WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; review of Medical Assessment Certificate (MAC); appeal regarding reaching maximum medical improvement; psychiatric impairment rating scale (PIRS) classifications and secondary psychological injury; Held - MAC confirmed.

1. On 14 April 2025, Qube Ports Pty Ltd lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Wayne Mason, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 March 2025.
2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) the assessment was made on the basis of incorrect criteria and contains a demonstrable error.
3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed

1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

1. Mr Masurkun (the respondent worker) made a claim for a primary psychological injury arising out the nature and conditions of his employment. The matter was referred to Medical Assessor Mason who on 14 March 2025 assessed the worker as having a 24% whole person impairment (WPI) relating to a primary psychological injury, and 0% WPI relating to a secondary psychological injury.

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there had been an adequate examination of the worker.

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. Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
2. There are many grounds to the appeal put forward by the appellant. The first is that the Medical Assessor did not expressly comment on the appellant employer's reports and other material attached to the Reply. Secondly, it was argued that if there had been a proper understanding of the medical material then the Medical Assessor would have found that maximum medical improvement (MMI) had not been reached. Thirdly, in relation to the psychiatric impairment rating scale (PIRS) categories of self-care and personal hygiene, travel and concentration, persistence and pace, it was submitted that the Medical Assessor is in error in relation to each of those classifications. Finally, it was submitted that there had not been a proper consideration of a secondary psychological injury.

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 and below,
   • he said on 8 October 2021 he injured his right shoulder whilst securing steel to a flat-bed trailer. He had objected that this work was unsuitable because of his previous shoulder injury. Nonetheless, he was required to throw heavy steel chains across the load to secure it and in the process of doing so, felt a sharp pain. He said that this interfered with his ability to work because of pain and loss of power in his right arm. He attended his general practitioner (GP) at that time, Dr Cuthill, who put him on restricted duties. He said his mood was find and he was not anxious, agitated or depressed. He was still working up to 60 hours per week and sometimes doing 16 hours per day transporting wheat from inland silos to Port Kembla (Page 2);
   • he proceeded to shoulder reconstruction surgery on 2 September 2022 with

Dr Jonathan Hill. He said it helped a little, but he continued to have pain and did not have full range of motion. Subsequent to the surgery, he was commenced on Gabapentin by pain management specialist Dr Ramachandran. At this stage he denied anxiety or depression arising secondary to the shoulder injury and surgery (Page 2); * in January 2023, he was asked to present to work at the new premises. When he did this, he was abused for not presenting to the old premises. He attended the new premises the following day as requested and said he was totally ignored. He was left to his own devices. He said Kylie, the health and safety officer, tried to give him something to do but he was ordered not to do this by a facility manager, Mr Michael Mimosa. Mr Masurkun said no one talked to him or even acknowledged his presence. He described being abused by rehabilitation provider, Ms Jessica Staples because she had failed to attend a joint conference with his doctor, she blamed him for excluding her when in fact she received the same invitation he did. He said he was becoming more and more anxious and afraid of what they might do to him (Page 2); * he said he was then subjected to harassment and denigration by Mr Mimosa and felt humiliated. He said he was afraid of him because he did not know what he might say or do to him next. He said Mr Mimosa was pressuring him to return to truck driving, but he was still on a reduced hours certificate (Page 2); * Mr Masurkun claimed Ms Jessica Staples had put in six falsified return to work plans that him being listed as incapable of driving. He said he had not seen them, and they had not been signed off by his NTD. He was only aware of this because of a consultation with orthopaedic surgeon, Dr Jonathan Hill. He said he was becoming more worried. It made him anxious and depressed. He said when driving to work he would become anxious to the point of nausea. He said he often felt like turning around and going home. He described difficulty sleeping. He was waking through the night with anxious ruminations about what might happen the next day. He became more anxious and depressed as time went on (Page 3); * on 1 March 2023, he went to work ... . Mr Mimosa came in and surprised him. He was not aware he had been doing it. He said he had an immediate panic attack in which he felt breathless; his heart was beating rapidly, he was breathing heavily and felt shaky and sweaty. He said he remembered trying to apologise to the receptionist who had first heard him moaning. He then tried to make his way home but found himself parked at Wollongong Beach. He said he had no memory of the drive. He received a phone call from his wife who was worried out him. He was able to drive him. At that time, he was in a dreadful state. He was tearful, anxious, his heart was pounding and his stomach was churning. He spontaneously added he was worried they would force him to get back into a truck. He had experienced a dissociative episode and said this had never happened to him before. Mr Masurkun said he became depressed and was not enjoying anything and saw little point in living. The depression worsened to the point where he was experiencing regular suicidal ideation and had formulated plans. He attended Dr Wise who was his GP at that time after Dr Cuthill's retirement. He was provided with a medical certificate and referred to psychologist Dr James McIntosh who had consulted with him on five or six occasions. Dr McIntosh provided psychological education and referred him to the use of YouTube videos and a relaxation app through a university website.

Mr Masurkun said this did not provide lasting relief (Page 3); * Mr Masurkun noted the pain associated with his shoulder injury continued and had become disabling. He was referred for participation in a pain management program conducted by Dr Ramachandran. He said during the program he had consultations with a psychologist, Ms Jackie Bloomfield via telephone weekly for about two months. He said the sessions were not really helpful. He had undergone a right suprascapular nerve block at Northwest Hospital in January 2024 which was also not particularly helpful (Page 3); * he had consulted Associate Professor Mark Haber regarding his right shoulder and presented to further surgery at Shellharbour Private Hospital on

5 February 2025. He presented to the interview with his right arm in a sling (Page 4); * Mr Masurkun says he remains anxious. He described being unable to answer the phone and unable to attend appointments unless his wife drives him. He remains terrified he will be forced back to work as a truck driver with Qube Ports. He said because of his shoulder reconstruction he has not passed the fitness to drive test for a heavy vehicle, and he is restricted to light vehicles. He remains very depressed. He said he spontaneously bursts into tears for no apparent reason. He is unable to enjoy any activity. He often thinks about not working or running away from his life. He also described being angry and drinking to excess

(Page 4); * self-care and personal hygiene: Mr Masurkun said he has a shower every four to five days. He showers prior to medical appointments but otherwise does not bother. He changes clothing when he showers. He is not interested in food and has lost weight. He does not prepare his own meals and relies on his wife to do so. It is necessary for her to prompt him to shower and change. His sleep was impaired; he wakes every one or two hours. He is moderately impaired.

Social and recreational activities: Mr Masurkun said he is too anxious to see friends. He said if people visit the house to see his wife, he goes to his room. He said he can say hello to his daughters but otherwise avoids them. He does not go out for coffee or to the shops with his wife. In the past he went to the pub with his friends for a drink once or twice weekly but does not do that now. He is moderately impaired.

Travel: Mr Masurkun said he is too anxious to drive locally alone. He said he could not travel to medical appointments unless driven by his wife. He is unable to use public transport because of anxiety. He said he does not believe he could travel by air. He is moderately impaired.

Concentration, persistence and pace: Mr Masurkun said he has no ability to concentrate. He is unable to read, unable to do a crossword and unable to watch shows on television. He said he cannot persist with tasks. He said he has no confidence to engage in any tasks around the house. He describes significant memory problems. Difficulties with concentration and memory were evident throughout the interview. He would not be able to follow complex instructions. He is moderately impaired.

Employability: Mr Masurkun is incapable of returning to work. He is totally impaired (Page 5);

• He sustained a right shoulder injury while loading steel and having to throw heavy steel chains to secure the load. He was questioned regarding the impact of the injury itself. He acknowledged it caused pain and disability but stated he did not develop psychological symptoms. He was subsequently required to work beyond the restrictions of his certificate of capacity which resulted in a deterioration of his physical condition. In June 2022 he ceased work because of pain and disability and on 2 September 2022 he had shoulder reconstruction surgery. He said at that point his psychological condition had not deteriorated, and he was looking forward to a graduated return to work and eventual resumption of truck driving (Page 6);
• I do not believe that Mr Masurkun sustained a secondary psychological injury following the original shoulder injury on 8 October 2021.

On examination, I diagnosed a severe major depressive disorder and anxious distress. The dissociative event on his final day of work is an indicator of the severity of the associated anxiety. I have also diagnosed alcohol use disorder; his consumption consisted of five or six standard drinks per day (Page 6);

• psychiatrist Dr Anand provided an IME report dated 10 November 2023. He diagnosed major depressive disorder caused by his workplace injury. He assessed WPI at 17% (122335). I am in agreement with the diagnosis but believe the more complete diagnosis includes anxious distress. I have assessed self-care and personal hygiene and social and recreational activities as more impaired. In my opinion he also suffers from an alcohol use disorder.

Treating psychiatrist Dr Victoria Kim provided reports dated 12 September 2023 and 19 March 2024. At initial consultation he was using mirtazapine 45 mg at night prescribed by his GP. He has two daughters and lives with his wife and his 31-year-old daughter. She diagnosed major depression in the context of workplace injury and chronic pain. She recommended continuing consultations with psychologist Mr James McIntosh. She prescribed duloxetine 30 mg to be increased to 60 mg after two weeks and suggested reducing mirtazapine to 30 mg. On 19 March 2024 he was severely depressed. She noted his depression was related to workplace injury and lack of support. She noted he was at risk of

self-harm. She prescribed amitriptyline 100 mg at night, quetiapine 25 mg twice daily and Valdoxan 25 mg at night. Duloxetine had been helpful, but he developed urinary retention. She noted poor memory. I am in agreement with

Dr Kim's diagnosis and assessment. In my opinion he also suffers from an alcohol use disorder.

Treating psychologist Mr James McIntosh provided reports dated 11 April 2023 and 20 June 2023. He noted the presence of suicidal ideation and irritability. He diagnosed major depressive disorder and mild alcohol use disorder. He noted the insurer had declined further treatment. Assessment using PAI indicated significant elevation on the depression scale. I agree with both diagnoses. Alcohol use disorder is more than mild, and the depressive disorder is accompanied by severe anxious distress (Page 8), and

• Self-care and personal hygiene - Class 3: Mr Masurkun said he has a shower every four to five days. He showers prior to medical appointments but otherwise he does not bother. He changes his clothes when he showers. He said he is not interested in food and had lost weight. He does not prepare his own meals and relies on his wife to do so. It is necessary for her to prompt him to shower and change. His sleep is impaired; he wakes every one to two hours. He is moderately impaired.

Travel - Class 3: Mr Masurkun said he is too anxious to drive locally alone. He said he could not travel to medical appointments unless driven by his wife. He is unable to use public transport because of anxiety. He does not believe he could travel by air. He is moderately impaired.

Concentration, persistence and pace - Class 3: Mr Masurkun said he had no ability to concentrate. He is unable to read a newspaper, unable to do a crossword and unable to watch shows on television. He said he cannot persist with tasks. He has no confidence to engage in any tasks around the house. He describes significant memory problems. Difficulties with concentration and memory were evident throughout the interview. He would not be able to follow complex instructions. He is moderately impaired. (Page 13)

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment, but the review is limited to the grounds of appeal on which the appeal is made.
2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
3. Paragraph 1.6(a) of the NSW workers compensation guidelines for the evaluation of permanent impairment (the Guidelines) provides that:

"Assessing permanent impairment involves clinical assessment of the respondent worker as they present on the day of the assessment taking into account the respondent worker's relevant medical history and all available relevant medical information ..."

1. In order to have the MAC revoked, the appellant must demonstrate that the Medical Assessor applied incorrect criteria or that the MAC contains a demonstrable error (the 1998 Act, ss 327(3)(c)-(d)).
2. Campbell J in Ferguson v State of NSW & Ors [2017] NSWSC 857 (Ferguson) set out the relevant principles as:

(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 Parker v Select Civil Pty Ltd [2018] NSWSC 140, Harrison AJ said, "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."
2. We will now turn to each of the Appeal grounds for which the appellant submits error has occurred.

Finding regarding maximum medical improvement (MMI)

1. The appellant complains that the Medical Assessor has failed to properly consider if MMI has been reached. The Appeal Panel do not agree with this submission.
2. The Appeal Panel has considered the medical evidence in this matter. What is apparent is the worker has briefly had psychotherapy, has had regular contact with a psychiatrist and is not taking psychotropic medications due to previous side effects.
3. It is observed that the worker has had had numerous trials of antidepressants. He has had therapeutic doses of Duloxetine (60mg daily), Agomelatine (25mg nightly), Amitriptyline (100 mg nightly), Mirtazapine (45mg nightly) and Desvenlafaxine (50mg per day). Additionally, he has been on other psychotropic medications, including Quetiapine, Chlorpromazine and Diazepam. This illustrates a significant treatment regime within therapeutic ranges that has not resulted in significant improvement.
4. The medical appearance of the worker to the Panel is that he is stable and his condition is entrenched. There is no obvious indication for ECT or rTMS and in any event, if these are treatments not desired by a patient they are not something that can or should be compelled. The Panel, in particular, observes that ECT, in circumstances where it has the potential to cause irreversible memory impairment is not 'reasonable treatment' in circumstances where the patient is not a willing participant.
5. The Panel observes that the only medical opinion against MMI being reached is Dr Lugg and his opinion is somewhat guarded.
6. After considering the evidence, the Panel finds that the worker's condition is well-stabilised. The Panel finds that the worker has reached MMI using the criteria of having been

well-stabilised and the condition being not likely to change significantly over the next 12 months in his impairment regardless of medical treatment or no medical treatment. 7. The Medical Assessor was in a unique position to be able to consider, after a though examination of the worker and the treating material before him, if MMI has been reached. This does not require an exhaustive analysis but rather a reliance on forensic skill and observation.[1] The Medical Assessor has not fallen into error in this regard.

Failure to refer to the appellant's medical material

1. It is apparent on that the Medical Assessor discusses the IME report relied upon by the worker of Dr Anand (wherein Dr Anand assessed 17% WPI), as well as various reports of the worker's treating professionals, Dr Victoria Kim (psychiatrist) and Mr James McIntosh (psychologist). The Medical Assessor failed to engage with the medical opinions of the consultant IME psychiatrists qualified on behalf of the employer (Dr Nagesh and Dr Lugg).
2. Whilst is observed that it is preferable for the Medical Assessor to clearly explain why his opinion differs from the medical opinions relied upon by the parties, it is not necessary.
3. The Appeal Panel has considered this appeal ground which appears to be predicated upon the Medical Assessor's finings regarding a secondary psychological condition (which the Panel will address separately).
4. In this respect, the Appeal Panel considers the Medical Assessor is entitled to rely upon his observations in the clinical examination to form his opinion. It is clear that the Medical Assessor clearly understood that there were differing views and formed his opinion based upon his own assessment. The Medical Assessor's reasoning process does not need to be exhaustive, merely adequate. Whilst it would have been preferable for the Medical Assessor to refer to the material, the Appeal Panel can find no error.

1. The appellant appeals in respect of 4 classes of PIRS categories.

1. Table 11.1 of the Guidelines provides the following categories for Self-care and personal hygiene:

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

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

1. The appellant submits that a Class 2 classification should have been made and not a Class 3.
2. The Medical Assessor takes a history that the applicant showers every four to five days, has limited changing of clothes and also does not cook or prepare meals. His wife prompts him to shower and change.
3. Looking at that history, the Appeal Panel considers that a classification of Class 3 is quite appropriate. Consistent with a moderate impairment is the history taken by Dr Nagesh of infrequent showers which are prompted by his wife representing inconsistent personal hygiene. Dr Lugg made no rating because he didn't consider that MMI had been reached but he observed that the applicant's wife cooks food for him, and he only showers once a week, and rarely brushes his teeth.
4. Based upon the histories which have been recorded in the documents provided to the Medical Assessor, and the history taken by the Medical Assessor himself, the appeal panel can find no error in respect of a class 3 classification.

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

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

Class 3: Moderate impairment: Cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.

1. The appellant submits that a Class 1 classification should have been made and not a Class 3.
2. In respect to the travel, the Medical Assessor gave a Class 3 on the basis that he was too anxious to travel locally alone. He was unable to attend medical appointments unless driven by his wife. The applicant's statement is consistent with the history of difficulty in travelling and being driven everywhere by his wife. Consistent with this history, Dr Lugg states that the applicant normally travels with his wife.

The Appeal Panel can find no error in relation to a Class 3 assessment in relation to travel.

Class 2: Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to 30 minutes, then feels fatigued or develops headache.

Class 3: Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.

1. The appellant submits that a Class 2 classification should have been made and not a Class 3.
2. In relation to concentration persistence and pace, the Medical Assessor reported the worker having difficulty reading a newspaper, doing a crossword, watching TV shows, due to difficulty in concentration. On observation, the Medical Assessor described the worker having difficulties with concentration and memory. Such a history is consistent with the Class 3 assessment.
3. Dr Anand, whilst he assesses a Class 2, also observes that the applicant does not do any reading because of his poor concentration and is unable to watch shows on television. This, is also not inconsistent with the class 3 classification.

1. The Medical Assessor assesses a Class 5 impairment. This is consistent with the assessment by Dr Nagesh. There is no doubt that the applicant is impaired and has significant symptoms across the global range.

The Appeal Panel observes that no alternate rating is suggested in this appeal but only that a forensic evaluation should occur. The Appeal Panel does not see there is any need for further examination of the applicant on the basis that the medical evidence suggests a Class 5 impairment based on the history provided and the workers symptoms.

1. The appellant complains that the Medical Assessor has not properly considered the secondary psychological injury arising from a separate physical injury to his shoulder. In particular the appellant refers to alcohol consumption described by Dr Nagesh in his report dated the 22 June 2023 which suggests that the worker had a problem with alcohol consumption before he suffered the alleged primary psychological injury in this matter on

1 March 2023. 2. Chapter 1.22 of the Guidelines provides that a primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work-related condition (e.g. depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. Impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined. 3. In Mercy Connect Limited v Kiely [2018] NSWSC. Harrison AsJ described a two-step process by which a Medical Assessor could abide the mandate of s 65A(2) to have no regard to impairment or symptoms from a secondary psychological injury. The first step 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 worker's permanent impairment due to the secondary psychological injury by reference to the same clauses and then deduct the latter from the former. The appellant complains that the Medical Assessor failed to follow this process and in doing so has made a demonstrable error. 4. In Ausgrid Management Pty Ltd v Fisk the Medical Appeal Panel referred to the steps outlined in Kiely No 2 and said:

"In this case however, that cannot be done. In this case, with the possible exception of one element of the respondent's function, the impairments of function and symptoms the respondent has from both his primary psychological injury and secondary psychological injury are completely intermingled. His impairment and symptoms from one injury are indivisible from the impairment and symptoms from the other injury and cannot be disentangled. ..."

1. The Appeal Panel has considered the treating notes from the applicant's GP in relation to this issue. What is quite clear is that the applicant has seen the same GP regularly from 2020 onwards, it is clear there is no record of any psychological symptoms until 2023. Whilst there are entries in relation to pain there is no entry that suggests that the applicant was describing psychiatric or psychological treatments the symptoms requiring treatment arising from the physical condition. It's only in 2023 that we see documentation of psychiatric or psychological symptoms. This is a significant time after the physical injury on 8 October 2021. A treatment plan then follows those psychiatric symptoms, the treatment plan being responsive to a change in a qualitative and material change in the presenting symptoms as reported by the patient.
2. The treating notes clearly support the predominance and emergence of psychological sequalae in relation to the pleaded psychological injury and not from the physical injury.
3. The Medical Assessor has taken the time to try to clearly delineate and has assessed separately the worker's permanent impairment due to the secondary psychological injury by reference to the same clauses and then deduct the latter from the former. The Medical Assessor at page 11 of his report has assessed each PIRS class and assessed a 0% WPI. The Appeal Panel can find no error in this approach.
4. The Appeal Panel notes the appellant's complaints regarding problems with alcohol consumption before he suffered the alleged primary psychological injury. The Appeal Panel accepts that some part of the symptoms of the respondent's conditions, major depressive disorder with anxious distress and alcohol use disorder, is due to a secondary psychiatric condition, or conditions, arising from his response to pain and physical impairment. The symptoms and impairment are impossible to disentangle given that they are the same conditions. The respondent's condition and impairment mainly arise from his primary condition. Had the secondary condition not existed, his condition and the associated impairment now would be the same. For these reasons, the Panel assigns the entire impairment to the respondent's primary condition.
5. For these reasons, the Appeal Panel has determined that the MAC issued on 14 March 2025 should be confirmed.