1. The insurer is then entitled to "request clarification or amendment from the assessor" (standard of practice S20.2).
2. I would also reference the NSW Model Litigant Policy for Civil Litigation. This includes a specific obligation for the State and its agencies to act honestly and fairly by:

"...paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid".

3. It would appear that a claim involving two independent medical experts with an undisputed assessment of impairment would be a "legitimate claim" that should have been paid without litigation.
4. A supplementary report was requested (presumably consistent with SIRA's standards of practice) and provided by Dr Kumar on 28 May 2025. Dr Kumar was asked a series of questions above "the claimant's service in the military and/or navy". In his supplementary report, Dr Kumar refers to the history he took and recorded in his initial report of Mr Muscat's service. He refers to the records and states "this is consistent with how Mr Muscat presented in my assessment, though he did not mention the fitness to serve assessment". He opines on injury:

"There is a clear history of a pre-existing depressive disorder secondary to a physical injury and the current symptoms are part of a posttraumatic stress disorder due to multiple traumatic events on a background of a pre-existing depressive disorder. Since these traumatic events occurred during his employment with the insured, his employment remains the main contributing factor to his condition."

5. The insurer then asked a lengthy question regarding s 323 with an explanation of the legal principles that apply. Dr Kumar answered as follows:

"Regarding his military service, there is no clear evidence (from the clinical assessment or even from the document provided) of any psychiatric condition caused by his service. There are vague allusions to depression and 'adjustment disorder', however the documents do not provide any more details. There is no evidence of any functional impairment, as Mr Muscat continued work and was able to manage a reasonable lifestyle. Dr Choi mentions a 'fitness to serve assessment'. Perhaps if this was available, this may shed more light on his mental state at the time. > > Regarding a 1/10th deduction, this is appropriate as there is evidence of a pre-existing secondary psychiatric condition before the onset of posttraumatic stress disorder. It is not possible to evaluate the whole person impairment for a pre-existing condition in this case and the deduction of 1/10th does not appear to be at odds with evidence. He sustained the physical injury in 2018; however, he eventually stopped work due to symptoms of PTSD in November 2023."

6. Dr Kumar has clearly and explicitly answered the question asked about Mr Muscat's military service and maintained his position on the extent of the deduction to be made.
7. It is appropriate to compare the assessments of impairment, based on the Psychiatric Impairment Rating Scales (PIRS), in this case:

1. Apparent from the table is above is the complete consistency between assessors. In accordance with the Guidelines, this results in 19% impairment.
2. Further, both doctors made a deduction of 1/10th from their assessment of impairment, resulting in a final assessment of 17% whole person impairment. What results are, for all intents and purposes, identical assessments.
3. At the preliminary conference in this matter, which took place on 11 November 2025, the respondent indicated that they were seeking a further supplementary report from Dr Kumar considering the entirety of the clinical material. I directed the respondent to make an offer to resolve the dispute should Dr Kumar not amend his opinion. No offer has been forthcoming, at least not communicated to the Commission. Given the respondent's previous conduct in prosecuting this matter, that is unsurprising.

1. The respondent was granted leave to lodge the clinical material obtained from the Royal Australian Navy. This was in the interests of procedural fairness. The respondent made reference to the existence of the records in the submissions in the following way:

"These respective histories are inconsistent with the Applicant's medical file which, among other things, denote that in 2002 he submitted a claim for compensation for major depression/adjustment disorder, chronic seasickness condition. He attributed his condition at that time to 'being at sea and my boss continually giving me a hard time'. The Respondent notes in this regard that the medical file has been lodged with the Commission by way of an Application to Lodge Additional Documents."

2. Nowhere in the submissions does the respondent refer to any particular document.
3. I would first note that the documents contained extend to 1,372 pages. They are not indexed or categorised. That of itself makes the appropriate consideration of the material difficult.
4. Secondly, there are a huge number of documents irrelevant to the issue presently before the Commission, involving Mr Muscat's psychological condition and potential issues in prior employment. There are records relating to teeth, hearing, knee injuries, orthotics, and eyes. It is apparent that Mr Muscat was regularly assessed as part of his military service. No attempt was made by the respondent to assist the Commission in identifying any relevant documents, through an index, chronology or the like.
5. On the above background, I refer to r 67D of the Personal Injury Commission Rules 2021, which provides the following:

"(2) The appropriate decision-maker for proceedings is not required to have regard to a document not specifically referred to in submissions made by a party to the proceedings."

6. No documents were "specifically referred to in submissions". In circumstances where submissions were provided in writing, and given the issue raised by the respondent in large part turns on these records, this lack of clarity is unexplained and unhelpful.
7. In spite of this, I have reviewed the records obtained from the Royal Australian Navy to the best of my ability consistent with the Commission's obligation to deliver justice quickly, efficiently and cost effectively. The discussion below may be out of date order as there is no consistency to how the records are presented. There are references to knee issues and treatment and investigations for same. Mr Muscat was diagnosed with chronic sea-sickness at one point, dating back to 1993, which was well controlled on large stable ships.
8. A report from a "medical board of survey" dated 15 July 2001 notes a disability of "major depression" and "chronic seasickness". The symptoms are connected to the chronic seasickness that appears in the medical history of Mr Muscat.
9. There is a report from a "psych", Dr Didio, on 2 April 2002 that references past depressive symptoms due to severe chronic sea-sickness that had resolved by time of review. An earlier report dated 21 August 2021 notes "no recurrence of depressive symptoms". There is correspondence regarding a claim for compensation from a major depression/adjustment disorder, chronic seasickness condition, dated 18 January 2002, and a series of questions which were answered. Further correspondence from 29 January 2003 shows a claim for depression/adjustment disorder/ chronic seasickness, for "loss of sea-going allowance" (but no concrete evidence of an inability to work).
10. A medical report recommending Mr Muscat be discharged due to knee problems is dated 13 May 2007. Reference is made to seasickness but no psychiatric issues. A medical employment classification review record dated 26 April 2021 notes that Mr Muscat "feels that he has recovered from his depression" which was connected to chronic seasickness. This appears to be related to an "admission" to Balmoral Naval Hospital, which resulted in convalescent leave and a report of 11 May 2021 of "significant improvement of symptoms".

1. The applicant presses for determination of the lump sum claim. Consistent with my direction on the issue, this is on two bases: that there is no medical dispute that exists between the parties, and/or that the Commission should exercise the discretion to make the award.
2. In support of the former point, the applicant refers to the discretionary referral power contained in s 321A(3) of the 1998 Act, along with the definition of medical dispute in s 319. The applicant refers to Skates v Hills Industries Ltd [2021] NSWCA 142, submitting that there is no different claim about the degree of impairment suffered by the applicant. The applicant says that Sharman v Chemtools Pty Ltd [2020] NSWWCC 237 (Sharman) ought to be distinguished on the basis that the records the respondent asserts should be considered are not inconsistent with the expert evidence before the Commission.
3. In respect of this point, the respondent submits that it has clearly raised a dispute as to the proportion of the applicant's impairment due to a previous injury in two dispute notices, and accordingly a dispute exists.
4. I do not think that this is entirely explicit in the dispute notices issued. No reference is made to s 323 of the 1998 Act, only s 66. The s 78 notice refers to previous employment in the military that appeared in the records of Warnervale GP Super Clinic. No reference is made to that employment contributing to the current degree of permanent impairment, only that the respondent is "presently clarifying Dr Kumar's opinion". It should be noted that in Dr Kumar's initial report, which the respondent needed to "clarify", he referred to Mr Muscat's history in the navy.
5. The s 287A notice issued on 18 September 2025 again doesn't mention s 323 or reference any proportion of the impairment that may be due to a previous condition or abnormality. The closest is a reference to "longstanding psychological symptoms, well-documented prior to your employment with the insured, are relevant to the assessment of your current claim". Although the respondent has referred to Austin v State of New South Wales (Sydney Children's Hospital [2020] NSWWCC 421, each case must be determined on its own facts.
6. The respondent goes as far as to submit the following:

"In this respect, the Respondent submits that the Applicant did not disclose his previous psychiatric history arising out of his time in the Royal Australian Navy to either of the independent experts briefed in this matter. The Respondent submits this lack to disclosure is material given the content of the clinical records and the Applicant's medical file (regarding his employment and prior workers compensation for psychological injury whilst he was employed by the Navy). Further, the Respondent submits the Applicant should not be able to benefit from his failure to disclose his previous psychiatric history arising out of his time in the Royal Australian Navy."

7. I do not accept this submission or the submissions that follow. Mr Muscat clearly gave a history of his time in the Navy. The extent to which that history was recorded by the independent medical experts, and converted into any deduction, is a matter for their clinical expertise. The respondent goes further to suggest that the respondent "should not be able to benefit from his failure to disclose". This goes perilously close to an accusation of deliberate deception on behalf of the applicant.
8. The respondent relies on Sharman, as applicable to the present matter, submitting that the records are "markedly inconsistent with the histories provided the respective experts and are relevant to the medical dispute between the parties". I do not agree that is on all fours with the present case. It involved a decision to claim legal professional privilege over a report. In that sense there was no competing medical assessment, not an identical medical assessment. I would further note that I do not accept that the clinical records (which I have discussed above) are inconsistent with the findings of the Medical Assessor. This is not a circumstance where evidence shows an applicant working, or having greater capacity to that assessed in the PIRS of employability.
9. I agree with the general construction articulated by Senior Arbitrator Bamber in Boga v Carpet Call (Vic) Pty Ltd t/as Carpet Call [2019] NSWWCC 127; it is not my role to assess impairment or determine the assessment of impairment under the Guidelines. The assessments speak for themselves and as I have highlighted, are identical.

1. I accept the applicant's submissions. In the circumstances of the case it is appropriate that I make an order that the respondent pay the applicant's lump sum compensation.