical Assessor has failed to apply the history given to the PIRS categories. He has also failed to recognise that his withdrawal, desire to keep to himself, and loss of contact reflect his lack of socialisation and recreational activities.

(h) The Medical Assessor ought to have reached a class 3 impairment. The symptoms provided were very similar to the other experts. If he was going to disagree with them, he ought to have provided proper reasons for departing from that class despite the similar symptoms.

(i) He also ought to have specifically brought to the worker's attention the differences that he found (if any). The failure to do so resulted in a denial of procedural fairness.

(a) The worker remains unemployed. He has received a Total and Permanent Disability (TPD) payout. Both experts assess him with a class 5.

(b) Medical Assessor Ng assessed the worker with a class 3 impairment. He said that he could not work as a police officer, but:

"this [did] not stop him working on a part-time regular basis in an alternative role such a [sic] postal delivery officer, which he has done before, a courier or equivalent. There is nothing stopping him from working in a workshop. I seriously doubt that he would work in a tool workshop but considering his employability and adaption capabilities against his psychopathology, he is not completely unfit for all work. He may have a tendency to work by himself. This may restrict him in the types of work or environment, but he can work. This equates to moderate impairment."

(c) This is not a fare [sic] reflection of the history he was given (nor the histories in the other expert reports and statement evidence).

(d) The worker presented/or complained about the following symptoms to the Medical Assessor : a. Poor concentration and focus, especially with harder cognitive tasks. b. Irritability. c. Anxiety all the time. d. Anxiety without an escape plan. e. Avoidance of crowds and busy places. f. Variable sleep. Insomnia at times. Difficulty getting back to sleep once awake. g. Forgets to brush teeth. h. Can not be bothered looking after himself. i. Does not do cooking. j. Does not go out much. k. No longer attends gigs or music venues as he hates crowds. l. Weekends are very quiet. m. Prefers to drive when quiet n. Might become angry or raged [sic] on busy roads. o. Spends most of his time by himself.

(e) It is erroneous to state that "nothing" is stopping him from working in a workshop. The fact that the Medical Assessor also "seriously doubted" that he would do so means that such an opinion is unrealistic.

(f) Finding that he could work as a postal delivery officer, courier, or equivalent is also unrealistic. It is difficult to see how the worker could ever cope in such a stressful environment, such as driving on busy roads "part-time".

(g) It is equally difficult to see how he could do so given his concentration issues, avoidance issues, and difficulties sleeping. He would be a danger to himself and others.

(h) Plainly any duties requiring regular driving would expose him to a substantial risk of further injury. The public would also be so exposed.

(i) Dr Khan and Dr Cassimatis both assessed a class 5. There was no suggestion that he could work anywhere, let alone in a driving capacity.

(j) The Medical Assessor was wrong to find a class 3 impairment. He was wrong to find that driving duties were capable of being undertaken. He ought to have assessed a class 5 impairment, consistent with the other evidence (including the successful TPD claim).

(k) The Medical Assessor simply failed to provide proper reasons. He ought to have properly set out how he would be able to manage his duties in light of the symptoms he stated.

(l) He also ought to have specifically brought to the worker's attention the differences that he found (if any). The failure to do so resulted in a denial of procedural fairness.

(m) The Medical Assessor did not have regard to these limitations and erred in his assessment.

(n) By referring to these activities as a basis for assigning a Class 4 descriptor, the Medical Assessor misapplied the criteria, failing to recognise that such activities do not equate to a capacity to perform employment tasks.

(o) Accordingly, there was no evidence that permitted a finding of capacity to return to work in any capacity, including the history obtained by the Medical Assessor. The weight of evidence detailed in the history of the MAC supports a class 5 with respect to employability.

(p) The Medical Assessor also failed to provide adequate reasons for his conclusions and emphasis upon the appellant's gardening, and her looking after her mother, and why this demonstrated a capacity for employment.

(a) The appellant is seeking to cavil with a matter of clinical judgement (Marina Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88 at [59]).

(b) An assessment certified in a MAC pursuant to a Medical Assessor is conclusively presumed to be correct in respect of the degree of permanent impairment of the worker as a result of an injury pursuant to s 326(1)(a) of the 1998 Act. A difference in the assessments between that of the Medical Assessor and other medical assessments does not of itself constitute a demonstrable error.

(c) The Medical Assessor was not required to assess class 3 for social and recreational activities because both experts assessed the appellant with class 3. The Medical Assessor referred to the opinions of those experts in part 10(c) of the MAC, and confirmed that those opinions were considered in preparing the MAC.

(d) The Medical Assessor took into account the history he obtained regarding the appellant's social withdrawal when the Medical Assessor considered the appellant's participation in social and recreational activities. In having this in mind, the Medical Assessor came to the conclusion the appellant has a mild impairment for social and recreational activities.

(e) The Medical Assessor has appropriately dealt with social functioning when assessing his rating under that PIRS category, which is a separate and distinct category from social and recreational activities. The appellant does not seek to cavil with the Medical Assessor's rating under social functioning in the Appeal.

(f) The Medical Assessor has provided a detailed description of his rating for Class 2, which was consistent with the history he obtained and the material before him. That rating was also consistent with the Guidelines.

(a) The Medical Assessor was not required to assess class 5 for employability because both experts assessed the appellant with class 5. The Medical Assessor referred to the opinions of those experts in part 10(c) of the MAC, and confirmed that those opinions were considered in preparing the MAC.

(b) The respondent notes that the appellant complained of the symptoms set out in paragraph 29 of the appeal submissions. The respondent submits that all of these symptoms do not relate directly to the question of employability under the PIRS, but acknowledges that they are relevant for the purpose of coming to a rating under the PIRS.

(c) However, these were not the only history and symptoms recorded by the Medical Assessor. The respondent submits that the Medical Assessor also recorded that the appellant's symptoms included:

(i) the appellant was generally not happy but could have happy moments;

(ii) the appellant was able to care for his dog, as well as a friend's dog;

(iii) the appellant was able to do an adequate amount of housework;

(iv) the appellant had a good relationship with his next door neighbour;

(v) the appellant enjoyed mountain bike riding and went every two to three weeks;

(vi) the appellant enjoyed skiing and travelled to Lake Tahoe in the United States in 2024, and

(vii) the appellant met up with a friend living in Los Angeles.

(d) In part 5 of the MAC, the Medical Assessor reported the following observations following examination:

"Mr Mazan presented as a middle aged man in clear consciousness. He was casually dressed with reasonable grooming and presentation. He had good eye contact and we developed a good rapport. There were no gross speech or motor abnormalities. His mood was flat with some anxiety. His affect was broad, reactive and congruent with his mood. There was no formal thought disorder or evidence of psychosis. There were no delusions or hallucinations. There were no strong suicidal or homicidal ideas. His cognition appeared grossly intact. His insight was fair and his judgment was reasonable."

(e) Taking into account all of the above, including the symptoms set out in paragraph 29 of the appellant's submissions, the Medical Assessor assessed Class 3 for Employability/Adaptation.

(f) The Medical Assessor confirmed that his opinion was based on 'the history on the day of assessment, as reported by Mr Mazan, his description of functioning, his mental state examination and review of file documentation'.

(g) The Medical Assessor has raised the potential option of a postal delivery driver or courier as an example of the jobs the appellant may be able to perform. Identifying a suitable employment option is not a requirement for a rating of class 3 for employability, and if the Appeal Panel is not satisfied he could do that job, it does not render the rating of class 3 invalid. The Medical Assessor should consider however whether the appellant could work in a less stressful environment for 20 hours per week to be satisfied a class 3 rating. The Medical Assessor has achieved this in his explanation of his rating of class 3, which is sufficiently well reasoned to understand how the Medical Assessor arrived at the rating of class 3.

(h) The appellant submitted that he was denied procedural fairness. The Medical Assessor is not required to ask the appellant for his comments about his intended ratings under PIRS during examination, and to do so would be inappropriate.

1. To begin with, we agree with the respondent's submission in paragraph (h) above that it would indeed be inappropriate for a Medical Assessor "to ask the appellant for his comments about his intended ratings".
2. The medical members of the Panel noted that it would not be uncommon for a Medical Assessor to have not determined their final rating during the assessment and that it may well require reflection and revisiting aspects of the written evidence in light of the evidence obtained during the assessment.
3. The appellant's submission on this issue is therefore rejected.
4. Turning firstly to the category of social and recreational activities, we again agree with the thrust of the respondent's submissions.
5. The Medical Assessor assessed a Class 2 rating and said:

"Mr Mazan no longer goes to busy events. He is withdrawn and no longer goes to gigs or crowded places. He can enjoy some activities with friends. He does have some enjoyable solitary activities such as mountain bike riding. He recently had been able to travel overseas and enjoyed skiing. All of this equates to mild impairment."

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

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

1. The activities described by the Medical Assessor are consistent with a Class 2 rating.
2. There is no evidence that Mr Mazan requires a support person when he does go out.
3. He also occasionally goes out to various social activities with friends as opposed to rarely.
4. His recreational activity of mountain biking is conducted every two to three weeks, not rarely.
5. Travelling to the US to visit a friend and then going onto a ski resort and spending two weeks skiing with that friend demonstrates an active involvement in a recreational activity with a social component.
6. In short, he certainly has some limitations but he undertakes several recreational activities fairly frequently, which are appropriate for age, gender and culture.
7. As stated at 11.12 of the Guidelines, the examples provided of activities are examples only. Those examples are not intended to be determinative or prescriptive. They "provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected" (Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633).
8. For these reasons we agree that the Medical Assessor's assessment was consistent with the evidence and the Guidelines.
9. Turning next to the category of Employability, the Medical Assessor assessed a Class 3 and said:

"Mr Mazan cannot work as a police officer but this does not stop him working on a part-time regular basis in an alternative role such a postal delivery officer, which he has done before, a courier or equivalent. There is nothing stopping him from working in a workshop. I seriously doubt that he would work in a tool workshop but considering his employability and adaptation capabilities against his psychopathology, he is not completely unfit for all work. He may have a tendency to work by himself. This may restrict him in the types of work or environments, but he can work. This equates to moderate impairment."

"Moderate impairment: cannot work at all in same position. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful)."

"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. And for a Class 5: "Totally impaired: Cannot work at all."
2. The Medical Assessor has clearly carefully considered Mr Mazan's abilities with respect to this category which we note refers to both "employability" and "adaptation" capabilities.
3. As he noted, Mr Mazan had the capacity to travel overseas on his own to ski reflecting some organisational and planning skills,
4. He also "was currently looking after a friend's dog" as well as his own.
5. We agree that Mr Mazan has some capacity for employment however, we have some reservations as to the extent of that capacity for the following reasons.
6. As the Medical Assessor noted:

"Mr Mazan could drive but preferred to drive when it was quiet on the roads. He might become angry or raged on busy roads. He denied any overt road rage or violence. He avoided, but could use, public transport when needed to do so..."

1. These restrictions in our view would certainly limit his ability to work as a "postal delivery officer, a courier or equivalent" and drive to any workplace such as a workshop.
2. The Panel also note that Mr Mazan has variable sleep patterns affecting him during the day. He does not demonstrate a regularity function that indicates he could maintain a routine pattern of part time work and work at the expected pace, but that his attendance would be unreliable and his pace at times slow.
3. For these reasons we are of the view that a Class 4 rating is the correct rating having regard to the whole of the evidence.
4. This then means that the ratings are:

(a) Self-care and personal hygiene - Class 2;

(b) Social and recreational activities - Class 2;

(c) Travel - Class 2;

(d) Social functioning - Class 2;

(e) Concentration, persistence and pace - Class 2, and

(f) Employability -Class 4.

1. The aggregate of class ratings remains is now 14, median class 2 for a 7% WPI.
2. Thus although the Appeal Panel has determined that there has been an error and corrected this, the MAC issued on 28 January 2025 need not be revoked as the WPI remains the same.