WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment by Medical Assessor of a psychological injury under the psychiatric impairment rating scales (PIRS); appeal on the grounds of availability of additional relevant information; assessment made of the basis of incorrect criteria and demonstrable error; financial records of the respondent worker to be received on appeal; relevant to assessment of employability, travel and, social and recreational activities; appeal in respect of assessments in the PIRS scales of self-care and personal hygiene, and concentration, persistence and pace and employability; Appeal Panel satisfied error in assessment of self-care and personal hygiene, and concentration, persistence and pace, and employability; respondent worker re-examined. Held - Medical Assessment Certificate revoked.

1. On 4 July 2025 Randstad Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ash Takyar, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 6 June 2025.
2. The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
   • availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
   • the assessment was made on the basis of incorrect criteria, and
   • the MAC contains a demonstrable error.
3. The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
4. Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
5. The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed

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

1. Shannon Johnstone (Ms Johnstone/respondent) sustained a psychological injury deemed to have occurred on 18 May 2023 in her employment as a safety manager with the appellant.
2. The appellant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) dated 7 February 2025 in which she claimed weekly benefits and lump sum compensation in respect the psychological injury.
3. The matter was referred to Dr Ash Takyar, Medical Assessor, for assessment of whole person impairment (WPI) of a psychiatric/psychological disorder as a result of the injury deemed to have occurred on 18 May 2023.
4. The Medical Assessor examined the respondent on 30 April 2025 via video link and assessed 22% WPI in respect of the psychological injury deemed to have occurred on 18 May 2023.

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. The Appeal Panel issued a Direction dated 7 November 2025 as follows:

1. The appellant is to lodge and serve submissions by 21 November 2025 addressing the following:

(a) Whether the appellant is satisfied that the Notice to Produce (NTP) issued on 3 March 2025 has been complied with following the production of the respondent worker's bank and credit card records.

(b) If the appellant does not consider that the NTP has been complied with:

(i) whether the Appeal Panel has the power to issue a direction on the respondent worker to produce the documents identified in the NTP, and if so, the appellant is to identify the basis for such power, and

(ii) if the Appeal Panel does not have the power to issue a direction on the respondent worker to produce the documents identified in the NTP, whether the Appeal Panel should remit the matter to the President to refer to a member of the Commission to determine the appellant's application that the Commission order, pursuant to s 49 of the Personal Injury Commission Act 2020, that the respondent worker comply with her obligation pursuant to Rule 41 of the Rules or otherwise that it direct the respondent worker to provide the documents requested by the appellant's Notice for Production.

(c) If the appellant is satisfied that the NTP has been complied with and seeks to have some or all of the bank records produced by the worker admitted as fresh evidence, the appellant is to identify the documents it seeks to have admitted and make submissions addressing the probative value of such documents and, in particular, whether the fresh evidence is of such probative value that it is reasonably clear that it would change the outcome in this case.

1. Respondent worker to file any submissions in reply by 28 November 2025.
2. At the conclusion of the time allowed for submissions the Appeal Panel will determine whether any fresh evidence is to be admitted and whether the respondent worker is to be re-examined by a medical member of the Appeal Panel".
3. The appellant submits that Ms Johnstone should be re-examined by the Medical Assessor, who is a member of the appeal panel
4. As a result of that preliminary review, the Appeal Panel determined that Ms Johnstone should undergo a further medical examination in light of the fresh evidence.
5. On 1 December 2025 the Appeal Panel invited further submission from the parties in advance of the re-examination by Medical Assessor Hong.

1. Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
2. The admission of 'fresh evidence' into an appeal was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCC PD7 (Ross). The principles set out in Ross are relevant and have been applied to the admission of fresh evidence by an Appeal Panel.
3. In Ross the Deputy President stated:

"A number of authorities have considered the tests at common law for the introduction of fresh evidence in appellate proceedings before the Courts. The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to the Appellant at the time of the original proceedings or could not have been discovered at that time with reasonable diligence, and secondly that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case (Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435; McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418; Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632). These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case."

1. It has been established that evidence should not be admitted by a Medical Appeal Panel unless it is of "substantive prima facie probative value". In Lukacevic v Coates Hire Operation Pty Ltd [2011] NSWCA 112 at [78] Hodgson JA said:

"...in my opinion it would be reasonable for an AP not to admit evidence raising such a dispute unless that evidence had substantial prima facie probative value, in terms of its particularity, plausibility and/or independent support. Otherwise, simply by raising such a dispute, going to a matter relevant to the correctness of the certificate, a worker could put the AP in a position where it had to have a further medical examination conducted by one of its members. I do not think this would be in accord with the policy of the WIM Act."

1. The appellant seeks to admit the following evidence:

(a) Notice for Production dated 3 March 2025;

(b) emails regarding Notice for Production dated 3 March 2025, 13 June 2025, 18 June 2025 (x 2), 23 June 2025 and 2 July 2025, and

(c) tax records of Ms Johnstone dated 30 June 2023 and 30 June 2024.

1. Ms Johnstone seeks to admit the following evidence:

(a) bank statements from Bankwest for the period from May 2023 to June 2025;

(b) entry records of applications she has made through Seek Limited (Seek), and

(c) tax return for the financial year 1 July 2023 to 30 June 2024.

1. The appellant states in the submissions attached to the Application to Appeal Against the Decision of a Medical Assessor that additional relevant information on which the appellant bases this appeal is not yet available. The Appeal Panel notes that since those submissions were filed, Ms Johnstone filed the bank statements from Bankwest for the period from May 2023 to June 2025, entry records of applications she has made through Seek and her tax return for the financial year 1 July 2023 to 30 June 2024.
2. The Appeal Panel notes as background that a Notice for Production was issued by the appellant on 3 March 2025 seeking the following documents:

"2. All tax returns, PAYG payment summaries, assessment notices, tax stamps, depreciation schedules, receipts, wage slips, financial records (including bank books, bank statements, building society and credit union passbook and statements, cheque butts, loan application and repayment documents, credit card receipts and statements) and any other documents which relate to the earning of income or receipt of money for the period 18 May 2023 to the date of this notice.

1. All documents including resumes, CVs, correspondence (including letters, text messages, emails et cetera), advertisements, file notes et cetera relating to any application for employment made by the Applicant from 18 May 2023 to the date of this notice.
2. All medical and other documents/reports relating to your injury which are not already contained in the Application to Resolve a Dispute."
3. In the Reply filed on 3 March 2025 the appellant raised the following issue: "The Respondent has issued a Notice for Production on the Appellant for financial records and any records relevant to the Applicant's job seeking, and will seek to rely upon such documentation that is produced by the Applicant in compliance with that Notice."
4. No objection to the Notice was raised in accordance with the rule 41(3) of the Personal Injury Commission Rules 2021 (Rules). The appellant submits that Ms Johnstone failed to produce copies of the relevant documents in contravention of Rule 41(1) of the Rules.
5. The appellant stated as at the time of preparing these submissions that the only documents provided by Ms Johnstone were Notices of Assessment for the financial years ending 30 June 2023 and June 2024. These Notices of Assessment provide no details of the source of income or nature of any deductions.
6. The appellant submits that the documents requested, are, on their face, relevant to the Psychiatric Impairment Rating Scales (PIRS) of employability, travel, social functioning and social and recreational activities.
7. Ms Johnstone filed and served the bank statements from Bankwest for the period from May 2023 to June 2025, entry records of applications she has made through Seek and the tax return for the financial year 1 July 2023 to 30 June 2024 with her submissions dated 26 November 2025. The appellant made submission in relation to this material in the supplementary submissions dated 16 January 2026. The appellant in those submissions maintains that Ms Johnson has failed to comply with its Notice for Production but failed to identify the basis on which the failure to comply was alleged.
8. The Appeal Panel notes that the appellant in the submissions dated 21 November 2025 no longer appears to seek an order that, failing compliance with the Notice for Production, the Commission order a direction be issued on the Ms Johnstone for the records sought in that Notice.
9. The appellant submits that the fresh evidence is relevant to the PIRS categories of employability, travel, social functioning and social and recreational activities.
10. The Appeal Panel accepts that the evidence filed by Ms Johnstone was not available to the appellant until it was provided by Ms Johnstone on 25 November 2025. This evidence on which the appellant relies could not reasonably have been obtained before the examination by the Medical Assessor on 30 April 2025 because Ms Johnstone had failed to comply with the Notice for Production issued on 3 March 2025.
11. The Appeal Panel considers that the Notice for Production and the emails regarding Notice for Production dated 3 March 2025, 13 June 2025, 18 June 2025 (x 2), 23 June 2025 and 2 July 2025 provide background material and have no probative value.
12. Ms Johnstone submits that the additional material provided, namely the bank statements from Bankwest, would not cause the Medical Assessor's assessment to be altered. In that regard, she submits that that ground of appeal based on additional relevant information must fail.
13. The Appeal Panel is satisfied that the additional material provided, namely, the bank statements from Bankwest, records from Seek, Australian Taxation Office (ATO) assessments and tax return for the financial year ending 30 June 2024 are of probative value and could change the outcome of the case. The Appeal Panel notes that in Ross reference was made to the fundamental demands of fairness and justice in the instant case. In this case, the failure of Ms Johnstone to comply with the NTP resulted in the appellant being unable to access the material that it sought to put before the Medical Assessor.
14. The Appeal Panel determines that the following evidence should not be received on the appeal:

(a) Notice for Production dated 3 March 2025, and

(b) emails regarding Notice for production dated 3 March 2025, 13 June 2025, 18 June 2025 (x 2), 23 June 2025 and 2 July 2025.

1. The Appeal Panel determines that the following evidence should be received on the appeal:

(a) tax records of Ms Johnstone dated 30 June 2023 and 30 June 2024;

(b) bank statements from Bankwest for the period from May 2023 to June 2025;

(c) entry records of applications made through Seek, and

(d) tax return for the financial year 1 July 2023 to 30 June 2024.

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, and the fresh evidence referred to above in paragraph 35.

1. Medical Assessor Michael Hong of the Appeal Panel conducted an examination of the worker on 25 February 2026 and reported to the Appeal Panel.

1. The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

1. Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
2. The appellant's submissions include the following:

(a) Ground One - availability of additional relevant information. The additional relevant information on which the appellant bases this appeal is not yet available.

(b) As at the time of preparing these submissions, the only documents provided by Ms Johnstone are Notices of Assessment for the financial years ending 30 June 2023 and 30 June 2024.

(c) As will be apparent from the list of documents requested, they are, on their face, relevant to the PIRS categories of employability, travel, social functioning and social and recreational activities.

(d) Ground Two - self care and personal hygiene. The Medical Assessor has placed Ms Johnstone in Class 3 for self-care and personal hygiene.

(e) In a report dated 24 May 2024, Dr Ben Teoh considered that Ms Johnstone fell in Class 1 for self-care and personal hygiene on the basis that she had been "lacking motivation to care for herself". The Medical Assessor, at page 12 of the MAC notes that Ms Johnstone alternates between living by herself (with her dog) and on alternate weeks looking after her two children aged 10 and 8. It is reported that the Ms Johnstone drops her children to school and picks them up, prepares dinner for them and cooks although she said she forces herself to do so. She is able to attend to grocery shopping.

(f) Contrary to a Class 3 assessment, Ms Johnstone does live independently without regular support. She prepares her own meals and there is no suggestion that a family member or community nurse is required to visit two or three times a week to ensure the minimum level of hygiene and nutrition.

(g) On this basis the Medical Assessor has incorrectly applied criteria being the PIRS in relation to self-care and personal hygiene or, given the clear discrepancy between the descriptors and the class provided, has made a demonstrable error.

(h) The Medical Assessor's description is consistent with the view of Dr Teoh that any impairment in Ms Johnstone's self-care and personal hygiene is due to a lack of motivation as, when motivated (by having to look after her children), she can attend to her self-care and hygiene.

(i) Ground Three - concentration, persistence and pace. The Medical Assessor has placed Ms Johnstone within Class 3 under the PIRS category of concentration, persistence and pace. It is apparent from the Medical Assessor's description in relation to the class, that he has based his assessment solely on what Ms Johnstone told him on examination. In this regard the Medical Assessor has failed to consider the objective evidence that was available to him and the evidence summarised by Dr Yajuvendra Bisht in his report of 3 October 2024 (Reply p 20).

(j) Dr Bisht observed that this level of functioning is inconsistent with the concentration difficulties of which Ms Johnstone complained to him. Dr Bisht, unlike the Medical Assessor, properly considered Ms Johnstone's complaints in the context of all of the available evidence; the Medical Assessor was required to do likewise and made a demonstrable error in failing to do so. As the opinion of Dr Bisht formed the basis of the medical dispute before him, the Medical Assessor made a demonstrable error in failing to consider that medical dispute.

(k) Ground Four - employability. The Medical Assessor placed the Ms Johnstone in Class 5 for employability on the basis that she did "not present with capacity from a psychiatric stance for any employment." He had before him documents, that showed that, until 4 October 2023, Ms Johnstone was fit to work full time with the only restriction being she not work for her pre-injury host employer. The evidence also disclosed that Ms Johnstone had been unwilling to apply for, or accept a role, that did not fit in with her schedule of looking after her children. This evidence is inconsistent with an assessment that Ms Johnstone has no capacity for employment.

(l) In failing to provide reasons for discounting this evidence and in light of the dispute identified in the available evidence, that the Medical Assessor made a demonstrable error and/or incorrectly applied criteria.

(m) Ground Five - impairment that does not result from an injury. It is apparent from the medical certificates in both the ARD and Reply that Ms Johnstone experienced a deterioration in her condition after 4 October 2023. As noted in the report of Dr Bisht and, tangentially, in Ms Johnstone's own statement (ARD p 3 and p 4), in addition to impairment as a result of an injury, she experienced a deterioration due to financial difficulties resulting from her not obtaining employment. That is, she is depressed because she is unemployed. This was the basis of determinations that incapacity was not "as a result of an injury". The Medical Assessor has failed to consider this medical dispute that was before him.

(n) Orders sought - the MAC be revoked and, following assessment by a Medical Assessor, who is a member of the Appeal Panel, a new MAC is issued.

1. The appellant's supplementary submissions dated 21 November 2025 included:

(a) there has been incomplete compliance with the NTP as has been identified by the appellant. There has been no response to the appellant's email of 27 August 2025, nor to its submissions referencing that request dated 5 September 2025.

(b) Neither the Appeal Panel nor the President have the power to compel compliance with the NTP. Section 40 of the Personal Injury Commission Act 2020 (PIC Act) expressly related to directions for production and so is not relevant.

(c) Rule 41(6) of the PIC Rules provides for the referral to the Authority for prosecution and/or an order for costs. The appellant notes that each party must bear his or its costs of these proceedings.

(d) In response to the implicit question of the Appeal Panel as to how it is to approach the Ms Johnstone's non-compliance with the NTP, the Appeal Panel must assume, not only that the documents that Ms Johnstone failed to produce do not support her opposition to the appeal but, further, as there is no entitlement to claim privilege over the documents and it is an offence not to have provided them, that the further evidence would support the appellant's contentions on appeal.

1. The appellant's supplementary submissions dated 16 January 2026 included:

(a) the appellant relies on its previous submissions and maintains that Ms Johnstone has failed to comply with the NTP.

(b) Since the submissions of 21 November 2025, Ms Johnstone made submissions on 28 November 2025 objecting to the appellant's request for full compliance with the NTP. Ms Johnstone with those submissions produced line entry records of applications she has made through Seek Limited (Seek) and her tax return for the financial year 1 July 2023 to 30 June 2024.

(c) The Seek records show that both before and after her injury, Ms Johnstone applied for over 300 jobs through Seek alone. Because of the formatting, it is not possible to read many of the dates of the applications to work out when each of them was made, but more than half of the applications were made after her injury.

(d) Ms Johnstone has applied for roles throughout the period when she was certified as having no, or very limited, work capacity (see ARD p 82 to p 101).

(e) The complete nature of the roles and the strength of any application is not known, but it is clear from the limited descriptors available that Ms Johnstone has applied for national roles, regional roles, general manager and senior management roles. The last visible date of an application is 14 October 2024 when Ms Johnstone applied for a role the title of which started "Senior HSE". Further applications were made thereafter.

(f) The Seek records demonstrate that Ms Johnstone believed herself to have capacity to work in very senior work health and safety roles.

(g) The Seek records are inconsistent with a certification of "no work capacity", inconsistent with the Medical Assessor's assessment of Class 5 for the PIRS category of employability, and inconsistent with the Medical Assessor's assessment of Class 3 for PIRS category of concentration, persistence and pace.

(h) The 2023/2024 tax return show that:

(i) Ms Johnstone travelled 4,800 kilometres for work related purposes;

(ii) $2,750 was claimed for a work-related conference;

(iii) $300 was claimed for a compulsory work uniform;

(iv) $2,463 for depreciation and capital allowance tools (an office running cost), and

(v) $1,524.66 for information (an office running cost).

(i) As Ms Johnstone's injury and cessation of work pre-dated this financial year, either Ms Johnstone was working during that financial year, contrary to her assertions in the context of her claim for compensation or Ms Johnstone has claimed work related expenses to which she was not entitled.

(j) In either case that an issue arises as to Ms Johnstone's credit.

(k) On 24 May 2024 Dr Teoh reported Ms Johnstone presented with significant depressive symptoms and considered she was unable to work (ARD p 29 to p 35); however, her tax returns for the same year evidence an ability to drive 4,800 kilometres for work and attend a conference.

(l) The tax return is inconsistent with the PIRS category assessments made by both Dr Teoh and the Medical Assessor for travel, concentration, persistence and pace and employability.

1. Ms Johnstone's submissions include the following:

(a) Ground 1 - additional relevant information which was not available and which could have been reasonably obtained before the MAC. A Notice to Produce was issued on Ms Johnstone dated 3 March 2025 and on 9 July 2025 she provided her solicitors with her bank statements from Bankwest covering the period from May 2023 to June 2025. Those bank records were provided to the appellant's legal representative on 9 July 2025. The bank records of Ms Johnstone are attached at the end of this appeal document.

(b) In that regard the appellant's request for financial records (in so far as they relate to travel) has now been satisfied.

(c) In the MAC dated 6 June 2025 under the heading "Present Symptoms" the Medical Assessor states "this history was obtained with respect to the last two months, unless otherwise stated". He thereafter goes on to record the history of present symptoms and on page 5 of the MAC states "a history was obtained of her typical daily routine over the last two months".

(d) At page 6 of the MAC the Medical Assessor records the history that prior to the injury, Ms Johnstone visited Wagga Wagga every month to see her mother, sisters, nieces and nephews but also that she hasn't been to Wagga in about two years.

(e) Any analysis of Ms Johnstone's bank records in relation to travel needs to be approached with caution. The Medical Assessor's reference to taking a history of symptoms in the last two months is appropriate because the Guidelines provide that the WPI assessment is to be determined as the worker is on the day of the assessment (paragraph 1.6 of the Guidelines).

(f) In the bank records from Bankwest in the period for two months prior to the date of examination with the Medical Assessor, there is only recorded transactions taking place within suburbs including Casula, Leppington, Ingleburn and Prestons. These suburbs are within a 20-minute radius of Ms Johnstone's home address at Leppington. Any trips that she did take to areas such as this, would constitute limited driving activities. At page 6 of the MAC the Medical Assessor records a history of Ms Johnstone travelling in a limited manner and taking trips that are only a maximum of 20 minutes away.

(g) Thereafter the Medical Assessor on page 13 of the MAC records a Class 2 for travel and he notes in the table limited driving of about 20 minutes distance only.

(h) The additional material provided, namely, the bank statements from Bankwest, do not cause the Medical Assessor's assessment to be altered. In that regard it is submitted that that ground of appeal based on additional relevant information must fail.

(i) Ground 2 - allegation of incorrect criteria or demonstrable error in assessment of self-care and personal hygiene. The Medical Assessor assessed Class 3. The appellant states that because Ms Johnstone lives independently the assessment of Class 3 is an error.

(j) The appellant's argument would require a strict adherence to what is listed in the examples as this is not correct. The PIRS Guidelines provide guidance by way of examples only. The Medical Assessor is required to exercise his clinical judgement in determining the classes of PIRS. In Glenn William Parker v Select Civil Pty Limited [2018] NSWSC 140 (Parker) AJ Harrison said at [65] and [66]:

"In Ferguson v State of New South Wales [2017] NSWSC 887 at [23], Campbell J cited with approval NSW Police Force v Daniel Wark [2012] NSWWCCMA 26 ('Wark'), where it is stated at [33]: '... the pre-eminence of the clinical observations cannot be understated. The judgement 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 ...' 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...."

(k) On page 12 of the MAC under his reasoning for his Class 3 rating that the Medical Assessor provided extensive detail and reasoning and set out that Ms Johnstone's activities essentially revolved around doing things only when her children were with her.

(l) In the bank statements of Bankwest the last transaction at Wagga Wagga is in September of 2023. The Medical Assessor records that Ms Johnstone stated she hadn't been to Wagga Wagga "in about two years" which is consistent with the bank records.

(m) Ground 3 - Concentration, persistence and pace - the Medical Assessor rated Class 3. The objective evidence referred to by the appellant is the opinion of Dr Bisht provided in his report of 3 October 2024. This is not objective evidence. Dr Bisht does not provide a PIRS rating assessment of concentration, persistence and pace. His comments about managing finances and providing care for her children are made in response to a question about the certification provided by the nominated treating doctor. Dr Bisht states Ms Johnstone can function independently including procuring items for living and caring for her children. However, in the same report Dr Bisht states that Ms Johnstone should be provided with domestic assistance by the insurer. As such his opinion is ambiguous and little weight can be attached to it.

(n) The appellant demonstrates no error in the Medical Assessor's assessment but rather simply complains that the Medical Assessor's assessment differs to that of Dr Bisht. The appellant simply seeks to dispute matters of clinical judgement made by the Medical Assessor and this cannot be demonstrated to be an error or the application of incorrect criteria.

(o) The Medical Assessor had before him all of the medical and factual medical material and formed his own conclusion in line with his own clinical expertise. The Medical Assessor is not required to accept the opinions of other doctors.

(p) In NSW Police Force v Wark M1-005236/12 (Wark) the Medical Appeal Panel, relying upon Pitsonis, said at [32]:

"The question of the classification under the PIRS scale is very much for the AMS after a balancing of all of the information before him. There can be some grey areas in which other minds might ascribe a higher or lower rating, but unless a glaringly improbable categorisation has been made, or it can be demonstrated that an AMS was unaware of significant factual matters, the assessment is very much a matter for him/her based upon clinical experience and the assessment of all of the material before him."

(q) Ground 4 - employability - the Medical Assessor rated a Class 5 for employability as at the "current time". The appellant's reference to documents up until 4 October 2023 cannot be relevant now. Documents and events allegedly occurring up until October 2023. The relevance of any such events up until October 2023 is now minimal given the passage of time.

(r) In the report of dated 3 October 2024, Dr Bisht states "the client described that she continues to have psychological symptoms and that they have worsened since our last appointment" (that last appointment was on 20 September 2023 after which Dr Bisht wrote an earlier report dated 19 October 2023). In light of that statement by Dr Bisht, the reference to events of October 2023 by the appellant is unclear.

(s) The appellant's argument at its highest is simply a disagreement of medical opinion.

(t) Ground 5 - impairment that does not result from an injury - the argument on this ground of appeal is difficult to understand. The medical dispute referred to the Medical Assessor to determine was set out in the Amended Referral for Assessment of Permanent Impairment dated 8 April 2025.

(u) That referral listed the dispute as per the standard matters to be assessed for a WPI dispute. Dr Bisht in his report dated 3 October 2024 diagnosed a major depressive disorder and he opined that condition directly related to the workplace injury. Dr Bisht further stated: "her inability to secure employment and perceived damage to her reputation have exacerbated her condition, reinforcing the connection between her current symptoms and her work-related injury."

(v) Further in the report of dated 3 October 2024 Dr Bisht tsates: "based on the information provided, Ms Johnstone continues to experience significant psychological symptoms directly related to her workplace experiences" and "Ms Johnstons present psychological condition is directly related to the injury she suffered during her employment."

(w) Dr Bisht, the appellant's qualified medico-legal doctor, does not himself support the appellant's argument. This submission should not have been made by the appellant.

(x) The Medical Assessor at page 7 of the MAC diagnoses a major depressive disorder and generalised anxiety disorder arising from the workplace injury. This ground of appeal has no merit and should be rejected.

(y) The MAC should be confirmed with the assessment of 22% WPI.

1. Ms Johnstone's submissions dated 28 November 2025 include:

(a) Ms Johnstone attaches customer copy of 2023-2024 tax return and an email from Seek Ltd dated 1 July 2025 and a schedule of job applications provided by Seek.

(b) The Direction of the Commission dated 7 November 2025 requested the appellant employer either:

(i) advise if it did not believe that NTP had been complied with. And if not to advise whether the Appeal Panel should remit the matter back to a Member for further consideration of the NTP; or

(ii) advise if it was satisfied that the NTP had been complied with and if so, then identify any documents sought to be admitted as fresh evidence and submit on the probative value of those documents.

(c) In its submissions the appellant does neither. The appellant merely invites the Appeal Panel to assume that the documents it alleges have not been produced do not support the opposition to the Appeal. The appellant's submissions are inadequate and devoid of any genuine attempt to engage with the issue about the NTP documents.

(d) The NTP served by the appellant on 3 March 2025 requested financial records and documents relating to the earning of income or receipt of money, documents relating to Applications for Employment and in item No 4 "all medical and other documents/reports relating to your injury which are not already contained in the Application to Resolve a Dispute". Item No.4 in the schedule is illogical and cannot be responded to.

(e) Ms Johnstone has now provided her job seeking data that Seek have provided to her. Those job seeking records appear to disclose applications made for employment from January 2023 to July 2024.

(f) The Medical Assessor records in his MAC that Ms Johnstone does not present with any capacity for employment at the current time and he assesses Class 5 in employability. Therefore, that the job seeking data from Seek is not relevant to the Medical Assessor's assessment.

(g) In the email from the appellant's solicitor to Matthew Rowland dated 27 August 2025, Mr Ainsworth, solicitor for the appellant, sets out some further material that he seeks, which arises from the material previously produced by Ms Johnstone. Mr Ainsworth asks for a wide variety of material, including statements for a Fundo loan account, Wagetap transactions, Beforepay transactions and Moneyspot loan account. All of those accounts are from short-term cash loan providers. A basic internet search provides that information. Mr Ainsworth asks for "statements from any other bank account held by your client (we could not see regular payment of bills, rent, mortgage or groceries out of the accounts provided)". A review of the Bank West statements clearly shows purchases made from supermarkets, retail outlets and the like. There is nothing to suggest that there is any other bank account of significance.

(h) Finally, Mr Ainsworth asks for invoice books associated with a tender and payments made by Margaret Keverkis. The last of those payments being made on 7 March 2025. Ms Johnstone again repeats the submissions made dated 27 August 2025, that it is significant that the Medical Assessor limits his history taken to the period of the last two months, and this is the appropriate approach to assessing WPI. This is because the assessment Guidelines require a determination of WPI of the worker on the day of the assessment.

(i) There is no probative value in any of the requests made by the appellant.

1. Ms Johnstone's further submissions dated 23 January 2026 include:

(a) applying for a job does not mean that Ms Johnstone was fit to perform that role.

(b) The fact that Ms Johnstone applied for some 300 jobs without obtaining employment is in itself consistent with the fact that she was labouring under a psychiatric impairment rendering her unemployable.

(c) There is a requirement under Centrelink legislation requiring recipients of Centrelink benefits to apply for employment.

(d) There is also a requirement under Workers Compensation legislation that a worker is required to apply for jobs at various times in order to remain eligible for Workers Compensation payments. As such, a submission on the basis of job applications needs to be treated with a great deal of caution.

(e) It is likely that the volume of job applications made by Ms Johnstone were done so in order to qualify for welfare payments.

(f) In any event, these matters would need to be put to Ms Johnstone so that she could explain her reasons for the job applications. It is not procedurally fair for the appellant to make these submissions in the absence of her being allowed to respond.

(g) Questions about the Ms Johnstone's s 2024 tax return and entries in that tax return - such matters have not been put to Ms Johnstone and again it is procedurally unfair.

(h) In any event, these issues have no relevance to this appeal because of the principal of assessment, set out at p 1.6 of the Guidelines which provides: "assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking into account the claimant's relevant medical history and all available relevant medical information". As such, conjecture about the 2024 tax return does not form part of the assessment of WPI.

1. The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
2. In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
3. The Appeal Panel reviewed the MAC and the evidence in this matter.
4. The Appeal Panel notes that the appellant requested the opportunity to present oral submissions to a Member, a Delegate of the President, or the Medical Appeal Panel (MAP), if required, in relation to the requirement for the Ms Johnstone to comply fully with the Appellant's Notice for Production. The Appeal Panel has dealt with this issue by way of submissions.

1. The Appeal Panel determined above that the following evidence should be received on the appeal:

(a) tax records of Ms Johnstone dated 30 June 2023 and 30 June 2024;

(b) bank statements from Bankwest for the period from May 2023 to June 2025;

(c) entry records of applications she has made through Seek, and

(d) tax return for the financial year 1 July 2023 to 30 June 2024.

1. The appellant submits that these documents are on their face, relevant to the PIRS scales of employability, travel, social functioning and social and recreational activities.
2. The Appeal Panel accepts that this additional relevant information is relevant to the assessment of the PIRS scales of employability, travel and social and recreational activities The Appeal Panel does not accept that such additional information is relevant to the scale of social functioning as this scale involves consideration of relationship and the quality of those relationships as opposed to activities.
3. This ground of appeal is made out.

1. The appellant submits that the Medical Assessor has erred by applying incorrect criteria or the MAC otherwise contains a demonstrable error as it relates to the PIRS category of self-care and personal hygiene.
2. The appellant argues that the Medical Assessor's description is consistent with the view of Dr Teoh that any impairment in the respondent's self-care and personal hygiene is due to a lack of motivation as, when motivated (by having to look after her children), she can attend to her self-care and hygiene.
3. The examples under Table 11.1 for "Self-care and personal hygiene" in the Guidelines are:

"Class 1 No deficit or minor deficit attributable to the normal variation in the general population.

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

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

1. The Medical Assessor assessed the respondent as Class 2 for self-care and personal hygiene. In the PIRS Rating Form, the Medical Assessor wrote:

Ms Johnstone lives with her dog and has her 10 and 8 year old children on alternate weeks. A history was obtained of her typical daily routine over the last two months - when she has them, she wakes, leaving home by 8:30am for school drop-off, and she is out of bed quickly. When she is alone, she wakes later (could be past midday), needing an hour to exit bed due to depressive symptoms (fatigue, amotivation, low mood, lack of enjoyment). Following drop-off, she returns home directly, 'and I lay back down on the couch or go to sleep, setting an alarm to wake before pick up (2:30pm)'. She returns directly home from pickup, other than Monday and Tuesday when the children usually have activities not at the time of examination, she noted, as they resume with the next term. Ms Johnstone said she then starts preparing dinner, will do the washing then 'lay down and watch a movie', after dinner (which is at 6/6:30pm). She and the children go to bed at 8:30pm.

Appetite has reduced from three meals a day and two snacks (pre-injury), and she wept but eventually said she now eats one or two smaller meals with low enjoyment, and since the injury had Probably gained about seven, eight kilograms'. Ms Johnstone showered twice a day preinjury, which has reduced, skipping 'two, three days' at

times, missing four or five days a week (showering 'twice or three times a week'), needing prompting but she has no one to prompt her and she said that realising that she has not showered in some time sometimes is her prompt to do so. She changes her clothes on the days she showers, sometimes when she does not (overall, four days a week).

She has to cook (forcing herself) when she has the children and said she does not eat a full meal herself those days, and she said she does not cook when she does not have the children, generally only managing to eat cereal for dinner due to depressive symptoms impacting her capacity to cook. Depression makes the household chores more difficult for her to do, but she again forces herself to do 'the basic necessities' when she has her children, as she has to prepare their uniforms and keep the house functioning for them. When she does not have them, 'I don't do any'. Grocery shopping is done on the weeks she has her children (Friday, after picking them up, as having them with her reduces her anxiety), and she is more anxious if she has to go alone (shopping when she does not have them is 'very rare', and tends to manage her anxiety then by going 'late at night, when there's no one there')."

1. In her statement dated 5 February 2025, Ms Johnstone stated that she currently was single and lived by herself. She said that she found it difficult to do day to day tasks, such as getting her children to school.
2. Dr Ben Teoh, consultant psychiatrist, in his report dated 24 May 2024 rated Ms Johnstone as Class 1 for self-care and personal hygiene and provided the following reasons: "She has been lacking motivation to care for herself."
3. Dr Yajuvendra Bisht, consultant psychiatrist, in a report dated 3 October 2024, expressed the opinion that Ms Johnstone was not at maximum medical improvement. Dr Bisht

"She showers every two to three days but often skips meals when the children are not with her. She has lost a total of 6 kilograms of weight.

Additionally, she mentioned that she does not exercise regularly.

She has been struggling to keep up with the housework, finding it increasingly difficult to manage all her responsibilities at home."

1. The Appeal Panel noted that there was no evidence of any domestic assistance or regular support to ensure a minimum level of hygiene and nutrition being provided although Dr Teoh noted that she required domestic help. Ms Johnstone, in her statement dated 5 February 2025, said that she lived by herself and found it difficult to do day to day tasks.
2. The Appeal Panel considers that the rating of Class 3 for self-care and personal hygiene by the Medical Assessor is inconsistent with the statement of Ms Johnstone and the reasons given by the Medical Assessor. The Appeal Panel is satisfied that Ms Johnstone lives independently without regular support and that she supports and looks after her children when they stay with her. Ms Johnstone prepares her own meals and there is no suggestion that a family member or community nurse is required to visit two or three times a week to ensure the minimum level of hygiene and nutrition.
3. The Appeal Panel is satisfied that the reasons given by the Medical Assessor and inconsistent with the class descriptors for Class 3 in self-care and personal hygiene.
4. The Appeal Panel finds that the Medical Assessor erred by applying incorrect criteria and the MAC contains a demonstrable error as it relates to the PIRS category of self-care and personal hygiene
5. This ground of appeal is made out.

Ground 3 - Concentration, persistence and pace

1. The appellant submits that the Medical Assessor erred by applying incorrect criteria or the MAC otherwise contains a demonstrable error as it relates to the PIRS category of concentration, persistence and pace.
2. The examples under Table 11.5 for "concentration, persistence and pace" in the Guidelines are:

"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 Medical Assessor assessed the appellant as Class 3 for concentration, persistence and pace. In the PIRS Rating Form, the Medical Assessor wrote:

Substantial disruption was apparent from the commencement of the history, and Ms Johnstone described it as 'not very good' - she was asked what she notices, reporting, 'I'm not motivated, not focused, you don't have a level of motivation to maintain a level of concentration, you concentrate...I don't have a concentration.' Due to not being able to focus, she will 'try to find something else to do', shifting between tasks. The duration of continuous focus if she watches a show in which she has some interest is limited to '10 or 15' minutes, though further examining this revealed that she was referring to how long she tries to watch for at a time, with loss of focus on and off within this time (Ms Johnstone had concentration problems during this discussion). In

terms of reading, she said she used to read a lot for work, rather than recreationally, though her capacity to concentrate on reading is now limited to things like a news article on her phone and she cannot read more than 'a few times [sic]'. She described - and was observed - losing focus in conversations, including forgetting what others have asked her.

In terms of her memory, deficits were present throughout the examination. Ms Johnstone commented, 'That's quite bad, it used to be very good, now I can't even remember what I did yesterday, where I've been, if I've been somewhere'. She said that if has (sic) gone shopping to buy milk and butter she often forgets to buy one or both items, or if she goes to purchase petrol she finds that she has left having bought a chocolate but without any petrol. 'I feel like a lot of my memory has gone.'"

1. Under "Findings on Mental State Examination" the Medical Assessor wrote:

"Ms Johnstone presented as a female of 40 years who was dressed in a black top, with long, messy dark hair and pale skin; she wept through large parts of the assessment, moving restlessly (visible at times directly, at other times via movements of her upper body) in the assessment via telehealth, held over 90 minutes using Microsoft Teams, with a good-quality connection. She was partly upright at the commencement of the interview but lay down at other times; she was asked at times if she was offered time to settle herself, which she declined. Speech was rapid and interrupted by crying at times, with unclear speech when she was lying down and she had to be asked if she could kindly sit up at times; rate was most rapid when the injury history was discussed, and more interrupted by tears with more pauses in the history of functioning and symptoms and other areas. Volume was normal. Thought stream was increased during the injury circumstances history; thought form was tangential with anxiety during that section and at other points, less frequently. Mood was low, affective range was reduced, and in quality it was teary for much of the assessment, prominently anxious throughout, which was well-communicated, congruent with her history and appropriate to context. Concentration was disrupted through most of the history, reasonably prominently, meaning that refocusing was intermittently required. Short-term memory deficits were also prominent, sometimes addressed by enquiring about history at various time points in different ways, though this did not always remedy it. Insight and judgement were fair."

1. In her statement dated 5 February 2025, the respondent states that since her injury she had poor concentration. She wrote:

"27. Since my injury I have been participating in a return-to-work program.

1. I have been writing my resume and had assistance from a recruitment agency."
2. Dr Teoh in his report assessed Ms Johnstone as Class 3 for concentration, persistence and pace and provided the following reasons:

"She reported insomnia and restlessness. She has become socially withdrawn. She has been preoccupied with negative thoughts and worrying about her future and employment. She is struggling with her concentration, and she finds it an effort to do things. She reported a depressed mood and a sense of hopelessness. She has intrusive memories of the stress at work."

1. Dr Teoh, under "Mental State Examination" ,reported that Ms Johnstone's speech was coherent, she was not thought disordered, her cognitive functions were intact and there was no evidence of short or long term memory impairment.
2. Dr Bisht in his report dated 3 October 2024 noted that Ms Johnstone said that her concentration had not improved fully. Dr Bisht wrote:

"The client is able to manage her own finances, as well as being able to function independently with regards to tasks such as organising appointments/pursuing treatment, communicating with various stakeholders involved in her compensation claim, procurement of items of living, providing parental care to her children, managing the build of her house...She finds it hard to do detailed-oriented tasks or maintain focus for long periods."

1. Dr Bisht, under "Mental State Examination", reported that Ms Johnstone was able to give a good account of herself and her thought process was relevant to the interview process with no disturbances in thought connections. Dr Bisht wrote: "Cognitively, there was no deficit in short-term memory or concentration during the interview."
2. The appellant submits it is apparent from the Medical Assessor's description in relation to the class, that he based his assessment solely on what Ms Johnstone told him on examination. The appellant submits that the Medical Assessor has failed to consider the objective evidence that was available to him.
3. The Appeal Panel accept the level of functioning described in Dr Bisht's report and the findings of Dr Bisht and Dr Teah on mental state examination are inconsistent with the concentration difficulties which the Medical Assessor found on examination.
4. The Appeal Panel is satisfied that the Medical Assessor failed to consider the evidence that Ms Johnstone was managing the build of her house, managing her finances, participating in a return-to-work program and had been writing her resume with assistance from a recruitment agency. The Appeal Panel finds that the failure to adequately consider this evidence was a demonstrable error.
5. This ground of appeal is made out.

1. The appellant submits that the Medical Assessor erred by applying incorrect criteria or the MAC otherwise contains a demonstrable error as it relates to the PIRS category of employability.
2. The examples under Table 11.6 for "employability" in the Guidelines are:

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

1. The Medical Assessor assessed the appellant as Class 5 for employability. In the PIRS Rating Form, the Medical Assessor wrote:

At the current time, Ms Johnstone does not present with capacity from a psychiatric stance for any employment."

1. In her statement dated 5 February 2025, Ms Johnstone wrote:

"27. Since my injury I have been participating in a return-to-work program.

1. 28. I have been writing my resume and had assistance from a recruitment agency.
2. 29. However, whenever I think about going back to work in a similar environment I get anxiety attacks due to the possibility of being treated the same way and having to deal with similar situations
3. Whenever I think about going back to work I also feel depressed due to the damage my reputation has suffered in the industry. I had previously worked in the industry for 9 years without any problems and built a good reputation, but now I feel that reputation has been destroyed."
4. Dr Teoh in his report dated 24 May 2024 found Ms Johnstone unable to work, noting that her attempt to return to work was unsuccessful. Dr Teoh assessed Ms Johnstone as Class 5 for employability and provided the following reasons: "She is totally incapacitated for work. She has significant depressive symptoms."
5. Dr Bisht, in his report dated 3 October 2024, wrote:

"Currently, Ms Johnstone is not ready to return to her pre-injury duties as a WHS Advisor. Her ongoing psychological symptoms impede her ability to perform the essential functions of her role. The timeframe for return is uncertain and depends on her response to intensified treatment, along with the fact that depressive episode can take up to 2 years to resolve.

1. What is your opinion relating to the NTD's certification since your last IME assessment?

I respectfully disagree with the certification. The client clearly has some level of functioning. The client is able to manage her own finances, as well as being able to function independently with regards to tasks such as organising appointments/pursuing treatment, communicating with various stakeholders involved in her compensation claim, procurement of items of living, providing parental care to her children, managing the build of her house.

Hence, she has some capacity rather than no capacity.

Based on the functioning in various domains, from a psychiatric perspective, the client would be able to work four hours a day, 3 days a week, in a job that does not require the client to have a role which involves frequent direct interactions with customers or perform detail-oriented tasks or manage other staff. The client would require a vocational assessment however, for a more accurate evaluation of the job options, as she unable to work as WHS advisor. The client is not able to work with the pre-injury employer."

1. The Medical Assessor placed Ms Johnstone in Class 5 for employability on the basis that she did "not present with capacity from a psychiatric stance for any employment."
2. The Appeal Panel accepts that the Medical Assessor had before him documents that showed that, from 4 August 2023 until 4 October 2023, Ms Johnstone was fit to work full time with the only restriction being that she "has to work in a different set-up" (pp 1- 7 of the ARD). On 9 October 2025, Dr Zahid Malik certified Ms Johnstone as having no capacity for work. In a medical certificate dated 22 December 2023, Dr Malik certified Ms Johnstone as having no capacity for work and commented: "She cannot work in the city being a single mom and having a young child of 6 years as previously being offered ...given certificate this month." In a medical certificate dated 1 February 2024, Dr Malik certified Ms Johnstone as having no capacity for work and commented: "She is looking for jobs herself and awaiting to see if any workable option is given by the insurer." In a medical certificate dated 2) May 2024, Dr Malik certified Ms Johnstone as having no capacity for work and commented: "Looking for a job and reading for any possible opportunities as none has been provided for her." In a medical certificate dated 19 August 2024, Dr Malik certified Ms Johnstone as having no capacity for work and commented "so far no work has been arranged for her".
3. The Appeal Panel accepts that Ms Johnstone has been unwilling to apply for, or accept a role, that does not fit in with her schedule of looking after her children.
4. The Appeal Panel is satisfied that the Medical Assessor did not adequately consider the evidence in the medical certificates. The failure to adequately consider this evidence is a demonstrable error.

Ground 5 - error in assessing impairment that does not result from an injury

1. The appellant submits that the Medical Assessor erred in assessing impairment that does not result from an injury.
2. The appellant argues it is apparent from the medical certificates in both the ARD and Reply that Ms Johnstone experienced a deterioration in her condition after 4 October 2023 due to financial difficulties resulting from her not obtaining employment. That is, the appellant submits that Ms Johnstone is depressed because she is unemployed. This was the basis of determinations of the appellant that incapacity was not 'as a result of an injury'. The Medical Assessor has failed to consider this aspect of the medical dispute.
3. The Appeal Panel notes that Dr Bisht in his report dated 3 October 2024 diagnosed a major depressive disorder and he expressed the opinion that this condition directly related to the workplace injury. Dr Bisht further stated: "her inability to secure employment and perceived damage to her reputation have exacerbated her condition, reinforcing the connection between her current symptoms and her work-related injury." Dr Bisht went on to state:

"...work based on the information provided, Ms Johnstone continues to experience significant psychological symptoms directly related to her workplace experiences"

"Ms Johnstons present psychological condition is directly related to the injury she suffered during her employment."

1. The Appeal Panel is not persuaded the evidence establishes that the basis of any incapacity for work does not arise from the work injury.
2. As noted above, the Appeal Panel admitted fresh evidence which the appellant submits is relevant to the assessment of employability, travel, social functioning and social and recreational activities. The Appeal Panel did not consider that the fresh evidence was relevant to the assessment of social functioning. The Appeal Panel found error in the assessment of self-care and personal hygiene, concentration, persistence and pace and employability. The Appeal Panel concludes that it is necessary for Ms Johnstone to undergo a further medical examination.
3. As noted above Medical Assessor Hong of the Appeal Panel examined the appellant on 25 February 2026. Medical Assessor Hong provided the following report:

Ms Johnstone had worked at UGL (UGL and Sydney Water joint venture) as a full-time Health and Safety manager between 2009 and May 2023. She confirmed the history in Dr Ash Takyar's June 2025 MAC and continues to experience chronic anxiety and depressive symptoms. She said she had worked in both organisations separately before they had a joint venture.

Ms Johnstone was consulting Ramsay Andrews, mental health occupational therapist and treatment approval was discontinued, and the last review was in July 2025.

She has been taking Amitriptyline 50 mg for a couple of years. She does not take Melatonin now. She said she never took Escitalopram 10 mg as recorded, and Amitriptyline has been the only psychotropic medication and the dose has not increased over time. It helps somewhat.

Ms Johnstone stated that there is no support for her, no one helps her, and there is nothing to look forward to. She lost her career and reputation. She said she does not think anyone would support her to return to work. She has chronic anxiety and depressive symptoms. She reported chronically disrupted sleep and worries about her finances, and worries she would lose her house.

She said Melatonin only helped with her sleep initially.

She now weighs 85kg and her weight fluctuated in the past 12 months. She said she binge-eats and skips meals. She described having reduced memory and concentration. She described being irritable and has passive suicidal ideation, and said she hurt herself. On further enquiry, she said she has not engaged in self-harm behaviour.

Ms Johnstone is 42 years old and has two children who are 9 and 10. She reported the same long-term shared custody and has her children 50% of the time, usually one week on and one week off.

Ms Johnstone stays at home and said she does not do much. She lies down during the day. She does not watch TV and has no regular activities. When she has her children, she does the school drop-off and pick up, and has meals with them.

On specific enquiry regarding activities recorded by Dr Takyar, she said she tries to get on top of her housework but struggles with it. The insurer would not pay for domestic assistance. She said she cooks less now, generally only when her children are with her. When she does not have her children, she eats toast or noodles only. She shops on her own.

She obtained vouchers from Anglicare as she does not have money for groceries. She said she only has Centrelink payment and it cannot cover her mortgage. She manages her finances and borrowed money from some friends, and does not have anyone else to help manage her finances.

She showers the same as when seen by Dr Ash Takyar, around 2 or 3 times per week and reminds herself to do it. No one prompts her with self-care and personal hygiene.

She said she isolated herself from all her friends and only keeps in contact with one friend in Junee. She has no friends or family in Sydney. Her family are all in Wagga Wagga and she has not seen them since 2022. She struggles to go and visit them as she cannot afford the petrol. If she has money, she said there is no problem with driving there. She talks to her family rarely, and has a sister in New Zealand and occasionally with her sister in North Territory and another sister in Queensland. Her mother, a couple of sisters, nieces and nephews are in Wagga.

We discussed the issues as noted by the Appeal Panel and from the insurer's submission:

• Ms Johnstone said the job applications were made because she had no income and went to Centrelink, and had to apply for jobs when on Job-seeker payment from Centrelink, otherwise she would not be able to get any payment. After 8 months, medical exemption was accepted and she does not have to apply for jobs. She reported that she did have a job interview, but they offered a job in the Sydney CBD with no flexible hours. When Ms Johnstone worked for UGL she had flexible hours so she could do school pick-up but it was not possible for her to go into the city to work without flexible hours.
• Ms Johnstone said she requested her rehab coordinator to provide some assistance, such as doing courses on conflict management, but the only assistance they offered was to do her resume.

We discussed her tax return and her declaration about work-related expenses after she stopped working. She said that technically they are not legal, but she needed money and tax return was the only thing she could do to get some money.

• She confirmed that the Leppington Hotel was a pub and she went to have lunch with friends.
• She still has a membership to Planet Gym but said that even though she has a membership, she does not actually use it.
• She confirmed that in June 2025 she did some gambling online and said that this was online poker machine.
• Regarding the Jetstar payment in May 2025, she said that she purchased a plane ticket to go to Hervey Bay to visit a friend, but eventually she did not go. I said previously, she said she only had one friend who was in Junee, and she said that she had other friends but they were not close friends, and only the friend in Junee is a close friend. In any case, she does not have contact with the friend in Hervey Bay now.
• In terms of money she received, she thinks it was from her children doing work for people. For example, doing lawn mowing and they will pay into her account, from a person called Agatha.
• We discussed the multiple debit entries in February 2025, around 10 entries, each one about $200 from Woolworths supermarket. She said that she had a builder for her home renovation. However, the builder suddenly threw her house keys in the street and refused to do any more work in late 2024, and so she had to organise all renovation herself after that. She was organising plumbers and other contractors to come and do work, for example, fix the drainage around her property. She said that there is no ATM locally, so she went to Woolworths to withdraw cash and pay the contractor with cash.
• Ms Johnstone said that she has a lot of problems with the builder and that she is going to NCAT in two weeks' time and is taking them to court over $486,000 worth of building defects, for work she had paid but was not done or was done with defect. She said that she has no money for a lawyer (it costs $10,000) and so she has been doing the NCAT submission herself. She borrowed money to print her submission, and printed three sets of court books. She has been doing all the submissions herself and read up about the NCAT procedures.
• She said that she was withdrawing money from her superannuation to pay for renovations, but by February 2026 she had no more money left. She said there were a few small expenses from Bunnings Warehouse afterwards, and this might relate to some of the things she bought for the house or sometimes she had purchased material, for example she bought blinds and then hired contractors to come and do the installation. She said that she is living in Leppington, but her house has no certificate of occupancy and technically she is not able to live there, and she is trying to fix up the place so that it is more liveable.

Ms Johnstone was assessed by video. She was at home during the assessment. Her hair was tied back and she cried throughout the assessment. At times, I asked her to stop and take a break. She was assessed for 50 minutes. There was no psychomotor slowing or abnormal movements. She was constricted in her affect and the only expression was tearfulness. She gestured regularly. She spoke spontaneously and generally gave long answers, without overt evidence of being distracted. She was not thought disordered. Before I completed the assessment, I asked her for additional information that she wanted to add and she asked if I would report what she said to ATO. I discussed I have no obligation to do so.

Ms Johnstone described having suffered depression and anxiety symptoms, consistent with Major depressive disorder and Generalized anxiety disorder, in the context of working for UGL. Her symptoms have not resolved since she was seen by Dr Takyar and it appears that his report might contain some incorrect history, for example the wrong medication name and dose".

1. The Appeal Panel adopts the report and findings of Medical Assessor Hong.
2. Medical Assessor Hong noted that the in terms of self-care and personal hygiene, Ms Johnstone lives alone, looks after herself and cooks. She showers without prompting three times a week. She eats, sometimes she binges, sometimes she skips meals and her weight has been stable overall. She does not require prompting and is independent in living, consistent with Class 2. The Appeal Panel assess Ms Johnstone as Class 2 for self-care and personal hygiene.
3. Medical Assessor Hong noted that in terms of social and recreational activities, Ms Johnstone stated that she had lunch with friends at the Leppington Hotel. The Medical Assessor noted that when asked about her pre-injury hobbies she stated that "there was mainly building. I was building the house and stuff like that and hobbies... time was consumed in making ah...everything work ...had a secondary job to pay for everything while we were building". The Medical Assessor noted that Ms Johnstone said that she did not have any hobbies pre-injury as she was out of the home from 6.00am to 6.00pm for work and for school drop off and pick up. Medical Assessor Hong noted that Ms Johnstone continued with the building of her house after the work injury. The Medical Assessor assessed Class 3 for social and recreational activities. The Appeal Panel accepts that Ms Johnstone has lost some friendships following her work injury, rarely leaves her home when she does not have her children with her since her injury and no longer visits her family in Wagga Wagga. The Appeal Panel assesses Class 3 for social and recreational activities.
4. In terms of travel, Medical Assessor Hong noted that Ms Johnstone reported that she has not been to Wagga Wagga for about two years and there is no evidence that she has travelled beyond Leppington. She said she booked a flight to Hervey Bay but did not go eventually. She drives in the local area on her own, and this is consistent with a Class 2 for travel. The Appeal Panel assess Ms Johnstone as Class 2 for travel.
5. The Medical Assessor assessed Class 2 for social functioning and the Appeal Panel agrees with that assessment. Ms Johnstone's relationship with her children is not strained although Dr Teoh noted she stated that she had been irritable and argumentative. Ms Johnstone has lost some friendships.
6. In terms of concentration, persistence and pace, Medical Assessor Hong noted that Ms Johnstone does not watch television much now because she is busy organising the NSW Civil and Administrative Tribunal (NCAT) submission, which takes more than 30 minutes at a time. She has been able to organise her home renovation and can focus on intellectually demanding tasks for at least half an hour. The Appeal Panel considers these activities consistent with a Class 2 and assesses Class 2 for concentration, persistence and pace.
7. In terms of employability, Medical Assessor Hong noted that while Ms Johnstone has not had paid work since her injury, but she is doing some work-like activity and reported having the capacity to make submissions to NCAT as well as organise renovations. The Appeal Panel considered that this history is consistent with Class 4 and assesses Class 4 for employability, with a capacity to work less than 20 hours a fortnight and not more than one or two days at a time.
8. In summary, the Appeal Panel assesses Class 2 for self-care and personal hygiene, Class 3 for social and recreational activities, Class 2 for travel, Class 2 for social functioning, Class 2 for concentration, persistence and pace, and Class 4 for employability. The aggregate score is 2 2 2 2 3 4 which totals 15. The median class is 2. Applying Table 11.7, the Appeal Panel assesses 8% WPI as a result of the injury deemed to have occurred on 18 May 2023.
9. For these reasons, the Appeal Panel has determined that the MAC issued on 6 June 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 Ash Takyar 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)