b. Application to Resolve a Dispute and attached documents;

d. Application to Admit Late Documents dated 12 November 2024 and attached documents lodged on behalf of the respondent."

1. The Medical Assessor examined the appellant on 14 January 2025. The Medical Assessor assessed 22% WPI and deducted one half for the appellant's secondary condition. The Medical Assessor added 1% for treatment effect. The total WPI was 12% as a result of the injury deemed to have occurred on 17 November 2020.

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 there was an error in the MAC and it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence on which to make a determination.

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. Medical Assessor Nicholas Glozier of the Appeal Panel conducted an examination of the worker on 9 July 2025 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 1 - the Medical Assessor made a demonstrable error by deducting a physical condition from a psychiatric assessment, namely, sleep disturbance.

(b) The Medical Assessor made a blanket deduction for a sleep condition from his WPI assessment for a psychiatric injury. A psychiatric condition pursuant to the Psychiatric Impairment Rating Scale (PIRS) and a condition involving sleep disturbances including Obstructive Sleep Apnoea (OSA) are not assessed in this way.

(c) Given the different assessment regimes for OSA/sleep disturbances and a psychiatric injury, it is not possible for the Medical Assessor to simply to deduct the effects of sleep disturbance from a PIRS assessment in a global fashion.

(d) A physical condition cannot be added to a psychiatric condition as the 1987 Act does not allow this to occur (see s11A(5) of the 1987 Act and Bell v The Mining Pty Ltd [2024] NSWPICPD 35) in the same way a physical condition cannot just be deducted from a psychiatric condition especially when the full effect of the physical condition is not just determined by the proper process.

(e) The Medical Assessor has made a demonstrable error in his deduction of the sleep disturbance from the PIRS assessment, and the deduction cannot stand as it is. The sleep deprivation can only be deducted if it is part of a psychiatric assessment for a secondary psychiatric condition.

(f) Ground 2 - the Medical Assessor made a demonstrable error pursuant to s 327 (3) (d) of the 1998 Act by not considering the effect of sleep deprivation on each PIRS category when he assessed those categories.

(g) The assessment of the effects of sleep disturbance on a psychiatric condition, if there was any effect, should have been done by assessing the effect of sleep deprivation on each PIRS assessment if it was to be considered at all.

(h) The Medical Assessor did not make specific references to sleep problems effecting the criteria of assessing a psychiatric claim nor did he make any attempt to tie the sleep disturbances in with any secondary psychiatric condition. This should be taken into account when making a deduction to the primary psychiatric injury when such a secondary condition is found to exist.

(i) By not finding the sleep disturbance arise from a secondary psychiatric condition and apply its effects to each PIRS category the Medical Assessor has fallen into demonstrable error.

(j) Ground 3 - the Medical Assessor made a demonstrable error by relying on a party's independent medical examiner (IME), namely, Dr Freiberg when that report could be contradicted by either the other party's IME or a Medical Assessor who addresses sleep disturbance for the Commission.

(k) The report of Dr Freiberg was not a report by a Medical Assessor but a report from the appellant's (IME). It is not appropriate for a Medical Assessor to rely on the appellant's IME when forming an opinion and he has fallen into demonstrable error.

(l) Ground 4 - the Medical Assessor made a demonstrable error by deducting a physical condition from a psychiatric assessment namely "pain" and not finding a secondary psychiatric condition from the "pain".

(m) The appellant repeats the submissions made above in grounds 1 and 2. Clearly the pain must result in a secondary psychiatric condition before it is used as a deduction for a primary psychiatric condition which has not happened in this instance. The Medical Assessor has clearly fallen into demonstrable error.

(n) The MAC should be set aside for demonstrable error. The Appeal Panel consider any deduction for any secondary condition following from the appellant's arm and shoulder injury.

1. The respondent's submissions include the following:

(a) Ground 1 - the appellant submits the Medical Assessor made a demonstrable error by deducting a physical condition from a psychiatric assessment, namely sleep disturbance. The appellant did not refer to any extracts from the MAC to support the argument but asserts that it was clear the Medical Assessor made a 'blanket deduction' for a sleep condition from his WPI assessment for a psychiatric injury.

(b) The Medical Assessor assessed 22% WPI on the PIRS scale and applied a deduction of 50% due to the appellant's secondary psychological injury. The Medical Assessor provided an explanation at 10.b of the MAC.

(c) The question of whether an injury is a secondary or a primary psychological injury is one for the Commission to determine and not one for a Medical Assessor to determine. Member Snell issued a Certificate of Determination - Consent Orders on 18 November 2024 reflecting the agreement reached by the parties that the appellant sustained both a primary psychological injury with a deemed date of injury of 17 November 2020 and a secondary psychological injury as a result of his physical injuries on 27 November 2019.

(d) As required by s 65A(2), in assessing the degree of permanent impairment resulting from the appellant's primary psychological injury, the Medical Assessor was to have no regard to any impairment or symptoms resulting from his secondary psychological injury.

(e) In relation to the mechanism for how a secondary psychological injury is to be accounted for in an assessment of impairment, the respondent refers to the Appeal Panel's decision in BMY v Mullungeen Pty Ltd [2024] NSWPICMP 489.

(f) The Medical Assessor recorded a detailed history of the impact of the applicant's secondary psychological injury, diagnosed as persistent depressive disorder and chronic pain syndrome, on his mood, concentration, motivation and level of functioning. The Medical Assessor did not apply a deduction due to a sleep disturbance, but rather he applied a 50% deduction due to the impact of the appellant's secondary psychological injury on his impairment.

(g) The Medical Assessor approached the application of s 65A(2) of the 1987 Act correctly and it was open to him to reach the conclusion that a 50% deduction due to a secondary psychological was appropriate based on the evidence available to him and by exercising his clinical judgement.

(h) Ground 2: the Medical Assessor made a demonstrable error by not considering the effect of sleep deprivation on each PIRS category when he assessed those categories. The appellant submitted the Medical Assessor did not tie the sleep problems to any secondary psychiatric condition.

(i) The Medical Assessor provided diagnoses of persistent depressive disorder and chronic pain syndrome and clearly articulated his opinion that the appellant's sleep difficulties were connected to his pain disorder and secondary psychological injury. The deduction of 50% applied by the Medical Assessor related to the appellant's secondary psychological injury, including the impact of his chronic pain on his mood, sleep, concentration and motivation.

(j) The Medical Assessor was not required to consider the impact of the appellant's secondary psychological condition, including his sleep difficulties, on each PIRS category (BMY v Mullungeen Pty Ltd [2024] NSWPICMP 489).

(k) In any event, the Medical Assessor clearly considered the impact of the appellant's fatigue and sleepiness on his PIRS assessment for categories of travel, concentration, persistence and pace, and employability (MAC, pages 13 and 14).

(l) Ground 3: the Medical Assessor made a demonstrable error by relying on a party's IME namely, Dr Freiberg, when that report could be contradicted by either the other party's IME or a Medical Assessor who addresses sleep disturbance for the Commission.

(m) On 14 January 2024 the Medical Assessor made a request under the 1998 Act for further documents from the appellant. The Medical Assessor noted it appeared the appellant had an untreated obstructive sleep apnoea condition, and a sleep study had been conducted sometime in mid to late 2024 by Dr Freiberg. The appellant's solicitors provided the Commission with a report from Dr David Freiberg dated 15 May 2024 and a sleep study report dated 23 April 2024.

(n) Dr Freiberg was not engaged by either party as an IME. Rather, the appellant was referred to Dr Freiberg by Dr Morgan Mo (treating general practitioner).

Dr Freiberg is a treating specialist, and it was open to the Medical Assessor to review and consider the report of Dr Freiberg and the accompanying sleep study report, to assess the impact of the appellant's pain disorder and secondary psychological injury on his fatigue, sleepiness, concentration and motivation difficulties.

(o) The MAC does not contain a demonstrable error.

(p) Ground 4: the Medical Assessor made a demonstrable error by deducting a physical condition from a psychiatric assessment namely 'pain' and not finding a secondary psychiatric condition from the 'pain'.

(q) The parties reached an agreement that the appellant sustained both a primary psychological injury with a deemed date of injury of 17 November 2020 and a secondary psychological injury as a result of his physical injuries on 27 November 2019.

(r) As required by s 65A(2), in assessing the degree of permanent impairment resulting from the appellant's primary psychological injury, the Medical Assessor was to have no regard to any impairment or symptoms resulting from his secondary psychological injury.

(s) The respondent submits that the Medical Assessor recorded a detailed history of the impact of the applicant's secondary psychological injury, diagnosed as persistent depressive disorder and chronic pain syndrome, on his mood, concentration, motivation and level of functioning.

(t) The Medical Assessor did not apply a deduction due to 'pain', but rather he applied a 50% deduction due to the impact of the appellant's secondary psychological injury on his impairment, as required by s 65A(2) of the 1987 Act.

(u) The Medical Assessor approached the application of s 65A(2) of the 1987 Act correctly and it was open to him to reach the conclusion that a 50% deduction due to a secondary psychological was appropriate based on the evidence available to him and by exercising his clinical judgement.

(v) The Medical Assessor provided sufficient details to explain his path of reasoning and the MAC does not contain a demonstrable error (Wingfoot Australia Partners Pty Limited v Kocak (2013) CLR 480).

(w) The MAC does not contain a demonstrable error. The MAC should be confirmed.

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 history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.

Grounds 1 and 4 - deducting a physical condition from a psychiatric assessment namely, sleep disturbance and pain

1. Under Ground 1, the appellant submits that the Medical Assessor made a demonstrable error by deducting a physical condition from a psychiatric assessment namely sleep disturbance. The appellant argues that it is clear the Medical Assessor makes a blanket deduction for a sleep condition from his WPI assessment for a psychiatric injury.
2. The appellant submits that because of the different assessment regimes for OSA/sleep disturbances and a psychiatric injury, it is not possible to simply to deduct the effects of sleep disturbance from a PIRS assessment in a global fashion.
3. Under Ground 4 the appellant submits that the Medical Assessor made a demonstrable error by deducting a physical condition from a psychiatric assessment namely "pain" and not finding a secondary psychiatric condition from the "pain".
4. The Appeal Panel considers that it is convenient to deal with Grounds 1 and 4 together as both grounds address the deduction of a physical condition from an assessment of a primary psychiatric injury.
5. The Medical Assessor under 'Present symptoms' (MAC, page 4) wrote:

"Mr Russell describes his mood as feeling numb and that he is generally disengaged although the level of this tends to fluctuate. He has a very limited capacity for enjoyment and generally experiences low motivation. He experiences considerable levels of fatigue and somnolence and occasional involuntary sleep. He finds it difficult to concentrate, focus and persist particularly because of his level of fatigue. As well, he is more prone to frustration and agitation in part because of his fatigue although overall he believed that this has improved over the last 12 months. He continues to experience feelings of helplessness and worthlessness although this also has improved and now tends to be episodic rather than continuous and persistent. He generally is vulnerable to shame and dislikes people commenting on his illness. He is withdrawn and avoidant. He does not like crowds and generally avoids social contact when possible. He experiences interval insomnia - that is waking during the night either due to pain or disturbed sleep. On some occasions he finds it difficult to return to sleep. He continues to have significant physical limitations. Whilst the pain in his right shoulder has improved since the most recent surgery, he still episodically has pain, and he also very occasionally continues to get pain in his left shoulder. His right shoulder is limited in his overall range of movement and if he pushes past this, he gets considerable pain. He experiences stiffness in his arm back and neck and struggles with mobility especially when he wakes in the morning. He has reduced strength in his right arm and his coordination and motor skills are reduced particularly in his right hand. This causes him to be clumsy and to drop things which he finds somewhat frustrating and induces a sense of helplessness. Previously this made him very angry, but he has managed to contain this now. If he undertakes excess activity or movement not only does he get shoulder pain but he is prone to develop migraines although these have improved. He takes rizatriptan for migraines now and finds that this is helpful in reducing their overall impact."

1. The Medical Assessor under the heading of 'General health' (MAC, page 5) noted:

"As mentioned, Mr Russell has had three surgical interventions on his shoulder following his fall in November 2019. His most recent surgery was in September 2024. Mr Russell described considerable levels of fatigue, somnolence and episodes of involuntary sleep. He also said that he snored when questioned, although was not clear about apnoeic episodes. I wondered about the possibility of Obstructive Sleep Apnoea (OSA) and requested the commission obtain a report that had not been tendered in the documentation. This related to a sleep study that Mr Russell had had in May 2024. On production, this study showed that he had significant disturbance of his sleep ... The conclusion was that as well as the disordered sleep related pain he also had mild disordered sleep related to OSA although this was borderline. From this report it would appear that Mr Russell's fatigue is significantly related to disordered sleep as result of disruption primarily due to pain although complicated to a lesser degree by mild, borderline OSA ..."

1. The Medical Assessor provided the following summary of injuries and diagnoses (MAC, page 7):

"Mr Russell fell down a set of stairs, falling about 7m and sustaining a head injury as well as significant damage to his shoulder and probably his neck. As a consequence he has experienced ongoing significant pain and limitation of movement despite having undergone three surgical procedures. These have led to some improvement but overall, it is clear that he continues to be markedly impacted by his physical injuries.

Some months after his physical injury he attempted to return to work, however his employer set conditions that were unreasonable and that caused Mr Russell to develop a primary psychological injury marked by a range of depressive symptoms, agitation, frustration and associated with significant shame, avoidance and withdrawal.

He has undertaken significant psychological treatment which appears to have been appropriate and evidence-based. He has also had a range of medical treatments both by a psychiatrist and by his general practitioner. He had significant difficulties with side effects but appears settled on his current medication which seems to be reasonably effective although he continues to experience symptomatology and ongoing impairment. Only a few months prior to his injury, Mr Russell had suffered from a depressive episode which had required treatment with an antidepressant. At the time of the injury he said that his symptoms had improved to the point of remission, nevertheless it is likely that this and the previous episode that he had experienced two years prior played some contributory role in his development of depressive symptomatology subsequent to his injury.

He currently meets the diagnostic criteria for: Persistent Depressive disorder. In that he has had a long period of low mood with sleep disturbance (insomnia), low energy, reduced self-esteem, poor concentration and feelings of helplessness.

He also suffers from a chronic pain syndrome which has significantly impacted his sleep and resulted in significantly disordered sleep primarily related to his pain disorder complicated by mild OSA."

1. Under "Facts on which the Assessment is Based" the Medical Assessor wrote:

"Mr Russell experienced a severe fall resulting in a head injury and significant injury to his right shoulder which has required three surgical interventions to

date. As a result he has also developed substantial disorder of his sleep as demonstrated in a sleep study conducted in May 2024. While there may have been some improvement following the third procedure in September 2024, symptomatically there has only been modest improvement in the levels of

Mr Russell's overall fatigue and the degree of involuntary sleep and excessive somnolence that he experiences. It is clear that his pain, and in particular the effect of pain on his sleep, complicated by mild OSA, is having a significant impact on his overall impairment.

Furthermore he suffered a primary psychological injury as a result of unreasonable and punitive treatment by his employer in his return to work program and subsequent dismissal seemingly related to his need for a second surgical procedure. As a result he has developed a range of symptoms and impairment consistent with a Persistent Depressive Disorder."

1. The Medical Assessor under "Reasons for Assessment" wrote:

"(a) My opinion and assessment of whole person impairment In making that assessment I have taken account of the following matters:-

A history of unreasonable and punitive behaviour by Mr Russell's employer seemingly related to his work limitations associated with a workplace injury. As a result this he has developed a primary psychological Persistent Depressive Disorder. This however has been complicated by ongoing pain related to his primary physical disorder. Furthermore, as shown in a sleep study conducted by Dr David Freiberg on 15 May 2024 he has developed significantly disordered sleep which markedly impacts his impairment.

(b) An explanation of my calculations (if applicable).

On undertaking Mr Russell's PIR scale I come to a result of 22% WPI. However Mr Russell has significant ongoing pain and limitation of movement and this impacts him both directly in his capacity to engage in life but also has a more significant impact through its effect on his sleep. He has significantly disordered sleep and this clearly contributes markedly to his daytime fatigue, somnolence, involuntary episodes of sleep, difficulty with focus concentration and memory and at least partially contributes to problems with his motivation. His pain directly causes frustration and contributes to irritability and also limits his motivation, I believe. As well it has a direct impact on his capacity for employment and were it not for the secondary impact of his pain on his injury, he would have significantly less impairment. I believe that this contribution is at least 50% of his total impairment.

While he had two previous episodes of depression, one of which was chronologically quite close to the time of his initial physical injury, I have not made a deduction for pre-existing impairment as I do not believe that this previous depression has had a direct impact on his current impairment.

I have added 1% treatment effect primarily because he has been taking escitalopram throughout most of his illness. He also took this medication in his previous episodes of depression. While it did not appear very effective in this episode at 10 mg he has noticed improvement with the increase in dose to 20 mg and this is consistent with what one would expect clinically and from the research. It is likely that were this to be withdrawn that there would be some overall deterioration in his disorder although, given his previous tendency to cease medication reasonably early, it is not likely to have a huge impact were he to stop the medication and therefore I believe only 1% is warranted".

1. At the end of Table 11.8 the Medical Assessor wrote:

"I have deducted 50%, apportionment for his secondary injury related to the direct impact of pain, but more importantly as a result of the impact of the pain on his sleep which is significantly disordered. This is complicated by a mild/borderline OSA disorder.

There is no deduction for pre-existing disorder. I have added 1% treatment effect.

As a result his total WPI is 22% -11% =11% +1**% =** 12%"

1. The Medical Assessor made a "50%, apportionment for his secondary injury related to the direct impact of pain, but more importantly as a result of the impact of the pain on his sleep which is significantly disordered". However, the Medical Assessor did not make a diagnosis for the secondary psychological injury. While the Medical Assessor made a number of references to pain and chronic pain, he did not identify a secondary psychological injury, such as a major depressive episode or adjustment disorders. Pain or chronic pain is not a psychological or psychiatric condition: a secondary psychiatric injury is diagnosable psychiatric disorder that is caused by such pain and organic conditions, not the pain.
2. The Appeal Panel notes that the appellant's physical injuries and pain are not assessable in the PIRS, as per Guidelines, and these are separate to the assessment of secondary psychological injury that arises as a result of these injuries and pain, a definition which the Appeal Panel note is commonly misinterpreted.
3. Section 65A of the 1987 Act provides:

"65A Special provisions for psychological and psychiatric injury

(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.

(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.

primary psychological injury means a psychological injury that is not a secondary psychological injury.

psychological injury includes psychiatric injury.

secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury."

"1.22 A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work related condition (eg depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in [the] section [headed] Multiple impairments, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined."

1. In Mercy Connect Ltd v Kiely [2018] NSWSC 1421 (Keily No 2) Harrison AsJ in obiter dicta set out a two step process by which a Medical Assessor could apply the provisions of

s 65A(2) of the 1987 Act to have no regard to impairment or symptoms from a secondary psychological injury. Her Honour said:

"96. The statutory scheme comprising of the WIM Act and the Workers Compensation Act creates a two-step approach in assessing the degree of WPI for a psychological injury. The assessor must first calculate the entire degree of psychological injury in line with the PIRS categories. The secondary psychological injury must then be assessed and deducted in accordance with s65A of the Workers Compensation Act, leaving the primary psychological injury remaining.

1. This two-step process accords with the referral of the Workers Compensation Commission on 24 October 2016. This referral provided for the AMS to assess the degree of WPI arising out of the primary psychological injury sustained by

Ms Kiely as a result of the incident, excluding 'any impairment or symptoms arising from or attributable to, the secondary psychological condition'." 2. Basten AJ in Matheson v Baptistcare NSW & ACT [2025] NSWSC 213 recently considered how to treat the assessment of the secondary psychological injury. At [50] he wrote:

"As can be seen from s 65A(2), impairment resulting from a secondary psychological injury is not so much a basis for a deduction as a matter to be disregarded in assessing the permanent impairment resulting from the primary psychological injury. One consequence of this approach is that both must be assessed on the correct basis, namely by application of the Guidelines."

"In stating that "no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury", s 65A(2) is badly worded: it does not require the medical assessor to have no regard to such impairment or symptoms; on the contrary, they are to be identified so as to exclude them from the assessment process. That exercise must be undertaken in conjunction with the assessment of the degree of permanent impairment attributable to the primary psychological injury the subject of the claim. Thus, a secondary psychological injury is to be identified and then disregarded in calculating the degree of permanent impairment arising from the injury the subject of the claim"

"As noted above, that exercise is not in accord with the language of s 65A. It is also inconsistent with the recent decision of the Court of Appeal (post-dating the appeal panel decision in this matter), Coca-Cola Europacific Partners API Pty Ltd v Pombinho. [9] In that case ground 4 before the appeal panel had 'addressed the fact that no deduction was applied by the Medical Assessor for the purposes of s 323 of the [Workplace Injury Act]'. [10] Although not concerned with s 65A of the Workers Compensation Act, Ward P held:

'[86] In any event, Ground 4 in my opinion suffices to bring the assessment of Mr Pombinho's current whole person impairment within the scope of the grounds of appeal and hence within the jurisdiction of the Appeal Panel. That is because I accept the appellant's submission that, in order to determine the impact of pre-existing injury on current whole person impairment, a comparative exercise was necessary and that it would be logically incoherent simply to begin the exercise from a fixed starting point (ie, the 24% whole person assessment made by the Medical Assessor) and then separately to consider the extent to which pre-existing injury contributed to that whole person impairment (and then to apply that amount to the fixed starting point) without considering the starting point itself. The approach required by the Guidelines is a subtractive approach, requiring a deduction from the starting point of whole person impairment but it would make the exercise artificial if, having been required to consider all of the material that the Medical Assessor had failed to consider, the Appeal Panel could not then revisit the starting point of the assessment.'

64. The application of s 65A provides a far stronger basis for that reasoning than the exercise required by s 323, just because it is not a 'subtractive approach'. That is, even if one accepted that deductions could be made under s 323 from a fixed starting point, s 65A is only directed to the starting point. The reasoning in Pombinho applies a fortiori and, although arguably obiter, should be applied by this Court."

1. The Appeal Panel is satisfied that the Medical Assessor failed to identify any secondary psychiatric injury, which he was required to do, before disregarding it in calculating the degree of permanent impairment arising from the primary psychiatric injury.
2. The Appeal Panel is satisfied that the Medical Assessor deducted a physical condition, that is, pain including the impact of pain on sleep, from a psychiatric assessment of the primary injury, and did not find that there was a secondary psychiatric condition that had been caused by the pain condition. The Medical Assessor failed to make any diagnosis in relation to the secondary psychiatric condition and the failure to identify the secondary psychiatric condition and make a diagnosis was a demonstrable error.
3. The respondent submitted that the Medical Assessor made a diagnosis of persistent depressive disorder and chronic pain syndrome in respect of the secondary psychiatric condition. The Appeal Panel is satisfied that the Medical Assessor made a diagnosis of persistent depressive disorder in respect of the primary injury and made no diagnosis in respect of the secondary injury. The Appeal Panel accepts that the Medical Assessor referred to chronic pain syndrome which impacted in significantly disordered sleep. However, chronic pain is not a psychiatric condition, nor is "sleep disturbance", although there are several possible sleep disorders that are psychiatric conditions.
4. In Matheson, Basten AJ held that a secondary psychiatric condition had to be identified and then "disregarded in calculating the degree of permanent impairment arising from the injury the subject of the claim".
5. The Appeal Panel accepts that the Medical Assessor did not actually identify any secondary psychiatric condition arising from the pain caused by the physical injuries. Therefore, the Appeal Panel accepts that the Medical Assessor made a deduction for physical conditions as he had only identified chronic pain and sleep disturbance and not a psychiatric condition that arose from chronic pain and sleep disturbance. The Appeal Panel is satisfied that the Medical Assessor erred in making a deduction for a secondary psychiatric condition when all he had identified was chronic pain and sleep disturbance.
6. It follows that since Medical Assessor did not actually find that there was a secondary psychiatric condition, he did not consider impact of any secondary psychiatric condition on WPI.
7. The failure to identify any secondary psychological injury was a demonstrable error. These grounds of appeal (Grounds 1 and 4) are made out.

Ground 2 - Failure to consider effects of sleep deprivation

1. The appellant submitted that the Medical Assessor made a demonstrable error pursuant to s 327 (3) (d) of the 1998 Act by not considering the effect of sleep deprivation on each PIRS category when he assessed those categories. The appellant argued that in his assessment of the effects of sleep disturbance on a psychiatric condition, if there was any effect, it should have been done by assessing the effect of sleep deprivation on each PIRS assessment if it was to be considered at all.
2. The Appeal Panel accepts that effects of sleep disturbance of a secondary psychiatric condition can be assessed by the adoption of a two-step approach, that is, to calculate the WPI using the PIRS and to then assess the impairment resulting from the secondary injury and to deduct it (Keily No 2). The deduction is not a deduction to which s 323 of the 1998 Act applies.
3. However, in this matter the Medical Assessor did not identify a secondary psychiatric condition and therefore it was not necessary that he consider the effect of sleep deprivation on each PIRS category when he assessed those categories.
4. This ground of appeal is not made out.

Ground 3 - error in relying of report of Dr Freiberg

1. The Medical Assessor made a demonstrable error by relying on a party's IME, namely,

Dr Freiberg when that report could be contradicted by either the other party's IME or a Medical Assessor who addresses sleep disturbance for the Commission. 2. The Appeal Panel notes that Dr Freiberg is a treating specialist, not an IME. The appellant had been referred to Dr Freiberg by his general practitioner, Dr Mo. 3. Section 324(i)(b) of the 1998 Act provides that the Medical Assessor assessing a medical dispute may call for the production of medical records and other information that the Medical Assessor considers necessary or desirable for the purposes of assessing a medical dispute referred to him. 4. The Medical Assessor was entitled to call for and rely on the report of Dr Freiberg. It was appropriate for the Medical Assessor to review and consider the report of Dr Freiberg and the accompanying sleep study report, in order to assess the impact of the appellant's pain disorder and secondary psychological injury on his fatigue, sleepiness, concentration and motivation difficulties. 5. This ground of appeal is not made out. 6. The Appeal Panel, having found error, concludes that it was necessary for the appellant to undergo a further medical examination because there was insufficient evidence on which to make a determination in respect of any reduction to be made for the secondary psychological injury. The Appeal Panel notes that in order to determine the impact of the secondary condition (which occurred before the primary psychological injury) on current WPI, a comparative exercise is necessary and it would be logically incoherent to simply begin the exercise from a fixed starting point, ie, the 17% WPI PIRS assessment made by the Medical Assessor (Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191). 7. As noted above, Medical Assessor Nicholas Glozier of the Appeal Panel examined the appellant on 9 July 2025. Medical Assessor Glozier provided the following report: 1. The worker's medical history, where it differs from previous records

The medical history in the evidence was already very detailed.

Dr Blom recorded prior treatment with an antidepressant for a condition which he deemed as unimpairing and quite likely asymptomatic, for which he made no Section 323 deduction and has not been subject to any appeal.

The description of falling down the stairs, resulting in right shoulder injury and loss of consciousness with subsequent chronic pain and dysfunction and the ensuing treatment, including three shoulder surgeries, is all well described in contemporaneous documentation. Mr Russell reiterated today that he felt he was poorly treated by the company afterwards. He had been working with Redwood since 2019 as a supervisor leading hand and believed he had a future within the company. He said that being asked to 'go casual' with the implications for his career and benefits was significant. He reported that having to drive daily to the depot in Windsor for a few hours to do light duties was demeaning and unreasonable. This was compounded when one of the return-to-work staff suggested that it wouldn't be a problem if he wasn't living in Newcastle. He said today the company 'did everything they did to get rid of me.' He couldn't quite identify why this was apart from that he was 'a cost.' He said the company name was changed the day after he had his injury which he suggested may possibly have been because of his injury having an effect on their safety record and thus their contracts as a 'tier 1 company'.

The significant shoulder injury, pain, limitations this has imposed on his physically demanding job, recreational activities, and function within the home, requirements for subsequent operations, and the ongoing neurological and painful symptoms have caused secondary psychological symptoms including irritability, reduced enjoyment, sleep disturbance, subsequent daytime fatigue and associated cognitive issues, apprehension of aggravation, loss of self-esteem and confidence in a range of activities.

The primary injury appears to have been caused by his subsequent treatment including loss of role in the organisation, loss of trust, feeling abandoned, punished, with him shutting people out over time, becoming more and more isolated, depressed and dysfunctional.

His sleep disturbance is characterised by a chaotic circadian rhythm, leading to no particular pattern or routine at night, no onset problems but middle insomnia, non-restorative sleep, with anergia and daytime sleeping.

Mr Russell has had three operations on his right shoulder: AC joint reconstruction, a subsequent arthroscopy with glenohumeral joint debridement, AC joint excision and removal of swivel lock screw in November 2020 before a final operation in July 2024. The third operation was a synovectomy and biceps tenodesis. This is confirmed in the latest GP notes of May 2025 where he had seen the surgeon and was opting for conservative management. He said he has had subsequent checkups but there is no further intention or other operations and he is not keen on any surgical intervention on his left shoulder which is reported as having some symptoms develop due to overuse.

Mr Russell reports that he currently sees a physiotherapist in Broadmeadow, Newcastle every 2 or 3 weeks. He described dry-needling, massages, stretches and manipulation, which he feels is useful. He also undertakes some of his own stretching exercise and walks around his yard.

Sleep Disturbance Diagnostic Assessment and (absence of) treatment

He was assessed for potential obstructive sleep apnoea in May 2024 by Dr Freiberg. The report from May 2024 contains a diagnostic polysomnogram showing that he slept for 5½ hours with a reduced proportion of deep slow-wave sleep and low total sleep time compared to population averages. He had an arousal index (AHI) of 8 per hour. His sleep efficiency was normal, his REM latency was normal (this is at times reduced in Depressive Disorders although corrected by many antidepressants). The sleep parameters refer to those of 'moderate insomnia' with reduced restorative slow-wave sleep and total sleep time.

As Dr Freiberg notes, this is not indicative of any clinically significant sleep-disordered breathing, (obstructive sleep apnoea) but a 'borderline mild sleep-disordered breathing.'

Mr Russell has not received any obstructive sleep apnoea interventions, e.g. CPAP machine, splints or medical treatment, from Dr Freiberg, indicative that this 'mild' condition has not been deemed to require any medical intervention.

An assessment by an ENT revealed no specific obstructive causes.

As a psychiatrist who works closely with sleep physicians and has significant experience in insomnia, these findings do not indicate an impairing or clinically significant obstructive sleep disorder but rather reflect insomnia as would be seen in my clinic. This is particularly true of the reduction of slow-wave sleep which is minimal at 3%, indicative of the incapacity to generate restorative sleep which is provided by this slow wave (stage 3/stage 4 sleep). This is a polysomnographic characteristic of depressive disorders.

Mr Russell continues to consult a psychologist Kathy via telehealth every fortnight or so. He described this as predominantly supportive treatment with some breathing exercises, going over

day-to-day things and motivation rather than a description characteristic of cognitive techniques, behavioural activation or any trauma-specific treatment.

He sees his Workers Doctors' GPs monthly. He has to go down to their clinic in Parramatta every second month to fill his prescriptions for Panadeine and Quetiapine but otherwise sees them via telehealth.

He says he does little in terms of his own personal wellbeing He did not describe any particular diet. He will do stretches if he wakes at night or at times during the day, and goes for a walk around the yard. He tries to do some things with his children but gets frustrated with his inability to do much physically and described little self-confidence to push himself to do any more. He reported no specific physical activities or exercise beyond his walking around the yard or seeing the physiotherapist or use of other health or self-care techniques.

1. Additional history since the original Medical Assessment Certificate was performed

GP notes from 2025, including those of the psychologist whom he sees via telehealth at the same clinic.

On 7 January 2025 it was noted that he was starting to become unwell and the rest of the family had whooping cough. The psychologist notes his lack of routine and circadian rhythm. She also noted that he was looking after his 11-year-old twins for some of the Christmas holidays and that at that time his payments from workers' compensation had been stopped. On 8 January his GP recorded ongoing shoulder pain and stiffness, mainly in the morning, physiotherapy, a flat mood and poor sleep. The disappointment with the TPI report was noted in January 2025 and that his arm injury was 'not the greatest when holds baby.'

In February there were requests for a further second opinion on his shoulder and a review by a psychiatrist, Dr Ereve, he had seen previously. In March it was noted 'ongoing issues with pain' and drowsiness associated with using his Quetiapine prn. In April 2025 a TPD claim was processed.

On 12 May 2025 it was noted that he struggled with motivation, was tense, and having to ask people for money, borrowing money off his partner's mother and his own mother. It was noted that he was kept awake at night due to the loss of his training tickets because they had expired, issues with his ex-wife in terms of child support.

Over these months ongoing problems with fatigue were noted, circadian rhythm issues, lack of routine and some low mood, anxiety and ongoing pain and physical limitations.

Quetiapine 25mg at night (he takes this at a slightly odd time, i.e. not before he goes to sleep but when he has his first wakening).

Gabapentin - he thinks 'every other day' however I note that according to his clinical records, this was ceased in October last year.

He also says he occasionally takes a Melatonin although has not been prescribed that for a long time.

Mr Russell lives with his partner of some years, Renee, and the relationship remains supportive and stable. They have a young daughter, Violet, who he describes as having a 'big personality' and enjoys being with. They live in Renee's mother's home. He has his 11-year-old twins over for four days every long weekend, picking them up from school on the Thursday and dropping them off on the Monday, looking after them over that weekend. He shares custody over the school holidays and currently has both twins living with him. He reports some poor motivation and drive around the home, e.g. not showering every day and occasionally missing showers and sometimes his teeth. He said that a key factor is his frustration with his physical impairment because of poor fine motor skills and dexterity. As a result he does not cook because he will drop knives or kitchen items although there is some minor contribution from the primary psychiatric injury. He does minimal housework: Renee and his mother-in-law are at home and Renee is a stay-at-home mother. He can get his kids' food prepared at times and get them ready for school if he has to, although generally they are able to look after themselves. He will mow the lawn occasionally. He struggles with heavier household activities because of his shoulder pain and notes that, in particular, anything jerking will aggravate pain and tingling and numbness. However he has managed to find work-arounds for many activities.

They have no money for him and Renee to go out. He has withdrawn from his friends. He will occasionally go fishing, taking his son Finn. He says that after he casts a few lures - maybe only 5 or so - his shoulder and arm hurt and tingle so much that he cannot do this anymore so he will stop and rest for a few minutes and is then able to do a few more. He may get migraines doing this. He does this only very occasionally now, and only with his son. He will take his son fishing a little more frequently, the last time being a week ago to the hot water outlet nearby. Much of the time he sits there, unable to fish, and feels frustrated with this. He cannot physically "put my boat in" now. His other social activities are limited by his low mood, isolation and poor motivation. For instance, if he takes Finn to his football training, he said he will just sit there in the car and not interact with the other kids' parents. In the past week or so he has taken the kids bowling but cannot bowl physically, which leaves him despondent.

He is able to drive locally and reported no particular impairment from his arm injury driving. However he says if he has to drive long distances, such as coming to Sydney for an appointment, he will drive with someone because he will become fatigued at the wheel, lose concentration, have "fuzzy vision" and they may have to take over. He can go to Sydney on public transport if required. The family also flew to Cairns last year for his grandfather-in-law's birthday. He said it was stressful getting packed/ready, getting to the airport, but he had no problems on the plane, having been a FIFO worker for many years.

He reported no other social activities, having withdrawn from all of his friends due to his loss of self-worth, confidence and a sense of mistrust although remains well supported by his family. He has had a degree of rapprochement with his mother and sees her weekly.

He describes difficulties persisting with cognitive tasks due to fatigue and lack of motivation. He can at times help the children with their homework although may get headaches after a not very long period of time. He reports he does manage his own finances but struggles to persist with stressful tasks. For instance, although his benefits ceased being paid in December, he said he has only got halfway through the Centrelink application despite the financial implications. I do not he has however completed the TPD application, given the conclusion of this in April in his notes.

When I asked about any retraining or courses, he repeated what he had told the MA about his inability to complete courses during COVID and that all of his safety documentation and

registration has now lapsed. He says as he could never go back to work in such a setting, it is pointless getting these back, but again this has further undermined his confidence, esteem and goal. Despite the loss of all of his income, he has not returned to any work this year. Whilst there is a significant physical component in his inability to return to his previous job, he describes little motivation or interest, and a level of anergia, sleep disruption, daytime fatigue and sleeping that would prevent him from working at a job or being reliable or even probably volunteering until he was on top of his circadian rhythm.

Mr Russel was prompt and engaged, although often needed probing for a detailed response. He was bearded but not overly unkempt. There was no formal thought disorder nor abnormal behaviour. His affect was flat and restricted. Although he apologised several times for his memory he was usually able to recall details and persisted with the pace of the assessment for over 60 minutes. He reports being generally flat, rather than tearful or miserable, saying he rarely cries. He has little enjoyment, in part due to physical symptoms and lack of finances but also finds little enjoyment in things. He might listen to audiobooks and became slightly animated when describing his current audiobook, and enjoys his children but little else. He describes being withdrawn, isolated with significant negative cognitions about himself, his future and his functioning. He was adamant he has no suicidal ideation. He can get anxious and stressed if there are excess demands, e.g. feeling anxious about the appointment today, however he does not get panic attacks. He is frustrated with physical limitations, lack of recovery after many interventions, particularly of dropping things and poor motor manipulation more than pain. His sleep is highly variable. He says he can go to sleep any time during the evening, at times getting drowsy and falling asleep over dinner even; at other times staying up until much later, watching YouTube. Although he falls asleep readily, he will wake an hour or two later. He will then generally get up, particularly as the baby is in their bedroom, and may do some stretches and then take his Quetiapine. He may then get more hours of sleep. At times - particularly if he has gone to bed late - he will not go back to sleep but will sleep late for some hours during the day. When there are demands, such as when his own children are over, he will generally get up in the morning as he will have to take them to school or ensure they get ready but at other times may doze through and let his wife and mother-in-law look after their own daughter.

1. Results of any additional investigations since the original Medical Assessment Certificate

The referral to the Medical Assessor was for both a primary psychiatric injury and a secondary psychiatric injury.

In addition to these two psychiatric injuries there is also a contribution to impairment arising from pain, numbness, tingling, neurological and manual dexterity difficulties associated with his physical injury (organic impairment in para 11.5 in the guidelines) to have regard to such that only the impairment arising from psychiatric injuries is assessed.

From the symptomatic description Mr Russell's current psychiatric diagnosis is that of a Persistent Depressive Disorder, as diagnosed by the Medical Assessor. He has low-level depressive

symptomatology, generally feeling flat, some reduced enjoyment but not anhedonia, and other clinically significant symptoms. He would not appear currently to meet the criteria for a Major Depressive Disorder or if he did have one it is now in partial remission.

Mr Russell also has an insomnia syndrome, marked by significant waking after sleep onset - i.e. middle insomnia, non-restorative sleep, disrupted circadian rhythms, and daytime consequences.

Some of this syndrome represents part of the sequelae to his physical condition as he noted that one of the main reasons he wakes up at night and then stays awake is because of his pain but these insomnia symptoms form part of his Persistent Depressive Disorder. As noted by the sleep physician (and on my view of the polysomnography results), he does not have a clinically significant obstructive sleep apnoea. His circadian rhythm problems, routine, sleep disturbance represents an insomnia syndrome. This is consequent to both his mood disorder and his pain and thus not a primary Insomnia Disorder per se. This is because the insomnia syndrome is in this case adequately explained by the coexisting mental disorder and medical condition, Criterion H of Insomnia Disorder under DSM-5.

Thus in toto, Mr Russell has one psychiatric disorder - Persistent Depressive Disorder - which represents the co-mingling of his primary and secondary psychiatric injuries. It is impossible to disentangle the impairment associated with each of these injuries and all of the impairment as rated below can be attributable solely to the primary psychiatric injury.

It is impossible to determine that the secondary psychiatric injury has led any further impairment over and above that arising from the primary injury.

The insomnia syndrome symptoms represent part of both the primary and secondary psychiatric injuries. There is no secondary psychiatric injury of Insomnia Disorder that would account for any further impairment over and above that attributable to the primary psychiatric injury.

He reports some poor motivation and drive around the home, e.g. not showering every day and occasionally missing showers and sometimes his teeth. He can get the kids' food prepped at times and get them ready although if required. This is a mild impairment as the impairment arising from his primary psychiatric injury would not preclude him living independently

He describes some reduced self-care due to lack of motivation and anergia arising from his primary psychiatric injury. He has ceased cooking and stopped doing a number of other self care tasks because of his poor manual dexterity and physical dysfunction. He will mow the lawn occasionally. He struggles with certain heavier activities because of his shoulder pain and notes that in particular anything jerking will cause pain and tingling and numbness. However he has managed to find work-arounds for many activities.

As such, there is an additional impairment over and above that arising from his psychiatric injury attributable to the physical injury and this is not rateable.

He has withdrawn from his friends. He will occasionally go fishing, taking his son Finn. He says that after he casts a few lures - maybe only 5 or so - his shoulder and arm hurt and tingle so much that he cannot do this anymore so he will stop and rest for a few minutes and is then able to do few more. He may get migraines doing this. He does this only very occasionally now and only really with his son. He will take his son fishing a little more frequently, the last time being a week or so ago to the hot water outlet nearby. Much of the time he sits there, unable to do so, and feels frustrated with this but the rest of his social activities are limited by his low mood, isolation and poor motivation. For instance, if he takes Finn to his football training, he will just sit there in the car and not interact with the other parents.

He is able to drive locally and reported no particular difficulties with his arm driving. However he says if he has to drive long distances, such as coming to Sydney for an appointment, he will drive with someone because he will feel fatigued at the wheel, lose concentration and they may have to take over. He can go on public transport if required. He no problems on the plane, having been a FIFO worker for many years.

He reported having withdrawn from all of his friends due to his loss of self-worth, confidence and a sense of mistrust although remains well supported by his family. He has had a degree of rapprochement with his mother and sees her weekly.

He describes difficulties persisting with tasks due to fatigue, lack of motivation. He can at times help the children with their homework although may get headaches after a not very long period of time. He manages his own finances but struggles to persist with important cognitively demanding tasks e.g. he said he has only got halfway through the Centrelink application despite the financial implications. He persisted with the cognitively demanding assessment for 60 minutes

Despite the loss of all of his income, he has not returned to work this year. Whilst there is a significant physical component to his inability to return to his previous job, he describes little motivation or interest, cognitive dysfunction anergia, sleep disruption, daytime fatigue and sleeping that would prevent him from working at a paid job or probably volunteering

Given this degree of impairment, it is quite clear that the treatment has not resulted in the 'apparent substantial or total elimination of the claimant's permanent impairment' required by the guidelines and so a 1% adjustment for treatment cannot be justified.

Mr Russell has a 19% whole person impairment arising solely from his primary psychiatric injury.

There is no additional impairment arising from a secondary psychiatric injury.

1. The Appeal Panel adopts the report and findings of Medical Assessor Glozier.
2. In relation to the secondary psychological injury, the Appeal Panel accepts that a two-step approach is correct, namely, an assessment of the degree of WPI arising out of the primary psychological injury sustained as a result of the incident, excluding 'any impairment or symptoms arising from or attributable to, the secondary psychological condition'.
3. However, the process described by Harrison AsJ in Keily No 2 is applicable only in circumstances where there can be a disentanglement of the impairment (and symptoms) a worker suffers due to a secondary psychological injury from the impairment (and symptoms) a worker suffers due to the primary psychological injury. In this case it was not possible to isolate impairment from the secondary psychological injury in the PIRS categories as the impairment and symptoms from the primary psychological injury and the secondary psychological injury could not be disentangled. To disregard the impairment and symptoms from the secondary psychological injury would result in disregarding the impairment and symptoms from the primary psychological injury. Such an outcome would be contrary to the beneficial purpose of the legislation.
4. In Ausgrid Management Pty Ltd v Fisk [2023] NSWPICMP 237 the Appeal Panel in that matter wrote at [45]:

"As said the requirement of s 65A(2) is to disregard the symptoms and impairment from the respondent's secondary psychological injury As the Appeal Panel has also said, that does not require the Appeal Panel or a Medical Assessor to disregard those impairments and symptoms if they also result from the primary psychological injury. The section does not require a Medical Assessor or an Appeal Panel to make a deduction for the extent to which a separate injury contributes to a worker's permanent impairment, but rather and to repeat, it requires a Medical Assessor or an Appeal Panel to disregard impairment and symptoms. The two are different things. The sub-section cannot be interpreted to disregard whatever impairment and symptoms a worker has that result from a primary psychological injury even though they may also result from a secondary psychological injury."

1. The Appeal Panel therefore assessed 19% WPI in respect of the psychiatric injury deemed to have occurred on 17 November 2020.
2. For these reasons, the Appeal Panel has determined that the MAC issued on

17 January 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 Graham Blom 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)

Ch 11 Pp 56-60

Total % WPI (the Combined Table values of all sub-totals)