1. On 7 May 2025 Mulga Hill Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Patrick Morris, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 9 April 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. Royce Nestor (Mr Nestor) suffered a psychological injury in the course of his employment as chef with the appellant deemed to have occurred on 13 August 2020.
2. The appellant commenced proceedings in the Personal Injury Commission (Commission) on 11 December 2024 claiming 19% whole person impairment (WPI) pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a psychiatric and psychological disorder deemed to have occurred on 13 August 2020.
3. In a Certificate of Determination - Consent Orders dated 7 February 2025 Member Michael Moore remitted the matter to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment as follows:

1. The Medical Assessor examined the appellant on 2 April 2025. The Medical Assessor assessed 17% WPI as a result of the injury deemed to have occurred on 13 August 2020.

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 there was sufficient information on which to make a decision.

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. The appellant's submissions include the following:

(a) Ground 1 - employability - the Medical Assessor has not provided detailed reasoning underpinning the classification of a Class 3 impairment. He stated that Mr Nestor was "not able to work as a chef either in a full-time or part time capacity because of his psychological symptoms" however acknowledged that

Mr Nestor performed 24 hours per week in a "much less stressful position as an NDIS support worker".

(b) Dr Peter Young, in his report dated 11 March 2024, opined that Mr Nestor had been "working comfortably, normal hours previously and including overtime on occasions with no problems." He further stated that Mr Nestor was "performing all of the duties associated with his current role with no difficulties and could work longer hours if these were available". These observations appear to be corroborated by Mr Nestor's bank records, which disclose income of up to $4,082.67 per fortnight during mid-2023. Although the bank records do not specify the precise number of hours worked per week, Mr Nestor consistently earned approximately $2,000 per fortnight. This level of earnings are likely to be consistent with Dr Young's assessment concerning Mr Nestor's functional capacity for work. The certificate of capacity dated January 2022 (reply p42) confirmed Mr Nestor's capacity at 32 hours per week.

(c) A review of Mr Nestor's bank records further demonstrated average earnings of $1,700 per fortnight between July 2024 and December 2024 from 'Westhaven Ltd Payroll'. Mr Nestor's solicitors confirmed that he had performed "respite care support to clients on an ad hoc basis" and under a separate ABN had earned $27,694 as gross figure since the previous financial year. Whilst it is unclear whether this figure was additional to payments from 'Westhaven Ltd Payroll', this is certainly demonstrative of Mr Nestor's ability to perform greater than 20 hours per week in employment.

(d) While there remains some doubt as to whether Mr Nestor is, in fact, working only 24 hours per week, as per his self-reports the available evidence supports a finding Mr Nestor possesses a greater capacity for employment. Mr Nestor is more appropriately considered Class 2 (as opposed to a Class 3) with respect to 'Employability'.

(e) A Medical Assessor is required in accordance with s 325(2) of the 1998 Act to set out his or her explanation for the assessment made and to set out the facts upon which the assessment is based. Such obligation necessitates a Medical Assessor to expose the reasons by which he or she arrived at the assessment in sufficient detail, such that it can be ascertained whether there is any error in their reasoning (Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43, 22 CLR 480 at [55]; applied by Campbell J in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 at [24]- [25], and by Harrison AsJ in Broadspectrum (Aust) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320).

(f) The reasons need not be exhaustive, yet as emphasised in Hanna v Delta Electrical and Security Pty Ltd [2019] NSWSC 1127 at 103 "the standard required of a written statement of reasons is that they reveal the actual path of reasoning by which the decision maker arrived at its opinion".

(g) The Medical Assessor did not provide adequate reasoning regarding, such that an objective reader could understand the actual path of reasoning by which he arrived at the ultimate conclusion that the classification of Mr Nestor's role as a NDIS support worker was a "much less stressful role" in comparison to his pre-injury employment as a Chef with the appellant. As outlined in Dr Young's report, Mr Nestor's alternate employment (with the NDIS) entailed significant responsibilities. In consideration of the duties and responsibilities inherent to the role of a NDIS support worker, the intellectual, skill-based, and responsibility-related demands of Mr Nestor's current position surpass those of his pre-injury employment as a Chef.

(h) Mr Nestor demonstrates a greater capacity under the psychiatric impairment rating scale (PIRS) and should not be classified as Class 3 for employability.

Mr Nestor is more appropriately classified as Class 2.

(i) Ground 2 - concentration, persistence and pace - when applying the PIRS scale, the Medial Assessor reported Mr Nestor's subjective complaints of "very poor concentration" and claims that he was unable to follow the storyline of movies. Mr Nestor claimed that he could only read "about a newspaper article length items" before losing concentration and that his concentration impairment affected his work performance, requiring him to read instructions frequently.

(j) Whilst the Medical Assessor considered Mr Nestor to have "moderate impairment" with respect to 'concentration', there was no real path of reasoning to support such a conclusion. For instance, no specific examples were cited to support impairment in concentration or memory, beyond Mr Nestor's own subjective reports.

(k) Mr Nestor provided a subjective account of his ability to concentrate, however the Medical Assessor ought to have given greater pre-eminence to the clinical observations and the evidence contained within the referral documents. For example, attention is drawn to the fact that there was no formal thought disorder on examination and, despite being "discursive" Mr Nestor actively participated in what could be described as an intensive examination lasting over 30 minutes. The assessment required Mr Nestor to recall histories, respond to several questions, focus and concentrate on the conversation. This could only be regarded as an intellectually demanding process.

(l) Dr Young, in his report of 11 March 2024, observed how Mr Nestor had no abnormality of thought form. Dr Young outlined Mr Nestor's reports of being able to "comfortably manage" all the demands of his new workplace including managing medication for clients, accompanying them to appointments along with other activities. At the time of assessment with Dr Young, Mr Nestor was initially unable to describe any specific deficits with respect to 'Concentration, Persistence and Pace', yet when subsequently asked, "referred to deficits, but again was unable to specify these in any detail". On this basis, Dr Young concluded that Mr Nestor satisfied Class 1 with respect to 'Concentration, Persistence and Pace'.

(m) The Medical Assessor erred in his evaluation by failing to reasonably consider or adequately weigh the evidence contained within the additional documents. A thorough review of this information establishes that Mr Nestor has consistently performed in an alternative role, arguably of greater intensity than his pre-injury employment, for a period of four years. Bank records confirm that he has been employed by three alternative employers since ceasing his duties with the appellant. On any reasonable basis, the process of applying for and attending interviews for new positions is, in itself, a cognitively demanding task which necessitates focus and an ability to articulate/demonstrate performance and transferrable skills. Furthermore, the additional documents revealed that

Mr Nestor successfully completed two first aid courses on 7 February 2025 with 'Robinson Community College' (contrary to his claim that he "was not able to complete a training course ... because of his poor concentration"). It is apparent from the MAC that the Medical Assessor either did not review this evidence or, alternatively, did not adequately consider it in relation to the PIRS category.

(n) When considered in the context of the totality of the evidence, the information contained within the additional documents does not accurately reflect an impairment rating of Class 3. Upon any objective analysis, the classification of Class 3 is not supported by the material evidence. Therefore, a Class 2 assessment would be more consistent with the reasoning set forth in the MAC, specifically that Mr Nestor is capable of undertaking a basic retraining course or a standard course (for example, a First Aid course) at a reduced pace, and could concentrate on intellectually demanding tasks for durations of up to 30 minutes.

(o) The Medical Assessment Certificate should be revoked and a MAC for 7% WPI should be substituted.

1. The respondent's submissions include the following:

(a) In line with Ferguson v State of New South Wales [2017] NSWSC 857 at [24], intervention by the Medical Appeal Panel is only justified if:

(i) the categorisation was glaringly improbable;

(ii) it could be demonstrated that the AMS was unaware of significant factual matters;

(iii) a clear misunderstanding could be demonstrated; or

(iv) an unsupportable reasoning process could be made out.

(b) As highlighted in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324 at [87], for an error to be demonstrable it needs to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.

(c) It is not uncommon for a worker to "fall between" PIRS ratings such that. The respondent notes the importance of the exercise of clinical judgement by the Medical Assessor in the process of assessment. As emphasised in NSW Police Force v Wark 2012] NSWWCCMA 36 at [33] "...the pre-eminence of the clinical observations cannot be understated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face...".

(d) In Parker v Select Civil Pty Ltd [2018] NSWSC 140 at [66] Harrison AsJ said: "In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense ...".

(e) Jenkins v Ambulance Service of New South Wales, [2015] NSWSC 633 at [64] which states "the examples given in the tables in the Guidelines were neither the sole, nor the minimum, basis for assessment of a person's impairment as falling within a particular class 5". This is consistent with Paragraph 11.12 of the Guidelines which states that the examples of activities are examples only.

(f) Ground one- employability - the Medical Assessor's classification under Class 3 is entirely consistent with Table 11.6 of the Guidelines, which states Class 3 applies where a person "cannot work at all in same position" and "can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (e.g. less stressful)".

(g) The Medical Assessor found that Mr Nestor "is not able to work as a chef either in a fulltime or part-time capacity because of his psychological symptoms" (MAC, p.9). Although Mr Nestor is performing up to 24 hours per week as a NDIS support worker, the Medical Assessor noted this was a "much less stressful position". This statement alone shows acknowledgment that the Medical Assessor was aware of Mr Nestor's employment status and compared it to his pre-injury employment.

(h) The Medical Assessor has adequately used his clinical judgment and made a conclusion that was entirely open and available to him on the evidence, whilst acknowledging the examples provided by the PIRS.

(i) The appellant also seeks to rely on bank statements and ad hoc ABN income to imply higher capacity for employment. Intermittent income and variable hours do not necessarily indicate greater functional capacity. The Medical Assessor was aware of Mr Nestor's NDIS support work and expressly considered this in context. This submission by the appellant should be rejected in its entirety as it is based on inference.

(j) Mr Nestor's statement (ARD p. 14) and the medico-legal report of Dr Mukesh Kumar (ARD p. 30, 32) confirms that he was working twenty hours per week as a Support Worker. Dr Kumar confirms that Mr Nestor's current work is in a "substantially different role and his working hours have also significantly reduced" (ARD p. 39) - which in Dr Kumar's position supports a Class 3 assessment. The Medical Assessor has made the same observation and assessment upon considering the available evidence and his examination with Mr Nestor.

(k) The Class 3 assessment made by the Medical Assessor is correct and should be confirmed.

(l) Ground two - concentration, persistence and pace - the appellant argues that the Medical Assessor relied excessively on Mr Nestor's subjective complaints and ignored "objective evidence". This is incorrect.

(m) In Nikolovski v McDonalds Australia Limited [2021] NSWPICMP 192 at [50], the Appeal Panel noted: "A Medical Assessor takes various sources of information into account when rating concentration, persistence and pace. One important source is the interview itself, when the Medical Assessor can directly observe the worker's capacity during the lengthy examination".

(n) The Medical Assessor carefully documented the basis for his conclusion (MAC, p.8-9), including: a. Mr Nestor's report that he "cannot follow the storylines of movies"; b. He can only read "newspaper article length" material before losing concentration; c. He was "not able to complete a training course at work because of poor concentration"; d. He needs to reread instructions frequently at work.

(o) Importantly, the Medical Assessor conducted a detailed 30-minute examination and observed Mr Nestor was "discursive" and needed redirection during the interview - an objective clinical finding supporting impaired focus (MAC, p.4). This aligns with Table 11.5 (Class 3), which includes difficulty following complex instructions or performing cognitively demanding tasks.

(p) The Medical Assessor's findings are consistent with Mr Nestor's evidence, namely he:

(i) struggles to maintain focus and interest in doing any household activities, instead relying on his wife and kids to do these activities (ARD p. 15);

(ii) had to cease his enrolment in a Certificate III in Disability Work as he struggled to concentrate (ARD p. 15);

(iii) finds that his concentration is very short, and that if he has to read something, he finds it difficult to follow (ARD p. 33);

(iv) takes much longer to complete his paperwork at work (ARD p. 33), and

(v) was extremely circumstantial in his responses and at times difficult to redirect (ARD p. 33).

(q) The appellant's attempt to downplay these observations or substitute them with

Dr Young's contradictory opinion should be rejected. By Dr Young's own admission, Mr Nestor was "unable to give a clear or succinct description of specific issues that affected his mental state and when asked clarifying questions his responses repeatedly derailed into excessive and irrelevant detail (emphasis added)" (Reply p. 26).

(r) The appellant's reliance on Dr Young's report does not displace the Medical Assessor's findings, particularly given that Dr Young found no diagnosable condition, a conclusion the Medical Assessor explicitly and reasonably rejected (MAC p. 6).

(s) The Medical Assessor has adequately used his clinical judgment and made a conclusion that was entirely open and available to him following his examination and consideration of the available evidence. The Class 3 assessment made by the Medical Assessor is correct and should be confirmed.

(t) The Medical Assessor has recorded an accurate and detailed history from

Mr Nestor at the time of his assessment. This was done through appropriate enquiry and careful consideration of the material before him, as well as the comments made by Mr Nestor during the examination. The Medical Assessor has applied the appropriate Guidelines and importantly has used them as a guide only when forming his opinion.

(u) The Medical Assessor made the correct assessment of a Class 3 for both Concentration, Persistence, and Pace and Employability.

(v) On the totality of the evidence, the Medical Assessor has reached a conclusion that was open to him, namely that Mr Nestor has a 17% WPI as a result of the work injury deemed to occur on 13 August 2020. The MAC should be confirmed.

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 Appeal Panel has reviewed the MAC and evidence in this matter.

1. The appellant submits that the Medical Assessor has not provided detailed reasoning underpinning the classification of a Class 3 impairment. Further, the appellant argues that

Mr Nestor is more appropriately considered Class 2 (as opposed to a Class 3) with respect to employability. 2. The examples under Table 11.6 for "Employability" in the Guidelines are:

"Class 2: Mild impairment. Able to work full time but in a different environment from that of the pre-injury job. The duties require comparable skill and intellect as those of the pre-injury job. Can work in the same position, but no more than 20 hours per week (eg no longer happy to work with specific persons, or work in a specific location due to travel required).

Class 3: 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)."

1. The Medical Assessor assessed the appellant as Class 3 for employability. In the PIRS rating form, the Medical Assessor wrote:

Moderate impairment. In my opinion, Mr Nestor is not able to work as a chef either in a full-time or part-time capacity because of his psychological symptoms. He is working up to 24 hours per week in a much less stressful position as

1. Under Findings on Physical Examination, the Medical Assessor wrote:

"Mr Nestor was a middle-aged, bald man wearing a black T-shirt visible on the video screen. He was cooperative but somewhat agitated in his manner. His thought form was quite discursive and he often needed to be brought back on topic during the interview. His speech was of normal rate and flow. His mood was depressed and anxious. His affect was appropriate to his mood.

There was no formal thought disorder and no psychotic symptoms.

Mr Nestor was alert and oriented and able to answer questions appropriately during the assessment."

1. At part 4 of the MAC, the Medical Assessor wrote:

"After leaving work at Mulga Hill, Mr Nestor soon found casual work for more than 15 hours per week as a chef at a nursing home where he worked for 18 month to two years. He then moved to become an NDIS support worker for a provider, Westhaven. He works 22 to 24 hours per week as a contractor for them. He said that he enjoys his work helping people with disabilities."

1. Under "Work history including previous work history if relevant" the Medical Assessor wrote: "He said that he had a good reputation and enjoyed his work as a chef until he started working as head chef at Mulga Hill in 2008".
2. Under "Summary" the Medical Assessor wrote:

In my opinion, Mr Nestor has the psychiatric condition of Persistent Depressive Disorder with anxious distress, according to DSM-5 diagnostic criteria.

This condition emerged as a result of work stressors which Mr Nestor experienced whilst working as head chef at Mulga Hill up until he stopped working in August 2020.

Mr Nestor was consistent in the presentation of his symptoms or history. He did not appear to be exaggerating or minimising his clinical condition."

1. In his comments on Dr Potter's report dated 11 March 2024, the Medical Assessor wrote:

"I note a report on Mr Nestor by Dr Peter Young dated 11 March 2024. Dr Young wrote, '...In my opinion there is no diagnosable condition present'. I have a different opinion to Dr Young and believe that Mr Nestor has enough clinically significant symptoms of depression and anxiety to fulfil diagnostic criteria for the diagnosis of Persistent Depressive Disorder with anxious distress, according to DSM-5 diagnostic criteria."

1. In his statement dated 10 December 2024 at paragraph 24 the appellant wrote:

"8. Since my workplace injury, I have returned to employment in a different field. I am currently working with Westhaven NDIS as a Support Worker doing twenty (20) hour weeks.

9. During my initial employment and training, I worked approximately 38 hours a week however I have had to reduce this burn myself out."

1. Dr Mukesh Kumar, consultant psychiatrist, in his report dated 12 September 2023, noted:

"He now works for a NDIS provider in Broken Hill "West Haven" as a support

worker. Mr Nestor works part-time, approximately 20 hours a week since February 2023. His substantive position was as a chef at Mulga Hill Tavern, where he worked for approximately 11 years and stopped work on 13 August 2020."

"Mr Nestor said that once he stopped working with Mulga Hill Tavern, he started working at Southern Cross Retirement Village however he had some difficulties there as well. He stated that he now works part time as a support worker."

1. Dr Kumar assessed a Class 3 for employability providing the following reasons:

Mr Nestor's currently working 16 hours a day in a different, less stressful environment. Impairment in this domain is class 3."

1. Dr Peter Young, consultant psychiatrist, in a report dated 11 March 2024 under "Adaption" wrote:

"Mr Nestor reports that he has been working comfortably, normal hours previously

and including overtime on occasions with no problems. He reports he is currently

performing all of the duties associated with his current role with no difficulties and could work longer hours if these were available"

"Dr Kumar's PIRS ratings on the scale of moderate impairment for self-care

and personal hygiene, concentration persistence and pace, and employability

are not consistent with Mr Nestor's employment at the time of assessment.

For example it is not credible that Mr Nestor is so impaired in maintaining his

own basic self-care and personal hygiene that he requires prompting from his

family when he is employed in a role supervising and supporting disabled

clients who themselves require such prompting. Similarly, if suffering

moderate impairment in concentration he would not be able carry out the

Mr Nestor initially reported that he is able to comfortably manage all the demands of

his current workplace including managing medication for clients, accompanying them to appointments and other activities and the reported requirements of the role. When asked initially about difficulties with his concentration and persistence of pace, he was not able to describe any specific deficits. Later in the interview, he referred to deficits, but again was unable to specify these in any detail. (PIRS Class 1)".

1. Dr Young expressed the opinion that there was no condition present assessable by the Guidelines. He wrote: "He probably had symptoms previously meeting criteria for Adjustment Disorder but these have substantially resolved". Dr Young wrote: "He is not significantly incapacitated from work from a psychological perspective".
2. Dr Young under "History of presenting complaint" wrote:

"He reported that shortly after ceasing work with his former employer at Mulga Hill

Tavern, he recommenced work as a chef at a local nursing home where he worked

until around 12 months ago. He said he initially returned to work with restricted

duties and part-time hours, 24 hours a week, and this had progressively upgraded to full-time by the time he ceased employment. He said that he changed careers

because he no longer enjoyed working in the hospitality industry and that since

commencing work in the NDIS disability support sector, he has felt an improvement

in his symptoms and functioning. He said that he enjoys his current work and finds it

meaningful. He said that he feels supported by his employer. He is currently

working 20 hours a week but has previously worked over 40 hours a week when the

time has been available. He reports that he is able to carry out all the functions of his current employment with no difficulties. This includes supervision of NDIS clients

with a variety of impairments and disabilities. He said that his duties include

supervising medication, driving and supervising clients while attending medical

appointments. Taking clients on social engagements and outings. The position also,

he said, requires extensive reporting requirements and use of technology and software."

1. The Appeal Panel noted above that the reasons for the Medical Assessor's rating of Class 3 for employability were: "Mr Nestor is not able to work as a chef either in a full-time or part-time capacity because of his psychological symptoms. He is working up to 24 hours per week in a much less stressful position as an NDIS support worker." On page two of the MAC, the Medical Assessor also noted that Mr Nestor works 22 to 24 hours per week as a NDIS support contractor for a provider, Westhaven.
2. The Appeal Panel noted in the clinical notes and records of Nachiappan Surgery, that the nurse practitioner, Kathy Mitchell, referred to Mr Nestor's pre-injury employment hours noting on 7 August 2018 that he had been working 54 hours a week. On 25 October 2019, Dr Cho Yee Win noted that Mr Nestor had working at least 58 hours a week with only three of the six staff left. On 28 February 2020, Dr K M Ishtiak Alam noted that Mr Nestor had done a double shift the day before after the doctor had advised him to take a break from work. On

14 August 2020, Dr Alam noted that "too much work excessive, it is becoming lot of pressure on him as a senior chef". 3. The Appeal Panel accepts that Mr Nestor is working 22-24 hours a week which appears to be less than his half of pre-injury hours. Mr Nestor acknowledges in his statement that when he first started his disability support role he was working full time "approximately 38 hours a week" but was unable to maintain this. 4. The Appeal Panel accepts that Mr Nestor is not working full time and not able to work in pre-injury job. The Appeal Panel considers that his current position as a NDIS support worker is less stressful and does not require the comparable skill and intellect as his pre-injury job of senior chef. The Appeal Panel does not accept the appellant's submission that the duties and responsibilities in his role of a NDIS support worker, including the intellectual, skill based, and responsibility-related demands of his current position surpass those of his pre-injury employment as a Chef. Mr Nestor was employed as a senior chef or head chef and the demands of that role in a busy kitchen providing meals for a hotel, restaurant, function centre and take away meals, including working double shifts, supervising staff and training new staff, ordering supplies were, in the view of the Appeal Panel, far more stressful than his current role. 5. The Appeal Panel notes that the descriptors in the PIRS for employability fail to make provision for a worker who cannot work in his pre-injury employment, cannot work full time but can work more than 20 hours a week is a different position which require less skill and is qualitatively different (eg less stressful). Workers, such as Mr Nestor, fall between Class 2 and Class 3. Mr Nestor cannot work full time in a different environment from that of the pre-injury job performing duties of a similar skill and intellect, so he does not match this descriptor for Class 2. However, Mr Nestor is working in a different position which requires less skill or is qualitatively different (eg less stressful) but works slightly more than 20 hours a week, so he does not definitively match this Class 3 descriptor. The Appeal Panel notes the descriptors do not encompass all impairment situations and the Medical Assessor must use their clinical judgement to rate impairment using the descriptors as examples. The Medical Assessor used his clinical judgment to assess Mr Nestor as Class 3 for employment, based on the evidence including other medical opinions and clinical notes as well as his findings on examination. The history obtained by the Medical Assessor and evidence of his pre-injury working hours show that Mr Nestor has a work capacity that is less than half of his pre-injury hours. The Appeal Panel is not persuaded that in this situation the Medical Assessor applied incorrect criteria or made a demonstrable error because the Table 11.6 does not include descriptors that apply to Mr Nestor's situation. 6. The appellant submits that although the bank records do not specify the precise number of hours worked per week, Mr Nestor consistently earned approximately $2,000 per fortnight and this level of earnings are likely to be consistent with Dr Young's assessment concerning Mr Nestor's functional capacity for work, which the Appeal Panel takes to be full time. The Appeal Panel does not consider that those banking records show that Mr Nestor consistently earned approximately $2,000 per fortnight. The actual hours that Mr Nestor worked each fortnight cannot be calculated on the basis of his earnings as some of his work shifts could have been paid at standard rates while other shifts could have been paid at higher rates if he worked evenings, weekends or public holidays. The history obtained by Dr Young was incomplete as Dr Young noted that Mr Nestor previously worked over 40 hours a week but did not refer to the Mr Nestor's evidence that when he had his initial employment and training, he worked approximately 38 hours a week but had had to reduce this to avoid "burn out". Further, Dr Young's report examination took place on 7 March 2024, more than a year before the examination by the Medical Assessor. The Appeal Panel has placed more weight on the history obtained by the Medical Assessor as this is more recent. 7. The appellant submits that the certificate of capacity dated January 2022 (Reply p 42) confirmed Mr Nestor's capacity at 32 hours per week. The Appeal Panel noted that page 42 of the Reply was page 8 of the report of Dr Potter dated 14 March 2021. The only certificates of capacity were on page 46 of the Reply (Certificate dated 2 September 2020 certifying no capacity for work) and on page 49 of the Reply (Certificate dated 8 December 2021 certifying capacity for work for 32 hours a week). This is not inconsistent with Mr Nestor's evidence that he worked approximately 38 hours a week at one stage but had to reduce those hours. These certificates of capacity, given they are several years old, do not, in the view of the Appeal Panel, reflect his current capacity for work. 8. As noted above, the appellant referred to the bank records of Mr Nestor and identified certain payments made which the appellant submits were demonstrative of Mr Nestor's ability to perform greater than 20 hours per week in employment. The Appeal Panel considered those records. The Medical Assessor found that Mr Nestor worked 22-24 hours a week. The Appeal Panel agrees with that assessment. The Appeal Panel does not consider that any particular inference can be drawn from those bank records. The Appeal Panel notes, however, that the appellant's submissions which referred to income of up to $4,082.67 per fortnight during mid-2023, and Mr Nestor consistently earned approximately $2,000 per fortnight, are not totally accurate. The bank records show that Mr Nestor was paid $2,318.35 on 28 June 2023, $4,082.67 on 12 July 2023 and then $2,284.01 on 28 August 2023, that is, $8,685.03 in a period of about nine weeks, which is less that $2,000 per fortnight in that period. In respect of his more recent employment with Westhaven Limited, Mr Nestor earned about $870 per week in the period 26 June 2024 to 8 January 2025. This is less that the appellant's estimate of earnings of $2,000 per fortnight. 9. The appellant submits that Mr Nestor's solicitors confirmed that he had performed "respite care support to clients on an ad hoc basis" and under a separate ABN had earned $27,694 as gross figure since the previous financial year. The appellant noted that whilst it is unclear whether this figure was additional to payments from 'Westhaven Ltd Payroll', it was certainly demonstrative of Mr Nestor's ability to perform greater than 20 hours per week in employment. 10. The Appeal Panel, having looked at Mr Nestor's bank records, consider that the figure of $27,694 comprised payments from Westhaven Ltd. In an email dated 4 February 2025,

Mr Nestor's solicitors, Slater & Gordon, noted that Mr Nestor instructed them that he had an ABN so he may provide respite care support to clients on an ad-hoc basis. Ms Parkes noted on 4 February 2025 that Mr Nestor had not yet completed this work for a full financial year his gross earnings to date for this ABN were $27,694. Mr Nestor stared with Westhaven in June 2024. His earnings from Westhaven in the 2024 - 2025 financial year as at 6 January 2025 are set out in the summary of banks statements provided by his solicitors and total

$22, 669.05. If additional payments were added for the period for additional earnings in January 2025 and the beginning of February 2025, it is likely, based on his past earnings, that he would have earned $27,694 from Westhaven as noted by his solicitors. 11. The appellant submits that 'average earnings of $1,700 per fortnight between July 2024 and December 2024 from 'Westhaven Ltd Payroll'.... 'is certainly demonstrative of the Respondent's ability to perform greater than 20 hours per week in employment'. The Appeal Panel do not accept this argument. The national minimum wage for an adult is $1,896/fortnight for a 38 week. This "certainly demonstrates" Mr Nestor is not working full time, and the rates of pay for NDIS workers are above minimum wage. Mr Nestor was not determined to be working 20 hours per week by the Medical Assessor but slightly more, and this fortnightly income is consistent with that ascertainment. 12. This ground of appeal is not made out.

1. The appellant submits that whilst the Medical Assessor considered Mr Nestor to have moderate impairment with respect to 'concentration', there was no real path of reasoning to support such a conclusion.
2. The examples under Table 11.5 for "Concentration, persistence and pace" in the Guidelines are:

"Class 2: Mild impairment: can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.

Class 3: Moderate impairment: unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting."

1. The Medical Assessor assessed the appellant as Class 3 for concentration, persistence and pace. In the PIRS rating form, the Medical Assessor wrote:

Moderate impairment. Mr Nestor complains of very poor concentration. He said that he can only read about newspaper article length items before losing concentration

and needing to re-read them. His concentration impairment affects his work performance and he needs to read instructions frequently. He said that he was not able

to complete a training course at work because of his poor concentration. He said that he cannot follow the storylines of movies he tries to watch now."

1. Under "Present symptoms" the Medical Assessor noted:

"He reports having very low energy levels and feeling tired frequently.

He reports very low self-esteem. He describes believing that he has failed as a chef,

husband and parent. He complains of very poor concentration and was not able to do a course at work because of poor concentration. He cannot follow movies he tries to watch because of his poor concentration. He finds it very difficult to make decisions now. He feels hopeless at times. His sleep is poor."

1. In his statement dated 10 December 2024, the appellant stated:

"I enrolled in a TAFE course to complete a Certificate III in Disability Work. I had to

cancel this, because I struggled to concrete. I experienced anxiety from doing this course in person with the small town that Broken Hills is."

1. Dr Kumar, in a report dated 12 September 2023, assessed Class 3 for concentration, persistence and pace providing the following reasons:

Mr Nestor reported that his concentration is very short.

He added that if he has to read something, he finds it difficult to follow and he may have to watch a video or television.

At work, he added that he takes much longer to complete his paperwork.

"Mr Nestor reported that his concentration is very short. He added that if he has to read something, he finds it difficult to follow and he may have to watch a video or television. At work, he added that he takes much longer to complete his paperwork."

1. Dr Kumar under "Mental State Examination" noted:

"Though Mr Nestor was easy to engage in a conversation, he was extremely circumstantial in his responses and at times was difficult to redirect. He reported his mood low. His affect was depressed, anxious and teary at times. He denied any thoughts, plans or intentions of self harm or suicide. There were no psychotic symptoms."

1. Under "Current functioning", in his report dated 11 March 2024, Dr Young wrote:

Mr Nestor initially reported that he is able to comfortably manage all the demands of

his current workplace including managing medication for clients, accompanying them to appointments and other activities and the reported requirements of the role. When asked initially about difficulties with his concentration and persistence of pace, he was not able to describe any specific deficits. Later in the interview, he referred to deficits, but again was unable to specify these in any detail. (PIRS Class 1)."

1. Dr Young did note under "History of Presenting complaint":

"Mr Nestor was unable to give a clear or succinct description of specific issues that affected his mental state and when asked clarifying questions his responses repeatedly derailed into "excessive and irrelevant detail."

1. Dr Young, under "Mental State Examination", wrote:

"He was alert and cooperative and pleasant throughout the interview.

His mood was somewhat irritable. His affect was reactive and appropriate.

His speech was normal in rate, well-modulated and spontaneous. He gave lengthy

and very tangential answers to questions. He required frequent redirection.

There was no abnormality of thought form although his thought content was

preoccupied by ongoing aggrievement and resentment towards his previous

employer. When asked to clarify symptoms, he gave, at times, vague and evasive responses to specific questions. He referred to himself at times in boastful terms.

There were no delusions or hallucinations. Cognition was not formally tested but did

"Dr Kumar's PIRS ratings on the scale of moderate impairment for self-care

and personal hygiene, concentration persistence and pace, and employability

are not consistent with Mr Nestor's employment at the time of assessment.

For example it is not credible that Mr Nestor is so impaired in maintaining his

own basic self-care and personal hygiene that he requires prompting from his

family when he is employed in a role supervising and supporting disabled

clients who themselves require such prompting. Similarly, if suffering

moderate impairment in concentration he would not be able carry out the

1. The Appeal Panel does not accept the submission that the Medical Assessor considered

Mr Nestor to have moderate impairment with respect to 'concentration', but there was no real path of reasoning to support such a conclusion. The Appeal Panel consider that the Medical Assessor provided adequate reasons for his assessment of a moderate impairment. The Medical Assessor referred to Mr Nestor's complaints of very poor concentration, being only able read about newspaper article length items before losing concentration and needing to re-read them and his need to read instructions frequently. The Medical Assessor referred to Mr Nestor that being unable to complete a training course at work because of his poor concentration. Finally, the Medical Assessor referred to Mr Nestor stating that he could not follow the storylines of movies he tries to watch. 2. The appellant argues that the Medical Assessor erred in his evaluation by failing to reasonably consider or adequately weigh the evidence contained within the ALAD. In particular, the appellant referred to Mr Nestor being capable of undertaking a basic retraining course or a standard course (for example, a First Aid course) at a reduced pace. 3. The Appeal Panel accept that the Medical Assessor did not refer to the Statement of Attainment issued by Robinson Community College in the ALAD which indicate that

Mr Nestor completed two units of competency in "Provide Cardiopulmonary Resuscitation" and "Provide First Aid in an education and care setting" on 7 February 2025. The Appeal Panel considers that it should have been taken into account in the assessment of this class. Further, more weight should be placed on such recent objective evidence. The Appeal Panel is satisfied that the Medical Assessor was unaware of a significant factual matter. 4. The Appeal Panel accepts that Mr Nestor could not complete the Certificate III in Disability Work. However, the units that he completed on 7 February 2025 would have required him to attend the College for several hours and to focus for more than 30 minutes. 5. The appellant submits that when considered in the context of the totality of the evidence, the information contained within the ALAD does not accurately reflect an impairment rating of Class 3. The appellant argues that a Class 2 assessment would be more consistent with the reasoning set forth in the MAC, specifically, that Mr Nestor is capable of undertaking a basic retraining course or a standard course (for example, a First Aid course) at a reduced pace, and could concentrate on intellectually demanding tasks for durations of up to 30 minutes. 6. The Appeal Panel finds that the failure by the Medical Assessor to take into account the training the units that he completed on 7 February 2025 was a demonstrable error. 7. This ground of appeal is made out. 8. The Appeal Panel accepts that Class 2 is appropriate where there is evidence that the injured worker is able to undertake a basic training course, or a standard course at a slower pace and evidence that the injured worker can focus on intellectually demanding tasks for periods up to 30 minutes, then feels fatigued or develops a headache. 9. The Appeal Panel accepts that the appellant has some problems with memory and concentration, however, he is able to complete the two units of competency in "Provide Cardiopulmonary Resuscitation" and "Provide First Aid in an education and care setting" on

7 February 2025. The Appeal Panel accept this report as clear evidence of the appellant's ability to focus on an intellectually demanding task for more than 30 minutes. 10. Taking into account Mr Nestor is capable of undertaking a basic retraining course or a standard course and could concentrate on intellectually demanding tasks for durations of up to 30 minutes, the Appeal Panel rates Mr Nestor as Class 2 for concentration, persistence and pace. 11. Therefore, the Appeal Panel finds that the PIRS scales score 2 3 2 3 2 3, ascending order 2 2 2 2 3 3 3, median class 3, aggregate 15 so that the WPI = 15%. 12. For these reasons, the Appeal Panel has determined that the MAC issued on 9 April 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 Patrick Morris 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)