1. On 14 November 2024, the appellant, Helen Rushton, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mukesh Kumar, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 October 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):

(a) the assessment was made on the basis of incorrect criteria, and

(b) the MAC contains a demonstrable error.

1. 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.
2. 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.
3. 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. On 17 February 2025 the appellant made a claim for lump sum compensation in accordance with s 66 of the Workers Compensation Act 1987 (1987 Act) with respect to 19% whole person impairment (WPI) for psychological injury.
2. On 11 July 2025 Secretary, Department of Education's (the respondent) insurer disputed liability for the claim for lump sum compensation on the basis the appellant's degree of WPI did not reach the more than 15% threshold imposed by s 65A(3) of the 1987 Act. There was no dispute that the appellant sustained a psychological injury.
3. On 14 August 2025 the appellant commenced proceedings in the Personal Injury Commission (Commission). The matter was referred to Medical Assessor Kumar for assessment.
4. The Medical Assessor issued a MAC on 20 October 2025 assessing the appellant's permanent impairment at 6%.
5. The appellant now appeals from that decision by the Medical Assessor.

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
2. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because no error has been established.

1. The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

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

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel and discussed as relevant to the Appeal Panel's findings and reasons below.

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

1. Chapter 11 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (Guidelines) provides that impairment resulting from psychiatric or psychological disorders is to be assessed in accordance with the Psychiatric Impairment Rating Scale (PIRS). Six categories of behaviour are set out and divided into five classes where Class 1 represents no or minor impairment attributable to normal variation in the human population and Class 5 is the most serious impairment.
2. Chapter 11.12 provides:

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

1. It is the role of the Medical Assessor to assign a class to each behavioural category and then, using the scores calculate the degree of impairment in accordance with Chapter 11 (see Guidelines at 11.15-11.21 and Table 11.7).
2. The appellant advances the appeal on three grounds:

(a) the Medical Assessor failed to disclose a path of reasoning for disagreeing with the opinion of Dr Ahmed - that is a failure to give reasons which may be a demonstrable error;

(b) the Medical Assessor failed to have due regard to the lay and medical evidence before him when assessing the classification of self-care and personal hygiene, and

(c) the Medical Assessor erred in the application of a deduction pursuant to s 323 of the 1998 Act in consideration of the lay and medical evidence before him.

1. What amounts to error in the application of the PIRS was considered by Campbell J in Ferguson v State of New South Wales [2017] NSWSC 887 where the Medical Appeal Panel had revoked the MAC having reached the conclusion the classification by the Approved Medical Specialist (AMS) had been glaringly improbable. His Honour found that the Appeal Panel had fallen into jurisdictional error and said at [23]:

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

'... the pre-eminence of the clinical observations cannot be underrated. The judgment as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face'.

1. The Appeal Panel accepted that intervention was only justified: if the categorisation was glaringly improbable; if it could be demonstrated that the AMS was unaware of significant factual matters; if a clear misunderstanding could be demonstrated; or if an unsupportable reasoning process could be made out. I understood that all of these matters were regarded by the Appeal Panel as interpretations of the statutory grounds of applying incorrect criteria or demonstrable error. One takes from this that the Appeal Panel understood that more than a mere difference of opinion on a subject about which reasonable minds may differ is required to establish error in the statutory sense.
2. The Appeal Panel also, with respect, correctly recorded that in accordance with Chapter 11.12 of the Guides 'the assessment is to be made upon the behavioural consequences of psychiatric disorder, and that each category within the PIRS evaluates a particular area of functional impairment': Appeal Panel reasons at [37]. The descriptors, or examples, describing each class of impairment in the various categories are 'examples only': see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633. The Appeal Panel said 'they provide a guide which can be consulted as a general indicator of the level of behaviour that might generally be expected': Appeal Panel reasons at [37]."
3. In Glenn William Parker v Select Civil Pty Ltd [2018] NSWSC 140, Harrison AsJ cited Ferguson with approval at [65]. Her Honour said at [66]:

"In relation to Classes of PIRS there has to be more than a difference of opinion on a subject about which reasonable minds may differ to establish error in the statutory sense. (Ferguson [24])....."

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

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

(a) if the categorisation was glaringly improbable;

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

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

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

1. In Lancaster v Foxtel Management[1] Basten AJ noted at [88]-[89] that these four considerations, although not inaccurate, were not a statement of legal principles, and that care should be taken in applying the explanation in place of s 327(3) and s 328(2).
2. Having considered the authorities, the Appeal Panel notes that the appellant must demonstrate that her complaints are more than a mere disagreement over a matter about which reasonable minds might differ.
3. It is convenient to consider each articulated ground of appeal raised by the appellant in turn.

Ground A: failure to disclose a path of reasoning for disagreeing with the opinion of Dr Ahmed

1. The appellant submits that the Medical Assessor failed to disclose any proper reasoning for disagreeing with the opinion of Dr Ahmed and that while the Medical Assessor "was entitled to reach his opinion" he needed to engage with Dr Ahmed's opinion.
2. The appellant refers the Appeal Panel to an excerpt from the Medical Assessment Certificate where the Medical Assessor comments on the assessments by Dr Ahmed and Dr Sudhaker and submits that it provided no real explanation for "why his assessment of the other PIRS categories differs from that of Dr Ahmed".
3. The appellant submits that the Medical Assessor's failure to explain why his findings were different results in a demonstrable error. The appellant refers the Appeal Panel to a number of authorities which are considered further below.
4. With respect to Ground A, the appellant does not identify which PIRS categories are infected by the alleged error or how it is material to the overall assessment contained in the Medical Assessment Certificate.
5. The respondent submits that the Medical Assessor has demonstrated that he had considered the opinion of Dr Ahmed.
6. The respondent submits that the Medical Assessor is not required "to respond word by word" with the other medical evidence and has clearly considered and evaluated the reports.
7. For the following reasons, the Appeal Panel finds that Ground A is not made out.
8. It is evident from the Medical Assessment Certificate that the Medical Assessor has considered the report of Dr Ahmed. He notes the diagnosis reached by Dr Ahmed and the assessment of 19% WPI reached by Dr Ahmed. The Medical Assessor briefly compares his assessment with those of by Dr Ahmed and Dr Sudhaker and notes that they are very different and that his assessment aligns with that of Dr Sudhaker.
9. The reasons for the different assessments is evident from the Medical Assessment Certificate where the Medical Assessor sets out the basis for the class assessed for each PIRS category.
10. The Appeal Panel accepts that a Medical Assessor is required to give adequate reasons for their assessment. This obligation does not extend to requiring the Medical Assessor to undertake a "compare and contrast" analysis of competing assessments.
11. At [48] of the often-cited High Court decision of Wingfoot[2] the plurality stated:

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

1. At [55] (and as relied on by the appellant in her submissions) the Court said:

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

1. However, this was qualified by the High Court at [56] where the Court considered the decision of the Court of Appeal and noted that:

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

1. The Medical Assessor was required to provide reasons for reaching the conclusion that he did. He is not obligated to provide reasons why he did not reach the same opinion as Dr Ahmed that being an opinion he did not form.
2. The Appeal Panel finds that the Medical Assessor has engaged with the opinion of Dr Ahmed and the reasons for their different assessments are evident from the Medical Assessor's assessment and the explanation provided for the classification provided for each PIRS category. Further the Appeal Panel finds that the Medical Assessor was not required to demonstrate why he did not reach a finding that he did not reach. The Medical Assessor was required to disclose the actual path of reasoning for the findings and assessment that he reached and he has done so.
3. Ground A is not made out.

Ground B: failure to have due regard to the lay and medical evidence before making his assessment with respect to selfcare and personal hygiene

1. The appellant submits that the only reasonable view having regard to the history taken by the Medical Assessor and the appellant's evidence and the opinion of Dr Ahmed is that the appellant should be assessed as Class 3 rather than Class 2 for selfcare and personal hygiene.
2. The Medical Assessor assessed Class 2.
3. The Medical Assessor took the following relevant history:

"Ms Rushton said that the only reason she eats is because her husband prepares meals and if he is not there, she does not eat. She says that she does not feel hungry and often does not want to eat. She added that she gained a lot of weight when the dose of Dytrex was increased. Her doctor then put her on Wegovy (Semaglutide). She said that she gained 20 kgs and has lost 7 kg."

"Ms Rushton reports that she takes a shower at nighttime and brushes her teeth daily. She said that her husband normally does all the housework, though she does some tidying up at home. She said that she tidies up the toys after the children have left. She does not cook and added that she can make a toast."

1. The Medical Assessor provided the following reasons for his Class 2 assessment:

• Ms Rushton reports that she takes a shower at nighttime and brushes her teeth daily.
• She said that her husband normally does all the housework, though she does some tidying up at home.
• She said that she tidies up the toys after the children have left.
• She does not cook and added that she can make a toast.
• Impairment in this domain is class 2."

1. Table 11.1 of the Guidelines relevantly provides as follows:

"Class 2 Mild impairment: able to live independently without regular support; 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 and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit)

2-2 times per week to ensure minimum level of hygiene and nutrition"

1. The appellant highlights from the history taken by the Medical Assessor that the appellant's husband normally does all the housework and that she does not cook.
2. The appellant also refers to the Appeal Panel to her statement where she states that her husband does all the cooking and housework including laundry and that she showers every day at her husband's direction and that showering is part of her "psychology water therapy for anxiety attacks" she only occasionally washes her hair, does not brush it as she doesn't leave the farm and wears pyjamas most of the time because they are more comfortable.
3. She further states that she only eats three meals a day because her husband prepares them and if he is away then she would have toast, drink protein water and eat fruit.
4. The appellant also refers to the opinion and history taken by Dr Ahmed that the appellant did not shower every day, her husband cooked her meals and that while she dressed herself she neglected her self-care.
5. The Appeal Panel does not consider the classification of Class 2 by the Medical Assessor to be unreasonable nor glaringly improbable and is well supported by the history taken.
6. The role of the Medical Assessor is not to evaluate competing evidence and opinions but rather to undertake an assessment, consider relevant material and to apply their own clinical expertise to reach their assessment.
7. The Medical Assessor examined the appellant on 26 September 2025. Dr Ahmed examined the appellant nine months earlier on 13 December 2024. The appellant's statement is dated 14 August 2025. The Medical Assessor is required to assess the appellant as she presented on the day of the assessment. This necessitates that while relevant material may assist in the clinical interview and informing the Medical Assessor's clinical impressions, the assessment and history taken by the Medical Assessor is highly relevant to classification for each PIRS category.
8. As submitted by the respondent, the history taken by Dr Sudhakar in his report of 13 May 2025 is consistent with an improvement in the appellant's psychological functioning from when she was assessed by Dr Ahmed. This includes a history that she undertakes cleaning and does the dishes daily and visits a nail salon each month for manicure.
9. The Medical Assessor was entitled to rely on the history he has taken that the appellant showers and brushes her teeth daily, that she does some tidying up at home including tidying the toys after her grandchildren have left and that she can make some toast.
10. The appellant has been prescribed Wegovy to assist with weight reduction which provides an explanation for her lack of appetite and the reported weight gain prior to being prescibed Wegovy does not suggest insufficent nutritional intake. The appellant's own evidence is that when her husband is away she is able to prepare toast, protein water and fruit. This is consistent with a Class 2 classificaiton for self-care and personal hygine.
11. The Appeal Panel finds no error in the Medical Assessor's assessment of self-care and personal hygiene. Ground B is not made out.

Ground C: error with application of deduction in accordance with s 323 of the 1998 Act

1. The appellant submitted the Medical Assessor made a demonstrable error in applying a 10% deduction in accordance with s 323 of the 1998 Act.
2. The appellant submitted that the Medical Assessor did not provide sufficient reasons for doing so nor explain how the pre-existing injury contributed to the appellant's permanent impairment. The appellant further submitted that the Medical Assessor's conclusions were not supported by the medical and factual evidence.
3. The appellant referred the Appeal Panel to the often cited Supreme Court decisions with respect to deductions under s 323 of Cole v Wenaline Pty Limited [2010] NSWSC 78 and Ryder v Sundance Bakehouse [2015] NSWSC 526.
4. The appellant submitted that it is insufficient to say that the appellant was seeing a psychologist for due to a family cancer diagnosis and therefore a deduction should be applied, noting that the appellant was working and functioning without issue at the time of her injury.
5. Section 323 provides as follows:

"323 Deduction for previous injury or pre-existing condition or abnormality

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

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

1. The Medical Assessor took the following relevant history:

"Ms Rushton said she also saw other psychologists before. She added that she also sees another psychologist, Nicole, for her personal psychological issues that she has been seeing since 2020 in the context of her husband's cancer diagnosis.

Ms Rushton reported that before the incident where she was assaulted at school. In 2020, her husband was diagnosed with thyroid cancer. She said that she started seeing a psychologist, Nicole, and is still seeing her now. She said she also had some 'cloudy brain' and has to see a neurologist. She said that her husband had had an operation on his thyroid. She said that leading up to the incident of the assault, she was still working however things were normal. She said that her mental health was fine. She added that she used to go and do everything that she used to do normally and there were 'no hassles.' She said that she was a bit overworked as a teacher, however she did not have symptoms like this. She said that she still used to go out, take photos at nighttime etc. She said that her husband was all clear, however recently he was diagnosed with another form of cancer, and they are now wating to see what the results are. She said that until they find out that his condition is, they have to go 'day to day'. She said that she worries that if something happens to him, what will happen to her."

1. The Medical Assessor in considering the opinion of Dr Sudhaker commented:

"...my assessment is similar to Dr Sudhaker, except for the fact that Dr Sudhakar has not considered the psychiatric symptoms following Ms Rushton's husband's cancer diagnosis for which she sought psychological treatment".

1. The Medical Assessor diagnosed the appellant with a pre-existing "Adjustment disorder", in context of her husband's cancer diagnosis requiring ongoing therapy with a psychologist.
2. The Medical Assessor noted that the pre-existing condition directly contributed to the appellant's whole person impairment noting that the appellant has "Ongoing psychiatric symptoms with onset before the incident or workplace assault. Ms Rushton reported that she is still seeing the psychologist (Ms Nicole) for this [earlier] event".
3. The Medical Assessor found that the extent of the deduction was too difficult or costly to determine and applied a one tenth deduction in accordance with s 323(2) of the 1998 Act.
4. The Appeal Panel considers it is evident from the Medical Assessor's reasons that he has found that prior to the appellant's workplace injury she was suffering from an adjustment disorder for which she sought treatment and for which treatment was ongoing at the time of the workplace injury. Treatment with respect to that condition with her separate psychologist and continued since the workplace injury and that the ongoing adjustment disorder has contributed to the overall level of impairment. The extent to which it has is however difficult to determine and as such the Medical Assessor has made an assessment of one tenth in accordance with s 323(2) of the 1998 Act.
5. While the appellant may have been continuing to function at a high level prior to the work injury and despite the pre-existing adjustment disorder this does not mean that the adjustment disorder did not subsequently contribute to the appellant's degree of permanent impairment.
6. It is evident from the findings of the Medical Assessor that the pre-existing adjustment disorder is ongoing and contributed to the overall impairment and this is the basis upon which the deduction was made. The diagnosis of an adjustment disorder is more than a "predisposition, susceptibility or vulnerability" (see State of New South Wales v Hill [2018] NSWSC 451).
7. Having made these findings, the Appeal Panel does not accept the appellant's submission that the Medical Assessor based the deduction simply on the basis that the appellant was seeing a psychologist prior to the work injury and therefore a deduction ought to be applied.
8. The findings of the Medical Assessor with respect to the pre-existing condition are supported by the clinical material which was before the Medical Assessor including records of Star Street Medical Centre which note an active history of anxiety/depression in March 2020.
9. Further, on 16 April 2021, Dr Nicole Reece, clinical psychologist reported to the appellant's general practitioner following an initial appointment. Dr Reece noted that the referral was initially referred "to explore her coping and anxiety relating to her husband's cancer diagnosis, and the associated stressors surrounding this".
10. The Appeal Panel finds no error with the one tenth deduction applied by the Medical Assessor in accordance with s 323(2) of the 1998 Act.
11. For these reasons, the Appeal Panel has determined that the MAC issued on 20 October 2025 should be confirmed.

[1] [2022] NSWSC 929.

[2] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [47].