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austlii:nsw/NSWPICMP/2026/124
General information, not legal advice.
NSWPICMP
2026-02-18
Original judgment source is linked above.
64.The application of s 65A provides a far stronger basis for that reasoning than the exercise required by s 323, just because it is not a 'subtractive approach'. That is, even if one accepted that deductions could be made under s 323 from a fixed starting point, s 65A is only directed to the starting point. The reasoning in Pombinho applies a fortiori and, although arguably obiter, should be applied by this Court."
(a) failing to consider and address the issue of the secondary psychological condition despite the finding of a secondary psychological condition as confirmed in the COD and failing to provide a sufficient path of reasoning for his ultimate conclusions and assessment;
(b) failing to obtain and record a proper history relating to the secondary psychological condition and failing to consider the available evidence before him, and
(c) failing to address the proportionate to which the psychological deficits may derive from the secondary psychological condition and failing to engage in the two-step process consistent with s 65A(2) and as noted in Mercy Connect Limited v Kiely [2018] NSWSC 1421.
Pattison Pastoral Butchery Pty Ltd's Submissions documented the Medical Assessment Certificate (MAC) dated 29 May 2025 had not included an assessment of a secondary psychological injury, despite the Amended Referral having included: "A copy of the Certificate of Determination by Member Brett Batchelor dated 4 March 2025 attached." Member Batchelor issued a Certificate of Determination Statement of Reasons (COD) dated 4 March 2025, wherein the following findings were made:
1.The matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of primary psychological injury deemed to have occurred on 27 December 2022.
2. The Applicant suffered a secondary psychological condition as a result of physical injuries sustained on 21 November 2022 arising out of or in the course of her employment with the respondent."
The Panel noted that the issue for re-examination was the apportionment of the secondary psychological injury.
Ms Jennings (the worker) attended with the support of her son for an in-person assessment at the PIC medical suites, Sydney. Her son was present for the duration of the 100-minute re-examination. The worker did not require an interpreter. She said her son was her only child aged about 20 years and living with his partner outside of his mother's home. Her son held a world ranking of 60th for Slalom water skiing. The documents forwarded were discussed where there appeared to be inconsistencies between prior statements and records.
The worker provided a complex past medical history.
Review of the forwarded documents was clarified with the worker at the time of the
The worker commenced alcohol consumption as a teenager. She reported participating in detoxification from cannabis in 2001 as a resident of a drug and alcohol rehabilitation service in Sydney. Whilst living in Tasmania, she would consume methamphetamine and ecstasy orally. She denied use of intravenous drugs. She left Tasmania in about 2010. The medical records report that the worker did have periods of heavy consumption of alcohol, documented in 2012.
The worker reported "3 cars written off" in the last 12 months. She said she had crashed three cars and that she had trouble with the repair of the last car. She said she had not suffered any subsequent psychological or psychiatric injury because of these three events. There was no documentation about these events.
The worker could provide details of her differences in the medical history during the
re-examination. I note that the worker did report an unhappy relationship with the father of her son. She reported her last contact with him was in about 2007.
The worker was encouraged to use her relaxation and cognitive behavioural therapy skills to manage her feelings of overwhelming anger and yelling. She said she was well known for yelling when she was frustrated.
The worker said she was born in Deniliquin, NSW. She is now 61 years of age and single. She said she owned two properties, including a two-bedroom unit in town (Deniliquin), where she was during her assessment with Dr Bisht. The worker showed a photograph of her two-bedroom unit in town. The internal space was disorganised, and there were various objects strewn throughout the premises. She said that her son was helping her organise the unit for rental, as the worker had not been able to clean the unit or cut the grass since the onset of the injury.
The worker also had a 4½ acre block (the farm) about 20 kilometres out of town. She leases a further 25 acres from a neighbour. She has a bore for water on her property. She stated she had the following stock on her property; a dry Jersey milking cow and foster calf, a wagyu stern and a Hereford cow, a Rhode Island Red rooster, 9 miniature poodles and about 10 sheep. She reported that she could organise to purchase feed. She had organised for the slaughter of one of her cattle and had sent half the meat to her son recently.
The worker reported having recently returned to live on her property. She had built a cabin. She had no running hot or cold water. She reported that she was unable to grow her produce for sale as she had before the injury, and she no longer ran her organic vegetable shop from her farm or the nearby vegetable markets. She reported that she would wash her body with a washcloth after she had attended the toilet.
The worker said she had recently returned to the local boat club as she had a friend who taught at the water skiing school. The worker had water skied since she was about 12 years of age. She had previously had a ski boat. She had introduced her son to water skiing. She reported she had assisted at the club on three occasions during the last 9 weeks. She said she had been granted a complementary water ski session after the ski school closed for the evening. She reported that she had water skied about "three miles" behind a ski boat, staying inside the wake. She said her left hand was not as strong as it had been before the injury, however she did not report any pain from her shoulders after each session.
The worker reported she was able to travel to and from town alone. She said she had crashed three cars over the last 12 months. She reported the damage. She said she had not been further physically or psychologically injured in these minor incidents.
The worker reported her relationship with her son was strained. She said he had "run away" and eloped. She said that she was not invited to his wedding. The worker's son confirmed that he was planning to marry soon after the date of the re-examination. He said he was currently living in Scone, NSW with his fiancée. The worker reported that she had two long term friends; the water ski school instructor and a male friend from her childhood (Paddy) who was about 80 years of age. She described him as assisting her as much as he could and she would seek his help if she deemed it reasonable.
The worker said she had reduced concentration. She did describe performing a complex task of cutting firewood with a power saw. She described securing the wood in a brace and then cutting the wood with the saw. She would use the cut wood to fire her wood heating stove. She explained the stove had capacity to produce hot water but she had not been successful in plumbing the old-fashioned wood service. She did not have running water.
She was behind in her local council rates and services bills.
The worker reported that she was unable to work on her small acreage. She had not returned to any employment. She was not able to find other employment due to her erratic behaviour.
The worker reported that she suffered from irritable bowel syndrome. She reported that she had urgency and was unable always to find a toilet in time. She said she was recently in town and she had lost control of her bowel. She reported she did not know why she had developed this problem but she was planning to seek the advice of the telehealth doctor. She initially attributed the problem to her use of Celebrex, a pain relief medication. She stopped her pain medication and the problem has not remitted. She then thought the reason for her irritable bowel was due to Largactil. She stopped this medication too.
The worker reported she had a cracked tooth from her bruxism. She rated the pain in her tooth as 5/10 on the day of the re-examination. The worker said her left shoulder and left hand were not as strong as before lifting the boxes of meat at the butchery on 21 November 2022. She said she was right-handed.
The worker reported that she had commenced work at the butchery and she was working long hours to assist with problems at the shop. She initially tried to assist with the problem of the till not balancing. She then became the focus of bullying and harassment from the butcher. She said staff at the shop was cut in half and she was left to make up for the lost labour. She said the butchery was not profitable. She assisted with security by assisting with the installation of security cameras.
The worker said she became the focus of the butcher's frustration and anger. She said he would make angry statements towards her. He would curse at her and call her a "F***ing C***". She said she would yell back at him. She said the owners were told about the bullying and harassment, but did not intervene. The worker reported she began to become depressed in her mood, and experience increased irritability, agitation and distress. Her sleep became poor, and she developed feelings and depressive ruminations of worthlessness. She said, "I think I'm going to lose everything again". She described poor sleep and difficulty concentrating when attempting to use the machines to make produce in the butchery. She was unable to cope with her workplace environment and she stopped working.
The worker sought assistance from her local doctor. She changed to using the telehealth doctor. She was currently prescribed mirtazapine 15mg at night. She was attending her psychologist, Mr Andrew Rae. She stopped these sessions in late 2024. She was initially trying to attend her psychiatrist, Dr Adesania, who treated her for the 2013 Sunrice workplace injury. She had not been treated by a psychiatrist for this primary psychological injury.
The worker was at work on 21 November 2022. She had been asked to lift the shop's produce up on shelves so that the product would not be damaged in the flood that was moving into the local area. The worker had received the call from the owner. She had been told that the cool room product was at risk. The worker complied with the request and entered the cold room and started lifting heavy boxes of product over her head onto shelving. She said she had a panic attack after she physically injured herself.
The worker reported that she had injured her shoulder, lumbar spine and sacrum. She did not have any medical leave available to her. She decided to keep working. She stated she had trouble adjusting to the workplace after the physical injury, and she began to believe the owners had "set her up to fail".
The worker's local doctor organised investigations for her physical injury and left shoulder pain.
The worker was referred to Dr Lim and Mr Nielsen (psychologist). She would attend by telehealth. The worker was diagnosed with a secondary psychological injury by Dr Lim and in April 2023 he diagnosed her with an adjustment disorder secondary to her physical injury sustained on 21 November 2022. She was prescribed Celebrex and paracetamol for her pain. She said her left hand had been fixed in position with her left middle, ring, and little fingers having been held in a fully flexed position until recently when her attendance at an osteopath provided her with treatment which resulted in improvement in the function of her left hand.
The claimant presented as an unkempt woman wearing unclean clothes with unwashed hair. She wore open-soled footwear. She demonstrated her dirty fingernails and her unwashed, soil-stained feet. She was not malodourous. She said she did not care for her personal hygiene. She said she would wash herself after using the toilet on every occasion.
The worker spoke in a forceful manner. She would wander off topic and required assistance to remain on topic. She was able to state her concerns about how she was treated whilst at the butchery. She was able to clarify specific inconsistencies between what was previously documented and her explanation. The worker would freely interchange words including "PTSD, ABI, and depression". When asked to explain her meaning, she would equate them to the same understanding of suffering from a psychological condition. Her understanding of the different meanings of each condition was limited. Progress through the assessment was slow as the worker required time to describe her condition more fully.
The worker was oriented in time, place and person. She was able to control her episodes of frustration without yelling when she was provided the opportunity to settle and use her relaxation, breathing and cognitive skills. She did report suffering from an irritable, depressed mood. She did not describe any delusional ideas or psychotic symptoms. She did not have any fluctuation in her level of consciousness that might be observed if she was intoxicated with alcohol or other substances.
The worker demonstrated her left hand been restricted in function with her left middle, right and little fingers held in a fully flexed position. She reported the problem had remitted with her now being able to use her left hand whilst water skiing on three occasions in the last 9 weeks.
The worker did not report suicidal plans. She did not report self-harm events. She did describe outbursts of anger and frustration. She was insightful into her condition and her judgement appeared normal.
The respondent's secondary psychological injury is best defined as: DSM-5-TR F34.10 Persistent depressive disorder. This is a diagnosis that consolidates the two conditions of Dysthymia and Chronic major depressive disorder.
Depressed mood for most of the day, for more days than not, as indicated by either subjective account or observation by others, for at least 2 years.
This criterion is satisfied as the date of onset of the primary psychological injury was in December 2022. The worker reports suffering from a depressed mood to various clinicians and medical assessors. The worker's clinical psychologist Mr Neilsen documented a Hamilton Rating Scale for Depression assessment on 23 October 2023; a total score of 31 out of 52 was endorsed by the worker, which is consistent with a major depressive disorder.
Presence, while depressed, of two (or more) of the following:
This criterion is satisfied as the worker reports reduced appetite and a weight of about 50kgs.
This criterion is satisfied as the worker reports frequent waking from sleep with difficulty
This criterion is not satisfied because the worker reported having energy to water ski, cut wood for heating and cooking.
This criterion is satisfied because the worker reports loss of standing in her local community due to her frequent irritable and angry outbursts. The loss of standing has persisted recently when she was not permitted to sell her slaughtered cow's meat and she had to apportion some of the meat to her son so the meat would not be wasted.
5. Poor concentration or difficulty making decisions.
This criterion is satisfied because the worker has difficulty in decision making with her choices
to start projects becoming stalled due to her poor planning.
This criterion is satisfied because the worker reports recurrent thoughts of hopelessness and failure, with her stating, "I can't stop thinking I'm going to lose it all again. I'll end up with nothing!"
During the 2-year period of the disturbance, the individual has never been without the symptoms in Criteria A and B for more than 2 months at a time.
This criterion is satisfied because the worker has documented and self-reported symptoms as defined in Criteria A and B persistently from the date of onset to the date of re-examination.
Criteria for a major depressive disorder may be continuously present for 2 years.
This criterion is not required to be satisfied for a diagnosis of persistent depressive disorder.
There has never been a manic episode or a hypomanic episode.
This criterion is satisfied because the worker has no documented history of these conditions.
The disturbance is not better explained by a persistent schizoaffective disorder, schizophrenia, delusional disorder, or other specific or unspecified schizophrenia spectrum disorder and other psychotic disorder.
This criterion is satisfied because the worker has no documented history of these conditions.
The symptoms are not attributable to the physiological effects of a substance (e.g., a drug of
abuse, a medication) or another medical condition (e.g., hypothyroidism).
This criterion is satisfied because the worker does not have any of the above conditions or use
any substances that could cause similar symptoms since the date of onset of the injury.
The symptoms cause clinically significant distress or impairment in social, occupational, or
This criterion is satisfied because the worker has not been able to return to her prior employment since the onset of the injury.
For the above reasons, the best DSM-5-TR diagnosis to define the respondent's primary psychological injury is persistent depressive disorder.
The respondent's secondary psychological injury is best defined as: DSM-5-TR F43.20 adjustment disorder.
The development of emotional or behavioural symptoms in response to an identifiable
stressor(s) occurring within three months of onset of the stressor(s).
This criterion is satisfied by the worker suffering clinically significant injury to her left shoulder as well as pain in her lower lumbar region, neck, and left arm and left hand at the time of the secondary psychological injury. The respondent worker developed maladaptive reactions to her condition since the onset of the secondary psychological injury after she had sustained a physical injury lifting heavy items for the employer.
These symptoms or behaviours are clinically significant as evidenced by one or both of the following:
2. Significant impairment in social, occupational, or other important areas of functioning.
This criterion is satisfied by the worker not returning to work because of the worker identifying herself as not capable of returning to her prior employed role or work in a lesser role which would not be affected by her psychological injuries - resulting in her becoming erratic in her capacity to attend any employment.
The stress-related disturbance does not make the criteria for another mental disorder and is not merely an exaggeration of a pre-existing mental disorder.
This criterion is satisfied because the worker's identified stress-related disturbance is due to all aspects of her physical injury sustained at the time of onset of the psychological injury. The worker's prior psychological condition was in full remission before the commencement of this secondary psychological injury.
The symptoms do not represent normal bereavement and are not better explained by prolonged grief disorder.
This criterion is satisfied because the worker does not suffer from a normal bereavement and does not suffer from prolonged grief disorder.
Once the stressor or its consequences have terminated, the symptoms do not persist from
This criterion is satisfied because the consequences of the injury had not terminated at the time of this re-examination.
For the above reasons, the best DSM-5-TR diagnosis to define the respondent worker's secondary psychological injury is an adjustment disorder.
The worker reported that she was restricted from lifting heavy items because of pain in his shoulders and back. She was unable to pull weeds from her two-bedroom unit (town unit) due to physical restrictions in her shoulder and lower back. The worker's physical injury impairment and impairment due to pain from all causes are to be disregarded when assessing impairment in the PIRS in compliance with current guidelines.
Assessment of current psychological impairment - Self-care and personal hygiene.
The worker's primary psychological injury impaired her self-care and personal hygiene only mildly. She was able to attend to her self-care and personal hygiene without prompting. The worker could cook simple meals. The worker was living in a cabin on her property. The cabin did not have running water or hot water. She was able to wash herself after using the toilet. She was able to cut firewood for her wood-burning stove. She was able to attend her local shops to purchase light groceries. This was assessed as a mild impairment.
The worker's impairment in self-care and personal hygiene from her assessable diagnoses reflects a severity of impairment best described by the examples in Table 11.1 for class 2 and not those provided in 11.1 for class 3 impairment. This is because her persistent depressive disorder results in a mild impairment, so that the worker is unkempt but does not fail to meet her essential personal hygiene by washing herself after using the toilet. She does fail to manage personal hygiene that would be expected in a house that had running hot water; however she does not require prompting for her self-care and personal hygiene. She is able to cook a few times each week.
The worker's adjustment disorder related symptoms affect her ability to adapt and clean her town unit. However, disregarding this minimal additional impact does not result in a change in impairment rating from that attributable to the primary injury. For these reasons the assessment of the whole person impairment for this table of function was assessed as mild.
The respondent said she could water ski since the onset of the injury. She said she had water skied on three occasions in the last 9 weeks. Physical injury impairment and impairment due to pain from all causes are not included in the measurement of whole person impairment in the PIRS in compliance with current guidelines.
The worker's primary psychological injury impaired her social and recreational activities mildly. She reported that her capacity for social and recreational activities had changed during the last 9 weeks before the re-examination. She said she would attend the local boat club when her friend and water skiing instructor was present to run the local water ski school. She said she would assist with the activities at the water ski school. She said she would also be provided with a water ski session for herself and that she had water skied on three occasions since her return to the school.
The worker could also socialise with Paddy, her lifelong friend. She said that she enjoyed her social meetings with this friend as he could understand and support her. For these reasons the assessment of the whole person impairment for this table of function was assessed as mild.
The worker's adjustment disorder related symptoms affect her ability to adapt and socialise in larger groups or when in organised events. However, disregarding this minimal additional impact does not result in a change in impairment rating from that attributable to the primary injury.
The worker's impairment in social and recreational activities from her assessable diagnoses reflects a severity of impairment best described by the examples in Table 11.2 for class 2 and not those provided in 11.2 for class 3 impairment. This is because her primary psychological injury results in a mild impairment, so that although the worker does not socialise with her son or the local religious community close to the farm, she was able to enjoy attending the water ski school and Paddy's company and support.
The worker said she was able to drive a car. She would drive her car locally. She was driving less because she had less need to drive while staying at the farm. She would not drive long distances due to her lower back pain. Physical injury impairment and impairment due to pain from all causes are not included in the measurement of whole person impairment in the PIRS in compliance with current guidelines.
Assessment of current psychological impairment - Travel
The worker said she could drive locally and in familiar areas. She was not able to drive long distances. She was able to drive between the town unit and the farm. She could not drive in heavy traffic, and her son has supported her with travel to the venue for in-person assessment. At the time of this re-examination, she was unable to travel longer distances because she would become more irritable while driving to unfamiliar locations. An episode of increased irritability whilst driving was documented by her clinical psychologist Mr Neislen, when he contacted her for a treatment session.
The worker's adjustment disorder related symptoms affect her ability to adapt and organise other types of travel when travelling long distances, as seen with the support provided by her son at the time of this re-examination. However, disregarding this minimal additional impact does not result in a change in impairment rating from that attributable to the primary injury.
The worker's impairment in travel from her assessable diagnoses reflects a severity of impairment best described by the examples in Table 11.3 for class 2 and not those provided in 11.3 for class 3 impairment.
The worker did not report any specific pain-related reason that impaired her social functioning. She did report suffering from irritable bowel syndrome (IBS) and that if she did not urgently find a toilet, she could embarrass herself by soiling her clothes. She reported a recent episode of IBS affecting her whilst in town. Physical injury impairment and impairment due to pain from all causes are not included in the measurement of whole person impairment in the PIRS in compliance with current guidelines.
Assessment of current psychological impairment - Social functioning
The respondent said she was able to maintain a strained relationship with her son. She said she was disappointed he had eloped and was to marry without her presence. She said she would maintain contact with her son since he had relocated to Scone for work. The worker reported she had sustained her lifelong friendship with Paddy. She reported him supporting her and understanding her condition. She said she also had a long-term friendship with the water skiing instructor. This was assessed as a mild impairment.
It is not clinically possible to separate any impairment in this category arising from the secondary psychological injury from that of the primary injury, as the irritability and strain in the worker's relationship with her son had been present before the onset of this injury, with him having care transferred to extended family in Longreach whilst the legal proceedings in Tasmania were resolved. Psychological strain is reflected in symptoms of both disorders, and the impairment is co-mingled.
The worker did not report any specific physical or pain-related reason that impaired her capacity in relation to concentration, persistence, and pace. Physical injury impairment and impairment due to pain from all causes are not included in the measurement of whole person impairment in the PIRS in compliance with current guidelines.
Assessment of current psychological impairment - Concentration, persistence, and pace
The worker's persistent depressive disorder impaired her concentration, persistence and pace. She could concentrate to organise and pay for the replenishment of cattle feed. She could organise and concentrate to secure and cut firewood with a power saw. She was able to engage with the questions raised in the re-examination, of about 100-minutes, an intellectually demanding task over a prolonged period. She would respond with coherent and meaningful answers to specific questions raised during the re-examination. The worker was able to mix and prepare her herbal medications and teas, which she used daily.
The worker's adjustment disorder related symptoms affect her ability to attend to her bills such as her local town rates and utilities on time. She said she was behind in her payments however she did not report any of her services including her mobile phone and internet services having ceased due to failure to pay. Disregarding this minimal additional impact does not result in a change in impairment rating from that attributable to the primary injury.
For these reasons the assessment of the whole person impairment for this table of function was assessed as mild.
The worker was asked what she identified as physical barriers when attempting to return to work. She replied that she was not able to lift the same loads and perform the heavier labouring parts of her prior role in the butchery. The worker identified that her painful shoulders and lower back were preventing this type of heavy work. She said she had not performed heavy work on the farm since the injury, and this had delayed her plans for the property. Physical injury impairment and impairment due to pain from all causes are not included in the measurement of whole person impairment in the PIRS in compliance with current guidelines.
Assessment of current psychological impairment - Employability
The worker's primary psychological injury impaired her employability. The worker was emotional and distressed when speaking about her psychological injury. She reported ongoing anger towards the owners who had not supported her. She was irritable when talking about her loss of self-esteem and not being able to organise her organic produce shop. Her psychological symptoms prevented her from returning to her previous role. She reported her psychological symptoms were of varying severity from day to day since the injury. She could not predict the severity of her psychological symptoms; however, she would not be able to attend reliably for the same hours she had previously attended before the onset of the injury. This was assessed as a severe impairment because her symptoms due to the persistent depressive disorder were erratic.
It is not clinically possible to separate any impairment in this category arising from the secondary psychological injury from that of the primary injury, as the irritability and other depressive symptoms are part of both the primary and secondary psychological injuries. The irritability and depressive symptoms are reflected symptoms of both disorders, and the impairment is co-mingled. For these reasons, the assessment of the whole person impairment for this table of function was assessed as severe.
Although there is a minimal additional impairment of self-care, social and recreational, travel, as well as concentration, persistence and pace arising from the secondary injury, disregarding the rating that arises from the primary injury only does not alter the degree of impairment rated. In the categories of Social Functioning and Employability, any impairment arising from the secondary injury is completely co-mingled with that of the primary injury. Disregarding the impairment arising from the secondary injury does not change the rating of the impairment arising from the primary injury.
Dr Bisht provided an estimate of the apportionment due to the secondary psychological injury as 50% of the whole person impairment. Dr Bisht does not provide specific reasons for his opinion that the apportionment should be a 50% WPI deduction. The use of a deductive approach for assessment of secondary psychological injury is not compliant with current practice.
The worker had a well-documented pre-existing psychological injury in relation to her work at Sunrice. The worker's condition was either documented as chronic major depressive disorder or posttraumatic stress disorder. The existence of a pre-existing psychological injury is not disputed in this appeal. The treatment provided by her psychologist and psychiatrist was extensive. The worker had found employment working in NDIS before changing to work for this employer. The worker's pre-existing psychological injury is not more than 10% of the assessed whole person impairment. It is not possible to fully assess the contribution of the pre-existing psychological injury due to the complexity of this worker's psychiatric history and prior conditions.
The worker had been treated with evidence-based psychological treatment. She was accepting of psychological treatment. The worker was treated with evidence-based antidepressant treatment of mirtazapine 15mg at night. These evidence-based treatments have not altered the worker's symptoms or the severity of impairment. The effects of her evidence-based treatment had been assessed as 0% WPI.
The worker mixed her preferred herbal medications and teas. These herbal treatments were not evidence-based psychiatric treatment. The assessment of current psychological functioning was completed prior to an assessment of secondary psychological injury.
PIRS of the current psychological injury worksheet
DSM-5-TR F34.10 persistent depressive disorder (primary psychological injury)
DSM-5-TR F43.20 adjustment disorder (secondary psychological injury)
The worker's primary psychological injury impaired her self-care and personal hygiene only mildly. She was able to attend to her self-care and personal hygiene without prompting. The worker could cook simple meals. The worker was living in a cabin on her property. The cabin did not have running water or hot water. She was able to wash herself after using the toilet. She was able to cut firewood for her wood-burning stove. She was able to attend her local shops to purchase light groceries. This was assessed as a mild impairment.
The medical assessor considers the worker's impairment in self-care and personal hygiene from her assessable diagnoses, reflect a severity of impairment best described by the examples in Table 11.1 for class 2 and not those provided in 11.1 for class 3 impairment. This is because her persistent depressive disorder results in a mild impairment, so that the worker is unkempt but does not fail to meet her essential personal hygiene by washing herself after using the toilet. She does fail to manage personal hygiene that would be expected in a house that had running hot water; however, she does not require prompting for her self-care and personal hygiene. She is able to cook a few times each week.
The worker's adjustment disorder related symptoms affect her ability to adapt and clean her town unit. However, disregarding this minimal additional impact does not result in a change in impairment rating from that attributable to the primary injury.
The worker's primary psychological injury impaired her social and recreational activities mildly. She reported that her capacity for social and recreational activities had changed during the last 9 weeks before the re-examination. She said she would attend the local boat club when her friend and water skiing instructor was present to run the local water ski school. She said she would assist with the activities at the water ski school. She said she would also be provided with a water ski session for herself and that she had water skied on three occasions since her return to the school.
The worker could also socialise with Paddy, her lifelong friend. She said she enjoyed her social meetings with this friend as he could understand and support her. For these reasons the assessment of the whole person impairment for this table of function was assessed as mild.
The worker's adjustment disorder related symptoms affect her ability to adapt and socialise in larger groups or when in organised events. However, disregarding this minimal additional impact does not result in a change in impairment rating from that attributable to the primary injury.
The worker's impairment in social and recreational activities from her assessable diagnoses, reflect a severity of impairment best described by the examples in Table 11.2 for class 2 and not those provided in 11.2 for class 3 impairment. This is because her primary psychological injury results in a mild impairment, so that
although the worker does not socialise with her son or the local religious community close to the farm, she was able to enjoy attending the water ski school and Paddy's company and support.
The worker said she could drive locally and in familiar areas. She was not able to drive long distances. She was able to drive between the town unit and the farm. She could not drive in heavy traffic and her son has supported her with travel to the venue for in-person assessment.
At the time of this re-examination, she was unable to travel longer distances because she would become more irritable while driving to unfamiliar locations. An episode of increased irritability whilst driving was documented by her clinical psychologist Mr Neislen when he contacted her for a treatment session.
The worker's adjustment disorder related symptoms affect her ability to adapt and organise other types of travel when travelling long distances, as seen with the support provided by her son at the time of this re-examination. However, disregarding this minimal additional impact does not result in a change in impairment rating from that attributable to the primary injury.
The respondent said she was able to maintain a strained relationship with her son. She said she was disappointed he had eloped and was to marry without her presence. She said she would maintain contact with her son since he had relocated to Scone for work. The worker reported she had sustained her lifelong friendship with Paddy. She reported him supporting her and understanding her condition. She said she also had a long-term friendship with the water skiing instructor. This was assessed as a mild impairment.
It is not clinically possible to separate any impairment in this category arising from the secondary psychological injury from that of the primary injury as the irritability, and strain in the worker's relationship had been present before the onset of this injury, with him having care transferred to extended family in Longreach whilst the legal proceedings in Tasmania were resolved. Psychological strain is reflected in symptoms of both disorders, and the impairment is co-mingled.
The worker's persistent depressive disorder impaired her concentration, persistence and pace. She could concentrate to organise and pay for her replenishment of cattle feed. She could organise and concentrate to secure and cut firewood with a power saw. She was able to engage with the questions raised in the re-examination, of about 100-minutes, an intellectually demanding task over a prolonged period. She would respond with coherent and meaningful answers to specific questions raised during the re-examination. The worker was able to mix and prepare her herbal medications and teas, which she used daily.
The worker's adjustment disorder related symptoms affect her ability to attend to her bills, such as her local town rates and utilities, on time. She said she was behind in her payments however, she did not report any of her services, including her mobile phone and internet services, having ceased due to failure to pay. Disregarding this minimal additional impact does not result in a change in impairment rating from that attributable to the primary injury.
For these reasons, the assessment of the whole person impairment for this table of function was assessed as mild.
The worker's primary psychological injury impaired her employability. The worker was emotional and distressed when speaking about her psychological injury. She reported ongoing anger towards the owners who had not supported her. She was irritable when talking about her loss of self-esteem and not being able to organise her organic produce shop. Her psychological symptoms prevented her from returning to her previous role. She reported her psychological symptoms were of varying severity from day to day since the injury. She could not predict the severity of her psychological symptoms; however, she would not be able to attend reliably, and for the same hours she had previously attended before the onset of the injury. This was assessed as a severe impairment because her symptoms due to persistent depressive disorder were erratic.
It is not clinically possible to separate any impairment in this category arising from the secondary psychological injury from that of the primary injury, as the irritability and other depressive symptoms are part of both the primary and secondary psychological injuries. The irritability and depressive symptoms are reflected symptoms of both disorders, and the impairment is co-mingled.
Less pre-existing psychological injury 1/10 of 7% WPI equates to 0.7 rounded to 1%WPI.
The final assessment of whole person impairment is 6% WPI.
Ms Jennings' relationship with her son had been present before the onset of this injury, with him having care transferred to extended family in Longreach. The Appeal Panel considers that the psychological strain was reflected in symptoms of both disorders, and the impairment is co-mingled. 5. The Appeal Panel finds that in the PIRS scale of employability it was not clinically possible to separate any impairment in this category arising from the secondary psychological injury from that of the primary injury, as the irritability and other depressive symptoms were part of both the primary and secondary psychological injuries. The Appeal Panel considers that the irritability and depressive symptoms were reflected symptoms of both disorders, and the impairment is co-mingled. 6. The Appeal Panel noted that the Medical Assessor found that Ms Jennings had a previous injury and pre-existing condition and made a deduction of one tenth pursuant to s 3232 of the 1998 Act. The Appeal Panel agrees that a deduction pursuant to s 323 of the 1998 Act was required as a proportion of the impairment assessed was due to that previous injury or pre-existing condition. Ms Jennings had a chronic major depressive disorder or post-traumatic stress disorder and underwent extensive treatment. However, Ms Jennings did return to employment in NDIS before changing to work for the appellant. 7. The Appeal Panel considered that a deduction of 1/10th was appropriate and was not at odds with the evidence for the reasons expressed by Medical Assessor Baker in the re-examination report above. 8. Although, the appellant did not allege error in respect of the assessment of the PIRS scales, Medical Assessor Baker carried out an assessment of the PIRS scales in his re-examination as a comparative exercise was necessary in order to determine the impact of the secondary condition on current WPI. The Appeal Panel agreed with the assessment of the PIRS scales made by Medical Assessor Baker. 9. Following the re-examination by Medical Assessor Baker, the Appeal Panel assessed self-care and personal hygiene as Class 2, social and recreational activities as Class 2, travel as Class 2, social functioning as Class 2, concentration persistence and pace as Class 2 and employability as Class 4. The Classes in ascending order are 2,2,2,2,2,4, median 2 and aggregate score 14. 10. The Appeal Panel therefore makes an assessment of 7% WPI in respect of the psychological injury deemed to have occurred on 31 May 2021. 11. The Appeal Panel makes a 1/10th deduction pursuant to s 323 of the 1998 Act. Therefore, the assessment of total WPI by the Appeal Panel is 6% WPI in respect of the injury deemed to have occurred on 31 May 2021. 12. For these reasons, the Appeal Panel has determined that the MAC issued on 29 May 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Mukesh Kumar 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)
Pattison Pastoral Butchery Pty Ltd
Jennings [2026] NSWPICMP 124;
(a) Ground 1 - Failure to conduct the assessment in accordance with s 65A(2) of the Workers Compensation Act 1987 (the 1987 Act) and the Guidelines (Clause 1.22).
(b) The Medical Assessor has based his assessment on incorrect criteria as he failed to assess the degree of permanent impairment in accordance with s 65A (2) of the 1987 Act and failed to conduct his assessment in accordance with the Guidelines and the relevant workers compensation legislation.
(c) The COD of Member Batchelor in this matter confirmed the presence of both a primary and secondary psychological injury/condition. That is, there has been a finding of a Member of the Commission, of a secondary psychological condition. The Medical Assessor was obliged to address to what extent the primary and secondary psychological contributed to the impairment assessed.
(d) The Medical Assessor applied incorrect criteria in failing to address and consider the impairment resulting from the secondary psychological injury and then failing to deduct this from the impairment resulting from the primary psychological injury.
(e) The Medical Assessor erred in failing to distinguish between the effects of the primary and secondary psychological conditions in the psychiatric impairment rating scale (PIRS) table, thereby falling into error.
(f) Ground 2 - demonstrable error - the MAC discloses demonstrable error in the following ways:
(i) failing to consider and address the issue of the secondary psychological condition despite the finding of a secondary psychological condition as confirmed in the COD and failing to provide a sufficient path of reasoning for his ultimate conclusions and assessment;
(ii) failing to obtain and record a proper history relating to the secondary psychological condition and failing to consider the available evidence before him, and
(iii) failing to address the proportionate to which the psychological deficits may derive from the secondary psychological condition and failing to engage in the two-step process consistent with Section 65A(2) and as noted in Mercy Connect Limited v Kiely [2018] NSWSC 1421.
(g) The appellant acknowledges that a Medical Assessor is not required to give expansive reasons for the ultimate conclusion but is required to disclose the 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 (Wingfoot v Australia Partners Pty Ltd v Kocak [2013] HCA 43). As confirmed in Campbelltown City Council v Vegan 2006] NSWCA 284, reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgment.
(h) The COD confirmed the presence of both a primary and a secondary psychological injury/condition resulting from the respondent's employment.
(i) The medical evidence served on behalf of the parties also addressed this issue. Dr Yajuvendra Bisht, consultant psychiatrist for the appellant, at Reply p 10 and 11, diagnosed Ms Jennings as suffering a secondary psychological condition.
Dr Bisht thereafter opined that the secondary condition was contributing to the impairment assessed and conducted an apportionment of this assessment.
(j) Dr Kumagaya (ARD 33), consultant psychiatrist at provided commentary as to Dr Bisht's diagnosis of secondary psychological condition. Whilst Dr Kumagaya was not in agreement as to the presence of a secondary psychological condition, there has been a finding in this regard.
(k) Despite the findings of Member Batchelor set out in the COD, the MAC does not disclose that the Medical Assessor had considered the issue of the secondary psychological condition and whether that condition was in any way contributing to the impairment. At page 11 of the MAC, the Medical Assessor acknowledges the opinion of Dr Bisht in relation to the secondary condition however, the Medical Assessor does not engage in any assessment or consideration of the issue relating to the secondary psychological condition.
(l) The Medical Assessor has therefore, fallen into error not identifying, separating and excluding any impairment resulting from the secondary psychological condition Ms Jennings was found to have sustained as per the COD. In failing to conduct this process, the Medical Assessor has erroneously included permanent impairment resulting from the secondary psychological injury which is not compensable pursuant to s 65A of the 1987 Act.
(m) The MAC also contains a demonstrable error as the Medical Assessor failed to obtain and record a proper history relating to the secondary psychological condition and failed to consider the available evidence.
(n) There was a plethora of evidence available (from both a treating and qualified perspective) which supported Ms Jennings had also sustained physical injuries resulting from her employment. The COD and the treating clinical material attached to the pleadings contained reports from various treating psychologists, psychiatrists and pain physicians which acknowledged Ms Jennings was suffering from ongoing significant pain symptoms resulting from the physical injuries. The Medical Assessor failed to obtain any history from Ms Jennings in relation to the effect of the physical injuries and the resulting secondary psychological injury.
(o) Further, the Medical Assessor has erred in failing to engage in the "two-step process" as noted in obiter dicta in Keily's case. Her Honour Harrison J commented that to abide by the mandate of s 65A(2) of the 1987 Act, the first step for a Medical Assessor is to assess the overall degree of permanent impairment of a worker in accordance with cls 11.11 and 11.12 of the Guidelines. The second step is to assess separately the impairment due to the secondary psychological injury by reference to the same clauses and then deduct the latter from the former. The Medical Assessor has failed to engage in this process and therefore, has made a demonstrable error.
(p) The MAC in its entirety discloses a failure by the Medical Assessor to consider and address the issue of the secondary psychological condition and whether that secondary psychological condition contributed to the overall impairment. The Medical Assessor failed to provide a sufficient path of reasoning for his final assessment of 17% WPI.
(q) Having regard to the above, the assessment has been made on the basis of incorrect criteria and contains a number of demonstrable errors.
(r) The MAC should be set aside, and a further examination take place and a new MAC to be issued which appropriately addresses and considers the secondary psychological injury in accordance with the COD and the evidence and thereafter adjusting the final WPI accordingly.
(a) A Medical Assessor is obligated to assess the worker using their clinical skills and judgement, record their findings on examination and correctly apply the relevant guidelines when assessing permanent impairment. Based on the extensive history taken by the Medical Assessor and the reasons provided in the PIRS Rating Form, the reasons for the Medical Assessor's assessment of whole person impairment and his disagreement with the assessment of
Dr Bisht were properly explained or alternatively could be properly inferred.
(b) The Medical Assessor is obligated to assess the worker using their clinical skills and judgement, record their findings on examination and correctly apply the relevant guidelines when assessing permanent impairment. The Medical Assessor has correctly assessed Ms Jennings' degree of permanent impairment arising out of the psychological injury sustained in the course of her employment on 27 December 2022.
(c) The Medical Assessor assessed Ms Jennings using his clinical skills and judgement. The fact that some of the findings may be different from those indicated in other evidence is not of itself a proper basis to make a finding of demonstrable error or of the application of incorrect criteria. The findings made by other doctors have no bearing on the findings of the Medical Assessor and they ought not to. The Medical Assessor is required to undertake their own assessment albeit with consideration to be given to the available medical records. This is what occurred.
(d) In relation to the assessment of Dr Bisht, the deduction made was excessive in the circumstances. The findings of Dr Bisht as to degree of permanent impairment and deductions have no binding nature on the Medical Assessor. The existence of deductions made by other medical experts do not bind the Medical Assessor to make deductions. The Medical Assessor must be satisfied based on their own assessment of the worker and evaluation of the available medical records.
(e) The Medical Assessor undertook the assessment in accordance with his role. There was no error in his assessment.
(f) The appellant submits that the Medical Assessor failed to engage with the assessment of Dr Bisht. The Medical Assessor is not required to follow the opinion of Dr Bisht and nor is the Medical Assessor required to give reasons as to why their opinion differs from the medico-legal experts retained by the parties.
(g) The Medical Assessor is required to provide adequate reasons for their decision to allow the assessment of permanent impairment to be understood and the basis for it. In this regard, they are:
(i) Not required to follow the opinions of any of the doctors qualified for the parties NSW WC MA 197(16 June 2009)), and
"In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
(ii) Not required to refer to each, and every, piece of evidence filed by the parties and provide reasons as to why they did not agree with it.
(h) The MAC is to be read as a whole to see if the result reached has been adequately explained. It is not to be read "with an eye keenly attuned to perception of error' (Minister of Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, 272).
(i) Campbell J said in Kaur from [25]: