1. On 18 July 2025 the appellant, Nicola Patrick, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Himanshu Singh, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 June 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). "WPI" is reference to whole person impairment. "Baseline WPI" is a reference to the total WPI assessed before deduction for the effect of pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.

1. On 28 April 2025, this matter was referred to the Medical Assessor for a WPI assessment of a psychological/psychiatric disorder which occurred on a deemed date of 22 August 2018.
2. Ms Patrick was employed as a maths teacher for the respondent. She commenced with the respondent's Department in 1995.
3. She suffered from a pre-existing bipolar disorder which was triggered by interpersonal conflict when she was bullied and harassed by a colleague.
4. She had time off work in 2013 when she was bullied by a colleague. She was off work between 2013 and 2017 and was transferred to Chifley College where she started work in term 2 in 2017. She worked until term 3 of 2018 and in February 2019 she stopped working due to her difficulties at work.
5. Ms Patrick has been on medication since the age of 30. (She was born in 1969).
6. When she was assessed by the Medical Assessor she was recovering from lung surgery. She was four weeks post surgery, having been diagnosed with lung cancer and having one-fourth of her left lung and lymph nodes removed. She was told that the lung cancer had not spread.
7. Ms Patrick was assessed at 13% WPI.

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 no error was established by the appeal.

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 which have been considered below by the Appeal Panel.

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 appellant submitted that the Medical Assessor had fallen into error in his assessment of the psychiatric impairment rating scale (PIRS) categories of self-care and personal hygiene, travel, and social functioning.

"...[Ms Patrick] currently lives with her daughter, who is 16, and her two-year old sister who is her legal carer."

1. As to Ms Patrick's social activities, the Medical Assessor recorded:[1]

"Ms Patrick is currently not working. She is recovering from the surgery. She feels pretty flat. She is not motivated and finding it hard to carry out physical tasks. However, she stated that before the surgery, she would often unpack the dishwasher and wash the clothes. The cleaning has been an effort. She will help with the floor and moving the lawns. She may skip showers. She may shower every second day and wash her hair once a week. She showers when she goes out. She may sometimes cook though she lacks motivation. She stated that she is independent with her self-care and personal hygiene.

Her sister mainly helps her with her daughter. Taking her around these days especially as she cannot drive. She also helps her with meals and organising cleaning and finances.

Ms Patrick has one friend with whom she would catch up for coffee or lunch. Most of the time is spent in driving her daughter to her league football matches. She does not go out for functions or social gatherings. She is not motivated. She is not into her hobbies. She may watch TV at home and sleep. She used to be into music, but she is not listening to music and not playing the guitar."

1. In his summary at [7] of the MAC, the Medical Assessor diagnosed that Ms Patrick had sustained an aggravation of the underlying bipolar affective disorder and presented with symptoms of major depressive disorder on the background of bipolar affective disorder

type 1. 2. The Medical Assessor assessed 15% WPI but deducted one tenth from that for her

pre-existing condition, leaving her with an entitlement of 13% combined table value. 3. In the Table 11.8 PIRS rating form, the Medical Assessor gave the following reasons for a class 2 rating in the category of self-care and personal hygiene:[2]

"However, she stated that before the surgery, she would often unpack the dishwasher and wash the clothes. The cleaning has been an effort. She will help with the floor and moving the lawns. She may skip showers. She may shower every second day and wash her hair once a week. She showers when she goes out. She may sometimes cook though she lacks motivation. She stated that she is independent with her self-care and personal hygiene. Her sister mainly helps her with her daughter. Taking her around these days especially as she cannot drive. She also helps her with meals and organising cleaning and finances.

I have noted that Ms Patrick is independent in her personal care. She is able to do the basic household chores and help her daughter in visiting her games. In my opinion, she would be able to look after herself adequately and able to live independently.

1. For the category of travel, the Medical Assessor gave the following reasons for finding a class 1 rating:[3]

"Ms Patrick did not report any issues in driving. She can drive by herself. She drove to Melbourne last year to take her daughter to play football. She would drive her daughter often to Central Coast, Norah and to other places on her own. She denied any anxiety in driving and she can drive without a support person. She stated that she can travel to new environment without supervision."

1. For social functioning, in the certificate the Medical Assessor gave the following reasons for finding a class 1 rating:[4]

"Ms Patrick has a good relationship with her daughter and her sister and other family members. She is married to her daughter's father who lives in Kenya. She cannot afford to travel, neither he. He is a Kenyan. She would catch up with him every now and then. Her father died in 1993, and she is regularly in contact with her mother and helps her out. Her mother helps her out at home."

1. Ms Patrick referred to the reasons given in the Table 11.8 form for the class 2 rating herein.
2. Ms Patrick kindly set out the relevant descriptors and submitted that the finding that

Ms Patrick was independent with her self-care and personal hygiene was "totally inconsistent" with the history taken by the Medical Assessor. 3. Ms Patrick assumed that the reasons had originated in the passage in the body of the report that noted that she was recovering from lung surgery. It was submitted that the finding that Ms Patrick was independent of self-care and personal hygiene stood in isolation amongst the other observations that contradicted that conclusion. 4. It was submitted that the Medical Assessor had found: * Ms Patrick skipped showers; * that her sister helped her with meals, and organizing, cleaning and finances, and * that Ms Patrick may sometimes cook, although she lacked the motivation, and that the cleaning had been an effort. 5. This, it was alleged, was contradicted by the finding that Ms Patrick was independent in this area of behaviour. 6. We were then referred to the applicant's statement of 22 January 2025 where Ms Patrick had stated that her sister assisted with domestic tasks, her sister and her daughter prompted her to do things around the house and that she struggled with personal hygiene and the upkeep of her physical appearance. 7. Ms Patrick submitted that the Medical Assessor did not give any explanation about "these patent contradictions". The preponderance of evidence, Ms Patrick submitted, was that she needed assistance with maintaining the household and attending to her personal care and that she could not live independently. 8. Ms Patrick referred to the documentation listed by the Medical Assessor at the beginning of his report in which he considered all the medical information before him. Ms Patrick submitted that "conspicuously," the Medical Assessor did not note her said statement. 9. She alleged that the Medical Assessor "neglects" to engage with the statement of evidence at all. This, it was argued, was significant, as the history recorded during the consultation was "flatly contradicted" by her statement, as we understood the submission. 10. Further, it was submitted that it was "inherently unlikely" that Ms Patrick would have said words to the effect that she was independent with her self-care and personal hygiene. Even if she had expressed herself that way, it was submitted, that could not form a basis on which to evaluate her in isolation from the totality of the history obtained and the evidence before the Medical Assessor. He had accordingly misapplied the guidelines and disclosed an illogical and unsupportable reasoning process in "drawing of a factual conclusion from a form of words against a preponderance of evidence against that factual conclusion". 11. Ms Patrick further submitted that the Medical Assessor had failed to provide adequate reasons and that his conclusion was contradicted both by the history obtained and the statement evidence before him.

1. Ms Patrick submitted that the Medical Assessor had contradicted himself in this category as well, as the Medical Assessor himself noted that Ms Patrick's ability to travel was only when she was taking her daughter somewhere.
2. We were referred to in Ms Patrick's statement which was noted by the Medical Assessor, in which she described the trip as a "negative experience", a "chore" and "anxiety-provoking".
3. Ms Patrick submitted that by failing to engage with her statement and failing to disclose a supportable reasoning process for his finding (which contradicted her statement, and indeed the history taken by him), the Medical Assessor had failed to apply the relevant criteria and in the alternative made a demonstrable error.

1. It was submitted that the Medical Assessor had erred in his class 1 rating assessment as the history he took during the consultation was again contradicted by what was contained in her statement. It was submitted that the Medical Assessor had made a factual error when he reported that her daughter's father lived in Kenya with whom she would catch up every now and then.
2. Ms Patrick's statement [64] expressly disavowed any motivation to keep in contact with her husband and the effect of the statement by the Medical Assessor that she kept in contact with him "every now and then" failed to give any further explanation or engage with her statement.
3. Again, it was submitted that the history the Medical Assessor took in the consultation as to Ms Patrick's having a good relationship with her daughter was contradicted by the description given by Ms Patrick in her statement.
4. Ms Patrick submitted further that her statement spoke of a loss of friendship due to her psychological injury, but that the Medical Assessor had fallen into error by failing to comment on that assertion - or indeed explaining why he did not find the loss of friendships.
5. It was submitted further that there was a contradiction in the Medical Assessor's own findings that Ms Patrick had one friend with whom she would catch up but that Ms Patrick did not go out for social gatherings or functions.
6. Ms Patrick concluded by submitting that the Medical Assessor had fallen into error by failing to engage with her statement evidence and failing to explain why the history he took was contradicted by the evidence.

1. The respondent referred to relevant authorities and guidelines which we will consider below. It also conceded that the 13% WPI certified by the Medical Assessor was as a result of miscalculation, and should have been given as 14%.

1. The respondent referred to the note by the Medical Assessor that Ms Patrick was currently recovering from lung surgery, which she had undergone four weeks previously.
2. The respondent referred to the factual finding by the Medical Assessor that prior to the surgery, she performed a number of tasks relevant to this category.
3. It was submitted that, seen in the light of the Medical Assessor's general history, there was no contradiction as alleged by the appellant.
4. The respondent submitted further that the contents of the statement aligned with the history taken by the Medical Assessor, in that Ms Patrick's sister provided some assistance with domestic tasks and indeed assisting with the care of Ms Patrick's daughter when she had episodes of mania:[5]

"My sister provides me with some assistance with domestic tasks, including cooking, cleaning, washing and maintenance, and assists me with the care of my daughter when I have episodes of mania. This will include taking my daughter to and from school and football training, as she is in a Football NSW academy."

1. The respondent also referred to Ms Patrick's statement:[6]

"My sister and daughter prompt and motivate me to do small things around the house. I struggle with personal hygiene. I try to shower every day, but if I know I'm not leaving the house, I won't shower for days."

1. The respondent relied on Ms Patrick's statement to corroborate that the prompting she received related to "small things" and that she would not shower every day unless she was going out.
2. The respondent submitted further that it was relevant that Ms Patrick had been living with her sister and daughter since she returned from overseas in 2007, as she said in her statement. It followed that the living arrangement predated the injury, the respondent argued. There was a clearly documented history of pre-existing bipolar affective disorder since Ms Patrick was in her mid-thirties.
3. We were referred to a report by psychologist Diane Randall who took a history on

30 June 2015,[7] that Ms Patrick was dealing with a number of psycho- social stressors over a period of years which included: * being a single parent to a six-year old; * whilst her husband lived in Kenya; * for whom she had to apply for a spouse visa, and * along with other health and financial problems. 4. In view of this evidence, the respondent submitted that the appellant did not point to any evidence which contrasted her situation before and after the work injury. There was no support for her allegation that her sister was now required to provide increased and or advanced assistance as a result of the injury or its effects the respondent said. 5. Equally, it was submitted there was no evidence to demonstrate that Ms Patrick was now unable to live independently without regular support because of the work injury. 6. The respondent submitted that the Medical Assessor had acknowledged that Ms Patrick's sister was assisting in some aspects of her daily living, but there is no history taken of

Ms Patrick having to rely on her sister following the work injury that would warrant a class 3 assessment. 7. Thus it was argued, the Medical Assessor used his clinical skills and judgement to come to the conclusion that he did. [i.e. Wingfoot and pre-eminence of the Medical Assessor. He was aware of all the facts and the class 2 rating acknowledged that Ms Patrick required some assistance.] 8. The involvement of Ms Patrick's sister and her assistance in some of the activities did not, it was submitted, extinguish the fact that Ms Patrick was able to partake in her self-care and personal hygiene independently. Ms Patrick had conflated the assistance provided by her sister in an attempt to demonstrate that Ms Patrick was therefore unable to live independently. 9. The respondent also noted that the statement from Ms Patrick did not address her cancer diagnosis, nor did it speak of the recent surgical treatment and the effect of both on her ability to complete self-care and personal hygiene tasks. 10. There was an obvious inference, it was submitted, that if Ms Patrick required additional assistance in this category, it was unrelated to the work injury. 11. On the other hand, the respondent submitted that the Medical Assessor correctly took a history of Ms Patrick's functioning in this category both prior and post-surgery. 12. The respondent noted the emphasis Ms Patrick laid on the contents of her statement, but submitted that the Medical Assessor had comprehensively canvassed the history of functioning provided by the appellant, both on examination and in the documentary evidence, and used his clinical skills and judgment to form a valid opinion.

1. The respondent referred to the findings by the Medical Assessor and submitted that this was evidently recorded by the Medical Assessor, based on the appellant's own self report. It was submitted that the Medical Assessor's reference to Ms Patrick being unable to drive was an acknowledgement that following the cancer surgery, that she was indeed unable to drive.
2. It did not, however, indicate that Ms Patrick's impairment was caused by the subject injury, the respondent said, and the Medical Assessor had taken an appropriate history of

Ms Patrick's post injury ability to travel. 3. It submitted in any event Ms Patrick's present ability to drive her daughter to various places on her own was indicative of a class 1 rating. 4. The respondent repeated that Ms Patrick had placed excessive weight on the subjective level of impairment described in her statement. It said that while the evidence was important, it was not conclusive as to the actual level, which required the Medical Assessor to consider many other evidentiary matters.

1. The respondent submitted that the history taken indicated that the appropriate class rating would be 1. We were referred to the Medical Assessor's finding that Ms Patrick had a good relationship with her daughter and sister and other family members, and that her daughter's father lived in Kenya.
2. The appellant's submissions regarding Ms Patrick's lack of involvement in social functions or gatherings was irrelevant to the assessment of social functioning, the respondent said, and indeed the Medical Assessor had accounted for this under the appropriate social and recreational activities category. The Medical Assessor acknowledged that Ms Patrick did not go out for functions and social gatherings, as she was not motivated, and accordingly awarded a class 3 rating.
3. The respondent submitted that overall Ms Patrick's submissions relied on her statement evidence to establish error, but in fact the Medical Assessor had used his clinical skills and judgement to form an opinion based on the history obtained on the day of examination, including a consideration of the available evidence.

1. The PIRS is established as the rating system for assessing psychiatric/psychological impairment, by virtue of Chapter 11 of the Guides. Chapter 11 sets out six categories of behaviour to be considered, each being divided into five classes, ranging in seriousness from 1 to 5. Class 1 relates to a situation where there is no psychological deficit, or a minor deficit attributable to the normal variation in the general population. Class 5 pertains to a person who is totally impaired.
2. Chapter 11.12[8] provides:

"Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person's cultural background. Consider activities that are usual for the person's age, sex and cultural norms."

1. The Medical Assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[9]
2. The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[10] Campbell J was concerned the case where the Medical Appeal Panel had revoked the MAC on the basis that the finding by the AMS had been glaringly improbable. His Honour found that the Panel had fallen into jurisdictional error. He said at [23]:

"By reference to NSW Police Force v Daniel Wark [2012] NSWWCCMA 36, the Appeal Panel directed itself that in questions of classification under the PIRS:

'... the pre-eminence of the clinical observations cannot be underrated. 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'.

1. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
2. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides 'the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment': Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are 'examples only': see Jenkins v Ambulance Service of New South Wales.[11] The Appeal Panel said 'they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected': Appeal Panel reasons at [37]."
3. In Glenn William Parker v Select Civil Pty Ltd,[12] another case regarding assessment of psychiatric disorder, Harrison AsJ cited [23] of Ferguson with approval at [65]. Her Honour said at [66]:

"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. (Ferguson [24])....."

"It was a matter for the clinical judgment of the AMS to determine whether the impairment with respect to employability was at the moderate level, as he did, or at some other level. But, in seeking judicial review, a mere disagreement about the level of impairment is not sufficient to demonstrate error of a kind susceptible to judicial review."

1. It is accordingly a useful approach for the Panel to enquire whether the assessment by the AMS in this category involved one of the following matters (to use the reference by Campbell J in Ferguson):

(a) if the categorisation was glaringly improbable;

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

(c) if a clear misunderstanding could be demonstrated, or

(d) if an unsupportable reasoning process could be made out.

1. In Lancaster v Foxtel Management[13] Basten AJ noted at [88-89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of ss 327(3) and 328(2).
2. The thrust of Ms Patrick's submissions sought to establish a demonstrable error on the basis that statements in the evidence before the Medical Assessor contradicted the reasons he gave for his assessment.
3. Thus, the argument went, the Medical Assessor had made findings in each of the appealed categories that were contrary to and inconsistent with the evidence that had been before him. As will be seen shortly, it is not the function of a Medical Assessor to act in a judicial or quasi judicial manner. However, a preliminary issue has arisen in this case that is not without significance, that being the fact that Ms Patrick had undergone lung surgery some four weeks prior to the assessment. The assessment took place on 19 May 2025, so that we may assume the surgery occurred sometime in mid-April 2025. The referral was dated

28 April 2025 after the ARD was registered on 3 April 2025. Perusal of both parties' indices demonstrates that the evidence being relied on was of some vintage, the most recent document being Ms Patrick's statement of 22 January 2025. 4. There was no evidence put before the Medical Assessor that identified that Ms Patrick had developed lung cancer, let alone that she had undergone surgery in that regard. We noted with some interest that Ms Patrick's case rather turned a blind eye to this development, as no evidence was lodged that dealt with this development. The Medical Assessor was thus left with the task of assessing impairment caused by Ms Patrick's psychological injury of

22 August 2018 in the face of what appeared to be major lung surgery sometime in mid-April 2025. 5. We commend the Medical Assessor for continuing with the assessment when he was advised of this development. We assume that it was Ms Patrick herself that advised him. Being fully trained when appointed to his position, the Medical Assessor would have been aware that he had the option under s 319 of the 1998 Act to find that maximum medical improvement had not been achieved, in view of what he was told by Ms Patrick. Rather than do so, he proceeded with the assessment dealing with the evidence, as he was required to, as Ms Patrick presented on the date of examination, 19 May 2025.[14] As he had no evidence about Ms Patricks diagnosis of lung cancer until she advised him, and no medical advice about the potential effect of her recent history had been obtained, he proceeded to act in accordance with his function. 6. The function of a Medical Assessor was discussed in the often-cited High Court case of _Wingfoo_t.[15] The reference to Medical Panel also applies to Medical Assessors.[16] The plurality stated at [47]:

"The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions**....** The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."

1. A Medical Assessor is, however, required to give adequate reasons for his assessment. At [48] of Wingfoot, the plurality stated:

".....What is to be set out in the statement of reasons is the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself."

"...The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law...."

1. At [56] the Court considered the decision of the Court of Appeal and noted that:

"... the Court of Appeal analogised the function of a Medical Panel forming its opinion on a medical question to the function of a judge deciding the same medical question. Accordingly, it then equated the standard of reasons required of a Medical Panel with the standard of reasons that would be required of a judge giving reasons for a final judgment after a trial of an action in a court....:..A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else."

1. In Vegan, Basten JA (Handley and McColl JJA agreeing) said at [122]:

"122 On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: (authority omitted). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required."

1. The relevant descriptors are set out in Table 11.1 of the Guides:

"Class 2 Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.

Class 3 Moderate impairment: Can't live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition."

1. The Medical Assessor noted that Ms Patrick was currently recovering from lung surgery, and gave a class 2 rating, saying in the Table 11.8 PIRS Rating Form:

"However, she stated that before the surgery, she would often unpack the dishwasher and wash the clothes. The cleaning has been an effort. She will help with the floor and moving the lawns. She may skip showers. She may shower every second day and wash her hair once a week. She showers when she goes out. She may sometimes cook though she lacks motivation. She stated that she is independent with her self-care and personal hygiene. Her sister mainly helps her with her daughter. Taking her around these days especially as she cannot drive. She also helps her with meals and organising cleaning and finances. I have noted that Ms Patrick is independent in her personal care. She is able to do the basic household chores and help her daughter in visiting her games. In my opinion, she would be able to look after herself adequately and able to live independently."

1. Ms Patrick's first submission was that these findings should have resulted in a class 3 rating. There was no challenge to the factual findings made by the Medical Assessor, Ms Patrick simply arguing that in the light of those findings she was deserving of a class 3 rating. There was, it was argued, an internal contradiction because the Medical Assessor had found

Ms Patrick to be "independent in her personal care." 2. We have earlier noted that Ms Patrick's submissions did not address the circumstances or the effect of her lung cancer diagnosis and treatment, all of which appears to have occurred subsequent to her statement of 22 January 2025. Another area to which Ms Patrick has given very little attention is the living arrangements that she has with her sister and her daughter. In her statement, Ms Patrick said from [47]:

"47. I have lived with my sister and my daughter since returning from overseas in or around 2007.

1. My sister provides me with some assistance with domestic tasks, including cooking, cleaning, washing and maintenance, and assists me with the care of my daughter when I have episodes of mania. This will include taking my daughter to and from school and football training, as she is in a Football NSW academy.
2. My sister also assists me financially, as I am not able to work...."
3. The "episodes of mania" are presumably a reference to Ms Patrick's bipolar affective disorder. Ms Patrick referred to this disorder twice in passing during her statement, in the context of her going off work due to an aggravation - firstly in February 2016 and again on

22 August 2018.[17] 4. At [4] of the MAC, the Medical Assessor took a history that:

"Ms Patrick lives in Glenmore Park. She lives with her sister, who is a legal carer for the last five years and her 16-year-old daughter..."

1. This history appears to be incorrect, compared to what appears at [47] of Ms Patrick's statement. Ms Patrick was assessed on 19 May 2025, as noted, and her history was therefore capable of carrying an inference that her current living arrangements had only commenced since the subject injury of 22 August 2018 (deemed).
2. Further, we note the emphasis by Ms Patrick at [11] of her submissions that emphasised that history, namely:

"She lives with her sister, who is a legal carer for the last five years and her 16-year old daughter..."

1. Ms Patrick referred again to the living arrangements as recorded by the Medical Assessor later in the same paragraph:

"As to present symptoms, the medical assessor noted: "She currently lives with her daughter who is 16 and a 2 year older sister who is her legal carer."

1. Just why Ms Patrick chose to emphasise the words "who is a legal carer" was not explained. Paragraph [11] of her submissions was concerned with the development of the argument that the finding by the Medical Assessor that Ms Patrick was "independent with her self-care and personal hygiene" had been contradictory. At [14] of her submissions, Ms Patrick further referred to the living arrangements by referring to [48] of her statement, (but not [47]), both of which we have relevantly reproduced above. Ms Patrick then submitted:

"...her sister and daughter prompt her to do things around the house (paragraph 67), and that she struggles with personal hygiene and the upkeep of her physical appearance (paragraph 68-71). The medical assessor provides no explanation reconciling these patent contradictions."

1. It is difficult to resist the inference raised by this argument, that somehow the fact that

Ms Patrick has a legal carer was connected to the subject injury. Ms Patrick's medical expert, Dr David Kumagaya, did not mention her living arrangements in any of the five reports that he supplied (which, as we have already observed, were somewhat out of date being issued between 9 February 2023 and 30 June 2023). 2. The respondent's expert, Dr Clayton Smith reported on 22 February 2020 that Ms Patrick was living in Glenmore Park with her daughter and sister "who Ms Patrick said is her carer and is in receipt of the carers' allowance."[18] Dr Clayton Smith took a comprehensive history of the onset of Ms Patrick's bipolar disorder, noting that it developed in 1998 whilst

Ms Patrick was studying in Boston whilst she was undergoing a trial separation from her first husband. She was studying at Berklee College and had a manic episode in October 1998. He noted that she had recurrent episodes and was admitted to St John of God Hospital in Richmond in 2004. He noted further that every time she travelled overseas, Ms Patrick became manic and there were several episodes in 2005 whilst teaching in New Zealand and episodes in Dubai in February 2007.[19] 3. Dr Ian Smith, injury management consultant, reported on 25 July 2019:[20]

"Ms Patrick lives with her sister who assists with her care. She has had the support since her daughter was born 10 years ago to her second husband who lives overseas."

1. It follows that Ms Patrick has had the services of a sister as her legal carer since 2007, and we reject any inference that the subject injury had been the cause of her having a legal carer. Ms Patrick made no attempt to differentiate between her needs prior to her injury and those that have been a consequence of it.
2. We are satisfied, however, that the Medical Assessor was cognisant of this dichotomy. As we have indicated above, he noted that Ms Patrick felt "pretty flat" as she was recovering from lung surgery. However he differentiated between that condition and what she used to do prior to the surgery. He noted that she would often unpack the dishwasher, wash the clothes, help with the floor and mow the lawns. She would shower every second day and wash her hair once a week. She might sometimes cook.
3. The Medical Assessor noted that Ms Patrick's sister "mainly helps her with her daughter."
4. These findings are consistent with a class 2 rating. There was no suggestion that Ms Patrick could not live independently without regular support, as the Medical Assessor had specifically noted that Ms Patrick's sister mainly helped with her daughter.
5. The crux of this challenge appeared to be that the Medical Assessor had stated that he was told by Ms Patrick that "she stated that she is independent with her self-care and personal hygiene."
6. We note that no application was made for the admission of fresh evidence pursuant to s 328 (3) from Ms Patrick denying that she had made that statement, and the Medical Assessor was assiduous in making the distinction between her limitations after the surgery, and those that existed prior.
7. We repeat that the history that the Medical Assessor relied on was in all probability the history that he was given by Ms Patrick during the consultation, given how out of date the documentation before him was. Ms Patrick did not tell him that she was unable to live independently without regular support, nor that she needed prompting to shower daily and wear clean clothes. There was no suggestion that a family member should ensure a minimum level of hygiene and nutrition.
8. We also note that Dr Kumagaya in his initial report of 9 February 2023, found that a class 2 rating was appropriate for this category. He reversed his opinion in his report of

30 June 2023, and found a class 3 rating on the basis that Ms Patrick's sister was "now her formal carer." This was an error of fact and Dr Kumagaya's reasoning was accordingly compromised. 9. This ground is rejected.

1. Table 11.3 of the Guides provides the relevant descriptors:

"Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: Can travel to new environments without supervision.

Class 2 Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour."

1. In assessing a class 1 rating, the Medical Assessor said in the Rating Form:

"Ms Patrick did not report any issues in driving. She can drive by herself. She drove to Melbourne last year to take her daughter to play football. She would drive her daughter often to Central Coast, Norah (sic probably Norah Head) and to other places on her own. She denied any anxiety in driving and she can drive without a support person. She stated that she can travel to new environment without supervision."

1. We have noted Ms Patrick's submissions above. Inherent in them was an admission that

Ms Patrick did in fact drive, but it was argued that the Medical Assessor should have made allowances for the fact that she found the activity a negative experience. The purpose of the PIRS method of assessing psychological injury is to evaluate the behavioural consequences of a psychiatric disorder, as provided by Chapter 11.11 of the Guides. It can be noted that nowhere in the descriptors in the six categories of the PIRS is there any reference to the subjective responses of a claimant, except in class 3 of the present travel category, which is not applicable in the present situation, as Ms Patrick clearly can travel away from her residence without a support person. In evaluating the appropriate class, a Medical Assessor is concerned with whether the particular activity can be performed or not. If it can be, albeit with some negativity, the descriptors describe the general level of impairment. 2. Again, the content of Ms Patrick's statement is of little assistance and we accept that what was reported by the Medical Assessor was that which he had been told during the assessment. Ms Patrick can drive by herself, she drove to Melbourne to take her daughter to play football, she drives often to the Central Coast, Norah Head, and other places on her own, usually to transport her daughter, and she can travel to new environments without supervision. These are all class 1 indications. 3. This ground is rejected.

1. Table 11.4 of the Guides provide the following relevant descriptors:

"Class 1 No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).

Class 2 Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships."

1. In the Rating Scale the Medical Assessor said in assessing a class 1 rating:

"Ms Patrick has a good relationship with her daughter and her sister and other family members. She is married to her daughter's father who lives in Kenya. She cannot afford to travel, neither he. He is a Kenyan. She would catch up with him every now and then. Her father died in 1993, and she is regularly in co--ntact with her mother and helps her out. Her mother helps her out at home."

1. We have noted above the submissions that the Medical Assessor had fallen into error by not explaining why he differed from Ms Patrick's statement. There was no reason for him to do so, not only because the statement was so far out of date in view of subsequent developments, but for the reasons we considered in discussing Wingfoot above. We would observe that the submission that Ms Patrick was in fact not in contact with her Kenyan husband, rather than that she caught up with him every now and then, did not assist her case. Ms Patrick said at [64] that she had no motivation to keep in contact or engage with him in any event. Again, we accept that the statements attributed to Ms Patrick were in fact made to the Medical Assessor during the consultation. He has used his experience and expertise to formulate his assessment, and we find no error in the rating he gave.
2. This ground is rejected.
3. For these reasons, the Appeal Panel has determined that the MAC issued on 20 June 2025 should be confirmed, save that the arithmetical rounding error advised by the respondent results in the issue of a fresh certificate.

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 Ankur Gupta 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)

[9] See 11.15-11.21 at Guides p 65 and Table 11.7 at Guides page 66.

[10] [2017] NSWSC 887.

[11] [2015] NSWSC 633.

[12] [2018] NSWSC 140.

[13] [2022] NSWSC 929.

[15] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.

[16] Western Sydney Local Health District v Chan [2015] NSWSC 1968 at [13].

[17] Appeal papers pages 65 at [10] and 68 at [35] respectively.