WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; both parties appealed against medical assessment; worker submitted the ratings of the Medical Assessor (MA) in the psychiatric impairment rating scale categories of self-care and personal hygiene, social and recreational activities, and social functioning involved error; insurer contended that the MA did not disregard the worker's symptoms and impairments resulting from an agreed secondary psychological injury, or alternatively did not explain how he had disregarded those symptoms and impairments when assessing the worker's impairment from his primary psychological injury; Held - MA did not cogently explain how he had disregarded worker's symptoms and impairments from an agreed secondary psychological injury, and that was an error amounting to a demonstrable error; worker re-examined; Medical Assessment Certificate revoked.

1. Luke McNeill commenced employment with Freestyle Kings Pty Limited (Freestyle) in June 2019 as a motor bike stunt rider. On 26 September 2019 he was performing a stunt at Chinelong Island Theme Park in China during which he fell from a distance of several metres. He suffered a psychological injury from this incident in the form of post-traumatic stress disorder, and also physical injuries in the form of compound fractures to his right tibia and fibular and multiple fractures of his right ankle.
2. Mr McNeill claimed compensation for permanent impairment resulting from his psychological injury. He relied on a report his solicitors obtained from psychiatrist Dr Adelle Jackson dated 20 May 2024, wherein she advised she assessed the degree of Mr McNeill's permanent impairment is 22% whole person impairment (WPI). That assessment was based on her ratings of Mr McNeill's impairment in the several domains of behaviour comprising the psychiatric impairment rating scale (PIRS). Her ratings were Class 3 in self-care and personal hygiene, Class 2 in social and recreational activities, Class 2 in travel, Class 3 in social functioning, Class 3 in concentration, persistence and pace (CPP), and Class 5 in employability. She advised in her report that Mr McNeill's presentation and her examination of him is consistent with his having post-traumatic stress disorder.
3. To respond to his claim Freestyle's solicitors organised for Mr McNeill to be examined by psychiatrist Dr Nabil Malik on 7 November 2024. In a report dated 19 November 2024 he advised that based on the history Mr McNeill provided and his findings from his examination of Mr McNeill, Mr McNeill met the criteria for a diagnosis of post-traumatic stress disorder and major depressive disorder with anxious distress. Dr Malik advised that Mr McNeill's post-traumatic stress disorder is a primary psychological condition and that Mr McNeill's depressive symptoms are a secondary psychological injury that resulted from the impact of Mr McNeill's physical injuries including chronic pain and functional limitations.
4. Dr Malik also advised that he assessed the degree of Mr McNeill's permanent impairment from his psychiatric conditions is 22% WPI. That was based upon his rating Mr McNeill's impairment in self-care and personal hygiene as Class 2, social and recreational activities as Class 3, travel as Class 2, social functioning as Class 3, CPP as Class 3 and employability as Class 5. He considered that 25% of Mr McNeill's 22% WPI is due to Mr McNeill's secondary psychological condition such that he assessed the degree of Mr McNeill's permanent impairment from his primary psychological condition, namely post-traumatic stress disorder, is 17% WPI.
5. On 5 December 2024 Freestyle's solicitors wrote to Mr McNeill's solicitors advising them that Freestyle offered to settle Mr McNeill's claim by paying compensation to him for 17% WPI. They provided Mr McNeill's solicitors with a copy of Dr Malik's report of 19 November 2024.
6. On 20 January 2025 Mr McNeill's solicitors wrote to Freestyle's solicitors advising them that Mr McNeill rejected Freestyle's offer but made a counter-offer to settle his claim by accepting compensation for 21% WPI. Ultimately, that was not accepted, and Mr McNeill instituted proceedings in the Personal Injury Commission (Commission) by filing an Application to Resolve a Dispute dated 5 June 2025. Following Freestyle filing a reply to that, the matter was referred to a Member of the Commission, namely Mr Michael Moore, who with the consent of the parties made the following determinations and notations that were recorded in the certificate of determination the Commission issue on 10 July 2025:

"1. The parties agree that as a result of injury suffered on 26 September 2019 the applicant suffered both a primary and secondary psychological injury.

1. I remit this matter to the President for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
   1. Date of Injury: 26 September 2019
   2. Body systems/parts: Psychological/psychiatric
   3. Method of Assessment: Whole person impairment.

3. The documents to be reviewed by the Medical Assessor are:

1. Application to Resolve a Dispute and attached documents:
2. Respondent's Reply and attached documents.

1. The Medical Assessor when assessing the whole person impairment resulting from the primary psychological injury sustained on 26 September 2019 is to exclude from that assessment any whole person impairment arising from the secondary psychological injury."

1. In accordance with the second of those determinations a delegate of the President of the Commission on 11 July 2025 duly issued a referral of the matter of Medical Assessor Surabhi Verma. She examined Mr McNeill on 1 August 2025 and on 20 August 2025 issued a Medical Assessment Certificate (MAC) in which she certified she assessed the degree of Mr McNeill's permanent impairment from his psychological injury is 9% WPI.
2. Both parties have appealed against the Medical Assessor's medical assessment of the degree of Mr McNeill's permanent impairment from his psychological injury. Mr McNeill relies upon the ground for appeal listed in s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), being the MAC contains a demonstrable error. Freestyle relies on the grounds for appeal provided in s 327(3)(c) and (d). The ground for appeal provided in s327(3)(c) is that the assessment was made on the basis of incorrect criteria.
3. The delegate of the President is satisfied that, on the face of the application, at least one ground for appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) for 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. The Medical Assessor advised in the MAC that her assessment of the medical disputes referred to her is based on the information she obtained from her clinical interview with

Mr McNeill, her findings from her mental status examination of Mr McNeill and the information contained within the documentation the Commission had forwarded to her. She noted, when summarising Mr McNeill's injury, that Mr McNeill had been involved in a life-threatening accident when he fell from a height of at least 15m sustaining a compound fracture of his right tibia and fibular and a fracture of the right navicular bone and right talus bone for which he underwent surgical interventions. The Medical Assessor noted that at the time she assessed Mr McNeill, Mr McNeill's symptoms included significant intrusive symptoms in the form of distressing memories and nightmares. The Medical Assessor noted that Mr McNeill experienced avoidance symptoms. She noted that Mr McNeill is triggered by reminders that aroused distressing memories. She noted that Mr McNeill also has persistent and exaggerated negative beliefs about others, including that no one could be trusted. She noted that Mr McNeill had a persistent negative emotional state and markedly diminished interest in significant activities and marked alteration in his arousal and reactivity including irritability, hypervigilance, poor concentration and sleep disturbances. 2. The Medical Assessor diagnosed that Mr McNeill's presentation is consistent with a diagnosis of post-traumatic stress disorder. 3. The Medical Assessor observed that the documents that were before her suggested that

Mr McNeill has ongoing difficulties with chronic pain and that Mr McNeill was seeing a pain specialist until at least 2024. 4. The Medical Assessor rated Mr McNeill's impairment by reference to the PIRS. Her ratings of Mr McNeill's impairment in the several PIRS categories were Class 2 for self-care and personal hygiene, Class 2 for social and recreational activities, Class 2 for travel, Class 2 for social functioning, Class 3 for CPP and Class 5 for employability. 5. Mr McNeill in his appeal against the medical assessment has challenged the correctness of the Medical Assessor's assessment of his impairment in the categories of self-care and personal hygiene, social and recreational activities and social functioning. Freestyle's appeal against the medical assessment relates to its contention that the Medical Assessor did not abide the requirement of s 65A(2) of the Workers Compensation Act 1987 (the 1987 Act) by not disregarding any impairment or symptoms Mr McNeill has from a secondary psychological injury. 6. In the PIRS rating form within the MAC the Medical Assessor provided the following summary of her reasons for rating Mr McNeill's impairment in self-care and personal hygiene as Class 2:

"Mr McNeill reported that he showers "when he is in pile of sweat" which is at least 3 to 4 times a week and brushes his teeth irregularly.

He reported that he has been using the TENS machine regularly and uses hot treatment like sauna to take care of his pain and also does little bit of exercise and has been doing that to address the pain symptoms and is cognizant of things needed to be done for his pain.

He has lost about 10 kg since the accident. He early used to weigh 85 kg and he now weighs around 72 to 75 kg. He attributed the weight loss to 'being half the person that he was.'

He said that he relies on his partner who has been helping and supporting him to do all the household chores and he said that he does not do any household chores. He does not prepare his own meals and eats whatever is available."

1. The Medical Assessor also noted that within the MAC that Mr McNeill experiences nightmares four to five times a week and that he often awakes from these dreams completely drenched and has to shower. The Medical Assessor also noted that on a typical day

Mr McNeill will awake at 2.00am to 4.00am and then do breathing exercises. 2. The Medical Assessor also briefly commented on the opinions of other clinicians. That included the opinion of Dr Malek expressed in his report of 19 November 2024 wherein he expressed his view that Mr McNeill's physical injuries and overall chronic pain, emotional distress and psychological burden contribute 5% WPI to Mr McNeill's overall psychiatric impairment. The Medical Assessor commented, "Kindly note that I have not made any deduction but I have considered the impact of the physical injuries and pain when calculating the individual's PIRS scales". 3. The Medical Assessor also noted that pain specialist Dr Alan Nazha, in a report dated

12 September 2024, had recommended a lumbar medial branch block for Mr McNeill and that consideration be given to other options such as superficial and deep peroneal nerve block to address Mr McNeill's lower limb pain. The Appeal Panel notes that Mr McNeill consulted Dr Nazha, on referral from his general practitioner, on a few occasions in the second half of 2024. 4. The Medical Assessor referred to the report of Dr Jackson dated 20 May 2024 in which she advised she assessed Mr McNeill's permanent impairment from his injury as 22% WPI. The Medical Assessor made no comment on that or on Dr Jackson's individual PIRS ratings. 5. The Medical Assessor provided the following summary of her reasons for her rating of

Mr McNeill's impairment in the PIRS rating form for social and recreational activities:

"Mr McNeill reported that he earlier enjoyed training, running and being an athlete. He no longer trains and runs as he 'cannot run because of the physical injury' and also because of the 'mental strain of doing these things.' He earlier used to have 'plenty of friends. He said that his circle is now small and he does not trust people anymore.' He has cut off a lot of friends and does not answer the phone and does not communicate with them. He has now 2 to 3 close friends left whom he grew up with and who live in 20-km radius. He gets to see them at least once a week. At times one of his friends will come and pick him up and they go out to see other friends. He reported that he does not remember the last time when he attended a birthday party or a gathering. He has however been able to socialise with his friends and be actively involved in conversations when he meets them on a weekly basis."

1. The Medical Assessor provided the following summary of her reasons in the PIRS rating form for her rating of Mr McNeill's impairment in social functioning:

"Mr McNeill reported that his partner is 'a rock and she is beautiful.' He reflected that she has been supporting him, but it seems that it is draining her as well because of his mental health. There have not been any periods of separation or any divorce and they have been together for the last six years. He has lost friendships because of his mental health and irritability and how he once got angry with a friend who came to check up on him."

1. Relevant to the issue Freestyle has raised in its appeal against the MAC, the Medical Assessor included in the history she detailed in the MAC, the nature of the physical injuries Mr McNeill suffered and the treatment he received for those injuries immediately in China and also subsequently on his return to Australia. She recorded that Mr McNeill had seen at least three orthopaedic surgeons, a pain specialist, a physiotherapist, a chiropractor and an exercise physiologist for the physical injuries he suffered. The Medical Assessor noted that Mr McNeill reported that he had been managing his pain well and that he had undergone extensive rehabilitation. The Medical Assessor noted that Mr McNeill denied any difficulties in doing things because of pain in regard to which the Medical Assessor commented that

Mr McNeill had seen and had been engaging with a pain specialist until at least 2024. The Medical Assessor also recorded that Mr McNeill reported that he grinds his teeth at night. 2. As mentioned earlier, the Medical Assessor when commenting on Dr Malik's report of

19 November 2024, and the fact that he attributed a proportion of Mr McNeill's permanent impairment due to psychiatric illness to his physical injuries said "I have considered the impact of the physical injuries and pain when calculating the individual's PIRS scales".

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 Mr McNeill should undergo a further medical examination. This is because the Appeal Panel found, for reasons explained below, the MAC contained a demonstrable error that the Appeal Panel would need to correct and to do that it would need further clinical information from Mr McNeill. The Appeal Panel appointed one of its members, namely Medical Assessor Andrews, to conduct that examination. His report to the Appeal Panel on his examination is copied 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. With respect to his appeal against the medical assessment, Mr McNeill submitted that the Medical Assessor's reasons in the PIRS rating form for rating his impairment as Class 2 in self-care and personal hygiene "clearly meets Class 3". Mr McNeill submitted that a Class 2 rating "is inappropriate given the reliance on another adult for basic self-care and nutrition".
3. Mr McNeill submitted that the Medical Assessor's reasons in the PIRS rating form for rating his impairment in social and recreational activities as Class 2 is wrong and "reflect Class 3". Mr McNeill submitted he does not engage independently or actively in social life.
4. Mr McNeill submitted that the Medical Assessor ought to have rated his impairment in social functioning as Class 3 and not Class 2. He noted that the Medical Assessor's reasoning included that his partner is drained by his condition and that he has lost friendships due to mental health and anger issues and that he became aggressive to a friend when the friend came to check on him. Mr McNeill submitted that whilst there has been no separation from his partner, the strain, irritability and breakdown of other relationships justify a Class 3 rating.
5. In reply to those submissions, Freestyle submitted, in summary, that the Medical Assessor was entitled to rate Mr McNeill's impairment in self-care and personal hygiene as Class 2, based on the history she disclosed in the MAC. Freestyle highlighted that the Medical Assessor noted that Mr McNeill had some dependence on his partner for household chores but Freestyle submitted that does not support a finding of moderate impairment. Freestyle noted that Mr McNeill is capable of showering and changing clothes and brushing his teeth without prompting and whilst Mr McNeill's partner cooks for him he eats whatever is available.
6. Freestyle submitted that because Mr McNeill actively participates in conversations with his friends when he meets them weekly, the Medical Assessor was entitled to rate Mr McNeill's impairment in social and recreational activities as Class 2. Freestyle submitted that

Mr McNeill did not demonstrate how a higher class rating is available based on the evidence before the Medical Assessor. 7. With respect to the Medical Assessor's rating of Mr McNeill's impairment in social functioning Freestyle submitted that based on the history the Medical Assessor recorded the Medical Assessor's rating that Mr McNeill's impairment is Class 2 is correct. That history included firstly, that there is strain in Mr McNeill's relationship with his partner but he maintains his relationship with his partner and his partner is supportive and, secondly, that Mr McNeill has lost some friendships. Freestyle submitted that based on what Mr McNeill reported, his impairment "comfortably falls within the Class 2 criteria". 8. With respect to its appeal against the medical assessment, Freestyle submitted that the Medical Assessor failed to disclose whether any impairment or symptoms resulting from

Mr McNeill's secondary psychological injury was disregarded in "the final assessment". Freestyle submitted that because of that the Medical Assessor failed to provide adequate reasons for "the final assessment". 9. Freestyle submitted that the Medical Assessor based her assessment on incorrect criteria because she failed to assess the degree of permanent impairment in accordance with requirements of s 65A(2) of the 1987 Act. Freestyle submitted that the Medical Assessor was obliged to address to what extent the primary and secondary psychological injuries contributed to the impairment she assessed. Freestyle submitted that the Medical Assessor failed to obtain a proper history regarding Mr McNeill's secondary psychological condition. Freestyle submitted that the Medical Assessor failed to address the proportion to which

Mr McNeill's psychological deficits are derived from his secondary psychological condition. 10. Freestyle noted that the Medical Assessor commented that she had considered the impact of Mr McNeill's physical injuries when calculating the PIRS scores, but Freestyle submitted that the reasons the Medical Assessor detailed in the PIRS rating form did not disclose how

Mr McNeill's physical injuries impacted his functioning. 11. In reply to those submissions of Freestyle, Mr McNeill submitted that the Medical Assessor properly identified a single diagnostic entity, namely post-traumatic stress disorder, by reference to which she assessed his permanent impairment. Mr McNeill submitted that the evidence before the Commission does not demonstrate that he suffers from a discrete secondary psychological condition within the meaning of s 65A(2) of the 1987 Act.

Mr McNeill submitted that the Medical Assessor's analysis demonstrates that she had an understanding of the distinction between pain related functional limitation and a secondary psychological condition.

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.
3. The Appeal Panel considers, based on the submissions both parties made, the Medical Assessor made errors with respect to the assessment of Mr McNeill's permanent impairment from his primary psychiatric injury and those errors are such that the MAC contains a demonstrable error.
4. With respect to the Medical Assessor's rating of Mr McNeill's impairment in self-care and personal hygiene, the Appeal Panel observes that Mr McNeill does not prepare meals and does not do any household chores. The Medical Assessor did not explain whether

Mr McNeill's inability to do so is solely a consequence of his primary psychological injury, which she diagnosed as post-traumatic stress disorder, or whether any limitation Mr McNeill has is due solely to his pain or the physical injuries he suffered. The Medical Assessor did not in any clear way explore this in her reasoning for her rating of Mr McNeill's impairment in self-care and personal hygiene. That is an error on the part of the Medical Assessor with respect to her explaining her rating of Mr McNeill's impairment in self-care and personal hygiene. 5. The same mistake occurs with respect to the Medical Assessor's rating of Mr McNeill's impairment in social and recreational activities. The Medical Assessor has in the summary of her reasons for her rating of Mr McNeill's impairment in the PIRS rating form revealed that because of Mr McNeill's physical injuries, Mr McNeill can no longer engage in some recreational activities in which he previously did. The Medical Assessor however does not in any sufficient detail explain whether the reduction in Mr McNeill's social and recreational activities derives from his physical injury and pain or his primary psychological injury. It cannot be known, in the Appeal Panel's view, from what the Medical Assessor has explained whether the reduction of the level of Mr McNeill's engagement in social and recreational activities is due only to his physical pain and physical injuries or is the consequence of his primary psychological injury, or partly both, and if so to what degree is it due to one or the other. This amounts to a demonstrable error. 6. Again, the Appeal Panel finds that the Medical Assessor has not properly exposed the path of her reasoning for her rating of Mr McNeill's impairment in social and recreational activities. Again, the Appeal Panel considers that the Medical Assessor has not detailed in her reasoning for her rating whether she disregarded Mr McNeill's impairment in symptoms from his secondary psychological injury. Given that, the Medical Assessor has again made an error regarding her rating of Mr McNeill's impairment in social functioning. 7. The Appeal Panel notes that the Medical Assessor when commenting on Dr Malik's assessment advised that she had "not made any deduction" for impairment or symptoms arising from Mr McNeill's secondary psychological injury and that she had considered the impact of Mr McNeill's physical injury and pain when rating Mr McNeill's impairments in the several PIRS categories. As the discussion above indicates, the Appeal Panel considers the Medical Assessor did not do so with respect to self-care and personal hygiene, social and recreational activities and social functioning. The Appeal Panel also considers that the Medical Assessor did not do so with respect to the other PIRS categories, that is travel, concentration, persistence and pace and employability. 8. Mr McNeill submitted that the Medical Assessor identified a single compensable psychological injury, specifically post-traumatic stress disorder, and assessed his impairment by reference to that. The parties however had agreed that Mr McNeill suffered a secondary psychological injury. It was incumbent, in that circumstance, for the Medical Assessor to explain how, when assessing the degree of Mr McNeill's permanent impairment from his primary psychological injury, that she had no regard to any impairment or symptoms from his secondary psychological injury. It is not apparent from the Medical Assessor's reasoning in the MAC how she has excluded Mr McNeill's impairment or symptoms from a secondary psychological injury. It may be the case that Mr McNeill does not currently have any impairment or symptoms from a secondary psychological injury, but if so, it is not clear from the MAC that is what the Medical Assessor found. Noting the parties had agreed Mr McNeill had a secondary psychiatric injury, s 65A(2) of the 1987 Act required the Medical Assessor to identify if there were symptoms or impairment arising from the secondary psychological injury and, if there were, to disregard those in the assessment process.[1] 9. The Medical Assessor not having explained whether and why or how she applied s 65A(2) of the 1987 Act, the Appeal Panel is required to correct that error. To that end and as indicated above, the Appeal Panel had Medical Assessor Andrews examine Mr McNeill. Medical Assessor Andrews report to the Appeal Panel follows:

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

Mr McNeill was assessed by MA Verma on 1 August 2025, about six months ago. He continues to see his general practitioner, Dr AB Thomas and his psychologist, Mr Ayman Kassir.

Recently, he has been prescribed duloxetine but has not yet filled the prescription. He has not used any other antidepressant as he feared side effects or addiction.

In the six months since seeing MA Verma, Mr McNeill feels that his condition has deteriorated slightly.

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

Mr McNeill lives with his partner of eight years, Angela, in a rental house at Sanctuary Point. He moved there from Sydney to be near his father, who now lives next door. His father provides practical and emotional support.

Angela has been working full-time in administration but is now taking annual leave to provide Mr McNeill with greater support.

The nature of the accident is not in dispute and has been described well in the brief. The crux of it is that Mr McNeill had an accident while performing a motorcycle stunt, crashed and fell from a height, causing extensive orthopaedic injuries to his right leg.

He has been diagnosed with post-traumatic stress disorder. In the Certificate of Determination - Consent Orders of 10 July 2025, it is stated, "The parties agree that as a result of injury suffered on 26 September 2019, the appellant suffered both a primary and secondary psychological injury." The appeal panel notes that the referral to the MA did not mention secondary injury.

The nature of the secondary psychological injury is not defined. Mr McNeill has suffered a physical injury that has resulted in minor limitations to his mobility and significant pain. Any impairment resulting from his physical limitation or pain is excluded from this assessment. Neither constitutes a secondary psychological injury.

Mr McNeill suffered a compound fracture of his right tibia and fibula, with fractures also to his talus and navicular bones. He has had three surgeries, the last being two years ago. An orthopaedic surgeon has discussed the prospect of an ankle fusion, but other clinicians have advised Mr McNeill against it.

He occasionally uses a TENS machine with modest benefit.

His anxiety about taking psychiatric medications extends to pain medications.

He occasionally uses medicinal marijuana. He has experimented with the use of MDMA and magic mushrooms, but not recently.

Prior to his accident, Mr McNeill weighed around 90 kg and had the fitness of an elite athlete. He now weighs 72 kg; at 170 cm, his BMI is 24.9, in the upper range of normal. Nonetheless, this is a significant weight loss, suggesting reduced fitness.

Mr McNeill had an immediate and severe psychological response to his traumatic accident. He suffered severe injury, and the accident had the potential to cause his death.

He has distressing memories and frequent nightmares directly related to the motorbike accident. He really experiences the accident in a way that suggests dissociation. He experiences intense psychological distress at reminders of the accident.

He has severe anxiety associated with hypervigilance. He exhibits avoidant behaviours, including no longer riding motorbikes and avoiding social interaction, because he fears people will ask about the accident or his circumstances. He described himself as "paranoid", but on close questioning, his experience was that of intense anxiety.

He is irritable and prone to anger. He struggles to regulate his emotions and affective responses. This causes arguments, primarily with Angela, and he has violently lashed out, destroying property. He has not been violent toward his partner. He has had arguments and fights away from home.

He was unable to say whether he experienced depression, but described low motivation, lack of energy and frequent thoughts of suicide. He has discussed this with his general practitioner and psychologist and requested that they help formulate an emergency plan for him.

He feels hopeless and weak. He believes that he has "lost everything", including his purpose and position in life and self-esteem. Prior to his accident, he was an elite stunt motorcycle rider and had prospects in the Hollywood film injury. He had worked as a stunt double for Vin Diesel and was a member of the Screen Actors Guild. He said, "I am a shell of a person."

He has initial and middle insomnia with frequent nightmares. He said that on some nights he is unable to sleep at all.

His appetite is poor; he frequently skips meals and has lost significant weight.

He has no libido, and there is little, if any, sexual intimacy in his relationship.

I assessed Mr McNeill via an audiovisual link to his home for about 80 minutes. The connection quality was excellent, allowing for a comprehensive assessment. His partner sat in as a support person. She mostly remained silent during the interview, but responded to a few direct questions.

Mr McNeill was casually attired, sporting a beard and wearing a T-shirt. He had a recent haircut and showed me a matted dreadlock that his partner had insisted on removing, and she had cut his hair herself.

He said he was anxious and that his mood was "up-and-down." His affect was restricted and his anxiety apparent throughout the interview. On a few occasions, he lost composure when discussing the impact of his injuries on his relationship and his life.

There was no evidence of any disorder of thought-form or perception.

He acknowledged frequent thoughts of suicide or self-harm. He stated that he had actually harmed himself on occasion.

Mr McNeill was open and forthcoming during the interview. He did not appear guarded. He struggled with details and event sequences. He needed some questions restated and, occasionally, redirection.

At the end of the interview, he agreed that we had covered everything necessary and reiterated his sense of distress and loss. His partner also agreed that we had covered everything, and they both thanked me, stating that they felt that Mr McNeill had been able to express himself fully.

Mr McNeill lives with Angela in a freestanding house, next door to his father. When she is working, he stays home all day, with some activities, described below, when she is home.

He has irregular sleep, and he rises any time from predawn until late morning.

He may sit on a mat in the house or outside. He doesn't read or watch TV because he struggles to pay attention.

He and Angela may walk the dog together, but avoid interacting with others.

He does no housework or meal preparation. He shops with Angela, a local small-fruit-and-vegetable vendor, but avoids supermarkets because of the crowds. He helps Angela bring in the groceries.

He showers and wears clean clothes only a couple of times a week, after Angela's prompting and encouragement. She recently insisted that he have a haircut because his dreadlock was unclean and starting to smell.

Before his accident, Mr McNeill was physically and socially active. He regularly performed before large crowds, enjoyed social outings with friends, bushwalking and concerts.

He has isolated himself. For example, he no longer owns a phone because he became anxious about making phone calls. He has retained lifelong friends but doesn't initiate contact with them. Angela organises for them to call and to make weekly visits. They may sit and talk at Mr McNeill's home or, occasionally, go to the home of another.

About once a week, he spends the day and night at his father's house to give Angela a break. He occasionally visits his sisters, one of whom lives about a 30-minute drive from him. His mother may visit and cook for walks together. He avoids more formal family celebrations.

He does not go to restaurants, cafés or attend activities such as concerts. He and Angela occasionally go to the beach.

He allowed his driver's license to lapse six months ago. He had unpaid fines and felt unable to deal with it. He is too anxious to ride a motorcycle and prefers to have others, usually Angela, drive him. Before losing his license, he could drive alone for short distances locally on rare occasions.

He described Angela as a loving and caring person, but the relationship is volatile. He said, "She is under a lot of pressure; I can be too much." He said the relationship was hanging on by a thread." They have frequent arguments, and Mr McNeill has been violent, destroying property, but not directly physically aggressive toward Angela. In addition to his spending about one day a week at his father's, they have had separations when Angela has left their home. In the last month, she went to her mother's for four days. She did so without a clear idea about whether she would return.

He has remained close to his parents, who are separated, and two friends. He has lost others because of his social disengagement.

He does not read or watch television. He has no projects or hobbies.

• Post-traumatic stress disorder
• Major depressive disorder

• Direct experience of threatened death and serious injury

• Distressing memories
• Nightmares related to trauma
• Flashbacks/dissociative reactions
• Intense psychological distress at reminders
• Physiological reactivity to reminders

• Avoidance of distressing thoughts/feelings about trauma
• Avoidance of external reminders (people, places, conversations, activities)

• Persistent negative beliefs
• Persistent negative emotions (fear, guilt, shame)
• Diminished interest in activities
• Detachment/estrangement from others
• Inability to experience positive emotions

• Irritability/angry outbursts
• Hypervigilance
• Exaggerated startle response
• Concentration problems
• Sleep disturbance

Criterion G: Clinically significant distress/impairment

Criterion H: Not due to substances or medical condition

He has the following symptoms of a major depressive disorder:

Criterion A: ≥5 symptoms during the same 2-week period, representing a change from previous functioning. At least one must be depressed mood or loss of interest/pleasure

• Depressed mood
• Markedly diminished interest/pleasure in activities
• Significant weight/appetite change
• Insomnia
• Psychomotor agitation/retardation (observable)
• Fatigue/loss of energy
• Feelings of worthlessness or excessive
• Diminished concentration/indecisiveness
• Recurrent thoughts of death, suicidal ideation

Criterion B: Symptoms cause clinically significant distress/impairment

Criterion C: Not attributable to substance/medical condition

Criterion D: Not better explained by schizophrenia spectrum or psychotic disorders

Criterion E: No history of manic/hypomanic episode (unless substance/medical-induced)

His symptoms are in the severe range. His PTSD is a primary condition. His major depressive disorder is a secondary psychological condition, consequent on his continuing physical limitations and pain.

It is more than five years since Mr McNeill's accident. Since then, he has had regular psychological therapy but has not taken any evidence-based medication. Recently, he has been prescribed duloxetine and is contemplating whether to take it or not. Mr McNeill had previously chosen not to take medication, fearing side-effects or addiction. He has not seen a psychiatrist, citing difficulties in obtaining a referral to a psychiatrist willing to take on a WorkCover case.

Objectively, his treatment has been inadequate. He would likely benefit from review from a psychiatrist, prescription of appropriate medication, and possibly attendance at a PTSD program.

However, his symptoms and impairment are severe and entrenched. Regardless of any potential benefit from treatment changes, it is very unlikely that his symptoms or impairment will change significantly over the next 12 months.

Mr McNeill has a severe primary psychological condition, PTSD, with significant impairment.

His symptoms of major depression, the secondary condition, are moderately severe.

It is impossible to disentangle the symptoms or impairments arising from the two conditions. However, his PTSD is severe, and his degree of impairment would be the same whether the secondary condition existed or not. Further, there is overlap between symptoms of the two conditions, and if the primary psychological condition did not exist, the secondary condition would be much less severe. Consequently, the impairment from the secondary psychological condition would also be much less.

For these reasons, Mr McNeill's entire impairment must be attributed to his primary psychological condition, with no deduction made relating to the secondary psychological condition.

The appellant challenged the MA's ratings in self-care and personal hygiene, social and recreational activities and social functioning. It has been necessary to re-examine all PIRS categories to assess the primary and secondary contributions. On review of all categories following examination, I agree with the MA's findings in the unappealed categories of travel, concentration, persistence and pace, and employability.

In each of the challenged categories, the MA had found a mild impairment. After review, I found the impairment to be moderate in self-care and personal hygiene, and in social functioning, and we I agree with the MA that the impairment in social and recreational activities was mild.

Mr McNeill is dependent on his wife, and to a lesser extent, his father. He showers twice weekly, requiring encouragement and prompting. He only cut his hair at his wife's insistence. He does no housework and prepares no meals. He goes shopping with his wife and helps her bring in the groceries. He frequently skips meals and has lost significant weight. He would struggle to live independently.

Mr McNeill regularly walks a stock with his wife, sometimes walking on the beach together. He sees friends weekly, either at his house or at one of their houses. He doesn't initiate these contacts. He regularly visits his father, occasionally his sister, and occasionally his mother. He no longer goes out to cafés, restaurants or concerts. His social and recreational activities are restricted compared to before the accident, and he is relatively passive. However, his social contacts are regular, rather than rare.

Mr McNeill has lost his license after failing to pay fines, and has not renewed it. Before losing his license, he could drive locally independently, though he preferred having others drive him. He could not undertake a longer journey without support. He is unable to ride his motorbike at all because of his anxiety. Had Mr McNeill retained his driver's license, he would still be able to drive independently locally if necessary.

Mr McNeill has been with Angela for eight years. Since the accident, their relationship has become volatile and fragile. While they remain caring toward each other, they have frequent arguments and these arguments have become violent, although Mr McNeill directs his physical aggression toward property rather than his partner. He spends a night away from her each week to give her a break. There have been periods of separation when Angela has left the relationship, unsure whether she would return. He has maintained relationships with his parents and siblings and two friends, while in contact with other friends.

Mr McNeill doesn't read, watch TV or have any projects or hobbies. During my interview, he struggled with some details and event sequences. He occasionally needed to have questions restated or redirected.

Mr McNeill has severe symptoms and impairment. He has lost confidence in himself and in others. For these reasons, I consider him to be unfit.

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

1. The Appeal Panel accepts and adopts the additional history that Medical Assessor Andrews has detailed in his report, his findings from his examination of Mr McNeill, his report on McNeill's symptoms and functioning and his diagnoses of Mr McNeill's psychiatric illnesses. No point is served in repeating the detail of that.[2]
2. The Appeal Panel also agrees with Medical Assessor Andrews ratings of Mr McNeill's impairment in the PIRS categories and adopts his reasoning for the ratings he provided.
3. The Appeal Panel also agrees with the opinion that Medical Assessor Andrews expressed under the heading "primary and second psychological conditions" in his report that the entirety of Mr McNeill's impairment in these categories is to be attributed to his primary psychological injury.
4. The requirement of s 65A(2) is that a Medical Assessor have no regard to the impairment or symptoms resulting from a secondary psychological injury when assessing the degree of permanent impairment from a primary psychological injury. The Appeal Panel notes that her Honour Harrison AsJ propounded in obiter dicta in Mercy Connect Ltd v Kiely[3] a two-step process by which a Medical Assessor could abide the mandate of s 65A(2) to have no regard to impairment or symptoms from a secondary psychological injury. The first step is to assess the overall degree of permanent impairment of a worker in accordance with cls 11.11 and 11.12 of the Guidelines. The second step is to assess separately the worker's permanent impairment due to the secondary psychological injury by reference to the same clauses and then deduct the latter from the former. The Appeal Panel considers that such a process is apt for the circumstance where there can be a disentanglement of the impairment and symptoms a worker suffers due to a secondary psychological injury from the impairment and symptoms a worker suffers due to the primary psychological injury.
5. In this case however, that cannot be done, and that is because, for the reason Medical Assessor Andrews explains, it is impossible to disentangle Mr McNeill's symptoms and impairments both from his post-traumatic stress disorder and his major depression. His impairments and symptoms from his primary psychological injury, that is post-traumatic stress disorder, are of the same nature, although more severe, than the impairment and symptoms he has from his major depressive disorder. No proportion of his symptoms or his deficits in functioning can be attributed solely to one or the other of his psychiatric illnesses. As Medical Assessor Andrews has advised the Appeal Panel, and which the Appeal Panel accepts, even if Mr McNeill did not have his secondary psychological injury he would still have the impairment he does from his primary psychological injury of post-traumatic stress disorder.
6. The Appeal Panel considers that the requirement of s 65A(2) to have no regard to any impairment or symptoms from a secondary psychological injury is to be interpreted as impairment or symptoms that can be isolated to the secondary psychological injury. If it were otherwise, then in a case such as this, where the impairment and symptoms from the primary psychological injury and the secondary psychological injury are essentially indivisible and cannot be disentangled, to disregard the impairment and symptoms from the secondary psychological injury would mean to disregard the impairment and symptoms from the primary psychological injury. It would mean that a worker could be assessed to have no degree of permanent impairment resulting from a primary psychological injury when in fact a worker does have a permanent impairment from that injury. It would be a perverse result and contrary to the beneficial purpose of the legislation and also contrary to one of the express objectives of the legislation that injured workers receive payment for permanent impairment.
7. For these reasons, the Appeal Panel has determined that the MAC issued on

20 August 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

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

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Surabhi Verma and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Chapter, page and paragraph number in NSW workers compensation guidelines

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

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

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

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

[1] Matheson v Baptist Care NSW & ACT [2025] - NSWSC 213 at [55].

[2] Coco Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [88].

[3] [2018] NSWSC 1421.