1. On 28 March 2025 Leah Pearson, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ankur Gupta, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 7 March 2025.
2. On 4 April 2025 the appellant employer, Secretary Department of Communities and Justice also lodged an application to appeal against the against Dr Gupta's decision.
3. The delegate to the President determined that both appeals should proceed and the matter was accordingly referred to the Panel. The appeal from the worker was called M1 and the appeal from the appellant/employer was called M2.
4. Both appellants relied 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.
5. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out in each appeal. 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.
6. 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.
7. 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.

M1 Appeal: Leah Pearson v Secretary, Department of Communities and Justice

1. On 20 December 2024 this matter was referred to the Medical Assessor for an assessment of WPI caused by psychological/psychiatric disorder which occurred on a deemed date of

29 September 2012. 2. Ms Pearson had been working with the respondent since 2007. She experienced a number of traumatic incidents whilst working for the Department of Corrective Services which culminated in an inmate attempting to strangle herself. Ms Pearson's statement was that she was doing a routine 30-minute observation check in the MSU section of Silverwater Women's Correctional Centre on 29 September 2012. The purpose of the observation check was to sight each inmate to ensure that they were conscious and breathing. One particular inmate concerned Ms Pearson and it was the attitude of her colleagues to this particular incident that was causative in the onset of her condition. 3. The Medical Assessor took a history that the nurses responded to questions as to why they were so slow that they were "Catching up" with other people on their way and that other officers were making jokes such as "Oh it's just Natasha. We should have walked slowly." 4. The Medical Assessor had diagnosed a chronic post-traumatic stress disorder in common with the other medical evaluators in the case. 5. The Medical Assessor assessed 19% WPI and made no adjustment for pursuit of s 323 of the 1998 Act.

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 a re-examination was not necessary because the evidence on which the Medical Assessor based his classifications pursuant to the psychiatric impairment rating scale (PIRS) was not challenged, and the issues concerned the interpretation made by the Medical Assessor, in rating each impugned category. Accordingly, a re-examination would not have served any useful purpose.

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 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.

1. As to Ms Pearson's history, the Medical Assessor said:

"Her biological parents raised Ms Pearson but they separated when she was between ten and twelve years old. She was raised by her mother from then on. She has a brother who is doing well. She says that her father was diagnosed as a "sociopath". She is unaware of any history of mental illness in her family. She did not have a happy childhood because her dad was "really abusive". She says that her father sexually abused her from the age of four onwards, which continued until her parents separated. She says that she "rebelled" when she was in school and started drinking and using drugs. She says that she has never been diagnosed with any mental illness."[1]

1. The Medical Assessor recorded Ms Pearson's current treatment regime:

"Ms Pearson is on Venalfaxine 150mg, Lamotrigene 250mg, Quetiapine 25mg, Modafinil, Duromine, and Pantoprazole, medication for diabetes and raised cholesterol. She says she takes insulin for diabetes control. She sees her psychiatrist, Dr Terry Lim, regularly. She has only recently started psychotherapy again. She is also working with an Occupational Therapist through the NDIS."

1. In reporting Ms Pearson's present symptoms, the Medical Assessor said:

"....She says that her appetite is reduced. She gets 'lite and easy' meals

and her carers help her prepare meals. She says that she has started "eating proper" now. She says that she does not always know when she is hungry..."

1. As to Ms Pearson's social activities, the Medical Assessor said:

Ms Pearson is single ....She says that she has carers who come twice or thrice weekly for two to three hours, helping her with organising, helping with shopping, taking her out, and ensuring that there is food in the house. She has a cleaner and a gardener in addition....

She says that she gets on well with her carers. She says she can sometimes go out for a coffee with her mother. She goes to the shops and the chemists with her carers. She can also go to Bunnings and the Pet Shop with her carers. She goes to her psychologist's appointment, which is a twenty-five minute drive. She has a "conditional" driving licence because of reduced concentration. She says she can drive to her psychologist but avoids it when she feels that her concentration is lacking. She does not think that she could drive to a new place. She gets her mother to accompany her if she is going to new places. She does not think that she could use public transport....

She does not shower regularly, but she estimates that she showers a couple of times per week on average. Her occupational therapist has given her visual aids to help her remember to clean her teeth, and she is now brushing her teeth a few times per week. She goes to a hairdresser, she has known for years, but it is not regular. She cuts her own hair generally.

She had put on a lot of weight but has managed to reduce it.

She is learning to make Caesar salad as she likes that dish, but has stopped cooking generally. Her body weight is up and down. She says she does not do much for her daughter and relies on her mother to help. She says she tries to clean her house as much as possible. She has started doing her laundry without her mother's help but needs reminders from her support workers."

1. The Medical Assessor did not make any deduction pursuant to s 323 of the 1998 Act. At [8e] she answered the templated question as follows:

"e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? No."[3]

"a. In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:

1. In considering the opinions of other experts, the Medical Assessor said at [10c]:

"Psychiatrist Dr Jeff Bertucen provided an independent medical examination report dated 25 January 21. He advised that Ms Pearson was suffering from chronic post-traumatic stress disorder. He noted that Ms Pearson had suffered developmental trauma from an emotionally, physically and sexually abusive biological father and, therefore, had developed chronic complex post-traumatic stress disorder. He assessed Ms Pearson to have 22% impairment of the whole person, of which 10% was attributed to the pre-existing condition. He opined that there was a 20% impairment of the whole person from the work related injury.[4]

Psychiatrist Associate Professor Michael Robertson provided an independent medical

examination report dated 25 November 19. He advised that the diagnosis was chronic

post-traumatic stress disorder with prominent dissociative features indicating the presence of complex post-traumatic stress disorder. He assessed Ms Pearson to have a 24% impairment of the whole person. He attributed 10% of that impairment to pre-existing factors, noting that the work-related injury had caused 22% impairment of the whole person.[5]

Psychiatrist Dr Abdal Khan provided an independent medical examination report dated 15 December 22. He advised that the diagnosis was post-traumatic stress disorder with

dissociative features and persistent depressive disorder. He assessed Ms Pearson to

have a 24% impairment, of which he attributed 10% to pre-existing impairment. He stated that there was a 22% impairment from the accepted injury."[6]

1. With regard to the impugned PIRS category for self-care and personal hygiene, the Medical Assessor gave the following reasons in the Table 11.8 PIRS Rating Form:

"As described in the main body of the report, there is mild impairment. She

brushes her teeth a few times a week. She does not shower regularly. She can

go to the hairdresser, only the one whom she has known for years. She has

managed to reduce her weight. She has started doing laundry and tries to clean

1. As to his classification in the travel category, the Medical Assessor said:

"As described in the main body of the report, there is a minor deficit attributable

to the normal variation in the general population. She is not fearful of driving

and is limited because of reduced concentration. She does not visit new places because of reduced concentration. She does not think she can use public transport for the same reason. There is no direct impairment in her ability to travel from the impact of the psychological injury. Concentration is rated separately on PIRS."

1. Ms Pearson submitted firstly that the Medical Assessor had failed to give an allowance for the effects of medical treatment. We were referred to the medication prescribed to Ms Pearson as noted above by the Medical Assessor. It was submitted that it was "quite apparent that her medications were an important part of her treatment and that the Medical Assessor had not considered this issue at all in breach of Chapter 1.32 of the guide."

1. The Medical Assessor had failed to refer to Ms Pearson's reliance on visits by carers two or three times a week, it was submitted, nor did he refer to the assistance that those carers gave such as organising helping with shopping, taking her out, and ensuring there was food in the house. There was no reference made either, Ms Pearson submitted, to the fact that

Ms Pearson has a cleaner. 2. The class 2 rating given did not have proper regard to Ms Pearson's reliance on the carers to ensure a minimum level of hygiene and nutrition, and that accordingly a class 3 rating should have been applied, Ms Pearson argued.

1. Ms Pearson submitted that the class 1 rating assessed by the Medical Assessor did not reflect the facts that he had obtained. She submitted there was "crossover" in that one symptom may affect different categories, giving an example that poor concentration persistence and pace might be responsible for a lack of employability, so that the symptom would be applicable in both categories.
2. Thus, it was submitted that if poor concentration was affecting a person's ability to travel, then that should be taken into account in the travel rating. There was a "fundamental error" in excluding that aspect of Ms Pearson's history when the Medical Assessor was rating the travel category.
3. We were referred to the definition for a class 3 rating, which included the effects of "cognitive impairment."

1. The respondent kindly reproduced the class descriptors for this category.
2. The respondent referred to factual matters noted by the Medical Assessor and submitted that the class 2 rating was open to him. Ms Pearson was engaged in hygiene practices and had an improved diet, it was submitted. Further, the rating aligned with that of Ms Pearson's expert, Dr Bertucen.
3. We referred to Jenkins v Ambulance Service of NSW[7] and Parker v Select Civil Proprietary Limited[8] in support of submissions that the descriptors within the categories for the PIRS are no more than examples, were not prescriptive, and that an appellant had to show more than a mere difference of opinion.

1. As to travel the class 1 rating was open to the Medical Assessor, it was submitted. The first three classes of this category were kindly reproduced. We were referred to the reasoning by the Medical Assessor in the Table 11.8 form, and it was noted that Ms Pearson's experts had also certified a class 2 in this category.
2. We referred to Ballas v Department of Education (State of New South Wales)[9] in furtherance of a submission that conduct could only be assigned to a particular category.
3. It was submitted that the worker's conduct had been characterised by the Medical Assessor as needing to be assessed under the concentration, persistence and pace category, rather than the travel category, to avoid providing an assessment about the worker's concentration in two categories.

1. We were referred to Secretary (Department of Education) v McGrady[10] and Miller v Deloitte Services Pty Limited.[11]
2. The respondent noted that none of the expert medical witnesses had thought it necessary to make an allowance for the effects of treatment and that the medical assessment did not breach the guidelines by not doing so.
3. The respondent concluded by submitting that the Medical Assessor was entitled to give pre-eminence to his clinical observations when rating a worker's impairment and that those observations cannot be underrated. We were referred to Ferguson v State of NSW[12] in that regard.

1. Dealing firstly with the issue regarding medical treatment, the provisions of Chapter 1.32 of the Guides states:

"Where the effective treatment of long term illness or injury results in apparent substantial or total elimination of the claimant's permanent impairment, but the claimant is likely to revert to the original degree of impairment if treatment is withdrawn, the assessor may increase the percentage of WPI by 1%, 2% or 3%. This percentage should be combined with any other impairment percentage, using the Combined Values Chart. This paragraph does not apply to the use of analgesics or anti-inflammatory medication for pain relief."

1. Ms Pearson's submissions were of a general nature and did not with any precision explain the nature of the challenge. It is unremarkable that Ms Pearson's medications were "an important part of her ongoing treatment", which is usually the case where injured people are prescribed medication or indeed are referred for management by specialised health professionals, as has been the case with Ms Pearson. The Medical Assessor had considered her treatment, and it may be assumed that he was aware of the Guideline,[13] and was not of the view that there had been any apparent substantial or total elimination of Ms Pearson's permanent impairment. Moreover, this issue was not raised by either of the experts retained by each party, and we were unable to comprehend the basis for this ground.

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[15] 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 assessor is required to classify each category, and to apply the resulting scores as set out in Chapter 11.[16]
2. The assessment of psychiatric disorder has been considered in a number of cases. In Ferguson v State of New South Wales[17] 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[18]. 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,[19] 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 necessary for the Panel to be satisfied that the assessment by the AMS in this category was erroneous in one of the following ways (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[20] 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 s 327(3) and s 328(2).
2. In Masters v Healthshare NSW[21] Griffiths AJ considered Campbell J's dicta in Ferguson, saying at [35]:

".... [T]he proposition that the Appeal Panel was required to determine whether Dr Smith's assessment was "glaringly improbable" is inconsistent with the observations of Adamson J (as her Honour then was) in Chalkias v New South Wales [2018] NSWSC 1561 at [29], in which her Honour discussed Ferguson (with which I respectfully agree):

'I reject the submission that the Panel's review is confined to cases where the Medical Assessment, or some aspect of it, is 'glaringly improbable'. The submission finds no support in the wording of the WIM Act, which requires only that an error be 'demonstrable' or that there be 'incorrect criteria'. These expressions, which have been the subject of judicial consideration (see above), are to be understood in accordance with their plain meaning. It appears from Ferguson v New South Wales at [24] (Campbell J) that the Medical Panel in its reasons used the expression "glaringly improbable". It would be a misreading of Campbell J's reasons to conclude that his Honour intended to suggest that the expression formed any part of the test for error in the context of ss 327 or 328'."

1. The two categories challenged were self-care and personal hygiene, and travel.

1. The Medical Assessor found a class 2 rating this category, and Ms Pearson argued that a class 3 assessment was more appropriate. The relevant descriptors are set out 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

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. In his Table 11.8 PIRS Rating Form, the Medical Assessor said, as indicated:

"As described in the main body of the report, there is mild impairment. She brushes her teeth a few times a week. She does not shower regularly. She can go to the hairdresser, only the one whom she has known for years. She has managed to reduce her weight. She has started doing laundry and tries to clean the house as much as possible."

1. We have reproduced the comments made in the main body of the Medical Assessor's report above, and would observe that they described additional matters of fact in this category that we find to be relevant.
2. We note that Ms Pearson has been prescribed Duromine, which is an appetite suppressor, and explains her comments that her appetite was reduced and that she had started "eating proper." The Medical Assessor however recorded that Ms Pearson has the help of "carers" to prepare meals and who generally assisted her. They came two or three times weekly for two or three hours to perform various tasks, amongst which were to help to ensure that there was food in the house.
3. These facts, which have not been contradicted, indicate that Ms Pearson has regular support in the form of her carers who visit two to three times per week and assist her with her shopping to ensure she has food. Accordingly, it does not appear that Ms Pearson is able to live independently - a concomitant of a class 2 rating - but rather is unable to live independently without regular support, which she appears to have from her carers. Moreover, the weekly visits by the carers are consistent with the visits described in the class 3 examples.
4. Whilst the respondent submitted that the class 2 rating assessed by the Medical Assessor followed a proper consideration of the history he took, and that therefore Ms Pearson's complaint was no more than a difference of opinion, it is the very history that he took that is consistent with a class 3 impairment. A proper consideration of the history would have required an explanation as to why the Medical Assessor discounted the evidence about

Ms Pearson's carers. On the contrary, there is no indication that the Medical Assessor had any reservations about that history. We are satisfied accordingly that Ms Pearson's condition may properly be described as being consistent with a moderate, class 3 impairment.

1. The Medical Assessor assessed a class 1 rating in this category, which Ms Pearson submitted ought to have been class 3. Table 11.2 provides:

"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. Able to travel without support person, but only in a familiar area such as local shops or visiting a neighbour.

Class 3 - Moderate impairment. Unable to travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment."

1. In his Table 11.8 form, the Medical Assessor's reasons, to repeat, were:

"As described in the main body of the report, there is a minor deficit attributable to the normal variation in the general population. She is not fearful of driving and is limited because of reduced concentration. She does not visit new places because of reduced concentration. She does not think she can use public transport for the same reason. There is no direct impairment in her ability to travel from the impact of the psychological injury. Concentration is rated separately on PIRS."

1. These comments, with respect, demonstrate a misapprehension as to the purpose of the PIRS. Chapter 11.11 of the Guides set out the basis on which the behavioural consequences of a psychiatric disorder are to be assessed:

11.11 Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment:

2. Social and recreational activities (Table 11.2)

4. Social functioning (relationships) (Table 11.4)

5. Concentration, persistence and pace (Table 11.5)

1. Chapter 11.11 also provides that the first three categories (or scales) are described as "activities of daily living."
2. As indicated above, the Tables set out the descriptors by which the impairment in each area is rated. Usually, the evaluation is concerned with whether, and to what degree, a person is able to function, and the descriptors are there to assist the assessing psychiatrist to judge the severity of the behavioural consequence of a person's psychiatric disorder in each category. There are 30 classes of descriptors across the six categories provided by Chapter 11 of the Guides, and only one of those classes is concerned with the psychological reasons for a person's behaviour, and that is within the class 3 descriptors for the travel category - that is; where a person cannot travel away from his/her residence without a support person, the "problems may be due to excessive anxiety or cognitive impairment."
3. We note that the Medical Assessor did not find that Ms Pearson's impairment in this category had been caused by "excessive anxiety or cognitive impairment", but rather by "impaired concentration". Whilst on one view the difference could be regarded as a matter of semantics, if the Medical Assessor had indeed held the opinion that the "impaired concentration" was the same as "excessive anxiety or cognitive impairment", then the descriptor for a class 3 impairment specifically enabled him to have regard to those reasons in making a class 3 assessment. Clearly, there would in that case be no question that the psychological symptoms were properly applicable to this category.
4. Ms Pearson submitted that in all the circumstances she was entitled to a class 3 rating in any event, because she does suffer from cognitive impairment. As noted above, we did not consider that a re-examination was warranted, as the evidence before the Medical Assessor was sufficient to enable the panel to correct his misapprehension. On consideration of that evidence we do not agree that Ms Pearson's impairment is consistent with a class 3 rating.
5. Firstly, in the main body of his report, as indicated above, the Medical Assessor found that

Ms Pearson could sometimes go out for coffee with her mother and that she would go to the shops, the chemist, Bunnings and the Pet Shop "with her carers." He found also that she was able to drive to her psychologist in a 25-minute drive. He recorded that Ms Pearson did not think she could drive to a new place, and that her mother would accompany her if she did. He also recorded that Ms Pearson did not think she could use public transport. 6. Secondly, in her statement of 3 December 2024, Ms Pearson said:[22]

"35. Since my injury, I have struggled to travel anywhere outside the house. I can only travel to familiar places on my own, such as the local shops, the doctors, or my daughter's school. I can drive my car, but only to familiar places and I sometimes need to take breaks and collect myself to gain my bearings. The thought of taking public transport intensifies my anxiety as I would be trapped in a small space with unpredictable people, a feeling I know too well. When I think about being confined to a bus or train, without control makes me immediately feel sick to my stomach, weak, anxious, and about to pass out. I maintain that I struggle to leave the house alone unless I am absolutely forced to.

36. I am required to get assessed on an annual basis to keep my driver's licence as the medication I take impacts my ability to concentrate. The medication would also leave me feeling fatigued. I am unable to drive myself when I take the medication and would struggle with attending the appointments."

1. Thirdly, the opinion of the experts on both sides of the record were the same. On

25 November 2019 Ms Pearson's expert, Associate Professor Michael Robertson assessed a class 2 rating for this category, saying:[23]

"She can only navigate areas that she is familiar with independently otherwise she will require an escort."

1. For the respondent, Dr Abdal Khan also assessed a class 2 rating:[24]

"Ms Pearson is able to travel to familiar places on her own although she

continues to experience significant anxiety, panic and hypervigilance when she leaves her home."

1. Although the expert opinions are now somewhat out of date, they are consistent with the findings of the Medical Assessor, and Ms Pearson's statement from November last year. In all the circumstances we are satisfied that her impairment is consistent with a class 2, mild impairment. She is able to travel without a support person in familiar areas, and her ability to do so takes her out of a class 3 range, on the balance of the evidence. It may well be that her problems in travelling are her cognitive impairment , excessive anxiety, or reduced concentration on account of her psychiatric disorder, but such considerations are not relevant. The evaluation depends on whether a given activity can be performed, and not on the symptoms of the disorder itself.
2. The error demonstrated by the Medical Assessor is firstly that he attempted to attribute psychological reasons, namely impaired concentration, to explain the severity of Ms Pearson's impairment. Secondly, he mistakenly reduced the classification of Ms Pearson's impairment in the misapprehension that his findings as to her psychological symptoms were to be rated separately, when they were not relevant at all.
3. We note the reliance by the respondent on Ballas v Department of Education (State of NSW)[25] and its submission that Ballas is authority for the proposition that if a Medical Assessor assigned conduct within one category when it should have been assigned to another, the Medical Assessor will have taken into account an irrelevant consideration. It can be seen from the above that the Medical Assessor's finding as to Ms Pearson's impaired concentration was itself an irrelevant consideration and, assuming the respondent's submission is correct, there has been no breach of that proposition.[26]
4. We accordingly revoke this classification and substitute a class 2 impairment.

M2 Secretary, Department of Communities and Justice v Leah Pearson

1. The appellant employer raised one issue, that the Medical Assessor had erred in failing to apply the provisions of s 323 of the 1998 Act. We were also referred to Chapter 11.10 of the Guides.
2. The appellant employer referred to Ms Pearson's pre-employment history, which included sexual abuse by her father and her participating in drinking and drug use when at school. It was submitted that the Medical Assessor had failed to give sufficient weight to the "serious and chronic nature of Ms Pearson's pre-existing psychological illness" in finding that there was no deductible proportion.
3. It was clear, it was submitted, that Ms Pearson had suffered from a pre-existing condition from the abuse she endured during her childhood. We were referred to the expert opinion in the case, which included a finding by Associate Professor Robertson, Dr Khan and Dr Bertucen that a deduction of 10% was warranted.

It was submitted further that an asymptomatic pre-existing condition was not a bar to the making of a deduction. We were referred in that regard to Marks v Secretary Department of communities and Justice (No 1) [2021] NSWSC 306 and (No 2) [2021] NSWSC 616.

1. We were further referred to Ms Pearson's statement, in addition to the expert opinion, as the basis for a submission that a deduction of not less than 10% should have been made.

1. Ms Pearson observed that the childhood abuse she suffered ceased when her parents separated when she was 10 - 12 years old, some 10 years before she commenced work with the appellant employer. There was no record of any pre-existing condition until 13 July 2012, some five years after she commenced such employment. Associate Professor Robertson had made his deduction on the basis that she had a vulnerability which, Ms Pearson submitted, was not valid given the terms of Chapter 11.10 of the Guides.
2. Further, Ms Pearson submitted that had an assessment been done in terms of Chapter 10.11 there would have been no deduction because:
   • the childhood trauma had ceased 10 years earlier, and
   • Ms Pearson had been working in various jobs prior to commencing employment with the appellant employer in 2007 and there was no evidence of any medical treatment until 2012.

"(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.

(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence."

"11.10 To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre- existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker's pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below. The injured worker's current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work- related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI."

1. In Elcheikh v Diamond Formwork[27] Schmidt J said at [91]:

"[The Panel] noted, correctly, that the fact that the pre-existing condition had been asymptomatic did not preclude it from contributing to the impairment being assessed. Nor, however, could it be assumed that an asymptomatic condition did contribute to the impairment. Whether or not there had been any contribution had to be determined on the evidence, which included the competing specialist opinions on that matter, as well as various other evidence."

1. In Cullen v Woodbrae Holdings Pty Ltd[28] Beech-Jones J, as he then was, considered the authorities relevant to s 323 and pre-existing conditions, from [39]. He said at [46]:

"...Thus to establish a pre-existing condition for the purposes of s 323(1) there must, at the relevant date, be an actual condition although it may be asymptomatic. A mere predisposition or even a susceptibility is not sufficient to constitute a condition."

1. The evidence in this case goes no further than to suggest that Ms Pearson's childhood experiences may have made her vulnerable to psychological stressors, although there is no evidence apart from conjecture to support even that possibility. Associate Professor Robertson stated:[29]

"There should be 1/10th deduction for the effects of her previous vulnerability - I do not believe there is sufficient reliable evidence to formulate a separate evaluation of WPI prior to employment."

1. Dr Khan did no more than agree with Dr Bertucen's deduction,[30] who said relevantly:[31]

"... I agree with I agree with Professor Robertson's opinion...[who] noted that the exposure to traumatic events in the prison environment "exacerbated the underlying vulnerability to a more dissociative presentation in the light of her childhood history". Professor Robertson took account of this underlying vulnerability in his WPI formulation in which he deducted the appropriate 10%."

1. These opinions may be dismissed on two grounds: firstly, an underlying vulnerability or predisposition does not constitute a pre-existing condition, and secondly, they are based on conjecture or hypothesis and are not supported by the evidence.
2. Accordingly the appellant employer's appeal is dismissed.
3. For these reasons, the Appeal Panel has determined that the MAC issued on 7 March 2025 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

Secretary, Department of Communities and Justice

Secretary, Department of Communities and Justice

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor 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)

As described in the main body of the report, she has moderate impairment. She can tolerate visitors in the house, but not for very long. Because of her lack of socialisation, she has lost contact with some of her friends. She likes spending time with her dog and painting aboriginal artwork. Sometimes, she can go out for coffee with others and to the shops. She also

As described in the main body of the report, there is mild impairment. She has been single since before the injury. She gets on well with her daughter. She is not

as close to her brother but their relationship is not broken. She gets on well with her carers.

As described in the main body of the report, there is severe impairment. Lack of concentration was also apparent during the assessment, impacting all aspects of her life, including driving. She had cognitive problems for a long time, and they have been noted on several occasions by her treating psychiatrist, Dr Lim. She had to look up notes but was able to spell the name of her psychiatrist and was aware of her medication and its dosage. She had difficulty in thinking through her response to questions at times.

opinion that Ms Pearson is totally incapacitated to work.

[10] [2022] NSWPICMP 48.

[11] [2021] NSWPICMP 134.

[12] [2017] NSW SC 887 (23).

[13]14 See Jones v The Registrar Workers Compensation Commission [2010] NSWSC 481 at [50] per James J.

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

[17] [2017] NSWSC 887.

[18] [2015] NSWSC 633.

[19] [2018] NSWSC 140.

[20] [2022] NSWSC 929.

[21] [2025] NSWSC 821.

[25] [2020] NSWCA 86.

[26] See Diaz v Sydney International Container Terminals Pty Ltd [2024] NSWPICMP 437 from [110].

[27] [2013] NSWSC 365.

[28] [2015] NSWSC 1416.