1. On 12 September 2025 Metal Manufacturers Limited (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mukesh Kumar, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 August 2025.
2. 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.
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. Mr French lodged an Application to Resolve a Dispute (ARD) with the Commission on

2 June 2025 claiming permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). Mr French pleaded that he had sustained psychological injury on the deemed date of 19 July 2022. The cause of injury was pleaded as follows:

"The worker's employment with MM Electrical Merchandising has been the contributing factor to the aggravation of his accepted psychological injury from 2010 on account of continued bullying and a hostile work environment, which resulted in him being certified with no capacity for any employment on 19 July 2022."

1. In his statement made 23 May 2025 Mr French states that in or about early 2014 he was being troubled and harassed by a colleague, Brendan Farrel, who would drink alcohol at his desk and would taunt him. Mr French eventually complained to his manager. Mr Farrel having heard of the complaint confronted Mr French in the office verbally abusing him as well as charging across the room, pushing Mr French partially out of a ground floor window.
2. Mr French lodged a workers compensation claim for psychological injury as a result of the incident for which liability was accepted. Mr French was off work for a period of time before returning to work with the appellant despite feeling that the appellant disregarded his concerns in respect to his own safety and wellbeing in the workplace. It is in the evidence of Mr French that on returning to work he was fearful and anxious of his workplace and felt that the appellant was uncaring. He recommended to his manager that the appellant consider restricting or banning the consumption of alcohol in the workplace which was ignored.
3. In early 2022 "Colin", the store supervisor, retired. Mr French requested clarity as to what this meant in respect to his role, however his requests were ignored. Mr French also again proposed that alcohol be banned from the workplace which was refused. It is the evidence of Mr French that this triggered memories of the altercation in 2014. Mr French was fearful that alcohol would lead to a further incident. It is the evidence of Mr French that his mental health declined to where he could no longer continue working.
4. Liability for the injury was accepted; however, the appellant disputed that Mr French was entitled to permanent impairment compensation because the accepted injury had not resulted in at least 15% permanent impairment as required by s 65A(3) of the 1987 Act.
5. Given the only dispute between the parties related to the degree of permanent impairment, the matter was referred by consent to a Medical Assessor to determine the permanent impairment arising from the injury.
6. Mr French was referred to Medical Assessor Mukesh Kumar for assessment of impairment due to psychiatric/psychological disorder with a deemed date of injury of 19 July 2022.

Mr French was examined by the Medical Assessor on 25 July 2025. After taking a relevant history and conducting an examination, the Medical Assessor conducted an assessment of impairment utilising the psychiatric impairment rating scale (PIRS). The Medical Assessor assessed 15% whole person impairment (WPI). Relevantly the Medical Assessor made 0% deduction pursuant to s 323 of the 1998 Act for pre-existing injury, condition or abnormality.

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 Mr French to undergo a further medical examination because the appeal relies on the Medical Assessor having erred in assessing a 0% deduction pursuant to s 323 of the 1998 Act for "pre-existing injury, condition or abnormality". As the Appeal Panel is of the view that the Medical Assessor did not fall into error consideration of a further medical examination was not required.

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. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

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 has erred (demonstrable error) in assessing the deduction for the proportion of the impairment that is due to a previous injury or pre-existing condition or abnormality as nil.[1]
3. In the appellant's submission the Medical Assessor:

"does not address why his opinion in relation to a deduction for a pre-existing condition is at odds with all available medical evidence, despite obtaining a very detailed history in relation to the incident in 2014/2015 (at pages 2-3) where he sets out a very detailed history regarding the prior/past incident and the significant ongoing psychological affects thereafter, which continued until the subject deemed incident in 2022."[2]

1. In the appellant's submission the Medical Assessor:

"does not outline any reasons why the subject incident in 2022 was solely responsible for his current assessment, nor does he explain why he disagreed with the opinions of Drs Anand and Saboor that a 10% deduction for a pre-existing condition was appropriate."[3]

1. In reply, Mr French submits that the Medical Assessor did provide his path of reasoning which explained why he did not apply a deduction pursuant to s 323 of the 1998 Act.[4]
2. Mr French submits that the psychological injury which developed in 2014 does not qualify as a pre-existing injury and therefore should not result in a deduction pursuant to s 323 of the 1998 Act.[5] In support of his submission Mr French relies on the decision of Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 (Cullen).

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 Medical Assessor records at point 1 of the MAC that the following matters had been referred for assessment:

• Body parts/systems referred: Psychiatric / Psychological disorder
• Method of assessment: Whole person impairment"

1. The ARD which was lodged with the Commission on 2 June 2025 pleads, consistent with the matters identified by the Medical Assessor, a deemed date of injury of 19 July 2022 with the "Type of Injury" being an "[a]ggravation, acceleration or exacerbation or deterioration of disease." Significantly the "Injury Description/Cause of Injury and Death" is described as follows:

"The worker's employment with MM Electrical Merchandising has been the contributing factor to the aggravation of his accepted psychological injury from 2010 on account of continued bullying and a hostile work environment, which resulted in him being certified with no capacity for any employment on 19 July 2022."

1. Point 4 of the MAC is titled "HISTORY RELATING TO THE INJURY". The following bullet point headings appear under point 4:
   • Brief history of the incident/onset of symptoms and of subsequent related events, including treatment;
   • Present treatment;
   • Present symptoms;
   • Details of any previous or subsequent accidents, injuries or condition;
   • General health;
   • Work history including previous work history if relevant, and
   • Social activities/ADL.
2. Under the first bullet point titled "Brief history of the incident/onset of symptoms and of subsequent related events, including treatment:" the Medical Assessor records a history of the events which occurred in the course of Mr French's employment with the appellant. Relevantly that history includes the following:

"Mr French reported that approximately 8 or 9 years ago, though he later added that it was approximately 2015, he had an incident at work. Mr French reported that at the time, his company hired a person that he had dealings with from a previous employer. He said that he asked the manager not to hire this person because of previous conflict. Mr French said that a few months after this person was hired by the company, he and this person had a dispute. Mr French said that he had said something to the manager and the manager may have said something to this person. He said that this person confronted him and came to the shop where he was working by himself. Mr French said that in this altercation, this man ran towards him and shoved him (Mr French) out through a window. Mr French said that the window was on the ground floor. He said that he was not thrown out of the window, however, he was pushed partially out of the window. He said that the man then stepped back and told him that now you have something to complain about. Mr French reported that after he spoke to his boss, his boss asked him to put a tin over the window so that no one breaks into the shop. He said that his boss was more worried whether someone would break into the shop rather than his assault. Mr French said that the next morning, he rang HR, however he was told that he is alright. Mr French said that it left him bewildered as there was no care involved. Mr French said that he contacted the police and reported the incident to them. He said that the police told him that the other person was claiming self-defence and therefore they would not take any further action. Mr French said that this person's wife was a police officer at the time, and he believes that the police was looking after other police. Mr French said that there were never any actual charges laid as the police claimed that this person was defending himself. Mr French reported that he remembers having an outburst with the HR lady, however his memory of this event is not clear. He said that he remembers that he was taken home by his manager and approximately a week later, he saw an advisement for his job in the newspaper. He said that at the time, he believed that he was going to be dismissed because of this incident. He said that he later called his manager and was told that they believe that he is possibly not going to come back to work. Mr French said that he then had a breakdown. He said that his wife told him that he had curled up in a fetal [sic] position under the hedge for a few hours. He said that his wife then took him to the doctor's, and he later saw a psychiatrist at the hospital. He said that he was later able to convince the psychiatrist that he was not going to kill himself and was released into the care of his family. Mr French said that for approximately 12 weeks, he saw a psychologist following this event. Mr French reported that at the time, the case manager forced him to return back to work. He said that he was told that if he does not return back to work, he would never be able to go back to work. He said that he returned back to work gradually, initially 2 hours a week and later increasing it to full-time hours. He said that at the time, he had to rely on his family to drive him to work as he could not get behind the wheel of a car. He said that he was also prescribed a medication by the psychiatrist which he continued and he continued to see the psychologist. He said that he had stopped seeing the psychologist at some stage, though a few years later, he had a 'relapse' following which he had to see the psychologist again. He said that he continued taking the medication and he was on medication when he stopped work recently."

1. The Medical Assessor then went on to record a history of the more recent work events.
2. Under the bullet point "Details of any previous or subsequent accidents, injuries or condition" the Medical Assessor recorded the following:

"Mr French denied any other previous history of psychiatric conditions. There have been no other subsequent accidents, injuries or conditions."

1. At point 7 of the MAC the Medical Assessor provides a "summary of injuries and diagnoses" relevantly stating:

"Mr French suffers from a persistent depressive disorder. This is in context of workplace events. The initial event was when he was assaulted at work in 2015. Since then, he has had ongoing symptoms in varying severity. He had a relapse a few years ago and had to see the psychologist again. Though Mr French was able to continue working, he had to eventually stop work approximately 2 years ago, following another conflict at work."

1. The Medical Assessor at point 8 of the MAC in answering questions regarding the assessment of impairment recorded at [8(e)]., the portion of WPI due to a previous injury, pre-existing condition or abnormality as "Nil".
2. At point 10 of the MAC the Medical Assessor gave his reasons for assessment which included his brief comments regarding the other medical opinions and findings. The Medical Assessor noted that Dr Assad Saboor in a report dated 22 November 2024 had in assessing WPI deducted 2% "for a past history" and that Dr Ashwinder Anand in a report dated

7 May 2024 had done the same. 3. Dr Anand had provided an expert forensic report to Mr French dated 7 May 2024 whilst

Dr Saboor had provided an expert forensic report to the appellant dated 22 November 2024.

Dr Anand and Dr Saboor both deducted 2% from their impairment assessment for injury in 2014. 4. Whilst Mr French relied on the opinion of Dr Anand, he did not accept that the deductions made by Dr Anand and Dr Saboor were correct. On 17 April 2025 Mr French's solicitors wrote seeking a review of the insurer's decision pursuant to s 287A of the 1998 Act. In seeking the review, it was submitted that Dr Anand and Dr Saboor had incorrectly applied the deduction pursuant to s 323 of the 1998 Act on the basis that the events in 2014 had occurred during Mr French's employment and therefore there was no pre-existing injury. 5. The Medical Assessor at point 11 of the MAC which is titled "DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY" recorded at [11(a)]:

"a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:

1. It is the view of the Panel that the Medical Assessor has not fallen into error and sets out his path of reasoning.[6]
2. The Medical Assessor correctly records the date of injury which has been referred for assessment as 19 July 2022 and that the date of injury is a deemed date. The injury description/cause of injury pleaded in the ARD states that employment with the appellant:

"...has been the contributing factor to the aggravation of his accepted psychological injury from 2010 on account of continued bullying and a hostile environment, which resulted in him being certified with no capacity for any employment on 19 July 2022."

1. There is nothing in the pleading to indicate that the events of 2014/2015 do not form part of the pleaded injury, and the injury which was forwarded to the Medical Assessor for assessment. There is also nothing in the pleading of the injury description to indicate that the injury causing events were limited to those events which occurred in 2022.
2. In the Panel's view the Medical Assessor has clearly included the events of 2014/2015 as part of the injury which he was instructed to assess for WPI The Medical Assessor has included the events of 2014/2015 as part of the history taken under the bullet point to point 4 of the MAC "Brief history of the incident/onset of symptoms and of subsequent related events, including treatment". The Medical Assessor did not record the events of 2014/2015 under the bullet point "Details of any previous or subsequent accidents, injuries or condition".
3. That the Medical Assessor considered the events in 2014/2015 to be part of the injury referred for assessment is confirmed at point 7 of the MAC when the Medical Assessor provides a summary of the injury and diagnosis in which he observes that the "initial event was when he was assaulted at work in 2015..."
4. The Medical Assessor was clearly aware of the deductions made by both Dr Assad Saboor and Dr Ashwinder Anand for pre-existing conditions referring to the doctor's assessments of impairment and the deductions made by them at point 10 of the MAC.
5. It is not a matter, as the appellant submits at [8] of its submissions, that the Medical Assessor "does not address why his opinion in relation to a deduction for a pre-existing condition is at odds with all available medical evidence..." Rather it is a matter that the event's in 2014/2015 and any psychological condition arising as a result were treated by the Medical Assessor as part of the injury causing event/condition which he was to assess and there is nothing in the pleading or the referral to the Medical Assessor to indicate that the events of 2014 were to be excluded or that they did not fall within the injury description as pleaded in the ARD.
6. If the Panel is wrong the Panel is of the view that the error does not affect the assessment in any event as the Panel accepts Mr French's submission that any psychological injury which was sustained in 2014/2015 during the course of his employment with the appellant is not a previous injury.
7. Section 323(1) of the 1998 Act states:

"In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality."

1. Beech-Jones J (as he then was) in Cullen accepted that the relevant time for determining whether previous injury, pre-existing condition or abnormality existed was prior to the commencement of the relevant employment.
2. There is no dispute that Mr French was employed by the appellant in 2014/2015. The events in 2014/2015 also fall within the period of employment, which is pleaded as being "from 2010", which is relied upon as the period during which the injury was sustained. Therefore, any injury in 2014/2015 is not a previous injury or pre-existing condition or abnormality.
3. For these reasons, the Appeal Panel has determined that the MAC issued on

[4] Respondent submissions at [10]-[11].

[6] AAMI Limited v Fitzpatrick (2015) NSWSC 1108.