1. On 8 May 2025 Robyn Passmore (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John Lam-Po-Tang, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on

10 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. The appellant suffered a psychological injury in the course of his employment with the Secretary, Department of Communities and Justice (the respondent) deemed to have occurred on 2 January 2020.
2. The appellant commenced proceedings in the Personal Injury Commission (Commission) claiming 17% 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 injury deemed to have occurred on 2 January 2020.
3. The Medical Assessor examined the appellant on 31 March 2025. The Medical Assessor assessed 7% WPI and added 1% WPI for effects of treatment. The total WPI assessed was 8% as a result of the injury deemed to have occurred on 2 January 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 appellant 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 - social and recreational activities - the Medical Assessor assessed the appellant as falling within Class 2 (i.e. mild impairment) in this category, whereas the circumstances indicate that she falls within Class 3 (i.e. moderate impairment).

(b) The baseline in the psychiatric impairment rating scale (PIRS) refers to "social activities", and active involvement in "clubs or associations" and contemplates activities in which the subject is engaged with others in an organised social context. The activity is both social (i.e. involving many people) and recreational (meaning activity engaged in for enjoyment). The criteria in the mild impairment category contemplate "events", i.e. organisation of the activity by others, social participation, and active involvement by the subject.

(c) The Medical Assessor misdirected himself in having regard to evidence which is not relevant to events of a social nature when making an assessment in the category of social and recreational activities_._ Misdirection of that kind was the subject of consideration by the Court of Appeal, and cause for revocation of the erroneous failure by a delegate of the President to recognise that a ground of appeal was made out, in the matter of Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas).

(d) The table is not directed to solitary activities that do not involve interactions with other people.

(e) Examination of the reasoning of the Medical Assessor and the evidence reveals an identical conflation and error as was discussed in Ballas.

(f) Swimming and snorkelling with her partner, i.e. with her support person, is not a social event. It does not involve social interaction and engagement of the kind contemplated by the descriptors for this category, i.e. active participation in organised social events which collectively involve interaction with members of the community.

(g) Catching up with a friend "every couple of months for a meal or visit" is not involvement in a social event as contemplated by the descriptors for social and recreational activities, but is a matter relevant to the category of social functioning, which addresses whether the appellant has sustained relationships with family members and close friends. A visit to or from a close friend, every couple of months, or a meal with such a person, indicates no more than that the relationship has been sustained, not that the appellant is able to actively engage in organised social events involving the broader community.

(h) This specific misdirection was addressed in the submissions on in Ballas as noted above and confirms the relevant error in the current matter: "The issue of ability to maintain friendships is relevant to the class of social functioning not social and recreational activities."

(i) The extent of the appellant's retreat from society, and the exceptional nature of her relationship with her close friend, is confirmed by the Medical Assessor's observation in the category of social functioning that she has "limited social networks outside her family but has retained at least 1 friend". She lives a reclusive existence, dependent upon her partner, and with contact beyond her home limited to her family and her close friend. Having a meal with her partner, i.e. her support person, once a month at a particular restaurant (as opposed to at home) is not evidence of any capacity to engage in interaction with members of the community, and to be a participant in a collective social recreational event.

(j) The appellant's ability to "travel away from home" is a matter relevant to the PIRS category of travel and should not have been referred to when purporting to provide an assessment in the category of social and recreational activities.

(k) As for "spend[ing] time with her children and their families", that is a matter to be considered when conducting an assessment of impairment in the category of social functioning. Contact with members of one's own family is not relevant to social interaction within the broader community. Notwithstanding his erroneous reliance upon the appellant's contact with her children and their families, the Medical Assessor has not considered the nature of such contact, i.e. the extent of any engagement when she does visit or is visited by them.

(l) Likewise, using her electric bicycle and walking are not social events. They are solitary activities which do not involve interaction with members of the community.

(m) The fact that the occasional work the appellant does attend to is "non-customer facing work" confirms her inability to engage in social interaction with members of the community and confirms that she has no capacity to participate in recreational events and to be actively involved.

(n) The Medical Assessor erred, and applied incorrect criteria, when assessing the appellant to be merely mildly impaired in respect of her ability to engage in social and recreational activities. The evidence establishes that her impairment in this category is moderate, and that the appropriate Class is 3.

(o) Ground 2 - employability - the Medical Assessor, in support of his assessment that the appellant's impairment in this category is merely moderate, has recorded that the appellant "undertakes labouring work on her farm up to several times per week, working 1 - 3 hours on these days, depending on her mental state".

(p) The Medical Assessor failed to address the essential features of actual employment, namely, working subject to direction, supervision, discipline and performance appraisal by an employer (at risk of dismissal), at times dictated by the employer. The appellant's activities on her own property, at times of her choosing, and involving activities chosen by her, without any direction, supervision, discipline, performance appraisal, or any consequences determined by another, cannot be considered as evidence of a capacity to work in the open labour market.

(q) The Medical Assessor's reliance on the appellant's activities on her own property, as a matter relevant to employability was therefore misconceived and erroneous.

(r) The evidence that the appellant "undertakes weekly voluntary work in a local library, undertaking non-customer facing work, for 2 hours", is also not relevant. That voluntary arrangement, devoid of contractual obligations and legal consequences, offers no basis to indicate any capacity to secure and sustain employment. An obvious distinction is to be drawn between voluntary work and actual employment. Plainly, the former lacks the indicia of remunerated employment, including but not limited to any of the elements noted above. Gratuitous assistance of the kind provided to a local library by the appellant, at her own pace, and involving no cost to the employer, would be readily accepted and appreciated by any service provider, regardless of whether such voluntary effort satisfied standards and performance indicators which would apply to a true employee with obligations to provide satisfactory results in return for agreed remuneration.

(s) Even if the two hours of voluntary work per week provided by the appellant to a local library were regarded as constituting capacity for employment, the relevant class pursuant to the employability category of the PIRS would be 4, i.e. severe employment consistent with an ability to work no "more than two days at a time, less than 20 hours per fortnight".

(t) The Medical Assessor therefore failed to apply the relevant criteria pertaining to this category, and his assessment was demonstrably erroneous. On any objective basis, the appropriate class in this category is 5, i.e. totally impaired, being the consensus of both

Dr Nair who was aware of the worker's volunteer work and

Dr Kneebone.

(u) The MAC contains demonstrable errors and reveals incorrect criteria in respect of the assessments made in respect of impairment in the categories of social and recreational activities, and employability. The MAC should be revoked.

1. The respondent's submissions include the following:

(a) Ground 1 - social and recreational activities - it was open to the Medical Assessor to assess the appellant as falling within Class 2 for social and recreational activities.

(b) The Medical Assessor recorded a history that the appellant hosts a family Christmas but not every year and that 'the family get together in Yamba in September most years'. The family events are social events, some of which take place outside the family home. The Medical Assessor referred to these as 'celebratory events'. There is no evidence that at these social events the claimant is 'not actively involved, remains quiet and withdrawn' such as to be assessed with a moderate impairment.

(c) In addition, the Medical Assessor also recorded that the appellant and her husband go to Scott's Head once a month for dinner, thereby going regularly to a restaurant. The appellant also occasionally goes to the Bellingen Hotel on a variable basis for dinner. The appellant catches up with her friend Sue every couple of months and they visit each other at home or go somewhere for lunch. This indicates that the appellant can go to a restaurant/café/ other venue.

(d) There is no evidence that she needs a support person to accompany her to these venues or needs to be prompted by family or close friend. There is no evidence that the appellant is not actively involved when she catches up with her friend for lunch, sometimes outside her home.

(e) Separate considerations are relevant in respect of the category social functioning (relationships). The Medical Assessor recorded that the appellant has six children and maintains regular contact including seeing some of them in person on a regular basis. The familial relationships were taken into consideration in assessing impairment in the category social and recreational activities only to the extent that they involved social gatherings or events.

(f) Social and recreational activities are part of the appellant's activities of daily living. The Medical Assessor recorded that the appellant goes snorkelling with her partner in the Nambucca River up to three times a week for a couple of weeks during summer. She goes swimming when she visits the farm and may swim up to three times a week. She typically walks daily. She also rides her e-bike twice a week. There is no evidence that the appellant requires prompting to partake in these activities. Although some activities may be done by the appellant on a solitary basis, some are done with her husband and are relevant when assessing the degree of participation in activities by the appellant.

(g) Ground Two - it was open for the Medical Assessor to assess the appellant as falling within Class 3 for employability.

(h) The Medical Assessor recorded that the appellant has ability to undertake casual labouring work on her farm up to several times a week working one to three hours per day and weekly voluntary work in a local library undertaking non-customer facing work for two hours. The appellant is able to drive to the local library at South West Rocks by herself, a one-way journey of 30 minutes.

(i) Travel is taken into consideration in assessing impairment in the category of employability only to the extent that the appellant is able to travel by herself to her place of voluntary employment.

(j) The appellant's voluntary work and/or work on her own farm is relevant as it indicates a capacity for employment although employment for less than 20 hours per week in roles which requires less skill or are qualitatively different.

(k) Notwithstanding the services provided to a local library are voluntary there would still be standards of performance required. There is no evidence that the appellant works 'at her own pace' when she is working at the library.

(l) The view that one class in the PIRS categories is 'more appropriate' than another reflects only a difference of opinion and is not a demonstrable error. (Parker v Select Civil Pty Limited (2018) NSW WC 140 citing Campbell J in Ferguson v State of New South Wales (2017) NSWSC 887).

(m) The Guidelines specify at 1.6 that a Medical Assessor is to exercise clinical judgement on the day of examination in assessment of the applicant in each of the PIRS categories. The pre-eminence of the clinical observations of the Medical Assessor in determining the relevant Class within each PIRS category cannot be understated [NSW Police Force v Daniel Wark [2012] NSWWCCMA 36].

(n) It was open to the Medical Assessor to use his skill, judgment and expertise to come to the conclusion that he did and the appellant was assessed appropriately.

(o) The assessment of 7% WPI [sic] ought to 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 reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence in the matter.

1. The appellant submits that the Medical Assessor assessed the appellant as falling within Class 2 (i.e. mild impairment) in this category, whereas the circumstances of the appellant indicate that she falls within Class 3 (i.e. moderate impairment).
2. The examples under Table 11.2 for "Social and recreational activities" in the Guidelines are:

"Class 2: Mild impairment: occasionally goes out to such events e.g. without needing a support person, but does not become actively involved (e.g. dancing, cheering favourite team).

Class 3: Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn."

1. The Medical Assessor assessed the appellant as Class 2 for social and recreational activities. In the PIRS Rating Form, the Medical Assessor wrote:

Ms Passmore advised she engages in swimming and snorkelling with her partner up to several times per week, contingent upon the weather. Ms Passmore advised she was able to use her electric bicycle to go cycling up to twice a week, alone, for up to 20 km. She goes walking on a regular basis.

Ms Passmore catches up with a friend every couple of months for a meal or visit.

Ms Passmore has been able to travel away from home to spend time with her children and their families, include [sic] celebratory events.

Once a month, Ms Passmore and her partner have a meal at a restaurant at Scots Head.

She catches up with her family annually at Yamba for a gathering."

1. Under "Current social situation", the Medical Assessor wrote:

"Of Ms Passmore's six children, two live in Sydney, one lives in Grafton, one lives on the Gold Coast, another in Newcastle, and one in Armidale. She explains they host a family Christmas, but not every year. She also explained that the family get together in Yamba in September most years to have a family get together that avoids clashing with the holiday period. Ms Passmore's son Nathan lives in Sydney, and she has explained she is in weekly

communication with him, and tends to see him in person once every three months. A daughter Ellen lives in Grafton, and she is in contact more regularly, sometimes every second day, sometimes once a week, and also sees her every three months. Her son Christopher lives on the Gold Coast, and Ms Passmore may be in contact with him every second day, also seeing him every three months. Her son Daniel lives in Newcastle, and Ms Passmore estimated she was in contact with him every second day or less frequently. She estimated she sees him in person every two months. Her daughter Willow lives in Sydney and Ms Passmore explained she is typically in daily communication, and that Willow often spends the university holidays back on the Mid North coast, at which time they are in daily contact."

1. Under "Current level of function", the Medical Assessor wrote:

"Approximately once a month, Ms Passmore and her partner will go to a cafe at Scots Head for a meal...

In addition to going to Scots Head once a month for dinner, Ms Passmore stated she

occasionally goes to the Bellingen Hotel on a variable basis. She states she may not go for some months, but then go for dinner. She stated she catches up with her friend Sue every couple of months, and they either visit each other at home, or go somewhere for lunch. Ms Passmore's sister-in-law visits a couple of times a week on average, and once a week will stay the night. She explained her sister will bring over an apple turnover to share. Other times, her sister-in-law does not stay the night though she may spend an hour at Ms Passmore's home.

With respect to other leisure activities, Ms Passmore stated she may go snorkelling with her partner in the Nambucca River. During summer, she stated they may go snorkelling up to three times a week, for a couple of weeks. She states she also goes swimming when she visits the farm she and Simon own. The amount of time spent swimming will vary according to weather and how tired she is. At times, Ms Passmore may swim up to three times a week, anywhere between 100 and 400 metres. She states she typically walks daily, trying to get 7,000 to 10,000 steps, estimating she will walk around two kilometres. She also rides her ebike twice a week, cycling 10 to 20 kilometres on these times".

1. In commenting on the other medical opinions, the Medical Assessor wrote:

"Dr Nair's rating in social & recreational activities does not take into consideration the leisure and recreational activities described by Ms Passmore in the current evaluation. His rating in Employability does not take into consideration the limited voluntary work Ms Passmore has been undertaking for over 12 months, nor does it take into consideration the part-time labouring work Ms Passmore has been undertaking on her farm."

1. Dr Kiran Nair, consultant psychiatrist, in a report dated 7 August 2024, assessed Class 3 for social and recreational activities providing the following reasons:

"Ms Passmore reported that she is socially isolated and only has contact with two friends. She does not attend recreational events or socialise in general. She does not attend social events, and she reported not being able to attend birthday parties. Recently, there was a close friend who passed away, but she could not

attend the funeral due to her mood symptoms. She reported that in the past, she would go to the beach, which hardly occurs now. She rarely goes to the farms they own."

1. Dr Mark Kneebone, consultant psychiatrist, in a report dated 29 October 2024 assessed Class 2 for social and recreational activities providing the following reasons:

"Mild impairment. Class 2. Robyn Passmore stated that prefers the safety and comfort of your own home over socialising. She tries, however, to meet up with 1-2 for a visit or over a lunch. She keeps in regular contact with her children, aunt and her partner's sister. She swims and goes for walks with her partner."

1. The appellant submits that the fact that the appellant visits her brother with her husband is not evidence of engagement in social and recreational activities, but a matter relevant to assessment in the PIRS category of Social Functioning.
2. In Ballas Bell P (as the Chief Justice then was) and Payne JA held that "the characterisation of conduct as going to "social and recreational activities" on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion: at [93]. Their Honours held, at [94]:

"Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, that is, whether it goes to "self care and personal hygiene", "social and recreational activities", "travel", "social functioning (relationships)", "concentration, persistence and pace" or "employability". This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker's entitlement to compensation."

"The "social and recreational activities" scale looks to the injured worker's degree of participation in such activities. This scale, it was argued, was directed towards an assessment of an injured worker's interaction with other people, and not a solitary activity such as gambling on poker machines. As was put in the submissions to the Delegate, when one examined the examples that were given for classes 1-5 in Table 11.2 of the Guidelines, all involved some degree of interaction with others, to a greater or lesser degree and on a sliding scale. It was plainly arguable in our opinion that that was the case, and this being so, the requisite level of satisfaction under s 327(4), as explained earlier in these reasons, should have been held to have been met." (emphasis added)

1. The Appeal Panel notes that the Court in Ballas held that it was plainly arguable that all of the activities in the social and recreational activities scale were directed towards an assessment of an injured worker's interaction with other people, and not a solitary activity such as gambling on poker machines. However, the Court did not state whether it accepted that argument.
2. Stern JA in Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781 at [68] considered the aim of Table 11.2 and said: "Rather, the intention in table 11.2 is to provide a tool for assessing the worker's ability to engage in activities that are properly characterised as social or recreational".
3. The Medical Assessor in the PIRS Rating Form and his assessment of Class 2 for social and recreational activities referred to activities including swimming and snorkelling with her partner up to several times per week, cycling up to twice a week, alone, for up to 20 km, walking on a regular basis, catching up with a friend every couple of months for a meal or visit, spending time with her children and their families including celebratory events and having dinner once a month with her partner at a restaurant at Scots Head. The Medical Assessor noted that the appellant catches up with her family annually at Yamba for a gathering.
4. The Appeal Panel accepts that the activity of spending time with her family could be regarded as correctly characterised as conduct best assessed under "social functioning". However, social and recreational events with her family and partner are properly characterised as social and recreational activities such as attending the annual family gathering, dining out with her partner, attending celebratory events with her children and their families. Furthermore, the removal of the activity of spending time with her family from the reasons provided by the Medical Assessor in this scale does not, in the view of the Appeal Panel, change the history and other descriptors in this scale which are overall consistent with a Class 2 rating for social and recreational activities. She has different recreational activities with different people, and there is no evidence she needs a support person in her recreational activities, which are not rare activities. Therefore, any error made is not a material error.
5. This ground of appeal is not made out.

1. The appellant submits that the Medical Assessor failed to apply the relevant criteria pertaining to this category, and his assessment was demonstrably erroneous. The appellant argued that on any objective basis, the appropriate Class in this category is 5, i.e. totally impaired.
2. The examples under Table 11.6 for "Employability" in the Guidelines are:

"Class 3: Moderate impairment: Moderate impairment. Cannot work at all 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.

Class 4: Severe impairment: cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.

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

Ms Passmore undertakes labouring work on her farm up to several times per week, working 1 - 3 hours on these days, depending on her mental state.

Ms Passmore undertakes weekly voluntary work in a local library, undertaking non-customer facing work, for 2 hours.

Ms Passmore would not be able to work in her former role or organisation, or in a similar position."

1. The Medical Assessor under "History relating to the injury" wrote:

"Around May or June 2020, Ms Passmore began a graded return-to-work plan, commencing on two hours a week. She recalled, 'I was overwhelmed'. She noted she was 'very sensitive to people in the environment' and discontinued this after a couple of weeks.

At some stage in 2020, despite having taken sick leave, Ms Passmore was offered the managerial role she had held in late 2019. She declined this, and noted that her employer even offered her to undertake the role on a part-time basis, such as three or four days a week.

In the second half of 2020, Ms Passmore again attempted a graded return-to-work plan, in her substantial position as a case worker. She commented, 'I was never well enough again to take on a management role'. By December 2020, Ms Passmore's hours had been successfully upgraded, to the point where she was able to work on a full-time basis.

In the first half of 2021, Ms Passmore worked on a full-time basis, and she ended up ceasing work in August or September 2021. She stated the reason for ceasing work was that she was dealing with a very complex matter, which was eventually heard in court. She explained the matter involved a lot of documentation. She commented, 'We were all overworked'.

Ms Passmore advised at some stage in 2021, she requested that her hours be reduced to four days per week. She noted, 'I wasn't feeling really well, I was seeing Dr Francis and Ms Hanson again on a regular basis'. For a period of time in 2021, she did reduce her hours to three days a week and after this period, had five to six weeks of scheduled annual leave. Ms Passmore was not able to recall the specific months in which this occurred.

After returning to work following annual leave, Ms Passmore found to her dismay that 'nothing had been done on the complex matter. The manager never organised it'.

Following this, in the second half of 2021, Ms Passmore stated she again applied to work four days a week, on the understanding that she had been given verbal approval to do so. By this stage she had a new manager. She alleged, 'She would get really angry with me about following it up'. Ms Passmore explained that there was conflict between her and her new manager about scheduling psychological consultations on the day she was scheduled to work.

On one particular day in September 2021, Ms Passmore stated she had emailed her manager to explain she would be uncontactable as she had a morning psychology appointment. Following the consultation, during which time Ms Passmore's phone was either switched off or on silent, she found repeated messages on her phone from her manager, asking where she was. When Ms Passmore returned to her office, she commented, 'The manager screamed, 'Where have you been?'. She was really loud and really angry. She just yelled at me: everyone in the office could hear her'. She stated after this incident, she was not able to work, and has not returned to work since that day.

During 2022, Ms Passmore did not work, commenting, 'I was really lost', and was consulting Dr Francis and Ms Hanson on a regular basis. She reported ongoing psychiatric symptoms, and at some stage in this year, was prescribed mirtazapine, an antidepressant, but discontinued this due to sedation. It was during this year that she was referred to a psychiatrist, Dr Robyn Bradley, for the first time. She explained that following organisation of the referral, she contacted Dr Bradley's office in Coffs Harbour and was advised that there was a six-month waiting list. It turned out the waiting period was around nine months.

In May 2023, Ms Passmore consulted Dr Bradley for the first time, who diagnosed her with a Major Depressive Disorder, and recommended that Ms Passmore take an antidepressant medication, venlafaxine. Ms Passmore advised she has not taken this or any other antidepressant medication, but has been St John's Wort.

At some stage in 2023, Ms Passmore's capacity was upgraded to allow her to do volunteer work. She advised that she and Ms Hanson sought appropriate local volunteer positions, but explained these were hard to locate. In December 2023,

Ms Passmore began working at a local library once a week for two hours, and this position had been located by Ms Hanson. Ms Passmore has continued to undertake the library volunteer work to date.

Also at some point in 2023, Ms Passmore and the rehabilitation provider talked about returning to work. However, Ms Passmore recalled "I was overwhelmed with anxiety", and she did not actually return to work in any form.

In March 2024, Ms Passmore was medically retired from the DCJ. She commented, 'that was something they recommended... I wasn't happy about it'. By that stage, she had not worked in any paid capacity since 2021."

1. Dr Kiran Nair, consultant psychiatrist, in a report dated 7 August 2024 assessed Class 5 for Employability providing the following reasons:

"Ms Passmore reported that she is now doing volunteer work, 2 hours once a week on Tuesday at a library. Her job involves returning books to the shelves and transferring books through the software. She does not interact with customers. She reported that being the maximum that she can do. She does not think she has the capacity to work formally but would like to eventually return to work in the future."

1. Dr Mark Kneebone, consultant psychiatrist, in a report dated 29 October 2024 assessed Class 5 for adaptive functioning providing the following reasons:

"Totally impaired. Class 5. Robyn Passmore stated that her work attendance even in a low stress environment would highly likely be unreliable and that the prospect of

returning to any work gave rise to a resurgence of her symptoms of anxiety and depressed mood."

1. The appellant submits that the Medical Assessor failed to apply the relevant criteria pertaining to this category, and his assessment was demonstrably erroneous. The appellant argued that the Medical Assessor failed to address the essential features of actual employment, namely, working subject to direction, supervision, discipline and performance appraisal by an employer (at risk of dismissal), at times dictated by the employer.
2. The Appeal Panel notes that some workers are self-employed or contractors and have discretion to work at times of their own choosing without direction or supervision. The Appeal Panel regards the appellant's activities on her own property as evidence of a capacity to work. There is no error in the Medical Assessor's reliance on the appellant's work activities on her own property as a matter relevant to the assessment of employability.
3. The appellant submits that the evidence that the appellant "undertakes weekly voluntary work in a local library, undertaking non-customer facing work, for 2 hours" is not relevant to an assessment in this scale and an obvious distinction is to be drawn between voluntary work and actual employment. While a distinction can be drawn between voluntary work and paid employment, the Appeal Panel considers that an ability to perform voluntary work is a relevant factor in considering capacity for employment.
4. The appellant submits that assistance of the kind provided by the appellant to a local library would be readily accepted and appreciated by any service provider regardless of whether such voluntary work satisfied standards and performance indicators. The Appeal Panel is not persuaded that such volunteer work is easy to obtain or readily accepted. The Appeal Panel notes that the Medical Assessor reported:

"At some stage in 2023, Ms Passmore's capacity was upgraded to allow her to do volunteer work. She advised that she and Ms Hanson sought appropriate local volunteer positions, but explained these were hard to locate. In December 2023, Ms Passmore began working at a local library once a week for two hours, and this position had been located by Ms Hanson. Ms Passmore has continued to undertake the library volunteer work to date."

1. The Appeal Panel notes that the appellant has been able to do this volunteer work at the local library since December 2023. In these circumstances, there was no error by the Medical Assessor in taking this voluntary work into account in his assessment of employability.
2. The appellant submits that even if the two hours of voluntary work per week at the library was regarded as constituting capacity for employment, the relevant class would be Class 4 consistent with an ability to work no more that two days at a time, less than 20 hours per fortnight.
3. The Appeal Panel accepts that the appellant's capacity for work as shown by her work as a volunteer at the library for two hours a week and her work on her farm one to three hours several times a week would indicate that her ability to work is less than 20 hours a fortnight and certainly an inability to work more than one or two days at a time.
4. The Appeal Panel find that the Medical Assessor failed to apply the relevant criteria in the scale of employability. The Appeal Panel is satisfied that the Medical Assessor erred in determining moderate impairment (Class 3) under this category. This ground of appeal is made out.
5. The Appeal Panel considers that there is evidence to support an assessment of Class 4 for employability. The appellant works as a volunteer in a local library for two hours a week and has done this since December 2023. The appellant also performs labouring work on her farm up to several times per week, working one to three hours on these days, depending on her mental state. The Appeal Panel assesses the appellant as Class 4 for employability.
6. Therefore, the Appeal Panel finds that the PIRS scales score 2 2 2 2 3 4, ascending order 2 2 2 2 3 4, median Class 2, aggregate 15 so that the WPI = 8%. The Medical Assessor made an adjustment for the effects of treatment of 1% WPI. Therefore, the total WPI is 9%.
7. For these reasons, the Appeal Panel has determined that the MAC issued on

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

Secretary, Department of Communities and Justice

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 John Lam-Po-Tang 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)

The above assessment is made in accordance with the SIRA NSW Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002.